[RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's right toi sue for possession

Thu Dec 1 11:38:23 PST 2011

Harry

I told the Seminole County Clerk that their pro-se complaint form did not
comply with Fla. Bar Forms AND did not comply with the rules of pleading. I
was ignored. So I brought a motion to dismiss for violation of the rules of
pleading. The judge agreed that the form did not comply with the law but
that a pro-se litigant should be able to rely on the forms provided by the
Clerk.  I filed a UPL complaint against the clerk and received a negative
decision from the Fla. bar stating that the Rules allow Chief Judges to
approve forms for use by the clerk..  What? First there was no indication
that the chief judge approved the form; second how does a chief judge
rewrite Fla. Bar Approved forms? 

In 2010 the Fla Bar just revamped the forms to make it easier to fill in the
blank. Why don't they just fill in the blank with GET AN ATTORNEY?  The
Supreme Court denied cert and could have cleared up some of this mess. You
are right, (for once in your life (you know that I am kidding)), this is
hurting the public and the profession. The worst thing to give the public a
sense of fairness in the judicial system is when an attorney decides on
taking a case based on the judge that presides over the case rather than the
law.  It seems from your email that you are sick of this crap. I am feeling
your pain.  Next time you are in Orlando let me know. I think they opened a
new White Castle in Orlando. (Sorry group, no White Castle. Just an inside
story between Harry and I).  

Leonard Cabral, Esq.

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Thursday, December 01, 2011 11:43 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

This distorted  and completely wrong view was started by Judge Martinez in
Orange County years ago and is spreading. It has even gone further where
some judges feel you completely waive your right to the balance forever if
you accept a partial payment.

This interpretation which has been promoted by those doing tenant defense
work is resulting in landlords refusing to take ANY partial payments and in
the end, MORE tenants get evicted. 

To further the problem, some of this garbage, often in a twisted, inaccurate
and distorted fashion gets published in Florida Law Weekly which some judges
rely upon.

It is completely out of control and possibly the admin judges need to find
out what is going on.  The system is becoming clogged and in 21 years I have
never seen such an incredible mess.

Since the foreclosure debacle, more judges are gun shy and are setting
hearings where there is no money in the registry in complete violation of
the law.

The plethora of the wannabe attorney fake scum who charge people to "prepare
documents" has resulted in a massive amount of defective cases. 

The Bar should revisit these terrible fill in the blank forms that non
attorneys are allowed to prepare.  They are HURTING the public and the
profession. 

Harry Heist

LAW OFFICES OF 
HEIST, WEISSE, DAVIS & WOLK 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

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jeff Mazor 
Sent: Thursday, December 01, 2011 11:25 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

A number of residential eviction cases have been dismissed with prejudice
based upon what I believe is a very distorted interpretation of FS, Section
83.56(5), copied at the bottom of this email. This may be something that
should be addressed by our committee. 

We know that when a Landlord accepts rent, she loses the right to proceed on
any  already-delivered Notice to Pay or Vacate, and must prepare and deliver
a new Notice to Pay or Vacate reflecting the reduced outstanding balance.
There is some indication that some judges may be uncomfortable with a
Landlord accepting a partial payment and then quickly serving a new Notice
to Pay or Vacate. 

These cases have held, in effect, that when a Landlord accepts rent that
includes any partial payment for the current month, she not only loses the
right to proceed on any  already-delivered Notice to Pay or Vacate,  but
also loses the right to do a new Notice to Pay or Vacate for the outstanding
balance for the current month, and loses the right to sue for eviction until
after the beginning of the next month!

The few judges that adhere to this approach seem to treat the current month
as a unified whole so that accepting any partial payment for that month
waives all enforcement rights for the whole month.  

The orders of dismissal contain language such as:

            “2.        Plaintiff waived the right to bring this action by
accepting rental monies during the period of noncompliance being sued. §
83.56(5), Fla. Stat. Plaintiff accepted $500.00 in August.

            3.         Under § 83.56(5), Fla. Stat., when a landlord accepts
rent with actual knowledge of noncompliance by the tenant, the landlord
waives his or her right to terminate the rental agreement for the
noncompliance. Hodgson v. Jones, 6 Fla. L. Weekly Supp. 758a (Fla. 17th Cir.
Ct. 1999).

            4.         A partial payment of the rent is an act of
noncompliance for the reason that at the time the landlord accepts the
partial payment the landlord is aware that the tenant is not in full
compliance with the terms of the rental agreement.”

As a practical matter, this approach means that if a tenant can only make a
partial payment for a given month, unless it is very substantial, the
Landlord probably should refuse the partial payment and instead proceed to
evict because, otherwise, the tenant will be able to stay for the entire
month without paying anything beyond that partial payment. 

This seemingly pro-tenant interpretation of the statute, if allowed to
stand, will simply mean more evictions and less ability to give any
consideration or flexibility to the tenants.

Your thoughts?  

Jeffrey R. Mazor, Esq.

J. R. Mazor & Associates, P.A.

Presidential Circle Building 

4000 Hollywood Blvd.,  Suite 265-s

Hollywood, FL 33021

Phone: 954-962-3500

Fax:       954-962-3560

Email:   JMazor at Mazor.com

Florida Statutes, Section 83.56(5) says, in part: 

            (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 . . . the landlord . . . 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.   . .
.

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