[RPPTL LandTen] Security deposit issues

Wed Jul 15 04:47:08 PDT 2015

I have a case where the property manager hired a nonlawyer to fill out the
Sup. Court forms for an uncontested eviction.  Problems  with the filing
included that the nonlawyer named the property manager as the plaintiff.
Also, the nonlawyer checked off that the plaintiff owned the property and
filed all the other forms.  When my office was hired, because the tenant
became active, we voluntarily dismissed the eviction (in the nick of time
before the tenant hired a lawyer and was awarded fees) and refiled the
eviction properly.   Interestingly, and as an aside, the judge signed the
judgment and issued the writ of possession as few days after the dismissal,
initially making the property mgr ‹ and the owner/landlord ‹  think that we
didn¹t need to dismiss and start over.  Also note that the property mgr told
us that this nonlawyer has successfully filed lots of evictions for it in
the past (they were lucky, the tenants just left instead of hiring attorneys
or otherwise challenging)   My position was, is, that if the judge signed
the order beforel the dismissal, it would be our obligation (we filed a
notice of appearance) to advise the court of the mistake and to vacate the
judgment and I told the client that ‹ especially because the allegation that
the property mgr owned the property was a fraud upon the court to gain
standing for the property mgr.

My question is, if the property mgr can file the eviction (properly naming
the landlord/owner as plaintiff) and the rest of the forms to obtain judment
without a hearing, can the property mgr hire some other nonlawyer to file,
that is, act as agent of the property mgr to do the eviction?

Thank you.

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From:  <landten-bounces at lists.flabarrpptl.org> on behalf of Leonard Cabral
<LensLaw at Lenslaw.com>
Reply-To:  RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Date:  Wednesday, July 15, 2015 at 2:28 AM
To:  RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Subject:  Re: [RPPTL LandTen] Security deposit issues

There is no definition for ³rental agent² in Chapter 83 but property manager
is defined :
        Accordingly, for purposes of this opinion, a "property manager" is
defined as one who is responsible for the day-to-day management of the
residential rental property, as evidenced by such factors as responsibility
for renting of units, maintenance of rental property, and collection of rent
The Fla. Bar re: Advisory Opinion Nonlawyer Preparation of Landlord
Uncontested Evictions,605 So. 2d 868 (Fla. 1992), clarified, 627 So. 2d 485,
487 (Fla. 1993)

A rental agent is not a property manager. A rental agent advertises to rent
an apartment for rent, takes his/her commission and that should be all he
should be doing but because they have a real-estate license they think they
can practice law.   . On the other hand a property manager should be able to
take a security deposit since he/she is ³responsible for the day to day
management of the residential rental property².   If the rental agent is not
responsible for day to day management then anything after presenting the
lease for signature in my opinion is UPL.

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 14, 2015 1:42 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues

James,

The termination of management has nothing to do with the 30 day clock. I am
not sure I understand.

Management is terminated all the time prior to the end of the lease for a
myriad of reasons.

Forcing the agent to hold the tenant¹s money makes no sense especially when
the owner will most likely not comply with FS 83.49 and if the agent has
been fired, how does he/she have any power to inspect and make a claim on
the deposit?

The owner is responsible for the tenant¹s money. The agent is simply holding
it. Whenever I see agents abscond with deposit money, the owner is on the
hook for the agent¹s actions.

I really feel this is a case of sloppy drafting. My interpretation is that
the ³current owner²  is not mentioned because it is obvious that the money
can be transferred to the current owner who will have to comply with the law
just like the agent would if they were managing.

Let¹s say I designate my friend ³Joe² to be my ³rental agent² instead of my
current property manager who is licensed and works for Century 21. Joe has
no license, he simply is my ³rental agent². Note there is no definition of
rental agent in 83 unless I am missing it.  So the legislature intended it
is OK to transfer the money to Joe but not to ME as the owner?  It would
seem absurd.

Harry

LAW OFFICES OF 
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com <http://www.evict.com/>
Email: harry at evict.com <mailto:harry at evict.com>

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From:landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of James Zink
Sent: Tuesday, July 14, 2015 1:00 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

Harry, 

Do you have the Orlando case? To me, a big part of why the judge ruled this
way is not just the language of the statute, but the fact that the
termination of the management contract occurred after the tenant vacated,
thus starting the clock on the return of the deposit or the issuance of a
Notice of Claim. Without reading the Orlando case, I would think this
judge¹s interpretation is correct, largely because the statute is
essentially written in a way that presumes the deposit is to be returned but
for action by the landlord. In other words, it is the tenant¹s money until
it is properly claimed upon by the landlord. With that in mind, it is far
more pragmatic, given the facts here, to require the management team to hold
the deposit and notify the landlord in writing of the effect if the landlord
fails to cooperate and allow the inspection of the property as it is the
tenant¹s money being held, not the landlord¹s. I would be willing to bet the
judge would have ruled differently if the contract were terminated while the
tenancy was ongoing, based on how the decision was written.

James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892

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From:landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 12:39 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Security deposit issues

So, the owner fires management or management fires owner, where does sec dep
go?

Law: (7)  Upon the sale or transfer of title of the rental property from one
owner to another, or upon a change in the designated rental agent, any and
all security deposits or advance rents being held for the benefit of the
tenants shall be transferred to the new owner or agent, together with any
earned interest and with an accurate accounting showing the amounts to be
credited to each tenant account. Upon the transfer of such funds and records
to the new owner or agent, and upon transmittal of a written receipt
therefor, the transferor is free from the obligation imposed in subsection
(1) to hold such moneys on behalf of the tenant.

So. Sale from one owner to another, manager can transfer to new owner.
Change in designated agent, manager can transfer to designated agent.

Big question. Suppose transfer is from manager to current owner?

Orlando judge said manager had to transfer to current owner when management
was terminated.

Tampa case: attached. Opposite interpretation.

Issue: was the omission of ³current owner² in the statute a mistake or on
purpose? Is it obvious that a current owner has the same rights as a new
³agent²  or a new ³owner² so it goes without saying an agent can transfer to
the current owner?

See attached from ³Florida Bad Law Weekly².

This needs to be clarified.  It is an easy legislative fix.

Harry

LAW OFFICES OF 
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com <http://www.evict.com/>
Email: harry at evict.com <mailto:harry at evict.com>

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