[RPPTL LandTen] Soliciting Input re Standard Residential Lease.

Eric Jacobs ejacobs at nexterralaw.com
Thu Oct 10 07:49:02 PDT 2019 

This is incredibly insightful and helpful. Thanks much.

PLEASE NOTE AS OF SEPTEMBER 23, 2019 OUR NEW ADDRESS WILL BE 1111 LINCOLN ROAD, SUITE 801, MIAMI BEACH, FLORIDA 33139


Eric Jacobs
ejacobs at nexterralaw.com<mailto:ejacobs at nexterralaw.com>
AV Rated
Board Certified - Real Estate
Transactional and Litigation Practice
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Miami-Dade Office
1111 Lincoln Road, Suite 801
Miami Beach, Florida 33139
(954) 929-0679 Telephone
(888) 632-4944 Facsimile

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From: landten-bounces at lists.flabarrpptl.org <landten-bounces at lists.flabarrpptl.org> On Behalf Of Harry Heist
Sent: Thursday, October 10, 2019 10:43 AM
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org>; landtenCL at lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Soliciting Input re Standard Residential Lease.

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> [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
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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> <landten-bounces at lists.flabarrpptl.org<mailto: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<mailto:landten at lists.flabarrpptl.org>>; 'landtenCL at lists.flabarrpptl.org' <landtenCL at lists.flabarrpptl.org<mailto: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<mailto:landten-bounces at lists.flabarrpptl.org> <landten-bounces at lists.flabarrpptl.org<mailto: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<mailto:landten at lists.flabarrpptl.org>>; 'landtenCL at lists.flabarrpptl.org' <landtenCL at lists.flabarrpptl.org<mailto: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?



PLEASE NOTE AS OF SEPTEMBER 23, 2019 OUR NEW ADDRESS WILL BE 1111 LINCOLN ROAD, SUITE 801, MIAMI BEACH, FLORIDA 33139


Eric Jacobs
ejacobs at nexterralaw.com<mailto:ejacobs at nexterralaw.com>
AV Rated
Board Certified - Real Estate
Transactional and Litigation Practice
[cid:image004.png at 01D57F58.6F9234C0]


Miami-Dade Office
1111 Lincoln Road, Suite 801
Miami Beach, Florida 33139
(954) 929-0679 Telephone
(888) 632-4944 Facsimile

Confidentiality and Relationship Disclosure. If you are reading this, congratulations, you are probably the first.  For years law firms have included lengthy disclosures at the bottom of their emails which in our view are of, at best, marginal legal value.  We have decided not to do that.  Instead, we will ask that if you got this email and shouldn't have, let us know and please don't read it (though if you've read this, chances are that ship has sailed).  Also, just because we exchange emails doesn't make us your lawyer(s).  If you would like to create an attorney/client relationship, we're glad to hear it and would be happy to provide you with an engagement letter.  As soon as you have received written confirmation from us, you can consider our relationship formed.


From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> <landten-bounces at lists.flabarrpptl.org<mailto: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<mailto:landten at lists.flabarrpptl.org>>; 'landtenCL at lists.flabarrpptl.org' <landtenCL at lists.flabarrpptl.org<mailto: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> [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<mailto:landten at lists.flabarrpptl.org>>; 'landtenCL at lists.flabarrpptl.org' <landtenCL at lists.flabarrpptl.org<mailto:landtenCL at lists.flabarrpptl.org>>
Cc: Christopher A. Sajdera <cas at sk-attorneys.com<mailto: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
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