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.

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).

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