[RPPTL LandTen] Security deposit issues

Wed Jul 15 11:17:49 PDT 2015

Nothing will be done until there is a private right of action against these "pseudo lawyers" with a minimum $$ penalty since the Bar doesn't police UPL. The only other way to put them out of business is allow self help evictions but that would put everyone out of business.
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: Wednesday, July 15, 2015 12:19 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues

The Florida Bar needs to shut down these people who are using document preparation companies using the Supreme Court forms and causing public harm. The whole thing should be revisited by the Bar. Did the Bar intend to create pseudo lawyers who ARE giving legal advice?

Keep watching what is going on and what the Florida Bar is doing right before your eyes .

Soon only complex litigation will require lawyers.

I am glad that I put my 25 years in already.  The little guy is doomed.

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> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Gioia DeCarlo
Sent: Wednesday, July 15, 2015 7:47 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

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 didn't 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<mailto:landten-bounces at lists.flabarrpptl.org>> on behalf of Leonard Cabral <LensLaw at Lenslaw.com<mailto:LensLaw at Lenslaw.com>>
Reply-To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Date: Wednesday, July 15, 2015 at 2:28 AM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Subject: Re: [RPPTL LandTen] Security deposit issues

There is no definition for "rental agent" 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 "responsible for the day to day management of the residential rental property".   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<mailto:Leonardcabral at lenslaw.com>

From: landten-bounces at lists.flabarrpptl.org<mailto: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 tenant's 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 tenant's money. The agent is simply holding it. Whenever I see agents abscond with deposit money, the owner is on the hook for the agent's actions.

I really feel this is a case of sloppy drafting. My interpretation is that the "current owner"  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.

Let's say I designate my friend "Joe" to be my "rental agent" instead of my current property manager who is licensed and works for Century 21. Joe has no license, he simply is my "rental agent". 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> [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 judge's 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 tenant's 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 tenant's money being held, not the landlord's. 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> [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 "current owner" in the statute a mistake or on purpose? Is it obvious that a current owner has the same rights as a new "agent"  or a new "owner" so it goes without saying an agent can transfer to the current owner?

See attached from "Florida Bad Law Weekly".

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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