[RPPTL LandTen] Strange Question/Common situation

[Greg Hass]

Harry,

My interpretation of 83.59 (7) is consistent with yours.  I don't believe the statute authorizes the release to the LL where the LL self-designates himself as the new "property manager".  I agree that the T's permission should be obtained in that circumstance.

The only way to get a FREC opinion these days would be to ask FREC for a declaratory statement.  In the past, when FREC had a private attorney (Danny Villazon) representing them, Danny would sometimes read letters he received on behalf of FREC at the beginning of their meetings and they would informally advise Danny on how they wanted him to respond.  But these days FREC has someone from the AGO representing them at their meetings and I don't believe they engage in informal letter writing anymore.

Greg

Greg Hass, Senior Counsel

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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, December 06, 2011 4:16 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Strange Question/Common situation

I would love to know how to advise my clients on this.

Scenario: The property manager gets fired, owner wants to self manage. Property manager has been holding the Sec Dep in her Escrow Account.
Question: Can the property manager move the money from the Escrow Account to the owner's Florida bank account (escrow) and notify the tenant or does the tenant have to give permission?  If you ask for permission, most tenants will say NO.


Law: FS 83.49 ... (7)  Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records as stated herein, and upon transmittal of a written receipt therefor, the transferor shall be free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant. However, nothing herein shall excuse the landlord or agent for a violation of the provisions of this section while in possession of such deposits. ...





2 ways to read this:



1. If NEW OWNER or NEW AGENT, just transfer the money. If CURRENT OWNER wants it YOU CAN'T TRANSFER (without permission of tenant)



OR



2. "CURRENT OWNER" is not mentioned because it is IMPLIED that it would be OK to transfer to the CURRENT OWNER with no need for tenant permission.


I always told my clients to get tenant permission if it is being transferred to the CURRENT OWNER but as mentioned, often the tenant refuses. I asked a FREC Commissioner and he said 'FREC COULD NOT CARE LESS" and FREC does not want to be involved. One of my property manager clients got sued by the CURRENT OWNER a while back because the property manager followed my advice and would not transfer the money to the CURRENT OWNER without the tenant permission as the tenant was still in the unit and the judge said that permission by the tenant was not necessary.

Thoughts?   Is it better to ask for permission or forgiveness???   I am not so much worried about the statute as it is weak in the penalty arena BUT I worry about FREC as this would be considered "failure to account and deliver".    Is there any way to get a FREC opinion?

Harry


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