Transcript Landlord/Tenant Presentation Florida Judicial College

Landlord/Tenant Presentation
Florida Judicial College
March, 2009
Closing Arguments
Counsel for Landlord – David Silverman
Counsel for Tenant – Carmine Bravo
1
Lease Provision
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.
2
§ 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. . .
3
§ 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.
4
Your Decision – Jurisdiction
County Court – 1
Transfer to Circuit Court – 2
Dismiss - 3
More Information – 4
1
2
3
4
5
In response to landlord’s suit to evict,
tenant files a counterclaim for damages in
excess of $15,000.00. Tenant moves to
dismiss or transfer for lack of jurisdiction.
6
Landlord and tenant enter into a “LeasePurchase Agreement” whereby the
landlord agrees to convey title if the
tenant makes 5 years of monthly rent
payments. Tenant defaults and Landlord
sues to evict.
Same as above, except that the
agreement provided that if buyer
defaulted, he would be considered to
have forfeited his option to purchase.
7
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. Two months
later, Billy Bob sues to evict Brad for nonpayment 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. . . .
Tenant files a notice of appeal directed at
your rent determination order but does
not post the rent required by the order.
9
Condominium association sues to evict
owner’s tenant pursuant to declaration
which provides that association may
invoke remedies of Landlord Tenant Act to
evict tenant in violation of condo rules.
10
Father leases residence to son who later
marries. Son is dispossessed by a
domestic violence injunction and Father
sues to evict Wife who asserts she was
not Father’s tenant.
11
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.
12
§ 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). . .
13
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 weekends) from the
date of delivery of this notice
which would be on or before January
21, 2009.
Landlord
14
§ 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.
15
Tenant’s Letter
January 16, 2009
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
16
Your Decision – Rent Deposit
3-Day Notice
Evict – 1
Dismiss – 2
More Information – 3
1
2
3
17
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.
18
Without depositing rent, Tenant moves
for dismissal of eviction complaint that
omits to plead or attach a 3 day notice.
Tenant files answer alleging
conditions uninhabitable and asks for
a rent determination hearing.
19
After having pled an invalid 3-day notice,
the landlord moves to amend asserting
that he furnished a later, valid 3-day
notice.
May Court award costs against a
defaulting tenant who did not file an
answer?
20
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, 2009 and Dec. 1,
2008. Rent is $750.00 per month.
Your portion is $95.00 per month.
You have until January 6, 2008, 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.
Same, but public housing tenant.
22
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.
23
The Court receives telephone notice that
the Tenant filed bankruptcy after the
Tenant has defaulted by failing to deposit
accrued rent. May Court enter enter
default eviction judgment?
24
Days Rent Late in 2008
14
12
10
8
Month 1
6
Month 2
Month 3
4
2
0
1st Qtr
2nd Qtr
3rd Qtr
4th Qtr
25
Your Decision – Waiver
Evict – 1
Dismiss – 2
More Information – 3
1
2
3
27
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?
28
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?
29
Prior landlord waived by accepting late
partial payments. Is new landlord
estopped from eviction?
30
Prior landlord waived by accepting late
partial payments. Is new landlord
estopped from eviction?
31
Landlord accepts rent despite being on
notice that Tenant has dog in apartment
and then gives eviction notice.
Tenant is 2 months behind in rent. After
giving a 3 day notice, Landlord accepts
one month’s rent, refusing full payment.
32
33
Tenant’s Letter
December 6, 2008
Dear Landlord,
As we agreed, I will fix the roof leaks
instead of paying January’s rent.
Tenant
34
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.
36
Your Decision – Oral Agreement
Evict – 1
Dismiss – 2
More Information – 3
1
2
3
37
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?
38
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.
39
New owner acquired the property
through a mortgage foreclosure sale
and sues to evict tenant. If acquired
by purchase?
40
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.
41
§ 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
43
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, 2009
44
Tenant’s Letter
December 23, 2008
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
45
§ 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.
46
§ 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. . .
47
Your Decision – Retaliation and
Substantial Noncompliance
1
2
Evict – 1
3
Dismiss – 2
Evict with Rent Reduction – 3
4
Dismiss with Rent Reduction – 4
48
May lease properly provide that tenant
make all repairs and waive application
of all housing codes?
49
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.
50
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.
51
Despite repeatedly calling the police
Landlord in unable to stop ongoing
drug sales at the apartment building.
May tenant terminate the lease?
52
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.
55
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.
57
§ 83.58 – Tenant Holding Over
 If the tenant holds over and
continues in possession of the
dwelling unit after the expiration of
the rental agreement without
permission. . . . The landlord may
also recover double the amount of
rent due on the dwelling unit.
58
Days Rent Late in 2008
14
12
10
8
Month 1
6
Month 2
Month 3
4
2
0
1st Qtr
2nd Qtr
3rd Qtr
4th Qtr
59
§ 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.
60
Damages Calculation
Unpaid Rent (two months at double rent)
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
$2000.00
$500.00
$1000.00
$2500.00
$900.00
$500.00
$6400.00
-$500.00
$5900.00
61
§ 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.
62
Security Deposit Notice
Dear Tenant,
I intend to claim your $500.00
security deposit to repair the
obvious damage to the house unless
you object in writing within 15 days
from receiving this notice.
Landlord
February 10, 2009
63
Defendant's Damages








Ambulance
Doctor
Medication
Hospital
Pain and suffering
Lost Wages
Paint
Repairs (defendant)
Total
$500.00
$1,000.00
$500.00
$500.00
$1,000.00
$1,000.00
$500.00
$500.00
$5,500.00
64
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
1
2
3
4
5
65
Do the security deposits provisions of
Chapter 83 apply to public housing
authorities?
66
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?
67
May the landlord maintain an action
for damages even if the landlord
does not give the required notice?
68
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?
69
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?
70
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.
72
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.
73
Landlord returns security deposit following
termination of tenancy. Tenant sues for
interest and attorney’s fees.
74
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.
75
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?
76
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?
77
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?
78
Absent lease provision (or oral lease)
Tenant seeks to sublet. Landlord object
and sues to evict?
79
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.
81
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in our presentation
82
§ 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.
83
§ 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. . .
84
Your Decision – Prevailing Party
Landlord – 1
Tenant – 2
Neither – 3
1
2
3
85
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?
86
Prevailing party in eviction and
damages fails to file a motion within 30
days of judgment. May Court award
attorney’s fees?
87
Affidavit of Attorney’s Time
Description of Legal Service
Drafting and typing pleadings
Filing and delivering pleadings
Review of file
Talking to client and witnesses
Researching law
Photocopying and collating
Preparing for court
Court hearings
Total
Hours
4
1
3
5
5
2
3
3
25
88
89
Attorney’s Fee Calculation
 25 hours x $250.00 = $6250.00
 With a multiplier of 2
Total Fee = $12,500.00
90
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.
91
Your Decision – Attorney’s Fees
Multiplier – 1
Award > $3000 – 2
Award < $3000 – 3
No Award – 4
1
2
3
4
92
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?
93
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in our presentation
94