Transient or non-transient, that is the question

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509, 83.67, hotel, LANDLORD, motel, prohibited practice, TENANT, transient

The Florida landlord tenant statute excludes “transient occupancy in a hotel, condominium,  motel, rooming house, or similar public lodging, or transient occupancy in a mobile home park.”  F.S. 83.42(3) from the act.   But courts have held that if  an occupant stays in a hotel long enough he is transformed into a tenant.

In  FLEMING vs. KIRTIBHAI HARIBHAI MASTER, a/k/a Harry Master and LAXMI PARTNERSHIP,  Court, 4th Judicial Circuit in and for Duval County. Case No. 2011-SC-1400, Division D. June 7, 2011  18 Fla. L. Weekly Supp. 688a,   Fleming resided at the Scottish Inn in Jacksonville for almost two years.    The Scottish Inn was a Hotel and regulated under Chapter 509.   Fleming  originally paid by the day, and then changed to paying two weeks in advance.  On February 18, Flemming fell behind on the rent and the management deactivated his key card so that he could not access his room or recover his possessions.

Fleming sued the Inn under the landlord-tenant statute for unlawful eviction.  The court stated that the Chapter 509, a summary procedure locking out guests only applies to a transient occupancy.  When it is the intention of the parties that the occupancy will not be temporary  it is  “non-transient.” There is a rebuttable presumption that, when the dwelling unit occupied is the sole residence of the guest, the occupancy is nontransient.” § 509.013(15), Fla. Stat. In this case, Room 123 at the Scottish Inn was Fleming’s sole residence for almost two years. In addition, the Scottish Inn was aware of his long term status as they had stopped charging sales tax after six months.  The court found that Fleming was a “nontransient” occupant at the Scottish Inn and not subject to the summary removal procedures of Chapter 509.

In housing non-transients, hotel  owners are placed under the same obligations as a residential landlord  even in the absence of a written lease for a specific period. E.g. § 83.57, Fla. Stat. (requiring advance written notice before ending a tenancy of indeterminate length). Failure  to comply with the procedures of Chapter 83 for removal of a non-transient occupant will result in the damages of 3 months rent for a lockout  under  Section 83.67, Florida Statutes, Prohibited Practices.

In  CHANDLER, v.  CONE,  Broward County. Case No. 95-11412 (56) COCE. July 28, 1995, 3 Fla. L. Weekly Supp. 369a,   an occupant of sixteen months paying week to week  in a licensed hotel was also declared to be non-transient as  she  “considered it her home.”  The court stated that the term “transient” is defined as “occupancy when it is the intention of the parties that the occupancy will be temporary.’

In another case a hotel employee  who had resided at a hotel as part of the compensation of her employment  for only a month was held to be a non-transient because her intention was to reside there as her sole residence indefinitely.   FREPPON, , vs. LAKELAND HOSPITALITY INC. d/b/a CROSSROADS MOTOR LODGE, County Court, 10th Judicial Circuit in and for Polk County. Case No. 2005CC-000230-0000-00. May 13, 2005. 12 Fla. L. Weekly Supp. 783a.

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Estoppel by chronic lateness

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3 day notice, equitable estoppel, habitual, LANDLORD, late, TENANT

Habitual acceptance of late payments waived right to evict absent advanced notice that late payments would no longer be accepted.

Tenant defended an eviction for non-payment of rent on the basis that landlord’s habitual acceptance of late payments estopped landlord from evicting the tenant without giving an additional notice that late payment would not be accepted.

Testimony revealed that the Defendant consistently made late payments for years throughout the course of her tenancy. Tenant testified that she had received Three Day Notices in the past for failing to pay rent on time but has never been evicted and that late payments were accepted by management on numerous occasions, including accepting payments after the service of three day notices. The landlord did not provide Defendant with additional notice that late payments would no longer be accepted.

Courts have held that if the landlord has a pattern of constantly accepting late payments after giving the tenant notice that late payments would no longer be accepted, then the landlord may be estopped from evicting the tenant without additional notice that late payments will not be accepted. Heggs v. Haines City Community Dev., 2 Fla. L. Weekly Supp. 137a (10th Cir. App. 1994)

The court ruled that the landlord’s actions would cause a reasonable lessee to believe that the lessor did not intend to enforce the default  and that therefore landlord should be “equitably estopped”  from evicting the tenant for late payment of rent.  Vines v. Emerald Equipment Company, 342 So.2d 137 (Fla. 1st DCA 1977).

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TIGER BAY OF GAINESVILLE LTR,  vs. OWENS,. County Court, 8th Judicial Circuit in and for Alachua County. Case No. 01-2013-CC-002434, Division IV. November 18, 2013. Phillip A. Pena, Judge.  21 Fla. L. Weekly Supp. 344a

Costs on Appeal

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9.400(a), appeal, attorneys fees, costs, florida, LANDLORD, TENANT

Prevailing party on appeal entitled to costs and fees

Tenant appealed the denial of her section 8 benefits and won.  Tenant filed for her appellate costs and fees and was denied by the trial court.  Tenant appealed the denial and the  appellate division of the circuit court denied the motion for review, stating that the appellate division had lost jurisdiction once the appellate division had ruled.  Tenant appealed this denial  to the court of appeals.   The court of appeals ruled that as tenant  was the prevailing party in the appellate division of the circuit court, she was entitled to her appellate costs. See Philip J. Padovano, Florida Appellate Practice § 20.2, at 397 (2007-08 ed.).

Under Florida Rule of Appellate Procedure 9.400(a), a party may serve a motion to tax costs within thirty days after the issuance of the mandate. Thus, by its terms, rule 9.400(a) authorizes proceedings for appellate costs to take place after the mandate has issued. Appellate costs are taxed by the lower tribunal.

A party may challenge a denial of appellate costs by filing a motion for review in the appellate court within thirty days. Fla. R.App. P. 9.400(c); Philip J. Padovano, Florida Appellate Practice § 20.7, at 410-11. Tenant  timely filed her motion for review in the appellate division.

The circuit court appellate division had jurisdiction to consider Martin’s motion for review. It was incorrect to deny the motion for review on the theory that the appellate division had lost jurisdiction once the mandate issued.

“[A] party may file a petition for writ of mandamus to correct an erroneous decision that a lower tribunal is without jurisdiction.” Philip J. Padovano, Florida Appellate Practice § 28.2, at 685 (footnote omitted); Pino v. Dist. Ct. of App., Third Dist., 604 So.2d 1232, 1233 (Fla.1992). The appellate division must reinstate tenant’s motion for review, and proceed to consider the motion.

MARTIN v.  HIALEAH HOUSING AUTHORITY, District Court of Appeal of Florida, Third District. January 30, 2008. 972 So.2d 1113. .

Lets dance !

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appeal, attornes fees, costs, florida, LANDLORD, security deposit

When you  “go to the mat”  on trial and on appeal,  you have invited your opponent to “dance” and are subject to all consequent costs for losing both.

At the end of a lease landlord imposed a $4,602.28 claim on tenant’s $7,400.00  security deposit for damage to the rental unit.  Tenant timely objected.  Landlord did not refund the uncontested balance of the deposit.  Tenant sued for the return of their deposit.

At trial the court noted that landlord failed to introduce  evidence from an INDEPENDENT source for any product or service claimed.  The landlord only had estimates,  but no receipts for actual expenditures.  The  landlord had actually not performed any of the repairs or replaced any of the items claimed.  The landlord admitted that all keys and fobs claimed had actually been returned by the tenants.

The trial court ordered the entire deposit refunded to the tenants,  plus their costs and attorney’s fees.

The landlord appealed to the circuit court and lost again.

In determining the total amount of costs and attorneys fees due to the tenant,  the court noted that although this was a County Court case seeking only $7800.00 in damages, because Defendant instigated the appeal and treated this matter without regard to the amount in controversy due to the breadth and length of the appeal, Plaintiffs cannot be penalized by this fact in seeking to recover all of the resultant fees and costs.

The Court should consider the nature of the defense, particularly whether the non-moving party went “to the mat” in the case. See Progressive, 984 So. 2d at 1032. If the defendant took positions and actions to be litigious, it cannot now be heard to complain that it “invited the moving party to dance.” See Roco Tobacco Co. v. Div. of Alcoholic Beverages, 934 So. 2d 479, 482 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1826b]. Although this case involved a seemingly small amount of damages in relation to the fee sought, the Court notes that the Defendant vigorously defended this case, instituted its own counterclaim, tried the case, and appealed the case with extremely thorough and expansive briefing. Without a doubt, Defendant went “to the mat” in this litigation, so the Court finds that Plaintiffs’ preparation was reasonable.

The case was filed on 7/21/2011 and ended 3/26/2014.  There were 111 docket entries.

The court entered a judgment against the landlord for $34,220.58.

RUBIN vs. GOUDIE, County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 11-10381 CC 05. December 31, 2013. Honorable Gladys Perez, Judge. 21 Fla. L. Weekly Supp. 348b.  Online Reference: FLWSUPP 2104RUBI