[RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res LL-T Act

Tue Aug 2 15:18:46 PDT 2011

I don't agree with the holding in the Enderby case, Jeff.  I think that the
"noncompliance" has to be of the same character.  The statute says if the
landlord accepts rent with knowledge of a noncompliance by the tenant or
accepts performance by the tenant of any other provision of the rental
agreement that is at variance with its provisions.

The law recognizes/differentiates between monetary and nonmonetary defaults
and that the landlord can terminate the lease for monetary and nonmonetary
defaults.  In my opinion, that is what the statute does.  The statute first
talks about a waiver for accepting "rent" followed by  "or" and next talks
about waiver for accepting "performance by the tenant of any other provision
of the rental agreement that is at variance with its provisions".  

I would argue that a nonmonetary default cannot be waived by accepting
monetary performance.  

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Law Offices of
Scott A. Frank
Sent: Tuesday, August 02, 2011 2:56 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review
Res LL-T Act

Here's a quick variation from this commercial attorney who was faced with
this residential question:

What if the tenant did work to the house that was not objected to?
Specifically, tenant painted bedrooms and replaced light fixtures.  Landlord
had been in the home multiple times and viewed these changes.  Never
objected.  Rent was paid and accepted for an additional 6-9 months.  After
lease expiration, Landlord put a claim on the deposit.

Did landlord waive this claim?

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

7781 NW Beacon Square Boulevard, Suite 102

Boca Raton, FL 33487

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, August 02, 2011 2:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review
Res LL-T Act

A more common issue in the same vein is when a tenant owes a past due water
bill or electric bill and the landlord continues to accept rent.

I don't know the answer but tell my clients that if they accept rent with
knowledge of a continuing noncompliance, they may have waived their rights.
In the case of a past due elect bill type continuing noncompliance, if they
accept rent, I feel they can't take action that month. I tell them to serve
the 7 Day Cure the next month and if they want to proceed, refuse rent and
especially do not serve a Three Day.  I am not sure that a damage like a
broken window is a "continuing noncompliance".

Although it is a problem for landlords, it also can be unfair burden to a
tenant if a landlord is forced to evict for a $150 electric bill and can't
choose to accept rent and deal with the electric bill later.

Harry

LAW OFFICES OF 
HEIST, WEISSE, DAVIS & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
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Email: 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 Jeff Mazor
Sent: Tuesday, August 02, 2011 2:25 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res
LL-T Act

Someone please tell me I'm wrong.

Assume a residential lease prohibits the tenant from damaging the Landlord's
property; the Tenant does so anyway and thereafter refuses to pay for the
repairs but pays (and the landlord accepts) the accruing regular monthly
rent.  Later, the Landlord does a 7 day cure notice; the Tenant ignores it
and instead pays and the Landlord accepts the next month's rent. 

Eventually, the Landlord decides to sue. In light of Florida Statutes,
Section 83.56(5)*, it seems that the Landlord has lost any remedies he may
have had. For example:

Can he sue for possession?

Can he sue for money damages alone?

If by accepting the rental payments the Landlord has waived all remedies,
then we need to try to change the section. It would be crazy to force a
Landlord to chose immediately between suing a Tenant and losing the right to
sue.

See the below copy of Enderby v. Blades.

* FS 83.56(5) If the landlord accepts rent with actual knowledge of a
noncompliance by the tenant or accepts performance by the tenant of any
other provision of the rental agreement that is at variance with its
provisions, or if the tenant pays rent with actual knowledge of a
noncompliance by the landlord or accepts performance by the landlord of any
other provision of the rental agreement that is at variance with its
provisions, the landlord or tenant waives his or her right to terminate the
rental agreement or to bring a civil action for that noncompliance, but not
for any subsequent or continuing noncompliance. Any tenant who wishes to
defend against an action by the landlord for possession of the unit for
noncompliance of the rental agreement or of relevant statutes shall comply
with the provisions in s. 83.60(2). The court may not set a date for
mediation or trial unless the provisions of s. 83.60(2) have been met, but
shall enter a default judgment for removal of the tenant with a writ of
possession to issue immediately if the tenant fails to comply with s.
83.60(2). This subsection does not apply to that portion of rent subsidies
received from a local, state, or national government or an agency of local,
state, or national government; however, waiver will occur if an action has
not been instituted within 45 days of the noncompliance.

**   

7 Fla. L. Weekly Supp. 413b

Landlord-tenant -- Eviction -- Landlord waived right to evict tenants for
non-compliance where landlord accepted and cashed tenant's rental payment --
Complaint for tenant eviction dismissed without leave to amend 

RALPH T. ENDERBY, Plaintiff, vs. MONICA BLADES, NEGUS VICKERS and LATISHA
WILSON, Defendants. County Court, 17th Judicial Circuit in and for Broward
County. Case No. 00-01927 COWE. March 21, 2000. Jane Fishman, Judge.
Counsel: Charles L. Simon, C.L. Simon, P.A., Ft. Lauderdale, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION

TO DISMISS PLAINTIFF'S COMPLAINT

WITHOUT LEAVE TO AMEND

THIS CAUSE, having come before the Court for hearing on March 17, 2000 on
Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to Amend,
and the Court having heard the arguments and testimony provided and
otherwise being fully informed in the premises, the Court does hereby 

ORDER, FIND AND ADJUDGE as follows: 

1. Plaintiff filed a Complaint for tenant eviction against Defendants on
March 1, 2000 based on a Seven-Day Notice dated February 21, 2000 that
terminated Defendants' lease effective immediately, and gave Defendants
seven (7) days to vacate the premises. 

2. On or about March 8, 2000 Defendants tendered the March, 2000 rent to
Plaintiff, and Plaintiff acknowledged in Open Court that he accepted and
cashed said rent payment. The canceled check shows that it was deposited on
March 10, 2000 and paid on March 13, 2000. 

3. Section 83.56(5) of the Florida Statutes, provides that ``[i]f the
landlord accepts rent with actual knowledge of non-compliance by the
tenant... the landlord waives his right to terminate the rental agreement or
to bring a civil action for that non-compliance.'' Pursuant to Section
83.56(5), Plaintiff waived his right to evict Defendants based on the
grounds stated or referred to in the February 23, 2000 Seven-Day Notice.
Moskos vs. Hand, 247 So. 2d 795 (4th DCA 1971). The In Apartments vs. Lisa
McGauley and Allen Bryant, Case No. 98-3771 COWE (80), 5 F.L.W. Supp. 848b,
decided by Judge Steven B. Shutter on June 22, 1998. Deerfield East
Associated, Ltd. vs. Sara Cooper, Case No. 96-18097, Judge Jay S. Spechler
(November 5, 1996). Homefinders vs. John (Sean, Malloy, Case No. 97-1208,
Judge Jay S. Spechler (February 4, 1997). Jonathan Scott vs. Regina Jordan
and Robert Lee Wilson, Case No. 97-16156, Judge Zebedee W. Wright (November
25, 1997). San Marco Partners, L.C. vs. Jennifer Wright, Case No. 98-2115
COCE (56) [5 Fla. L. Weekly Supp. 630b], Judge Ronald Rothschild (March 5,
1998). 

4. Due to Plaintiff's acceptance of rent, there is no need for this Court to
render an opinion as to whether Plaintiff's Seven-Day Notice dated February
21, 2000 fails to comply with the statutory requirements of Section 83.56(2)
of the Florida Statutes, for the reasons noted in Defendants' Motion to
Dismiss. 

5. Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to
Amend is hereby granted. 

6. Defendants are the prevailing parties in this action. 

7. Defendants' counsel, Charles L. Simon, is entitled to recover reasonable
attorneys' fees of and from Plaintiff RALPH T. ENDERBY. 

8. The Court retains jurisdiction to award costs, including reasonable
attorneys' fees against Plaintiff. 

* * *

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