Landlord fined $500.00 for claiming double rent after tenant left messy apartment.

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petstainLandlord agreed that tenant could have until noon, on the day after his lease ended to complete his move out. When the new tenant arrived that day he found the front door broken, the locks missing,  a bed left behind, and the carpets smelling of pet urine.    The new tenant was not able to move in for three days while landlord remedied these problems and the landlord had to prorate his rent by $49.54.   Landlord then claimed against security for the replacement of the carpet, door, locks, cleaning, and double the monthly rent for holdover.

Tenant filed a counterclaim that the claim for double rent violated section 559.72(9), Florida Statutes, of the Florida Consumer Collection Practices Act (“FCCPA”) by knowingly and willfully attempting to collect monetary damages to which he was not entitled.  The court ruled that although the landlord was entitled to recover the door repair, lock replacement, and interior cleaning, but not the double monthly rent or carpet (perhaps because of landlord’s failure to produce a receipt).  This left $60.46 of the security deposit refundable to the tenant,  who consequently was deemed the prevailing party.   The court also awarded the tenant $500.00 under the FCCPA for the wrongful claim for double rent.  On appeal,  the court affirmed that the tenant was the prevailing party both at trial and on appeal,  although the court noted that without a trial transcript it was not in a position to evaluate the trial court’s decision not to award damages for the carpet or at least partial rent loss for September.  [Author’s note:  §83.58 F.S. “Remedies; tenant holding over”  provides for double rent per diem,  not two months rent].

WOLK, Appellant, v. GOODMAN, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. 2014-CV-000022-A-O. L.T. Case No. 2013-SC-009018-O. November 5, 2014. Rehearing denied December 9, 2014. Appeal from the County Court, for Orange County. Online Reference: FLWSUPP 2209WOLK

Size doesnt matter

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sizeLoadstar award of attorneys fees to prevailing party not diminished by size of the damages awarded.

Tenants Ochoa and Ciofalo sued landlord.  Ochoas lease has a provision awarding the prevailing party attorney fees.  Ciolalo’s lease did not. Ochoa was awarded $53.195  and Ciolfalo $45,441.00,  but the only claim that Ciofalo prevailed on  with an attorneys fee provision was $200.00 (tripled to $600.00)  under the local rent ordinance.   The attorneys fee award to the two tenants was $184,340.40

The landlord appealed, arguing that Ciofalo shouldn’t get any attorneys fees,  as the claim that he prevailed on was so small  in proportion to the size of the attorneys fee.

The appellate court ruled that $600.00  was enough to be considered the “prevailing party”  and also that the attorney time spent on Ciofalo could not be separated from that spent on Ochoa,  who was entitled to attorneys fees by his lease.  On the issue of the attorneys fees being disproportionate to the size of the Tenants damages award,  the court stated that as  the tenants attorney fee was determinable under the loadstar criteria of a reasonable hourly rate  for a reasonably expended number of hours.  This calculation is not subject to proportionality to the amount the party recovered.

OCHOA V. SAN JUAN  COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO A130993 (Cal. Ct. App. Jun 09, 2014)

Tenant’s notice that trespassers will be shot  deemed an incurable lease violation

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trespassersTenant of a public housing project in Deerfield Beach , Florida posted a notice on his door threatening to shoot any trespassers.  The landlord responded on May 23, 1995 by posting a seven day notice of lease termination under 83.56(2)(a) (repeat violation within twelve months of a prior notice of the same violation and /or  incurable lease violation).   The tenant had been previously served with a notice to cure lease violation November 30, 1994.   The court found that tenants threat to shoot trespassers was both a repeat lease violation and an incurable lease violation,  justifying immediate termination of the tenancy.

The court also found that if landlord’s notice did not meet federal guidelines for termination of public housing,  tenant’s remedy would be in Federal Court,  but as landlord’s notice complied with Florida state law,  the Florida state courts had jurisdiction to terminate the tenancy.

SCHAPIRO, Defendant/Appellant, v. DEERFIELD BEACH HOUSING AUTHORITY, Plaintiff/Appellee. 17th Judicial Circuit in and for Broward County, 1996.

You’ve got to pay the piper

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Pay the PiperA landlord filed an eviction for non-payment of rent.  The tenant defended  on the basis of landlord’s failure to maintain the premises and filed a motion for rent determination.   Nevertheless,  the court ordered the tenant to deposit  the amount claimed of  $1550.00  into the court registry without conducting a rent determination hearing.   When the tenant did not make the deposit,  the landlord filed for a default judgment of eviction which was granted.

The tenant filed an appeal .   The appellate court ruled that even though the court did not conduct a rent determination hearing,  once it ordered the tenant to pay a certain amount,  §83.60(2), Fla. Stat., required the entry of a default judgment  if that amount was not paid.

LARRY J. HAMPTON, Appellant, v. 2636 5TH STREET SOUTH LAND TRUST ASSET PRESERVATION TRUST SERVICES, INC., Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 14-000065AP-88B. UCN 522014AP000065XXXXCV. February 24, 2015. 22 Fla. L. Weekly Supp. 780a.

Commercial landlord’s duty to perform repairs

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repairmenAs a general principal, a commercial landlord has no duty to perform repairs or maintain the leased premises. Without a special agreement to repair the leased premises, a landlord is not under a duty to make repairs. City of St. Petersburg v. Competition Sails, Inc., 449 So.2d 852 (Fla. 2nd DCA 1984).   A lease provision stating that  the tenant is not obligated to repair or replace an item,  such as a roof,  does not by implication,   impose the burden on the landlord.  Fischer v. Collier, 143 So.2d 710 (Fla. 2d DCA 1962).  The fact that landlord voluntarily performed repairs on the past,  does not create an obligation to continue to do so.  Ibid.

Nevertheless,  it a landlord testifies in court that it was his duty to maintain the air conditioning,  even though the lease did not so provide,  it was not error for the trial court to award tenant the costs of repairing it.  MANNO vs. RELIABLE RADIOGRAPHIC SERVICES, INC. 11 Fla. L. Weekly Supp. 797a. (Broward County 2004)

Florida Statutes Section 83.201  provides that where a landlord is under an agreement to repair, and fails to do so, and the premises in consequence thereof become untenantable, the tenant may abandon the premises without liability for further rent.  The mere failure, however, of the landlord to make repairs, the need of which does not render the premises untenantable, will not warrant an abandonment of the premises or relieve the tenant from liability for rent. 18 Am. & Eng. Enc. Law (2d Ed.) 231; 16 R. C. L. 691; Stewart v. Childs Co., 86 N. J. Law, 648, 92 A. 392, L. R. A. 1915C, 649, and note.

Where the repairs involved are inexpensive as compared with the rent, the measure of a lessee’s damages for breach of covenant of the lessor to make the repairs may be the cost of making such repairs. Where the repairs are extensive and the cost is excessive in comparison with the rent, as was the situation here, the rule of difference in rental value could be applied, but in such case the lessee may recover as damages compensation for injuries to his property or his business, including loss of profits. The lessee is entitled to be compensated for financial injuries suffered as a direct and proximate result of a defect in the premises due to the breach by the lessor of a covenant to repair. City of Miami Beach v. Ellis, 279 So. 2d 335 (Fla. 3rd DCA 1973)

Towing vehicles

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Section  715.07 of Florida Statutes “Vehicles or vessels parked on private property; towing”  provides the regulations. The owner, lessee, their representatives, or a representative of a condominium association may tow any vehicle parked on private property subject to the following:

  1. You must use a commercial towing company.
  2. The vehicle  must be stored within ten miles at a site open from 8;00 am to 6:00 pm
  3. The towing company shall notify the police within 30 minutes
  4. If the vehicle owner shows up, he may recover the vehicle upon payment of half of the tow charge.
  5. Unless the property is a single family residence or the vehicle owner has been personally notified,  there must be a tow away sign posted at the premises.
  6. Improperly parked vehicles may be towed without a sign or personal notice if the vehicles restricts the normal operation of business or obstructs a private driveway

You are liable for the costs and any damage resulting from an improper tow.

heli-tow

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.

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