Note: leases do not have to be witnessed or notarized. Once signed, leases are not rescindable. There is no 3-Day cancellation period.
Form of Lease
Written: The FAR\BAR lease is designed to be equitable between landlord and tenant, but is too tenant friendly for small landlords. Form leases often provide tenants extra rights that they would not otherwise have. Be sure your lease is specifically a Florida lease. You are governed by Florida law.
Oral: If you do not have a written lease, you have an oral lease under the terms provided in Florida Statutes Chapter 83. The term of the lease is the same as the rental payment period. i.e. rent paid monthly – month top month lease. Rent paid weekly- week to week lease. Note: make it a “business practice” to give a receipt for rent payments. That way the tenant’s lack of a receipt is proof of non-payment.
Name of landlord
Name of Tenant. If you add the tenant's heirs, successors and assigns, the lease continues post mortem, otherwise it expires upon death.
Amount of rent
Granting clause: Landlord hereby leases to tenant
Late Fees \ Security Deposit \ Last Month’s Rent \ Bad Check Fee: are not provided by law, but may be provided by lease. In other words there is no restriction on such fees. You can include such fees in the 3-Day Notice if categorized “as additional rent” in the lease.
Repair: single family or duplex: may allocate repair responsibilities to tenant. Otherwise the landlord is legally obligated to keep property up to code. See Section 83.51 Landlords responsibility to maintain dwelling unit. Note: air-conditioning is not required. Considerations: costs of repairs to landlord, verses costs of damage to property by tenant attempting repairs.
Jury Waiver: have one.
Assign ability: if you do not state not assignable the tenant may assign or sublease.
Notice to Vacate: §83.575 a lease of specific duration may provide that tenant must provide a notice of non-renewal up to 60 days prior to lease termination. The lease may provide for damages if the tenant fails to give notice. Tenant’s holding over with the landlord’s permission are liable for an extra months rent.
Prohibited Provisions in Rental Agreements .S. §83.47
Exculpatory Clause: a provision that purports to preclude any of the rights and remedies of Chapter 83 or to limit landlord’s liability to tenant “under law” is unenforceable. A party may recover any actual damages as a result to such provision F.S. § 83.47(2
Exculpatory Clause deemed unconscionable and landlord held liable for actual damages caused by leak in Chancellor v. Garrett, 2 Fla L. Weekly Supp 125a, Escambia County 1993.
See Ray v. Tampa Windridge Assoc 596 So.2d 676 (2nd DCA 1991) where a liability waiver for defective locks was voided where tenant was raped because of defective door lock.
But see Lockamy v. Byrne 474 So.2d 372 (1st DCA 1985) clause relieving the landlord of any liability for personal injuries suffered on the premises was not declared unconscionable.
A condo lease providing that acceptance of late rent would NOT constitute waiver of time of the essence provision was upheld by the 1st Circuit court of Appeal in Philpot v. Bouchelle 411 So.2d 1341 (1982)
A clause requiring tenant to vacate the premises by 5:00 pm on the day he received a demand for payment was ruled void by a county court in Bunton v. Powell 7 Fla L. Weekly Supp 739 (Escambia County 2000).
A clause reducing a notice to cure from seven to five days was ruled void by a county court in TCY Inc. v. Johnson, 3 Fla L. Weekly Supp 72 (Dade 1995)
A purchase agreement provided that the seller could evict the buyer if buyer defaulted on a payment was voided in Purcell v. Williams, 511 So.2d 1080 (1st DCA 1987). Seller was required to file a foreclosure to recover possession.
A provision permitting the landlord to terminate the tenancy upon 30 days notice in the first 90 days of a year lease was voided as conflicting with 83.56(2) notice of non-compliance provisions. York v. Fleagane, 7 Fla L. Weekly Supp. 287 (Broward 1999).
Landlord’s imposition of multiple late fees and stacking late fees where lateness extended into subsequent months deemed unconscionable in Buckholtz v. King, 17 Fla. L. Weekly Supp 1258 a Broward 2010.
Lease term permitting landlord to ulilaterally change “house rules” deemed unconscionable in Arbor Land Trust v. Rozier, 5 Fla L. Weekly Supp 21b, Alachua County 1997.
Forfeiture of Security Deposit Upon Breach: enforceable if found to be liquidated damages, not enforceable if found to be a penalty clause. The larger the deposit, the less likely to be enforced. The earlier the breach, the more likely to be enforced. Inequitable, will not be enforced. Forfeiture clause ruled inconscionable Imbimbo v. Volusia Realty Assocs, 20 Fla, Supp. 2d 100 (Volusia County 1986); Morkin v. Dulaire, 13 Fla. L. Weekly Supp 1228a (Broward County, 2006).
A utility company or even a municipality providing water a sewer services may not refuse service or discontinue service to either the owner or a prospective tenant due to an unpaid utility bill where service was in the name of a prior tenant.
Florida Statutes §180.135 provides
Utility Services; refusal or discontinuance of services for nonpayment of service charges by former occupant of rental unit prohibited; unpaid service charges of former occupant not to be basis for lien against rental property, exception
(1)(a) any other provision of the law to the contrary notwithstanding. No municipality may refuse services or discontinue utility, water, or sewer service to the owner of any rental unit or to a tenant or prospective tenant of such rental unit for nonpayment of service charges incurred by a former occupant of the rental unit; any such unpaid service charges incurred by a former occupant will not be the basis for any lien against the rental property or legal action against the present tenant or owner to recover such charges except to the extent that the present tenant or owner has benefited directly from the service provided to the former occupant.
(b) This section applies only if the former occupant of the rental unit contracted for such services with the municipality or if the municipality provided services with knowledge of the former occupant’s name and period the occupant was provided the services.
(4) In any case where a (residential) tenant does not make a payment for service charges to a municipality for the provision of utility, water, or sewer services, the landlord may thereupon commence eviction proceedings.
The statute applies if the utilities were in the name of the former tenant. If the landlord had provided the deposit for the utility account, the statute would still apply if the municipality was provided the name of the former tenant and informed of the time period of the tenancy. In the case of Berke v. City of Miami Beach, 568 So.2d 108 (Fla. 3rd DCS 1990) the City of Miami Beach file a lien against the rental property for the unpaid utility bills of the former tenants. The court of appeal ruled that the city could not impose a lien against the rental property. The fact that the tenants received utilities was deemed not to be a benefit to the landlord. The court stated that the city should have protected itself by requiring the landlord to co-sign for the utility account.
In another case, the water pipe broke while the landlord was in possession of the rental property resulting in a huge water bill which he did not pay. The landlord then rented the property to a tenant, who kept his water bill current. The city kept billing the landlord for the previous usage and when the landlord still did not pay this bill, the city cut off the water without any notice to the tenant. The court ruled that this violated due process. Davis v. Weir 497 F.2d 139 (5th Cir. 1974). Another court found that requiring a tenant to pay a former tenant’s water bill violated the equal protection clause Kroger v. Guarino, 412 F. Supp 1375 (E.D. Pa 1976) aff’d 549 F.2d 795 (3rd Cir. 1977). The court rejected these arguments in a case where the utilities were in the name of a husband, who left his wife and with an unpaid utility bill. The utility refused to let her open an account in her own name until the prior bill was paid. The court rejected her due process argument because she had enjoyed the benefit of the utilities. . The court rejected these arguments in a case where the utilities were in the name of a husband, who left his wife and with an unpaid utility bill. The utility refused to let her open an account in her own name until the prior bill was paid. The court rejected her due process argument because she had enjoyed the benefit of the utilities. Haynsworth v. South Carolina Elec. & Gas Co. 488 F. Supp 565 (D.S.C. 1979).
Fla. Stat. § 34.011 (1) (2): County Court has exclusive jurisdiction to hear evictions unless:
Amount in controversy exceeds the county court’s jurisdiction; or
The Circuit Court has jurisdiction pursuant to Fla. Stat §26.012 which would occur if the tenant filed a suit for injunctive relief in Circuit Court and the landlord filed a counterclaim for eviction.
If the landlord seeks an injunction against the tenant from damaging the leased premises he may petition either the Circuit or the County Court. The county court was given injunctive power in landlord tenant matters under F.S. 34.011(1)
Landlord Tenant Relationship
Where the tenant alleges possession based on right, title or interest other than a landlord tenant relationship, the Court is required to hold evidentiary hearing to determine existence of residential tenancy. Frey v. Livecchi, 852 So.2d 896 (Fla. 4th DCA 2003) and should NOT require the rent to be deposited in the court registry prior to such determination.
If there is no landlord-tenant relationship the Plaintiff is not entitled to summary procedure [ Grimm v. Huckabee, 891 So.2d 608 (Fla. 1st Dist. 2005)]
If possession is based on contract for deed, Plaintiff will be required to foreclose [Blanco v. Novoa, 854 So.2d 672 (Fla. 3rd DCA 2003). Grimm, Frey].
Before a landlord can file a suit for possession he must terminate the tenancy. The tenancy is terminated by the issuance of a notice to the tenant. There are three types of notices: 3 day notice to pay rent, 7 day notice of non-compliance, and 15 day notice of non-renewal.
PARTIES. Who may sign the notice terminating the tenancy ?
Agency: A court in New York held that where there is not specific proof of the attorney’s authority to bind the landlord the attorney was not authorized to sign the 3 day Notice, Seigel v. Kentucky Fried Chicken of Long Island Inc., 492 N.E. 2nd 390 (N.Y. 1986) Kwong v. eng, 583 N.Y.S. 2d 457 (App.Div. 1992)
b. FDCPA (F.S. 559.55- .785): An attorney issuing a 3 Day Notice falls under the Fair Depbt Collection Practices Act, requiring a 30 day notice. Ortiz v. Stork 14 Fla.L.Weekly Supp 90A (Broward County 2006).
Property Managers. Definition of: A property manager is defined as “one who is responsible for day-to-day management of residential rental property and includes corporate property management firms that have primary responsibility for rental and management of residential rental property and licensed real estate brokers and salesperson.” The Florida Bar re: Advisory Opinion-Non-Lawyer Preparation of and Representation of Landlord In Uncontested Residential Evictions, 627 So. 2d 485 (Fla. 1993):
NON-PAYMENT OF RENT -3 DAY NOTICE. A proper 3-day notice to evict is a condition precedent to eviction. Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998)
3 Day Notice Requirements. Fla. Stat. § 83.56(3) sets forth the requirements for the 3 Day Notice which are strictly construed. The notice must contain the following:
a. names of all of the occupants
b. Address of the property and the apartment number as it appears on the door. Address: Notice is defective if it does not contain description of dwelling by either address or legal description. Starkey v. Shealey, 4 FLW Supp. 878 (Fla. Broward Cty. Ct. 1997).
c. The amount of the rent due, exclusive of any other fees or charges. Failing to specify the amount of rent or stating the wrong amount owed. Kaplan v. McCabe, 532 So. 2d 1354 (Fla 5th DCA 1988); Palawski v. Duley, 50 Fla. Supp. 2d 207 (Fla. Manatee Cty. Ct. 1991)(failing to state the exact amount of rent due). Attorney fees, court costs and sheriff’s fees. Vinner v. Mason, 44 Fla. Supp. 2d 1990 (Fla. Pinellas Cty. Ct. 1990). Late fees. Barcelona West v. Ellis, 4 Fla. Supp. 2d 71 (Fla. Orange Cty. Ct. 1983); Hoche v. Berry, 5 Fla. Supp. 2d 110 (Fla. Orange Cty. Ct. 1981); Faj-hein v. Storr, 1 FLW Supp. 572 (Fla. Broward Cty. Ct. 1993). The lease did not contain any provisions relating to penalty payments for overdue rent. The court held that calling late charges “rent” in “House Rules” document executed simultaneously with lease not adequate to change nature of those charges. Arbor Land Trust v. Rozier, 5 Fla. L. Weekly Supp. 21 (Fla. Alachua Cty. Ct. 1997).Interest. Lawson v. Alvarez, 46 Fla. Supp. 2d 94 (Fla.Manatee Cty. Ct. 1990).
Notice may state that payment can only be made in cash [Moskowitz v. Aslam, 575 So. 2d 1367 (Fla. 3d DCA 1991)].
d. The date the notice is posted. Notice must be timely yet cannot be sent before rent is due. The Housing Authority of the City of St. Petersburg, Fla. v. Bullard, 45 Fla. Supp. 2d 130 (Fla. Pinellas Cty. Ct. 1990) (notice was improper where delivered to each public housing tenant on the first of the month even before the rent was due and the tenant had defaulted). Shapiro v. Puche, 1 Fla. L. Weekly Supp. 409 (Fla. Broward Cty. Ct. 1993) ( notice was defective because landlord served notice on day rent was due).
1. Posting: preferred method of delivery. It does not matter whether the tenant personally receives it or it is posted
2. Mailing: requires that that the landlord adds 5 working days to the 3 day compliance date. Investment and Income Realty, Inc. v. Bentley, 480 So. 2d 219 (Fla. 5th DCA 1985); Forest Glen Townhome Associate, Ltd. v. Gardner, 16 Fla. Supp. 2d 10 (Fla. Volusia Cty. Ct. 1985).
e. The date the 3 days are up. Failure to state date the rent must be paid. Garcia v. Ruiz 50 Fla.Supp. 2d 176 (Fla. Dade Cty Ct. 1991); LaBrada v. Barrios, 44 Fla. Supp. 2d 140 (Fla. Dade Cty. Ct. 1990) (notice that required “Rent” only or one that demands only that the tenant must vacate is defective).
f. The name of the landlord as it appears on the lease and or the deed. Lanldord business name that was neither a registered fictitious name nor an incorporated entity with the Florida Secretary of State deemed invalid MPI JACKSON ORLANDO LLC, vs. MYRICK, Orange County Court 2011, 19 Fla. L. Weekly Supp. 293c
g. The landlord’s address where the rent is to be remitted. If the landlord address is in a different county than the rental property or if the landlord’s address is a PO Box the landlord must add five working days to the due date ( some courts state that due date remains 3 days but the landlord should wait five additional days before filing See Dickerson v. England, Seminole County Court 2005, 13 Fla. L. Weekly Supp. 205.
h. The landlord’s phone number
Tender: The landlord may not refuse a tender of the full amount of the rent claimed before the 3 day notice expires. Curley v. McMillan, 4 FLW Supp. 475 (Fla. Escambia County Ct. 1996). The landlord may refuse personal checks, a partial tender, or a tender after the notice has expired. Acceptance of a tender cancels the 3 day notice even if the check bounces.
Waiver: Chronic acceptance of late payments could act to alter the date when rent is legally due. Heggs v. Haines City Community Dev. 2 Fla L.Weekly Supp 137 (10th Cir App. 1994) SeealsoRoyal Am. Mgt Inc. v. Kieth, 20 Fla. Supp. 2d 95 (Fla. Volusia County Court 1986).
Defective notices: If notice is defective, it should be dismissed without prejudice but without leave to amend. A new action must be filed after the notice is correctly served on tenant. Lawson v. Alvarez, 46 Fla. Supp. 2d 94 (Fla. Manatee Cty. Ct. 1990); Rolling Oaks Homeowners Assn. v. Dade County, 492 So. 2d 176 (Fla. Dade Cty. Ct. 1991).
Section 8 notice requirements: same as private housing except the LL must first give notice to the PHA before the LL may evict. 24 C.F.R. 882.21(c)(4).
LEASE VIOLATIONS / 7 DAY NOTICE TO CURE. F.S. 83.56(2)
There are two types of lease violation: curable and incurable.
a. Nature of violation:
shooting at the landlord
severely beating another tenant, Hew-Burg Realty v. Mocerino, 622 N.Y.S..2nd 197 Civ Ct. 1994)
constant public drunkenness, Taylor v. Gill Street Inv. 743 P.2d 345 (Alaska 1987)
Form of notice: Fla. Stat. § 83.56(2)(a) “You are advised that your lease is terminated effective immediately. You have 7 days to vacate the leased premises. This action is taken because (cite the violation).” The notice must state with specificity the alleged lease or rule violation. Failure to specify facts permitting eviction will deprive LL of possession. LL will be limited at trial to violation alleged in notice. Dade County v. Malloy, 27 Fla. Supp. 2d 1 (Fla. Dade Cty. Ct. 1988).
a. Nature of violation: all others
Form of Notice: specify the non-compliance, states that if the non-compliance is not corrected in 7 days from the date the notice is delivered the tenency will be terminated. State that if the violation cited is repeated within 12 months the tenancy will be terminated without further notice.
Fla. Stat. § 83.56 (2)(a) gives as an example:
i. Eviction upon a repeated violation:
(a) First violation must have occurred within previous 12 months.
(b) Tenant must have been given a specific written warning that a continued violation will be grounds for eviction. Royal Am. Mgt., Inc. v. Godfrey, 11 Fla. Supp. 2d 115 (Fla. Orange County Ct. 1985).
ii. Second violation must be similar to first violation. See, e.g. Id, where court held that LL failed to allege Asimilar violations’ because the three violations were not similar B driving vehicle in excess of speed limit, playing stereo loud and verbally abusing other tenants.
(a) No additional notice of violation is required.
Landlord’s acceptance of rent with knowledge of Tenant’s breach of lease by nonpayment constitutes waiver of Landlord’s right to proceed with eviction. Bodden v. Carbonell, 354 So. 2d 927 (Fla. 2d DCA 1978). i.e. acceptance of a rent payment voids your 3 day notice. Practice Tip: acceptance of a rent check still constitutes waiver even if the check bounces.
Section 8 rent: F.S. 83.56(5) makes an exception for acceptance of the government portion of Section 8 rent, which MAY be accepted without constituting waiver as long as the action is initiated with 45 days of non-compliance.
NON- RENEWAL/ 15 Day notice .
Oral Lease: The landlord may terminate the tenancy by issuing a notice of non-renewal. If there is no written lease Fla. Stat. § 83.57 provides that the lease period is determined by how often the rent is paid. Such “oral leases” will continue to renew until either the landlord or the tenant issues a notice of non-renewal. The timing of the notice is determined by the term of the oral lease.
a. Annually: 60 days’ notice prior to end of any year.
b. Quaterly: 30 days notice prior to the end of any quarterly period.
c. Monthly: 15 days notice prior to end of any monthly period.
d. Weekly: LL must give 7 days’ notice prior to end of any weekly period.
Written lease: if the lease contains a termination date then it terminates on that date without further notice. If the tenant is still in possession, he is a tenant at sufferance. If the landlord accepts a payment a new oral tenancy is created.
G. DEATH OF TENANT:§83.59(d) provides that if the only tenant has died, the rent is unpaid, and sixty days has elapsed and the landlord has not received a notice of probate, the landlord automatically recovers possession. Abandoned property shall be dealt with as per the lease terms or statute.
H. TRANSFER OF MILITARY TENANT: §83.682. Any service member may cancel the rental agreement upon at least 30 days written notice to landlord accompanied by written verification from their commanding officer of
Permanent transfer of more than 35 miles from the premises
Must be filed in the county where the premises are situated
The court shall advance the cause on the calendar
Proper signatories of notice of termination and complaint
Landlord. Failure to comply with fictitious name statute, Fla. Stat. § 865.09, deprives LL of standing to file suit.
Property manager - F.S. 83.59(2)
1) The property manager must have written authorization from the owner to complete, sign and file the eviction action for non-payment of rent.
2) Designated non-lawyer property managers may handle uncontested residential evictions on behalf of both individual and corporate Landlord’s.
3) If the eviction is for non-payment of rent and is UNCONTESTED, a property manager may: The Florida Bar re: Advisory Opinion-Non-Lawyer Preparation of and Representation of Landlord In Uncontested Residential Evictions, 627 So. 2d 485 (Fla. 1993)
draft and serve a 3 day notice;
sign and file a lawsuit, as landlord’s agent, for possession only, not money damages.
file a motion for default;
obtain a writ of possession.
Count I: Possession.
In all actions for possession, the LL is entitled to summary procedure as provided in Fla. Stat. § 51.011.
Tenant has 5 days to answer Count I for possession: Berry v. Clement, 346 So. 2d 105 (Fla. 2d DCA 1977), 5 days excludes weekends and legal holidays. Rule 1.090(a).
Service: Fla. Stat. § 48.183(1). If personal service can not be effected after at least 2 attempts at least 6 hours apart, the complaint may be posted conspicuously on the premises. Another copy of the complaint must be mailed to the tenant.
The summons must advise the tenant:
i. If tenant believes that the amount claimed in the complaint is inaccurate, T must file a motion with the clerk to determine the amount to be paid to the clerk.
ii. Documentation supporting tenants’s position must be attached.
iii. Summons details the separate response that must be filed and given to the landlord when there is a separate claim for money damages.
Count II: Rent; damages; attorney fees & costs
Tenant has 20 days to answer.
Service: must personally serve Fla. Stat. § 83.48.
c. If claim is less than $5,000.00, landlord can proceed under summary claims rules.
Summons: An eviction suit for possession and damages is bifurcated in that the possession count is expedited with only five days to respond, and the damages count has twenty days to respond.
A combination summons may be used [Stein v. Hubbs, 439 So.2d 1005 (Fla. 5th DCA 1983)] Although Palm Beach County requires separate summons.
Challenge of service is valid even if tenant has actual notice. Napoleon Broward Drainage Dist. v. Certain Lands, 160 Fla. 120, 33 So. 2d 716 (1948).
If tenant does not challenge method of service, it is waived. Hager v Illes, 431 So. 2d 1037 (Fla. 4th DCA 1983) (by answering summary eviction complaint and counterclaiming for affirmative relief and participating fully in trial on the merits and appealing, tenants waived any defects in service by posting).
. Must be filed within 5 days excluding weekends and legal holidays.
All defenses of fact or law must be contained in answer.
Equitable defenses may be permissible. Malt v. R.J. Mueller Enterprises, Inc., 396 So. 2d 1174 (Fla. 4th DCA 1981) (acceptance of late payments by LL.)
b. Motion to dismiss will not toll the time for answer. Crocker v. Diland, 593 So. 2d 1096 (Fla. 5th DCA 1992). Crocker emphasizes that permitting tolling of time by filing a motion to dismiss would undermine summary procedure set forth in Fla. Stat. § 51.011. All defensive motions shall be heard prior to trial and shall be filed also within 5 days of service.
. An informal answer such as a letter response still constitutes an answer. J.A.R.Inc. v. Universal American Realty Corp., 485 So. 2d 467 (Fla. 3d DCA 1986).
i. Answer sufficient even if signed by a corporate officer rather than an attorney.
ii. Letter to tenant’s counsel from insurance adjuster working for LL’s insurer which denied liability for tenant’s fire damage and advised that LL was put on notice of potential lawsuit was not a “paper in the action” so as to trigger rule of civil procedure requirement that default could be entered against LL by court only after LL had been given notice of tenant’s application for default, since insurance adjuster was neither party to suit nor counsel for party. Americana Associates, Ltd. v. Coleus, 697 So. 2d 573 (Fla. 5th DCA 1997).
. Answer deemed filed upon mailing: BLAKE, v. ADMANI, Miami-Dade County 2009 . Online Reference: FLWSUPP 1904BLAK, answer faxed to plaintiff attorney and mailed to court on the fifth day deemed timely filed.
Defenses to non-payment of rent F.S. §83.60
Payment of the rent. The tenant must provide some evidence that payment has been made. Unsupported allegations should not be sufficient.
Landlord non-compliance: Tenant has previously issued landlord a 7 day notice of non-compliance under 83.51(1) which “ripened” before the landlord’s 3 day notice. Tenant must move for a rent determination hearing to determine the diminished value of the property.
Dispute of amounts claimed: Tenant disputes the amount as factually incorrect. Tenant must move for rent determination hearing
All other defenses: F.S. 83.60(2) requires the tenant to post the rent claimed in the court registry of a default judgment of possession will be entered.
F.S. § 83.60(2) requires payment into the registry of the court, the amount alleged in the complaint and all rent as it accrues unless tenant alleges.
Payment (complaint must allege amount of rent owed and amount of rent that will come due; otherwise the tenant will not know how much rent should be posted).
Request for court to determine amount of rent owed.
If amount of rent is not clear the court must advise the tenant of the amount of rent to be posted. Olszewska v. Ferro, 590 So. 2d 11 (Fla. 3d DCA 1991).
If tenant files motion for determination of rent to be paid into registry of the court, tenant must attach to motion documentation to show rent alleged in complaint is in error. Hearing is limited in scope-only to determine an amount of rent to be posted. Error for court to grant default judgment to landlord where tenant had filed a motion for rent determination even though the tenant had not deposited the rent claimed into the court registry. KENDRICK v. CORSER, Miami-Dade County 2011. 19 Fla. L. Weekly Supp. 72a.
c. Fla. Stat. § 83.61 permits landlord to apply to the court for disbursement of funds or for prompt final hearing if landlord can prove:
danger of loss of premises.
Other personal hardship resulting form loss of rental income.
See Pomponio v. Claridge of pompano Condominiums 378 So.2d 774 (Fla 1980).
Court may award all or any portion of funds to landlord or may proceed to final resolution.
Allegation of no-landlord tenant relationship: If the defendant alleges that they are not a tenant, then there is no requirement to post rent in the court registry Grimm V. Huckabee, 891 So.2d 608 (Fla. 1st DCA 2005).
Allegation Plaintiff has no standing: Where tenant alleged that the Plaintiff did not have standing to file the eviction suit the tenant was not required to post rent in the court registry. In Poole v. Patrick, 6 Fla.L.Weekly Supp 257 (12th Cir App 1999) Lease was with Mrs. Patrick, 3 day issued by Mrs. Patrick, eviction complaint filed in the name of Mr. Patrick.
Even if tenant files a counterclaim, tenant must still post the alleged rent in the registry of the court. K.D. Lewis Enterprises Corporation v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984).
Tenant’s receiving rent subsidies or public housing are only required to deposit portion of rent that tenant would be responsible to pay pursuant to federal, state or local government program which they are participating.
Defective 3 Day notice: There is a long line of cases stating that a valid 3 day notice is a condition precedent to the filing of an eviction. For many years the courts ruled that if the 3 day notice was defective, judgment could be entered for Defendant without requiring the tenant to comply with Fla. Stat. § 83.60(2). The 4th DCA reversed that in Stanley v. Quest International Investments, 50 So.2d 672 (Fla. App. 2011) “The tenant is required to post the undisputed rent into the court registry to assert any defense other than payment.”
But See Boyles v. Ziegler, 18 Fla. L. Weekly 912a Volusia County 2011: holding that Quest International, “is in direct contradiction with the Florida Supreme Court’s holding in Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958 (Fla. 1983) which held that in order to assert a statutory cause of action, the claimant must comply with all valid conditions precedent.” “When there is a contradiction in the district courts, the county court must look to the decision of the District court in which the county is located until the contradiction is settled by the Florida Supreme Court.” Therefore the 5th District is not following the Quest ruling.
If answer not filed and rent not posted into registry of the court:
Landlord entitled to default judgment and writ of possession to issue without further notice or hearing.
NON-MILITARY AFFIDAVIT: The court requires you to prove that the defendant is not active duty military to obtain a default. You can prove military status in one of 4 ways:
The Palm Beach Clerk of Court in Service Packet #47 (revised 10/20/2010) provides that the requirements for an “Affidavit of Military Status” may be fulfilled in one of four ways:
1) A sworn affidavit from the plaintiff landlord articulating facts that would be admissible in evidence.
2) A written admission from the defendant tenant.
3) An online certificate obtained from www.dmdc.osd.mil/scra/owa/home (requires defendant name, social security number and date of birth). There is no charge and you can print out the certificate directly from the website. If you do not know this information, you may have to skip trace your tenant. Note: this website does not work on the google Chrome web browser, you must use internet explorer or firefox. You may also get a warning that the site is not trusted. This is because your browser does not come with Department of Defense Root Certificates pre-installed in order to "trust" the website. You can install this certificate here: http://www.dtic.mil/dtic/announcements/dodrootcertificates.html
If you can not get the SSN and DOB needed to get the free certificate from the DOD, you can also purchase a certificate from a private company which charges $36.40 to run the search plus $15.00 for a certificate. http://www.servicememberscivilreliefact.com/faq/#7
This website seems to impersonate the DOD website and will come up on search engines when you search for a “military status certificate,” so do not use it and pay for the non-military certificate unless you do not have the information to run the free search.
4) Obtain certificates by regular mail from each branch of service @ $5.20 each + SASE . This also requests tenant social security number and date of birth and is so impractical compared to the other choices I am not even going to bother listing the mailing addresses of all of the branches of service.
If an answer filed and rent posted then the court should review the legal sufficiency of the answer. If a meritorious defense has been alleged the case should be set for hearing.
If an answer is filed but rent not posted then the landlord should be entitled to a default under F.S. 83.60(2) (1994) as a matter of law. See Hauser “Florida Residential Landlord Tenant Manual”§3.02 [a] Default.
Note that the default is as to possession only and not on the damages count.
Either party may demand a jury to decide issues of facts. Cerrito v. Kovitch, 457 So. 2d 1021 (Fla. 1984); Jacques v. Wellington Crop, 183 So. 22 (Fla. 1938); State ex rel. Jennings v. Peacock, 171 So. 821 (Fla. 1937). The parties may waive their right to a jury trial. C & C Wholesale, Inc. v. Fusco Management Corp., 564 So. 2d 1259 (Fla. 2d DCA 1990).
Simplified final hearing.
The following facts should be established during a simplified eviction hearing:
LL must have ownership of the property. Fla. Stat. § 83.43(3) (1995).
There must be a rental agreement between the parties. Fla. Stat. § 83.43(2) (1995).
There was a breach of the rental agreement by the T; Fla. Stat. § 83.56(3) (1995).
Proper notice given to T. Fla. Stat. § 83.56(3) (1995), Clark v. Hiett, 495 So. 2d 773 (Fla. 2d DCA 1986).
Nonacceptance by the LL of rent payments from or on behalf of T since issuance of the notice. Fla. Stat. § 83.56(5) (1995); Bodden v. Carbonell, 354 So. 2d 927 (Fla. 2d DCA 1978).
|X. FINAL JUDGMENTS AND WRITS OF POSSESSION
The final judgment should direct the clerk of courts to issue a writ of possession. Fla. R. Civ. P.1.580(a). The writ of possession describes the real property in question, and directs the sheriff to take the property into his or her possession. Anytime after the writ of possession is executed, the owner may also remove the personal property of the tenant. Fla.Stat. § 83.62(2). Additionally, the owner may change the locks on the doors at the time the writ of possession is executed. Id.
Stipulations are enforced in the same manner as other contracts. Federal Home Loan Mortgage Corp. v. Molko, 602 So. 2d 983 (Fla. 3d DCA 1992). Unconscionable and repugnant contracts, i.e., “stipulations” may remain unenforced, Krez v. Sun Bank/South Florida, N.A., 608 So. 2d 892 (Fla. 4th DCA 1992).
The courts may properly refuse to enforce unconscionable provisions of rental agreement. Fla. Stat. § 83.45.
A tenant may knowingly waive constitutional or statutory rights to which he or she is entitled, provided no public policy is violated. Gilman v. Butzloff, 22 So. 2d 263 (Fla. 1945); Weinberger v. Board of Public Instruction of St. Johns County, 112 So. 2d 253 (Fla. 1927).
The bond’s main purpose is to protect the prevailing party. City of Plant City v. Mann, 400 So. 2d 952 (Fla. 1981). The bond must be reasonably related to the appeal. Cerrito v. Kovitch. If the prevailing party is sufficiently protected, the bond need not be posted. A prevailing party’s award of attorney’s fees pursuant to the final judgment may not be collected by the court as part of the bond. Coral Gables v. Geary, 398 So. 2d 479 (Fla. 3d DCA 1981). The tenant still has a right to an appeal, even where the tenant is not able to post bond and the landlord regains possession of the premises. Ruby Mountain Construction & Development Corp. v. Raymond, 409 So. 2d 525 (Fla. 5th DCA 1982); Palm Beach Heights Development & Sales v. Decillis, 385 So. 2d 1170 (Fla. 3d DCA 1980).
Test to determine whether the motion to stay should issue.
The Palm Beach County Court has adopted the following three-prong test:
1- will eviction cause the tenant irreparable harm;
2- will issuance of the motion will substantially prejudice the Landlaord by not regaining the possession of property;
3- if a substantial question is raised on appeal. Royal Palm Beach Ltd. Partnership v. Tutor Time Learning Center of Royal Palm Beach, Inc., 3 FLW Supp. 290 (Fla. Palm Beach County 1995).
Fla. Stat. § 83.49(3)(a) sets forth notification requirements when the tenant vacates the premises or upon termination of a written lease:
LL has 15 days to return security deposit with interest if there is no claim or
LL has 30 days to give T notice of LL’s intent to impose a claim against the security deposit.
Be sent by certified mail at T’s last known mailing address. If tenant does not give forwarding address LL must still send notice to last known address (the address of rented premises) Hicks v. Marchett, 4 FLW Supp. 525 (Fla. 20th Cir. Ct. 1996). The landlord may not send the claim to the vacated premises if he has knowledge of the tenant’s actual address Morkin v. Dulaire, 13 fla. L. Weekly Supp. 1228a (Broward County 2006). Landlord not, however required to send the claim to tenant’s attorney’s address where no other address was known, Newman v. Gray, 4 Fla. L. Weekly Supp. 271 (Dade County 1996).
State the amount of the claim.
Specify the reason for the claim.
d. State amount LL is claiming.
e. Inform the tenant he has 15 days to object or he will forfeit the amount claimed.
State the address the objections should be sent to.
If notice is defective or not timely tenant does not have to respond.
If landlord does not send notice, he forfeits right to security deposit no matter how much damage the tenant has caused. Durene v. Alcime, 448 So. 2d 1208 (Fla. 3d DCA 1983). Fla. Stat. § 83.49(2)(a); Gersten v.Cimovski, 43 Fla. Supp. 2d 38 (Fla. 17 Cir. Ct. 1990).
If tenant does not timely object to notice, then landlord keeps amount claimed and must return remainder within 30 days.
If landlord fails to escrow the deposit, he does not forfeit his right to claim against the deposit. Pekofsky v. Golden, 1__ Fla. L. Weekly 478 (Fla. 11 Cir. App.1993).
In order for a tenant vacating before the expiration of the written lease or oral lease to be entitled to a written claim from the landlord, the tenant must give written notice that he is vacating by certified mail or hand delivery at least 7 days before vacating; and inform the landlord of new address. Fla. Stat. § 83.49(5). Tenant’s failure to do so relieves landlord of notice requirement. Tenant’s failure to give notice does not forfeit tenants’s right to security deposit, Rolle v. Armesto, 6 Fla L. Weekly Supp 398 (11th Cir. App. 1999).
Landlord Terminates Rental Agreement Early: If the landlord evicts the tenant, the tenant is probably not required to give the 7 day notice in order to be entitled to a written claim from the landlord Speigner v. Holland, 1 Fla. L. Weekly 529a (Broward County 1993)
Landlord’s failure to properly claim the security deposit does not preclude an independent action for damages. If a tenant files a claim for return of the security deposit and prevails, the security deposit may not be used by the landlord for purposes of a set-off against his claim for damages. Durene v. Alcime, 448 So. 2d 1208 (Fla. 3d DCA 1984). But see Stephenson v. Cox, 13 Fla. L. Weekly Supp 910 b (Broward County 2006) tenant’s deposit was set off against landlord’s damages.
If tenant prevails on complaint for security deposit, but landlord prevails on counterclaim for damages, tenant is entitled to attorney fees on the security deposit claim. Fla. Stat. § 83.49(3)(c).
Security deposit can be used for back rent if not prohibited by lease. Pekofsky v. Golden, 1 Fla L, W eekly Supp. 478 (Fla. Dade County 1992).
REASONABLE WEAR & TEAR: Normal wear and tear in light of the length of the tenancy does not constitute damages.
Definition of normal wear and tear: “the wear which the property undergoes when the tenant does nothing more than come and go and perform the acts usually incident to an ordinary way of life.” Tirrell v. Osborn 55 A.2d 727 (D.C. App 1947).
Carpet cleaning, general cleaning of the house and driveway/patio, or painting, held to be ordinary wear and tear. BURLEY v. MATEO, (Broward County 2010) 18 Fla. L. Weekly Supp. 624a. Failure to return keys, removal of drapes, lewd messages on wall: not normal wear and tear SMITH vs. NIEDERRITER, Broward County 2011, 18 Fla. L. Weekly Supp. 1051a. Real estate agent’s commission allowed as damages, McLennan v. Rozniak, 15 Fla. Supp.2d 42 (Palm Beach 1985). Amount: evidence that Landlord paid for repairs is evidence that expenses were reasonable. Note Landlord is entitled to do the work himself though and may recover a reasonable cost of repair. Burden of proof: Landlord must proved Tenant caused damages. Then burden on Tenant to show preexisting. Stegeman v. Burger Chef Systems Inc., 374 So.2d 1130 (Fla 4th DCA 1970).
Duty to maintain premises. The landord’s duty to maintain the premises is set forth in §83.5(1). The landlord must comply with the health, housing and building codes. Unless agreed otherwise the landlord is also responsible for: Extermination, locks & keys, maintenance of common areas, garbage removal & receptacles, heat & hot water.
The landlord must reasonably inspect premises before allowing T to take possession and must make all repairs necessary to transfer a reasonably safe dwelling unit fit for human habitation. Duty of LL to repair dangerous defective conditions upon notice of their existence continues after T takes possession.
The landlord must however have notice of defects that occur in the premises after the tenant takes possession. In Tolles v. Garcia, 694 So. 2d 94 (Fla. 3d DCA 1997), LL did not have notice of allegedly dangerous elevation changes between a carpeted floor in the bedroom and tile surface in a hallway and, therefore, LL was not liable for injuries to tenant’s guest sustained when she tripped on elevation change.
Single Family Homes and Duplexes: 83.51(1) maintenance duties may be assigned to the tenant in the lease.
Fails to comply with Fla. Stat. § 83.51(1) or material provisions of the rental agreement;
Within 7 days after delivery;
Of written notice by the tenant;
Specifying the non-compliance;
And indicating the intention of the tenant to terminate the rental agreement. Notice needs to be sent prior to 3 day notice otherwise defense of constructive eviction can not be raised. Lakeway Management Company of Florida, Inc. v. Stolowilsky, 527 So.2d 950 (Fla. 3d DCA 1988).
The tenant may terminate the tenancy.
Notice may be hand delivered or mailed to:
Person authorized to collect rent.
If the failure to comply with Fla. Stat. § 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the LL and the LL has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered as follows:
If the LL’s failure to comply renders the dwelling unit uninhabitable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable. Ralston, Inc. v. Miller, 357 So. 2d 1066 (Fla. 3d DCA 1978); Berwick v. Kleinginna Investment Corp., 143 So. 2d 684 (Fla. 3d DCA 1962).
If the LL’s failure to comply does not render the dwelling unit uninhabitable and the tenant remains in occupancy, the rent for the period of non-compliance shall be reduced by an amount in proportion to the loss of rental value caused by the non-compliance.
Where tenant has reasonable basis for withholding rent and deposits same to court registry, tenant may not be evicted based on non-payment of rent. Pilver v. Lenox Realty Associates, Ltd., 2004 WL 1965861 (Fla. Cir. Ct. 2004)
Where the complained of repairs are minor, then tenant will be found in violation of the lease for failure to pay rent. The mere failure, however, of the landlord to make repairs, the need of which does not render the premises untenantable, will not warrant an abandonment of the premises or relieve the tenant from liability for rent. BENSON, vs. ALBERT'S CARPET OF TEQUESTA, INC., (Palm Beach County, 2008) 15 Fla. L. Weekly Supp. 1121a. The test of the breach is an objective one, i.e., whether the premises met ordinary, normal standards reasonably to be expected of living quarters of comparable kind and quality. In MURPHY vs. LOGIUDICE, Palm Beach County Court 2009, 16 Fla. L. Weekly Supp. 966a.
B. Upon reasonable notice: repair. Reasonable notice = 12 hours. Reasonable time = 7:30 am – 8:00 pm 83.53(2) (the statute does not REQUIRE written notice)
Tenant absent: if the tenant is absent for half of a rental payment period, the landlords is notified of the absence, and the rent is current, the landlord may not enter without the tenant’s consent except to protect or preserve. 83.53 (d)
Harass: the landlord shall not abuse the right of access or use it to harass the tenant. 83.53 (d). Harassment may rise to the level of constructive eviction. See Peeping Tom landlord case John Kaminski Jr. v. Dynelle Gibson Case 05-CC-02240LT 13th Judicial Hillsboro County, FL [13 Fla L. weekly Supp. 105]
XV. PROHIBITED PRACTICES. § 83.67
Constructive Eviction. The landlord may not cause directly or indirectly the
Interruption of any utility service furnished the tenant. Includes: utilities under the control of or paid by landlord or provided for in the lease. Examples include; heat, gas, water, electricity, garbage collection, and refrigeration. Fla. Stat. § 83.67(1). [But see Badaraco v. Suncoast Towers v. Associates, 676 So. 2d 502 (Fla. 3d DCA 1996) which held that tenant could not recover statutory damages where temporary interruption of water and elevator services was due to landlord’s general repairs and renovations and were not intended as a self help eviction].
Change locks or use any bootlock or similar device.
Remove outside doors, locks roof, walls, or windows except for maintenance, repair etc.
Remove personal property except after surrender, abandonment or a lawful eviction
Examples of constructive eviction:
a. Apartment is uninhabitable due to water damage from unrepaired roof. Ralston Inc. v. Miller, 357 So. 2d 1066 (Fla. 3d DCA 1978);
b. LL threatened eviction causing tenant to vacate. Caso v. Nelson, Inc., 419 So. 2d 668 (Fla. 4th DCA 1982).
c. Peeping Tom landlord John Kaminski Jr. v. Dynelle Gibson Case 05-CC-02240LT 13th Judicial Hillsboro County, FL [13 Fla L. weekly Supp. 105]
1) Filing of mortgage foreclosure against subject premises does not constitute constructive eviction TELFAIR-OIERCEW, , vs. GASKIN,. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-11259 COCE (53). 18 Fla. L. Weekly Supp. 310a
2) Where landlord removed kitchen appliances at gunpoint after tenant complained to code enforcement, tenant awarded 3 months rent per day until appliances returned. IRELAND vs. DIAMOND , Broward County. 1994. [2 Fla. L. Weekly Supp. 223c ]
Landlord may not discriminate against a service member 83.67(3)
Landlord shall not prohibit a tenant from displaying a U.S. Flag not larger than 4.5’x6’
(a) LL liable for actual and consequential damages or 3 months rent, whichever is greater, and costs, including attorney fees.
(b) Subsequent or repeated violations, which are not contemporaneous with the initial violation, shall be subject to separate awards of damages.
If Tenant Receives Dwelling As Part of Employment and Employment Terminates Fla. Stat. $83.46(3):
Employer entitled to rent from day after employment ceases until day unit vacated at rate equal to rate for similarly charged residences.
If wages are payable weekly or more frequently then tenancy is week to week and must give 7 days notice to vacate prior to end of any week. If wages are payable monthly or no wages are payable, then tenancy is month to month and must give 15 days notice prior to end of month.
LL cannot retaliate against T by discriminatively:
Raising the rent.
Threatening court action.
Examples of retaliatory conduct are as follows:
Tenant has complained to a government agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises;
Organized, encouraged or participated in a tenants’ organization; or
Complained to the landlord pursuant to Fla. Stat. § 83.56(1)
Evidence of retaliatory conduct may be raised by the tenant as a defense in any action brought against him or her for possession. The tenant has initial burden of proof that landlord’s primary reason for eviction is retaliatory. The burden shifts to the landlord to prove that eviction is based on good cause which include but are not limited to:
XVIII.RIGHT OF ACTION FOR DAMAGES: Fla. Stat. §83.55
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 non-compliance.
Service and Pleading Requirements
. Complaint must seek damages. See Antoniadis v. Earca, N.U., 442 So. 2d 1001 (Fla. 3rd DCA 1983). Or issue may be tried by implied consent if no unfair prejudice created thereby. Smith v. Mogelvang, 432 So. 2d 119 (Fla. 2nd DCA 1983).
But see Fla. Stat. § 83.61 suggesting damages may arise from possession claim only and Fla. Stat. § 83.625 suggesting the same thing, but requiring compliance with the Florida Rules of Civil Procedure. F.R.C.P. 1.110(b) requires, “a demand for judgment for the relief to which the pleader deems himself or herself entitled.” (Appendix17) See Stein v. Hubbs, 439 So. 2d 1005 (Fla. 5th DCA 1983) (approving 5-day summons for damage claim and order to the contrary based upon more recent statutory language).
Default may be appropriate if answer relates to possession claim only
Rent deposited in registry, Fla. Stat. §83.61 vs. Fla. Stat. §83.625
Unpaid rent - choice of remedies after possession - Fla. Stat. §83.595 (Appendix 1)
a. retake possession for self and end tenant’s liability;
b. retake possession for tenant and try to relet – Fla. Stat. §83.595 (2) requires good faith effort to relet, but does not require landlord to give preference over other vacant units. See Colonial Promenade v. Juhus, 541 So.2d 1313 (Fla 5 DCA 1989)- eviction of tenant does not constitute acceptance of surrender, landlord may recover lost rent until premises relet. Landlord should be clear he is not terminating the tenacy and thus tenant’s liability for rent.
c. do nothing – sue for the rent as it comes due.
Acceleration clauses. Can not claim for rent that has not accrued in residential cases.
Holdover tenancy - Fla. Stat. § 83.58
a. May recover double rent (discretionary).
Holdovers based upon justiciable issues will ordinarily not result in double rent even when landlord ultimately prevails. Greentree Amusement Arcade, Inc. v. Greenacres Development Corp., 401 So. 2d 915 (Fla. 4th DCA 1981).
b. Not applicable if eviction is for non-payment (therefore, cannot use standard 3-day notice) Casavan v. Land-O-Lakes Realty, Inc., 542 So. 2d 371 (Fla. 5th DCA 1989).
Practice tip: The issuance of a 3 day notice to a tenant at sufferance will actually create a new month to month tenancy !
Waste or damage to property
a. May or may not be covered by security deposit.b.
Even if landlord fails to file proper notice required by statute he or she may still pursue independent damage claim.
c. Should be treated like any other claim for damages.
5. Distress for rent - Landlord’s lien
a. Fla. Stat. § 713.691(3) (Appendix 20) creates the landlord lien but abolishes distress for rent for residential tenancies. It is permitted only for non-residential tenancies, Goodman v. Brasseria La Capannina, Inc., 602 So. 2d 1245 (Fla. 1992).
b. Lien attaches only after sheriff delivers possession to landlord. A premature attempt can lead to a tenant’s claim for damages pursuant Fla. Stat. § 83.67
Prohibited practices (Fla. Stat. $ 83.67)
Unless tenant has surrendered or abandoned (15 days) premises or has been evicted. Damages are actual and consequential, but no less than three months rent plus fees and costs.
Casualty damage - Fla. Stat. $ 83.63 (Appendix 1) Florida statutes section 83.63 "Casualty damage" provides that - If the premises are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the premises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case the tenant's liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the landlord shall comply with s. 83.49(3) dealing with the requirement to make a claim on security deposit. Tenant need not send a written notice if the landlord knew or should have known of problem. Zais v. C.F. West Florida, Inc., 505 So. 2d 577 (Fla. 4th DCA 1987).
Only the tenant may choose to terminate the lease or stay after a casualty. Baldo v. Georgoulakis, 1 FLW Supp 432 (11th Cir. 1993)
Tenant may claim moving expenses and/or extra housing costs as part of damage claim pursuant to Fla. Stat. § 83.63 or Fla. Stat. § 83.67. Updyke v. Brinkerhoff Property Management, Inc., 44 Fl. Supp. 2d 109 (Fla. Volusia Cty. Ct., 1990).
Retaliatory eviction – F.S. § 83.64
a. Created by statute as a defense to possession claim
b. Differing opinions on whether or not it creates an independent cause of action
a. Replacement value for personal property
b. Burden of establishing “ordinary wear and tear” reduction is on tenant. Cummingham Drug Stores v. Pentland, 243 So. 2d 169 (Fla. 4th DCA 170)
c. It is incumbent upon party seeking damages to present evidence to justify award of damages in definite amount. Smith v. Austin Development Co., 538 So. 2d 128 (Fla. 2d DCA 1989).
d. Where damages cannot be precisely determined, trial judge is vested with reasonable discretion in making award of damages. Clearwater Assoc. v. Hicks Laundry Equipment, 433 So. 2d 7 (Fla. 2d DCA 1983).
e. Court should take advantage of “reasonable discretion” to attempt to place reasonable value on damages.
See Appendix 21 for suggested methods to assist in determining value.
f. The amount of damages equals the cost of restoration even if the landlord does not use the money to restore the premises. Pomeranc v. Winn Dixie Stores, Inc., 598 So. 2d 103 (Fla. 5th DCA 1992).
Interpreting commercial lease Tiny Treasures Academy & Get Well Center, Inc. v. Stirling Place, Inc. 916 So.2d 991 (Fla. 4th DCA, 2005) held that where the language of a settlement agreement is clear and unambiguous, trial court may not modify to provide relief to LL omitted from agreement.
Prevailing party is entitled to prejudgment interest. Smith v. Austin Development Co., 538 So. 2d 128 (Fla. 2d DCA 1989) and Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla. 1985).
Fla. Stat. § 83.575 specifically provides for liquidated damages but only as applied to tenants at the end of their lease. The LL T Act codifies the common law on lost rental damages and provides that and measure of damages in violation of the Act is void. Olen Residential Realty Corp. v. Romine, 2004 WL 3322327, Fla.Cir.Ct., 2004.
F.S. § 83.48. Action brought to enforce provisions of rental agreement or Fla. Stat. 83: the prevailing party may recover reasonable court costs, including attorney’s fees from the non-prevailing party.
In Mortiz v. Hoyt Enterprises, Inc., 604 So. 2d 807 (Fla. 1992) the Florida Supreme Court ruled that the party who prevails on the significant issue of the case is the prevailing party, regardless of the dollar amount of either party’s recovery.
If the tenant recovers any portion of the security deposit he/she will be considered the prevailing party on that issue and entitled to attorney fees for the time spent on that issue. Kendall E. Estates v. Banks, 386 So.2d 1245 (Fla. 3r DCA 1980). The amount off fees recovered on prevailing on one claim may be reduced in not prevailing on another claim. Malagon v. Solari, 566 So. 2d 352 (Fla. 4th DCA 1990);
If both parties claims involve a “common core” of facts and are based on “related legal theories,” a full fee may be awarded to prevailing party unless it can be shown that the attorneys spent a separate and distinct amount of time on counts as to which no attorney’s fees were sought. Anglia Jacs & Co., Inc. v. Dubin, 830 So.2d 169 (Fla. 4th DCA 2002).
Neither party may be held to be prevailing party in cases where resolution resulted from stipulation of parties. Zhang v. D.B.R. Asset Management, Inc., 878 So.2d 386 (Fla. 3rd DCA, 2004).
Multiplier may be awarded in landlord/tenant cases. Meli Investment Corp. v. O.R., 621 So. 2d 676 (Fla. 3d DCA 1993).
Timing: A party seeking attorney’s fees is required to file a motion for attorney’s fees within 30 days after the final judgment has been filed. Fla.R. Civ.P. 1.525 (2001).
Voluntary dismissal: The court does not loose jurisdiction to award attorneys fees to the tenant if the landlord files a voluntary dismissal.Scott v. McGregor, 7 Fla Law Weekly Supp 556a (Broward County 2000).
Abatement: Fla.R. Civ P. 1.420(d) if a party who has dismissed a claim in any court commences a new action based upon the same claim against the same party the court shall make an order for the payment of costs of the previous claim and shall stay the proceedings until the plaintiff has complied.
11 U.S.C. § 362: creates an automatic stay and prohibits LL from:
Taking action to evict T for any reason;
Using security deposit to off-set rent;
Another action against T.
When bankruptcy case filed, LL must obtain relief from automatic stay before proceeding further, LL cannot:
Give 3 day notice;
File eviction complaint;
If eviction filed, LL must get a relief from stay.
Legal process obtained or orders issued in contravention of stay void, regardless of whether parties had notice of bankruptcy filing. In Re Florida Dairy, Inc., 22 B.R. 197 (M.D. 1982).
LL may not resume eviction unless relief from bankruptcy stay or after debtor discharged. Only true with homestead.
LL does not have to be formally notified of bankruptcy, i.e. suggestion of bankruptcy. In Matter of Carter, 9 B.C.D. 1086 (8th Cir. 1982) the court ruled that an attorney who continues eviction after receiving telephonic notice and fails to contact the bankruptcy court for verification may be held in contempt.
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