[RPPTL LandTen] Quick question for my residential leasingcolleagues

Thu Jun 18 13:08:12 PDT 2009

Thank you to all who responded. 

As our demand to vacate letter also notified the tenant of the statutory
obligation to pay the double rent, we are going ahead and filing the
complaint - not waiting the 3 days - based on the holdover itself, not a
failure to cure.

And I had better not get an Answer signed by any of you!

Scott A Frank
Attorney at Law
ARNSTEIN & LEHR LLP 
www.arnstein.com <http://www.arnstein.com/> 

515 North Flagler Drive 
Sixth Floor 
West Palm Beach, Florida 33401-4323
Phone: 561.833.9800 
Fax: 561.655.5551

433 Plaza Real
Suite 275
Boca Raton, Florida 33401-4323 
Phone: 561.322.6900
Fax: 561.322.6940 
SAFrank at arnstein.com <mailto:SAFrank at arnstein.com> 

Offices in Illinois, Florida, and Wisconsin 

________________________________

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Warren P.
Gammill
Sent: Thursday, June 18, 2009 3:31 PM
To: 'RPPTL Landlord Tenant Committee'
Cc: 'Madelin D'Arce'
Subject: Re: [RPPTL LandTen] Quick question for my residential
leasingcolleagues

Scott,

I would deliver a letter advising the holdover tenant that he owes
double rent of $_______ per month from June 15th until he surrenders
possession and making a demand therefor.  At the same time or at any
time thereafter, I would file suit for eviction and the section 83.58
double rent (which keeps accruing).  

A non-residential case based on Fla. Stat. 83.06 requires a demand for
double rent, with the double rent running from the date of the demand,
not from the date of the holdover.  Lincoln Oldsmobile v. Branch, 574
So. 2d 1111.  However, 83.58 reads differently from 83.06, allowing the
recovery of double rent "for the period during which the tenant refuses
to surrender possession".  This leaves room for the landlord to take the
position that the holdover without paying any rent constitutes bad faith
and a clear refusal to surrender the premises.  At worst, the landlord
will recover double rent from the time of the demand.

Warren P. Gammill, Esq.

Warren Gammill & Associates

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 Frank, Scott
A.
Sent: Thursday, June 18, 2009 2:23 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Quick question for my residential leasing
colleagues

We represent the owner of a single family house which was leased out.
Lease expired on June 14.  We had previously provided tenant with plenty
of notice that lease was expiring and would not be renewed.  Some
discussion of a 1-month extension, but tenant flaked and never came
through with the money and offer was rescinded.

The 14th came and went.  tenant would not respond to phone calls or
e-mails.  On Tuesday we delivered - via e-mail and first class mail, as
well as left taped to front door and in the mailbox - a notice reminding
her that the lease had expired and she was illegally holding over.  Of
course no response.  We are ready to file complaint for possession
today.

My question is:  Will our letter be deemed a 3-day notice?  Or will a
3-day notice be required?  As I read the statute, a 3-day notice is not
required for a holdover, as it appears that the action can be filed
immediately.  But if it is not required, will the court find our notice
to somehow imply a 3-day right to cure?  (But how can one cure when the
issue is not non-payment or some other non-performance?)

Any thoughts or guidance would be most appreciated.  Thanks.

Scott A Frank
Attorney at Law
ARNSTEIN & LEHR LLP 

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

515 North Flagler Drive 

Sixth Floor 

West Palm Beach, Florida 33401-4323

Phone: 561.833.9800 

Fax: 561.655.5551

433 Plaza Real
Suite 275
Boca Raton, Florida 33401-4323 
Phone: 561.322.6900
Fax: 561.322.6940 
SAFrank at arnstein.com <mailto:SAFrank at arnstein.com> 

Offices in Illinois, Florida, and Wisconsin 

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