[RPPTL LandTen] residential eviction question
harry at evict.com
harry at evict.com
Thu Mar 4 06:36:50 PST 2010
The money need to be refused. Anthony, with all due respect , you are
incorrect. :-)
Harry Heist
LAW OFFICES OF
HEIST, WEISSE & DAVIS, P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: <http://www.evict.com/> www.evict.com
Email: <mailto:harry at evict.com> harry at evict.com
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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Thursday, March 04, 2010 9:11 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] residential eviction question
Gale is right. This email stream turned into a case for failure to pay rent
but the initial question was what to do with a partial rent payment during
the pendency of an action to terminate the lease for a non-monetary default.
My advice would be to deposit the money into the court registry (if possible
without an order), serve the tenant with the statutory notice to pay rent or
deliver possession followed by a motion to amend the complaint to add a
count for possession for failure to pay rent. Unless the landlord
absolutely needs the partial payment, I would send it back along with the
3-day notice to pay rent.
Another alternative is to aggressively pursue the original action and notice
it for non-jury trial.
As for Scott's question on the landlord liability issue, I've attached some
cases and treatise materials, which may or may not be directly on point but
may help in your search for an answer.
Good luck to both of you.
Regards,
Anthony J. Horky, Esq.
Mombach, Boyle & Hardin, P.A.
500 East Broward Boulevard
Suite 1950 Broward Financial Centre
Ft. Lauderdale, Florida 33394
Telephone: 954.467.2200 ext. 225
Facsimile: 954.467.2210
E-Mail: <mailto:ahorky at mbhlawyer.com> ahorky at mbhlawyer.com
Website: www.mbhlawyer.com <http://www.mbhlawyer.com/>
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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Gale Silbermann
Sent: Wednesday, March 03, 2010 2:13 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] residential eviction question
I agree that the appropriate course is to file a motion either to determine
rent or for immediate default. However in this case the tenant filed the
motion to determine rent and the judge ranted and raved that the case wasn't
about rent and refused to hear it. The final hrg is set for end of April
(delay is due to my client). But the initial delay was the judge's b/c they
insist on setting their own hearings and they screwed up. Now its been 6
months without rent.
Harry, how do you file a motion for immediate default if the rent was
current when you filed the suit for a lease violation and then we refused
the rent b/c of 83.56(5)? That's my dilemma.
Thanks everyone for your input.
Gale
Gale Silbermann
Baxter, Strohauer, Mannion & Silbermann, PA
1150 Cleveland Street, Suite 300
Clearwater, FL 33755
(727) 461-6100
(727) 447-6899 Fax
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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Wednesday, March 03, 2010 10:25 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] residential eviction question
I follow the same procedure and it works every time. In fact, you can even
file a Motion for Default for failure to deposit per the statute and can
often get the FJ without a hearing.
Cary Sabol
Cary P. Sabol, Esq.
P.O. Box 15981
West Palm Beach, Florida 33416
Phone: (561) 281-2744
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--- On Wed, 3/3/10, harry at evict.com <harry at evict.com> wrote:
From: harry at evict.com <harry at evict.com>
Subject: Re: [RPPTL LandTen] residential eviction question
To: "'RPPTL Landlord Tenant Committee'" <landten at lists.flabarrpptl.org>
Date: Wednesday, March 3, 2010, 10:22 AM
We file a Motion for Default for Failure to Post Rent into the Court
Registry immediately when the tenant files an answer and if we do not get
our default (which we get about 90% of the time) we immediately set it for
trial.
The minute the tenant open his/her mouth in court, we object and tell the
judge it is improper to proceed without money placed in court registry. This
usually results in the judge asking the tenant if they have the money, the
tenant says no, and we are out the door with a FJ.
We file thousands of these motions each year.
Harry Heist
LAW OFFICES OF
HEIST, WEISSE & DAVIS, P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: <http://www.evict.com/> www.evict.com
Email: <http://us.mc578.mail.yahoo.com/mc/compose?to=harry@evict.com>
harry at evict.com
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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Chuck Hoskin
Sent: Wednesday, March 03, 2010 9:53 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] residential eviction question
Gale:
In my opinion, 83.60(2) requires the tenant to deposit the rent into the
registry of the court for all breaches of the lease, not just non-payment of
rent. Also, in my opinion, 83.56(5) provides for a waiver of all tenant
non-compliance if the landlord accepts the rent. There are also cases on
waiver in the non-residential setting, but I do not have them handy. As a
disclaimer, judges have been known to disagree with me. Therefore, you
should not cite "Chuck" as authority for this.
In order not to waive the default and to preserve the money, my
recommendation is to file a Motion To Determine Rent and To Require Deposit
of Rent, have the court determine the amount of past due rent and monthly
accrual, just like a payment default case, and have the tenant deposit the
rent into the registry of the court.
I hope that helps.
Chuck
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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Gale Silbermann
Sent: Tuesday, March 02, 2010 4:08 PM
To: landten at lists.flabarrpptl.org
Subject: [RPPTL LandTen] residential eviction question
Has anyone terminated a residential lease for a lease violation, other than
non-payment of rent, and accepted rent while the case was pending? I have a
situation where the case has dragged on for more than 6 months without the
rent being paid. It is subsidized housing so the amount is small but we
want the rent from the tenant, who is willing to pay. But if we accept rent
will that waive our issue with the lease non-compliance?
Any help would be greatly appreciated.
Gale
Gale Silbermann
Baxter, Strohauer, Mannion & Silbermann, PA
1150 Cleveland Street, Suite 300
Clearwater, FL 33755
(727) 461-6100
(727) 447-6899 Fax
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