[RPPTL LandTen] FW: CARES and August rent

Tue Jul 28 06:20:07 PDT 2020

Brenda,
Where are the archives “located” such that we might key word search the past emails for a past discussion?

Thanks in advance.
Mike Davis

Sent from my iPhone

On Jul 24, 2020, at 6:18 PM, Brenda Ezell <brenda at ezellfirmpa.com> wrote:

The listserv saves the archives from past discussions.

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Friday, July 24, 2020 5:53 PM
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] FW: CARES and August rent

The quick Friday late answer is that there are 2 parts to the “deal”.  Possession (tenancy) and money owed under the agreement.

This was actually asked a while back (2 years ago) and maybe we can dig it up.

The right of possession gets terminated (tenancy) while the obligation to pay rent continues under the “agreement”.

It probably should be cleaned up but that is how it has been interpreted.

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 Jeremy Cranford
Sent: Friday, July 24, 2020 5:20 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] FW: CARES and August rent

Dear Colleagues,

FW: [RPPTL LandTen] CARES and August rent

Can I call on the collective knowledge of this listserv for a question of theory which isn’t pressing or necessarily applicable to the current concerns?  I admit that I do so at the risk of being wholly wrong and open to the slings and arrows of derision.

I will freely admit that I have never yet see a Court apply the specific logic I explain below to deny recovery for periods after a 3-day or 7-day ‘termination’ letter’s ‘termination’. However, I think there is a substantial logical problem in the text of Chapter 83, and I’ve wanted to hear it explained or considered for a few years now.

Here we go:
-------BEGIN QUOTATION--------
83.56(2)-(3) provides:
(2) If the tenant materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the landlord may:
(a) If such noncompliance is of a nature that the tenant should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the landlord of a similar violation, deliver a written notice to the tenant specifying the noncompliance and the landlord’s intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the tenant should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord’s or other tenants’ property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the landlord may terminate the rental agreement, and the tenant shall have 7 days from the date that the notice is delivered to vacate the premises. The notice shall be in substantially the following form:
You are advised that your lease is terminated effective immediately. You shall have 7 days from the delivery of this letter to vacate the premises. This action is taken because   (cite the noncompliance)  .
(b) If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, deliver a written notice to the tenant specifying the noncompliance, including a notice that, if the noncompliance is not corrected within 7 days from the date that the written notice is delivered, the landlord shall terminate the rental agreement by reason thereof. Examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this part such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary. If such noncompliance recurs within 12 months after notice, an eviction action may commence without delivering a subsequent notice pursuant to paragraph (a) or this paragraph. The notice shall be in substantially the following form:
You are hereby notified that   (cite the noncompliance)  . Demand is hereby made that you remedy the noncompliance within 7 days of receipt of this notice or your lease shall be deemed terminated and you shall vacate the premises upon such termination. If this same conduct or conduct of a similar nature is repeated within 12 months, your tenancy is subject to termination without further warning and without your being given an opportunity to cure the noncompliance.
(3) If the tenant fails to pay rent when due and the default continues for 3 days, excluding Saturday, Sunday, and legal holidays, after delivery of written demand by the landlord for payment of the rent or possession of the premises, the landlord may terminate the rental agreement. Legal holidays for the purpose of this section shall be court-observed holidays only. The 3-day notice shall contain a statement in substantially the following form:
You are hereby notified that you are indebted to me in the sum of   dollars for the rent and use of the premises   (address of leased premises, including county)  , Florida, now occupied by you and that I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the   day of  ,   (year)  .
(landlord’s name, address and phone number)
---------END QUOTATION------

Material breach of an agreement allows the opposing party to terminate the agreement. That is an old concept in contract law generally and, in my view, it forms the basis of why our statutes require non-compliance be material (and, in rental agreements, the payment of rent is always considered material).

However, when a material breach (material noncompliance or failure to pay rent) occurs under a rental agreement, the landlord’s typically anticipate an ability to retake possession of the premises without terminating the rental agreement on account of the tenant and hold the tenant responsible for the expectation damages (tenant performing vs. tenant not performing – less whatever mitigation actually occurred0.

This ‘option’ upon breach is recognized and discussed in Chapter 83.595, F.S. (1) vs. (2) which state:
-------BEGIN QUOTATION----
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.  [NOTE: (2) never says ‘terminate’] . . . .
--------END QUOTATION------

However, the statutory forms for material noncompliance or failure to pay rent (each being a material breach) only reflect the ability of a landlord to terminate the lease agreement which would seem to, from a technical standpoint, require the Landlord to elect 83.595(1), F.S.

In my limited understanding from a general contract law standpoint, effective termination of the contract (which requires that the terminating party is privileged to so terminate – which usually occurs in the case of an un-waived material breach) ends the obligation of each party to continue to perform under the contract going-forward.  The party having terminated could seek restitution – recovering overpayments made in relation to the benefit received – but could not normally pursue expectation damages after terminating. (I could be wrong on this and I am open to learning I am wrong on this).

Read logically (not practically), this could mean that a tenant would be in a position of choosing to materially beach so as to cause the landlord to elect to regain possession (which requires a termination and, therefore, an end to the post-termination obligations to pay under the rental agreement.

I fully admit that I do not think the statute should be applied in that way – but I feel that the statute needs to be corrected to avoid that logical concern (assuming I’m not entirely off on my logical interpretation).

So, there you go, I think the statute is at least ambiguous because the only notices permitted for recovering possession purport to require a termination and, therefore, deny access to ‘recover possession and attempt to relet the premises’.

Even if the statute said ‘terminate the right to possession’ as opposed to ‘terminate the rental agreement’ (indeed, the 3-day notice itself doesn’t say terminate and, instead, reflects a demand only for possession upon non-payment, but the paragraph discussing the use of it does say ‘terminate the rental agreement’.

I would greatly enjoy the discussion of the combined brainpower of this listserv – even if it is merely educational by pointing out the fault in my logic.

Sincerely,
Jeremy

____________________________________________
Jeremy T. Cranford, Attorney, LL.M. (Real Estate)
Board Certified Specialist in Real Estate Law
Ward & Ketchersid, P.A.
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850.837.5507 | Fax: 850.650.9659
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Licensed in Florida & Missouri
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From: Jeremy Cranford
Sent: Friday, July 24, 2020 3:51 PM
To: Harry Heist <harry at evict.com<mailto:harry at evict.com>>
Subject: FW: [RPPTL LandTen] CARES and August rent

On further consideration, I would say the “without limitation” I included needs to be worked on more.

I’ve also previously encountered situations in which there are late fees that either didn’t adequately qualify as ‘rent’ or where I resolved that I didn’t want to include the in ‘rent’ for fear of the 3-day being ineffective, so I’ve explained that the rent demanded isn’t the only liability – but that the payment of the rent would be sufficient to prevent termination for non-payment of rent.

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
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www.flaattorney.com<http://www.flaattorney.com/>
Licensed in Florida & Missouri
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From: Jeremy Cranford
Sent: Friday, July 24, 2020 3:47 PM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Subject: RE: [RPPTL LandTen] CARES and August rent

Dear Colleagues,

This is the problem with statutory forms, they get created with only one circumstance in mind and, as soon as any unusual circumstance arises, they are insufficiently flexible.

The statutory form requirements do, however, say “substantially in the following form” in most cases.

In this case, perhaps (just an idea, no promises or guarantees) one could add the following underlined language into the statutory form “you are indebted to me, without limitation, in the sum of ___ dollars for the rent and use, during the period from ___ to ___, of the premises ____, Florida, now occupied by you . . . .” is sufficiently proximate so as to be “substantially” in the statutory form.

Then, one notice has one period and the other notice has the other period.

I will tell you that I’ve (a few times) run into circumstances where I am sending a 3-day notice for rent under threat of termination (on day 4), a 7-day notice for noncompliance to comply under threat of termination (on day 8 if compliance doesn’t occur), and a 15-day-prior-to-new-rental-month notice of termination (at the moment of the end of the given month).

In those instances, I’ve typically included language in each cross-referencing the others and stating how there are separate notices coming and would, each, reflect different potential terminations and times therefore.

Maybe I did it wrong – but I thought it was the right thing to do.

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<mailto: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<mailto:landten-bounces at lists.flabarrpptl.org> <landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org>> On Behalf Of Mike Davis
Sent: Friday, July 24, 2020 3:37 PM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Subject: Re: [RPPTL LandTen] CARES and August rent

Wouldn’t implied or actual waiver be a defense any rent due not claimed on a 3Day?  It indicates rent due on that date of $x, and when once paid, tenant gets a 30Day with additional prior rent due.  FCCPA issues - not good faith mistake but intentionally misrepresenting rent due to mislead the tenant/debtor into paying.
Mike Davis
Sent from my iPhone

On Jul 24, 2020, at 1:00 PM, Jennifer Garner <jennifer at jenniferagarner.com<mailto:jennifer at jenniferagarner.com>> wrote:

Couldn’t it be a collection violations by confusing the borrower with two notices at the same time?  It would probably be safer to hold the thirty day notice until they either do or don’t comply with the three day.  If they don’t comply you don’t need the thirty day and if they do comply then you serve them with the 30 day notice.

Jennifer A. Garner, Esq.
2224 Ashley Oaks Circle, Suite 101
Wesley Chapel, FL 33544
Phone: (727) 386-9654 Fax: (813) 482-9492
www.JenniferAGarner.com<http://www.jenniferagarner.com/>
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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 Harry Heist
Sent: Friday, July 24, 2020 12:01 PM
To: 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Subject: Re: [RPPTL LandTen] CARES and August rent

It is a bit concerning to have 2 notices out there with different expiration dates.

I lost a case once where they served the bad check letter and the Three Day at the same time.

End dates conflicted.

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 Cary P. Sabol, Esq.
Sent: Friday, July 24, 2020 11:15 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] CARES and August rent

I agree with both of those statements.  I don't see any reason a landlord cannot file an eviction based on rent due for a later month and ignore previous months due.  At this point, by the time you get a hearing, it's likely the 30 day period for the prior months will have expired as well.

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-------- Original Message --------
Subject: [RPPTL LandTen] CARES and August rent
From: "Harry Heist" <harry at evict.com<mailto:harry at evict.com>>
Date: Fri, July 24, 2020 10:55 am
To: "'RPPTL Landlord Tenant Committee'" <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Is it the consensus of the group that on CARES properties, August rent is to be put on the normal Three Day Notice and rent July 26 and prior would need to be on a Thirty Day Notice?

If this is the case, suppose a landlord were to put July and June on a Thirty Day and then August is put on a Three Day.   Could we proceed on the Three Day for the August rent with the Thirty Day hanging out there?

Harry

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