[RPPTL LandTen] A question to my learned colleagues

[Anthony J. Horky]

My thought is that it is cleaner for two reasons:

 

1.                If Laverne pays the past due rent then landlord is still stuck with a slow paying tenant.  That may be okay with the landlord.  

2.                Non-renewal of a tenancy is a less adversarial approach then an "eviction".  Threatening to evict Laverne may result in her taking a defensive stance.  There are volumes of cases published in the Florida Law Weekly Supp. regarding defective notices and defenses to the 3-day notice.  Conversely, notifying her well in advance my result in her appreciating that the landlord gave her time to find a new place resulting in her voluntarily surrendering possession.  .  

 

I know of some situations where it was cheaper for the landlord to give the tenant say, $500.00, just to leave, then to retain an attorney to prosecute the eviction action.  

 

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

 

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IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be sued by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law.  If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

________________________________

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Frank, Scott A.
Sent: Tuesday, July 20, 2010 6:23 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] A question to my learned colleagues

 

Yes, but if Laverne is not paying, then wouldn't a 3-day notice suffice for terminating the month-to-month tenancy?

 

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: 561.962.4145
Fax: 561.962.4245 
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 Anthony J. Horky
Sent: Tuesday, July 20, 2010 6:18 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] A question to my learned colleagues

In my opinion, since Shirley is a party to the written lease, I would serve Shirley with a 3-day notice (provided the lease does not state some other notice period).  With regard to Laverne, she is a tenant without a specific term.  I would serve her with a Notice to Terminate the Tenancy as follows: 

Section 83.57 governs termination of tenancies without specific terms.  A tenancy without a specific duration, as defined in § 83.46(2) or (3), may be terminated by either party giving written notice in the manner provided in § 83.56(4), Fla. Stat, as follows: 

 

When the Tenancy is from

By giving not less than

year to year 

60 days' notice prior to the end of any annual period

quarter to quarter 

30 days' notice prior to the end of any quarterly period

Month to month

15 days' notice prior to the end of any monthly period

week to week 

7 days' notice prior to the end of any weekly period

 

 

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

 

CONFIDENTIALITY NOTICE:  Unless otherwise stated, the information in this email transmission is privileged and confidential.  If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited.  If you have received this email transmission in error, please notify the sender by email reply immediately.  Thank you.

 

Internal Revenue Service regulations require that certain types of written advice include a disclaimer.  To the extent the proceeding message contains advice relating to a Federal tax issue, unless expressly stated otherwise, the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.

 

IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be sued by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law.  If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

________________________________

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Frank, Scott A.
Sent: Tuesday, July 20, 2010 5:22 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] A question to my learned colleagues

 

I have a client who used to be in the business of flipping houses.  As you may guess, he is now in the business of renting houses.

 

He has a bit of a current dilemma, and asked for my thoughts.  Not being a residential LL-Tenant guy, I thought I would ask for yours.  Here is his current scenario:

 

LL rented a house and signed a lease with Sister 1 ("Shirley").  Shirley was not a great payer, but usually paid.  Sister 2 ("Laverne") moved in with Shirley.  Landlord was aware.  Shirley took off.  Laverne paid some money to the Landlord, which the Landlord accepted, knowing it was from Laverne and that Shirley was gone.  No amendment to the original lease and no new written lease with Laverne.  Laverne is now quite behind (and, by the way, the electric has been paid off for non-payment).  Client/Landlord wants to send three-day notice and evict.

 

My initial thought is to prepare and deliver 2 notices, one each to Laverne and Shirley, and then to file possession action against Laverne and Shirley as well.  My concern is that since the Landlord accepted money from Laverne after Shirley disappeared, Laverne's defenses could include that Landlord either (i) agree to an assignment of the lease from Shirley to Laverne, or (ii) entered into a new non-written (i.e., month-to-month) tenancy agreement with Laverne.  But if we don't serve Shirley, she may have a defense, as the original lease was never terminated.  So by naming both, LL can preclude these defenses.  But can he evict two different people for the same property, under potentially two different rental agreements, at the same time?  Is there a better (cleaner) way?

 

Thoughts?

 

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: 561.962.4145
Fax: 561.962.4245 
SAFrank at arnstein.com <mailto:SAFrank at arnstein.com> 

Offices in Illinois, Florida, and Wisconsin 

 

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If you believe that you have received this message in error, please notify 
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be used by any person or entity for the purpose of (i) avoiding any tax penalties 
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