Broward suspends defaults, writs of possession until April 17

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IN THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA
Administrative Order 2020-23-Temp
EMERGENCY ADMINISTRATIVE ORDER
CORONAVIRUS DISEASE 2019 (COVID-19)

F. Defaults and Writs of Possession and for Garnishment. Until such time as
the courts resume normal operations, in all county civil and circuit civil cases:
(1)No default shall be entered by the Clerk of Court.
(2)No court default may be sought unless submitted by motion to the
presiding judge detailing exigent circumstances which may warrant
judicial relief. In the event the presiding judge is unavailable, the matter
shall be presented to the Administrative Judge of the County Court or the
Administrative Judge of the Circuit Civil Division, as appropriate, and if
either are unavailable, to the Chief Judge.
(3)No writs of possession or writs of garnishment may issue until normal
operations of the court resume.

NOTE:  Landlords may still issue 3 day notices to pay rent, 7 day notices to cure violation, and notices of non-renewal,  file eviction cases, and issue and serve summons,  subject to the March 27th Federal “CARES” ACT 120  day restriction of properties with Federally backed 1-4 family mortgages.

 

Broward Courts: status report

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While the Broward Courts are closed to the public,  the court system remains in operation.  The clerk is issuing esummons in one day.  Judges are ruling on ex parte motions in a matter of days.  Hearings are being cancelled and not reset for the time being.

Court registry:  is open.  Funds my be mailed or left in the drop box manned by the sheriffs at the court house entrance.

The Sheriff is not executing writs of possession in the following counties until further notice:

BREVARD, BROWARD, DUVAL, HILLSBOROUGH, INDIAN RIVER, LEE, LEON, MARTIN, MIAMI-DADE,  ORANGE, PALM BEACH, SEMINOLE, ST. LUCIE 

 

Evictions halted in Broward

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In a Tuesday letter to the Broward Sheriff’s Office, Tuter referenced the ongoing state of emergency due to the spread of the virus. Tuter outlined that state of emergency, along with a previous Administrative Order allowing for evictions to be suspended.

“Pursuant to that Administrative Order, the Sheriff shall suspend posting and execution of any writ of possession for residential premises that have not been executed prior to the declaration of emergency and partial suspension of court operations,” the order reads.

“This mandate not only applies to the Sheriff, but to all law enforcement agencies.”

Click here to read the article on FloridaPolitica.com

Broward Court closed to the public until March 27th.

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For landlord’s this means that no affidavits of mailing for summons served by posting can be filed in person,  but they may be mailed to the clerk of court.

For Tenants:  The judges are still processing the eviction cases.  If you are being evicted for non-payment of rent you still have to post the rent in the court registry within five business days of being served.  As the court house is closed to you,  you must mail the rent to the court registry or deposit it in the drop box outside the court house.  You must add the court registry fee of 3% of the first $500 and each subsequent $100 at 1.5%. Deposits into the Court Registry can be in the form of Cash, Cashier’s Check, Bank Official Check, Money Order, or Attorney Trust Account Check. No personal checks are accepted.

For updates and questions, please contact the jury room 24-7 Hotline: (954) 831-7051, Office Hours Only: (954) 831-6089.

Please visit www.17th.flcourts.org/coronavirus-covid-19-updates for updates on Court Operations.

FLORIDA LAW ENFORCEMENT GUIDE TO REMOVAL OF PERSONS FROM RESIDENTIAL PROPERTY

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Whether law enforcement may  properly remove a person from a residence depends on whether that person has a lawful right to be there.   Whereas   the right of a “guest”   to occupy a premises may be freely revoked  by the owner,  the right of a “tenant,”   or a person claiming an “ownership interest”  can only be terminated by  a court order,  and is thus a “civil matter.”

CLAIM OF OWNERSHIP INTEREST                               CIVIL MATTER

If the occupant claims an ownership interest,  has an agreement for deed,  option,  or contract to purchase,  the appropriate remedy  is for the competing owner to file an “ejectment”  in circuit civil court.

TENANT                                                                         CIVIL MATTER

A tenant is any person entitled to occupy a dwelling unit under a rental agreement.  The Rental agreement does not have to be in writing.  To remove the tenant,  Florida law requires the landlord  to file an “eviction”  in  civil court.  If the eviction is granted by a judge, the Clerk of Court will issue a writ of possession directing the county sheriff  to carry out the court’s order to remove the tenant.   After the sheriff has executed the writ of possession,  local law enforcement may treat  the former tenant as a trespasser.  The landlord should present  a  copy of the writ of possession or the sheriff’s return of service for the writ.

OCCUPANTS  IN A PUBLIC ACCOMMODATION          MAY BE REMOVED

INSTITUTIONS

Occupation of a private or public facility pursuant to medical, geriatric, educational, counseling, religious, or similar services is excluded from the landlord tenant act.  §83.42(1) F.S.  and persons may be removed by law enforcement pursuant to §810.08  after the property owner, or person in legal possession of the subject premises has notified the guest to depart from the establishment.

HOTEL/MOTEL

The definition of  hotel/motel is rentals for a term of less than one calendar month or 30 days, whichever is less. §509.013(4)(a)F.S. and persons may be removed by law enforcement pursuant to §509.141  after the property owner, or person in legal possession of the subject premises has notified the guest to depart from the establishment.

Transient occupancy in a hotel, motel, rooming house, or similar public lodging or similar public lodging is excluded from the landlord tenant act.  §83.42(3). F.S.

If the occupant has stayed in the public lodging long enough,  he is no longer a “transient,”  and  will gain the status of “tenant”  and be entitled to eviction proceedings in court.

THE TEST:  How do you determine if the occupant is no longer a “transient?”

  • Length of stay more than 30 days.
  • Intention of the parties that the occupancy is for indefinite duration
  • Subject premises is occupant’s primary residence.
  • Occupant has government issued ID with the subject premises as the address.

RECREATIONAL VEHICLE PARKS

As with the Hotel/Motel, “transients” may be removed after the owner has notified them to depart pursuant to §513.13.

Transient occupancy in a  mobile home park  is excluded from the landlord tenant act.  §83.42(3). F.S. If the occupant has stayed in the park long enough,  he is no longer a “transient,”  and  will gain the status of “tenant”  and be entitled to eviction proceedings in court.  The test for transient status is the same as for Hotel/Motel.

 

TRANSIENT RESIDENTIAL OCCUPANTS                  MAY BE REMOVED

A guest staying in a residence is  not entitled to a court proceeding to be removed by law enforcement  pursuant to §82.035, Florida Statutes,   upon provision of an affidavit  by the property owner, or person in legal possession of the subject premises,  stating the following:

  • The transient occupant has no ownership, financial, or leasehold interest in the subject premises.
  • No utility bills in the transients name
  • No government ID with the subject property address
  • No mail with the subject property address
  • Pays nothing, or little, in exchange for the occupancy
  • Does not have their own room
  • Has minimal personal possessions at the subject premises
  • Has a residence elsewhere
  • 82.035(3)(a) F.S. ”A person who fails to comply with the direction of the law enforcement officer to surrender possession or occupancy violates s. 810.08.”
  • 82.035(3) (b) A person wrongfully removed pursuant to this subsection has a cause of action for wrongful removal against the person who requested the removal, and may recover injunctive relief and compensatory damages. However, a wrongfully removed person does not have a cause of action against the law enforcement officer or the agency employing the law enforcement officer absent a showing of bad faith by the law enforcement officer.

If the officer is not satisfied that the person to be removed is actually a “transient,”  the complainant will have to file an “unlawful detainer”  case in the county court.

TRESSPASSERS                                                        MAY BE REMOVED

Law enforcement  may also  remove  a “transient occupant” on the charge of trespass.  Florida Statutes  §810.08 (1) provides ”Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.”

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Court strikes down ordinances prohibiting short term rentals

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City ordinances which impose escalating fines for violations of city’s ban on short-term rentals of residential properties, beginning with a fine of $20,000 for the first offense, are in conflict with Florida Statutes §163.09(2)(d),  and are therefore illegal and unenforceable.

A Miami Beach property owner filed suit to overturn two Miami Beach Ordinances prohibiting the rental of residential properties for six months or less and imposing a $20,000  fine for the same.  Plaintiff argued that the ordinances conflict with Florida Statute Section 163.09(2)(d), which limits the fines municipalities may levy for code violations to “$1,000.00 per day for the first violation and $5,000.00 per day for repeat violations.”

City Code § 142-905(b)(5), governs short-term rentals of single-family homes.  City Code § 142-111, governs short-term rentals of townhomes, condominium, and apartments. Generally speaking, both ordinances prohibit the rental of properties for terms of six months or less, with limited exceptions that are not pertinent to the issues framed by the pending motions.

If a property owner rents for a period of less than six months and one day — and thereby violates either ordinance — they are subject to escalating fines of $20,000.00 for the first offense, $40,000.00 for the second, $60,000.00 for the third, $80,000.00 for the fourth, and $100,000.00 for all offenses thereafter. City Code §§ 142-905(b)(5)(a) and 1111(e)(1).  A special master, however, has no ability to waive or reduce fines if a violation is found. City Code § 142.905(b)(5) (“the special master shall not waive or reduce fines”).

Article I, Section 18 of the Florida Constitution limits all administrative fines to those authorized by the Florida Legislature,” and no city may “adopt any fines that the legislature has not authorized it to adopt.”  Florida Statute § 162.09 “limits municipal fines to $1,000.00 for the first offense and $5,000.00 for subsequent offenses.”

The Court rejected the City’s argument that the Plaintiff lacked standing to seek declaratory relief because she has not violated the ordinances and been penalized. Plaintiff is a property owner on Miami Beach who has — and wants to continue — leasing her real estate, but she is unable to do so because the challenged ordinances make it illegal. No precedent supports the proposition that she must first break the law and be fined $20,000.00 before she can challenge its legality. The law is in fact to the contrary, as it should be. See, e.g., Lambert v. Justus, 335 So. 2d 818 (Fla. 1976) (property owners had standing to bring “complaint seeking declaratory judgment as to the validity of certain restrictions on the use of their property”). These ordinances are prohibiting Nichols from renting her property now, and unlike the situations presented in the precedent cited by the City, this is not a case where a plaintiff is seeking an advisory opinion on a moot academic issue or a question that may never arise. See, e.g., Santa Rosa County v. Admin. Com’n, Div. of Admin. Hearings, 661 So. 2d 1190 (Fla. 1995) [20 Fla. L. Weekly S333a] (action seeking declaration as to the constitutionality of certain statutes was moot as parties had resolved their disputes by a “stipulated settlement agreement”); Apthorp v. Detzner, 162 So. 3d 236 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D490a] (action challenging the qualified blind trust statute despite the fact that “no public officers” had ever used the type of trust authorized by the law); Florida Dept. of Ins. v. Guarantee Tr. Life Ins. Co., 812 So. 2d 459 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D523b] (action challenging constitutionality of Florida Statute § 627.411 presented no actual controversy because plaintiffs rate filings had never been reviewed or denied “under that provision”).

Does Chapter 162, et. seq. Grant Municipalities the Right to Opt-Out of the Statutory Cap on Fines Imposed by § 162.09

This brings the Court to the only genuine issue: Does Chapter 162 authorize the City to impose fines greater than those authorized by §162.09? The short answer is no.

“[A] municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden.” Rinzler v. Carson, 262 So. 2d 661, 668 (Fla. 1972). For that reason, “[m]unicipal ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute.” Thomas v. State, 614 So. 2d 468, 470 (Fla. 1993). That does not mean that the state and a municipality may not legislate concurrently. They can. But when a municipality legislates in an area addressed by the legislature, its “concurrent legislation must not conflict with state law.” Id., citing City of Miami Beach v. Rocio Corp., 404 So.2d 1066 (Fla. 3d DCA), review denied, 408 So.2d 1092 (Fla.1981). See also, City of Palm Bay v. Wells Fargo Bank, N.A., 57 So. 3d 226 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D161a] (“[a]lthough a municipality has broad home rule powers to enact local ordinances, the ordinances may not conflict with a state statute”) (internal citations omitted).1

This long-settled rule of superiority/preemption is derived from the plain text of Article I, Section 18 and Article VIII, Section 2(b) of our Constitution. The first provides that no administrative agency — which the City admittedly is — may impose any penalty “except as provided by law.” Article I, Section 18, Fla. Constitution. The second provides that municipalities “may exercise any power for municipal purposes except as otherwise provided by law.” Article VIII, Section 2(b), Fla. Constitution. These provisions, in tandem with the “Municipal Home Rule Powers Act” codified at Chapter 166 of the Florida Statutes, make clear that a municipality “may enact legislation on any subject upon which the state legislature may act unless expressly prohibited by law.” Rocio Corp., 404 So. 2d at 1068; City of Venice v. Valente, 429 So. 2d 1241, 1243 (Fla. 2d DCA 1983) (“. . . a municipality may not exercise any power for municipal purposes which is expressly prohibited by law”). Local ordinances are “expressly prohibited by law” when they conflict with a state statute, and “must fail when [such] conflict arises.” Id. See also City of Kissimmee v. Florida Retail Fed’n, Inc., 915 So. 2d 205 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D2457f] (“[w]hen the legislature enacts a statute, a local government cannot adopt or enforce an ordinance that conflicts with the statute”); Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008) [33 Fla. L. Weekly S1002c] (“. . . in a field where both the State and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute”); Hillsborough County v. Florida Rest. Ass’n, Inc., 603 So. 2d 587 (Fla. 2d DCA 1992) (“[i]f [a county] has enacted such an inconsistent ordinance, the ordinance must be declared null and void”); Masone v. City of Aventura, 147 So. 3d 492 (Fla. 2014) [39 Fla. L. Weekly S406a] (“. . . municipal ordinances must yield to state statutes”); Florida Retail Fed’n, Inc., supra, n.1.2

Section 162.09 of the Act — titled “Administrative fines; costs of repair; liens” then caps the fines that may be imposed by a code enforcement board or special magistrate. Section 2(d) — the portion of the Act at issue here — provides:

(d) A county or a municipality having a population equal to or greater than 50,000 may adopt, by a vote of at least a majority plus one of the entire governing body of the county or municipality, an ordinance that gives code enforcement boards or special magistrates, or both, authority to impose fines in excess of the limits set forth in paragraph (a). Such fines shall not exceed $1,000 per day per violation for a first violation, $5,000 per day per violation for a repeat violation, and up to $15,000 per violation if the code enforcement board or special magistrate finds the violation to be irreparable or irreversible in nature. In addition to such fines, a code enforcement board or special magistrate may impose additional fines to cover all costs incurred by the local government in enforcing its codes and all costs of repairs pursuant to subsection (1). Any ordinance imposing such fines shall include criteria to be considered by the code enforcement board or special magistrate in determining the amount of the fines, including, but not limited to, those factors set forth in paragraph (b).

The City — exercising its police power — decided to ban virtually all short-term rentals on Miami Beach. That is a policy decision the Court may not second guess or interfere with. See Benjamin N. Cardozo, The Paradoxes of Legal Science, 125 (1928) (“[w]hen the legislature has spoken, and declared one interest superior to another, a court must subordinate her personal belief to that so declared”); State v. Ashley, 701 So. 2d 338 (Fla. 1997) [22 Fla. L. Weekly S682a] (“. . . we have said time and again, the making of social policy is a matter within the purview of the legislature — not this Court”). But a municipality exercising its admittedly “broad authority to enact ordinances,” City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006) [31 Fla. L. Weekly S461a], may not legislate “in conflict with state law.” Thomas, supra at 470. As our appellate court put it as recently as this August, “although Florida municipalities are given broad authority to enact ordinances, municipal ordinances must yield to state statutes. Florida Retail Fed’n, Inc., supra.

The legislature — in the exercise of its police power — clearly and unambiguously imposed caps on the amount local governments may fine citizens for code violations. § 162.09, Fla. Stat. (2019). Those mandatory caps provide statewide uniformity and limit the exposure a citizen may face for violating local law. The caps set by the legislature, while hardly de minimis, may not in the City’s view be adequate to force (or motivate) Miami Beach’s wealthiest property owners to comply with these ordinances. The City may (or may not) be correct, but that is a matter it must take up in Tallahassee. In the meantime, and unless and until the legislature allows local governments to fine citizens in excess of $1,000.00 per day for code violations, the City must abide by the command of §162.09. See Rocio, supra at 1071 (“. . . the local ordinances must yield to state statutes if stability in government is to prevail”); Thomas, supra at 470 (‘[w]hile a municipality may provide a penalty less severe than that imposed by a state statute, an ordinance penalty may not exceed the penalty imposed by the state”).

The ordinances challenged here are in jarring conflict with § 162.09 and are therefore illegal and unenforceable.

NATALIE NICHOLS, Plaintiff, v. CITY OF MIAMI BEACH, FLORIDA, 27 Fla. L. Weekly Supp. 707a.  An appeal has been filed and is pending.  Case 2018-021933-CA-01  Miami-Dade County

Landlord-Tenant bills filed in the 2020 Florida legislative session

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SB 1528: Landlords and Tenants

GENERAL BILL by Torres

Landlords and Tenants; Deleting a provision providing that the failure to pay rent into a registry of the court under certain circumstances constitutes an absolute waiver of certain defenses and entitles the landlord to a certain default judgment, etc.

SB 1084/HB 209 : Emotional Support Animals

GENERAL BILL by Diaz ; (CO-INTRODUCERS) Montford

Emotional Support Animals; Prohibiting discrimination in the rental of a dwelling to a person with a disability or a disability-related need who has an emotional support animal; prohibiting a landlord from requiring such person to pay extra compensation for such animal; prohibiting the falsification of written documentation or other misrepresentation regarding the use of an emotional support animal; specifying that a person with a disability or a disability-related need is liable for certain damage done by her or his emotional support animal, etc.

SB 274: Residential Tenancies

GENERAL BILL by Rodriguez

Residential Tenancies; Prohibiting a landlord from evicting a tenant or terminating a residential rental agreement because the tenant is a victim of actual or threatened domestic violence, dating violence, sexual violence, or stalking; authorizing a victim of such actual or threatened violence or stalking to terminate a residential rental agreement without penalty by providing written notice of intent to terminate the agreement and to vacate the premises; specifying that a tenant does not forfeit any deposit money or advance rent paid to the landlord for terminating a rental agreement under certain circumstances, etc.

SB 1852: Landlords and Tenants

GENERAL BILL by Rodriguez

Landlords and Tenants; Revising the definition of the term “tenant”; providing requirements for rental agreements; requiring landlords to provide certain information with rental agreements; prohibiting a landlord from evicting a tenant or terminating a rental agreement because the tenant or the tenant’s minor child is a victim of actual or threatened domestic violence, dating violence, sexual violence, or stalking, etc.

HB 1449: Residential Tenancies

GENERAL BILL by Smith, C.

Residential Tenancies;  Requires translation of lease into any language demanded by Tenant;  gives tenant right of first refusal on any sale; Requires an explanation for refusal to renew tenancy;  Prohibits termination of tenancy after without just cause; Tolls eviction proceedings for duration of a national emergency;  Requires 30 days notice of rental increases up to 5%, and 3 months notice of rent increases above 5% with mandatory mediation;  Deletes requirement for tenant to post rent into the court registry in eviction for non-payment; Prohibits landlord from inquiring into tenant’s crimminal history until tenant has been otherwise approved;  Limits application fee to a total of $100  for all applicants to a unit,  which must be refunded if unit is not available.

HB 6069: Landlords and Tenants

GENERAL BILL by Eskamani

Landlords and Tenants; Removes requirement that certain money be paid into registry of court.

My Top 10… No, I have 13 Favorite Clauses in my Lease

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This article is re-posted with permission from the Landlord Protection Agency (LPA)* and written by its President John Nuzzolese

I know many of you have been successfully using the LPA Lease for years, but I like to remind myself and it is good for you to be reminded of the important clauses in our contracts with our tenants once in a while. Often when things go smoothly for a while, we may tend to forget some details and be caught off-guard when tenants start to wander off-track.

The following clauses in the LPA Lease make it possible for me to be an effective landlord and property manager. Each and every one of these clauses have saved me repeatedly from the situations in which they apply. I’ve included links to related articles and forms I use to enforce these clauses.

  1. Late Fees, Added Rent & Bounced Check
    LPA Lease Clause # 3, Late Fees is one of the most active clauses that frequently need to be enforced for most landlords. Without this clause, you are not legally able to enforce collecting a late fee, so it is very important to have in your lease. I am thankful for this clause because it not only covers us for an initial late fee, but it also provides the tenant with an incentive to hurry up and pay the late fee and the rent by imposing a “Daily Late Fee” that starts one or two days after the initial late fee is due.The clause also provides for a “bounced check” or NFS charge, which covers the landlord for fees in the event of a dishonored rent check.

    A very important detail that is often left out of many leases is “Added Rent” or “Additional Rent”. You should always classify unpaid late fees and other charges like bounced check fees as “Added Rent”. That makes makes those charges legally collectible as rent. If you really wanted to, (I’m not saying you should), you can evict a tenant for unpaid late fees classified as “Added Rent” even if they’ve paid the rent each month.

  2. Early Payment Discount
    Many landlords don’t like to give the tenant a discount for paying the rent on time or early. The sentiment is: “Why should I reward the tenant for doing something they agreed to do anyway?” I agree with the sentiment, but I have to disagree with the reality of it. I would rather have the bulk of my rents come in a week to 5 days before the first of the month. I usually build a $5. or $10. early payment discount into every lease.Good responsible tenants want that discount and have a reason to pay early. It sure beats sending late notices and chasing the rent each month. More importantly it saves my valuable time and gives me peace of mind too.

    If you don’t have this clause already in your lease, you can also present your tenants with an Early Payment Discount Voucher.

  3. No Pets
    In the words of the late Nick Koon, a landlord guru and mentor of mine, “No pet ever improved a rental property.” The LPA Lease has a standard No Pet clause.In the event I decide to accept a tenant with a pet, I require a Pet Agreement Addendum to spell out the specific rules of conduct and care needed to protect the rental property. The Pet Agreement explains that the privilege of having the pet may be revoked if the tenant does not uphold his responsibility.
  4. Maintenance & Repairs
    LPA Lease clause #9 instructs the tenant on maintenance and repairs in detail. This clause has saved me many times in various ways. It includes policy concerning how presentable the property must be for the purpose of showing once notice is given to vacate. A messy or damaged property can prevent you from re-renting.The clause also requires the tenant to be responsible for minor repairs under a certain determined amount of money. Painting is not allowed without the owners approval. If I find the tenant is not upholding his responsibilities, I will notify him with a Lease Violation Notice.
  5. Grounds
    Do you maintain the grounds or does your tenant. The Grounds clause makes the tenant responsible for the exterior maintenance of your rental property. Part of being my tenant means taking on many of the responsibilities of a homeowner. Taking care of the property with pride is one of them. The clause states that if the grounds are neglected, the landlord may correct any problems or hire a landscaper at the tenant’s expense.I use the Grounds Violation Notice to enforce this clause.
  6. Appliances
    I am thankful for our appliance clause in the LPA Lease. It makes the tenant fully responsible for all the appliances. This clause has saved me countless time over the years, because appliance are sometimes high maintenance items. Especially washers and dryers! My policy is to explain this clause to the tenants when they sign the lease. I tell them many tenants bring their own appliances. We are not in the appliance business, and all of the appliances are in excellent working order and we expect them to be returned that way. If the tenant wishes to replace our appliance with his or her own, we will remove our appliance and they can take their appliance with them when they leave. Most of the time they leave their appliance. If your lease doesn’t have an appliance clause, The LPA’s Appliance Agreement can come in handy.
  7. Plumbing Stoppages
    A common call you hear from your tenants might be about toilets or plumbing stoppages. I love the plumbing stoppage clause because it has practically eliminated plumbing stoppage calls for us. It is the tenant’s waste in the lines and the tenant should be responsible for keeping the waste lines clean. Even if you don’t use the LPA Lease, the Plumbing Stoppage & Drain Maintenance Notice can be very helpful.
  8. Heating & Cooling
    I am grateful for our heating and cooling clause because the tenant is required to maintain a heating contract on the heating system and not doing so is a lease violation.
  9. Attorney Fees
    It is very important these days to include a clause for attorney’s fees in the event you have to take a tenant to court. The attorney fees are not normally recoverable if you do not have a clause like this. Before starting an eviction, I like to send an Attorney’s Fee Warning Notice to give the tenant one last opportunity to pay and avoid an attorney’s fee before sending the account to my eviction attorney.
  10. Renters Insurance
    I’m glad this is in our lease. I remember an incident years ago when the garage roof leaked during a heavy rain storm. The tenant called threatening to sue us for the damage to his sofa, which he stored in the garage. I was doubly thankful for our clause in the LPA Lease because of a) the Renter’s Insurance clause which makes the tenant obligated to have renters insurance and b) the Maintenance Clause which indicates that garages and basements are not included in the rental, but may be used at the tenant’s own risk.
  11. Service of Process
    This is a clause I’m grateful for when serving an important notice because it gives each person listed on the lease 100% authority to receive or give a notice on behalf of the other tenant(s). Just imagine how difficult it could be if you had to serve eviction papers to multiple tenants who are trying to avoid you!
  12. Illegality
    I once had a tenant’s attorney tell me he was going to have my lease declared “illegal” and the eviction case “thrown out of court” because he thought he could prove one of the clauses were “illegal”. Then I pointed out the Illegality clause which states that if any part of this lease is not legal according to local laws, the rest of the lease agreement will be unaffected. That shut him up and the eviction proceeded without further incident.
  13. No Smoking
    Have you ever painted after smoking tenants? You probably know what I’m talking about. It’s sometimes hard to find non-smoking tenants to rent a property where heavy smokers have been. The LPA No Smoking Notice & Reminder form can be used to inform tenants that they are in violation of their No Smoking clause in the lease agreement. It can also be used a new Notice to initiate a new No Smoking rule for your rental.
    That’s why I’m thankful for the No Smoking clause.

There are many more important elements of The LPA Lease that you should be using! If you’re not, you can easily implement them into your property management.

I hope you have a Happy Successful New Year!

* The LPA has numerous landlord forms, articles, business directories, and  offers background checks

Denial of attorneys fees to prevailing party in suit to recover security deposit due to small claims rules, reversed.

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Tenant sued to recover his $650.00 security deposit and $100 pet deposit among other counts and prevailed.  His counsel moved to tax attorney’s fees, which was granted. However, the trial then court sua sponte set aside the Final Judgment as to Taxing Attorney’s Fees finding that he  had relied on the Small Claims Rules throughout the case, “specifically chose not to file a Chapter 83 County Civil landlord tenant case” and was therefore not able to claim attorney’s fees under Chapter 83.  On appeal the denial of attorneys fees by the trial court was reserved.

A post-judgment order denying a party’s claim for attorney’s fees is an appealable final order, even when the order grants costs without determining the amount; thus, we have jurisdiction. Yampol v. Turnberry Isle, 250 So. 3d 835 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D1533a]. A denial of attorney’s fees based on a conclusion of law concerning the interpretation of statute is reviewed de novo. Country Place Community Ass’n v. J.P. Morgan Mortgage Acquisition Corp., 51 So.3d 1176 (Fla. 2d DCA 2010) [36 Fla. L. Weekly D31a].

The Small Claims Rules do not create a separate court; rather, they create a separate set of rules of procedure when the amount in controversy is less than $5,000.00 exclusive of costs and fees. LaSalla v. Pools by George of Pinellas Cty, Inc., 125 So. 3d 1016, 1016 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D1426a]. Thus, an action filed under the Small Claims Rules is a county civil action, and since the complaint in this case specifically pled relief under §§ 83.49 and 83.50 Fla. Stat., Tenant  did in fact file a Chapter 83 landlord tenant case. Moreover, nothing in the Small Claims Rules prevents an award of attorney’s fees, so long as they are properly pled. See e.g., Dish Network Service L.L.C. v. Myers, 87 So. 3d 72 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D975a] (prevailing party in small claims suit was entitled to statutory attorney fees, but not travel time or multiplier).

CONFORTI, , v. CARR.  Circuit Court, 5th Judicial Circuit (Appellate) in and for Hernando County.   27 Fla. L. Weekly Supp. 571a