County Court jurisdictional limit to go up to $30k January 1st

New county court jurisdictional limits.  New law provides for the county courts to have higher jurisdictional limits.   Effective January 1, 2020, the limit is $30,000, which increases to $50,000 on January 1, 2023. Here is a link to the entire bill which contains A LOT OF OTHER STUFF IN IT but just in case you want to verify the amounts

Re-posted from Attorneys Title Insurance Fund 8/23/2019

Melissa Jay Murphy
Executive Vice President, Chief Legal Officer,
General Counsel and Secretary

Using criminal history in evaluating rental applications

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Florida Realtors® reports that a single Orlando law firm has filed 48 lawsuits against Florida property managers for refusing to rent to tenants with prior felony convictions.  They are alleging that refusing to rent to tenants with a criminal history violated the fair housing act.  In 2016, HUD issued guidelines that a blanket policy of  refusing to rent to an applicant with a prior arrest, misdemeanor conviction,  or a felony conviction more than 7 years old had a disparate impact on African Americans and Hispanics according to Department of Justice statistics.  A housing provider must show that its screening policy is necessary to achieve a substantial non-discriminatory interest.  The policy cannot be speculative or hypothetical.  Evidence must exist that supports the screening policy.  The housing provider must prove through reliable evidence  that the policy serves the purpose of protecting the safety and property of the other residents.  Also that there are no  less discriminatory alternatives.

HUD examples:  length of time since the applicant’s conviction.  A good rental history since the conviction.  The circumstances surrounding the criminal conduct.

A housing provider should have a written policy calling for applicants to be evaluated on a case  by case basis.  Document the research done and results found on each applicant.   Make sure the policy is being followed and that it is not resulting in a discriminatory effect.  Make sure the policy is being applied on a consistent basis.   Review the applicants financial qualifications before checking their criminal history, so that a denial on a financial basis is not tainted by criminal history that should not have been considered.  Arrests not resulting in a conviction should not be considered and thus should not by a criteria on the application.     Blanket restrictions on certain convictions or all applicants with a criminal record will be discriminatory. Each applicant must be evaluated on a case by case basis.

Where plaintiff sued under Chapter 83 and defendants prevailed, they were entitled to attorneys fees despite finding of no landlord tenant relationship

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The Plaintiff brought suit against Defendants under Chapter 83, Florida Statutes, seeking unpaid rent. At trial the Court found in the Defendants’ favor, finding that there was no landlord/tenant relationship between the parties, but also finding that if there were such a relationship it was the landlord who breached the agreement by not providing habitable premises.

Defendants moved for attorneys fee under Florida Statute §83.48, which provides in pertinent part, “[i]n any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment [. . .] has been rendered may recover reasonable attorney fees and court costs from the non-prevailing party.”

Plaintiff  argued that once the Court found that there was not a landlord/tenant relationship, the Defendants could not avail themselves of the statute in the Residential Landlord-Tenant Act providing for prevailing party attorney’s fees.  The Defendants responded that the statute does not reference a “landlord” or “tenant,” but rather a “party,” so that whenever  a party, of any characterization,  brings a lawsuit under the Residential Landlord-Tenant Act, entitlement to attorney’s fees may be triggered under §83.48, even if it is determined that the Plaintiff was not a “landlord” and the Defendants were not “tenants.”

Prior to 1983, an award of prevailing party attorney’s fees could be awarded only if the Court determined that the defendant was a “tenant.” In 1983, however, the references in the statute to “landlord” and “tenant” were deleted, and the word “party” used instead. 1983 Fla. Laws 83-151, §4. Based on the unambiguous language of the current version of the statute, the focus is whether the action was brought under chapter 83, not who is bringing the action or who is being sued. In the instant case, the Plaintiff brought the action under chapter 83. When the Legislature deleted the words “landlord” and “tenant,” and inserted the word “party,” the Legislature expressed its intention to expand the scope of the statute. Therefore, when the Defendants prevailed in the instant in this action brought under chapter 83, the possibility of an award of fees under §83.48 was triggered. See Tavares v. Villa Doral Master Ass’n, Inc., 23 Fla. L. Weekly Supp. 685b (11th Cir. App. 2015) (although evidence failed to establish a residential lease, defendant was nonetheless entitled to an award of fees under 83.48 because he was sued in an “action brought to enforce the provisions of [. . .] this part”).

When a party prevails in an action brought under the Florida Residential Landlord-Tenant Act, an award of fees is not mandatory, but rather discretionary because the Legislature used the phrase “may recover” rather than “shall recover.” McWhorter v. Consumers Alliance Corp., 14 Fla. L. Weekly Supp. 1108b (17th Cir. App. 2007) (controlling appellate authority in the 17th Circuit). See also J. Hauser, Fla. Residential Landlord-Tenant Manual §11.02[2][a][i][A] (2007). However, because of the manner in which the Plaintiff “went to the mat” in prosecuting this action for a fairly insubstantial sum, the Court believes an award of fees is warranted. See Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1032 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D548b]. This does not foreclose the Plaintiff’s arguing that any particular time entries sought by Defendants might be unreasonable as to substance or length of time.

WEISS, v. CORAL SQUARE REALTY, INC. Defendants. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-2400 COCE 53. April 30, 2019. Robert W. Lee, Judge. 27 Fla. L. Weekly Supp. 201a

Dismissal with prejudice where landlord’s notice of termination of HUD lease did not comply with Federal Regulations, regardless of tenant’s failure to post rent

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On August 30, 2018 Landlord filed an eviction for non-payment of rent due August 1st .  The landlord issued a notice of termination of Tenancy on August 8th,  effective August 18th.  The tenant did not post the rent claimed into the court registry and defended based on defective notice.   The lease that attached to the complaint states that it is a subsidized lease pursuant to the federal agency known as Housing and Urban Development (“HUD”) and states in relevant part:

MODEL LEASE FOR SUBSIDIZED PROGRAMS

  1. Termination of Tenancy:

. . .

  1. Any termination of this Agreement by the Landlord must be carried out in accordance with HUD regulations, State and local law, and the terms of this Agreement.

. . .

  1. If the Landlord proposes to terminate this Agreement, the Landlord agrees to give the Tenant written notice and the grounds for the proposed termination. If the Landlord is terminating this agreement for “other good cause”, the termination notice must be mailed to the Tenant and hand-delivered to the dwelling unit in the manner required by HUD at least 30 days before the date the Tenant will be required to move from the unit and in accordance with the State law requirements. Notices of proposed termination for other reasons must be given in accordance with any times frames set forth in State and local law. Any HUD required notice period may run concurrently with any notice period required by State or local law. All termination notices must:

– specify the date this Agreement will be terminated;

– state the grounds for termination with enough detail for the Tenant to prepare a defense

– advise the Tenant that he/she has 10 days within which to discuss the proposed termination of tenancy with the Landlord. The 10-day period will begin on the earlier of the date the notice was hand-delivered to the unit or the day after the date the notice is mailed. If the Tenant requests the meeting, the Landlord agrees to discuss the proposed termination with the Tenant; and

– advise the Tenant of his/her right to defend the action in court.

The notice that Plaintiff attached to its complaint was dated 08/08/2018. The notice stated in relevant part:

10 Day Notice to Vacate – Subsidized Units

Please be advised that Millennia Housing Management, Ltd., the managing agent does hereby terminate your tenancy at this property, . . .

Your tenancy shall be terminated as of 08/18/2018.

 

In accordance with HUD guidelines, Millenia Housing Management Ltd., hereby advises you that you have ten (10) calendar days following the date of this letter in which you may meet with the Site Manager to discuss the proposed termination of your lease, and all charges which are delinquent on your account.

24 C.F.R. 92.253 is a HUD regulation captioned “Tenant protections and selection”. This HUD regulation applies to the lease at issue. 24 C.F.R. 92.253(c) provides:

(c)Termination of tenancy. An owner may not terminate the tenancy or refuse to renew the lease of a tenant of rental housing assisted with HOME funds, except for serious or repeated violation of the terms and conditions of the lease; for violation of applicable Federal, State, or local law; for completion of the tenancy period for transitional housing or failure to follow any required transitional housing supportive services plan; or for other good cause. Good cause does not include an increase in the tenant’s income or refusal of the tenant to purchase the housing. To terminate or refuse to renew tenancy, the owner must serve written notice upon the tenant specifying the grounds for the action at least 30 days before the termination of tenancy.

(emphasis added)

In the instant case, the Plaintiff gave ten days written notice to the tenant that it was terminating the tenancy. The ten-day notice requirement in paragraph 23 of the lease only refers to the right to meet with the Landlord within ten days to discuss the issues related to termination of the tenancy. Paragraph 23 of the lease does not give the Landlord the right to terminate the lease on ten-days notice. Paragraph 23 of the lease provides that notice of termination must be given in accordance with HUD regulations. 24 C.F.R. 92.253 requires that prior to terminating the tenancy, the owner must give 30 days’ written notice to the tenant. Plaintiff failed to provide 30 days notice to the tenant that it was terminating the tenancy.

Defendant argued that the requirement to place funds in the registry of the court in order to defend against the action is preempted by 24 CFR 92.253. In Palma v. JPMorgan Chase Bank, 208 So. 3d 771 (Fla. 5th DCA, 2016) [41 Fla. L. Weekly D2694d], the Fifth District Court of Appeals found that when a contract incorporates HUD regulations, compliance with those regulations is mandatory. Because 24 CFR 92.253 provides conditions precedent to the termination of the tenancy, those conditions precedent were mandatory pursuant to Palma. For this reason, the Court did not reach the issue of Plaintiff’s defense to the motion to dismiss that Defendant did not place any funds in the registry of the Court. Because notice may not be retroactively cured, dismissal with prejudice was ruled appropriate.

FOREST FLA LLC v.  MONTGOMERY.  26 Fla. L. Weekly Supp. 918a.  Brevard County Court.   February 5, 2019

Landlord foiled in attempt to evict tenant fired from the property management company

On or about June 4, 2018, Landlord  filed an eviction action against tenant  alleging, that the termination of tenants employment with landlord’s management company  served as a basis to terminate her lease in a federally subsidized tax credit property.

Tenant had an employment contract with Professional Management, Inc., (PMI) is the property management company hired by the Landlord to manage the property.

The lease is an agreement between  tenant  and Golden Acres Redevelopment Phase II, Ltd., as Landlord.

The court granted summary judgment in favor of the tenant stating  “it is axiomatic that an eviction cannot occur unless there is a lease violation or violation of Chapter 83, Fl. Stat. The cessation of Ms. Coleman’s employment with a third party (PMI) is not a violation of the lease agreement between the Defendants and Golden Acres and as such, Plaintiff cannot proceed with the instant eviction action. Plaintiff is proceeding on a contract that is not relevant or applicable to the lease agreement.”

GOLDEN ACRES REDEVELOPMENT PHASE II LTD, , v.  COLEMAN,   Broward County Circuit Court, 2018.   26 Fla. L. Weekly Supp. 856a.

One day’s notice to cure code violation deemed due process violation

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On July 6, 2017, a code enforcement officer noticed Appellant’s  lawn was overgrown. A Notice of Violation, dated July 12, 2017, was sent via regular mail to Appellant. It required the violation to be corrected by Sunday, July 16, 2017. Appellant’s representative testified that he received the Notice on Saturday, July 15, and immediately alerted the tenant of the property, who cut the grass that day. On Tuesday, July 18, the code enforcement officer found the property was not in compliance because although the front yard was cut, neither the back nor side yard was. The code enforcement officer referred the matter to the Board, and a hearing was held on August 1, 2017. The Board found that as of the date of the hearing Appellant was currently in compliance, but the property was in violation past the July 16 date set for compliance. The Board did not impose a fine, but based on the finding of violation, any repeat violation could be fined at an amount of up to $500 a day.

The court ruled on appeal that in code enforcement cases, the law requires a violator be given “a reasonable time to correct the violation.” See § 22-72, Code; § 162.06(2), Fla. Stat. Such time period shall be no fewer than five days and no more than 30 days.”   Accordingly,  the appellate Court  found that Appellant was not given a reasonable time to correct the violation at its rental property and reversed the order of the Code enforcement Board.

ARL & IL REVOCABLE TRUST, Appellant, v. CITY OF DUNEDIN CODE ENFORCEMENT BOARD, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 522017AP000041XXXXCI. L.T. Case No. 17-000041AP-88B. July 23, 2018. 26 Fla. L. Weekly Supp. 700b

Miami-Dade requires associations to act on rental applications within 45 days and state the reason for any rejected application

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Miami-Dade Code of Ordinances Sec. 11A-18.1. – Required notices in connection with application to purchase or rent a dwelling.

(a)  Within fifteen (15) days after receipt of any incomplete or incorrectly completed application (or amended application) to purchase or rent a dwelling, the condominium association, homeowners’ association, or cooperative association shall provide the applicant with written notice specifically identifying any and all items in the application that need to be completed or corrected.

(b) Within forty-five (45) days after receipt of a correctly completed application, the condominium association, homeowners’ association, or cooperative association shall either reject or approve the application and shall provide the applicant with written notice of same. If the application is rejected, the written notice must state with specificity each reason for the rejection.

(c)If the condominium association, homeowners’ association, or cooperative association fails to comply with the provisions of Section 11A-18.1 (a) and (b), of this article, the Director or the Commission may send a demand letter requesting that the condominium association, homeowners’ association, or cooperative association, within ten (10) days after the date of the demand letter, provide to the applicant and the Director or the Commission a written acknowledgement of application receipt, notice of approval or rejection of the application, and notice specifying each reason for the rejection (if applicable). The failure of the condominium association, homeowners’ association, or cooperative association to timely comply with this provision may be considered in determining whether reasonable cause exists to believe the association’s decision or action was discriminatory.

(Ord. No. 14-63, § 1, 7-1-14)

Why Miami-Dade landlords should be worried about their tenants’ dogs, cats, and ferrets

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The Code of Miami-Dade County. Sec. 5-6 (d)(1)  provides that  it is a code violation  to fail to timely vaccinate or re-vaccinate Dogs, Cats, and Ferrets each year and provide proof thereof to the County.  This requirement applies not only to the pet’s owner,  but to the owner of any real property where the animal is maintained. i.e. the landlord ! [Sec. 5-2 (b). Notice is not a prerequisite to enforcement [Sec. 5-6 (d)(1)].  A finding of violation by a court is punishable by a fine of up to $500 or six month’s imprisonment [Sec. 5-2(e)].   A finding of violation by Code Enforcement faces a $50 fine [Sec. 8CC-10].   An order imposing a fine constitutes a lien on all real property owned by the violator [Sec. 8CC-7].

You may want to put a clause in your lease about proof of vaccination…

Restoration of the Protecting Tenants at Foreclosure Act

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CA 18-4: 

BOARD OF GOVERNORS

OF THE FEDERAL RESERVE SYSTEM
WASHINGTON, D.C. 20551

DIVISION OF CONSUMER
AND COMMUNITY AFFAIRS

CA 18-4
June 22, 2018

TO THE OFFICERS AND MANAGERS IN CHARGE OF CONSUMER AFFAIRS SECTIONS

SUBJECT:

Restoration of the Protecting Tenants at Foreclosure Act

Applicability to Community Banking Organizations: This guidance applies to all institutions supervised by the Federal Reserve, including those with total consolidated assets of $10 billion or less.

This letter provides background information about the recently restored Protecting Tenants at Foreclosure Act of 2009,1 which became effective on June 23, 2018. The law protects tenants from immediate eviction by persons or entities that become owners of residential property through the foreclosure process, and extends additional protections for tenants with U.S. Department of Housing and Urban Development Section 8 vouchers. The law is self-executing; no federal agency has authority to issue regulations implementing the law or to interpret the law.

The fundamental purpose of the law is to ensure that tenants facing eviction from a foreclosed property have adequate time to find alternative housing. To that end, the law establishes a minimum time period that a tenant can remain in a foreclosed property before eviction. The law does not affect any state or local law that provides longer time periods or other additional protections for tenants.

Under the law, the immediate successor in interest at foreclosure must: (a) provide bona fide tenants with 90 days’ notice prior to eviction; and, (b) allow bona fide tenants with leases to occupy property until the end of the lease term, except the lease can be terminated on 90 days’ notice if the unit is sold to a purchaser who will occupy the property. A lease or tenancy is bona fide if the tenant is not the mortgagor or the parent, spouse, or child of the mortgagor, the lease or tenancy is the result of an arms-length transaction, and the lease or tenancy requires rent that is not substantially lower than fair market rent or that is reduced or subsidized due to a Federal, State, or local subsidy. The law does not cover tenants facing eviction in a non-foreclosed property, tenants with a fraudulent lease, tenants who enter in lease agreements after a foreclosure sale, or homeowners in foreclosure. Additionally, the law does not affect the requirements of any State or local law that provides for longer time periods or extends additional protections to tenants.

Consumer compliance examiners will employ risk-focused consumer compliance supervision principles to determine if they should include a review of compliance with the Protecting Tenants at Foreclosure Act in an examination. If compliance with this law is included in the examination scope, examiners will use the attached examination procedures to evaluate an institution’s awareness of the law, its compliance efforts, and its responsiveness to addressing implementation deficiencies.2

Reserve Banks are asked to distribute this letter to supervised institutions in their districts, consumer compliance examiners, and other appropriate supervisory staff. If you have any questions, please contact Amal Patel, Senior Supervisory Consumer Financial Services Analyst, at (202) 912-7879, or Tim Robertson, Manager, at (202) 452-2565. In addition, questions may be sent via the Board’s public website.3

 

signed by
Carol A. Evans
Associate Director
Division of Consumer
and Community Affairs

Supersedes:

CA 15-4 “Expiration of the Protecting Tenants at Foreclosure Act” (June 10, 2015)

Cross References:

SR 12-5/CA-12-3 “Policy Statement on Rental of Residential Other Real Estate Owned (OREO) Properties” (April 5, 2012)

Notes:

1. Section 304 of the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018 (Public Law 115-174) restored sections 701-703, and repealed section 704, of the Protecting Tenants at Foreclosure Act of 2009 (Title VII of the Helping Families Save Their Homes Act of 2009, Public Law 111-22), which expired on December 31, 2014. Section 704 contained the Protecting Tenants at Foreclosure Act of 2009’s sunset provisions; the restored act does not include an expiration date. Return to text

2. These are the same examination procedures that consumer compliance examiners used previously to conduct Protecting Tenants at Foreclosure Act of 2009 reviews. Return to text

3. See http://www.federalreserve.gov/apps/contactus/feedback.aspxReturn to text

Tenant Tips: How to Read the Lease Before Signing

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Nearly everyone is guilty of signing something they didn’t take the time to read at some point in their life. While it’s a somewhat common practice, it is usually best for a person to be aware of what they’re giving their consent to — and this is especially true for renters. For those getting ready to sign their first or fiftieth lease, protection starts with reading the fine print. The leasing contract lays out terms, conditions, and expectations that renters need to understand before they put their signature on the dotted line.

Fees and Deposits

The lease should spell out how much the rent will be for each month, but the rent isn’t the only charge that tenants should be aware of. The lease should contain the following:

  • Rent: The lease should say how much the rent is each month and the acceptable forms of payment. It should state the date upon which the rent is due, and if there’s a grace period for late payments. It should also state how much late fees will be.
  • Deposits: The most common forms of deposit are security and pet deposits, but each landlord will have their own policies. Ensure the lease states the details of the deposit, including if and how tenants can get their deposit back.
  • Additional Charges: Any additional charges should be listed in the agreement, so tenants need to be sure they understand each line item. For example, the landlord may charge a processing fee for certain forms of payment, or a monthly wear-and-tear fee is the tenant has pets.

Utilities and Repairs

The lease should state which utilities are included in the rent, if any. From electric to water to cable services, landlords may choose to cover certain utilities as a perk of renting with them. Renters need to know that they need to cover so they can plan their budgets accordingly. Additionally, not all leases state that landlords pay for all the maintenance and repairs to the property. In some cases, tenants will be responsible for smaller projects that keep the home in good shape like tending to the lawn or replacing the air filters. What a tenant is responsible for will often change how they will budget money or time month-to-month, meaning it is important to understand these things before signing. If a tenant has questions about any financial matters on the lease, they should speak with their potential landlord to understand what is needed from them.

Rules and Other Details

This section of the lease should give the landlord’s policies for how they tenant issues will be handled over time. Tenants need to understand the renewal policies, including rent increases, so they can make better long-term plans. This should also include when the lease starts, when it ends, and what’s included. If a refrigerator and a dishwasher come with the unit, this should be spelled out in the agreement. Tenants should also have the address of the property as well as the address and contact information of the landlord and/or property managers and caretakers.

The rest of the lease should give details about what the tenant can and cannot do. This may include information about the types of pets allowed, what fees are associated with potential damage, and whether or not tenants will be subject to routine inspection. It should state quiet hours of the property and if there are storage facilities available. Finally, the lease should set the terms for who is allowed to stay in the property, where the tenant is allowed to park, and if there are any insurance requirements.

Reading a lease over may take some time and brain power, but tenants who make the effort will usually have an easier time while living on the property. Once a person knows what they can expect, they can plan their time and money accordingly.

Anthony Gilbert REALTOR® ABR®

The REALFX Group – Washington
7829 Center Blvd Suite 309
Snoqualmie, WA 98065

The REALFX Group – Texas
2303 Ranch Road 620 S Suite 135
Austin, TX 78734