• About
  • Complaints
  • Contact us
  • Forms
  • Disclaimer
  • Copyright

Florida Landlord-Tenant Law

~ a digest of Florida Landlord Tenant Court Decisions

Florida Landlord-Tenant Law

Monthly Archives: September 2012

Defendant entitled to attorney’s fees on voluntary dismissal

27 Thursday Sep 2012

Posted by apjlaw in Landlord - Tenant

≈ Leave a comment

Tags

attorneys fees, Fla. R. Civ. P. 1.420., florida, LANDLORD, TENANT, voluntary dismissal

Where the landlord filed an eviction and the tenant responded with defenses though legal counsel,  and the landlord filed a voluntary dismissal,  the tenant is entitled to recover his attorney’s fees pursuant to Fla. R. Civ. P. 1.420. Wilson v. Rose Printing Company, Inc., 624 So.2d 257 (Fla. 1993); Xanadu of Coco Beach, Inc. v. Lenz, 504 So 2d 518, 520 (Fla. 5th DCA 1987); Lampkin v. Bridgnanan, 17 Fla. L. Weekly Supp. 325a (Fla. 9th Cir. App. Ct. 2010); § 83.48, Fla. Stat.

Continue reading →

Advertisements

Rate this:

Chicken and the Egg Revisited

20 Thursday Sep 2012

Posted by apjlaw in 3 Day Notice / Non-payment of rent, Landlord - Tenant

≈ Leave a comment

Tags

3 day notice, 83.60, court registry, default, florida, LANDLORD, rent, TENANT

 

Motion for default based on tenant’s failure to respond to eviction complaint within five business days and deposit monies into court registry is denied where tenant filed motion to dismiss due to fatally defective three-day notice in open court at hearing on motion for default

The battle between the jurisdictions as to whether the tenant automatically looses the eviction for failing to post the rent within five days of being served  (the chicken),  or whether the landlord looses if the 3 day notice is defective (egg)  continues to rage on.

The tenant was served with a complaint for eviction April 18, 2012, but did not deposit the rent into the court registry within five days.

The landlord filed for a default which the court set for hearing on April 27, 2012.   At the hearing the tenant filed a motion to dismiss based on a defective 3 day notice.

The court ruled denied landlord’s motion for default on the following basis:

That the tenant did not waive the right to present the arguments alleged in her Motion to Dismiss by failing to file the motion within five business days, after service of process. Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th Cir. Ct. 2009) (acknowledging a defective three-day notice can be attacked for the first time on appeal).

The Fifth District Court of Appeal acknowledged alleging the complaint fails to state a cause of action can be raised by motion even after default. Appel v. Lexington Insurance Co., 29 So.3d 377 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D481a].

Under the Florida Rules of Civil Procedure, a challenge to the court’s jurisdiction can be raised at any time. Fla. R. Civ. P. Rule 1.140. (emphasis added).

Furthermore, even if Defendant did not file any pleadings or motions in this action, the Court finds no Clerk’s Default was entered in this case prior to the hearing on Plaintiff’s Motion for Default and that would have been grounds to deny the motion at that time pending Plaintiff obtaining a Default from the Clerk’s office.

 

ROY VAZIRI, Plaintiff, vs. TASHA STENGER & JEWELL PAUL EDWARDO, Defendants. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-CC-004178-O, Division 72. May 29, 2012. Wilfredo Martinez, Judge. 19 Fla. L. Weekly Supp. 861a

 

Rate this:

Court rules seller and broker have duty to disclose defects which are not readily observable to buyer.

13 Thursday Sep 2012

Posted by apjlaw in Real Estate

≈ Leave a comment

Tags

broker, defects, duty to disclose, fraud in the inducement, real estate, realtor, violations

Fraudulent inducement – Real property sale — Action against seller and realtors by purchaser who discovered a week after closing that property was subject to fines based on three-page list of code violations

On January 3, 2003, the owner of a property in St. Petersburg  was served with a Notice of Hearing to appear, on January 22, 2003, before the City of St. Petersburg Code Enforcement Board regarding 14 cited code violations.   On February 22, 2003, he signed a contract to sell said property.  In the Seller’s Property Disclosure Statement, dated  March 3, 2003, owner answered three questions pertinent to this case: “(a) Is there any existing or threatened legal action affecting the property?,” to which the “No” box was checked; “(b) Do you know of any violations of local, state, or federal laws or regulations relating to this property?,” which was left unanswered, and; (c) “Is there anything else that you feel you should disclose to a prospective buyer because it may materially and adversely affect the value or desirability of the property, e.g. zoning violations, nonconforming units, set back violations, zoning changes, road changes, etc.?”, to which the “Yes” box was checked. In response to the follow-up to “explain in detail,” The owner  wrote, in part (the last several words are not discernible), “back room has code violations from original owner, due to it not having owner occupied license.”

The owner  did not attach to the Disclosure Statement, nor provide to the buyer, the three-page list of cited code violations. The buyer did not have a professional home inspection conducted and personally inspected the property only once. The closing and conveyance of the property took place on March 20, 2003. A week after closing, the buyer  was informed by the City of St. Petersburg that the property was subject to fines based on the three-page list of code violations.3

The Court held that “Florida law is clear that a seller has a duty of disclosure to the buyer of “facts materially affecting the value of the property which are not readily observable and are not known to the buyer.” See Johnson v. Davis, 480 So.2d 625, 629 (Fla. 1985) (emphasis added). This duty of disclosure extends to the seller’s real estate broker. See Syvrud v. Today Real Estate Inc., 858 So.2d 1125, 1129 (Fla. 2d DCA 2003).  This duty extends to the real estate broker.

* The code violations included: floor in bathroom peeling up; wiring in closet exposed; refrigerator and range not plugged in; door to storage area has rotten wood and not sealed; ceiling in living room has gaps; hole in wall under the sink; kitchen plumbing not to code; kitchen in disrepair; certificate of inspection required; kitchen floor missing tile and grout; after-the-fact permits required for work completed, and; garage apartment must be removed.

LIPP vs. ELY. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No.04-0071AP-88B. UCN522004AP000071XXXXCV. November 9, 2005. Appeal from Summary Judgment, Pinellas County Court, Judge Walt Fullerton.

13 Fla. L. Weekly Supp. 119a

Rate this:

FREC DISCUSSES REAL ESTATE AGENTS’ ROLE IN SHORT SALE PROCESS

05 Wednesday Sep 2012

Posted by apjlaw in Uncategorized

≈ 1 Comment

Tags

FREC, realtor, short sale, title company, unlicensed practice of law, upl

FREC met last week to discuss short sale transactions and Real Estate licensees’ role in the process.  They were looking at the potential impact of the loss mitigation process on Realtors.

They concluded that short sales involved legal issues that are not found in traditional sale transactions.  The Commissioners agreed that “licensees should ALWAYS take preventive steps so that they don’t cross a line and get involved in the unlicensed practice of law”.   Licensees “CANNOT assist a client with some aspects of a short sale transaction, such as providing a legal opinion regarding the contents of the short sale approval letter, or even whether a short sale is the right decision for a particular client”.  They concluded that licensees “…need to communicate to clients that there are some aspects of a short-sale transaction that could require a lawyer.”

In conclusion, Realtors should not negotiate their own short sales, nor should they have a title company negotiate the short sale for their clients.  If a licensee wants to protect him/herself from “the unlicensed practice of law”, he/she should hire an attorney to handle the short sale negotiations.

While there are title companies that offer to negotiate the short sales for FREE.. if you want to be protected, be sure that the your short sale is being negotiated by an Attorney’s office not a  title company!  Last time I checked, title companies were not licensed to practice law.

Rate this:

About this Blog

This blog contains articles about Florida landlord-tenant law written by a practicing Florida lawyer.

There are free landlord-tenant forms on the Forms Tab above, and even more free forms on my website FloridaREI.com (click on the link below).

You can search the articles by terms in the search tab above, or click on the categories below to browse.

Comments and feedback are welcome and I will try to answer your questions (within reason).

Click "subscribe" below to follow this blog and receive notifications of new posts by email.

Click on the Monkey below to subscribe to our real estate investors newsletter

The Florida Bar urges you to read the disclaimer above.

Click here for more forms

Enter your email address to follow this blog and receive notifications of new posts by email.

Subscribe to our newsletter

Categories

  • Foreclosure
  • Landlord – Tenant
    • 15 Day Notice / Termination of Tenancy
    • 3 Day Notice / Non-payment of rent
    • 7 Day Notice / Lease violations
    • Commercial
    • Damages
    • Foreclosure
    • Lease Terms
    • Legal requirements
    • Notice Requirements
    • Repair issues
    • Requirement to post rent into court registry
    • Security Deposit
  • Real Estate
  • Scams
  • Tax Deeds
  • Uncategorized

Pages

  • About
  • Contact us
  • Forms
  • Disclaimer
  • Complaints
  • Copyright

Archives

  • February 2019
  • January 2019
  • October 2018
  • September 2018
  • July 2018
  • April 2018
  • March 2018
  • February 2018
  • October 2017
  • September 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • January 2017
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • November 2015
  • October 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
Advertisements

Create a free website or blog at WordPress.com.

Cancel
Privacy & Cookies: This site uses cookies. By continuing to use this website, you agree to their use.
To find out more, including how to control cookies, see here: Cookie Policy