[RPPTL LandTen] Soliciting Input re Standard Residential Lease.

Thu Oct 10 07:43:18 PDT 2019

The wording in 83.595 is indeed poorly written and I wrote most of it but we
had to accept poor amendments just to get this through.

The Yates v. Equity case basically held that since liquidated damages were
NOT a remedy, they were illegal. It was a very bad decision and was not
appealed. This resulted in about 10 class actions filed by one firm and
millions paid out by large multifamily.

The law change was a result of this case as our clients wanted to be able to
charge a flat liquidated damage for a lease break. Now, if a tenant breaks a
lease and has picked Choice #1, if the landlord re-rents the next day, the
tenant still is obligated to pay the amount.

If they pick Choice 2, they owe rent to re-let.

It is very disturbing that we are seeing more and more residential leases
that have liquidated damages clauses and automatic forfeitures of security
deposits and these landlords are opening themselves up to lawsuits.

I would urge you all to read Yates v. Equity carefully as the holding was
that if a remedy is not in the law, it is illegal. 

Many people were not around back then.  I have to tell my clients all the
time that automatic forfeiture of the security deposit is illegal. This is
hard to understand for them. Practically speaking, the rental will not be
rerented immediately and rent owed can be taken from the security deposit so
in most cases the tenant does not get the deposit back but in cases where it
is rerented immediately and there are no damages, the tenant does NOT
forfeit the deposit automatically despite what many leases say. I did a
short video on this: https://vimeo.com/311537116   

Note this was for residential. I do not think this would apply to
commercial.

Harry

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Mike Davis
Sent: Thursday, October 10, 2019 10:22 AM
To: 'RPPTL Landlord Tenant Committee'; 'landtenCL at lists.flabarrpptl.org'
Subject: Re: [RPPTL LandTen] Soliciting Input re Standard Residential Lease.

I think that one needs to know the background of this statutory provision.
This provision was in response to the successful class action suits against
Equity Residential and other landlords for charging "termination fees" that
the court held were invalid as not included in FS 83.595.  The practical
problem for landlords was they wanted to retake possession for the account
of the tenant but not have to leave the tenant's account open on their books
for however long it took to relet under FS 83.595(2).  Further, I understand
that the Notice of Claim only deals with the deposit and is not a full
account of what the tenant owes.  In practice many landlords used the
invalid "termination fees" to close out the tenant's account and give the
tenant the final amount owed, if an amount was owed, on the Notice of Claim.
The liquidated damages now serve the purpose of the invalid "termination
fees".  In order to achieve it legislatively, the landlords were willing to
waive anything beyond the liquidated damages and the amounts owed in FS
83.595(4)(a) ("In addition to liquidated damages or an early termination
fee, the landlord is entitled to the rent and other charges accrued through
the end of the month in which the landlord retakes possession of the
dwelling unit and charges for damages to the dwelling unit.").  

The Early Termination Addendum is an optional Addendum.  If the landlord
wants to do rent-till-relet, the landlord doesn't offer the Early Term
Addendum.

Mike

Michael Geo. F. Davis

Attorney at Law

The MGFD Law Firm PA

Countryside Colonial Center

2753 SR 580, Suite 209

Clearwater, FL 33761-3351

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mike at mgfdlaw.com

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From: landten-bounces at lists.flabarrpptl.org
<landten-bounces at lists.flabarrpptl.org> On Behalf Of Amanda Kison
Sent: Thursday, October 10, 2019 9:28 AM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>;
'landtenCL at lists.flabarrpptl.org' <landtenCL at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Soliciting Input re Standard Residential Lease.

The Landlord is not permitted to seek both liquidated damages as well as
general damages. Therefore, if the Tenant elects the two months' rent, the
Landlord is implicitly agreeing to the waiver. 

Amanda R. Kison, Esq.

Board Certified Business Litigation

Bentley & Bruning P.A.

783 South Orange Ave., 3rd Floor

Sarasota, FL 34236

(941) 556-9030 (Main)

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

From: landten-bounces at lists.flabarrpptl.org
<landten-bounces at lists.flabarrpptl.org> On Behalf Of Eric Jacobs
Sent: Thursday, October 10, 2019 9:02 AM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>;
'landtenCL at lists.flabarrpptl.org' <landtenCL at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Soliciting Input re Standard Residential Lease.

I am of two minds with regard to the following provision and hoped to
solicit some of your sage wisdom.

The standard residential lease provides an option for liquidate damages as
follows:

I agree, as provided in the rental agreement, to pay ___ (an amount that
does not exceed two months' rent) as liquidated damages or an early
termination fee if I elect to terminate the rental agreement and the
landlord waives the right to seek additional rent beyond the month in which
landlord retakes possession.

So who does this provision most benefit landlord or tenant?  The word that
has me struggling with construction here is "and".  

Here the tenant is agreeing to the liquidated amount if tenant elects to
terminate but the use of the word "and" there either means that (a)  a
precondition of the liquidated damages provision is landlord's prospective
waiver of the right to seek additional rent (which would favor landlord) or
(b) the landlord is already agreeing to the waiver.  

My understanding is that there is a general consensus that (b) is implicit
in the language but I think if that is the case it is poorly worded.  

Thoughts?

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From: landten-bounces at lists.flabarrpptl.org
<landten-bounces at lists.flabarrpptl.org> On Behalf Of Lloyd Granet
Sent: Thursday, October 10, 2019 8:48 AM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>;
'landtenCL at lists.flabarrpptl.org' <landtenCL at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Emotional Support Animal CLE credit information

In a commercial lease which provides "Landlord shall have no such obligation
to relet the Premises, and Landlord's failure or refusal to do so, or
failure to collect rent on reletting, shall not affect Tenant's liability
hereunder."  is there any law which provides the landlord continues to have
an obligation to relet and mitigate?  

I represent Landlord and am being told that we are required to mitigate.

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Christopher A.
Sajdera
Sent: Friday, September 27, 2019 11:11 AM
To: 'landten at lists.flabarrpptl.org' <landten at lists.flabarrpptl.org>;
'landtenCL at lists.flabarrpptl.org' <landtenCL at lists.flabarrpptl.org>
Cc: Christopher A. Sajdera <cas at sk-attorneys.com>
Subject: [RPPTL LandTen] Emotional Support Animal CLE credit information

Good morning:

Please see the attached for those who attended this CLE at the Convention.  

Christopher A. Sajdera, Esquire

Board Certified Specialist, Condominium and Planned Development Law

Sajdera Kim, PLLC

2200 NW Corporate Boulevard

Suite 210

Boca Raton, Florida 33431

Phone: 561-948-0650 

Direct: 561-910-3082

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