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

[Cary Sabol]

Rather than repeat the horror stories, suffice to say I completely agree with all of those who have commented on this issue.  I never know whether to advise my clients to accept the partial payment or not.  As they say, a bird in the hand...  And I generally work with small/independent landlords, so they often need the money more than the tenants do.  Would love to see a "fix" on this issue.

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: Harry Heist <harry at evict.com>
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org> 
Sent: Thursday, December 1, 2011 11:42 AM
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 
Email: harry at evict.com
THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.
 
 
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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