[RPPTL LandTen] residential eviction question

Thu Mar 4 08:25:47 PST 2010

Harry,

I know that this getting into the hypothetical, but couldn't you do the
7-Day Notice, then (after the expiration of the 7 Day Notice, but prior
to filing suit) send a Notice of Termination indicating that failure to
vacate would make them hold-over tenants, etc...?

Then once you file suit, you can argue that they need to pay rent into
registry for the hold-over rent.  I know it isn't very clean, but a
judge may follow the logic there.  Just a thought, not researched or
anything.

Thank you,                          P Think before you print.

Joseph N. Alexander

Potter, Clement, Lowry & Duncan

308 East Fifth Avenue

Mount Dora, Florida 32757

Phone:  352.383.4186

Fax:       352.383.0087

jnalexander at pcld-law.com

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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: Thursday, March 04, 2010 11:13 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] residential eviction question

Hi Anthony,

Here is the problem. When  you file a 7 Day Case, you are terminating
the tenancy. You really cannot then file on a 3 day on a terminated
tenancy.  All you can do is argue to the court that the money is still
owed and must be placed into the registry and hope the judge will buy
this argument and order the money paid into the registry or default the
tenant which in the vast majority of cases, the judge will do this.

I really would not recommend filing an eviction on top of any eviction.
It would really become a mess. Separate judges, motions to consolidate,
delays, etc.

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 <mailto: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 10:30 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] residential eviction question

I agree that the money cannot be kept by the landlord, but my thought
was perhaps it can be deposited into the registry.  However, in thinking
about it more, I would follow plan two and return the check to the
tenant along with a 3-day notice to get the ball rolling on the monetary
breach of the lease issue.  

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: ahorky at mbhlawyer.com <mailto: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
harry at evict.com
Sent: Thursday, March 04, 2010 9:37 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] residential eviction question

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:  www.evict.com <http://www.evict.com/>  
Email: harry at evict.com <mailto: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: ahorky at mbhlawyer.com

Website: www.mbhlawyer.com <http://www.mbhlawyer.com/> 

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independent tax advisor.

________________________________

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:  www.evict.com <http://www.evict.com/>  
Email: harry at evict.com
<http://us.mc578.mail.yahoo.com/mc/compose?to=harry@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

IRS CIRCULAR 230 NOTICE:  To ensure compliance with requirements imposed
by the IRS, we inform you that any tax advice contained in this
communication is not intended or written to be used, and cannot be used,
for the purpose of (i) avoiding penalties imposed under the Internal
Revenue Code or (ii) promoting, marketing or recommending to another
party any transaction or matter addressed in this communication or in
any attachment.  

The information contained in this message is privileged and
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