The grass is always greener on the other side.

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grass, LANDLORD, lawn, maintenance, security deposit, TENANT

Security deposit — Claim on security deposit denied where landlord failed to present evidence that the property was undamaged at the beginning of the tenancy or prove that tenants breached their duty to maintain.

On April 6, 2016, tenants sued for the return of their $2200.00 security deposit.  Landlord filed a counterclaim for the cost of resodding the lawn,  alleging tenants failed to maintain it.

Paragraph 13 of the lease provided that tenants shall maintain the lawn, but if  landlord is not satisfied with tenants maintenance, landlord may maintain the lawn his self at tenants’ expense.

Paragraph 25 of the lease provided that Tenant shall  surrender the premises in as good condition as at the start of this lease.”

The earliest photograph of the law was taken seven months after the lease began and showed extensive brown spots.  There was further evidence  that the landlord and dug up the lawn to replace the sewer line,  of salt water intrusion, and of  failures of the sprinkler system. The court found that tenants did not breach their duty to maintain the lawn and that landlord had not proven that the lawn was in worse condition at the end of the tenancy than at the beginning.

The court ordered the return of $2100 of the security deposit and denied the landlord’s counterclaim in its entirety.    Landlord appealed.

The Appellate Court noted that the standard of review of the trial court’s finding of facts were that will not be disturbed unless they are clearly erroneous.” State Tr. Realty, LLC v. Deutsche Bank Nat. Tr. Co. Ams., 207 So. 3d 923, 925 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2328a]; Tampa HCP, LLC v. Bachor, 72 So. 3d 323, 326 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2350b]; Universal Beverages Holdings, Inc. v. Merkin, 902 So. 2d 288, 290 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1338b]; see Thorpe v. Myers, 67 So. 3d 338, 341 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1524b] (deferring to the circuit court’s findings of fact when they are based on competent, substantial evidence).

As the trial court’s finding appeared to be based in part on landlord’s  failure to present evidence that the lawn was in a healthier condition when the  tenants moved in and in part because the lawn was generally difficult to maintain due to flooding and damaged by landlord  during the sewer pipe trenching. It was within the trial court’s purview to reach this finding after weighing the testimony and evidence adduced at trial.

Thus, Appellate Court found that the Final Judgment was not clearly erroneous and affirmed.

LAMPROS HAROCOPOS, Appellant, v. ROBERT STEVEN EAST and TARA DAVIS EAST, Appellees. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 16-000045AP-88A. UCN: 522016AP000045XXXXCI. December 7, 2017. Appeal from Final Judgment Pinellas County Court

Online Reference: FLWSUPP 2511HARO

7 Day Notice Defense

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7 day notice, 83.51, 83.56, 83.60, florida, LANDLORD, maintenance, repair, TENANT

A landlord issued a tenant a 3 day Notice for non payment of rent due 3/8/13  with a due date of 3/14/13.  On 3/26/13  the landlord filed an eviction for non-payment of rent.  The tenant was served on 3/30/13.  On  4/2/13  the tenant issued landlord a 7 day notice to perform repairs.  On 4/3/13  the tenant filed an answer and motion for rent determination and did not post any rent into the court registry.

The court set  the case for a rent determination hearing  on 4/8/13  and heard oral  testimony from the tenant, unsupported by any documentation,  concerning  alleged repair issues at  the  leased premises.

Counsel pointed out that  tenant’s  7 day notice had not matured even as of the date of the hearing, and thus landlord was still within his time frame  in which to effect the requested repairs before the tenant would have any entitlement to withhold future rent.   Further,   that  a 7 day notice issued in April   could have no bearing on tenant’s obligation to pay March rent.

The court was  presented with the case of Lee v. Schweizer , 7 Fla L. Weekly Supp 750a, County Court Sarasota 2000] which states that a “tenant may not take matters into his or her own hands and resort to the self-help of unilaterally withholding rent payments without proper notice.”     …   “a tenant may not raise a defense concerning the physical condition of the premises  without first having complied with the seven day notice requirement.”

Indeed, Section 83.60  “defenses to action for rent,”   requires  the tenant  to have issued a 7 day notice of non-compliance to the landlord in order to raise failure to make repairs as a defense to non-payment of rent.

As tenant’s 7 day notice had not matured prior to landlord’s 3 day notice,  tenant did not have a defense to the non-payment of the rent claimed in the 3 day notice. Thus,  tenant was obligated to post the amount claimed in the 3 day notice into the court registry to avoid an automatic default.

Cortleigh Apartments v. Thompson Case 13-6231 (52)  COCE,  Broward County.

Broward turns up the heat on deadbeat banks

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abandoned, broward, foreclosure, lien, lori parish, maintenance, non-ad valorem, property, tax, vacant

Broward County is ground zero for foreclosures with an estimated fifty percent of all single family homes “under water”  according to Lori Parish, the Broward County Property Appraiser.   With Foreclosure cases  in Florida taking an average of two and a half years in court, and 688,000 foreclosure cases currently pending in Florida, there is a lot of vacant property.  Once a lender determines that they do not want ownership of a property, usually because it is in disrepair,  the lender instructs their attorneys to stop the foreclosure case and the law suit will just sit  on the court’s docket with no activity for years on end.  Until the case finishes and the court issues a deed to the property back to the bank,  the lender is not legally obligated to maintain the property.   As neither the bank nor the owner in foreclosure was willing to maintain the property,  put the burden on local cities to board up the houses and cut the grass at tax payer expense.  As the owner had already abandoned the home,  they did not care if the city filed a code enforcement lien against it for the maintenance costs.

It did not seem like there was a solution.

The Broward County Revenue Collector came up with a plan that forces the banks to pay for the maintenance the city is performing on these abandoned properties by converting the maintenance costs into  a non-ad valorem tax (user fee). The banks are forced in the tax bills to repay the city for maintaining these nuisance properties.   Mortgages that had escrows are required to pay the property taxes.   If property taxes are not paid,  then the County can foreclose themselves,  wiping out the mortgage, and giving a tax deed to a new owner.

In Broward, the cities of Hallandale Beach, West Park, Deerfield Beach, Lauderhill, Pembroke Pines, Sunrise and Tamarac have passed the necessary ordinances to participate in this program.   All others cities which desire to do this can enact the enabling ordinance this year to begin this lot maintenance/nuisance abatement tax as of 2013 in their cities.