[RPPTL LandTen] Commercial Lease - roof issues

Tue Jul 26 07:38:35 PDT 2016

And now on to a new topic.  One without (hopefully) any political ramifications - evil corporation landlord vs. evil corporation tenant in a commercial leasing setting.

Tenant moves in to a multi-tenant industrial building on an “as is” basis.  Lease describes what portions Tenant has to maintain (interior, doors and windows, building systems, etc.).  Lease is completely silent on landlord’s obligations, with no one having explicit responsibility with regard to roof, structure, etc.  Roof is now in crappy condition – to the extent that parts of ceilings are falling down regularly.  So my question is, which of these is tenant’s best remedy?

1.       Give notice and move out if no prompt action by landlord? (tenant’s preference)

2.       Repair the work and offset cost against rent?  (yikes)

3.       Give 20 days’ notice as to untenantability and withhold rent if not repaired? (Although 83.201 specifically states that it relates to obligations of landlord under the lease)

4.       Sue under an implied warranty of suitability/fitness – or even try habitability?

5.       Sue under an implied covenant of quiet enjoyment?  (you guessed it – lease doesn’t have one)

Any and all responses are most welcome.  But keep it civil, folks!

Scott A. Frank

Attorney at Law

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank P.A
Sent: Tuesday, July 26, 2016 9:09 AM
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

Thanks Rick.  I have too often seen other listservs I participate in devolve into name-calling based on client base, and I would hate for that to be the route that this one goes down.  I have used this listserv on many occasions to reach out to my colleagues for your expert advice, and have always walked away more knowledgeable.

Thanks to all participants, as each one of you has helped me to improve my practice.

Scott A. Frank

Attorney at Law

LAW OFFICES OF SCOTT A. FRANK, P.A.

5301 N. Federal Highway, Suite 170

Boca Raton, FL 33487

p:  (561) 826-5400

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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 rick.eckhard at hklaw.com <mailto:rick.eckhard at hklaw.com> 
Sent: Tuesday, July 26, 2016 8:48 AM
To: landten at lists.flabarrpptl.org <mailto:landten at lists.flabarrpptl.org> 
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

I appreciate the importance of this discussion and am impressed by the level of emotional and professional commitment demonstrated by the participants.  The value of this listserv is that it facilitates and encourages discussion among lawyers with diverse experience and opinions.   We should strive to focus exclusively on issues rather than on the genesis of a participant’s position.   The listserv can provide the maximum benefit to our members only if it is a safe place for an open and respectful discussion of all opinions.   

Rick

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Partner
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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: Monday, July 25, 2016 11:08 PM
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org <mailto:landten at lists.flabarrpptl.org> >
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

We were told once before by the committee chair to refrain from attacks or discussions back and forth  between specific attorneys on this listserv.

If this is going to be allowed, take me off of this listserv. Discussing the names of other attorneys on this listserv  and what they know or do not know or what experience they have or do not have is inappropriate, insulting, misinformed and wrong.  

I doubt our legislators anticipated elderly fixed income landlords using Supreme Court Approved and encouraged forms with no guidance being extorted out of $18,000 on a basic defective notice eviction where an attorney fabricates 30 hours using boilerplate motions and pleadings, gets two attorney buddies to appear at the attorney fee hearing, asks for $450 an hour and then asks for a multiplier.

Lastly, no one ever advocated removing the attorney’s fees provision from the statute. The statute needs to be revisited and revised as it causes gross public harm and  is currently being abused by some. I respect the attorneys especially from the legal services/aid groups who can successfully resolve a situation by a polite phone call instead of preparing and serving 5 pounds of boilerplate pleadings. Soliciting deadbeat defendants by direct mail, judge shopping, buying time only for the deadbeat to never pay a dime is wrong in my opinion.

We have lost some common decency in this area of law.

In over 150.000 evictions we have handled, our experience with judges throughout Florida is for the judge to ask the Plaintiff or Defendant what “damages” they suffered.

Harry Heist

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 Leonard Cabral
Sent: Monday, July 25, 2016 8:13 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

If a business operates without an attorney or the advice of an attorney, then the business owner is asking for the worse outcome possible.   

I don’t understand why landlords don’t think they are in business.  If they don’t get an attorney to do their leases, notice and evictions than they typically get the same type of results as someone that does their own divorce.  AS they say in the commercial, you can pay me now or you can pay me later.  Usually paying me later amounts to more money out of the landlord’s pocket.  Harry probably doesn’t see what we see. He has most if not all his landlord clients trained so he doesn’t see some of the deceitful landlords out there, he mostly sees the ones that he deals with that are in, most case if not all, above board.  I bet he hasn’t dealt with a landlord that has so poorly maintained a rental dwelling to the point that a tenant falls through a kitchen floor because it was so rotted it wouldn’t hold her and the plywood patch didn’t hold.  And I bet he would not advise his client to evict just because the tenant wanted to make a claim for medical bills for her broken leg, which is exactly what happened.  And I would guess that Harry would be astounded that that tenant, unlike the landlord, sought legal advice and found a personal injury lawyer that was willing to take her case and astonishingly the tenant not only got her medical bills paid, she got a lot more as well as her attorney.  (I can see the landlord now saying why didn’t I just pay her medical bill or make a claim on my insurance).  If the landlord is so old that he or she can’t take care of the property than they should sell it and live off the proceeds. I can go on with dozens of cases like that.    

As far as suing when there is no damage, next time you get stopped for running a stop sign see what happens when you tell the cop that no one was injured.  Just because the landlord turns off the water in a self-help eviction and the tenant get the water back on one hour later does that diminish the wrong?   Am I a real dirt bag when I not only get the tenant 3 times the rent but a fee with a multiplier?  How about that landlord who took the tenant’s security deposit and wanted a second security deposit to renew the lease only to find out that the landlord had spent it and when someone like me takes that landlord to court to have the judge order the landlord to put her security deposit back in the bank (by court order) to find out three years later when the tenant vacated that the landlord removed the court ordered security deposit from the bank three months after he was ordered to put it back in the bank.  Maybe I was too soft on my fees the first time because he could now afford to hire Akerman to fight tooth and nail to keep the security deposit.  Maybe if I was awarded a contingent fee multiplier the first time the landlord would have thought twice about stealing the tenants security deposit.   I was taught that stealing is stealing and it any better because the person you stole from doesn’t know it.  The only way to get landlord’s worried about stealing tenant’s security deposit is by making it costly when he does regardless if he puts it back after he stole it.    Other states have double and triple damages for unfairly holding a security deposit.  And some states think that the landlords have such an unfair advantage over tenants that they propose legislation to provide lawyers for tenants at housing court. (Harry don’t faint).   

The fact is tenants are underrepresented, the bar has a procedure call contingent fee multiplier to try to even the playing field in underrepresented areas of law by enticing more lawyers to litigate those cases by offering more money and a few lawyers have attempted to take advantage of that procedure but evidently not enough because tenants continue to be under represented in the courts. 

Just my two and a half cents with a 2.0 multiplier. 

Leonard P. Cabral, Esq.

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 Joseph S. Hughes, Esq.
Sent: Monday, July 25, 2016 6:39 PM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org <mailto:landten at lists.flabarrpptl.org> >
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

Mr. Heist,

That is certainly one way of looking at it. But I respectfully disagree. There is a reason that the majority, if not all, of attorneys on this listserv primarily (if not almost exclusively) represent landlords. Tenants do not provide recyclable business, more typically cannot afford attorneys, and taking any case on a contingency basis is an extremely risky proposition no matter how solid the case is (especially when there are no insurance companies involved!). Also, by and large, higher judgments only result when the landlord decides to fight the case to trial. I reject the vast majority of tenant cases that come my way and take them on a contingency, and you better believe that they are not frivolous when I undertake that risk. 

Both sides deserve the same level of competent representation, and multipliers incentivize attorneys to take cases that would otherwise result in the tenant being left unrepresented. And incidentally, multipliers are still very difficult to obtain, but in my view are absolutely warranted. It is in fact far more likely that the tenant's attorney will have his/her fees significantly reduced, even where reasonable time is expended.

With the extent of discourse the legal community is currently having regarding providing greater access to civil justice for our indigent and lower class citizens, we need to realize that throwing more money and pro bono work at the problem, while helpful, does not solve the issue of underrepresentation, and is merely a bandaid. Private attorneys must be incentivized to help tenants. Ask yourself: do you take contested landlord cases on a contingency? Why not? How would you manage your overhead while your cases were pending? A bird in the hand is two in the bush, especially when there are no guarantees that you will even make a recovery at all. 

Although there are many good landlords out there, you better believe that there are plenty of bad ones as well who maliciously exploit their positions of power. Removing attorney's fees from the statute would be in complete disregard of Floridians' fundamental right to access to the justice system, and will only serve to widen the deplorable civil justice gap.

---

Joseph S. Hughes, Esq.
The Law Office of Joseph Hughes P.A.
515 E. Las Olas Blvd. Ste 120
Fort Lauderdale, FL 33301
Cell: (413) 687-2093
Office: (954)256-5125
Fax: (954) 256-5126
http://www.joehugheslaw.com

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On 2016-07-25 17:38, Harry Heist wrote:

When I see attorneys filing cases solely for the purposes of getting an attorney's fee award when their client was not damaged in any way shape or form, it makes me ashamed to be an attorney.

Someday I would like to see the attorney's fee provision revisited in landlord/tenant law. A number of attorneys are making their living off of awards exceeding $10,000 against small, sometimes elderly  landlords who file pro se eviction cases with minor defects using Supreme Court approved forms. Often multipliers are awarded.  If the Bar is  going to encourage pro se filings "to make access to the courts affordable and easier to the pro se filer" there should be some duty on the courts to give some guidance to the pro se filer. I was speaking with a judge in a smaller county and told him about the multipliers that were being awarded in some counties. He was astounded and thought that was absurd.  I agree. 

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:   <http://www.evict.com/> www.evict.com 
Email:  <mailto:harry at evict.com> 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 Todd Allen
Sent: Monday, July 25, 2016 5:22 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

I generally do not file 57.105 motions, but I can't imagine there being a better case.

Todd B. Allen, Esq.  |  Attorney

[Office]

239.593.7900

[Fax]

239.593.7909

 <http://www.lindsayallenlaw.com/> www.lindsayallenlaw.com

13180 Livingston Road, Ste. 206

Naples, FL 34109

 <http://www.lindsayallenlaw.com/> 

On Jul 25, 2016, at 5:16 PM, Leonard Cabral <LensLaw at Lenslaw.com <mailto:LensLaw at lenslaw.com> > wrote:

I agree with Joseph but I wonder if you think the outcome would be different if the landlord could show that at all times during the tenancy the funds in the account where the money was comingled never went below the amount of the security deposit. (assuming that it stayed there until it was proper to remove). 

Also I was surprised that the definition of theft only requires someone to temporarily deprive the use of their property.  

Florida Statute §812.0145(1)(c)1 (1), a person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) deprive the other person of a right to the property or a benefit from the property and (b) appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

From:  <mailto:landten-bounces at lists.flabarrpptl.org> landten-bounces at lists.flabarrpptl.org [ <mailto:landten-bounces at lists.flabarrpptl.org> mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Joseph S. Hughes, Esq.
Sent: Monday, July 25, 2016 4:28 PM
To: RPPTL Landlord Tenant Committee < <mailto:landten at lists.flabarrpptl.org> landten at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Damages for alleged violation of 83.49(1)?

Yes.

First, when combined with evidence of bad faith, commingling may serve as a basis for civil theft, breach of fiduciary duty, and conversion, permitting treble damages under civil theft in both small claims and county, and punitive damages under breach of fiduciary duty and conversion in county court. In county court, the fees will typically be higher than small claims.

Second, although difficult to prevail on, these additional claims may also entitle the tenant to a jury trial as independent tort actions where the lease nonetheless contains a jury trial waiver. This provides the tenant with additional leverage. If the landlord is particularly unlikeable or the emotional elements favor the tenant, this could be devastating to the landlord if the right jury is selected and could result in much higher damages (not to mention attorney's fees and costs).   

Third, I only know of one 2nd DCA case that says that commingling does not result in a forfeiture of the deposit. This could easily be disagreed with by other DCAs, and since a security deposit is considered "property", I would still make the argument that if the landlord cannot reasonably abide by the notice requirements when s/he has effectively converted the funds, thereby making the deposit unidentifiable for notice purposes, the notice would be defective. After all, how can a landlord make a claim on a deposit that technically no longer exists due to the commingling? Notice that a "deposit" is distinguished from "damages" for I believe this very reason, among others (including to avoid offers of judgment.)

Just my two cents.

---

Joseph S. Hughes, Esq.
The Law Office of Joseph Hughes P.A.
515 E. Las Olas Blvd. Ste 120
Fort Lauderdale, FL 33301
Cell: (413) 687-2093
Office: (954)256-5125
Fax: (954) 256-5126
 <http://www.joehugheslaw.com/> http://www.joehugheslaw.com

The information contained in this email may be attorney privileged and confidential information intended only for the use of the individual or entity named above. If you are not the intended recipient of this message or if this message has been addressed to you in error, please immediately alert the sender by telephone or reply e-mail and delete this message and any attachments.

On 2016-07-25 15:31, Alberto Cardet wrote:

Section 83.49(1) requires a landlord to hold a tenant's security deposit in separate account and not commingle said funds with any other funds.

Tenant vacates and landlord returns 100% of security deposit.  Tenant now sues alleging that "upon information and belief" the landlord violated 83.49(1) because landlord commingled funds.  Alleges that as a result tenant has suffered damages and in addition demands attorney fees and costs.

I have heard at local seminars that 83.49(1) does not contain any teeth, in the context that failure to abide by 83.49(1) by itself does not provide any remedy to the tenant or waive the landlord's right to make a claim on the deposit, which the landlord did not make in my case.

Even if a violation of 83.49(1) exists, is anyone aware of any damages that may be claimed by a tenant? 

Thank you

Albert

Cardet Law, P.A.

1330 Coral Way #301

Miami FL 33145

305-403-7783

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