Presentation on theme: "Florida Residential Landlord-Tenant Law"— Presentation transcript:
1Florida Residential Landlord-Tenant Law Presentation toBrevard County ClerksJudge David E. Silvermandavidsilverman.com
2Commencing the Eviction Action The Decision to EvictPreparing and Filing the LawsuitLease or TenancyPartiesNoticeService of ProcessIndividual or Substitute ServicePosting
3Residential Eviction Costs Filing Fee – Issuance of SummonsPosting of SummonsExecution of WritAttorney’s FeesRepairs for Damages to PremisesIncreased Insurance PremiumsLoss of Rental Income
4Expediting 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.
5Most 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.
6Challenge to Jurisdiction Judicial Review of Tenant’s AnswerJurisdictionCounterclaim in Excess of $15,000Denial of Landlord/Tenant RelationshipClaim of Right, Title or Equitable InterestTransfer to Circuit Court
7Claim 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.
8Domestic TenancyAngelina 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.
12Tenant Letters Loss of Employment Debts and Expenses Health Problems DependentsLack of Family SupportDeficient Contributing ConditionImminent 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.
14Motion to Determine Rent Sufficiency of MotionTenant’s motion alleges that the rent asked for in the complaint in “In error” and attaches documentationImproper where Tenant only asserts, “I disagree with the amount owed”Hearing to Determine RentTenant’s right to challenge amountCourt to determine amount of deposit
15Defense of Payment Sufficiency of Pleading Defense of Payment Payment Defense IssuesAmount of RentPerson Receiving PaymentOral AgreementServices In LieuDeferral of Rent
16Motion to Dismiss Improper 3-Day Notice Improper parties a. “Court observed” holidaysb. “Rent” in the 3-Day Notice.c. Mailed notice - 5 additional daysImproper partiesa. Tenants on 3-Day Noticeb. Improper or Fictitious LandlordFailure to give 7-Day Notice of Non ComplianceShort Notice of Non Renewal
17Prior Views of Deficiencies Judges have previously adopted different views of facial deficiencies in the 3 day noticeFatal even without depositDoes not prevent default based on failure to deposit accrued rentRequires hearing, upon deposit by deadline, if potentially prejudicial or extenuating circumstances
18Judicial Response Do Judges Exercise Discretion? Order for Hearing Interpreting Pro Se PleadingsScheduling HearingFacilitate or Delay Execution of WritOrder for HearingDeposit RequiredDefault After Scheduling HearingMandating Mediation
19Partial DepositIf 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.
20Scheduling the Trial Trial is properly scheduled when: Additional accrued rent due to be deposited in the registry, if trial is set for the next monthJudges have commonly limited continuances, Summary Procedure, potential waste and rent loss where Tenant in possessionTrial is properly scheduled when:Tenant deposited the accrued rent and answered the Complaint for Eviction.Tenant’s answer alleges payment of the rent.
22Conflict ResolutionIf 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.
23Settling 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.
24Conducting the Hearing Setting the StageCourtroom or ChambersJudicial ParticipationQuestioning by the CourtRaising IssuesNotices and Defenses
25To: 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
26Condominium Assn. Eviction § (11)Condo Assn. may demand tenant to pay monetary obligation of delinquent ownerTenant may deduct payment to Condo. Assn. from rent due landlordTenant immune from eviction or retaliation by Landlord
27The 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.”
28Defenses to Eviction Acceptance of Rent Oral Agreement WaiverOral AgreementCure of ViolationRemoval of Guest or PetRepair of PremisesSubstantial NoncomplianceRetaliatory Eviction
29Mobile Home Evictions MHP Ownership Eviction Safeguards Corporation owns the land comprising the MHP and leases individual lotsEvictionNonpayment and ReinstatementCode and Rule ViolationsSafeguardsLand Use EvictionsTenants Compensation and Challenge
30Judgment for Possession Persons to be EvictedTenants Excluding GuestsDescription of PropertyAddressApartment NumberTime for ExecutionCosts
31Service of the Writ Sheriff’s Department Dispossession CostPostingDispossessionTenant’s Personal PropertyRemovalLiability
32Staying the Writ Tenant has filed bankruptcy, or Some Judges have stayed the writ where the :Tenant has filed bankruptcy, orLandlord has accepted rent and settled with the TenantMotion 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 haveDenied a stay ex parte.Granted stay ex parte upon deposit.Set an emergency hearing.
33Disbursement 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.
34Security Deposit Tenant’s Address Landlord’s Notice of Intent to Claim Security DepositDeliverySpecificityTimeEffect of Failing to Provide NoticeWaiver of claimAvailability of Damages
35Eviction Damages Accrued Rent Damages to Premises Court Costs Lost Rental IncomeLate ChargesDamages to PremisesCost to RepairReplacement CostsCourt Costs
36Attorney’s Fees Determination of Prevailing Party Eviction and Security DepositIntertwined or Separate ClaimsPotential Set-Off of Attorney’s FeesCalculation of Rates, HoursExpert TestimonyMultiplierNecessary to Obtain Effective Counsel
37Thank you for attending this presentation on Florida Residential Landlord-Tenant Law