Florida Residential Landlord-Tenant Law

Judge David E. Silvermandavidsilverman.com

Presentation to Brevard County Clerks

Commencing the Eviction Action The Decision to Evict Preparing and Filing the Lawsuit

Lease or Tenancy Parties Notice

Service of Process Individual or Substitute Service Posting

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Residential Eviction Costs

Filing Fee – Issuance of Summons

Posting of Summons

Execution of Writ

Attorney’s FeesRepairs for Damages to PremisesIncreased Insurance Premiums

Loss of Rental Income

Expediting Resolution

10th business day after Tenant served file should be brought to judge.

Judge should review file to determine if the Court has jurisdiction and, if so, whether: Default is proper; or, Rent Determination Hearing should be set; or, Trial should be set.

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Most Common Situations

Tenant has not filed an answer – Upon Clerk’s default judgment should be signed providing for issuance of a Writ of Possession.

Tenant has answered but has not posted rent into the court registry (may have defaulted).

Unnecessary trials may result if the judge does not review file prior to the case being set.

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Challenge to Jurisdiction

Judicial Review of Tenant’s Answer Jurisdiction

Counterclaim in Excess of $15,000 Denial of Landlord/Tenant Relationship Claim of Right, Title or Equitable Interest

Transfer to Circuit Court

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Claim of Equitable Interest

If the Tenant complies with the lease, Tenant may purchase the property at appraised market value and one-third of Tenant’s rental payments will be applied to the purchase price.

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Domestic Tenancy

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Angelina is fed up with Brad’s stuff all over the place and tells him to move out of her house. He refuses and stops paying the mortgage. She sues to evict.

Common Answer: “There is no evidence of a LL-T relationship here, so Chapter 83 and summary procedure are not available. . .”

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§ 82.42 – Exclusion from County Court Jurisdiction 

Residential eviction does not apply to (2) Occupancy under a contract of sale of a dwelling unit. . . [where] the buyer has paid at least 12 months’ rent or. . . at least 1 month’s rent and a deposit of at least 5 percent of the purchase price of the property.

§ 34.011  

(1) The County Court shall have jurisdiction concurrent with the circuit court to consider landlord and tenant cases. . .

(2) The County Court shall have exclusive jurisdiction of proceedings relating to the right of possession of real property and to the forcible or unlawful detention of lands and tenements. . .

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§ 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.

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Tenant Letters

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

§ 83.60 – Waiver of Defenses

(2) . . . Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent within 5 days . . . constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with writ of possession to issue without further notice or hearing thereon.

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Motion to Determine Rent

Sufficiency of Motion Tenant’s motion alleges that the rent

asked for in the complaint in “In error” and attaches documentation

Improper where Tenant only asserts, “I disagree with the amount owed”

Hearing to Determine Rent Tenant’s right to challenge amount Court to determine amount of deposit

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Defense of Payment

Sufficiency of Pleading Defense of Payment

Payment Defense Issues Amount of Rent Person Receiving Payment

Oral Agreement Services In Lieu Deferral of Rent

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Motion to Dismiss

Improper 3-Day Notice a. “Court observed” holidays b. “Rent” in the 3-Day Notice. c. Mailed notice - 5 additional days

Improper parties a. Tenants on 3-Day Notice b. Improper or Fictitious Landlord

Failure to give 7-Day Notice of Non Compliance

Short Notice of Non Renewal

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Prior Views of Deficiencies

Judges have previously adopted different views of facial deficiencies in the 3 day notice Fatal even without deposit Does not prevent default based on

failure to deposit accrued rent Requires hearing, upon deposit by

deadline, if potentially prejudicial or extenuating circumstances

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Judicial Response

Do Judges Exercise Discretion? Interpreting Pro Se Pleadings Scheduling Hearing Facilitate or Delay Execution of Writ

Order for Hearing Deposit Required Default After Scheduling Hearing Mandating Mediation

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Partial Deposit

If partial amount of rent is posted into registry without valid Motion to Determine Rent, some Judges have: Ordered balance to be placed into

court registry by a fixed date or a default judgment will enter.

Entered default judgment.

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Scheduling the Trial

Trial is properly scheduled when:

Tenant deposited the accrued rent and answered the Complaint for Eviction.

Tenant’s answer alleges payment of the rent.

Additional accrued rent due to be deposited in the registry, if trial is set for the next month

Judges have commonly limited continuances, Summary Procedure, potential waste and rent loss where Tenant in possession

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

Mediation

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Conflict Resolution

Some Judges ask the parties, “Have you had a chance to talk?” If the answer is NO, give parties a brief opportunity to discuss the case outside the courtroom and,

Before beginning trial, ask Tenant if they wish to stay, have vacated or request time to vacate. Since this is often the case, the Judge can order the Tenant to vacate on a fixed date.

At the outset, some judges ask the Tenant “Have you paid the rent?” and,

If the answer is NO, absent deposit of accrued rent, some judges will enter default eviction judgment.

If the rent is fully paid, or a deposit is in the registry, some judges will attempt to equitably resolve the case without trial.

If all parties are not present some Judges wait at least 20 minutes, as parties are often late, parking etc. and then take uncontested evictions first.

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Settling the Eviction Case

2 common types of Stipulations:

1. The Pay and Stay Stipulation whereby the Landlord and Tenant work it all out.

2. The Stipulation to Recover Possession whereby the Tenant agrees to leave at a fixed date, payment may be a condition.

Note on Stipulations – Some Judges have: Refused to sign stipulations that

continue on once the Tenant gets caught up; or,

Require the Tenant to be served with a new 3 day notice and/or posting of the notice of default.

If mediation is delayed Court may condition mediation on rent deposit and cancel mediation and default Tenant if continuing accrued rent is not deposited.

Conducting the Hearing

Setting the Stage Courtroom or Chambers

Judicial Participation Questioning by the Court Raising Issues Notices and Defenses

To: Public Housing Tenant100 Elm Street, Anycity, Fl 33333

You are hereby noticed that you failed to pay your portion of the rent due on Jan. 1, 2015 and Dec. 1, 2014. Rent is $750.00 per month. You have until January 6, 2015, to pay a total of $1,500.00 or quit the premises or you will be evicted.

Landlord110 Elm StreetAnycity, Fl 33333

Condominium Assn. Eviction

§ 718.116(11) Condo Assn. may demand tenant to

pay monetary obligation of delinquent owner

Tenant may deduct payment to Condo. Assn. from rent due landlord

Tenant immune from eviction or retaliation by Landlord

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The Sunset of Federal Protection

Protecting Tenants at Foreclosure Act of 2009, 12 U.S.C. § 5220, a tenant under a “bona fide” residential lease shall be afforded at least ninety days notice to vacate following the foreclosure of a “federally-related mortgage loan.”

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Defenses to Eviction

Acceptance of Rent Waiver

Oral Agreement Cure of Violation

Removal of Guest or Pet Repair of Premises

Substantial Noncompliance Retaliatory Eviction

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Mobile Home Evictions

MHP Ownership Corporation owns the land comprising

the MHP and leases individual lots Eviction

Nonpayment and Reinstatement Code and Rule Violations

Safeguards Land Use Evictions Tenants Compensation and Challenge

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Judgment for Possession

Persons to be Evicted Tenants Excluding Guests

Description of Property Address Apartment Number

Time for Execution Costs

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Service of the Writ

Sheriff’s Department Cost Posting

Dispossession Tenant’s Personal Property

Removal Liability

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Staying the Writ

Motion to Stay Writ of Possession should immediately reviewed to determine if there is any merit, and if so, the Judge may stay the writ and notify the sheriff.

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Some Judges have

Denied a stay ex parte.

Granted stay ex parte upon deposit.

Set an emergency hearing.

Some Judges have stayed the writ where the :

Tenant has filed bankruptcy, or Landlord has accepted rent and

settled with the Tenant

Disbursement from Registry

Trial Court may disburse funds from registry where actual danger of loss of the premises or other personal hardship resulting from the loss of rental income.

If there is an issue regarding entitlement to the Court Registry, the Judge may set this for a later trial.

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Security Deposit

Tenant’s Address Landlord’s Notice of Intent to Claim

Security Deposit Delivery Specificity Time

Effect of Failing to Provide Notice Waiver of claim Availability of Damages

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Eviction Damages

Accrued Rent Lost Rental Income Late Charges

Damages to Premises Cost to Repair Replacement Costs

Court Costs

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Attorney’s Fees

Determination of Prevailing Party Eviction and Security Deposit Intertwined or Separate Claims Potential Set-Off of Attorney’s Fees

Calculation of Rates, Hours Expert Testimony

Multiplier Necessary to Obtain Effective Counsel

Thank you for attending this presentation on Florida Residential

Landlord-Tenant Law

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