1. Florida Residential Landlord-Tenant Law
Presentation to
Brevard County Clerks
Judge David E. Silverman
davidsilverman.com

2. Commencing the Eviction Action
The Decision to Evict
Preparing and Filing the Lawsuit
Lease or Tenancy
Parties
Notice
Service of Process
Individual or Substitute Service
Posting

3. Residential Eviction Costs
Filing Fee – Issuance of Summons
Posting of Summons
Execution of Writ
Attorney’s Fees
Repairs for Damages to Premises
Increased Insurance Premiums
Loss of Rental Income

4. Expediting Resolution
10th business day after Tenant served file should be brought to judge.
Judge should review file to determine if the Court has jurisdiction and, if so, whether:
Default is proper; or,
Rent Determination Hearing should be set; or,
Trial should be set.

5. Most Common Situations
Tenant has not filed an answer – Upon Clerk’s default judgment should be signed providing for issuance of a Writ of Possession.
Tenant has answered but has not posted rent into the court registry (may have defaulted).
Unnecessary trials may result if the judge does not review file prior to the case being set.

6. Challenge to Jurisdiction
Judicial Review of Tenant’s Answer
Jurisdiction
Counterclaim in Excess of $15,000
Denial of Landlord/Tenant Relationship
Claim of Right, Title or Equitable Interest
Transfer to Circuit Court

7. Claim of Equitable Interest
If the Tenant complies with the lease, Tenant may purchase the property at appraised market value and one-third of Tenant’s rental payments will be applied to the purchase price.

8. Domestic Tenancy
Angelina is fed up with Brad’s stuff all over the place and tells him to move out of her house. He refuses and stops paying the mortgage. She sues to evict.
Common Answer: “There is no evidence of a LL-T relationship here, so Chapter 83 and summary procedure are not available. . .”

9. § 82.42 – Exclusion from County Court Jurisdiction
Residential eviction does not apply to (2) Occupancy under a contract of sale of a dwelling unit. . . [where] the buyer has paid at least 12 months’ rent or. . . at least 1 month’s rent and a deposit of at least 5 percent of the purchase price of the property.

10. §   
(1) The County Court shall have jurisdiction concurrent with the circuit court to consider landlord and tenant cases. . . (2) The County Court shall have exclusive jurisdiction of proceedings relating to the right of possession of real property and to the forcible or unlawful detention of lands and tenements. . .

11. §   
(2) Circuit Courts shall have exclusive original jurisdiction:
. . .
(f) In actions of ejectment; and
(g) In all actions involving the title and boundaries of real property.

12. Tenant Letters Loss of Employment Debts and Expenses Health Problems
Dependents
Lack of Family Support
Deficient Contributing Condition
Imminent Acquisition of Funds

13. § – Waiver of Defenses
(2) Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent within 5 days constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with writ of possession to issue without further notice or hearing thereon.

14. Motion to Determine Rent
Sufficiency of Motion
Tenant’s motion alleges that the rent asked for in the complaint in “In error” and attaches documentation
Improper where Tenant only asserts, “I disagree with the amount owed”
Hearing to Determine Rent
Tenant’s right to challenge amount
Court to determine amount of deposit

15. Defense of Payment Sufficiency of Pleading Defense of Payment
Payment Defense Issues
Amount of Rent
Person Receiving Payment
Oral Agreement
Services In Lieu
Deferral of Rent

16. Motion to Dismiss Improper 3-Day Notice Improper parties
a. “Court observed” holidays
b. “Rent” in the 3-Day Notice.
c. Mailed notice - 5 additional days
Improper parties
a. Tenants on 3-Day Notice
b. Improper or Fictitious Landlord
Failure to give 7-Day Notice of Non Compliance
Short Notice of Non Renewal

17. Prior Views of Deficiencies
Judges have previously adopted different views of facial deficiencies in the 3 day notice
Fatal even without deposit
Does not prevent default based on failure to deposit accrued rent
Requires hearing, upon deposit by deadline, if potentially prejudicial or extenuating circumstances

18. Judicial Response Do Judges Exercise Discretion? Order for Hearing
Interpreting Pro Se Pleadings
Scheduling Hearing
Facilitate or Delay Execution of Writ
Order for Hearing
Deposit Required
Default After Scheduling Hearing
Mandating Mediation

19. Partial Deposit
If partial amount of rent is posted into registry without valid Motion to Determine Rent, some Judges have:
Ordered balance to be placed into court registry by a fixed date or a default judgment will enter.
Entered default judgment.

20. Scheduling the Trial Trial is properly scheduled when:
Additional accrued rent due to be deposited in the registry, if trial is set for the next month
Judges have commonly limited continuances, Summary Procedure, potential waste and rent loss where Tenant in possession
Trial is properly scheduled when:
Tenant deposited the accrued rent and answered the Complaint for Eviction.
Tenant’s answer alleges payment of the rent.

21. Mediation Purposes of Mediating Eviction Cases Venting
Clarifying Issues
Creating Alternatives
Inspiring Humanity
Reducing Trauma

22. Conflict Resolution
If all parties are not present some Judges wait at least 20 minutes, as parties are often late, parking etc. and then take uncontested evictions first.
At the outset, some judges ask the Tenant “Have you paid the rent?” and,
If the answer is NO, absent deposit of accrued rent, some judges will enter default eviction judgment.
If the rent is fully paid, or a deposit is in the registry, some judges will attempt to equitably resolve the case without trial.
Some Judges ask the parties, “Have you had a chance to talk?” If the answer is NO, give parties a brief opportunity to discuss the case outside the courtroom and,
Before beginning trial, ask Tenant if they wish to stay, have vacated or request time to vacate. Since this is often the case, the Judge can order the Tenant to vacate on a fixed date.

23. Settling the Eviction Case
If mediation is delayed Court may condition mediation on rent deposit and cancel mediation and default Tenant if continuing accrued rent is not deposited.
2 common types of Stipulations:
1. The Pay and Stay Stipulation whereby the Landlord and Tenant work it all out.
2. The Stipulation to Recover Possession whereby the Tenant agrees to leave at a fixed date, payment may be a condition.
Note on Stipulations –
Some Judges have:
Refused to sign stipulations that continue on once the Tenant gets caught up; or,
Require the Tenant to be served with a new 3 day notice and/or posting of the notice of default.

24. Conducting the Hearing
Setting the Stage
Courtroom or Chambers
Judicial Participation
Questioning by the Court
Raising Issues
Notices and Defenses

25. To: Public Housing Tenant 100 Elm Street, Anycity, Fl 33333
You are hereby noticed that you failed to pay your portion of the rent due on Jan. 1, 2015 and Dec. 1, Rent is $ per month. You have until January 6, 2015, to pay a total of $1, or quit the premises or you will be evicted.
Landlord Elm Street Anycity, Fl

26. Condominium Assn. Eviction
§ (11)
Condo Assn. may demand tenant to pay monetary obligation of delinquent owner
Tenant may deduct payment to Condo. Assn. from rent due landlord
Tenant immune from eviction or retaliation by Landlord

27. The Sunset of Federal Protection
Protecting Tenants at Foreclosure Act of 2009, 12 U.S.C. § 5220, a tenant under a “bona fide” residential lease shall be afforded at least ninety days notice to vacate following the foreclosure of a “federally-related mortgage loan.”

28. Defenses to Eviction Acceptance of Rent Oral Agreement
Waiver
Oral Agreement
Cure of Violation
Removal of Guest or Pet
Repair of Premises
Substantial Noncompliance
Retaliatory Eviction

29. Mobile Home Evictions MHP Ownership Eviction Safeguards
Corporation owns the land comprising the MHP and leases individual lots
Eviction
Nonpayment and Reinstatement
Code and Rule Violations
Safeguards
Land Use Evictions
Tenants Compensation and Challenge

30. Judgment for Possession
Persons to be Evicted
Tenants Excluding Guests
Description of Property
Address
Apartment Number
Time for Execution
Costs

31. Service of the Writ Sheriff’s Department Dispossession
Cost
Posting
Dispossession
Tenant’s Personal Property
Removal
Liability

32. Staying the Writ Tenant has filed bankruptcy, or
Some Judges have stayed the writ where the :
Tenant has filed bankruptcy, or
Landlord has accepted rent and settled with the Tenant
Motion to Stay Writ of Possession should immediately reviewed to determine if there is any merit, and if so, the Judge may stay the writ and notify the sheriff.
Some Judges have
Denied a stay ex parte.
Granted stay ex parte upon deposit.
Set an emergency hearing.

33. Disbursement from Registry
Trial Court may disburse funds from registry where actual danger of loss of the premises or other personal hardship resulting from the loss of rental income.
If there is an issue regarding entitlement to the Court Registry, the Judge may set this for a later trial.

34. Security Deposit Tenant’s Address
Landlord’s Notice of Intent to Claim Security Deposit
Delivery
Specificity
Time
Effect of Failing to Provide Notice
Waiver of claim
Availability of Damages

35. Eviction Damages Accrued Rent Damages to Premises Court Costs
Lost Rental Income
Late Charges
Damages to Premises
Cost to Repair
Replacement Costs
Court Costs

36. Attorney’s Fees Determination of Prevailing Party
Eviction and Security Deposit
Intertwined or Separate Claims
Potential Set-Off of Attorney’s Fees
Calculation of Rates, Hours
Expert Testimony
Multiplier
Necessary to Obtain Effective Counsel

37. Thank you for attending this presentation on Florida Residential Landlord-Tenant Law