Where attorney represented tenant in suit for refund of security deposit on wholly contingent basis, contingency risk multiplier of 1.5 is appropriate

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The County Court of Volusha County issued a ruling  detailing the twelve factors to be considered in determining a contingency risk multiplier.

Tenant’s attorney was on a contingency fee basis in suing for the recovery of a security deposit.   The tenant prevailed, obtaining the return of the entire security deposit.

The court stated that the claim for security deposit was a contract case.  Pursuant to Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990); Meli Inv. Corp. v. O.R., 621 So.2d 676, (Fla. 3d DCA, 1993) and Progressive Exp. Ins. Co. v. Schultz, 948 So.2d 1027 (Fla. App. 2007) [32 Fla. L. Weekly D548b], a contract case falls into Quanstrom’s Category II. The Florida Supreme Court has adopted twelve factors that should be considered when determining a reasonable fee: The Court considers those factors and found as follows:

i) Time and Labor Required

The Court found that 40.6 hours was reasonable and necessary.

ii) Novelty and difficulty of the questions

The Court found  that the issues presented in this case were relatively novel and difficult, and required a thorough understanding of not only landlord tenant law but the unlicensed practice of law and the limitations of property managers enacted by the Florida Supreme Court when representing landlords and the related Florida case law.

iii) The skill requisite to perform the legal services properly

The Court found that this case involved a thorough understanding of laws related to residential Tenant’s rights and the proper handling of a Tenant’s security deposit by a property manager, and that without such knowledge, the Plaintiff’s attorney would not have been able to obtain a favorable outcome for the Plaintiff. The Court found that while there are thousands of attorneys in the local market, there are only a handful who have the necessary knowledge and expertise to effectively represent a tenant in a landlord tenant dispute, and who regularly represents tenants in state court matters.

iv) The preclusion of other employment

Plaintiff’s counsel contends that he was slightly precluded from other employment.

v) Customary Fee in the Community

The Court found that the market rate for the hourly fees charged in the greater Central Florida area including Orange County, Seminole County and Volusia County by lawyers of comparable skill, experience and reputation performing similar services as those performed by Plaintiff’s counsel is $350.00 to $425.00 per hour.

vi) Whether the fee is fixed or continent

The Court found that the Plaintiff’s attorney’s fee in this case was wholly contingent.

vii) Time limitations imposed by the client or the circumstances

The Court found that the client imposed some time limitations for a speedy return of her deposit.

viii) Amount involved and results obtained

The amount involved the return of the tenant’s own funds which were returned in full to the Plaintiff.

ix) The experience, reputation, and ability of the attorney

The Court found that the Plaintiff’s attorney has over 15 years of experience in civil litigation in Tenant defense and consumer issues relating to tenants, and has sufficient ability to effectively handle landlord tenant disputes and legal matters.

x) The “undesirability” of the case

The Court found that tenant’s rights cases are generally undesirable cases to prosecute on behalf of the tenants.

xi) The nature and length of the professional relationship with the client

The Court found that this is the only case in which the Attorney had represented the tenant

xii) Awards in similar cases

The Court found that the proposed award of fees is not unreasonable in relation to similar cases, the complexity of this case, and the time during which the litigation was pending. For example, in Lancelot At Winter Park, LLC, vs. Bruce MacDonald And Francis MacDonald, 15 Fla. L. Weekly Supp. 822b, (Orange County Court, 9th Judicial Circuit, 2008), the Court awarded a multiplier of 2.0 to a prevailing tenant. Similarly in a more recent case the Court awarded a multiplier of 2.0 to a prevailing tenant. Florante S Banez, vs. Elizabeth T Banez & Florence T Banez, 20 Fla. L. Weekly Supp. 513a, (Orange County Court, 9th Judicial Circuit, 2013).

It is the intent of the Florida Legislature that consumers be encouraged to retain competent legal counsel to protect their rights as tenants not only for their direct benefit, but for the indirect benefit of all consumers/tenants.

RISK ENHANCEMENT MULTIPLIER

The Court found that it is appropriate to award a risk enhancement multiplier. The Court found that the Plaintiff’s attorney represented the Plaintiff on a contingency fee basis, and that the Plaintiff’s attorney’s compensation was wholly dependent on the outcome of the case. The Court found that it would have been difficult, if not impossible, for the Plaintiff to find proper legal representation in this case without the use of a contingency contract and the application of a fee multiplier. Attorneys of similar skill and experience as that of the Plaintiff’s attorney will not accept a case such as this one without the possibility of a multiplier. The Court found that the Plaintiff’s attorney was unable to mitigate the risk of nonpayment for services rendered and costs incurred on behalf of the Plaintiff if the Plaintiff did not prevail because the Plaintiff could not afford to pay an attorney to represent her.

THE COURT having made the foregoing findings of fact and conclusions of law, and having heard and considered arguments of counsel, and being duly advised in the premises, awards an attorney fee to the Plaintiff’s attorney, to be computed as follows:

Hours reasonably expended by Plaintiff’s attorney are 38.6 hours.

Reasonable hourly rate is $300.00 dollars.

Lodestar $11,580.00 dollars

ENHANCEMENT (Contingency Risk Factor):

Success more likely than not at outset (1 to 1.5)

Likelihood of Success approximately even at outset (1.5 to 2.0)

Success unlikely at outset (2.0 to 2.5)

Enhanced Value (1.5) x (lodestar) $11,580 dollars

Plus Cost of 11.55

FINAL JUDGMENT is hereby entered against the landlord  in the total sum of $17,381. 55

DAWN DUVALL, v. NENITA MERCADO AND JANET TOLENTINO AND SUNSHINE STATE REALTY & ASSOCIATES, INC. AND RICHARD C. ALLEN, 21 Fla. L. Weekly Supp. 77a

Attorneys fees in claims for security deposit

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Florida Statutes Section 83.49  make the award of attorneys fees to the prevailing party in a claim for security deposit mandatory.   What makes one side the prevailing party?  The case law indicates that if the tenant recovers anything,  the tenant is the prevailing party.   For instance where a tenant sued to recover a $2,200  security deposit, but was only awarded $708,  the tenant was the prevailing party [Rose v. Gaglioti 46 Fla. Supp 2d 19 (11 Cir 1991)].   Likewise when a tenant sued on three counts failure to maintain, habitability, and security deposit, and lost the first two counts, but recovered the deposit,  he was still deemed the prevailing party Bohanan v. Bergman 8 Fla L. Weekly Supp 428a (17th Cir App 2001).

Some cases have reduced the tenants attorney fee award  in proportion the share of the deposit recovered [Stephenson v Cox 13 Fla L. weekly Supp 910b (Broward 2006)].  In a case where the landlord failed to make the required claim, the tenant sued to recover the deposit, and the landlord counterclaimed for damages,  the tenant was awarded the entire deposit and declared the prevailing party.   While the landlord was award damages in the counterclaim,  he was not declared the prevailing party because the damages were less than the deposit he had withheld. Malagon v. Solari 566 So.2d 352 (Fla 4thDCA 1990).  In a similar case  where the landlord’s counterclaim was for unpaid rent,  The tenant was awarded fees for prevailing on the security deposit claim,  but the landlord was also awarded fees for prevailing on the rent claim.   Hicks v. Marchetti 4 Fla L. Weekly Supp 525 (20th Cir App. 1996).

security depositS

As the attorneys fees will usually exceed the amount of the security deposit,  landlords  should exercise discretion  in claiming against the tenant’s security deposit.

 

 

Defective complaint does not require deposit rent into registry of court for motion to dismiss

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Landlord filed a complaint naming the defendant  only in the case caption,  whereas an unrelated person is named as the tenant  in body of the complaint.  Defendant was defaulted for failing to post the rent into the court registry and appealed.

The court explained that because a default admits liability only as claimed in the pleading, no liability was stated against  Defendant.  While §83.60(2), Florida Statutes requires the deposit of rent claimed into the registry as a condition to raising any defense other than payment,  the court does not consider Defendant’s defense as contemplated §83.60(2), Fla. Stat., because he was never legally required to raise a defense. Put another way, Defendant’s  challenge would normally be the subject of a motion to dismiss rather than an affirmative defense.

HOUCK, vs. 7402 HERITAGE HILLS, LLC, Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County, Civil Appellate Division. August 24, 2015.  23 Fla. L. Weekly Supp. 306a

Eviction settlement agreement does not survive the renewal of the lease

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Landlord filed an eviction  in July 2012 for breach of the lease by causing a disturbance at the premises.    In December 2012 the parties entered into a settlement agreement whereby Tenant pledged not to cause further disturbances. In February 2013  the landlord served the tenant with a  ten day notice of lease termination for causing a disturbance, and filed  a motion to enforce the settlement agreement.  At the hearing the court ruled that the landlord had not proved a breach, and declared the tenant the prevailing party, and thus entitled to attorney’s fees.    The landlord  argued that  with the settlement agreement still in effect, and thus the original eviction complaint  still pending,  the tenant should not be deemed the “prevailing party.”

In April 2013,  the tenant moved to dismiss the original eviction complaint,  noting the landlord had signed a new lease with the tenant since December 2012.  As the lease that the original eviction was based on had expired,  the court granted tenant’s motion to dismiss the original eviction complaint, and upheld tenant’s award for attorney’s fees.

5800 SW 20 AVENUE HOLDINGS, LLC, vs. WILLIAMS, County Court, 8th Judicial Circuit in and for Alachua County. Case No. 2012-CC-2917, Division V. May 6, 2015 23 Fla. L. Weekly Supp. 261a

Due process violation to evict sub-tenant, who paid rent directly to landlord, in suit only against primary tenant

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BROWARD COUNTY SELF STORAGE, INC.,  is the owner and landlord of a commercial property in the City of Wilton Manors. The property consists of a single roofed building in which are half a dozen businesses are located.  Although the businesses each have their own separate  “unit” in the premises, they all share the same address, with no separate demarked  unit number.  Mail is delivered to a single mailbox, which all occupants share.

Landlord entered into a Master Lease with, Naturally Broward, Inc. which then sublet  separate units to different subtenants. The landlord  did not object to this arrangement and took an Assignment of Rents  and the subtenants paid  their rents directly to the  landlord.

On May 26, 2015, the landlord  served  a 3-day notice to the registered agent of  Naturally Broward, Inc.  The amount claimed on the 3-day notice was Naturally Broward’s  unpaid portion of real estate taxes.

A week later, landlord  filed  an eviction against “Units 1, 2, and 5 as shown on an attached drawing.”  The drawing does not clearly delineate which units are “1, 2, 5.”  On the day the eviction was filed, the subtenants were current in their rent.

A 5-day summons was posted on the premises by a private process server. The return, however, reflects the single address for the property, without any delineation of the precise location or business it was posted.

On June 2, 2015,  sub-tenant in unit 4, CHATEAU D’VINE, INC.,  attempted to tender  June rent to the landlord, who refused it.

On June 26, 2015,  Judge Stephen Zaccor entered a Judgment of Eviction  and  a Writ of Possession was eventually  was posted directly on the business of Chateau D’Vine.   This sub-tenant had  no prior notice of the  eviction.

A friend of the landlord  took it upon himself to contact the  local police  rather than wait for the county sheriff to execute the writ of possession.   An officer of the Wilton Manors Police Department advised Chateau D’Vine that it had until midnight to vacate the premises or it would be removed. Chateau D’Vine did so, feeling reasonably that it had no alternative.

Chateau D-Vine  filed to quash the writ of possession.  On review the court found that there was  substantial doubt that a single summons can be used against an entire parcel of commercial property where there are separately operating businesses.  First, there is some authority that a subtenant in possession is a tenant at sufferance, and as a result, must be served with an eviction summons.  Second, due process dictate that a subtenant who is in possession with the knowledge of the landlord, and is paying rent directly to the landlord at the landlord’s insistence, be provided meaningful notice and an opportunity to heard before being divested of possession.   “[D]ue process is a protean constitutional concept of rule according to law, fairness in the law’s proceedings, and fundamental rights.” J. Lieberman, Evolving Constitution 169 (1992). See Chef’s No. 4, Inc. v. City of Chicago, 117 Ill. App. 3d 410, 414, 453 N.E.2d 892, 895-96 (Ill. App. 1983) (subtenant entitled to notice); Arrieta v. Mahon, 31 Cal. 3d 381, 389 & n.7, 644 P.2d 1249, 1253-54 & n.7 (Cal. 1982) (same).   The writ of possession was vacated.

BROWARD COUNTY SELF STORAGE, INC., Plaintiff, vs. NATURALLY BROWARD, INC., Defendant, and CHATEAU D’VINE, INC., Intervener. County Court, 17th Judicial Circuit in and for Broward County. Case No. 15-13269 COCE 54. July 22, 2015. Robert W. Lee, Judge. 23 Fla. L. Weekly Supp. 184a

New remedy against guests who wont leave

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Until recently,  if you had a guest / boyfriend / girlfriend / relative /friend  who you invited to live with you on a temporary basis, and refused to leave when you asked them to,   your only legal remedy was to file a case against them in court.  Law enforcement would refuse to make them leave,  declaring it to be a “civil matter,” and (erroneously)  telling you to evict them.  The correct cause of action is unlawful detainer  not eviction.

Effective July 1, 2015, Florida has a new legal remedy to remove  a transient occupant from residential property.

“Transient occupant”  is defined as an occupation of a residential property for a brief length of time, not pursuant to a lease.    This statute does not apply  to a landlord-tenant relationship.

The new statute, Section 82.045  , provides a remedy to any person entitled to possession of a residential dwelling unit.   So this applies, not only to owner’s,  but also lessees.  Said party entitled to possession may present a sworn affidavit to a law enforcement officer,  requesting said officer to remove a transient occupant.

Once the transient occupant has been asked to leave,  they are unlawfully detaining the property.

The affidavit must set forth the factors establishing that the occupation is transient.

The factors include:

  • 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

Any law enforcement officer, upon receipt of  said sworn affidavit may direct a transient occupant to vacate.   A transient refusing to vacate on the direction of a law enforcement officer is deemed to have committed misdemeanor trespass under §810.08, F.S.    It is not a defense to the trespass charge that the occupant is not a transient.  A person wrongly removed, has no cause of action against the law enforcement officer, absent a showing of bad faith,  but may recover against the affiant.

The statute also provides that if the party in possession files an unlawful detainer action in court, and the court finds the occupant to be a tenant instead,  the case shall not be dismissed,  but may be amended to proceed as an eviction upon the provision of the appropriate notices under chapter 83.

Authors note:  There is no uniformity amongst law enforcement agencies on the enforcement of this statute.  While some have established procedures,  others flatly refuse to enforce the statute.  If  you have had an experience attempting to remove a transient by affidavit, please post a comment to this article.TransientHobo

Getting stuck with the tab ….

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billPUDLIT JOINT VENTURE LLP,  purchased a  foreclosed  property.  Two months after  the closing,  the homeowners association billed Pudlit $6,097.46  for delinquent association dues.  Pudlit paid the dues,  but sued the association on the basis that under the association declaration, when assessments are unpaid and cannot be collected following foreclosure, the unpaid assessments

“shall be treated as a common expense, collectible from all Residential Lots, including the Residential Lot as to which the foreclosure . . . took place.”

i.e. that unpaid  dues  do not carry forward to a new owner.  The association, however, argued that section 720.3085(2)(b), Florida Statutes. Chapter 720, Florida Statutes,  provides:

“A parcel owner is jointly and severally liable with the previous parcel owner for all unpaid assessments that came due up to the time of transfer of title. This liability is without prejudice to any right the present parcel owner may have to recover any amounts paid by the present owner from the previous owner.”

i.e.  that a new purchaser is liable for any past due association dues,  and that the statute “trumps”  the declaration.

The court ruled that “[P]arties are free to contract around a state law so long as there is nothing void as to public policy or statutory law.” Franks v. Bowers, 116 So. 3d 1240, 1247 (Fla. 2013) [38 Fla. L. Weekly S416a]. “A contract which violates a provision of . . . a statute is void and illegal, and will not be enforced.” Harris v. Gonzalez, 789 So. 2d 405, 409 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1433a]. The Declaration purports to allow Pudlit to avoid liability for unpaid assessments. This is plainly contrary to the terms of section 720.3085(2)(b), which specifically states owners such as Pudlit are liable for such assessments. Because Article VII, Section 12 of the Declaration absolves Pudlit of liability mandated by statute, it cannot be enforced.

THOUSAND OAKS AT CONGRESS MASTER ASSOCIATION, INC., Appellant, v. PUDLIT JOINT VENTURE LLP, Appellee. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil Division. Case No. 2014AP000037, Division AY. L.T. Case No. 2913CC003483. May 1, 2015. Appeal from the County Court in and for Palm Beach County, 22 Fla. L. Weekly Supp. 1123a

Author’s note:  I have seen numerous instances of purchasers of foreclosed properties being stuck with unpaid  association dues.  Do not close until you have seen estoppel letters from all associations and the amounts stated as due placed on the settlement statement as seller expenses to be paid at closing.  Do not permit association dues to be listed on schedule B 2  of your title insurance commitment as an exception to title.  Typical REO purchase contracts will waive any recourse against the seller.

No penalty for failure to escrow security deposit

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get-out-of-jail-freeA Sarasota County Court has ruled that although it is a violation of Florida Statutes 83.49(1)  for landlord to co-mingle the security deposit with operating funds,  the statute provides no penalty for such violation.   Tenant’s claim  that  landlord’s failure  to put the security deposit  in escrow should result in  forfeiture of landlord’s right to make a claim on said deposit and for attorneys fees and costs was denied.

OBENDORF, v. RASMUSSEN. County Court for Sarasota County. Case No. 14 CC 4623 SC. July 1, 2015.

Florida extends protection to tenants under foreclosure

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Effective July 1, 2015,  purchasers though foreclosure sale are required to give “tenants”  in possession a 30 day notice to vacate before issuance of a writ of possession.   Although the statute provides that the “tenant”  is obligated to pay rent,  it states that a landlord-tenant relationship has not been created except to the extent that the “landlord”  may not exercise self-help to remove the “tenant.”

Click here for the 30 day notice to vacate.

Here is the full text of the new statute.

83.561 Termination of rental agreement upon foreclosure.—

(1) If a tenant is occupying residential premises that are the subject of a foreclosure sale, upon issuance of a certificate of title following the sale, the purchaser named in the certificate of title takes title to the residential premises subject to the rights of the tenant under this section.

(a) The tenant may remain in possession of the premises for 30 days following the date of the purchaser’s delivery of a written 30-day notice of termination.

(b) The tenant is entitled to the protections of s. 83.67.

(c) The 30-day notice of termination must be in substantially the following form:

NOTICE TO TENANT OF TERMINATION

You are hereby notified that your rental agreement is terminated on the date of delivery of this notice, that your occupancy is terminated 30 days following the date of the delivery of this notice, and that I demand possession of the premises on   (date)  . If you do not vacate the premises by that date, I will ask the court for an order allowing me to remove you and your belongings from the premises. You are obligated to pay rent during the 30-day period for any amount that might accrue during that period. Your rent must be delivered to   (landlord’s name and address) .

(d) The 30-day notice of termination shall be delivered in the same manner as provided in s. 83.56(4).

(2) The purchaser at the foreclosure sale may apply to the court for a writ of possession based upon a sworn affidavit that the 30-day notice of termination was delivered to the tenant and the tenant has failed to vacate the premises at the conclusion of the 30-day period. If the court awards a writ of possession, the writ must be served on the tenant. The writ of possession shall be governed by s. 83.62.

(3) This section does not apply if:

(a) The tenant is the mortgagor in the subject foreclosure or is the child, spouse, or parent of the mortgagor in the subject foreclosure.

(b) The tenant’s rental agreement is not the result of an arm’s length transaction.

(c) The tenant’s rental agreement allows the tenant to pay rent that is substantially less than the fair market rent for the premises, unless the rent is reduced or subsidized due to a federal, state, or local subsidy.

(4) A purchaser at a foreclosure sale of a residential premises occupied by a tenant does not assume the obligations of a landlord, except as provided in paragraph (1)(b), unless or until the purchaser assumes an existing rental agreement with the tenant that has not ended or enters into a new rental agreement with the tenant.

History.—s. 1, ch. 2015-96.

PURCHASING AN OCCUPIED PROPERTY

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PURCHASING AN OCCUPIED PROPERTYstranger

When you buy a property it is subject to the existing lease.    The new owner steps into his shoes and assumes the  landlord’s obligations under the lease.    If the tenant had made deposits (i.e.  last month rent and security deposit )  the new landlord is liable to the tenant for those deposits.  The buyer does not have the right to terminate the tenancy or change any of its terms. Telling the tenant he has to move out because the house has been sold  could be deemed  unlawful eviction and punished by a fine of 3 month’s rent.

A buyer must require the seller to provide an estoppel   letter signed by the tenant verifying the amount of the rent and security deposit and the lease terms.   The seller should provide the tenant’s social security number and  date of birth so you can obtain a non-military status affidavit on-line in the event you have to evict the tenant.  If you do not have this information,  you must have a factual basis for swearing out an affidavit that the tenant is not active duty military in order to obtain a default judgment.

The buyer should receive prorated the rent and credit for the deposits  from the seller on the closing statement.

The seller must  disclose in the  sales contract the property is subject to an existing lease,  or the buyer could sue for failure to deliver possession at closing.

FORECLOSURE

How does the filing of a foreclosure against the rental property affect the tenancy?  Legally the foreclosure does not affect the tenancy until the foreclosure auction has taken place.    Foreclosure auctions can be cancelled at the last minute,  so the parties should check the court docket online to verify the case status.   Until then,  the lease is fully enforceable.   If the tenant does not pay the rent,  they can be evicted.  A foreclosure in progress is not a defense to the non-payment of rent.

Post foreclosure:   Any lease that is junior to the mortgage is subject to being foreclosed.  The tenant should be named as a party defendant and served.   Check the docket of the foreclosure case.   If the lease was entered  into after the lis pendens of foreclosure was filed it is subject to the foreclosure. A  buyer  may obtain a writ of possession  directly on application to the Clerk of Court,  or by  filing a motion for a writ of possession  depending on the language in the judgment of foreclosure.  You can obtain a copy of the judgment of foreclosure from the Clerk of Court’s website.

The  Federal Law (Protecting Tenants Under Foreclosure Act)  requiring a  90 day notice to move  expired December 31, 2014.

The buyer may solicit the tenant to sign a new lease,  or to stay as a month to month tenant until the buyer can re-sell the property.   If you accept a rental payment from the occupant you have created a new month to month tenancy.  Month to month tenancies may be terminated by providing  a notice of non-renewal at least 15 days before the next monthly lease term.  Once you have created a new tenancy,  you must file an eviction to obtain possession rather than get a writ from the foreclosure judge.

REO PROPERTIES

Be careful on REO purchases as the bank puts a waiver in the sales contract that they do not guarantee possession at closing.   In fact,  the bank may claim to  have no knowledge as to who is living in the property,  or if they are the former owner, a former tenant,  or a trespasser.   Unless a new tenancy was created post foreclosure,  you may obtain possession by applying to the foreclosure court for a writ of possession.

Be absolutely sure that the seller obtained a condominium estoppel letter. The banks are very sloppy about paying delinquent condo dues and their title companies equally sloppy about obtaining estoppel letters.  If you close without a condominium estoppel letter,  you may end up liable for the delinquent condominium dues.

LANDLORD’S FAILURE TO PAY ASSOCIATION DUES.

In condominiums,  if the landlord is not paying the association dues,  the association may seize the rent by sending a written demand to the tenant.  If tenant has already paid the rent,  the  tenant  must provide evidence of such to the association within 14 days.   The payment of the rent to the association is a defense to  any claim from the landlord for non-payment of the rent.   The association is entitled to evict  the tenant for non-payment of rent   (although  one would wonder how that would benefit the association, other than generating a legal fee for their attorney ).    The association has no obligation to perform repairs.

In some cases, the non-payment of dues has become so rampant that the condominium put the delinquent units into court receivership.  In this instance the receiver has the power to enter into new leases, collect rents, and incur significant expenses against the unit.    Be sure the seller has an estoppel letter from the receiver and has paid these charges.   You may be stuck with the new tenancy,  so be sure there is no receiver before you close.

 

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