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

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

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

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.

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.

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

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.

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. . .”

§ 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.

§ 34.011   (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. . .

§ 26.012   (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.

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

§ 83.60 – 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.

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

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

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

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

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

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.

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.

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

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.

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.

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

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, 2014. Rent is $750.00 per month. You have until January 6, 2015, to pay a total of $1,500.00 or quit the premises or you will be evicted. Landlord 110 Elm Street Anycity, Fl 33333

Condominium Assn. Eviction § 718.116(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

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.”

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

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

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

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

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.

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.

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

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

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

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