[RPPTL LandTen] Beverly Barnett's legal issue

[Warren P. Gammill]

Beverly,

 

 If your case is commercial, check out Hamilton v. Tanner, 962 So. 2d 997
(Fla. 2d DCA 2008):  "An oral lease pursuant to which rent is payable
monthly is deemed to be a month-to-month tenancy at will.  §83.01, Fla Stat.
(1997).  Such a lease does not violate the statute of frauds merely because
it continues in effect for more than a year."  If residential, see
§83.46(2), Fla. Stat., to the same effect.  

 

The Third DCA in Toledo v. Escamilla did not consider the periodicity of the
rental payments (monthly?), only the fact that the tenant had occupied the
premises for four years without a written lease.  If the Court had, the
outcome might have been different.  This case should be limited to its
unique facts, to wit, that the occupant paid mortgage payments and condo
maintenance assessments and made improvements, thinking that she was an
owner with her former boyfriend.  The Third DCA is just plain wrong in
stating that, by virtue of the defendant's having asserted in her answer
that she was not a tenant and was an equitable owner of the property,
ejectment, not eviction, ipso facto became the proper remedy and the case
should have been transferred to the Circuit Court.  Since when does a
plaintiff lose the right to maintain and present his cause of acton based on
his theory of the case by virtue of the defendant's raising her own theory
in her defenses?  Moreover, when equitable defenses to an eviction are
filed, the County Court is not ousted of its jurisdiction to determine if a
landlord-tenant relationship exists and to award possession, if appropriate.
See State ex rel. Hillman v. Hutchins, 158 So. 716 (Fla. 1935), which is
right on point.  

 

Regardless, the statute of frauds has no application to leases or contracts
that have been performed.  It applies only to executory contracts -
contracts that have not yet been performed - and prevents a party from
recovering for a breach of that executory contract, e.g., a refusal of one
party to proceed with the contract.  In other words, the statute of frauds
would normally have no relevancy in an action to evict a tenant.

 

Beverly, your judge is just plain wrong in treating your case as anything
other than a landlord/tenant relationship and a month-to-month oral tenancy
if the tenant was paying monthly.  Good luck.

 

Warren P . Gammill, Esq.

Law Offices of Warren P. Gammill

Suite 1050, Courthouse Tower

44 West Flagler Street

Miami, Florida 33130

Telephone: (305) 579-0000

Telecopier: (305) 371-6927

 

 

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Beverly Barnett
Sent: Wednesday, July 23, 2008 11:42 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Committee Meeting Information and Agenda

 

Neil:

 

I wonder if it would be possible for the committee to discuss a
landlord/tenant case with which I have issues.  It could be that it has been
discussed prior.  I had an eviction action which became complex and the
tenant raised an issue about her equity position.  She never proved her
position even during an evidentiary hearing.  I held that she had an oral
month to month tenancy.  Prior to the evidentiary hearing, her attorney
admitted to the court that he did not have any evidence to prove her equity
position and asked to move to the final hearing for possession.  The Judge
still insisted on an evidentiary hearing.  In the end the Judge determined
that there was no landlord/tenant relationship even though there was no
evidence that the tenant had any equity position and the tenant had been
paying rent and is still residing there.  She based her ruling on Toledo v
Escamilla, 962 So.2d 1028, District Court of Appeal of Florida, Third
District, because she believes this case states that any oral agreement must
be for the duration of less than 1 year.  If it is longer, there is not
landlord/tenant relationship.

 

I would like some input about this case as well as the type of action I now
need to take to remove the “tenants.”  This case indicates that it would be
an ejectment action.

 

Thanks.

 

Beverly Barnett 

 

  _____  

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Neil B. Shoter
Sent: Tuesday, July 22, 2008 9:29 AM
To: landten at lists.flabarrpptl.org
Subject: [RPPTL LandTen] Committee Meeting Information and Agenda

 

In conjunction with the RPPTL Section of the Florida Bar Executive Council
Meeting to be held at the Breakers Palm Beach Resort, July 24-27, the
Landlord/ Tenant Committee is scheduled to meet on Thursday, July 24th from
9:30 a.m to 11:30 a.m.  [Gulfstream Room 1,2]

 

Members not present in person may join by conference call:

 

Call-in information:

Dial-In Number (866-411-5140) and your Conference Code (40809292).
At the specified time, dial your Reservationless-Plus Dial-In Number.
When prompted, enter your Conference Code followed by #.

 

Attachments:

    Meeting Agenda

    Case:  Pro-Art Dental Lab Inc v. V-Strategic Group LLC

 

 

 

We appreciate your participation.

 

Neil Shoter, Committee Vice-Chair

 

  ***  Please remember to inform your colleagues that joining our Committee
can be easily accomplished by providing their email address to Committee
Chair, Arthur J. Menor, amenor at shutts.com.  Thank you. 

 

 

Neil B. Shoter 
Partner  

  _____  

Shutts & Bowen LLP 
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