[RPPTL LandTen] Girlfriend refuses to leave, now what?
Cary Sabol
sabollawoffice at yahoo.com
Tue Jul 7 12:42:40 PDT 2015
Like Harry said, the Sheriffs will never make that decision (at least in my experience). Their standard response is "it's a civil matter, take them to court." So if a person is physically inside the house, the only way to force them out is an eviction or unlawful detainer. Even the drunk friend who's just there for the night. So my advice is, be careful who you left crash on your couch.
I know your examples are meant to highlight how ridiculous the situation is, but I've dealt with all of those situations, except the guy in the back of bar (I think that's outside the scope since it's not residential), and every time the Sheriff has refused to provide any assistance we've had to file a case to get them out.
Cary Law Offices of Cary P. SabolP.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 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. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
From: Jeff Mazor <jmazor at mazor.com>
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org>
Sent: Tuesday, July 7, 2015 2:24 PM
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?
Haven't researched it yet, but.......
If a bar owner allows a drunk to "sleep it off in the back booth" overnight and then the drunk refuses to leave in the morning, is he "in possession"? Will the police take him away or will the aggrieved have to file suit?
If a condo apartment owner allows a drunk friend to "sleep it off in the back bedroom" overnight and then the drunk refuses to leave in the morning, is he "in possession"? Will the police take him away or will the aggrieved have to file suit?
What if he's invited for a weekend but then won't leave? Is he "in possession"? Will the police take him away or will the aggrieved have to file suit?
Assume that the "friend" pays no rent or consideration to anyone.
Any different if the condo unit owner gives him a key to the place?
Jeff
Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd., Suite 265-s
Hollywood, FL 33021
Email: JMazor at Mazor.com
Phone: 954-962-3500
Fax: 954-342-7703
-----Original Message-----
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Tuesday, July 07, 2015 11:53 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?
Based on your legal advice Chip (just kidding) I will try an unlawful detainer on my next lock out case (and I have three years to file it). I will report back how it goes.
Leonard P. Cabral
Leonardcabral at lenslaw.com
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Roland Waller
Sent: Tuesday, July 07, 2015 11:33 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?
I believe you can, since the landlord does not have tenancy to be in the property. The Tenant has the right of possession.
Thank You,
Roland "Chip" Waller, Esquire
Waller & Mitchell
5332 Main Street
New Port Richey, FL 34652
Office: 727-847-2288 / Fax: 727-848-4183
Roland.Waller at rdwaller.com
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Monday, July 06, 2015 8:11 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?
Since we are on the subject of unlawful detainer
If the landlord takes possession from the tenant without legal process, (lock out) can the tenant bring an action for unlawful detainer against the landlord? I believe the strict reading of the statute you can. I think it is irrelevant to such an action that the tenant’s possession is wrongful since the action for unlawful detainer is designed to compel the party claiming rightful possession (Tenant who was locked out) to use legal channels to evict the tenant. I haven’t done this yet only because I do not like the language in the statute regarding residential tenancies. (My first thought when I devised this plan to file an unlawful detainer against a landlord who locked out a tenant was that the language was specifically put in the statute so an unlawful detainer you could not be brought against a landlord in residential lockouts),
Anyone like to comment? Anyone agree or disagree?
Leonard P. Cabral, Esq.
Leonardcabral at lenslaw.com
Please disregard inadvertent misspellings
From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Monday, July 06, 2015 7:40 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?
CAUTION in these case. In my experience, Girlfriends find out that the Boyfriend want her out or is going to evict her, Girlfriend files an injunction for protection against domestic violence and the judge gives the girlfriend the rental dwelling. She doesn’t pay rent and Boyfriend is evicted.
I have attached the new section of the unlawful detainer statute.
Leonard P. Cabral, Esq.
Leonardcabral at lenslaw.com
Please disregard inadvertent misspellings
From: 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
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> 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.
Lainie J. Simon, Esq.
185 NW Spanish River Boulevard
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> 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
T: 561.989.3206 <tel:561.989.3206>
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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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From: 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
Phone: (561) 281-2744 <tel:%28561%29%20281-2744>
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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.
Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.
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From: Joseph Alexander <jalexander at lieserskaff.com>
To: RPPTL Landlord Tenant Committee <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
511 W. Bay Street
Suite 350
Tampa, Florida 33606
Phone: (813) 280-1256 <tel:%28813%29%20280-1256>
Fax: (813) 251-8715 <tel:%28813%29%20251-8715>
Email: jalexander at lieserskaff.com
Web: www.lieserskaff.com <http://www.lieserskaff.com/>
On Apr 2, 2015 3:08 PM, "Dariel Abrahamy" <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
200 E. Broward Blvd, Suite 1800
Fort Lauderdale, FL 33301
P: 954-491-1120 <tel:954-491-1120> ; F: 954-343-6972
Dariel.Abrahamy at gmlaw.com
From: 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> 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
F: 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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Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.
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