[RPPTL LandTen] Timing for Notice of Intention to Impose Claim

Thu Oct 10 15:40:40 PDT 2019

You are correct Marty,

In this question, it was limited to whether the notice must be mailed within 30 days or received by the tenant in 30 days.

I think I finally convinced this young lawyer who just would not take my answer of mailing within 30 days as accurate.

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] On Behalf Of Martin Lawyer
Sent: Thursday, October 10, 2019 6:27 PM
To: RPPTL Landlord Tenant Committee
Cc: landtenCL at lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Timing for Notice of Intention to Impose Claim

Dear Harry (and others),

My understanding of this statutory sub-section is that its original purpose was to allow landlords who are real estate agents to, without endangering their realty licenses,  withdraw the amount of the security deposit from the escrow account that is the subject of the other sub-sections if the landlord-realtor timely sends the notice and if the tenant fails to timely respond.  That is, it does not affect ultimate liability.  

>From the tenant side (my clients' side), this sub-section is a mere "gotcha" as to the entitlement to the security deposit if the landlord fails to deliver the notice of claim w/in 30 days.  Thus, per my understanding and practice these many years (dating to before 1973), the negligent-non-noticing landlord can still sue and recover for damages caused by the tenant; and the negligent-non-replying tenant can still sue and recover for all or part of the security deposit.

Thus, if the landlord fails to timely send the notice, followed by a tenant lawsuit for the security deposit (and atty fee), the landlord would be allowed to counterclaim 

for tenant-caused damage to the dwelling or monetary loss related to tenant's early departure.  Theoretically, there should be two separate judgments.  The one in favor of the tenant would be enforceable, but if the tenant is judgment-proof, the landlord's judgment against the tenant would not be enforceable (unless the amount of the security deposit exceeds the $1,000 constitutional exemption).  In practice, most judges apply the security deposit as a set-off against the landlord's provable loss.

Now, here's a wild card for those of you making a living from County Court eviction cases.  If the Constitutional amendment passes, then there will be direct appeals from County Court to the DCAs.  This would then result in some actual case law that is entitled to stare decisis.  That's where stare decisis starts in Florida jurisprudence.  Appellate decisions of the Cir. Ct. are not entitled to stare decisis.  Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992).

                                Marty
             C. Martin Lawyer, III,  Esquire
                          BAY  AREA  LEGAL  SERVICES,  INC.
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                       ( The Times Building )

                          Tampa,  FL    33602-3717
                       Phone:   (813)  227-9050,  extension 109
                          Fax:           252-3269       

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From: landten-bounces at lists.flabarrpptl.org <landten-bounces at lists.flabarrpptl.org> on behalf of bob at robertschwartzpa.com <bob at robertschwartzpa.com>
Sent: Thursday, October 10, 2019 11:19 AM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Cc: landtenCL at lists.flabarrpptl.org <landtenCL at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Timing for Notice of Intention to Impose Claim 

Yes, but the “give” is by certified mail

Bob Schwartz  

Robert Marc Schwartz, P.A.

Florida Bar Board Certified Real Estate Lawyer

4700 NW Boca Raton Blvd. Suite 104

Boca Raton, FL 33431

Phone (561) 241-1850

Fax (561) 241-1845

Bob at robertschwartzpa.com

www.robertschwartzpa.com

Sent from my iPhone

On Oct 10, 2019, at 11:07 AM, Harry Heist <harry at evict.com> wrote:

He is hanging in the word “GIVE”.   The statute does not say “send”

(a)   Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim.

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

 <https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870> 

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary P. Sabol, Esq.
Sent: Thursday, October 10, 2019 10:28 AM
To: RPPTL Landlord Tenant Committee
Cc: landtenCL at lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Timing for Notice of Intention to Impose Claim

Tell him to read the Statute, there's no mention of any requirement of receipt, only that it be sent.

Cary

Cary P. Sabol, Esq. J.D. (2001), LLM (2009)

Law Offices of Cary P. Sabol 

P.O. Box 15981 | West Palm Beach | Florida | 33416 

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-------- Original Message --------
Subject: [RPPTL LandTen] Timing for Notice of Intention to Impose Claim
From: "Harry Heist" < <mailto:harry at evict.com> harry at evict.com>
Date: Thu, October 10, 2019 9:38 am
To: "'RPPTL Landlord Tenant Committee'" < <mailto:landten at lists.flabarrpptl.org> landten at lists.flabarrpptl.org>
Cc:  <mailto:landtenCL at lists.flabarrpptl.org> landtenCL at lists.flabarrpptl.org

I am dealing with a non landlord/tenant law attorney who is hell bent on saying that the tenant must RECEIVE the Notice of Intention to Impose Claim on Security Deposit within 30 days.

Our position is that it must be MAILED by certified mail within the 30 days.

Anyone have any cases on this? It is something so obvious but I don’t know of any cases.  

He is being relentless on this. This is the first time in 30 years I have an attorney taking this position and he is not backing down.

Thanks!

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

 <https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870> 

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