[RPPTL LandTen] FW: draft changes for HB 305

Wed Feb 25 09:32:51 PST 2015

Just to add to Patrick,  I challenge affidavits and win most of them. There are too many requirements for an affidavit for a lay person (and some lawyers) to understand.  And then you get a attorney like me to get the affidavit stricken and the landlord now has an unlawful eviction on his hands. $$$   I understand the problem and I will ponder on a possible solution.

Leonard P. Cabral, Esq.
Leonardcabral at lenslaw.com

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Lloyd Granet
Sent: Tuesday, February 24, 2015 8:07 AM
To: Pat at hoganlegalservices.com; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] FW: draft changes for HB 305

Pat

Would you like the opportunity to participate and make the statute better?

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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 Pat at hoganlegalservices.com<mailto:Pat at hoganlegalservices.com>
Sent: Tuesday, February 24, 2015 12:52 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] FW: draft changes for HB 305

"The original idea of the sponsor was that a law enforcement officer could remove a person who is clearly a transient occupant. This draft improves on the original bill by requiring a sworn statement from the real owner, providing for a civil summary eviction action if the law enforcement officer will not remove the transient, and providing a non-transient with a cause of action for wrongful removal."

First time reader of Draft #4 with years of landlord/tenant and unlawful detainer actions, but this bill confusingly reads like a policy to just get a person out on an affidavit.

As to living up to the claimed original idea of the sponsor, the bill does not clearly articulate transient occupant, but rather provides a non-exhaustive (and probably also non-conclusive) list of factors, when the claimed intent is to facilitate and clarify with precision the removal of "a person who is clearly a transient occupant".

Further, the possesion language does not reflect ownership, but rather seems to include a wide-variety of apparent possessory claims of interest supported by mere affidavit (like the kind supporting claims in courts rather than conclusions). We all know lots of attorneys that don't appreciate the difference between unlawful detainer, eviction or ejectment let alone lay people having the right to make an affidavit supporting that someone is clearly a transient occupant. Why is the possession language different than 810.08 which says,"the owner or lessee of the premises, or by a person authorized by the owner or lessee".

The current 83.04 already provides a summary action, so none is actually created by the bill, but rather an action is available when law enforcement doesn't do what the affiant claims.

Like other commenters from the listserv, I too am confused by proposed paragraph (3). Police and sheriff's deputies have for years told Floridians that they won't get involved in civil living arrangement matters, outside of criminal activity or family DV matters.  Under the bill they may(?) respond to an affidavit, and figure out if the affidavit is on behalf of some person/entity that is claiming entitlement to possession? Will the practical impact be to go in search of law enforcement officers willing to aid the affidavit removal  process, given a history of staying out of auch disputes? Or will word circulate among law enforcement that they are indemnified so they can act on any afffidavit?? Are they supposed to check property ownership records (most won't)? And how would they have any idea about (sub)leases, verbal agreements, or assignability or otherwise related to possession?

Any attorney or judge working in this space knows Florida's history of no self help (eviction, unlawful detainer or ejectment actions for possession), and an affidavit combined with law enforcement indemnification doesn't seem well planned, nor balanced, given a lack of judicial involvement and no provision for attorneys fees to a wrongfully aggrieved party.

One of the factors allows a person actually paying rent to be considered a transient (factor (1)(a)5.)?? This seems to contradict the landlord tenant act.

Finally, the right to injunctive relief (preserving the status quo)seems hollow when a person is already removed (as the bill appears to allow immediate removal).

The bill disappointingly reads as though the original concept was that "Because I Said So" in an affidavit a person should be removed by law enforcement, who will have almost no accountability or downside liabilty for just following the affiant.

Patrick T. Hogan, Esq.

-------- Original message --------
From: Arlene Udick <arlene at udicklaw.com<mailto:arlene at udicklaw.com>>
Date: 02/23/2015 6:29 PM (GMT-05:00)
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Subject: [RPPTL LandTen] FW: draft changes for HB 305
Rob just sent me an updated draft of proposed HB 0305

Arlene C. Udick, Esq.
(p) 352-391-1888
(c) 352-217-3176

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-----Original Message-----
From: Freedman, Robert S. [mailto:RFreedman at cfjblaw.com]
Sent: Monday, February 23, 2015 6:25 PM
To: Arlene Udick
Cc: Freedman, Robert S.; Steven H. Mezer
Subject: Fwd: draft changes for HB 305

Arlene, here is an updated version.  Thanks.  Rob

Robert S. Freedman
Sent from my iPad

Begin forwarded message:

From: Peter Dunbar <PDunbar at deanmead.com<mailto:PDunbar at deanmead.com<mailto:PDunbar at deanmead.com%3cmailto:PDunbar at deanmead.com>>>
Date: February 23, 2015 at 6:09:00 PM EST
To: Robert Freedman <RFreedman at cfjblaw.com<mailto:RFreedman at cfjblaw.com<mailto:RFreedman at cfjblaw.com%3cmailto:RFreedman at cfjblaw.com>>>, Steve Mezer <smezer at bushross.com<mailto:smezer at bushross.com<mailto:smezer at bushross.com%3cmailto:smezer at bushross.com>>>
Subject: Fwd: draft changes for HB 305

Updated version for review.

Sent from my iPad

Begin forwarded message:

From: "Bond, Nathan" <Nathan.Bond at myfloridahouse.gov<mailto:Nathan.Bond at myfloridahouse.gov<mailto:Nathan.Bond at myfloridahouse.gov%3cmailto:Nathan.Bond at myfloridahouse.gov>>>
Date: February 23, 2015 6:03:55 PM EST
To: 'Peter Dunbar' <PDunbar at deanmead.com<mailto:PDunbar at deanmead.com<mailto:PDunbar at deanmead.com%3cmailto:PDunbar at deanmead.com>>>
Cc: Martha Edenfield <MEdenfield at deanmead.com<mailto:MEdenfield at deanmead.com<mailto:MEdenfield at deanmead.com%3cmailto:MEdenfield at deanmead.com>>>
Subject: RE: draft changes for HB 305

Tom Cibula had some technical/grammar/style suggestions that are in this revised draft #4.

The original idea of the sponsor was that a law enforcement officer could remove a person who is clearly a transient occupant. This draft improves on the original bill by requiring a sworn statement from the real owner, providing for a civil summary eviction action if the law enforcement officer will not remove the transient, and providing a non-transient with a cause of action for wrongful removal.

From: Peter Dunbar [mailto:PDunbar at deanmead.com]
Sent: Monday, February 23, 2015 3:28 PM
To: Bond, Nathan
Cc: Martha Edenfield
Subject: RE: draft changes for HB 305

I am on it.

[cid:image001.gif at 01D04F91.8502F480]<http://www.deanmead.com/>

Peter M. Dunbar
Attorney at Law
<mailto:PDunbar at deanmead.com>PDunbar at deanmead.com<mailto:PDunbar at deanmead.com<mailto:PDunbar at deanmead.com%3ePDunbar at deanmead.com%3cmailto:PDunbar at deanmead.com>>

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From: Bond, Nathan [<mailto:Nathan.Bond at myfloridahouse.gov>mailto:Nathan.Bond at myfloridahouse.gov<mailto:Nathan.Bond at myfloridahouse.gov%3emailto:Nathan.Bond at myfloridahouse.gov>]
Sent: Monday, February 23, 2015 3:27 PM
To: Peter Dunbar
Cc: Martha Edenfield
Subject: draft changes for HB 305

Pete,

You said you could run this by your landlord-tenant subcommittee.
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