1

Landlord/Tenant Law and ProcedureFlorida Judicial College

March, 2006

Closing ArgumentsCounsel for Landlord – David

SilvermanCounsel for Tenant – Carmine

Bravo

2

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). . .

3

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

4

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.

5

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.

6

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.

7

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.

8

After having pled an invalid 3-day notice, the landlord moves to amend asserting that he furnished a later, valid 3-day notice.

9

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.

10

January 1, 2006To: Public Housing Tenant

100 Elm StreetAnycity, Fl 33333You 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 StreetAnycity, Fl 33333

11

May Landlord evict upon affidavit attesting Tenant violated stipulation in an eviction action? Same, but public housing tenant?

12

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.

13

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.

14

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?

15

0

2

4

6

8

10

12

14

1st Qtr 2nd Qtr 3rd Qtr 4th Qtr

Month 1

Month 2

Month 3

Days Rent Late in 2005

16

17

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?

18

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?

19

Prior landlord waived by accepting late partial payments. Is new landlord estopped from eviction?

20

After furnishing 3-day notice, landlord accepted one month’s rent from tenant who was 2 months in arrears and sues to evict.

21

22

23

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.

24

Jim Smith was the only tenant signing the lease, does the evicting landlord have to join Mary Smith, Jim’s wife, as a party?

25

Property manager sues on behalf of landlord. Tenant files answer and deposits amount due. May property manager evict?

26

May tenant terminate lease if falling tree damages screened-in porch?.

27

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.

28

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.

29

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.

30

31

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 DepartmentJanuary 8, 2006

32

Tenant’s Letter

Mr. Landlord December 6, 2005 1313 Mockingbird Lane #3CItsa City, Florida 31313

Dear Landlord:As we agreed, I am making substantial, necessary repairs in lieu of this month's rent.

Tenant

33

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.

34

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.

35

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. . .

36

May lease properly provide that tenant make all repairs and waive application of all housing codes?

37

May new owner who acquired property during tenancy evict tenant?

38

May landlord disconnect utilities for two days to effect repairs?

As in above but repairs are conducted on Martin Luther King day.

39

May Tenant terminate the lease if Landlord is unable to stop drug sales at the apartment building?

40

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.

41

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.

42

May Tenant be required to give notice before vacating at termination of lease?

43

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.

44

45

0

2

4

6

8

10

12

14

1st Qtr 2nd Qtr 3rd Qtr 4th Qtr

Month 1

Month 2

Month 3

Days Rent Late in 2005

46

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.

47

Damages Calculations

Unpaid Rent (two months) $1000.00Vacant Unit (one month) $500.00Interest on Unpaid Rent (10% per yr.)

$25.00Late Charges ($10.00 per day) $1000.00Interest on Late Charges (10% per yr.)

$25.00Replacement Carpeting $2500.00Replacement Washer/Dryer $900.00Repair Door $500.00Rat Traps $50.00Total Damages $6500.00Less Security Deposit -$500.00Total Damage Claimed $6000.00

48

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. . .

49

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.

LandlordFebruary 10, 2006

50

Defendant's Damages

Ambulance $500.00 Doctor $1,000.00 Medication $500.00 Hospital $500.00 Pain and suffering $1,000.00 Punitive damages $2,000.00 Paint $500.00 Labor (defendant) $500.00

Total $6,500.00

51

May a security deposit may be

used as rent?

Do the security deposits provisions of Chapter 83 apply to public housing authorities?

52

May the Landlord claim the security deposit if he failed to properly deposit it?

53

May landlord may keep security deposit as liquidated damages if tenant leaves early?

54

May tenant who vacates early still claim the security deposit?

If the tenant is evicted for not paying rent?

When is landlord obligated to return the deposit?

55

If Landlord fails to timely claim the security deposit, does he waive damages?

56

May Landlord dispose of abandoning tenant’s property?

57

If Landlord takes possession following a 3 month eviction, may he collect double rent?

58

May Tenant recover security deposit from new owner who did not obtain it from old owner?

59

May commercial landlord evict if he does not consent to the assignment?

60

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?

61

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.

62

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. . .

63

Affidavit of Attorney’s Time

Description of Legal Service Hours

Typing pleadings 4

Delivering pleadings to clerk for filing

1

Taking telephone messages 3

Talking to client and witnesses 10

Researching law 6

Photocopying 2

Preparing for court 3

Court hearings 11

Total 30

64

65

Attorney’s Fee Calculation

30 hours x $250.00 = $7500.00 With a multiplier of 2 Total Fee = $15,000.00

66

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.

67

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?

68

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?

69

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?