Transcript Landlord/Tenant Presentation Florida Judicial College

Landlord/Tenant Presentation
Florida Judicial College
March, 2007
Closing Arguments
Counsel for Landlord – David Silverman
Counsel for Tenant – Carmine Bravo
1
Section 83.56 – Termination of rental
agreement
(5) . . . The court may not set a date for
mediation or trial unless the
provisions of s. 83.60(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.
83.60(2). . .
2
3 Day Notice
Dear Tenant,
You owe me $1000.00 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,
2007.
Landlord
3
Section 83.60 – 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.
4
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
5
Your Decision – Rent Deposit
3-Day Notice
Evict – 1
Dismiss – 2
More Information – 3
6
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.
7
Tenant files a notice of appeal
directed at your rent determination
order but doesn't post the rent
required by the order.
8
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.
9
After having pled an invalid 3-day
notice, the landlord moves to amend
asserting that he furnished a later,
valid 3-day notice.
10
In response to landlord’s suit to evict,
tenant files a counter-claim to quiet title
and for damages in excess of $15,000.00.
Tenant moves to dismiss or transfer for
lack of jurisdiction.
11
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, 2007 and Dec. 1,
2006. Rent is $750.00 per month.
Your portion is $95.00 per month.
You have until January 6, 2007, to
pay a total of $1,500.00 or quit the
premises or you will be evicted.
From:Landlord
110 Elm Street
Anycity, Fl 33333
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?
13
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.
14
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. . . .
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.
16
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.
Landlord is a corporation dissolved for
failing to pay annual fee.
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.
18
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.
19
Days Rent Late in 2006
14
12
10
8
Month 1
6
Month 2
Month 3
4
2
0
1st Qtr
2nd Qtr
3rd Qtr
4th Qtr
20
Your Decision – Waiver
Evict – 1
Dismiss – 2
More Information – 3
22
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?
23
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?
24
Prior landlord waived by accepting late
partial payments. Is new landlord
estopped from eviction?
25
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.
26
27
Tenant’s Letter
December 6, 2006
Dear Landlord,
As we agreed, I will fix the roof leaks
instead of paying January’s rent.
Tenant
28
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.
30
Your Decision – Oral Agreement
Evict – 1
Dismiss – 2
More Information – 3
31
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?
32
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.
33
New owner acquired the property
through a mortgage foreclosure sale
and sues to evict tenant. If acquired
by purchase?
34
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.
35
Section 83.51 – 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. 83.59.
36
Section 83.55 – 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.
37
38
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 $100.00
per day thereafter and other penalties.
The Building Department
January 8, 2007
39
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
40
Section 83.60(1)
 The defense of material non-compliance with s.
83.51(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. 83.51(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.
41
Section 83.51 – 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. 83.59.
42
Section 83.64 – 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. . .
43
Your Decision – Retaliation and
Substantial Noncompliance
Evict – 1
Dismiss – 2
Evict with Rent Reduction – 3
Dismiss with Rent Reduction – 4
44
May lease properly provide that tenant
make all repairs and waive application
of all housing codes?
45
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.
46
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.
47
Despite repeatedly calling the police
Landlord in unable to stop ongoing
drug sales at the apartment building.
May tenant terminate the lease?
48
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.
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.
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.
51
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
Days Rent Late in 2006
14
12
10
8
Month 1
6
Month 2
Month 3
4
2
0
1st Qtr
2nd Qtr
3rd Qtr
4th Qtr
54
Section 83.52 – 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.
55
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
$1000.00
$500.00
$1000.00
$2500.00
$900.00
$500.00
$6400.00
-$500.00
$5900.00
56
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. . .
57
Security Deposit Notice
Dear Tenant,
I intend to claim your $500.00
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
58
Defendant's Damages








Ambulance
Doctor
Medication
Hospital
Pain and suffering
Punitive damages
Paint
Labor (defendant)
Total
$500.00
$1,000.00
$500.00
$500.00
$1,000.00
$2,000.00
$500.00
$500.00
$6,500.00
59
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
60
Do the security deposits provisions of
Chapter 83 apply to public housing
authorities?
61
Unless claimed by landlord, when
is landlord obligated to return the
deposit?
If the tenant vacates prior to
termination of the lease, may the
tenant still claim the security
deposit?
62
May the landlord maintain an action
for damages even if the landlord
does not give the required notice?
63
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?
64
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?
65
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?
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.
67
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.
68
Landlord returns security deposit following
termination of tenancy. Tenant sues for
interest and attorney’s fees.
69
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.
70
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?
71
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?
72
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?
73
Absent lease provision (or oral lease)
Tenant seeks to sublet. Landlord object
and sues to evict?
74
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?
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.
76
Section 83.48 – 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.
77
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. . .
78
Affidavit of Attorney’s Time
Description of Legal Service
Typing pleadings
Delivering pleadings to clerk
Taking telephone messages
Talking to client and witnesses
Researching law
Photocopying
Preparing for court
Court hearings
Total
Hours
4
1
3
10
6
2
3
11
30
79
80
Attorney’s Fee Calculation
 30 hours x $250.00 = $7500.00
 With a multiplier of 2
Total Fee = $15,000.00
81
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.
82
Your Decision – Attorney’s Fees
Multiplier – 1
Award > $3000 – 2
Award < $3000 – 3
No Award – 4
83
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?
84
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?
85
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?
86
Thank you for participating
in our presentation
87