[RPPTL LandTen] Condo changing locks on Tenants

Wed Dec 30 08:41:32 PST 2009

My 2 cents.  I agree with Anthony.  For removal of the tenant, the Association would probably be the agent of the unit owner and the owner would have liability for prohibited practices under Chapter 83.

Chuck Hoskin

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Alderman, Jason
Sent: Tuesday, December 29, 2009 6:44 PM
To: landten at lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

But the tenant's estate is burdened by the restrictive covenants set forth in the recorded condo declarations. If the covenants permit, then owner and tenant have consented. I'd consider what if any docs the tenant signed during the approval process ( which is typically a condition to rental). They may be a further basis for consent.

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From: landten-bounces at lists.flabarrpptl.org
To: RPPTL Landlord Tenant Committee
Sent: Tue Dec 29 19:30:13 2009
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants
I apologize for chiming in so late on this, but I have been out of town on an emergency.  The first thought that comes to my mind is ownership.  The Association owns the common areas, not the unit.  I do not agree that the Association can initiate self-help practices directed at the unit to prevent the tenant from having access to the unit, such as changing the locks.  The locks are the property of the unit owner. As indicated below, this could expose the Association to trespass liability and possibly conversion.  Likely the Association could direct such measures to prevent use of the pool, gym, or other common areas. The second thought that comes to mind is rights and liabilities.  The tenant is in privity with the landlord/unit owner while the unit owner is in privity with the Association.  Thus, it would seem that the landlord/unit owner's remedy is against the tenant while the Association's remedy is against the unit owner for breach of the condo docs for having an unauthorized tenant. If the unit owner is directly or indirectly using the Association to do its work in evicting the tenant, by prohibited practices or otherwise, in my opinion, the Association is acting as an agent of the unit owner and liability for prohibited practices should pass to the unit owner.

Regards,

Anthony J. Horky, Esq.
Mombach, Boyle & Hardin, P.A.
500 East Broward Boulevard
Suite 1950 Broward Financial Centre
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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of harry at evict.com
Sent: Tuesday, December 22, 2009 2:32 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

Agreed on all points.

Harry

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Tuesday, December 22, 2009 2:16 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

Harry, I would argue that disabling an access gate card would fall within the umbrella of prohibited practices under 83.62 (2), but of course this brings me back to the original conundrum of whether or not a condo association can lawfully engage in what would otherwise be considered "prohibited practices" for a landlord under the LL/T statute.

Tequisha, I also had a call recently where a condo association, as part of its T approval process, was requiring the T to sign something purportedly making the T personally liable to the association for unpaid assessments in the event the LL doesn't pay the assessments.  The question posed to me was If a "Contract to Lease" (an FAR form) that's already been signed by prospective LL and prospective T says it's contingent on Association approval and approval is subsequently denied based on prospective T's refusal to sign a document that is arguably unreasonable, does prospective T get his money back?  The FAR Contract to Lease provides that prospective T will "make all reasonable efforts...to obtain Association approval..."   My opinion FWIW was that it would be reasonable for a prospective T to balk at signing such a lease addendum mandated by the association.

Regards,
Greg

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of harry at evict.com
Sent: Tuesday, December 22, 2009 1:54 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

I have never seen a condo association change locks but have seen them deny access by disabling an access gate card.

Harry

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HEIST, WEISSE & DAVIS, P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Tequisha Myles
Sent: Tuesday, December 22, 2009 1:43 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

We are starting to see many Condo Associations in Palm Beach County that require the Tenant to sign lease addendums that force a tenant to pay rent to the Association directly if the landlord fails to pay his or her maintenance fees.  Also these lease addendums state that the Association is somehow authorized to evict the tenant for non-payment.  So a prohibited practices amendment to include any type of community association may be worth exploring...

Tequisha Y. Myles, Esq.
Fair Housing and Elder Law Projects
Legal Aid Society of Palm Beach County
423 Fern Street, Suite 200
West Palm Beach, FL 33401
(561) 655-8944 Ext. 296
(561) 655-5269 Fax
tmyles at legalaidpbc.org<BLOCKED::BLOCKED::mailto:tmyles at legalaidpbc.org>

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Eric A. Jacobs
Sent: Tuesday, December 22, 2009 1:01 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

While that's true, I think the Association would have clear exposure for trespass and other claims.  It would in my view make no sense to amend the statute since the Association is not in any case the Tenant's Landlord.  At best, I think the Association might be able to bring an action for Ejectment if the association docs permit.

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Tuesday, December 22, 2009 12:42 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

Thanks Harry.  I agree with you that the proper procedure is for the LL to file for eviction.   However, I'm starting to think that perhaps 83.67 needs to be amended to clarify that not only the Landlord, but also his/her association is prohibited from engaging in any of the so-called prohibited practices / self-help eviction techniques.  As it stands now, a literal reading of the statute would suggest it doesn't directly apply to associations.

Regards,
Greg

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of harry at evict.com
Sent: Tuesday, December 22, 2009 12:28 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

The landlord needs to file an eviction. No lockout is legal. The tenant is a holdover if the tenancy was properly terminated by the lease or by proper notice, if necessary, from the landlord. The association has no right to deny the tenant access but may have a right to file an eviction on behalf of the unit owner if stated in the docs. The landlord would be wise to have an attorney file the eviction as it will be less complex and cheaper.

Harry Heist

LAW OFFICES OF
HEIST, WEISSE & DAVIS, P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Tuesday, December 22, 2009 12:17 PM
To: landten at lists.flabarrpptl.org
Subject: [RPPTL LandTen] Condo changing locks on Tenants

Curious to hear the committee members' thoughts on the question I got today.  Apparently a T of a condo unit is holding over beyond the termination date of their written lease with LL.  LL wants them out and notifies their condo association that T is a squatter.  Association then sends letter to T saying the association will be changing the locks because their rules require that there must be a valid/current written lease on file with the association and there no longer is a current lease.

The question I have is can a condo association lawfully engage in what would be considered "prohibited practices" for a landlord under the LL/T statute?

Here are some of the statutes that I think may come into play:

Section 83.67 (2) provides that a "...a landlord of any dwelling unit...shall not prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks..."

Section 718.303 provides that Tenants are governed by the condo docs and they are deemed incorporated into any lease.

However, Section 83.17 provides that any provision in a rental agreement is void and unenforceable to the extent that it purports to waive or preclude the rights, remedies, or requirements set forth in this part, etc.

Under 83.58 the remedy for a tenant holding over is for the Landlord to file for an eviction.

Section 718.303 also provides that an association or unit owner may file an action for "damages" or "injunctive relief" against a tenant.

718.106 provides that "...when a unit is leased, a tenant shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners..."

Does the fact that 718.303 provides for the filing of actions for damages and injunctive relief against Tenants imply that other actions (such as changing locks, cutting off electricity, etc) would be prohibited?  Would it be possible to argue that the LL should be held responsible for the actions of his association (of which the LL is a member) and therefore claim damages for prohibited practices under 83.67(6)?  Note that 83.67 (1) uses the phrase "...shall not cause, directly or indirectly, ..."  Is the LL "indirectly" engaging in prohibited practices where he stands by and perhaps even encourages his association to engage in what would be prohibited practices if the LL were to take the action directly?

Thanks for your comments in advance.

Regards,
Greg

Greg Hass, Senior Counsel
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