[RPPTL LandTen] Review of Part 2, Section 83 Residential Landlord/Tenant Act.

Fri Jul 22 13:20:34 PDT 2011

Group:  (Things to ponder)

I believe you are discussing the defense of material noncompliance with
FS§83.51 may be raised by the tenant if 7 day have elapsed after the
delivery of written notice by the tenant to the landlord, specifying the
noncompliance and indicating the intention of the tenant not to pay rent by
reason thereof. 

1.     The statute already has a provision for gaining access to a rental
dwelling.  

2.     It is still a defense, so the tenant must put $$ into the registry of
the Court or a default shall be entered by the court. 

3.     I thought there was a provision that the 7 day notice of non
–compliance must be delivered before a default (7 days before 3-day notice)
(which if is not in the statute, should be incorporated into the statute)
but if so that wording that the tenant may withhold rent and that the
request must be in writing should be required to be incorporated into the
lease agreement. 

4.     Failure to allow the landlord access to the dwelling unit as provided
by FS §83.53 could be written into the statute as a waiver to the complete
defense allowed in FS §83.60.

I think that the most important item on the agenda is to define what a
defense is and what a challenge to the sufficiency of the pleadings. It
seems that every Court (even in the same district) have their own analogy on
this even after the 4th DCA ruling about posting rent. It all depends on the
judge you draw.  Celerity needs to be written into the statue to define
defense as apposed to a legitimate challenge to the sufficiency of the
pleadings. 

The law as written could result from a non-owner (with no standing) evicting
a tenant in the wrong venue (wrong county) from a non-residential rental
dwelling, demanding rent to be delivered to Alaska in 3 days (almost
impossible) or to a post office box (impossible) for an amount of rent 100
time the amount actually owed without posting a 3-day notice if the tenant
does not put the amount of rent as stated on the 3-day notice into the
registry of the court.  How absurd! It is my opinion that I could evict
anyone based on this law.  

I have imagined an eviction against Judge Lee from south Florida who seems
to be on a vendetta using pro-se litigants for his platform for an immediate
default judgment for failure to post money into the Court registry. 

Just think,   

1.     File an eviction complaint against Lee (in any county Court where the
judge immediately defaults without a hearing).

2.     Use the Court’s address and Judge Lee’s chamber number and the place
of residence.

3.     Attach a 3-day notice to the complaint that was not delivered to him.

4.     Ask for $20k in rent on the three-day notice.

5.     Get a process server to post the notice on the judge’s door at a time
when someone could go and remove the summons and complaint from the door.

6.     Demand a default for failure to post money in the registry.

7.     Get a writ of possession served on Judge Lee’s chamber door making it
a trespass if he entered his own chambers after 24 hours notice by the
sheriff. 

This may be an extreme example but this happens to my client everyday,
mostly private (absentee) landlords who have their friends go to the clerk
and get an eviction package and file an eviction for their friend and many
slumlords that just want to evict someone for any reason which could be
retaliatory of a violation of ADA or HUD. 

A tenant should be able to get a hearing on specific grounds such as lack of
standing (example, suing in an individual’s name when the property is in a
trust. Judgment is entered in the name of individual not the trust. This is
fraud on the trust), improper venue, failure to properly deliver a
termination notice or demanding rent on the termination notice be delivered
to a location that is outside the state our outside a 30 mile limit without
giving the tenant an additional 5 days for mailing, (this language should
actually be incorporated into the Supreme Court approved 3-day termination
form), failure to comply with the fictitious name statute, no landlord
tenant relationship (again standing), or any litigate pleading requirement. 

The above are not defenses (unless you ask Judge Lee). You would not be able
to file any complaint without the basic sufficiencies of pleading.  

Furthermore, the legislature drafted a statute on “rulemaking” which is
delegated to the Fla. Supreme Court. Only the Courts are empowered to make
rules. (a hotly contested subject right now). 

The Florida legislature has promulgating rules (in Fla. Stat. §83.60) which
violate “separation of powers” doctrine by incorporating court procedure
which requires an immediate default judgment. (a procedure governed by the
rules of court) See Fla. Const. art. II, §3. 

In other words the statute quite clearly establishes a “substantive” right
to an immediate judgment and to seek an award of fees and damages for
failure to post money into the registry of the Court. While the legislature
has established this substantive right, it is the Florida Supreme Court that
has exclusive power to adopt rules for practice and procedure. See Fla.
Const. art. V, §2(a); see also Allen v. Butterworth, 156 So. 2d 52, 53 (Fla.
2000).  

I realize all the landlord’s problems with dead beat tenants but we are
attorneys entrusted with the responsibility of fairness to both landlords
and tenants.  I find the Florida Residential Landlord Tenant Act very
landlord friendly; probably the friendliest I can think of except for Texas.
You should all try to practice LL/T in New York City for one day and see
what a tenant friendly state looks like. 

Tenants are consistently screwed out of security deposit because they have
no money to hire an attorney.  Yet the landlords will put a debt on a
tenant’s credit report without a judgment or validation by anyone that debt
is fair and reasonable (except the property manager).  

Someone please knock me down off my soapbox!  

Please do not respond to me with “why don’t they just pay their Rent”.
Because I will respond back with “why do property manages act like tyrants
in their own little fiefdoms”. 

Sorry for the long post. Now I have an appointment with my physiologist. :-)

  _____  

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, July 22, 2011 2:07 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Review of Part 2,Section 83 Residential
Landlord/Tenant Act.

I agree with that one too.  Also, Neil, you suggested that the members email
you directly, but it might be a good idea for any comments to go the group
as a whole so we can all comment or make added suggestions.  Just a thought.

I have had a few situations where the Tenants are pros and they know if they
send the 7 day Notice to L/L that it is a defense to payment of rent, but
where they 7 day is either false or in bad faith or where the tenant then
prevents the L/L from accessing the property to either evaluate the
necessary repairs or to make the repairs.  This situation has made it
difficult to get the full advantage of the expedited process and ends up
giving the Tenant an extra month or two of free rent before being evicted.

Similarly, the 7 day Notice provision does not specify what repairs are a
basis for withholding rent.  Again, I've had tenants send a 7 day Notice for
a minor issue, withhold rent, and prevent access, and the Judge rules in
favor of the tenant solely because they send the 7 day.  Maybe the statute
could be a little more clear on what maintenance issues allow withholding
rent - e.g. issues that affect safety or habitability.

Cary Sabol 

Cary P. Sabol, Esq.

P.O. Box 15981

West Palm Beach, Florida 33416 

Phone: (561) 281-2744

Fax:     (561) 691-6049

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From: David Weisman <David.Weisman at gmlaw.com>
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Sent: Fri, July 22, 2011 1:51:16 PM
Subject: Re: [RPPTL LandTen] Review of Part 2, Section 83 Residential
Landlord/Tenant Act.

How about:

“Technical deficiencies in the three day notice which do not result in an
inaccurate demand for rent shall not be a basis for dismissal of an action
for eviction.”

David  Weisman

Board Certified Real Estate Lawyer

Greenspoon Marder, P.A.

Trade Center South, Suite 700

100 West Cypress Creek Road

Ft. Lauderdale, FL 33309

Phone 954-491-1120

Toll Free 888-491-1120

Direct Phone 954-343-6941

Direct Fax 954-343-6942

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Neil B. Shoter
Sent: Friday, July 22, 2011 10:05 AM
To: 'RPPTL Landlord Tenant Committee'
Cc: Neil B. Shoter
Subject: [RPPTL LandTen] Review of Part 2, Section 83 Residential
Landlord/Tenant Act.

Dear Members, I have been contacted by the Policy Chair for the Florida
House of Representatives, Civil Justice Subcommittee.  Apparently, there is
interest by the Florida legislature this year to comprehensively review Part
2 of Section 83, the Residential Landlord/Tenant Act.   I am told that this
is not being promoted by any particular constituency, but rather was on a
list of issues pending for a while and has now been picked for this year's
session.  We have been asked to provide our input on improvements to Part II
by mid-August with the intention that suggested changes to the Statute would
be put into a draft proposal by Mid-November for vote in February.   This is
obviously a short time frame.

I am told that there are no specific issues of concern to State leadership
with Part 2, but that they would like to see simplification of lease and
deposit disclosures, and perhaps a re-write of the maintenance statute,
which reads poorly.

If you practice in the Residential lease area and would like to give input
via a Subcommittee on this matter, please email me directly as soon as
possible.  If you wish to submit specific issues and edits to Part 2 to be
passed on to Tallahassee, you may also email those suggestions directly to
me.    Thank you.

Neil Shoter, Chair

  <http://www.shutts.com/shutts100.jpg> 

Neil B. Shoter 
Partner / LEED Accredited Professional  

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