The traumatic tow

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83.67, car, dwelling unit, florida, LANDLORD, premises, prohibited practices, TENANT, tow, vehicle

Landlord  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

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Selective enforcement

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bird, cat, dog, fish, florida, LANDLORD, pet, selective enforcement, TENANT

A 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 4^th 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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breach, commission, Connecticut, damages, early termination, LANDLORD, realtor, security deposit, TENANT

Tenant 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).

Handicap accommodation

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accomodation, Fair housing act, FHA, handicap, LANDLORD, parking, TENANT

 The tenant in a condominium developed MS and began using a walker. He requested the condominium to assign him a handicapped parking space. The condominium, which originally had seven handicapped spaces out of three hundred and forty two, had sold those spaces as “premium parking”   to non-handicapped persons who were willing to pay from $15,000 $25,000 extra for the spots. The tenant was required to walk over one hundred feet and climb a flight of stairs to gain access to the premises from a standard parking space.   Tenant requested the condominium association to accommodate his disability.  They refused, as they had sold all of the handicapped spaces. The Federal district court ruled that the condominium association was required to provide at least 2% of its parking spaces (seven out of 392) for persons with disabilities under the Fair Housing Act. Thus they had to provide the tenant with a handicap spot, even if it meant having to buy it back.

Jafri v. Chandler, 970 F. Supp 2d 852 (N.D. Ill 2013)