[RPPTL LandTen] RPPTL RPLeasing - Executive Order 20-137 & General Concerns With The Purported 'Suspension' by the Governor
Harry Heist
harry at evict.com
Wed Jun 3 09:23:46 PDT 2020
A number of people representing the landlord associations I belong to may be
interested in having someone file a lawsuit similar to those being filed in
some other states but I don't see that being worth it as it may become moot
once the moratorium is lifted. I am not sure what damages they are suing
for or if they just want their moratoriums lifted.
Has anyone been following these out of state actions?
The Supreme Court has really caused a problem with the hold on the Writ. We
have loads of cases now sitting for months.
On an unrelated note, suppose a case was filed pre March 27 and is covered
under the CARES Act?
Harry
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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jeremy Cranford
Sent: Wednesday, June 03, 2020 12:09 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] RPPTL RPLeasing - Executive Order 20-137 &
General Concerns With The Purported 'Suspension' by the Governor
I realized something when I finished writing my last email, I'll state it
here:
In my last email, I said "(As to the language of the order itself, I would
note that it purports to 'suspend foreclosure statutes' but foreclosure
itself was a remedy created by the Court - not by statute - and the statute
really only seemed to codify/clarify the requirements and process therefore
- so suspension of the statute wouldn't necessarily prevent the process from
proceeding. Indeed, to the extent it is procedural, the legislature never
had the power to enact it without the Court adopting it - so how can the
legislature withdraw it without the Court adopting the withdrawal?) (As to
eviction, I am under the impression that was statutorily created)".
As I understand it, eviction was a statutory creation but served to provide
a special path to removing people from real property when that person was on
that real property as a tenant. From prior research on the availability of
a jury trial in evictions, I am under the impression that it is considered
to have been a corollary to the law of trespass and, therefore, a jury trial
is (generally) secured to the parties by the constitution. Consequently, if
the executive purports to 'suspend' the eviction statute - perhaps the prior
methods (perhaps a trespass action) of obtaining the removal of a tenant
with a terminated lease (for nonpayment) remain available.
I've previously seen a corollary to the general law of 'termination upon
beach' and the eviction statute. The eviction statute provides that the
breach must be material (which is the general standard for general contract
'termination upon breach') - but essentially provides (in effect) that
non-payment is always material (so long as the statutory notices are given).
All this being said, it is pretty well academic - we will face a lot of
resistance to any residential eviction and it will ordinarily be better to
wait it out (though, the more the Governor extends, the more likely someone
is to get tired of waiting).
In the leasing industry - the inability to utilize the asset for a time is
the nature of the value of that property (as opposed to long-term
investment). I would enjoy hearing anyone's constitutional 'takings'
analysis for the government depriving a landlord of their property by
refusing to allow them to proceed with recovering the same. Additionally,
the purpose of the suspension is obviously for the 'public good/welfare'
which is the basis of requiring compensation for takings - to prevent one
person/group for bearing the cost of the public good/welfare.
Sincerely,
Jeremy T. Cranford
____________________________________________
Jeremy T. Cranford, Attorney, LL.M. (Real Estate)
Board Certified Specialist in Real Estate Law
Ward & Ketchersid, P.A.
1241 Airport Rd., Ste. H, Destin, FL 32541
850.837.5507 | Fax: 850.650.9659
jcranford at flaattorney.com
www.flaattorney.com <http://www.flaattorney.com/>
Licensed in Florida & Missouri
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From: landten-bounces at lists.flabarrpptl.org
<landten-bounces at lists.flabarrpptl.org> On Behalf Of Jeremy Cranford
Sent: Wednesday, June 3, 2020 10:53 AM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Subject: [RPPTL LandTen] RPPTL RPLeasing - Executive Order 20-137 & General
Concerns With The Purported 'Suspension' by the Governor
Dear RPPTL RPLeasing Committee Colleagues,
RE: RPPTL RPLeasing - Executive Order 20-137 & General Concerns With The
Purported 'Suspension' by the Governor
I imagine almost all of you already know, but I wanted to be certain as I
havn't seen any chatter about it on any of the listservs: The Governor has
extended his purported 'suspension' of the non-payment eviction and
residential mortgage foreclosure statutes. The new order, EO 20-137 (
https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-137.pdf )
purports to extend the 'suspension' until July 1.
I've discussed it in other listservs, but since the beginning, I have been
highly skeptical of the validity of such a purported 'suspension'. As a
matter of separation of powers, I begin from a base concept that no part of
the executive branch (here, the Governor) can 'suspend' legislative
enactments. (I'll leave out martial law for now). (Aside: I also have
concerns about circumstances in which the executive chooses or makes it a
policy of not complying with/enforcing legislative enactments - but I'll
leave that discussion for another time though I feel it has led to the
current state in which the executive feels empowered to practically-speaking
'override' legislative enactments).
That being said, when the Governor issued Executive Order Number 20-94
(Emergency Management - COVID-19 - Mortgage Foreclosure and Eviction
Relief), I wanted to understand the basis on which he asserted his authority
to 'suspend' a legislative enactment ("any statute providing for a mortgage
foreclosure cause of action" and "any statute providing for an eviction
cause of action solely as it relates to non-payment of rent by residential
tenants due to the COVID-19 emergency").
In that order, the Governor cited to:
1. Article IV, Section (1)(a) of the Florida Constitution (which
only purports, generally, to establish/recognize the office of Governor) and
2. Chapter 252, Florida Statutes; and
3. "all other applicable laws".
"all other applicable laws" provided me no guidance to investigate the
assertion of power. Again, perhaps I am just unaware of additional powers
granted in time of emergency generally. The citation to the Florida
Constitution provide me no guidance to investigate the assertion of power.
Again, perhaps I am just unaware of additional powers granted in time of
emergency generally.
As a result of my lack of familiarity with 'all other applicable laws', the
general emergency powers of the office (outside of the statute), and the
'penumbras' that might arise from the Florida Constitution article which
purports to recognize the office of Governor, I am going to proceed under
the only asserted basis I seem to have a reasonable path to analyze: Chapter
252, F.S.
Chapter 252, F.S. purports to, in pertinent part (concerning suspension of
legislative enactments), delegate from the Legislature to the Governor only
a power to "[s]uspend the provisions of any regulatory statute prescribing
the procedures for conduct of state business or the orders or rules of any
state agency, if strict compliance with the provisions of any such statute,
order, or rule would in any way prevent, hinder, or delay necessary action
in coping with the emergency." Section 252.36(5)(a), F.S. As best I can
tell, this is intended to allow the Governor to 'cut through procedures' but
not to 'alter substantive rights' or to change (or suspend) entitlements.
The clearest example of this kind of 'suspension' would, in my view, be
competitive bidding requirements preventing the executive from obtaining
needed supplies to respond to an emergency.
Consequently, I don't think Chapter 252, F.S. authorized the Governor (the
executive) to suspend eviction or foreclosure entitlements or processes.
(Aside: Of note is that Section 252.33(4), F.S. provides "Nothing in Section
252.31-252.60 shall be construed to: . . . . (4) Limit, modify, or abridge
the authority of the Governor to proclaim martial law or exercise any other
powers vested in the Governor under the constitution, statutes, or common
law of this state independent of, or in conjunction with, any provisions of
ss. 252.31-252.60.". Hence, it makes clear that, if those powers existed
outside of Chapter 252, the legislature wasn't purporting to 'occupy the
field' so as to reduce those powers that were otherwise available.)
(As to the language of the order itself, I would note that it purports to
'suspend foreclosure statutes' but foreclosure itself was a remedy created
by the Court - not by statute - and the statute really only seemed to
codify/clarify the requirements and process therefore - so suspension of the
statute wouldn't necessarily prevent the process from proceeding. Indeed,
to the extent it is procedural, the legislature never had the power to enact
it without the Court adopting it - so how can the legislature withdraw it
without the Court adopting the withdrawal?) (As to eviction, I am under the
impression that was statutorily created).
I would note, however, that if the Florida legislature enacted a moratoria,
the US Supreme Court has previously permitted the same to survive a
constitutional 'impairment of contract' challenge (under an analysis I don't
agree with - providing a requirement of 'substantial impairment' as opposed
to 'impairment'). (Please note: 'impairment of contract' is not a
restriction on Federal legislation, only state legislation - and I can't
really explain (nor understand) why action by the executive taking the form
of legislation wouldn't fit as 'legislation' of a State).
Sincerely,
Jeremy T. Cranford
____________________________________________
Jeremy T. Cranford, Attorney, LL.M. (Real Estate)
Board Certified Specialist in Real Estate Law
Ward & Ketchersid, P.A.
1241 Airport Rd., Ste. H, Destin, FL 32541
850.837.5507 | Fax: 850.650.9659
jcranford at flaattorney.com
www.flaattorney.com <http://www.flaattorney.com/>
Licensed in Florida & Missouri
____________________________________________
This email message is being sent from an Attorney with the law firm of Ward
& Ketchersid, P.A. (the "Firm") who is likely to be acting on behalf of a
client thereof. First and because this email is likely to contain
confidential and/or privileged information, please protect the information
contained herein from being accessed or accessible by any other person.
Second, if you have any reason to believe you should not have received this
email message, please inform the Firm immediately and delete/destroy all
copies hereof. Third and if you are not presently a client of the Firm,
unless this email contains a specific statement that you have become a
client of the Firm, (1) do not construe anything within this email message
to establish an attorney-client relationship with you and (2) do not
disclose any information to the Firm that you would expect the Firm to hold
in confidence.
____________________________________________
From: landten-bounces at lists.flabarrpptl.org
<landten-bounces at lists.flabarrpptl.org> On Behalf Of Harry Heist
Sent: Wednesday, June 3, 2020 9:50 AM
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org>
Subject: [RPPTL LandTen] Monroe County
Anyone handle Monroe County for residential evictions (multifamily)?
I have a referral.
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>
Visit us on Facebook
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