[RPPTL LandTen] Girlfriend refuses to leave, now what?

Tue Jul 7 08:49:24 PDT 2015

I live in Sanford where men are men and kids in hoodies are scared to death.  Sanford police will probably shoot a transient occupant first then ask the landlord if he is sure that the transient occupant is a trespasser (second).  It is going to take 10 years for my property value to go up after Trayvon Martin incident.
Since the police have no liability I don’t see why they won’t do it.  They do it for Hotels and Motels all the time.  There is one building in my town that has a hotel license that rents by the month (only) and tenants have lived there for years and the police and/or sheriff will put them out at the landlords request.
Leonard P. Cabral
Leonardcabral at lenslaw.com

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 07, 2015 11:06 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

Good luck getting the Sheriff to do this.

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] On Behalf Of Arlene Udick
Sent: Tuesday, July 07, 2015 11:00 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

The remedy in this case is unlawful detainer under Chapter 82.  A new section has been added to Chapter 82 and became law July 1, 2015.  Interesting to see how the police departments react to the new section.

Attached also is something Anthony Horky drafted a few years ago.  I refer to it each time a unlawful detainer or eviction comes up.  Thank you Anthony and I hope you don’t mind me sharing your work with the group.  Arlene

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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 Dennis Chen
Sent: Monday, July 06, 2015 9:42 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I use the unlawful detainer statue without any reference to the eviction statute.  Unlawful detainer does not provide for attorneys fees, the eviction statute does.  They both provide for summary procedure under 51.011.  In the central Florida area I have had only one county judge hold up the process and after a hearing where I explained what was going on the judge entered judgment for possession.
If the girlfriend raises some claim that she is a tenant, then just set it for hearing and have her prove her case.  You can amend the complaint at that point to include eviction.

Dennis A. Chen, Esq.
Chen Law Firm, PA
13360 W. Colonial Dr, Ste. 470
Winter Garden, Florida 34787
Tel:   (407) 392-1872
dennis at chenlaw.net<mailto:dennis at chenlaw.net>

Bankruptcy * Civil Litigation * Landlord/Tenant * Personal Injury * Real Estate Litigation
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On Fri, Apr 3, 2015 at 12:47 PM, Lainie Simon <ljsimon1 at comcast.net<mailto:ljsimon1 at comcast.net>> wrote:
It never leaves unlawful detainer only.
Always do an alternative count for eviction.  You don’t know what she is going to say and you don’t know the comfort level of the judge with unlawful detainer.  You also have to think of the clerk and JA—they know eviction but not unlawful detainer.  There is theory and reality.  Reality holds that you always include a count for eviction.

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Suite 220
Boca Raton, FL  33431
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On Apr 3, 2015, at 10:53 AM, Anthony J. Horky <ahorky at horkylaw.com<mailto:ahorky at horkylaw.com>> wrote:

Thank you everyone for your excellent input.

Based on the opposing views this seems to be a grey area.  I’m inclined to try unlawful detainer first but have recommended that the tenant attempt to pay the ex-girlfriend to leave.  There are several incidents of prior police calls so the references to a restraining order was well taken.  So was the comment that the landlord may find the tenant in breach and have them both removed.  I do not believe that ejectment is correct as there is no issue of who has better title to the residence, and eviction is not applicable because there is no rental agreement, oral or written, between the tenant and his girlfriend.  That leaves unlawful detainer only.

82.04 Remedy for unlawful detention.—
(1) If any person enters or has entered in a peaceable manner into any lands or tenements when the entry is lawful and after the expiration of the person’s right continues to hold them against the consent of the party entitled to possession, the party so entitled to possession is entitled to the summary procedure under s. 51.011<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0051/Sections/0051.011.html>, at any time within 3 years after the possession has been withheld from the party against his or her consent.
(2) This section shall not apply with regard to residential tenancies.

This is a case of two persons living in a residence, but for the girlfriend it is not a “residential tenancy.”  Although Chapter 82 does not apply to “residential tenancies” there is no such defined term under Chapters 82 or 83.  As I wrote in ActionLine last year, without a definition we should look to the terms under 83 that together can be used to define such a tenancy.  There is no indicia of such tenancy here. The girlfriend did not enter into a “rental agreement,” she is not a “tenant,” the tenant is not a “landlord,” and the girlfriend is not paying “rent.”  At the same time, the tenant is entitled to possession.

Regards,

<image002.png>

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

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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 Cary Sabol
Sent: Thursday, April 02, 2015 3:38 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

Same here.  I've filed many unlawful detainer cases under Chapter 82 for various reasons, including facts similar to the case in discussion.  I would recommend Chapter 83, not Ejectment.

Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
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From: Joseph Alexander <jalexander at lieserskaff.com<mailto:jalexander at lieserskaff.com>>
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Sent: Thursday, April 2, 2015 3:22 PM
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I agree with Daniel and the others...unlawful detainer.
Please excuse any typos, as this email was sent from my mobile device.
Thank you,
Joseph N. Alexander
LIESER SKAFF ALEXANDER, PLLC
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On Apr 2, 2015 3:08 PM, "Dariel Abrahamy" <Dariel.Abrahamy at gmlaw.com<mailto:Dariel.Abrahamy at gmlaw.com>> wrote:
I don’t necessarily agree that unlawful detention only applies to non-residential tenancies.  I think 82.02(2) and 82.02(4) simply mean that you can’t file an unlawful detention action if you have a residential landlord-tenant relationship.  Here, there is no landlord-tenant relationship between the tenant and his girlfriend. The landlord-tenant relationship exists between the tenant and his landlord.  To file an ejectment, you need to have a valid claim to legal title. The tenant doesn’t have legal title.

Unlawful detainer would be my recommendation. Richards v. Finley, 259 So.2d 167.

<image003.jpg>
Dariel Abrahamy, Esq.
Shareholder
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Fort Lauderdale, FL 33301
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Dariel.Abrahamy at gmlaw.com<mailto:Dariel.Abrahamy at gmlaw.com>

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 Conrad Kahn
Sent: Thursday, April 02, 2015 2:03 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I believe unlawful detainee only applies to nonresidential tenancy.  See Fla. Stat. 82.02.  And eviction would be inappropriate too because there's no landlord-tenant relationship. Therefore, the proper cause of action is ejectment under chapter 66.  This must be filed in circuit court unfortunately.
On Apr 2, 2015 11:53 AM, "Anthony J. Horky" <ahorky at horkylaw.com<mailto:ahorky at horkylaw.com>> wrote:
Members:
I received a call from a tenant who signed a residential lease.  After taking possession, he allowed his girlfriend to move in who does not pay rent and did not sign the lease.  The relationship soured and now girlfriend refuses to leave.  I am of the opinion that although the tenant  is still in possession and entry by the girlfriend was lawful, her permission to remain in possession has been withdrawn and the tenant’s remedy is unlawful detainer.  Any feedback would be greatly appreciated.  Thank you.

Regards,

<image004.png>

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206<tel:561.989.3206>
F: 561.952.0096<tel:561.952.0096>
www.horkylaw.com<http://www.horkylaw.com/>

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky at horkylaw.com<mailto:ahorky at horkylaw.com>.
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