Court rules that defective notice of non-renewal may not be amended

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Landlord filed an eviction in Miami Beach, Florida for holdover on February 10, 2016 . The notice of non-renewal of the month to month tenancy was dated November 16, 2015 effective November 30, 2015.  Not only did this fail to give the tenant the fifteen days notice of non-renewal required by §83.56 F.S., but the Miami Beach Code of Ordinances Sec. 58-386, requires thirty days notice of non-renewal of a month to month tenancy. Landlord filed a new notice of non-renewal dated July 11, 2016 and attempted to proceed with the original eviction case.

The court ruled that §83.59(1), Fla. Stats., requires that a landlord lawfully terminate a lease agreement before it can initiate eviction proceedings. At the time Plaintiff filed this eviction action in February, Plaintiff had not properly terminated Defendant’s tenancy. A proper notice of termination is a condition precedent to an eviction. Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D264a]; Investment and Income Realty, Inc. v. Bentley, 480 So.2d 219, 220 (Fla. 5th DCA 1985).  A cause of action must accrue prior to the filing of a complaint. Hasam Realty Corp. v. Dade Cty., 178 So.2d 747 (Fla. 3d DCA 1965); Rolling Oaks Homeowners Ass’n v. Dade Cty., 492 So.2d 686 (Fla. 3d DCA 1986); Smith Barney Shearson v. Berman, 678 So.2d 376 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1483h].

Author’s Note:  If the eviction had been for nonpayment of rent, the court would have reached the opposite result as §83.60(1)(a) provides that in an action by the landlord for possession of a dwelling unit based upon non-payment of rent, or an action to recover unpaid rent…  the landlord must be given an opportunity to cure a deficiency in a notice or pleadings before the dismissal of the action.

MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION v. LUIS DIAZ,. Miami-Dade County, Civil Division. Case No. 2016-000407-CC-24. October 21, 2016.  24 Fla. L. Weekly Supp. 708a

Summary of attorney’s fees provisions under Chapter 83

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The landlord tenant statute makes the award of attorney’s fees discretionary except in suits to recover security deposit and prohibited practices.

Non-residential

83.231 Removal of tenant; judgment.If the issues are found for plaintiff, judgment shall be entered that plaintiff recover possession of the premises. If the plaintiff expressly and specifically sought money damages in the complaint, in addition to awarding possession of the premises to the plaintiff, the court shall also direct, in an amount which is within its jurisdictional limitations, the entry of a money judgment in favor of the plaintiff and against the defendant for the amount of money found due, owing, and unpaid by the defendant, with costs. However, no money judgment shall be entered unless service of process has been effected by personal service or, where authorized by law, by certified or registered mail, return receipt, or in any other manner prescribed by law or the rules of the court, and no money judgment may be entered except in compliance with the Florida Rules of Civil Procedure. Where otherwise authorized by law, the plaintiff in the judgment for possession and money damages may also be awarded attorney’s fees and costs. If the issues are found for defendant, judgment shall be entered dismissing the action.

Residential

83.48 Attorney fees.In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover reasonable attorney fees and court costs from the non-prevailing party. The right to attorney fees in this section may not be waived in a lease agreement. However, attorney fees may not be awarded under this section in a claim for personal injury damages based on a breach of duty under s. 83.51.

83.49 Deposit money or advance rent; duty of landlord and tenant.

(3)(c)  If either party institutes an action in a court of competent jurisdiction to adjudicate the party’s right to the security deposit, the prevailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney. The court shall advance the cause on the calendar.

 

83.59 Right of action for possession

(4)The prevailing party is entitled to have judgment for costs and execution therefore.

83.625  Power to award possession and enter money judgment. The prevailing party in the action may also be awarded attorney’s fees and costs.

 

83.67 Prohibited practices.

(6) A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees.

 

Fraud Alert !

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The Department of Treasury,  Financial Crimes Enforcement Network,  has issued an advisory about a recent rash of  email and hacking schemes that have defrauded businesses and individuals of “billions”  of dollars.  Many of these target parties  to real estate transactions, and businesses holding escrow accounts.

Any email containing wire/ bank account  information should be encrypted / password protected.

Advise your customers to obtain verbal confirmation from your office of  any email purporting to be from you providing them wire instructions.

Advise your employees to obtain verbal confirmation from your payees of their wire information.

If you, or your customers,  have been deceived into wiring funds to a crook,  you are not covered.

Check your account activity regularly for unauthorized transactions.  Your own bank will deny coverage for fraudulent transactions, given half an excuse.

Checks should be kept locked at all times.  You are not covered for use of stolen checks.

YOU CAN NOT MONITOR YOUR ACCOUNTS FOR UNAUTHORIZED ACTIVITY TOO CLOSELY

Property manager held liable for security deposit forwarded to unresponsive landlord after lease termination

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Tenants entered into a lease and deposited a security deposit with landlord’s property manager.  At the end of the lease, the manager attempted to contact the landlord to gain access to the property to perform an inspection.  When the landlord did not  respond after a week, the property manager terminated their management contract and, the following week, sent the keys and the deposit to the landlord.   Neither the manager nor the landlord ever made a claim against  the deposit.  The landlord cashed the deposit check two months ager the lease ended.  In the meantime, the property manager directed the tenants to contact the landlord directly.  the landlord never responded.  It turned out that the property had been in foreclosure during the entire lease term, and the landlord had consented to a judgment of foreclosure a few days after cashing the security deposit check.

When the tenants did not get their deposit back, they sued the property manager.  The property manager moved to dismiss for failure to name the landlord, who they had transferred the deposit money to.   The court disagreed, ruling that the  property manager was only authorized to transfer the deposit funds  upon a change in either the manager or of the landlord.  As neither had changed, the property manager was responsible for the security deposit.  The court ruled that the property manager had a responsibility to both the landlord and the tenant over the security deposit, as it was the tenant’s money until the landlord had made a claim against it.

STRESS FREE PROPERTY MGMT, INC., vs. JONES,  Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County.. March 19, 2015 22 Fla. L. Weekly Supp. 1006a

New Landlord Tenant Law – Servicemember applicants must be denied within 7 days or are approved

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Be It Enacted by the Legislature of the State of Florida effective July 1, 2016:
Section 83.683, Florida Statutes, is created to read: 83.683 Rental application by a servicemember.*-

(1) If a landlord requires a prospective tenant to complete a rental application before residing in a rental unit, the landlord must complete processing of a rental application submitted by a prospective tenant who is a servicemember, as defined ins. 250.01, within 7 days after submission and must, within that 7-day period, notify the servicemember in writing of an application approval or denial and, if denied, the reason for denial. Absent a timely denial of the rental application, the landlord must lease the rental unit to the servicemember if all other terms of the application and lease are complied with.

(2) If a condominium association, as defined in chapter 718, a cooperative association, as defined in chapter 719, or a homeowners’ association, as defined in chapter 720, requires a prospective tenant of a condominium unit, cooperative unit, or parcel within the association’s control to complete a rental application before residing in a rental unit or parcel, the association must complete processing of a rental application submitted by a prospective tenant who is a servicemember, as defined ins. 250.01, within 7 days after submission and must, within that 7-day period, notify the servicemember in writing of an application approval or denial and, if denied, the reason for denial. Absent a timely denial of the rental application, the association must allow the unit or parcel owner to lease the rental unit or parcel to the servicemember and the landlord must lease the rental unit or parcel to the servicemember if all other terms of the application and lease are complied with.
(3) The provisions of this section may not be waived or modified by the agreement of the parties under any circumstances.

* “Servicemember” means any person serving as a member of the United States Armed Forces on active duty or state active duty and all members of the Florida National Guard and United States Reserve Forces.

What this means:  This is going to be tough on associations,  especially those that do not meet on a regular basis. Landlords should always conduct a professional screening with non-discriminatory criteria such as are available by clicking here

No breach of duty to disclose not readily observable material defect to buyer absent evidence that seller had actual knowledge of the defect and that it was material.

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muck_2In early 2005, the Eimans purchased a plot of vacant waterfront land as a potential site for their future home. After they acquired the property the Eimans were told  they had to remove invasive  Brazilian pepper trees from the southern edge of the property and stabilize the land where the trees were removed to prevent erosion before they could obtain a building permit.  To comply with the requirement, the Eimans hired a third party to clear the  trees from the property and stabilize the cleared area with fill dirt. Mr. Eiman visited the property on several occasions during this work. Beyond these improvements, the Eimans never conducted any construction or assessments of any kind to determine the suitability of the property for building.

In 2006, the Sullivans purchased the vacant plot from the Eimans for the express purpose of constructing a  residential home.  The parties utilized a standard vacant land sales contract that indicated the Sullivans purchased the property in an “as is” condition. The contract also provided for a brief period of time during which the Sullivans could conduct any assessment they deemed “appropriate to determine the Property’s suitability for the Buyer’s intended use.”  The Sullivans never performed any such assessments on the property to determine whether it was suitable to build their home. After closing, the Sullivans’ builder performed  a subsurface investigation of the building site revealing  “subsurface conditions consist[ing] of fine sand with organic silt (muck)” at various depths within the proposed building site that would require deep foundations and  piles to support construction of a house.  Notably, the Sullivans’ proposed building site was not the same area that the Eimans had cleared and filled. The Sullivans’ builder increased its initial estimate by $65,000,  to install the necessary pilings .

The Sullivans then filed a complaint against the Eimans and their  real estate broker alleging  that the parties breached their duty under Johnson v Davis  by failing to disclose to the buyers  a fact known to the  sellers and not readily observable,  that materially affected the value of the property.  While the broker prevailed on summary judgment the trial court entered a $65,000 judgment against the Eimans.

On appeal, the court reversed,  finding that the Sullivans failed to present competent, substantial evidence of the existence of a fact that materially affects the value of the property in question and that the Eimans had actual knowledge of that fact.

First, the Sullivans did not plan to build their home on the area filled-in by the Eimans. Consequently, the existence of muck under the filled-in portion of the property cannot be a fact materially affecting the value of the property as alleged in the complaint because it would not actually prohibit or increase the cost of the construction of the home.

Secondly , the Sullivans presented no evidence that the Eimans had actual knowledge of this defect. “[T]o hold the seller liable under Johnson, the buyer must prove the seller’s actual knowledge of an undisclosed material defect.” Jensen v. Bailey, 76 So.3d 980, 983 (Fla. 2d DCA 2011).

The Sullivans presented no evidence that, prior to the removal of the trees from the southern portion of the property, the ground was exposed or the muck was visible. Although Mr. Eiman testified that he visited the property “several times” while it was being cleared and filled, there was no testimony from Mr. Eiman or any other witness that Mr. Eiman observed dark “muck” soil in the area or that he even would have known what the dark soil was if he had observed it. Moreover, even if Mr. Eiman had observed dark soil underneath the area covered by the pepper trees, there would still be no evidence that he knew anything about the subsurface conditions of the area where the Sullivans intended to build their home. As the complaint accuses the Eimans of knowledge of a fact that “would either prohibit the construction of their home or significantly and materially increase the cost for same,” any knowledge of the subsurface conditions of the land outside of the proposed construction site would not be germane to the issue raised in the complaint. Because the Sullivans failed to present any evidence that the Eimans had actual knowledge of the subsurface conditions of the property, the trial court erred in finding the Eimans liable under Johnson.

EIMAN, v.  SULLIVAN District Court of Appeal of Florida, Second District. No. 2D13–4553.  Decided: May 22, 2015

Motion to determine rent based on  failure to repair

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In an eviction for non-payment of rent, the tenant defended with a motion to determine rent.  The motion to determine rent was not based on an allegation that the amount claimed by the landlord was incorrect,  but upon the landlord’s failure to maintain the premises.    The court noted that in order for the tenant to challenge the amount of rent due because of landlord’s failure to maintain the premises,  the tenant must first have sent the landlord a seven day notice.   The notice must be in writing, giving the landlord seven days to cure.  Landlords may rely on written notice of complaints of a specific nature, but must then act within seven days to accomplish compliance with the statute.    The tenant is required to  issue a seven day notice in order to commence a process wherein the tenant may withhold rent payments.   The tenant ,may not take matters into his own hands and resort to the self-help of unilaterally withholding rent payments without property notice.  Determining that a reduction in rent registry payments could be permitted where no statutory seven day notice was delivered merely delays the necessary inevitable frustration of the tenant’s defense as well as underlying basis for such a reduction.  Thus the tenant was ordered to deposit the full amount of the rent into the court registry.

Lee v. Schweizer , 7 Fla L. Weekly Supp 750a, County Court Sarasota 2000]

HUD issues new guidelines on tenant screening

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HUDOn April 4, 2016,  the United States Department of Housing and Urban Development Office of General Counsel  issued a “guidance”  effective immediately on permissible housing applicant selection criteria.   This “guidance”  declares what selection criteria will be deemed discriminatory under the Fair Housing Act.   Based on their study of arrest and incarceration rates of blacks and latinos  being disproportionate to their percentage of the general population,  it will now be deemed discriminatory to use arrest records as a criteria for denial of a rental applications.  Convictions, however, may be used as a selection criteria  if  the landlord takes into account the “nature and severity”  of the offense,  and the length of time since the conviction.   HUD recommends that landlords perform an “individualized assessment of relevant mitigating information”  such as the “facts or circumstances surrounding the criminal conduct; the age of the individual at the time of the offense; evidence that the individual has maintained a good tenant history … and evidence of rehabilitation efforts.”

HUD stated that the Fair Housing Act does not prohibit denial of housing based on a conviction for the illegal manufacture or distribution of controlled substances.

Landlords should  update their screening procedures to  disregard the following
1. Arrests
2. Misdemeanor convictions
3. Any adjudication that is other than guilty, such as adjudication withheld, nolle prosse
4. Convictions for possession of drugs or drug paraphernalia.
5. General felony convictions over ten years old ( you should particularize offenses that directly relate to the safety of the leased premises and other tenants)

Click here to read the entire HUD Guidance Statement.

Comments from attorneys and landlords are encouraged.

Waiver by failure to promptly reject untimely tender of rent

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This Collier County case made three novel rulings:

Defective Posting: May not post 3 day notice until ascertained tenant is absent

The property manager testified she served a 3 day notice  by folding it and placing it in the tenant’s door.  The tenant denied receiving the notice.   The court ruled that while Florida law permits the three day notice to be served to the tenant by leaving a copy of the notice at the residence,  it may be posted only if the tenant is absent from the premises.  Without evidence evidence that the property  manager attempted to determine if the tenant was absent from the premises prior to posting the three day notice,  the posting is defective notice.

Bailment: Rent in possession of landlord, and stolen, is landlord’s loss, not tenant’s.

The three day notice  included $348.00, which represented the tenant’s money orders that were stolen during a theft at the landlord’s office.  That theft occurred while the money orders were in the possession of the landlord.  The court ruled that the fund stolen from the landlord  should not have been counted as rent on the three day notice.

Waiver: 

Waiver occurred when the landlord accepted money orders paid by the tenant  (See §83.56(5), Fla. Stat).  Although the landlord ultimately returned the money orders to the tenant, the landlord held them too long. By not returning the payments to the tenant promptly, the landlord is deemed to have accepted them, even if the payments were not credited to the account. See, Belkin v. Robinson, 38 Fla. Supp.2d 188 (Broward 1989). By accepting rent while knowing of a noncompliance, the landlord waived whatever right he otherwise had to evict, pursuant to §83.56(5), Fla. Stat.

HARMONY SHORES MHP, LLC,  vs. OAKLEY, Collier County  Case No. 2015-CC-001599. December 17, 2015. Online Reference: FLWSUPP 2308HARM

Any allegation of ownership by tenant in an eviction action requires an evidentiary hearing.

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Petitioner had been living in a house for over five years under a lease-option  contract which had expired four years ago under which he  claimed to have made a $6000 deposit toward the purchase as well as many improvements.  Respondent filed an eviction for non-payment of rent, to which petitioner responded with a motion to determine rent and a motion to dismiss based on a claim of ownership under the lease option..  The county court granted the eviction without hearing.  Petitioners appealed (which was treated as a petition for a writ of certiori,  as non-final orders from County Court are not directly appealable to Circuit Court).

The Circuit Court reversed, citing Florida Statutes 83.42 Exclusions from application of part. — This part does not apply to:

(2) Occupancy under a contract of sale of a dwelling unit or the property of which it is a part in which the buyer has paid at least 12 months’ rent or in which the buyer has paid at least 1 month’s rent and a deposit of at least 5 percent of the purchase price of the property.

Where a tenant makes a claim of ownership in a landlord’s action for possession, a court errs by ordering an eviction or by ordering rent to be deposited with the court registry without holding a hearing on the tenant’s assertion.  Even though the lease option had expired on its face in 2010,  the court ruled that real estate contracts, under certain circumstances, may be subject to oral modification or extension, as was alleged here.  Therefore the County Court erred by not holding an evidentiary hearing on the claim of ownership.

MORGAN v. HEWITT,  Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County.  Appeal from the County Court for Orange County. August 20, 2015.  Online Reference: FLWSUPP 2307MORG