[RPPTL LandTen] access to apartment issueFromFrom

Tue Dec 30 07:08:41 PST 2008

Here is Mary Ellen's underlying reason (attached) for the requested
legislation.  My comments are:

1. Appears her concerns may relate to housing that is exempt from
83.59(3)(d), but I am not entirely certain. 

2. Consensus seems to be that only notice in event of death (not
incapacity or other infirmity) should be dealt with in any statutory
notice provision.

3. If her concern is that property managers of these complexes are not
"complying" with current law as to contacting next of kin where no PR
has been designated, then that should not be a reason to push a
statutory change.

4. It would seem to me that naming a responsible contact person can be
done contractually in the lease w/o statutory change, but I would like
someone on the probate side to discuss whether they are perceiving the
same problem that Mary Ellen is saying exists.   

Neil B. Shoter 
Partner  
________________________________

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________________________________

	From: BrutonB at gtlaw.com [mailto:BrutonB at gtlaw.com] 
	Sent: Monday, December 29, 2008 5:27 PM
	To: martha at penningtonlawfirm.com
	Cc: gene at Penningtonlawfirm.com; Pete at Penningtonlawfirm.com;
bfelcoski at gfsestatelaw.com; gmeyer at carltonfields.com; cinashlaw at aol.com;
mjgelfand at gelfandarpe.com; debra.boje at ruden.com; Neil B. Shoter
	Subject: Re: access to apartment issue

	Thanks, Martha--

	We'll be happy to provide technical assistance on this proposal.
As you can see from the previous email chain, we have a lot of expertise
to apply.

	I think the best initial advice is for the proponents to stay
away from incapacity/illness issues and focus on tweaking the deceased
tenant issues in the existing statute.

	I'm copying the other Reptiles who have joined in the fray so
that they'll know you and Gene are in the loop.

	Best,

	Burt

________________________________

	From: Martha J. Edenfield 
	To: Bruton, Burt (Shld-Mia-RE) 
	Cc: Gene Adams 
	Sent: Mon Dec 29 16:23:52 2008
	Subject: RE: access to apartment issue 

	I believe the 2007 changes were from the Florida Apartment
Association.  Pete had worked with them before and I know that Gene is
familiar with these changes, too.  I believe that the Section gave input
to the FAA at that time. 

	We will take a look and give you our collective thoughts on the
recent e-mails and responses. 

________________________________

	From: BrutonB at gtlaw.com [mailto:BrutonB at gtlaw.com] 
	Sent: Monday, December 29, 2008 3:35 PM
	To: Peter M. Dunbar; Martha J. Edenfield
	Cc: bfelcoski at gfsestatelaw.com; gmeyer at carltonfields.com;
Debra.Boje at ruden.com; mjgelfand at gelfandarpe.com; Cinashlaw at aol.com
	Subject: access to apartment issue

	Hi Pete, hi Martha--

	As promised in my email a moment ago, I'm forwarding the
following email chain, which involves folks from outside the section.
The chain should give you the background you need.

	As I mentioned in that email, I think it's important to identify
the source of the 2007 amendments mentioned below; the stakeholder
behind that amendment will care if there's an attempt to alter the
existing balance.

	Burt Bruton
	Shareholder 
	Greenberg Traurig, P.A. | 1221 Brickell Avenue | Miami, FL 33131
	Tel 305.579.0593 | Fax 305.961.5593 

	brutonb at gtlaw.com | www.gtlaw.com <http://www.gtlaw.com/> 

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________________________________

	From: harry at evict.com [mailto:harry at evict.com] 
	Sent: Monday, December 29, 2008 12:01 PM
	To: 'Arthur J. Menor'; 'Neil B. Shoter'; 'Michael J. Gelfand';
'Boje, Debra'; 'Jeff Rogo'
	Cc: mengert1 at aol.com; Bruton, Burt (Shld-Mia-RE);
bfelcoski at gfsestatelaw.com; safrank at arnstein.com; Cinashlaw at aol.com
	Subject: RE: RPPTL: FW: Security Deposit issue

	83.59 (3)(d) A landlord may obtain a signed statement from a
tenant when the lease is signed or any time thereafter that identifies
the tenant's personal representative or another person to contact to
remove and provide safe keeping for the tenant's personal property in
the event of the tenant's death or incapacity due to an illness that
results in the termination of the lease. The person identified in the
statement may remove the tenant's personal property and provide for safe
keeping thereof in accordance with the tenant's will or written or oral
wishes.

	I think Mary Ellen is trying to streamline the process in the
event of incapacity or death. 

	Right now, if no one is designated by the tenant prior to
incapacity, in the event of incapacity, their items in the rental unit
are in a  legal limbo. I believe under current law or absence thereof, a
tenant CAN designate someone to remove items in the event of incapacity.
The problem is in a death situation, current law states that the
landlord must wait 60 days and if no probate estate is opened, they then
can take possession of the unit.

	What this does is hold the unit hostage for 60 days and this
creates a problem especially in a heavily senior housing type setting
where there is this 60 day wait.

	Designating a person while alive to deal with removal of
possessions upon death sounds like an avoidance of the probate process
for all items in a rental unit.  While I personally like this, I think
it conflicts with probate law.

	By the way, my involvement in this at the current time is not on
behalf of FAA but on behalf of my own landlord clients and does not
represent any policy or positions of FAA. 

	Harry

	LAW OFFICES OF 
	HEIST, WEISSE & DAVIS, P.A.
	PH: 1 800 253 8428
	FAX: 1 800 367 9038
	"Serving the Property Management Professional"
	Website:  www.evict.com <http://www.evict.com/>  
	Email: harry at evict.com

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	From: Arthur J. Menor [mailto:AMenor at shutts.com] 
	Sent: Monday, December 29, 2008 11:14 AM
	To: harry at evict.com; Neil B. Shoter; Michael J. Gelfand; Boje,
Debra; Jeff Rogo
	Cc: mengert1 at aol.com; BrutonB at gtlaw.com;
bfelcoski at gfsestatelaw.com; safrank at arnstein.com
	Subject: RE: RPPTL: FW: Security Deposit issue

	Harry, please explain the issue to be addressed by the proposed
legislation and how that issue is not being adequately addressed by the
present statutes.

________________________________

		From: harry at evict.com [mailto:harry at evict.com] 
		Sent: Monday, December 29, 2008 11:12 AM
		To: Neil B. Shoter; 'Michael J. Gelfand'; 'Boje, Debra';
'Jeff Rogo'
		Cc: mengert1 at aol.com; BrutonB at gtlaw.com;
bfelcoski at gfsestatelaw.com; Arthur J. Menor; safrank at arnstein.com
		Subject: RE: RPPTL: FW: Security Deposit issue

		Dear Neil,

		Jeff Rogo who I added to this email is the FAA
Government Affairs Director and takes direction from them.  I am the
volunteer General Counsel for FAA and assist in bill drafting language.

		I would hate to see the Florida Association of Homes and
Services for the Aging lose a bill slot so maybe they can file something
and it can be worked on later?

		You may want to call Jeff directly at 813 882 0222.

		I personally am supportive of anything that will assist
landlords in the event of tenant death or incapacitation and agree that
the current statute needs improvement but FAA decides on whether to
actively promote a bill as they have their own legislative priorities
set already for 2009.

		With a bill like this, if the wording can be worked out
and agreed on by RPPTL and Florida Association of Homes and Services for
the Aging, it will probably sail right through without the need for much
involvement or lobbying efforts.

		Harry

		LAW OFFICES OF 
		HEIST, WEISSE & DAVIS, P.A.
		PH: 1 800 253 8428
		FAX: 1 800 367 9038
		"Serving the Property Management Professional"
		Website:  www.evict.com <http://www.evict.com/>  
		Email: harry at evict.com

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		From: Neil B. Shoter [mailto:NShoter at shutts.com] 
		Sent: Monday, December 29, 2008 10:43 AM
		To: Michael J. Gelfand; Boje, Debra
		Cc: mengert1 at aol.com; BrutonB at gtlaw.com;
bfelcoski at gfsestatelaw.com; Arthur J. Menor; harry at evict.com;
safrank at arnstein.com
		Subject: RE: RPPTL: FW: Security Deposit issue

		I just received this request and have not vetted it with
our (Landlord Tenant Committee), b ut I can see problems with
introducing "incapacity or illness" threshold to the mix creating
potential landlord liability to a tenant for allowing disposal of its
property absent clear evidence from the tenant allowing the third party
taking of its property.   Might also have to take into consideration
whether any rent default exists.  Also since 83.59(3)(d) allows taking
of possession if "the landlord has not been notified in writing of the
existence of a probate estate or of the name and address of a personal
representative."   designating a PR in advance could inadvertently
affect the value of (3)(d).  

		I would agree to wait to hear what Probate Div. says
about it.  

		Neil B. Shoter 
		Partner  

________________________________

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<http://www.shutts.com/> 

________________________________

			From: Michael J. Gelfand
[mailto:mjgelfand at gelfandarpe.com] 
			Sent: Monday, December 29, 2008 10:24 AM
			To: Boje, Debra
			Cc: Neil B. Shoter; mengert1 at aol.com;
BrutonB at gtlaw.com; bfelcoski at gfsestatelaw.com
			Subject: RPPTL: FW: Security Deposit issue

			Dear Debra

			Attached is an email string from Neil Shoter on
behalf of the Landlord Tenant Committee concerning a potential bill to
change access to rental property after the (only or last remaining?)
tenant's death.  

			I perceive that there could be a probate and
estate issue here; thus, I pong this to you.  Let me know if there is
any interest from the Probate Division in this draft proposal.

			The current statute which I believe was amended
recently with the Section's support, states:

				83.59  Right of action for possession.-
				(1)  If the rental agreement is
terminated and the tenant does not vacate the premises, the landlord may
recover possession of the dwelling unit as provided in this section.
				(2)  A landlord, the landlord's
attorney, or the landlord's agent, applying for the removal of a tenant
shall file in the county court of the county where the premises are
situated a complaint describing the dwelling unit and stating the facts
that authorize its recovery. A landlord's agent is not permitted to take
any action other than the initial filing of the complaint, unless the
landlord's agent is an attorney. The landlord is entitled to the summary
procedure provided in s. 51.011 [F.S. 1971], and the court shall advance
the cause on the calendar.
				(3)  The landlord shall not recover
possession of a dwelling unit except:
				(a)  In an action for possession under
subsection (2) or other civil action in which the issue of right of
possession is determined;
				(b)  When the tenant has surrendered
possession of the dwelling unit to the landlord;
				(c)  When the tenant has abandoned the
dwelling unit. In the absence of actual knowledge of abandonment, it
shall be presumed that the tenant has abandoned the dwelling unit if he
or she is absent from the premises for a period of time equal to
one-half the time for periodic rental payments. However, this
presumption does not apply if the rent is current or the tenant has
notified the landlord, in writing, of an intended absence; or
				(d)  When the last remaining tenant of a
dwelling unit is deceased, personal property remains on the premises,
rent is unpaid, at least 60 days have elapsed following the date of
death, and the landlord has not been notified in writing of the
existence of a probate estate or of the name and address of a personal
representative. This paragraph does not apply to a dwelling unit used in
connection with a federally administered or regulated housing program,
including programs under s. 202, s. 221(d)(3) and (4), s. 236, or s. 8
of the National Housing Act, as amended.
				(4)  The prevailing party is entitled to
have judgment for costs and execution therefor.

			Neil:  I presume, and correct me, that this is
not an action item for the Section?  If it is to be an item, then please
check Legislative Review Committee webpage at www.rpptl.org for the
"cookbook" on transforming a proposal into an action item.  There
appears to be a number of drafting issues.  Please also consider whether
this may be passive support rather than seeking active lobbyist support.

			Michael J. Gelfand

			Florida Bar Board Certified Real Estate Attorney

			Florida Supreme Court Certified Mediator:

			   Civil Circuit Court & Civil County Court

			Gelfand & Arpe, P.A.
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________________________________

			From: Neil B. Shoter [mailto:NShoter at shutts.com]

			Sent: Monday, December 29, 2008 9:45 AM
			To: safrank at arnstein.com;
landten at lists.flabarrpptl.org; Meyer, George J.; Michael J. Gelfand;
brutonb at gtlaw.com
			Cc: Arthur J. Menor
			Subject: FW: Security Deposit issue

			If anyone has any comments on the string below,
please let me know asap.  I received this email relative to a change in
law being requested by the Florida Association of Homes and Services for
the Aging to allow the tenant while alive to designate someone to get
the personal belongings in the event of the tenant 's incapacitation or
death.

			Any comments?

			Neil B. Shoter 
			Partner  

________________________________

			Shutts & Bowen LLP 
			1100 CityPlace Tower, 525 Okeechobee Boulevard |
West Palm Beach, FL 33401 
			Direct: (561) 650-8535 | Fax: (561) 822-5525
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<http://www.shutts.com/> 

________________________________

				From: Mary Ellen Early
[mailto:meearly at earthlink.net] 
				Sent: Sunday, December 28, 2008 10:25 PM
				To: harry at evict.com; 'Jeff Rogo'
				Cc: 'Janegale Boyd'; Neil B. Shoter;
'Carol A. Berkowitz'
				Subject: RE: Security Deposit issue

				Thank you Harry!  Since I am not a
lawyer, I am not familiar with this area of law. Therefore, I cannot
draft the language. I am not working this week, but I will check my
e-mail for ideas from you all. I want to use the bill slot that is being
saved for us so I am working on another unrelated idea as well.  We do
not have a senate sponsor yet, but I am sure we can put our heads
together and find one if this works out.

				How about this concept as a starter?  --
83.59 (3)(d) A landlord may obtain a signed statement from a tenant when
the lease is signed or any time thereafter that identifies the tenant's
personal representative or another person to contact to remove and
provide safe keeping for the tenant's personal property in the event of
the tenant's death or incapacity due to an illness that results in the
termination of the lease. The person identified in the statement may
remove the tenant's personal property and provide for safe keeping
thereof in accordance with the tenant's will or written or oral wishes.

				Mary Ellen

				Mary Ellen K. Early

				Senior Vice President of Public Policy

				Florida Association of Homes and
Services for the Aging

				2303 Pin Oak Dr.

				DeLand, Florida 32720

				386/738-0503 (Deland)

				850/671-3700 (Tallahassee)

				meearly at earthlink.net

________________________________

				From: harry at evict.com
[mailto:harry at evict.com] 
				Sent: Sunday, December 28, 2008 6:24 PM
				To: 'Mary Ellen Early'; 'Jeff Rogo'
				Subject: RE: Security Deposit issue

				Dear Mary Ellen,

				Anything that helps us get possession of
a unit as soon as possible after death is appealing to our industry.

				The problem is that you cannot
accomplish something in a document prior to death regarding personal
property as this is part of the estate and there may be no estate opened
up. In other words, you cannot bypass the probate or estate process. If
the Bar does not mind, I am all for it.

				As for incapacity, I see no problems. 

				I copied Jeff and let's run it by the
Bar. I belong to the Real Property and Trust Law section of the Bar.

				We need to explain the problem we all
face, come up with the wording and have their blessing.

				Jeff, possibly we need to make this a
priority this week.  It will help our industry.

				Harry

				LAW OFFICES OF 
				HEIST, WEISSE & DAVIS, P.A.
				PH: 1 800 253 8428
				FAX: 1 800 367 9038
				"Serving the Property Management
Professional"
				Website:  www.evict.com
<http://www.evict.com/>  
				Email: harry at evict.com

				THIS E-MAIL MESSAGE IS CONFIDENTIAL,
ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE
ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

				From: Mary Ellen Early
[mailto:meearly at earthlink.net] 
				Sent: Saturday, December 27, 2008 12:13
PM
				To: harry at evict.com
				Subject: RE: Security Deposit issue

				Dear Harry,

				A house member saved us a bill slot. If
we want to use it, we must have bill language to her by 1/2/09.  Do you
have any language to address this issue that will not upset the probate
section of the bar? Could we add a couple of sentences to current law
that says,  In conjunction with signing a lease or any time thereafter,
a tenant may provide the landlord with the name and contact information
for a person responsible for removing and providing safekeeping for the
tenant' personal possessions in the event of the death of the tenant or
incapacity due to an illness that results in the termination of the
lease. The landlord may release the tenant's personal possessions to the
designated person. 

				Please let me know by this Monday if you
are interested in pursuing a change in the law and if this language will
work. We do not have a senate sponsor and we would need the support of
the Apartment Association and the Probate section of the Florida Bar to
make this work.  

				Thanks,

				Mary Ellen

				Mary Ellen K. Early

				Senior Vice President of Public Policy

				Florida Association of Homes and
Services for the Aging

				2303 Pin Oak Dr.

				DeLand, Florida 32720

				386/738-0503 (Deland)

				850/671-3700 (Tallahassee)

				meearly at earthlink.net

________________________________

				From: harry at evict.com
[mailto:harry at evict.com] 
				Sent: Tuesday, October 07, 2008 5:23 PM
				To: 'Mary Ellen Early'; 'Jeff Rogo'
				Cc: 'Gail Matillo'; 'Colleen Bloom'
				Subject: RE: Security Deposit issue

				Dear Ms. Early.

				We had the same concerns.  At the time I
believe the amendment was proposed, we did not oppose the amendment
because we wanted to get the bill passed. We were told that you were
able to get possession in 15 days if federally funded.  I disagreed with
that as it conflicts with probate law but we just let it slide.

				I copied Jeff Rogo and possibly we can
address it.

				We all have the same concerns with
getting back possession without having to go through the time-consuming
and expensive probate procedure.  Maybe we can clean it up next year. I
am a member of the Real Property and Probate Section of the Bar and on
the Landlord/Tenant Law Committee this year.

				Harry Heist

				LAW OFFICES OF 
				HEIST, WEISSE & LUCREZI, P.A.
				PH: 1 800 253 8428
				FAX: 1 800 367 9038
				"Serving the Property Management
Professional"
				Website:  www.evict.com
				Email: harry at evict.com

				From: Mary Ellen Early
[mailto:meearly at earthlink.net] 
				Sent: Tuesday, October 07, 2008 11:55 AM
				To: harry at evict.com
				Cc: 'Gail Matillo'; 'Colleen Bloom'
				Subject: RE: Security Deposit issue
				Importance: High

				Dear Harry,

				I looked up the section of law Jeff Rogo
referenced -- 83.59 (3)(d).  I do not have his e-mail address to respond
so please forward this e-mail to him.

				We had concerns about 83.59 (3)(d) when
it was amended in 2007. A sentence was added for us to exempt HUD
financed communities from the subsection because we were not sure the
change would help. Most of our affordable housing members are governed
by federal law. We are researching the process that they must follow
when a resident dies and leaves possessions in the apartment. We know
they have 14 days to get the unit ready for the next tenant. We don't
know if they can obtain information on the next of kin at the time of
move-in and also get written verification from the tenant that they want
their property released to that person should they die. 

				How would you propose changing the law?
How about authorizing the landlord to obtain a signed statement from the
tenant with instructions on who to call and what to do with personal
possessions in the event of death? Can they do that now or do they have
to wait for probate?  I am not an attorney so I don't know what the
legal issues would be related to a will that identifies other heirs.
When the law talks about a personal representative, I am assuming it
means a personal representative named in the will.  Do you know?  Your
association is more familiar because of the research that went into the
2007 law changes. 

				We are interested in the issue and would
like to work with your association, but we need to do more research
ourselves on federal law governing our HUD housing members.

				Thanks,

				Mary Ellen

				Mary Ellen K. Early

				Senior Vice President of Public Policy

				Florida Association of Homes and
Services for the Aging

				2303 Pin Oak Dr.

				DeLand, Florida 32720

				386/738-0503 (Deland)

				850/671-3700 (Tallahassee)

				meearly at earthlink.net

________________________________

________________________________

________________________________

				From: harry at evict.com
[mailto:harry at evict.com] 
				Sent: Sunday, October 05, 2008 7:23 PM
				To: Gail Matillo; 'Jeff Rogo'; 'Kelly
Mallette'
				Subject: Security Deposit issue

				Dear Gail,

				This was forwarded to me by Jeff Rogo,
Governmental Affairs Director for the Florida Apartment Association.

				Since you mentioned legislation, one
issue that I deal with especially with seniors is the death of the
senior in the apartment. While we can now wait 60 days and dispose of
any abandoned personal property due to the law change 2 years ago, we
cannot ever let relatives into the unit after a death unless a probate
estate is opened and a personal representative appointed. Unless the
senior is wealthy, no estate is ever opened and it really causes a
problem. I would love to see some legislation that would allow a senior
tenant or any tenant for that matter to designate in the lease or on a
separate document, a person who could enter a unit after death and at
the same time not have the landlord liable for what the relative may do
to the personal belongings. It is a heart wrenching time when a relative
flies in from New Jersey only to be denied access by the landlord. Often
all they want is to get some sentimental personal belongings or find a
will.  Maybe we can all think about something like this and work
together.

				Have a wonderful week,

				Harry Heist

				General Counsel to FAA

				From: Gail Matillo
[mailto:gmatillo at fahsa.org] 
				Sent: Friday, September 26, 2008 5:03 PM
				To: Kelly Mallette
				Subject: 2009 Legislative session

				Dear Kelly:

				Are you planning to file any substantial
bills in 2009?

				Does any of the members of the Apartment
Association ever have problems with refunding interest from security
deposits?

				We are working on our public policy
agendas and I wanted to report if you were planning any bills, etc. for
2009.

				Thank you,

				Gail

				Gail G. Matillo

				Director of Housing and Program
Development

				Florida Association of Homes and
Services for the Aging (FAHSA) 

				1812 Riggins Road

				Tallahassee, FL  32308

				(850) 671-3700 Fax: (850) 671-3790

				Direct: (850) 702-0308

				Cell: (850) 294-3415

				http://www.fahsa.org

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				Email: harry at evict.com

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