Suing for the water bill

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Error for court to default tenant for not depositing the rent into the court registry  where complaint for unpaid water bill  did not allege any rent was due.

toiletcashOn the same day that tenant paid her May 2014 rent,  the landlord filed an eviction against her for not paying her water bill.    The tenant filed defenses that a plumbing defect had caused abnormally high water bills,  but the court defaulted the tenant for not posting the rent into the court registry.   The tenant appealed,  and the appellate court ruled that the requirement to post the rent claimed into the court registry under  §83.60(2) “Defenses to action for rent or possession”  is not applicable  where the landlord has not alleged that any rent was  due in the complaint.   The court noted, however,   that the tenant would be required  to post any rent accruing  during the pendency of the action  into the court registry,  and also that  a utility bill was not “rent.”

GILLESPIE , vs.  FIGUIREDO,  Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. November 4, 2014, 22 Fla. L. Weekly Supp. 690a.

Rights of Tenants under foreclosure

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writThe protecting tenants under foreclosure act expired last December,  so a tenant  is no longer entitled to a ninety-day notice to move  after the leased property has been foreclosed.    Once the certificate of title has issued,  the new owner  may file for a writ of possession  from the foreclosure court.  This is also true of any successor in interest,  such as an REO buyer.

Check the language of the final judgment of foreclosure to see if you need to file a motion for a writ of possession  or if you can get the writ of possession directly from the clerk of court  without  having to notice up a hearing.

An REO buyer should  get their writ of possession from the foreclosure court  and should not be filing an unlawful detainer against unknown occupants  or a tenant  eviction unless they have created a new tenancy by accepting rents.

If you are a tenant,  be aware that the foreclosure also terminated your tenancy and you are subject to a writ of possession, possibly without any notice.  There is no protection regarding your security deposit or for  any advanced rent paid.

You can check the status of the foreclosure on the Clerk of Court’s website. Click here for  Broward.   Choose “online Services” and “Civil” as type of case, and type in the landlord’s name as defendant  to see the status.   You can also try calling the Broward Clerk at 954-831-5745 and tell them the case number which is on the upper right corner of the court papers.

Tax deeds extinguish prior condo dues

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The GoodAn investor purchased  the tax deed for a condominium unit.  It turned out that the original owner had not only failed to pay his taxes,  but owed the condominium association $8686.40  in  dues.   The condominium association tried to collect the back dues from the tax deed buyer, citing the condominium statute 718.116 which states that buyers through foreclosures or deeds in lieu take subject to condo dues., and 718.120  which states that a tax deed does not extinguish the provisions of the declaration of condominium against a unit.  The court noted that Florida Statutes Section 197.573(2), governing tax deed states

this section shall not protect covenants creating any debt or lien against or upon the property, except one providing for satisfaction and survival of a lien of record held by a municipal or county governmental unit, or requiring the grantee to expend money for any purpose”

The court ruled that condo dues fell under “expend money for any purpose”  and therefore ARE  extinguished by a tax deed.  The legislature clearly intended that only municipal liens survive a tax deed.  The legislative intent was to protect the interests of the government  both in attracting tax deed buyers and municipalities,   but not to elevate condominium associations,  amongst   all creditors,   to the level of municipalities.

Bailey v. Sea Dip Beach Resort Condominium Association, Inc.  20 Fla. L. Weekly Supp. 266b. Volusia County 2012

Legislature gives landlords a mulligan

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mulliganUntil July 1, 2013 if the landlord filed an eviction with a defective 3 day notice, the case was subject to dismissal with prejudice.   The Florida legislature changed the statute in 2013. Now the law requires that “[t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.” Fla. Stat. 83.60(1)(a).

This means that a defective complaint will be dismissed without prejudice and with leave to amend.

DIANA MARVEZ, Appellant, v. STEVEN CANDELARIA , Appellees. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County . November 19, 2014. An Appeal from an order of dismissal in the County Court in and for Miami-Dade County.  22 Fla. L. Weekly Supp. 515b.

The traumatic tow

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TowLandlord  towed  two cars and a SeaDoo belonging to the tenant from the leased premises.  At trial the court found that this violated 83.67 “Prohibited practices.”   The landlord appealed, arguing that the  language in the statute states “dwelling unit”, which is different from “premises,” and thus, no violation under the statute could have occurred.

Section 83.67, Florida Statutes, states, in relevant part, that

(5) A landlord of any dwelling unit governed by this part shall not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, repair, or replacement; and the landlord shall not remove the tenant’s personal property from the dwelling unit unless such action is taken after surrender, abandonment, recovery of possession of the dwelling unit due to the death of the last remaining tenant in accordance with s. 83.59(3)(d), or a lawful eviction.

The appellate court found that as the Tenant’s property was not located inside the dwelling unit,  but outside,  the landlord did not violate 83.67 by removing it.

CHUNG, , v.  HURLEY,. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE12-019203 (AP). L.T. Case No. CONO11-014015. October 24, 2014.. 22 Fla. L. Weekly Supp. 533d

Selective enforcement

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CatfishA condominium association prohibited all pets, except for birds and fish. Tenant kept a dog, and the association filed suit to have the dog removed. Tenant raised the affirmative defense of “selective enforcement”  as other occupants had cats.   The trial court ruled that cats are “fundamentally different than dogs”  in that they are not noisy and don’t defecate outdoors and granted the association a summary judgment.

On appeal,  the 4th District Court of Appeals stated that a party challenging the enforcement of an otherwise valid restrictive covenant has the burden to prove defensive matters that preclude enforcement, such as the enforcing authority acted in an unreasonable or arbitrary manner. Id. (citing Killearn Acres Homeowners Ass’n v. Keever, 595 So. 2d 1019, 1021 (Fla. 1st DCA 1992)).  Restrictive covenants must be strictly enforced.  Although a cat is different than a dog,  a cat is also not a bird or a fish.  Therefore the trial court was in error to hold that cats were permissible.  As the Board was allowing cats, but not dogs,  it was deemed to be selectively enforcing the restriction, and the summary judgment was reversed.

Prisco v. Forest Villas Condominium Apartments, Inc., 847 So 2d 1012 (Fla.App. Dist.4 04/30/2003)

Court awards pro-rated real estate commission on breach of lease

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rentTenant sued landlord for failure to return his $5,000.00 security deposit. Landlord counter-claimed for $5,000.00 realtor fees incurred in re-renting the premises after tenant moved out four months before the end of the lease. The landlord hired a realtor and was immediately re-rented the unit at the same rent of $2500.00 per month for two years. Because the new lease was two years, the landlors was changed a two month realtor commission of $5,000. The court ruled that the landlord could not recover the full realtor fee of $5000.00, but only recover for a prorated four months for the balance of the original lease term: $2500/12 = 208.33 per month x 4 remaining months = $833.32. Because the landlord had to refund the remaining $4,166.68 of the security deposit he kept, the court ruled that the tenant was the prevailing party and entitled to his attorneys fees (which were $18,000.00).

Lee v. Stanziale, 2013 Conn. Super. Lexis 1767 (Conn. Super. Hartford 2013).

Handicap accommodation

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http://www.dreamstime.com/royalty-free-stock-photos-image31315508 The tenant in a condominium developed MS and began using a walker. He requested the condominium to assign him a handicapped parking space. The condominium, which originally had seven handicapped spaces out of three hundred and forty two, had sold those spaces as “premium parking”   to non-handicapped persons who were willing to pay from $15,000 $25,000 extra for the spots. The tenant was required to walk over one hundred feet and climb a flight of stairs to gain access to the premises from a standard parking space.   Tenant requested the condominium association to accommodate his disability.  They refused, as they had sold all of the handicapped spaces. The Federal district court ruled that the condominium association was required to provide at least 2% of its parking spaces (seven out of 392) for persons with disabilities under the Fair Housing Act. Thus they had to provide the tenant with a handicap spot, even if it meant having to buy it back.

Jafri v. Chandler, 970 F. Supp 2d 852 (N.D. Ill 2013)

To evict or eject ?

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hamletA landlord attempted to evict a tenant who had an option to purchase the leased premises and who had made more than twelve rental payments.  Section. 83.42(2) Fla. Stat. enacted in 2014 “Exclusions”  states occupancy under a contract of sale in which the buyer has paid at least 12 months’ rent  is excluded from the landlord-tenant act.

The trial court ruled that  case law establishes that an eviction is not the appropriate remedy where the occupant of the property has equity in the property. See e.g., Ward v. Estate of Ward, 1 So. 3d 238 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D28f]; Toledo v. Escamilla, 962 So.2d 1028 (Fla. 3rd DCA 2007) [32 Fla. L. Weekly D1876a]. In amending s. 83.42 Fla. Stat. in 2013, the legislature set a bright line for distinguishing tenants from buyers. See McKinney v. Dickson, 21 Fla. L. Weekly Supp. 175a (Lake Co. 2013).

While the county court  may determine  whether a tenant/buyer has equity in the property,   s. 26.012(g) Fla. Stat. (2014) grants exclusive original jurisdiction to the Circuit Court on actions involving title to real property.   Therefore Plaintiffs proper cause of action was an ejectment in circuit court,   not an eviction in county court, and the case was ordered transferred to circuit court for further proceedings.

HARNER v. CARTER, County Court, 7th Judicial Circuit in and for Volusia County. October 6, 2014.  22 Fla. L. Weekly Supp. 462a.

Sometimes it pays to settle!

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Landlord, INVERARRY RENTALS, LLC,  filed an eviction without using an attorney.  Legal Aid of Broward County filed an answer, motion to dismiss and motion to determine rent.   At this point landlord should have retained counsel but did not. The judge set the case for mediation. In my experience, Legal Aid of Broward County is reasonable, and if the landlord had settled in mediation, it could have avoided having to pay the tenant’s attorney’s fees and costs. Nevertheless, the landlord refused to settle and the case went to trial.   The tenant won the trial and the court awarded tenant’s attorney’s fees at the rate of $400.00 per hour and expert witness fees also at $400.00 per hour, totaling $3,959.00.   Landlord did not pay this, so tenant proceeded to garnish the judgment from Landlord’s bank account. As the landlord-tenant statute awards attorneys fees to the prevailing party, if that isn’t going to be you, you need to turn off the billing clock and settle the case as soon as possible.

INVERARRY RENTALS, LLC,  v. HERMENE BELIZAIRE,  County Court, 17th Judicial Circuit in and for Broward County. Case No. COWE-14-3349. September 4, 2014. Ellen Feld, Judge. Counsel: Patrice Paldino, Legal Aid Service of Broward County, Inc., Defendant. 22 Fla. L. Weekly Supp. 389b

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