[RPPTL LandTen] Termination of short term occupancy without rent or lease

Thu Aug 23 05:16:40 PDT 2012

Thank you.

The real lesson is create a lease

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Dennis Chen
Sent: Wednesday, August 22, 2012 7:42 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without rent or lease

I recommend ejectment because some judges will find that Ch 82 does not apply because it is residential property.  i believe I understand the argument that it is not a residential tenancy but nonetheless, there are many judges that will disagree and the process can take much longer.  Take a look at the Broward county decision below.

Dennis A. Chen, Esq.
Chen Law Firm, PA
5401 S. Kirkman Rd., Ste. 310
Orlando, Florida 32819
Tel:   (407) 392-1872<tel:%28407%29%20392-1872>
Fax: 1-866-571-3421<tel:1-866-571-3421>
dennis at chenlaw.net<mailto:dennis at chenlaw.net>

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18 Fla. L. Weekly Supp. 556a

Online Reference: FLWSUPP 1806BERA

Landlord-tenant -- Eviction -- Unlawful detainer -- Action for unlawful detainer is inapplicable to residential tenancy -- Proper procedure is action for ejectment

THE ESTATE OF LOUIS N. BERARDI, Plaintiff, vs. VIRGINIA NASH & ALL OTHERS IN POSSESSION, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-20309 COCE (55). March 1, 2011. Honorable Sharon L. Zeller, Judge.

ORDER ON PLAINTIFF'S MOTION FOR REHEARING

THIS CAUSE came before the Court on Plaintiff's motion for rehearing. The Court having considered same, and being otherwise fully advised in premises, finds and decides as follows:

On or about January 25, 2011, this Court dismissed plaintiff's action against defendant for unlawful detainer, finding that Florida Statutes §82.02(2) and §82.04(2) specifically provide that an action for unlawful detainer is inapplicable to residential tenancies. Plaintiff has now filed a motion for rehearing arguing that this Court misinterpreted the meaning of the term "residential tenancies" as used in the context of Chapter 82, Florida Statutes. This Court has carefully reviewed the applicable statutes, the case law and other materials interpreting unlawful detainer and residential tenancies. This Court disagrees with plaintiff's argument that there was any misinterpretation on this court's part with regard to either Chapter 82 or Chapter 83 as it regards residential tenancies. Nash v. Hunt, 434 So.2d 51 (Fla. 3d DCA 1983). With all due respect to those other courts which have permitted an unlawful detainer action in a case such as this, it is this Court's opinion that the proper procedure here is an action for ejectment, not unlawful detainer. Toledo v. Escamilla, 962 So.2d 1028 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1876a]; Gonzalez v. Benoit, 424 So.2d 957 (Fla. 3d DCA 1983) receded from on other grounds Nash v. Hunt, supra.

Accordingly, it is hereby

ORDERED AND ADJUDGED that Plaintiff's Motion for Rehearing is DENIED.

* * *
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On Wed, Aug 22, 2012 at 7:05 PM, Harry Heist <harry at evict.com<mailto:harry at evict.com>> wrote:
Were they contested?

Harry

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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org>] On Behalf Of Alberto M. Cardet
Sent: Wednesday, August 22, 2012 6:52 PM

To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without rent or lease

I agree with Lainie.  I've done a few in Miami-Dade under chapter 82, where the client's friend or friend of friend moved in and does not want to leave.  Had one were client agreed to "lend" the key to a prospective tenant to see the property, prospective tenant "borrowed" key moved in and changed locks.   Another where client "lent" vacant apartment to friend of a friend to use for storage, friend moved in and refused to leave.

I say go with Chapter 82, Civ Pro Form 1.938

Good Luck

Albert

Alberto M. Cardet, P.A.
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Miami FL 33145
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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Lainie Simon
Sent: Wednesday, August 22, 2012 6:24 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without rent or lease

Why can't you try Ch 83 but with Ch 82 in the alternative?  If there is no residential tenancy, there is a peaceable entry  but unlawful detainer.  At least you are in county court. I did this several years ago in PBC and Judge Lopez was good with it.

Lainie J. Simon, Esq.

185 NW Spanish River Boulevard

Suite 220

Boca Raton, FL  33431

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On 8/22/12 5:38 PM, Lloyd Granet wrote:
Question:

Vacant house owned by trust
An individual is allowed to occupy on temporary basis (child of beneficiary of trust and contingent beneficiary of trust) without charge, while house is up for sale
House goes under contract and closing is scheduled.  "Occupant" says unwilling to move out.
How can Occupant be removed?

This email message was sent by:
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Main Number:  (561) 999-9300 x110<tel:%28561%29%20999-9300%20x110>
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