Landlord/Tenant Presentation Florida Judicial College
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Transcript Landlord/Tenant Presentation Florida Judicial College
Landlord/Tenant Law and Procedure
Florida Judicial College
March, 2006
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 are hereby notified that you are indebted to
me in the amount of $1000.00 for the use of the
premises 1313 Mockingbird Lane, #4D, Itsa City,
Utopia County, Florida, now occupied by you
and that 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, to wit: on
or before the 14 the day of January, 2006.
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
Without deposing rent, the Tenant
answers an eviction complaint that
omits to attach any 3-day notice.
Tenant files answer alleging
conditions uninhabitable and asks
for a rent determination hearing.
5
Tenant files a notice of appeal
directed at your rent determination
order but doesn't post the rent
required by the order. Is Landlord
entitled to a default judgment of
eviction and a writ of possession.
6
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.
7
After having pled an invalid 3-day
notice, the landlord moves to amend
asserting that he furnished a later,
valid 3-day notice.
8
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.
9
January 1, 2006
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, 2006 and
Dec. 1, 2005. Rent is $750.00 per month. Your
portion is $95.00 per month. You have until
January 6, 2006, 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
10
May Landlord evict upon affidavit
attesting Tenant violated stipulation in
an eviction action? Same, but public
housing tenant?
11
Following an argument, girlfriend (owner)
hands boyfriend 3-day notice, he refuses.
May she evict?
Tenant, who has not made any deposit, files
one of the letters included in the packet.
12
Landlord and tenant (buyer) enter into an
“Agreement for Deed” Tenant defaults. May
Landlord evict?
Same as above, but the agreement states
that, upon default, buyer would be
considered a tenant paying rent.
13
Landlord is a corporation dissolved for
failing to pay annual fee.
Tenant joins the USAF after entering into
the lease and fails to pay rent. May the
landlord evict?
14
Days Rent Late in 2005
14
12
10
8
Month 1
6
Month 2
Month 3
4
2
0
1st Qtr
2nd Qtr
3rd Qtr
4th Qtr
15
16
Does the Landlord waive the right to insist
on timely payment by accepting late
payments?
Would an anti-waiver provision in the lease
preclude Tenant’s defense of waiver or
estoppel?
17
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
warning after receiving a NSF check from
Tenant?
18
Prior landlord waived by accepting late
partial payments. Is new landlord
estopped from eviction?
19
After furnishing 3-day notice, landlord
accepted one month’s rent from tenant
who was 2 months in arrears and sues to
evict.
20
21
22
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.
23
Jim Smith was the only tenant signing the
lease, does the evicting landlord have to
join Mary Smith, Jim’s wife, as a party?
24
Property manager sues on behalf of
landlord. Tenant files answer and deposits
amount due. May property manager evict?
25
.May tenant terminate lease if falling tree
damages screened-in porch?
26
May Landlord give 3-day notice without
filing eviction lawsuit to Tenant who
filed bankruptcy?
As above, but Landlord only has
telephone notice that Tenant has filed.
27
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.
28
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.
29
30
Notice of Code Violation
Dear Mr. Landlord,
Based on Tenant’s complaint and our inspection,
the unit located at 1313 Mockingbird Lane, #4D,
Itsa City, Florida, 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, 2006
31
Tenant’s Letter
Mr. Landlord
December 6, 2005
1313 Mockingbird Lane #3C
Itsa City, Florida 31313
Dear Landlord:
As we agreed, I am making substantial,
necessary repairs in lieu of this month's
rent.
Tenant
32
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 to the landlord specifying the
noncompliance and indicating the intention of
tenant not to pay rent by reason thereof. . . .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.
33
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.
34
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. . .
35
May lease properly provide that tenant
make all repairs and waive application
of all housing codes?
36
May new owner who acquired
property during tenancy evict
tenant?
37
May landlord disconnect utilities for two days
to effect repairs?
As in above but repairs are conducted on
Martin Luther King day.
38
May Tenant terminate the lease if
Landlord is unable to stop drug sales at
the apartment building?
39
May Landlord evict Tenant joins the USAF
after entering into the lease and fails to
pay rent?
As above, but Tenant continues to reside
in the apartment.
40
Landlord seeks to terminate lease on a 7 day
notice based on Tenant‘s dog.
As in above, but notice of first violation was
only oral warning.
As in above, but dog bit Landlord.
41
May Tenant be required to give notice
before vacating at termination of lease?
42
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.
43
44
Days Rent Late in 2005
14
12
10
8
Month 1
6
Month 2
Month 3
4
2
0
1st Qtr
2nd Qtr
3rd Qtr
4th Qtr
45
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.
46
Damages Calculations
Unpaid Rent (two months)
Vacant Unit (one month)
Interest on Unpaid Rent (10% per yr.)
Late Charges ($10.00 per day)
Interest on Late Charges (10% per yr.)
Replacement Carpeting
Replacement Washer/Dryer
Repair Door
Rat Traps
Total Damages
Less Security Deposit
Total Damage Claimed
$1000.00
$500.00
$25.00
$1000.00
$25.00
$2500.00
$900.00
$500.00
$50.00
$6500.00
-$500.00
$6000.00
47
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. . .
48
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, 2006
49
Defendant's Damages
Ambulance
Doctor
Medication
Hospital
Pain and suffering
Punitive damages
Paint
Labor (defendant)
$500.00
$1,000.00
$500.00
$500.00
$1,000.00
$2,000.00
$500.00
$500.00
Total $6,500.00
50
May a security deposit may be
used as rent?
Do the security deposits provisions
of Chapter 83 apply to public
housing authorities?
51
May the Landlord claim the
security deposit if he failed to
properly deposit it?
52
May landlord may keep security deposit
as liquidated damages if tenant leaves
early?
53
When is landlord obligated to
return the deposit?
May tenant who vacates early still
claim the security deposit?
If the tenant is evicted for not
paying rent?
54
If Landlord fails to timely claim the
security deposit, does he waive
damages?
55
May Landlord dispose of abandoning
tenant’s property?
56
If Landlord takes possession following a
3 month eviction, may he collect double
rent?
57
May Tenant recover security deposit
from new owner who did not obtain it
from old owner?
58
May commercial landlord evict if he does
not consent to the assignment?
59
Is the tenant liable for tears in screens, carpet
stains and other minor damages?
What is the measure of determining the
amount of damages to the unit?
60
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.
61
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. . .
62
Affidavit of Attorney’s Time
Description of Legal Service
Typing pleadings
Delivering pleadings to clerk for filing
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
63
64
Attorney’s Fee Calculation
30 hours x $250.00 = $7500.00
With a multiplier of 2
Total Fee = $15,000.00
65
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.
66
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?
67
Is prevailing party in required to file a
motion for attorney’s fees within 30 days
of judgment?
May Court award costs against a
defaulting tenant who did not file an
answer?
68
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?
69