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Florida Landlord-Tenant Law

~ a digest of Florida Landlord Tenant Court Decisions

Florida Landlord-Tenant Law

Category Archives: Landlord – Tenant

Broward suspends defaults, writs of possession until July 2nd

01 Wednesday Apr 2020

Posted by apjlaw in Landlord - Tenant, Uncategorized

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broward, default, evictions, florida, moratorium, writ

IN THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA
Administrative Order 2020-23-Temp
EMERGENCY ADMINISTRATIVE ORDER
CORONAVIRUS DISEASE 2019 (COVID-19)

F. Defaults and Writs of Possession and for Garnishment. Until such time as
the courts resume normal operations, in all county civil and circuit civil cases:
(1)No default shall be entered by the Clerk of Court.
(2)No court default may be sought unless submitted by motion to the
presiding judge detailing exigent circumstances which may warrant
judicial relief. In the event the presiding judge is unavailable, the matter
shall be presented to the Administrative Judge of the County Court or the
Administrative Judge of the Circuit Civil Division, as appropriate, and if
either are unavailable, to the Chief Judge.
(3)No writs of possession or writs of garnishment may issue until normal
operations of the court resume.

NOTE:  Landlords may still issue 7 day notices to cure violation, and notices of non-renewal,  file and issue and serve summons, except for residential non-payment of rent cases.   All properties with federally subsidized mortgages are subject to the March 27th Federal “CARES” ACT are enjoined from any action for non-payment of rent until July 25, 2020.

 

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Evictions halted in Broward

18 Wednesday Mar 2020

Posted by apjlaw in Landlord - Tenant

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broward, evictions, florida, halted, sheriff, stopped, writ of possession

In a Tuesday letter to the Broward Sheriff’s Office, Tuter referenced the ongoing state of emergency due to the spread of the virus. Tuter outlined that state of emergency, along with a previous Administrative Order allowing for evictions to be suspended.

“Pursuant to that Administrative Order, the Sheriff shall suspend posting and execution of any writ of possession for residential premises that have not been executed prior to the declaration of emergency and partial suspension of court operations,” the order reads.

“This mandate not only applies to the Sheriff, but to all law enforcement agencies.”

Click here to read the article on FloridaPolitica.com

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Broward Court closed to the public until March 27th.

16 Monday Mar 2020

Posted by apjlaw in Landlord - Tenant

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broward, closure, court, court registry, delay, eviction, florida, LANDLORD, post, summons

For landlord’s this means that no affidavits of mailing for summons served by posting can be filed in person,  but they may be mailed to the clerk of court.

For Tenants:  The judges are still processing the eviction cases.  If you are being evicted for non-payment of rent you still have to post the rent in the court registry within five business days of being served.  As the court house is closed to you,  you must mail the rent to the court registry or deposit it in the drop box outside the court house.  You must add the court registry fee of 3% of the first $500 and each subsequent $100 at 1.5%. Deposits into the Court Registry can be in the form of Cash, Cashier’s Check, Bank Official Check, Money Order, or Attorney Trust Account Check. No personal checks are accepted.

For updates and questions, please contact the jury room 24-7 Hotline: (954) 831-7051, Office Hours Only: (954) 831-6089.

Please visit www.17th.flcourts.org/coronavirus-covid-19-updates for updates on Court Operations.

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Dade suspends enforcement of evictions

12 Thursday Mar 2020

Posted by apjlaw in Landlord - Tenant

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Corona virus, Dade county, evictions, suspended, writ of possession

Dade suspends enforcement of writs of possession.  click here to read

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Court strikes down ordinances prohibiting short term rentals

22 Wednesday Jan 2020

Posted by apjlaw in Landlord - Tenant

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142-111, 142.905, airbnb, florida, homeaway, LANDLORD, miami beach, short term rental

City ordinances which impose escalating fines for violations of city’s ban on short-term rentals of residential properties, beginning with a fine of $20,000 for the first offense, are in conflict with Florida Statutes §163.09(2)(d),  and are therefore illegal and unenforceable.

A Miami Beach property owner filed suit to overturn two Miami Beach Ordinances prohibiting the rental of residential properties for six months or less and imposing a $20,000  fine for the same.  Plaintiff argued that the ordinances conflict with Florida Statute Section 163.09(2)(d), which limits the fines municipalities may levy for code violations to “$1,000.00 per day for the first violation and $5,000.00 per day for repeat violations.”

City Code § 142-905(b)(5), governs short-term rentals of single-family homes.  City Code § 142-111, governs short-term rentals of townhomes, condominium, and apartments. Generally speaking, both ordinances prohibit the rental of properties for terms of six months or less, with limited exceptions that are not pertinent to the issues framed by the pending motions.

If a property owner rents for a period of less than six months and one day — and thereby violates either ordinance — they are subject to escalating fines of $20,000.00 for the first offense, $40,000.00 for the second, $60,000.00 for the third, $80,000.00 for the fourth, and $100,000.00 for all offenses thereafter. City Code §§ 142-905(b)(5)(a) and 1111(e)(1).  A special master, however, has no ability to waive or reduce fines if a violation is found. City Code § 142.905(b)(5) (“the special master shall not waive or reduce fines”).

Article I, Section 18 of the Florida Constitution limits all administrative fines to those authorized by the Florida Legislature,” and no city may “adopt any fines that the legislature has not authorized it to adopt.”  Florida Statute § 162.09 “limits municipal fines to $1,000.00 for the first offense and $5,000.00 for subsequent offenses.”

The Court rejected the City’s argument that the Plaintiff lacked standing to seek declaratory relief because she has not violated the ordinances and been penalized. Plaintiff is a property owner on Miami Beach who has — and wants to continue — leasing her real estate, but she is unable to do so because the challenged ordinances make it illegal. No precedent supports the proposition that she must first break the law and be fined $20,000.00 before she can challenge its legality. The law is in fact to the contrary, as it should be. See, e.g., Lambert v. Justus, 335 So. 2d 818 (Fla. 1976) (property owners had standing to bring “complaint seeking declaratory judgment as to the validity of certain restrictions on the use of their property”). These ordinances are prohibiting Nichols from renting her property now, and unlike the situations presented in the precedent cited by the City, this is not a case where a plaintiff is seeking an advisory opinion on a moot academic issue or a question that may never arise. See, e.g., Santa Rosa County v. Admin. Com’n, Div. of Admin. Hearings, 661 So. 2d 1190 (Fla. 1995) [20 Fla. L. Weekly S333a] (action seeking declaration as to the constitutionality of certain statutes was moot as parties had resolved their disputes by a “stipulated settlement agreement”); Apthorp v. Detzner, 162 So. 3d 236 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D490a] (action challenging the qualified blind trust statute despite the fact that “no public officers” had ever used the type of trust authorized by the law); Florida Dept. of Ins. v. Guarantee Tr. Life Ins. Co., 812 So. 2d 459 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D523b] (action challenging constitutionality of Florida Statute § 627.411 presented no actual controversy because plaintiffs rate filings had never been reviewed or denied “under that provision”).

Does Chapter 162, et. seq. Grant Municipalities the Right to Opt-Out of the Statutory Cap on Fines Imposed by § 162.09

This brings the Court to the only genuine issue: Does Chapter 162 authorize the City to impose fines greater than those authorized by §162.09? The short answer is no.

“[A] municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden.” Rinzler v. Carson, 262 So. 2d 661, 668 (Fla. 1972). For that reason, “[m]unicipal ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute.” Thomas v. State, 614 So. 2d 468, 470 (Fla. 1993). That does not mean that the state and a municipality may not legislate concurrently. They can. But when a municipality legislates in an area addressed by the legislature, its “concurrent legislation must not conflict with state law.” Id., citing City of Miami Beach v. Rocio Corp., 404 So.2d 1066 (Fla. 3d DCA), review denied, 408 So.2d 1092 (Fla.1981). See also, City of Palm Bay v. Wells Fargo Bank, N.A., 57 So. 3d 226 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D161a] (“[a]lthough a municipality has broad home rule powers to enact local ordinances, the ordinances may not conflict with a state statute”) (internal citations omitted).1

This long-settled rule of superiority/preemption is derived from the plain text of Article I, Section 18 and Article VIII, Section 2(b) of our Constitution. The first provides that no administrative agency — which the City admittedly is — may impose any penalty “except as provided by law.” Article I, Section 18, Fla. Constitution. The second provides that municipalities “may exercise any power for municipal purposes except as otherwise provided by law.” Article VIII, Section 2(b), Fla. Constitution. These provisions, in tandem with the “Municipal Home Rule Powers Act” codified at Chapter 166 of the Florida Statutes, make clear that a municipality “may enact legislation on any subject upon which the state legislature may act unless expressly prohibited by law.” Rocio Corp., 404 So. 2d at 1068; City of Venice v. Valente, 429 So. 2d 1241, 1243 (Fla. 2d DCA 1983) (“. . . a municipality may not exercise any power for municipal purposes which is expressly prohibited by law”). Local ordinances are “expressly prohibited by law” when they conflict with a state statute, and “must fail when [such] conflict arises.” Id. See also City of Kissimmee v. Florida Retail Fed’n, Inc., 915 So. 2d 205 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D2457f] (“[w]hen the legislature enacts a statute, a local government cannot adopt or enforce an ordinance that conflicts with the statute”); Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008) [33 Fla. L. Weekly S1002c] (“. . . in a field where both the State and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute”); Hillsborough County v. Florida Rest. Ass’n, Inc., 603 So. 2d 587 (Fla. 2d DCA 1992) (“[i]f [a county] has enacted such an inconsistent ordinance, the ordinance must be declared null and void”); Masone v. City of Aventura, 147 So. 3d 492 (Fla. 2014) [39 Fla. L. Weekly S406a] (“. . . municipal ordinances must yield to state statutes”); Florida Retail Fed’n, Inc., supra, n.1.2

Section 162.09 of the Act — titled “Administrative fines; costs of repair; liens” then caps the fines that may be imposed by a code enforcement board or special magistrate. Section 2(d) — the portion of the Act at issue here — provides:

(d) A county or a municipality having a population equal to or greater than 50,000 may adopt, by a vote of at least a majority plus one of the entire governing body of the county or municipality, an ordinance that gives code enforcement boards or special magistrates, or both, authority to impose fines in excess of the limits set forth in paragraph (a). Such fines shall not exceed $1,000 per day per violation for a first violation, $5,000 per day per violation for a repeat violation, and up to $15,000 per violation if the code enforcement board or special magistrate finds the violation to be irreparable or irreversible in nature. In addition to such fines, a code enforcement board or special magistrate may impose additional fines to cover all costs incurred by the local government in enforcing its codes and all costs of repairs pursuant to subsection (1). Any ordinance imposing such fines shall include criteria to be considered by the code enforcement board or special magistrate in determining the amount of the fines, including, but not limited to, those factors set forth in paragraph (b).

The City — exercising its police power — decided to ban virtually all short-term rentals on Miami Beach. That is a policy decision the Court may not second guess or interfere with. See Benjamin N. Cardozo, The Paradoxes of Legal Science, 125 (1928) (“[w]hen the legislature has spoken, and declared one interest superior to another, a court must subordinate her personal belief to that so declared”); State v. Ashley, 701 So. 2d 338 (Fla. 1997) [22 Fla. L. Weekly S682a] (“. . . we have said time and again, the making of social policy is a matter within the purview of the legislature — not this Court”). But a municipality exercising its admittedly “broad authority to enact ordinances,” City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006) [31 Fla. L. Weekly S461a], may not legislate “in conflict with state law.” Thomas, supra at 470. As our appellate court put it as recently as this August, “although Florida municipalities are given broad authority to enact ordinances, municipal ordinances must yield to state statutes. Florida Retail Fed’n, Inc., supra.

The legislature — in the exercise of its police power — clearly and unambiguously imposed caps on the amount local governments may fine citizens for code violations. § 162.09, Fla. Stat. (2019). Those mandatory caps provide statewide uniformity and limit the exposure a citizen may face for violating local law. The caps set by the legislature, while hardly de minimis, may not in the City’s view be adequate to force (or motivate) Miami Beach’s wealthiest property owners to comply with these ordinances. The City may (or may not) be correct, but that is a matter it must take up in Tallahassee. In the meantime, and unless and until the legislature allows local governments to fine citizens in excess of $1,000.00 per day for code violations, the City must abide by the command of §162.09. See Rocio, supra at 1071 (“. . . the local ordinances must yield to state statutes if stability in government is to prevail”); Thomas, supra at 470 (‘[w]hile a municipality may provide a penalty less severe than that imposed by a state statute, an ordinance penalty may not exceed the penalty imposed by the state”).

The ordinances challenged here are in jarring conflict with § 162.09 and are therefore illegal and unenforceable.

NATALIE NICHOLS, Plaintiff, v. CITY OF MIAMI BEACH, FLORIDA, 27 Fla. L. Weekly Supp. 707a.  An appeal has been filed and is pending.  Case 2018-021933-CA-01  Miami-Dade County

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Denial of attorneys fees to prevailing party in suit to recover security deposit due to small claims rules, reversed.

13 Friday Dec 2019

Posted by apjlaw in Landlord - Tenant, Security Deposit

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attorneys fees, florida, LANDLORD, security deposit, small claims, TENANT

Tenant sued to recover his $650.00 security deposit and $100 pet deposit among other counts and prevailed.  His counsel moved to tax attorney’s fees, which was granted. However, the trial then court sua sponte set aside the Final Judgment as to Taxing Attorney’s Fees finding that he  had relied on the Small Claims Rules throughout the case, “specifically chose not to file a Chapter 83 County Civil landlord tenant case” and was therefore not able to claim attorney’s fees under Chapter 83.  On appeal the denial of attorneys fees by the trial court was reserved.

A post-judgment order denying a party’s claim for attorney’s fees is an appealable final order, even when the order grants costs without determining the amount; thus, we have jurisdiction. Yampol v. Turnberry Isle, 250 So. 3d 835 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D1533a]. A denial of attorney’s fees based on a conclusion of law concerning the interpretation of statute is reviewed de novo. Country Place Community Ass’n v. J.P. Morgan Mortgage Acquisition Corp., 51 So.3d 1176 (Fla. 2d DCA 2010) [36 Fla. L. Weekly D31a].

The Small Claims Rules do not create a separate court; rather, they create a separate set of rules of procedure when the amount in controversy is less than $5,000.00 exclusive of costs and fees. LaSalla v. Pools by George of Pinellas Cty, Inc., 125 So. 3d 1016, 1016 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D1426a]. Thus, an action filed under the Small Claims Rules is a county civil action, and since the complaint in this case specifically pled relief under §§ 83.49 and 83.50 Fla. Stat., Tenant  did in fact file a Chapter 83 landlord tenant case. Moreover, nothing in the Small Claims Rules prevents an award of attorney’s fees, so long as they are properly pled. See e.g., Dish Network Service L.L.C. v. Myers, 87 So. 3d 72 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D975a] (prevailing party in small claims suit was entitled to statutory attorney fees, but not travel time or multiplier).

CONFORTI, , v. CARR.  Circuit Court, 5th Judicial Circuit (Appellate) in and for Hernando County.   27 Fla. L. Weekly Supp. 571a

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8 Big Landlord Tenant Law Misconceptions

03 Thursday Oct 2019

Posted by apjlaw in Landlord - Tenant, Legal requirements

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eviction, florida, LANDLORD, law, misconceptions, myths, TENANT

  1.  The landlord has 60 days to return your security deposit

False:  Section 83.49 3 (a) Florida Statute provides that the landlord has 30 days in which to make a claim against tenants security deposit.  The claim must be sent by certified mail.

  1. If it’s in the lease, it’s legally binding

False:  Section 83.47 1 (a)  Florida Statutes provides that no provision of a rental agreement  that waives or precludes the rights, remedies, or requirements of Florida Statutes Chapter 83,  Residential Tenancies, is void and unenforceable

  1.  The landlord can enter your home anytime

Partially True:  Section 83.53, Florida Statutes provides that the landlord may enter the rental unit at any time for the protection or preservation of the rental unit.  Otherwise the landlord may enter upon 12 hours written notice  between 7:30 am and 8:00 pm to make repairs.  The landlord may also enter the leased premises for any other lawful purpose where 1)  the tenant consents, 2)  the tenant unreasonably withholds consent 3) in case of emergency.

  1.  The landlord can evict you for any reason

False:  The landlord may only file an eviction after the rental agreement has been terminated.  The rental agreement is terminated by 1) the expiration of its term 2)Upon the expiration of a 3 day notice demanding payment of the rent 3)  upon the expiration of a 7 day notice to cure a lease violation 4)  at the end of a monthly rental period after either party has served a 15 day notice of intent not to renew a month to month lease.

  1. The landlord can end your lease early to move in family or to sell the property

False:   The landlord has to wait until your rental agreement expires.  The sale of the property does not affect the rental agreement.

  1. The landlord can opt-out of repairs

Partially False:  Section 83.51, Florida Statutes provides that the landlord has to keep the leased premises up to code.  However in a single family home or duplex,  the landlords obligation to repair may be waived or altered in writing.

  1. The landlord doesn’t have to rent to someone recovering from drug abuse or who has been arrested

False:  The Fair Housing Act  protects tenants against discrimination based on a disability — which includes addiction.

HUD guidelines  provide that Landlords should  update their screening procedures to  disregard the following or face charges of discrimination:
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)

  1. If you get evicted, you might have to pay a landlord’s court costs

True: Section 83.48, Florida Statues provides that the prevailing party in a landlord tenant suit may recover reasonable attorneys fees and court costs from the non-prevailing party.

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There is no cause of action for an eviction for non-payment of rent in tenancy for zero rent

12 Thursday Sep 2019

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

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3 day notice, florida, LANDLORD, no rent, TENANT

The Plaintiff’s action in eviction was premised upon the alleged non-payment of rent.  At the hearing to determine rent due, based upon the evidence presented, the court determined that rent in the amount of zero dollars was due each month.  However, the three-day notice  demanded payment of $100.00 in allegedly delinquent rent.

A three-day notice which demands monies other than delinquent rent is defective and fails to terminate the tenant’s rental agreement. See Cappelier v. Mahoney, 17 Fla. L. Weekly Supp. 662a (Fla. 18th Cir. Ct. 2010); Hanna v. Freckleton, 11 Fla. L. Weekly Supp. 967d (Fla. 11th Cir. Ct. 2004); Wright v. Brown, 20 Fla. L. Weekly Supp. 700b (Fla. Orange Cty. Ct. 2013).

The Court acknowledged  that the Florida legislature amended effective July 1, 2013 Sec. 83.60(1)(a) to provide that “[i]n an action by the landlord for possession of a dwelling unit based upon nonpayment of rent. . . [t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.”  But where no rent is due,  it would be impossible for the Plaintiff to cure the defective notice or to bring the action for non-payment of rent [FLWSUPP 2704CHAR].  That is, under the facts of this case, the court finds that the action must have been brought under some legal theory other than the non-payment of rent. It would be errant for the landlord to be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action. Accordingly, Plaintiff’s Complaint must be dismissed without leave to amend. See Orozco v. Estrada, 23 Fla. L. Weekly Supp. 490a (Fla. Miami-Dade County Ct. 2015); Desha v. Smith 24 Fla. L. Weekly Supp. 238a (Fla. Manatee Cty. Ct. 2016).

Additionally, the three-day notice was also held  facially defective in several other respects.

  1. The notice contained no proof of service rendering it defective. See Dan v. Litt, 14 Fla. L. Weekly Supp. 983b (Fla. Broward Cty. Ct. 2007); Rodriguez v. Serra, 17 Fla. L. Weekly Supp. 129a (Fla. Broward Cty. Ct. 2009).
  2. The notice demanded payment on a weekend rendering it defective. See 2000 Washington, Inc., v. Coaches, 8 Fla. L. Weekly Supp. 581b (Fla. Broward Cty. Ct. 2001); 95-45 Roosevelt Ave Corp. v. Research Sample Bank, Inc., 13 Fla. L. Weekly Supp. 844a (Fla. Broward Cty. Ct. 2006).
  3. The notice did not contain the landlord’s name rendering it defective. See Benoit v. Wilson, 17 Fla. L. Weekly Supp. 224a (Fla. Broward Cty. Ct. 2010); Adkins v. Mompremier, 17 Fla. L. Weekly Supp. 44a (Fla. Broward Cty. Ct. 2009).
  4. The notice did not contain the landlord’s address rendering it defective. See Hulac v. Cox, 19 Fla. L. Weekly Supp. 1105d (Fla. Lee Cty. Ct. 2012); Beapot v. Mccullough, 18 Fla. L. Weekly Supp. 296c (Fla. Osceola Cty. Ct. 2010); Luise v. Flores, 18 Fla. L. Weekly Supp. 295b (Fla. Volusia Cty. Ct. 2010); Jasiurkowski v. Harris, 17 Fla. L. Weekly Supp. 1253a (Fla. Broward Cty. Ct. 2010).
  5. The notice did not contain the landlord’s phone number rendering it defective. See Greenview Apartments v. Roger, 8 Fla. L. Weekly Supp. 513a (Fla. Broward Cty. Ct. 2001); Nadeau v. Solares, 13 Fla. L. Weekly Supp. 502b (Fla. Broward Cty. Ct. 2006).

The eviction was dismissed with the court awarding attorneys fees to the Defendant Tenant.

CHARNESKY v. OREFICE, Defendant. Volusia County. Case No. 2019 13042 CODL, Division 73. June 19, 2019. 27 Fla. L. Weekly Supp. 386a

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Using criminal history in evaluating rental applications

12 Monday Aug 2019

Posted by apjlaw in Landlord - Tenant, Real Estate

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arrest, conviction, criminal, felony, guidelines, history, HUD, misdemeanor, rental application

Florida Realtors® reports that a single Orlando law firm has filed 48 lawsuits against Florida property managers for refusing to rent to tenants with prior felony convictions.  They are alleging that refusing to rent to tenants with a criminal history violated the fair housing act.  In 2016, HUD issued guidelines that a blanket policy of  refusing to rent to an applicant with a prior arrest, misdemeanor conviction,  or a felony conviction more than 7 years old had a disparate impact on African Americans and Hispanics according to Department of Justice statistics.  A housing provider must show that its screening policy is necessary to achieve a substantial non-discriminatory interest.  The policy cannot be speculative or hypothetical.  Evidence must exist that supports the screening policy.  The housing provider must prove through reliable evidence  that the policy serves the purpose of protecting the safety and property of the other residents.  Also that there are no  less discriminatory alternatives.

HUD examples:  length of time since the applicant’s conviction.  A good rental history since the conviction.  The circumstances surrounding the criminal conduct.

A housing provider should have a written policy calling for applicants to be evaluated on a case  by case basis.  Document the research done and results found on each applicant.   Make sure the policy is being followed and that it is not resulting in a discriminatory effect.  Make sure the policy is being applied on a consistent basis.   Review the applicants financial qualifications before checking their criminal history, so that a denial on a financial basis is not tainted by criminal history that should not have been considered.  Arrests not resulting in a conviction should not be considered and thus should not by a criteria on the application.     Blanket restrictions on certain convictions or all applicants with a criminal record will be discriminatory. Each applicant must be evaluated on a case by case basis.

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Where plaintiff sued under Chapter 83 and defendants prevailed, they were entitled to attorneys fees despite finding of no landlord tenant relationship

26 Friday Jul 2019

Posted by apjlaw in Landlord - Tenant

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83.48, attorneys fees, florida, LANDLORD, landlord tenant relationship, TENANT

The Plaintiff brought suit against Defendants under Chapter 83, Florida Statutes, seeking unpaid rent. At trial the Court found in the Defendants’ favor, finding that there was no landlord/tenant relationship between the parties, but also finding that if there were such a relationship it was the landlord who breached the agreement by not providing habitable premises.

Defendants moved for attorneys fee under Florida Statute §83.48, which provides in pertinent part, “[i]n any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment [. . .] has been rendered may recover reasonable attorney fees and court costs from the non-prevailing party.”

Plaintiff  argued that once the Court found that there was not a landlord/tenant relationship, the Defendants could not avail themselves of the statute in the Residential Landlord-Tenant Act providing for prevailing party attorney’s fees.  The Defendants responded that the statute does not reference a “landlord” or “tenant,” but rather a “party,” so that whenever  a party, of any characterization,  brings a lawsuit under the Residential Landlord-Tenant Act, entitlement to attorney’s fees may be triggered under §83.48, even if it is determined that the Plaintiff was not a “landlord” and the Defendants were not “tenants.”

Prior to 1983, an award of prevailing party attorney’s fees could be awarded only if the Court determined that the defendant was a “tenant.” In 1983, however, the references in the statute to “landlord” and “tenant” were deleted, and the word “party” used instead. 1983 Fla. Laws 83-151, §4. Based on the unambiguous language of the current version of the statute, the focus is whether the action was brought under chapter 83, not who is bringing the action or who is being sued. In the instant case, the Plaintiff brought the action under chapter 83. When the Legislature deleted the words “landlord” and “tenant,” and inserted the word “party,” the Legislature expressed its intention to expand the scope of the statute. Therefore, when the Defendants prevailed in the instant in this action brought under chapter 83, the possibility of an award of fees under §83.48 was triggered. See Tavares v. Villa Doral Master Ass’n, Inc., 23 Fla. L. Weekly Supp. 685b (11th Cir. App. 2015) (although evidence failed to establish a residential lease, defendant was nonetheless entitled to an award of fees under 83.48 because he was sued in an “action brought to enforce the provisions of [. . .] this part”).

When a party prevails in an action brought under the Florida Residential Landlord-Tenant Act, an award of fees is not mandatory, but rather discretionary because the Legislature used the phrase “may recover” rather than “shall recover.” McWhorter v. Consumers Alliance Corp., 14 Fla. L. Weekly Supp. 1108b (17th Cir. App. 2007) (controlling appellate authority in the 17th Circuit). See also J. Hauser, Fla. Residential Landlord-Tenant Manual §11.02[2][a][i][A] (2007). However, because of the manner in which the Plaintiff “went to the mat” in prosecuting this action for a fairly insubstantial sum, the Court believes an award of fees is warranted. See Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1032 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D548b]. This does not foreclose the Plaintiff’s arguing that any particular time entries sought by Defendants might be unreasonable as to substance or length of time.

WEISS, v. CORAL SQUARE REALTY, INC. Defendants. County Court, 17th Judicial Circuit in and for Broward County. Case No. 17-2400 COCE 53. April 30, 2019. Robert W. Lee, Judge. 27 Fla. L. Weekly Supp. 201a

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