Defendant not prevailing party where plaintiff voluntarily dismisses for mootness

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attorneys fees, florida, LANDLORD, moot, prevailing party, TENANT, voluntary dismissal

A commercial landlord voluntarily dismissed its eviction  after the tenants vacated the property and returned the keys.   The former tenant then filed for attorney’s fees as a result of the voluntary dismissal.

The court ruled that this falls outside that general rule that when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party. The rule is not without exceptions. In this case, the Plaintiff obtained the relief it sought — the Defendants vacated the premises after initiation of the lawsuit and then delivered the keys to the Plaintiff’s agents, which triggered the Plaintiff to file its voluntarily dismissal. Defendant’s actions effectively rendered moot Plaintiff’s lawsuit, but in no way can be said that the Defendant “prevailed,” much less “substantially prevailed.” Kelly v. BankUnited FSB, 159 So.3d 403, 406-07 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D684a]; Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So.3d 1034, 1041-42 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1611d]; Padow v. Knollwood Club Ass’n, 839 So.2d 744, 745-46 (Fla 4th DCA 2006) [28 Fla. L. Weekly D123d]. As was the case in Kelly, the case of Alhambra Homeowners Ass’n v. Assad, 943 So.2d 316 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D3118a] is clearly distinguishable. To rule otherwise would, in the Court’s view, encourage gamesmanship.

FAMSUN INVEST LLC, vs. IRVI INTERNATIONAL LLC, County Court, 17th Judicial Circuit in and for Broward County.  24 Fla. L. Weekly Supp. 889a

2017 Florida Legislative Session – Pending landlord-Tenant bills

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2017, domestic violence, florida, hb 1423, LANDLORD, legislation, maintain, rental application, repair, sb 1274, sb 1588, sb 756, service member, TENANT

HB 1287 Criminalizing landlording GENERAL BILL by Hardemon 3/5/2017 Makes it a crime if the landlord fails to maintain the premises or engages in retaliatory conduct or prohibited practices (self help eviction).  A misdemeanor for the first offense and a FELONY for a second offense.  Read the full bill here

SB 756: Free ride for tenants GENERAL BILL by Rodriguez Deletes the requirement for the tenant to post the rent in the court registry within five days and subsequently as rent comes due, and replaces it with a requirement that the eviction be heard within 30 days.  Any requirement to pay rent during the pendency of the court proceedings at the judge’s discretion.  Read the full text here

HB 1423 / SB 1274: Victims of domestic violence protection. GENERAL BILL by Jenne ; (CO-INTRODUCERS) Baez ; Jacobs 3/7/2017 Prohibits landlord from evicting tenant or terminating or refusing to enter into residential rental agreement because tenant or tenant’s minor child is victim of domestic violence, dating violence, sexual violence, or stalking; allows victim of such violence to terminate residential rental agreement with liability for 30 days rent requires landlord to change locks of dwelling unit within 24 hours,  authorizes tenant to change locks of dwelling unit under certain conditions. Read the full bill here

CS/SB 1588: Servicemember rental applications Where the landlord or HOA requires the spouse of adult family member of a service member to submit an application for occupancy,  it must be processed in seven days.  Read the full bill here.

Court rules that defective notice of non-renewal may not be amended

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83.57, 83.60, florida, LANDLORD, non-renewal, tenant. miami beach, termination

Landlord filed an eviction in Miami Beach, Florida for holdover on February 10, 2016 . The notice of non-renewal of the month to month tenancy was dated November 16, 2015 effective November 30, 2015.  Not only did this fail to give the tenant the fifteen days notice of non-renewal required by §83.56 F.S., but the Miami Beach Code of Ordinances Sec. 58-386, requires thirty days notice of non-renewal of a month to month tenancy. Landlord filed a new notice of non-renewal dated July 11, 2016 and attempted to proceed with the original eviction case.

The court ruled that §83.59(1), Fla. Stats., requires that a landlord lawfully terminate a lease agreement before it can initiate eviction proceedings. At the time Plaintiff filed this eviction action in February, Plaintiff had not properly terminated Defendant’s tenancy. A proper notice of termination is a condition precedent to an eviction. Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D264a]; Investment and Income Realty, Inc. v. Bentley, 480 So.2d 219, 220 (Fla. 5th DCA 1985).  A cause of action must accrue prior to the filing of a complaint. Hasam Realty Corp. v. Dade Cty., 178 So.2d 747 (Fla. 3d DCA 1965); Rolling Oaks Homeowners Ass’n v. Dade Cty., 492 So.2d 686 (Fla. 3d DCA 1986); Smith Barney Shearson v. Berman, 678 So.2d 376 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1483h].

Author’s Note:  If the eviction had been for nonpayment of rent, the court would have reached the opposite result as §83.60(1)(a) provides that in an action by the landlord for possession of a dwelling unit based upon non-payment of rent, or an action to recover unpaid rent…  the landlord must be given an opportunity to cure a deficiency in a notice or pleadings before the dismissal of the action.

MIAMI BEACH COMMUNITY DEVELOPMENT CORPORATION v. LUIS DIAZ,. Miami-Dade County, Civil Division. Case No. 2016-000407-CC-24. October 21, 2016.  24 Fla. L. Weekly Supp. 708a

Property manager held liable for security deposit forwarded to unresponsive landlord after lease termination

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83.49, claim, florida, LANDLORD, property manager, security deposit, TENANT

Tenants entered into a lease and deposited a security deposit with landlord’s property manager.  At the end of the lease, the manager attempted to contact the landlord to gain access to the property to perform an inspection.  When the landlord did not  respond after a week, the property manager terminated their management contract and, the following week, sent the keys and the deposit to the landlord.   Neither the manager nor the landlord ever made a claim against  the deposit.  The landlord cashed the deposit check two months ager the lease ended.  In the meantime, the property manager directed the tenants to contact the landlord directly.  the landlord never responded.  It turned out that the property had been in foreclosure during the entire lease term, and the landlord had consented to a judgment of foreclosure a few days after cashing the security deposit check.

When the tenants did not get their deposit back, they sued the property manager.  The property manager moved to dismiss for failure to name the landlord, who they had transferred the deposit money to.   The court disagreed, ruling that the  property manager was only authorized to transfer the deposit funds  upon a change in either the manager or of the landlord.  As neither had changed, the property manager was responsible for the security deposit.  The court ruled that the property manager had a responsibility to both the landlord and the tenant over the security deposit, as it was the tenant’s money until the landlord had made a claim against it.

STRESS FREE PROPERTY MGMT, INC., vs. JONES,  Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County.. March 19, 2015 22 Fla. L. Weekly Supp. 1006a

New Landlord Tenant Law – Servicemember applicants must be denied within 7 days or are approved

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83.683, application, florida, LANDLORD, military, national guard, servicemember, TENANT, united states armed forces

Be It Enacted by the Legislature of the State of Florida effective July 1, 2016:
Section 83.683, Florida Statutes, is created to read: 83.683 Rental application by a servicemember.*-

(1) If a landlord requires a prospective tenant to complete a rental application before residing in a rental unit, the landlord must complete processing of a rental application submitted by a prospective tenant who is a servicemember, as defined ins. 250.01, within 7 days after submission and must, within that 7-day period, notify the servicemember in writing of an application approval or denial and, if denied, the reason for denial. Absent a timely denial of the rental application, the landlord must lease the rental unit to the servicemember if all other terms of the application and lease are complied with.

(2) If a condominium association, as defined in chapter 718, a cooperative association, as defined in chapter 719, or a homeowners’ association, as defined in chapter 720, requires a prospective tenant of a condominium unit, cooperative unit, or parcel within the association’s control to complete a rental application before residing in a rental unit or parcel, the association must complete processing of a rental application submitted by a prospective tenant who is a servicemember, as defined ins. 250.01, within 7 days after submission and must, within that 7-day period, notify the servicemember in writing of an application approval or denial and, if denied, the reason for denial. Absent a timely denial of the rental application, the association must allow the unit or parcel owner to lease the rental unit or parcel to the servicemember and the landlord must lease the rental unit or parcel to the servicemember if all other terms of the application and lease are complied with.
(3) The provisions of this section may not be waived or modified by the agreement of the parties under any circumstances.

* “Servicemember” means any person serving as a member of the United States Armed Forces on active duty or state active duty and all members of the Florida National Guard and United States Reserve Forces.

What this means:  This is going to be tough on associations,  especially those that do not meet on a regular basis. Landlords should always conduct a professional screening with non-discriminatory criteria such as are available by clicking here

Motion to determine rent based on failure to repair

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83.51, 83.60, court registry, determination, florida, LANDLORD, law, motion, rent, TENANT

In an eviction for non-payment of rent, the tenant defended with a motion to determine rent.  The motion to determine rent was not based on an allegation that the amount claimed by the landlord was incorrect,  but upon the landlord’s failure to maintain the premises.    The court noted that in order for the tenant to challenge the amount of rent due because of landlord’s failure to maintain the premises,  the tenant must first have sent the landlord a seven day notice.   The notice must be in writing, giving the landlord seven days to cure.  Landlords may rely on written notice of complaints of a specific nature, but must then act within seven days to accomplish compliance with the statute.    The tenant is required to  issue a seven day notice in order to commence a process wherein the tenant may withhold rent payments.   The tenant ,may not take matters into his own hands and resort to the self-help of unilaterally withholding rent payments without property notice.  Determining that a reduction in rent registry payments could be permitted where no statutory seven day notice was delivered merely delays the necessary inevitable frustration of the tenant’s defense as well as underlying basis for such a reduction.  Thus the tenant was ordered to deposit the full amount of the rent into the court registry.

Lee v. Schweizer , 7 Fla L. Weekly Supp 750a, County Court Sarasota 2000]

HUD issues new guidelines on tenant screening

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application, arrest, conviction, felony, LANDLORD, misdeameanor, screening, TENANT

On April 4, 2016,  the United States Department of Housing and Urban Development Office of General Counsel  issued a “guidance”  effective immediately on permissible housing applicant selection criteria.   This “guidance”  declares what selection criteria will be deemed discriminatory under the Fair Housing Act.   Based on their study of arrest and incarceration rates of blacks and latinos  being disproportionate to their percentage of the general population,  it will now be deemed discriminatory to use arrest records as a criteria for denial of a rental applications.  Convictions, however, may be used as a selection criteria  if  the landlord takes into account the “nature and severity”  of the offense,  and the length of time since the conviction.   HUD recommends that landlords perform an “individualized assessment of relevant mitigating information”  such as the “facts or circumstances surrounding the criminal conduct; the age of the individual at the time of the offense; evidence that the individual has maintained a good tenant history … and evidence of rehabilitation efforts.”

HUD stated that the Fair Housing Act does not prohibit denial of housing based on a conviction for the illegal manufacture or distribution of controlled substances.

Landlords should  update their screening procedures to  disregard the following
1. Arrests
2. Misdemeanor convictions
3. Any adjudication that is other than guilty, such as adjudication withheld, nolle prosse
4. Convictions for possession of drugs or drug paraphernalia.
5. General felony convictions over ten years old ( you should particularize offenses that directly relate to the safety of the leased premises and other tenants)

Click here to read the entire HUD Guidance Statement.

Comments from attorneys and landlords are encouraged.

Waiver by failure to promptly reject untimely tender of rent

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3 day notice, 83.65(5), florida, LANDLORD, payment, posting, reject, rent, return, TENANT, tender, theft, waiver

This Collier County case made three novel rulings:

Defective Posting: May not post 3 day notice until ascertained tenant is absent

The property manager testified she served a 3 day notice  by folding it and placing it in the tenant’s door.  The tenant denied receiving the notice.   The court ruled that while Florida law permits the three day notice to be served to the tenant by leaving a copy of the notice at the residence,  it may be posted only if the tenant is absent from the premises.  Without evidence evidence that the property  manager attempted to determine if the tenant was absent from the premises prior to posting the three day notice,  the posting is defective notice.

Bailment: Rent in possession of landlord, and stolen, is landlord’s loss, not tenant’s.

The three day notice  included $348.00, which represented the tenant’s money orders that were stolen during a theft at the landlord’s office.  That theft occurred while the money orders were in the possession of the landlord.  The court ruled that the fund stolen from the landlord  should not have been counted as rent on the three day notice.

Waiver: 

Waiver occurred when the landlord accepted money orders paid by the tenant  (See §83.56(5), Fla. Stat).  Although the landlord ultimately returned the money orders to the tenant, the landlord held them too long. By not returning the payments to the tenant promptly, the landlord is deemed to have accepted them, even if the payments were not credited to the account. See, Belkin v. Robinson, 38 Fla. Supp.2d 188 (Broward 1989). By accepting rent while knowing of a noncompliance, the landlord waived whatever right he otherwise had to evict, pursuant to §83.56(5), Fla. Stat.

HARMONY SHORES MHP, LLC,  vs. OAKLEY, Collier County  Case No. 2015-CC-001599. December 17, 2015. Online Reference: FLWSUPP 2308HARM

Any allegation of ownership by tenant in an eviction action requires an evidentiary hearing.

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83.42, contract, evidentiary hearing, LANDLORD, lease option, ownership, purchase, TENANT

Petitioner had been living in a house for over five years under a lease-option  contract which had expired four years ago under which he  claimed to have made a $6000 deposit toward the purchase as well as many improvements.  Respondent filed an eviction for non-payment of rent, to which petitioner responded with a motion to determine rent and a motion to dismiss based on a claim of ownership under the lease option..  The county court granted the eviction without hearing.  Petitioners appealed (which was treated as a petition for a writ of certiori,  as non-final orders from County Court are not directly appealable to Circuit Court).

The Circuit Court reversed, citing Florida Statutes 83.42 Exclusions from application of part. — This part does not apply to:

(2) Occupancy under a contract of sale of a dwelling unit or the property of which it is a part in which the buyer has paid at least 12 months’ rent or in which the buyer has paid at least 1 month’s rent and a deposit of at least 5 percent of the purchase price of the property.

Where a tenant makes a claim of ownership in a landlord’s action for possession, a court errs by ordering an eviction or by ordering rent to be deposited with the court registry without holding a hearing on the tenant’s assertion.  Even though the lease option had expired on its face in 2010,  the court ruled that real estate contracts, under certain circumstances, may be subject to oral modification or extension, as was alleged here.  Therefore the County Court erred by not holding an evidentiary hearing on the claim of ownership.

MORGAN v. HEWITT,  Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County.  Appeal from the County Court for Orange County. August 20, 2015.  Online Reference: FLWSUPP 2307MORG

Companion dogs

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accomodation, bread, companion, disability, dog, emotional support, FHA, florida, miami-dade, pitt bull, ptsd, TENANT

Tenant filed a request under the Fair Housing Act for his condominium  to make an accommodation to him to own a Pitt Bull Terrier as a companion animal based on his disability.  The condominium refused based on its no pets policy and the fact that Miami-Dade County bans the ownership of Pit Bull Terriers. In denying the condominium’s motion for summary judgment against the tenant, the District Court found that changing a no pets policy for an emotional support animal was a reasonable accommodation under the FHA. The court also found that enforcing the county ordinance would violate the FHA by permitting a discriminatory housing practice. The court noted that emotional support animals do not require task specific training. Particularly, the rule states:”emotional support animals provide very private functions for persons with mental and emotional disabilities. Specifically, emotional support animals by their very nature, and without training, may relieve depression and anxiety, and help reduce stress-induced pain in persons with certain medical conditions affected by stress.” The court also noted that any threat posed by the Pitt Bull  was also entitled to reasonable accommodation by the Condominium. Warren v. Delvesta Towers Condominium Association 49 F.Supp.3d 1082 (S.D. Fla. 2014).   Click here to read the full opinion Click here for a Summary of Cases Dealing with Emotional Support Animals (ESAs)