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
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 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
When you buy a property it is subject to the existing lease. The new owner steps into his shoes and assumes the landlord’s obligations under the lease. If the tenant had made deposits (i.e. last month rent and security deposit ) the new landlord is liable to the tenant for those deposits. The buyer does not have the right to terminate the tenancy or change any of its terms. Telling the tenant he has to move out because the house has been sold could be deemed unlawful eviction and punished by a fine of 3 month’s rent.
A buyer must require the seller to provide an estoppel letter signed by the tenant verifying the amount of the rent and security deposit and the lease terms. The seller should provide the tenant’s social security number and date of birth so you can obtain a non-military status affidavit on-line in the event you have to evict the tenant. If you do not have this information, you must have a factual basis for swearing out an affidavit that the tenant is not active duty military in order to obtain a default judgment.
The buyer should receive prorated the rent and credit for the deposits from the seller on the closing statement.
The seller must disclose in the sales contract the property is subject to an existing lease, or the buyer could sue for failure to deliver possession at closing.
How does the filing of a foreclosure against the rental property affect the tenancy? Legally the foreclosure does not affect the tenancy until the foreclosure auction has taken place. Foreclosure auctions can be cancelled at the last minute, so the parties should check the court docket online to verify the case status. Until then, the lease is fully enforceable. If the tenant does not pay the rent, they can be evicted. A foreclosure in progress is not a defense to the non-payment of rent.
Post foreclosure: Any lease that is junior to the mortgage is subject to being foreclosed. The tenant should be named as a party defendant and served. Check the docket of the foreclosure case. If the lease was entered into after the lis pendens of foreclosure was filed it is subject to the foreclosure. A buyer may obtain a writ of possession directly on application to the Clerk of Court, or by filing a motion for a writ of possession depending on the language in the judgment of foreclosure. You can obtain a copy of the judgment of foreclosure from the Clerk of Court’s website.
The Federal Law (Protecting Tenants Under Foreclosure Act) requiring a 90 day notice to move expired December 31, 2014.
The buyer may solicit the tenant to sign a new lease, or to stay as a month to month tenant until the buyer can re-sell the property. If you accept a rental payment from the occupant you have created a new month to month tenancy. Month to month tenancies may be terminated by providing a notice of non-renewal at least 15 days before the next monthly lease term. Once you have created a new tenancy, you must file an eviction to obtain possession rather than get a writ from the foreclosure judge.
Be careful on REO purchases as the bank puts a waiver in the sales contract that they do not guarantee possession at closing. In fact, the bank may claim to have no knowledge as to who is living in the property, or if they are the former owner, a former tenant, or a trespasser. Unless a new tenancy was created post foreclosure, you may obtain possession by applying to the foreclosure court for a writ of possession.
Be absolutely sure that the seller obtained a condominium estoppel letter. The banks are very sloppy about paying delinquent condo dues and their title companies equally sloppy about obtaining estoppel letters. If you close without a condominium estoppel letter, you may end up liable for the delinquent condominium dues.
LANDLORD’S FAILURE TO PAY ASSOCIATION DUES.
In condominiums, if the landlord is not paying the association dues, the association may seize the rent by sending a written demand to the tenant. If tenant has already paid the rent, the tenant must provide evidence of such to the association within 14 days. The payment of the rent to the association is a defense to any claim from the landlord for non-payment of the rent. The association is entitled to evict the tenant for non-payment of rent (although one would wonder how that would benefit the association, other than generating a legal fee for their attorney ). The association has no obligation to perform repairs.
In some cases, the non-payment of dues has become so rampant that the condominium put the delinquent units into court receivership. In this instance the receiver has the power to enter into new leases, collect rents, and incur significant expenses against the unit. Be sure the seller has an estoppel letter from the receiver and has paid these charges. You may be stuck with the new tenancy, so be sure there is no receiver before you close.
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)
A landlord attempted to evict a tenant who had an option to purchase the leased premises and who had made more than twelve rental payments. Section. 83.42(2) Fla. Stat. enacted in 2014 “Exclusions” states occupancy under a contract of sale in which the buyer has paid at least 12 months’ rent is excluded from the landlord-tenant act.
The trial court ruled that case law establishes that an eviction is not the appropriate remedy where the occupant of the property has equity in the property. See e.g., Ward v. Estate of Ward, 1 So. 3d 238 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D28f]; Toledo v. Escamilla, 962 So.2d 1028 (Fla. 3rd DCA 2007) [32 Fla. L. Weekly D1876a]. In amending s. 83.42 Fla. Stat. in 2013, the legislature set a bright line for distinguishing tenants from buyers. See McKinney v. Dickson, 21 Fla. L. Weekly Supp. 175a (Lake Co. 2013).
While the county court may determine whether a tenant/buyer has equity in the property, s. 26.012(g) Fla. Stat. (2014) grants exclusive original jurisdiction to the Circuit Court on actions involving title to real property. Therefore Plaintiffs proper cause of action was an ejectment in circuit court, not an eviction in county court, and the case was ordered transferred to circuit court for further proceedings.
HARNER v. CARTER, County Court, 7th Judicial Circuit in and for Volusia County. October 6, 2014. 22 Fla. L. Weekly Supp. 462a.
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. .
Summary: Landlord must pay attorney’s fees and costs assessed by court in voluntarily dismissed eviction action before proceeding with any new eviction action for non-payment of rent
In the case of ORANDELLO, v HOWARD 13 Fla. L. Weekly Supp. 503b,504a, the landlord, representing himself, filed an eviction based on a defective 3-day notice. Tenant attorney Charles Simon, filed a motion to dismiss the eviction for the tenant. A few days later, the landlord, hoping to pull and end run around attorney Simon filed a voluntary dismissal, issued a new 3-day Notice and filed a new eviction case a week later. Alas, the attempted evasion did not succeed. The court ruled that where a plaintiff files a voluntary dismissal, the defendant is entitled to collect his attorney’s fees and costs from the plaintiff. In fact, the award of fees and costs is mandatory under the rules of civil procedure. The court then entered a judgment for tenant’s attorney’s fees against the landlord for $1125.00. As to the second eviction case the landlord filed, the court ruled that if a party who has dismissed a claim in any court, has filed a new case based on the same claim against the same defendant, the court shall order the payment of fees and costs from the previously dismissed claim and shall stay the proceedings in the new case until the plaintiff has paid the fees and costs from the dismissed case. The court would not allow the new eviction to proceed until the landlord had paid all of the tenant’s attorney fees from the case he voluntarily dismissed.
See also DAYTONA PROPERTY MANAGEMENT, vs. BURNES, Volusia County Court, Case No. 2013 33831 COCI, Division 84, December 24, 2013. FLWSUPP 2104DAYT. New eviction abated until attorneys fees and costs in previous action have been assessed by the court and paid by the plaintiff.
FNMA (Fannie Mae) acquired title to a rental property though foreclosure. Their attorneys, the Alberti Law Group, who do all of their foreclosures in Florida, were apparently unaware that four years ago, Congress passed a law known as the “Protecting Tenant’s Under Floreclosure Act.” The PTFA requires a foreclosure buyer to give a tenant a 90 day notice to vacate before applying to the court for a writ of possession. Albertelli Law provided a 30 day notice of lease termination and then filed for eviction. In the case of FNMA v. Jenkins, the court dismissed such an eviction action, ruling that the 30 day notice violated the PTFA and thus failed to terminate the tenancy. A proper termination of tenancy is a condition precedent to filing a complaint for eviction. Thus the court dismissed the complaint for eviction without leave to amend and awarded costs and attorney’s fees to the Tenant. The court, however, awarded the rent in the court registry to the Plaintiff. One wonders how wide spread such violations of the PFTA by lenders actually are!
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FEDERAL NATIONAL MORTGAGE ASSOCIATION, , v. JENKINS, County Court, 5th Judicial Circuit in and for Lake County. Case No. 2013-CC-002181-O. September 30, 2013. Honorable Terry T. Neal, Judge. 21 Fla. L. Weekly Supp. 73b
When the judge says so !
The Florida statute of frauds provides that a lease for more than one year must be in writing and the landlord’s signature must by witnessed by two witnesses. What then is the status of the lease when it is only signed by the tenant and not the landlord, or if it is signed by the landlord but there aren’t any witness signatures ?
In University Square v. Congress Auto Center, 9 Fla L. Weekly Supp. 753a (Palm Beach Circuit Court 2002), the tenant saw a for rent sign with a realtor on it. Tenant called the realtor, and ultimately was given a lease which he signed and returned along with a check for first and last month’s rent and a security deposit. The landlord cashed the check and the realtor gave the tenant the keys to the premises. Tenant purchased fixtures for the premises and moved his business into the leased premises two months later.
The next week, the tenant received a letter from landlord’s attorney stating that the landlord had not signed the lease, so they were under an oral month to month tenancy, which they were hereby terminating. When the tenant refused to vacate, landlord sued for eviction. Tenant posted the rent in the court registry.
The court cited the Florida Supreme Court in Demps v. Hogan 48 So. 998 (1909) which ruled that where a seller on an oral agreement for the sale of land puts the buyer in possession and the buyer has performed all of his obligations under the agreement, the court will enforce the agreement despite the statute of frauds. The court in University Square stated to apply the statute of frauds against a tenant who had moved in and paid the rent for three months, would itself work a fraud against the tenant. So the unsigned lease was enforced.