[RPPTL LandTen] Judges' enforcement of deposit requirements under 83.60

Tue Nov 22 09:11:00 PST 2011

Thanks all who commented.  I actually ran into another L/T attorney today in court and she says she is having the same problem with the same Judges.  I will see if there is a diplomatic way to resolve the issue that is fair to all parties concerned.

Cary 
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416 
Phone: (561) 281-2744 

________________________________

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________________________________
 From: Greg Hass <GregH at floridarealtors.org>
To: Cary Sabol <sabollawoffice at yahoo.com>; RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org> 
Sent: Monday, November 21, 2011 6:41 PM
Subject: RE: [RPPTL LandTen] Judges' enforcement of deposit requirements under 83.60

Sorry for the long fact pattern, but as you may see, I am getting more and more frustrated with the length of time evictions are taking in this County and the Judges' refusal to properly follow the governing statutes.  Is anyone else having similar problems?  Does anyone have any suggestions on how to streamline the process? 

Cary, 

No need to apologize - you certainly have my condolences.  Yes, I actually have several suggestions on how to streamline the eviction process but I don’t think any of them are currently legal – LOL. 

Your question reminds me of when I once had a JA tell me, in response to my inquiry as to why it was taking so long on an eviction I had filed, that Judge X simply “doesn’t like evicting people during the holiday season – so you’ll just have to wait until the new year.”  Apparently the fact that 83.59 says “the court shall advance the cause on the calendar” was of little import. 

I hate to say it, but unless and until you appeal one of the cases and get an appellate opinion that publicly chastises and admonishes the trial court for not following the law, I don’t think you’ll see much change.  The only other legal remedy I can think of would be to vote out the judges that don’t follow the law – easier said than done of course. 

Your AO strategy is intriguing – I actually used that strategy once when I was an Assistant County Attorney in a previous life and I kept running into a brick wall on a particular issue with the local judges.  I was able with the support of the County Commission to convince the Chief Judge to amend a previously vague AO (that gave the trial judges too much discretion IMO) to include much stricter guidelines that worked in my client the County’s favor.  The problem of course with your situation is that you already have a statute that seems crystal clear yet the judges are apparently choosing to ignore, so I don’t know if an AO will help in your circumstance.  It couldn’t hurt though so I wish you luck. 

Greg 

Greg Hass, Senior Counsel 

Office of Law & Policy |FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk:407.438.1400, ext. 2421
visit:http://www.floridarealtors.org 

The Voice for Real Estate® in Florida 

From:landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Monday, November 21, 2011 5:14 AM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Judges' enforcement of deposit requirements under 83.60   

Fellow Group Members:  

I am curious to know if any other residential L/T practitioners in Palm Beach County are having similar problems that I am to get Judges to enforce the deposit requirements of F.S. 83.60(2), as well as their own Orders to Deposit?  Or, even if they do issue an Order to deposit rent, they seem to have a vastly different interpretation of what "expedited" procedure means than I do.  

This discussion may only be of interest to Palm Beach County practitioners as that is where my experiences come from, but I have also handled evictions in a number of other counties and have had similar issues.  Here is the scenario:  

Landlord files for eviction for non-payment of rent.  Tenant files response, but neither pleads "payment as a defense" or challenges the amount due or deposits the amount of rent alleged to be due in the Complaint.  In response, L/L files a Motion for Default for Failure to Deposit Rent per F.S. 83.60(2).  

The response I usually get is either the Judge sets the case for Mediation or issues an Order requiring Defendant to deposit rent.  Personally, under these circumstances, I feel scheduling a Mediation is totally contrary to the Statute.  Ordering a Rent Deposit could be a satisfactory result, except that the Judges are giving the tenants as much as 3 + weeks to make the rent deposit, often pushing into another month without rent paid.  In my opinion, this is also contrary to the Statute's clear statement that evictions proceed under an expedited procedure.  And worse, more than 1/2 of the time when the Tenant does not deposit the rent despite the Court Order, the Judges simply ignore that issue, refuse to default the Tenants, and force the L/L to attend mediation and final hearing.  

I would appeal a few of these decisions, but obviously the time and expense required to do so outweighs the benefit.  My thought is that we need an Administrative Order in this County requiring Judges to either follow the governing Statute and default the tenants immediately upon their failure to either plead payment as a defense, file a valid Motion to Determine Rent, or actually deposit the rent money.  In addition, if the Court chooses to issue an Order to Deposit Rent, there should be a very short time limit for that deposit requirement - I would argue 3-5 days is fair, considering at this point you are generally pushing into 2-3 months without payment of rent due to the procedural delays.  And finally, if the Court issues an Order to Deposit and the tenant fails to comply, then an immediate default should be entered.  That exactly how the statute reads.  

It seems to me the F.S. 83.60 is very clear and the Judges are obviously aware of it and the case law, but many of them completely ignore the law and give so much free time to non-paying tenants that Landlords are being seriously prejudiced.  And worse, I am finding that there is a growing number of tenants who know how to manipulate the system to get as many as 3-4 months free and they just bounce from one place to another playing the same game.  The only way owning rental property will be profitable and fair, is if Landlords are able remove non-paying tenant expeditiously.   

Sorry for the long fact pattern, but as you may see, I am getting more and more frustrated with the length of time evictions are taking in this County and the Judges' refusal to properly follow the governing statutes.  Is anyone else having similar problems?  Does anyone have any suggestions on how to streamline the process?  

Cary   
Law Offices of Cary P. Sabol 
P.O. Box 15981 | West Palm Beach | Florida | 33416   
Phone: (561) 281-2744   
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 used 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.  

Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.               
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