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1 Landlord/Tenant Presentation Florida Judicial College March, 2007 Closing Arguments Counsel for Landlord – David Silverman Counsel for Tenant – Carmine.

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Presentation on theme: "1 Landlord/Tenant Presentation Florida Judicial College March, 2007 Closing Arguments Counsel for Landlord – David Silverman Counsel for Tenant – Carmine."— Presentation transcript:

1 1 Landlord/Tenant Presentation Florida Judicial College March, 2007 Closing Arguments Counsel for Landlord – David Silverman Counsel for Tenant – Carmine Bravo

2 2 Section – Termination of rental agreement (5)... The court may not set a date for mediation or trial unless the provisions of s (2) [rent deposit] have been met, but shall enter a default judgment for removal of the tenant with a writ of possession to issue immediately if the tenant fails to comply with s (2)...

3 3 3 Day Notice Dear Tenant, You owe me $ for rent on the house at 1313 Mockingbird Lane and I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice which would be on or before January 16, Landlord

4 4 Section – Defenses to action for rent or possession procedure (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.

5 5 Tenant’s Letter January 16, 2007 Dear Landlord, Because of the roof leak you should have fixed, my child got real sick and I had to stay home and lost work. That’s why I can’t pay the full month’s rent. Tenant

6 6 Your Decision – Rent Deposit 3-Day Notice Evict – 1 Dismiss – 2 More Information – 3

7 7 Without depositing rent, Tenant moves for dismissal of eviction complaint that omits to attach any 3 day notice. Tenant files answer alleging conditions uninhabitable and asks for a rent determination hearing.

8 8 Tenant files a notice of appeal directed at your rent determination order but doesn't post the rent required by the order.

9 9 Landlord files eviction complaint based on 3 day notice that demanded rent, water charges and late fees. Tenant moves to determine rent and denies owing water charges.

10 10 After having pled an invalid 3-day notice, the landlord moves to amend asserting that he furnished a later, valid 3-day notice.

11 11 In response to landlord’s suit to evict, tenant files a counter-claim to quiet title and for damages in excess of $15, Tenant moves to dismiss or transfer for lack of jurisdiction.

12 To:Public Housing Tenant 100 Elm Street Anycity, Fl You are hereby noticed that you failed to pay your portion of the rent due on Jan. 1, 2007 and Dec. 1, Rent is $ per month. Your portion is $95.00 per month. You have until January 6, 2007, to pay a total of $1, or quit the premises or you will be evicted. From:Landlord 110 Elm Street Anycity, Fl 33333

13 13 Landlord and Tenant enter into stipulated judgment in an eviction action. Landlord submits affidavit that Tenant violated the agreement and seeks writ of possession, without notice to Tenant. Evict? Same, but public housing tenant?

14 14 Boyfriend and girlfriend living together, argue. He's steamed and hands her a 3 day notice to leave his house. She refuses. He brings an eviction action.

15 Angelina is fed up with Brad’s stuff all over the place and moves out. Angelina quitclaims her interest in the house to Billy Bob, notifying Brad of the transaction and telling him to pay Billy Bob. Two months later, Billy Bob sues to evict Brad for non-payment of rent when Brad fails to deliver the mortgage payment amount to Billy Bob. There is no evidence of a LL-T relationship here, so Chapter 83 and summary procedure are not available....

16 16 Landlord and tenant are sisters whose deceased mother left them the residence. The sisters signed an agreement whereby one would live in the residence and pay rent to the other, the resident sister defaulted and the other sued to evict.

17 Landlord and tenant enter into an “Agreement for Deed” whereby the landlord agrees to convey title upon the tenant making 5 years of monthly payments. Tenant defaults and Landlord sues to evict. Same as above, except that the agreement provided that if buyer defaulted, he would be considered a tenant whose payments would be considered rent.

18 18 Landlord, a member of the armed services, has just been posted overseas, gives a power of attorney to his brother. Brother sues to evict and upon tenant failing to answer requests a default judgment. Landlord is a corporation dissolved for failing to pay annual fee.

19 19 Tenant has filed bankruptcy. May Landlord give 3-day notice without filing eviction lawsuit? As above, but Landlord only has telephone notice that Tenant has filed.

20 20 Days Rent Late in 2006

21

22 22 Your Decision – Waiver Evict – 1 Dismiss – 2 More Information – 3

23 23 Tenant has chronically paid late and Landlord has always accepted – until this month. Has Landlord waived right to insist on timely payment? Would an anti-waiver provision in the lease preclude Tenant’s defense of waiver or estoppel?

24 24 What is the significance, if any, of the friendship of Landlord and Tenant on Tenant’s waiver claim? What is the significance of the Landlord’s receiving a NSF check from Tenant?

25 25 Prior landlord waived by accepting late partial payments. Is new landlord estopped from eviction?

26 26 After furnishing 3-day notice, landlord accepted one month’s rent from tenant who was 2 months in arrears. Landlord sued to evict asserting that he had accepted only past due rent and would have refused current rent.

27 27

28 28 Tenant’s Letter December 6, 2006 Dear Landlord, As we agreed, I will fix the roof leaks instead of paying January’s rent. Tenant

29

30 30 Lease Provision  The parties’ entire agreement is contained in this written lease. No modification of the terms of this lease may be made orally. No oral agreement to change to term of this lease is valid. Neither party will claim any such oral modification or oral agreement.

31 31 Your Decision – Oral Agreement Evict – 1 Dismiss – 2 More Information – 3

32 32 Jim Smith and his wife signed the lease. In the eviction lawsuit, the landlord named Jim Smith. The landlord established non-payment of rent. May the Court evict both?

33 33 Property manager sues on behalf of landlord. Tenant files answer alleging an inability to pay rent and deposits amount due. Property manager moves for default judgment of eviction. Same as the foregoing except Tenant alleges a defense of retaliatory eviction.

34 34 New owner acquired the property through a mortgage foreclosure sale and sues to evict tenant. If acquired by purchase?

35 35 Tree falls on the residence and damages screened-in porch. Tenant sues to terminate lease. As in above, but Tenant paid full rent for two months afterward.

36 36 Section – Landlord’s Obligation (1) The landlord at all times during the tenancy shall: (a) Comply with the requirements of applicable building, housing, and health codes; (2)(c) Nothing in this part authorizes the tenant to raise noncompliance by the landlord with this subsection as a defense to an action for possession under s

37 37 Section – Right of Action If either the landlord or the tenant fails to comply with the requirements of the rental agreement or this part, the aggrieved party may recover the damages caused by the noncompliance.

38 38

39 39 Notice of Code Violation Dear Mr. Landlord, Based on Tenant’s complaint and our inspection, the house at 1313 Mockingbird Lane is in violation of city building codes specifying adequate plumbing and roofing. If these conditions are not corrected in 10 days you will face fines of up to $ per day thereafter and other penalties. The Building Department January 8, 2007

40 40 Tenant’s Letter December 23, 2006 Dear Landlord, If you don’t fix the roof leaks and get rid of the rats within a week, I will withhold rent. We shouldn’t have to pay for a place we can’t live in. Happy holidays. Tenant

41 41 Section 83.60(1)  The defense of material non-compliance with s (1) may be raised by the tenant if 7 days have elapsed after delivery of written notice by the tenant  A material noncompliance with s (1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent and the court....shall determine the amount, if any, the rent is to be reduced to reflect the diminution in value of the dwelling unit.

42 42 Section – Landlord’s Obligation (1) The landlord at all times during the tenancy shall: (a) Comply with the requirements of applicable building, housing, and health codes; (2)(c) Nothing in this part authorizes the tenant to raise noncompliance by the landlord with this subsection as a defense to an action for possession under s

43 43 Section – Retaliatory conduct (1) It is unlawful for a landlord...to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant...

44 44 Your Decision – Retaliation and Substantial Noncompliance Evict – 1 Dismiss – 2 Evict with Rent Reduction – 3 Dismiss with Rent Reduction – 4

45 45 May lease properly provide that tenant make all repairs and waive application of all housing codes?

46 46 Residential tenant has unusual allergic reaction to aged carpeting that landlord, despite due notice, fails to replace. May tenant terminate the lease? As in foregoing, but the landlord knew about tenant’s condition at the time the lease was signed.

47 47 In order to effect needed repairs, landlord disconnects utilities for two days. Tenant sues for 3 months rent. Assume that landlord timed repairs and disconnection for Martin Luther King day when tenant had celebration planned.

48 48 Despite repeatedly calling the police Landlord in unable to stop ongoing drug sales at the apartment building. May tenant terminate the lease?

49 Tenant joins the USAF after entering into the lease and is posted to a nearby air force base. Tenant fails to pay rent and moves to stay the proceedings and terminate the lease upon being sued for eviction and back rent. As above, but Tenant is posted to a nearby air force base and could continue to reside in the apartment.

50 Landlord seeks to terminate lease on a 7 day notice based on Tenant's intentional destruction of other Tenant's dog. As in above, but dog attacked the Tenant. Landlord seeks to terminate lease on 2nd curable violation within year based on oral warning about first violation.

51 51 Lease requires notice before the tenant may vacate at the end of the term and provides for liquidated damages for tenant failing to give notice.

52 Mobile Home Park rented both the home and the lot to the tenant who defaulted. Mobile Home park sued to evict under Chapter 723. Same as above, but Mobile Home park rented tenant only a recreational vehicle. Marina sued to evict a house boat that tenant was residing in.

53 53

54 54 Days Rent Late in 2006

55 55 Section – Tenant’s Obligation The tenant at all times during the tenancy shall: (1) Comply all obligations imposed upon tenants by applicable provisions of building, housing, and health codes; (6) Not destroy, deface, damage, impair or remove any part of the premises or property therein belonging to the landlord nor permit any person to do so.

56 56 Damages Calculations Unpaid Rent (two months) $ Vacant Unit (one month)$ Late Charges ($10.00 per day)$ Replacement Carpeting$ Replacement Washer/Dryer$ Repair Door$ Total Damages$ Less Security Deposit-$ Total Damage Claimed$

57 57 Section 83.49(3)(a) ... If the landlord fails to give the required notice within the 30 day period, he or she forfeits the right to impose a claim on the security deposit. Section 83.49(3)(c)  If either party institutes an action... To adjudicate the party’s right to the security deposit, the prevailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney...

58 58 Security Deposit Notice Dear Tenant, I intend to claim your $ security deposit to repair the damages to the door and the appliances unless you object in writing within 15 days from receiving this notice. Landlord February 10, 2007

59 59 Defendant's Damages  Ambulance$  Doctor$1,  Medication$  Hospital$  Pain and suffering$1,  Punitive damages$2,  Paint$  Labor (defendant)$ Total$6,500.00

60 60 Your Decision – Damages Award to Landlord > $3000 – 1 Award to Landlord < $3000 – 2 No Award – 3 Award to Tenant > $3000 – 4 Award to Tenant < $3000 – 5

61 61 Do the security deposits provisions of Chapter 83 apply to public housing authorities?

62 62 If the tenant vacates prior to termination of the lease, may the tenant still claim the security deposit? Unless claimed by landlord, when is landlord obligated to return the deposit?

63 63 May the landlord maintain an action for damages even if the landlord does not give the required notice?

64 64 What must the landlord’s notice claiming the security deposit state? If the tenant fails to timely object to the landlord's claim, may the tenant still maintain a damages claim?

65 65 Does the landlord have to give notice of a claim on the security deposit even if the tenant has been evicted for damaging the property?

66 Are the Landlord's notice of claim on the security deposit, the tenant's objection and the tenant's notice of vacating required to be sent by certified mail? May Landlord retain a portion of security deposit on default as liquidated damages if the lease clause permits?

67 67 Tenant leaves lease early and mails landlord letter with his new address 10 days before he leaves. Landlord omits to send notice of claim to tenant and tenant claims security deposit.

68 68 Landlord sends a notice of claim on the security deposit, together with a check for the amount not deducted for damages. Tenant cashes the check and sues for the balance.

69 69 Landlord returns security deposit following termination of tenancy. Tenant sues for interest and attorney’s fees.

70 70 Tenant sued for the security deposit upon termination of the lease. The landlord, who purchased the premises during the tenancy, did not receive any security deposit from the prior owner.

71 71 Landlord demands double-rent upon expiration of lease. Is tenant required to pay it? After tenant abandoned the premises, the landlord disposed of tenant’s property. May tenant maintain claim for the value of his property?

72 72 May Landlord obtain a damages judgment if tenant appeared and defended, even if damages not claimed in complaint? May Landlord recover double rent from a tenant for three month period that eviction action took?

73 73 May Landlord evict Tenant who he claims is intentionally wasting electricity and water, utilities for which the Landlord is liable? As above, but before suing, Landlord turns off utilities?

74 74 Absent lease provision (or oral lease) Tenant seeks to sublet. Landlord object and sues to evict?

75 May tears in screens, carpet stains and other minor damages be classified as ordinary wear and tear for which the tenant is not liable? What is the measure of determining the amount of damages to the unit? May the court infer the value of a used appliance, carpeting, etc. from the purchase price of a new one?

76 76 Landlord accepts rent from assignee but later sues to evict asserting he never consented to the assignment, as required by the lease. As above, but Landlord sues original tenant for damages when assignee fails to pay rent.

77 77 Section – Attorney’s Fees  In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover reasonable court costs including attorney’s fees, from the nonprevailing party.

78 78 Section 83.49(3)(a) ... If the landlord fails to give the required notice within the 30 day period, he or she forfeits the right to impose a claim on the security deposit. Section 83.49(3)(c)  If either party institutes an action... To adjudicate the party’s right to the security deposit, the prevailing party is entitled to receive his or her court costs plus a reasonable fee for his or her attorney...

79 79 Affidavit of Attorney’s Time Description of Legal ServiceHours Typing pleadings4 Delivering pleadings to clerk1 Taking telephone messages3 Talking to client and witnesses10 Researching law6 Photocopying2 Preparing for court3 Court hearings11 Total30

80 80

81 81 Attorney’s Fee Calculation  30 hours x $ = $  With a multiplier of 2 Total Fee = $15,000.00

82 82 Contract for Legal Services  In lieu of payment from Legal Aid, Inc. for this case, attorney may retain any amount that may be recovered for attorney’s fees.

83 83 Your Decision – Attorney’s Fees Multiplier – 1 Award > $3000 – 2 Award < $3000 – 3 No Award – 4

84 84 The landlord succeeds on the eviction claim and the tenant recovers the disputed security deposit. Who is prevailing party? May the Court find there is no prevailing party?

85 85 Prevailing party in eviction and damages fails to file a motion within 30 days of judgment. May Court award costs against a defaulting tenant who did not file an answer?

86 86 Should the court award a multiplier for the tenant’s attorney? The landlord's attorney? Should the court award attorney’s fees for clerical or ministerial activities performed by a lawyer?

87 87 Thank you for participating in our presentation


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