[RPPTL LandTen] "Risk Mitigation Fee"

Sat Oct 26 10:24:29 PDT 2019

Same thing Eric, 

Law is silent on it. Yates held the silence in the statute meant it was illegal. 

Yates did not care that forfeitures were in the lease. 

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

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Eric Jacobs
Sent: Saturday, October 26, 2019 1:12 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] "Risk Mitigation Fee"

I believe the inquiry was a fee for handling the escrow not a forfeiture issue 

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From: landten-bounces at lists.flabarrpptl.org <landten-bounces at lists.flabarrpptl.org> on behalf of Harry Heist <harry at evict.com>
Sent: Saturday, October 26, 2019 12:54 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] "Risk Mitigation Fee" 

Eric,

Yates went totally against this: “If it’s in the lease it’s in the lease”

Yates held that forfeiture of a deposit or liquidated damages was NOT a remedy in the statute therefore not legal.  This is the whole reason for the law change a couple years AFTER Yates. 

83.595 was totally changed after Yates.

Remedy 4 did not exist prior to Yates. 

Harry 

83.595  Choice of remedies upon breach or early termination by tenant.--If the tenant breaches the rental agreement for the dwelling unit and the landlord has obtained a writ of possession, or the tenant has surrendered possession of the dwelling unit to the landlord, or the tenant has abandoned the dwelling unit, the landlord may: 

(1)  Treat the rental agreement as terminated and retake possession for his or her own account, thereby terminating any further liability of the tenant; 

(2)  Retake possession of the dwelling unit for the account of the tenant, holding the tenant liable for the difference between the rent stipulated to be paid under the rental agreement and what the landlord is able to recover from a reletting. If the landlord retakes possession, the landlord has a duty to exercise good faith in attempting to relet the premises, and any rent received by the landlord as a result of the reletting must be deducted from the balance of rent due from the tenant. For purposes of this subsection, the term "good faith in attempting to relet the premises" means that the landlord uses at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the landlord uses in attempting to rent other similar rental units but does not require the landlord to give a preference in renting the premises over other vacant dwelling units that the landlord owns or has the responsibility to rent; 

(3)  Stand by and do nothing, holding the lessee liable for the rent as it comes due; or 

(4)  Charge liquidated damages, as provided in the rental agreement, or an early termination fee to the tenant if the landlord and tenant have agreed to liquidated damages or an early termination fee, if the amount does not exceed 2 months' rent, and if, in the case of an early termination fee, the tenant is required to give no more than 60 days' notice, as provided in the rental agreement, prior to the proposed date of early termination. This remedy is available only if the tenant and the landlord, at the time the rental agreement was made, indicated acceptance of liquidated damages or an early termination fee. The tenant must indicate acceptance of liquidated damages or an early termination fee by signing a separate addendum to the rental agreement containing a provision in substantially the following form: 

[ ] I agree, as provided in the rental agreement, to pay $_____ (an amount that does not exceed 2 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 the landlord retakes possession. 

[ ] I do not agree to liquidated damages or an early termination fee, and I acknowledge that the landlord may seek damages as provided by law. 

(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. 

(b)  This subsection does not apply if the breach is failure to give notice as provided in s. 83.575. 

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

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY.  ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Eric Jacobs
Sent: Saturday, October 26, 2019 12:24 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] "Risk Mitigation Fee"

If it’s in the lease it’s in the lease 

Get Outlook for iOS <https://aka.ms/o0ukef> 

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From: landten-bounces at lists.flabarrpptl.org <landten-bounces at lists.flabarrpptl.org> on behalf of Leonard Cabral <LensLaw at Lenslaw.com>
Sent: Saturday, October 26, 2019 12:20:39 PM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] "Risk Mitigation Fee" 

I am now seeing a fee for handling the security deposit. Any thoughts about the legitimately of that fee? 

Sent by Leonard P Cabral 

On Oct 25, 2019, at 10:59 AM, Harry Heist <harry at evict.com> wrote:

It seems like each day property managers are coming up with fees that I believe will eventually cause a problem and be class action material. 

They are spreading as these managers are on all of these Facebook groups, someone says they are doing it and then everyone thinks it is OK.

The latest one I have been seeing is a “Risk Mitigation Fee”.

This is a nonrefundable fee that the higher risk tenant (bad credit, bankruptcy, eviction etc) is being asked to pay as part of being approved.

Often this “fee” is being kept by the property manager, split with the owner or given to the owner.  More often than not, kept by the property manager.

Does anyone have any info on the legality of this?

In the money lending world, creditors are free to charge a higher interest rate to a higher risk person but this now????

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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