[RPPTL LandTen] Unlawful Detainer issue

Tue Jan 31 11:10:02 PST 2012

Neil,

I recently handled two Unlawful Entry & Detainer cases in Palm Beach County and proceeded under Chapter 82 and both cases went very smoothly and we were able to have the trespassers removed in a relatively timely manner.  Sec. 82.03 specifically states these matters are entitled to summary procedure under Sec. 51.011.

Regarding his concern that this statute does not apply to residential properties, I would respectfully disagree.  Although Sec. 82.02(2) states: "This section shall not apply with regard to residential tenancies," my argument is that this is not a "tenancy."  It doesn't say the statute doesn't apply to "residential properties" it specifically says "tenancies" which I read to mean that you have to use Ch. 83 if a "tenancy" has been created.  In my humble opinion, illegally obtaining possession and occupancy of a property (residential or commercial) does not create a "tenancy."  Sec. 83.43(4) defines a "tenant" as "any persona entitled to occupy a dwelling unit under a rental agreement."  Since there is no rental agreement, the occupant cannot be a "tenant" and therefore, the situation is not a residential "tenancy."

Based on the above roundabout analysis, I would (and did successfully) argue that Ch. 82 does apply to this situation. 

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: Neil B. Shoter <NShoter at shutts.com>
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org> 
Sent: Tuesday, January 31, 2012 12:20 PM
Subject: [RPPTL LandTen] Unlawful Detainer issue

We
received the following inquiry regarding a residential eviction matter.   While
our ListServe is not intended to provide a free legal forum for advice to the
community at large, if you wish to offer a response to Mr. Haas on his question
of the applicability of unlawful detainer to his scenario, I invite you to
email Mr. Haas directly. 

Neil

From:Lee Haas
[mailto:lee at haas-castillo.com] 
Sent: Friday, January 27, 2012 12:11 PM
To: Meyer, George J.
Cc: Adams, Darlene
Subject: Chapter 82 issues

Mr.
Meyer,

I’ve
practiced law in Clearwater for the past 28 years, handling business,
construction, and real estate litigation, but only this last summer had my
first unlawful detainer case, referred by a fellow attorney.  I now have
another situation that appears tailor-made to resolution by filing an unlawful
entry and detainer case, except for the fact that it is residential
property.  The legislature amended the statute in 1977 to eliminate
residential cases from the scope of the statute, but it is not clear to me what
the alternative is.  I am contacting you as chair of RPPTL on the
suggestion of a judge who formerly served in the legislature in the hope that
you may have some insight into the statute or a means of suggesting an
amendment to the statute that would actually get considered. 

The
facts of my latest case are that my client left town, leaving keys to a rental
property with a friend (or so she thought).  When she returned, she found
that this “friend” had signed a lease to the property as landlord
with a convicted felon for two years with 0 rent except cleaning out the
place.  The felon proceeded to throw all my client’s stuff out of
her house, and has probably kept, sold, or pawned her valuables.  Unlawful
entry and detainer proceedings would be the quickest way for my client to
regain possession – but it is inapplicable to residential matters. 
The person doesn’t qualify as a tenant as defined in 83.43(4), because he
isn’t entitled to occupy under a rental agreement, so I question whether
part II of Chapter 83 provides the appropriate remedy.  He’s
arguably a trespasser, but chapter 66 doesn’t apply because he’s
not claiming ownership.

I
have to believe with the recent surge in foreclosures and empty properties, as
well as from some of the news stories, that this issue has come up
before.  What have you heard on how lawyers have dealt with these types of
situations?  Has anyone else suggested that maybe chapter 82 needs to be
tweaked to permit its use in certain types of residential matters?

Lee
L. Haas, Esquire
Haas &
Castillo, P.A.
Attorneys
At Law
19321-C U.S. Hwy 19 N, Ste.
401
Clearwater, Florida 33764
(727) 535-4544 telephone
(727) 535-1855 facsimile
lee at haas-castillo.com

 Neil B. Shoter 
Partner / LEED Accredited Professional  

________________________________

Shutts& Bowen LLP 
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
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 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.

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