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

The case of the Agent

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Agent of owner of leased property, who is named party in lease and lessor of property, has standing to bring eviction action

briefcasePlaintiff   who is the agent of the property owner and is the named “lessor”  on the lease filed a eviction in his own name.   The tenant moved to dismiss the case because the plaintiff was not the property owner and argued he had no standing to file the eviction.

The court noted that . Rule 1.210, Florida Rules of  Civil Procedure, permits “a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute [to] sue in that person’s own name.”  Additionally  Sections 83.59 and 83.595, Florida Statutes (2014), permit a “landlord” to evict a tenant from residential real property and to pursue damages for the breach of a rental agreement. Section 83.43(3), Florida Statutes (2014), defines “landlord” as “the owner or the lessor of a dwelling unit.”  The judge held that Sections 83.59, 83.595, and 83.43(3) clearly permit either a deeded owner of real property or the lessor to bring an action for eviction and damages.

As Plaintiff  was the named party in the lease sued upon he, is “a party with whom or in whose name a contract has been made for the benefit of another.” Accordingly, Plaintiff is the proper party and has standing to bring an action for eviction and damages pursuant to Rule 1.210.

Furthermore, Plaintiff was  the lessor of the dwelling unit. Thus, Plaintiff is the proper party with standing to bring an action for eviction and damages pursuant to sections 83.43(3), 83.59 and 83.595.

RATH/HARPER AND ASSOCIATES, INC. D/B/A RH MANAGEMENT AS AGENT FOR THE OWNER, vs.  WILSON,. County Court, 8th Judicial Circuit in and for Alachua County. October 2, 2014.  22 Fla. L. Weekly Supp. 372a

C’est une pipe !

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Independent living residency agreement ruled to be a lease even though it states that it is not a lease.

Margritti this is not a pipe

Fountains Lake Pointe Woods SL, LLC (the “Fountains”) and Milton Crystal entered into an agreement entitled Independent Living Residency Agreement (the “Agreement”).

In pertinent part, the Agreement provides the following. The Fountains is a community that provides apartments and various services to individuals who are at least sixty-two years of age and meet certain wellness criteria. It is an independent living community and not an assisted living facility or an entity, such as a nursing home, licensed under Chapter 400 of the Florida Statutes.

In order to become a resident of the Fountains, Mr. Crystal paid a $141,500 entrance fee of which 90% was refundable with certain conditions (the “Entrance Fee”). Mr. Crystal would then pay $2700 per month as a monthly service fee (the “Monthly Service Fee”). This Monthly Service Fee includes various items including but not limited to: an apartment, 24 hour staffing, utilities, dining, light housekeeping, laundry, activities, transportation, maintenance and routine health and some routine wellness services. There are other additional costs contemplated in the Agreement including pet fees, smoker’s fees, a resident’s use of services outside the scope of the monthly service fee and damage to the apartment. The Fountains, in its discretion, may increase or decrease the Monthly Service Fee with notice.

Both the Fountains and Mr. Crystal had the right to terminate with notice or upon death or in the event Mr. Crystal needs skilled care. Upon termination of the Agreement, the Fountains may offset any outstanding fees or costs owed to it using the Entrance Fee.

After a year, the Fountains notified Mr. Crystal that the Monthly Service Fee would be increased by $97.00 per month which Mr. Crystal refused to pay.

The Fountains filed an eviction action pursuant to Chapter 83 of the Florida Statutes.   Mr. Crystal filed a Motion to Dismiss the eviction action claiming that the County Court does not have subject matter jurisdiction because the Agreement is not a lease. The Defendant argued alternatively that the agreement constitutes an interest in real property which would require an ejectment action or alternatively, the Agreement is a license.

The Agreement stated, “[t]his Agreement does not create a life estate, lease or other interest in real estate or personal property, nor does it provide a health insurance policy for your benefit.” The Fountains’ explanation for this glaring issue is that the Agreement is a form used to comply with another state’s laws but that language regarding the lease is not applicable under Florida law.  The court noted that this was careless drafting  which certainly invited problems. However, the Court  looked  at the substance of the document over its form finding it had all of the hallmarks of a typical lease: the use of a residence or apartment, a monthly payment and clauses related to pets, smoking, damage to the apartment, etc. While the Fountains offered other amenities like dining, housekeeping, transportation and more, there is no authority for the proposition that this turns the Agreement into something other than a lease governed by Chapter 83 and was therefore found to be a lease.

FOUNTAINS LAKE POINTE WOODS SL, LLC, d/b/a THE FOUNTAINS AT LAKE POINTS WOODS, by and through its manager, WATERMARK RETIREMENT COMMUNITIES, INC., Plaintiff, v. MILTON J. CRYSTAL, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. 22 Fla. L. Weekly Supp. 275a.

Tenant who sued for the return of the entire security deposit awarded less than half, still considered “prevailing party.”

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Tenant had a $1,400.00  security deposit with landlord.  At the end of the tenancy landlord claimed $840.00  of the deposit and returned $560.00.  The tenant refused the $560.00 and sued for the return of the entire deposit.   At trial the court ruled that tenant was entitled to a refund of $679.00 and that the landlord was entitled to keep $721.00.   Nevertheless,  the court determined that the tenant was the “prevailing party”  and thus the landlord was liable for the tenant’s attorney’s fees and court costs.

MAIO, v. GRUBER,  . County Court, 9th Judicial Circuit in and for Orange County,  August 6, 2014. 22 Fla. L. Weekly Supp. 269b

In Rem Jurisdiction

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Where landlord did not effect personal service on tenants and obtained service only by publication, court did not have jurisdiction to enter money judgment against tenants

Landlord filed a two count complaint for eviction and damages on July 31, 2013. The five day summons was served by posting and the twenty day summons was returned un-served.   Landlord moved for a default on the possession count based on the posted five day summons and the court granted a default judgment for possession on August 30, 2013.

After entry of final judgment for eviction and issuance of a Writ of Possession, landlord filed an amended complaint on November 8, 2013, and did not seek leave of court for such amendment. Landlord filed an affidavit of diligent search and attempted service of process by publication in the Heritage Florida Jewish News. Such notice was published on October 18 & 25, 2013.   Based only on service by publication, landlord moved for and obtained a money judgment against tenants in the amount of $84,790.87 on January 3, 2014.

On May 7, 2014 tenants moved to vacate the money judgment based on lack of jurisdiction. The Court agreed, ruling that service by publication only provides the Court with in rem or quasi in rem jurisdiction and does not allow entry of a personal money judgment. Drury v National Auto Lenders, Inc., 83 So. 3d 951, 952 (Fla. 5th DCA 2012) [37 Fla. L. Weekly D637a]; Bedford Computer Corp. v. Graphic Press, Inc., 484 So. 2d 1225, 1227 (Fla. 5th DCA 1986). A personal money judgment requires personal jurisdiction over the defendant, which the court did not have. Id.

The court vacated the money judgment on September 19, 2014, but granted landlord leave to amend his complaint. On November 10, 2014 landlord issued an alias summons. We will see what happens next !

CHARLES v. MYRLAND et al., Defendants. Circuit Court, 9th Judicial Circuit Court in and for Orange County. Case No. 2013-CA-009975-O, Division 39. September 19, 2014. Honorable John Marshall Kest, Judge. Online Reference: FLWSUPP 2202CHAR

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