Defendant entitled to attorney’s fees on voluntary dismissal

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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.

Chicken and the Egg Revisited

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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

 

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

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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

FREC DISCUSSES REAL ESTATE AGENTS’ ROLE IN SHORT SALE PROCESS

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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.