[RPPTL Leasing Committee] Arbitration clause for Sec Dep Disputes

Tue Dec 8 05:46:18 PST 2020

First, just to piggy-back off Jordan, 83.48 permits prevailing party fees
in any civil action and specifically precludes the waiver of attorney's
fees between Landlord and Tenant and that would lend the argument for
attorney's fees easier even in an arbitration.

The way I see it is you can make a good argument that you are
*permitted to* agree
to arbitrate but you definitely cannot agree to preclude filing suit.

While the Florida Supreme Court's *Raymond James* decision that rightfully
recognizes that "civil action or proceeding" involves arbitration, here
Section 83.49(3)(c) specifically says:

(c) If either party institutes an action in a court of competent
jurisdiction to adjudicate the party’s right to the security deposit, the
prevailing party is entitled to receive his or her court costs plus a
reasonable fee for his or her attorney. The court shall advance the cause
on the calendar.

 It's not a different meaning, use, or application of words -- it's
different words being used here.

Another way to look at the situation is to say that *even if *you
can arbitrate,  the agreement to arbitrate could not preclude 83.49(3)(c)'s
express right to attorney's fees for winning a lawsuit because it says *if* you
institute an action in a court of competent jurisdiction the prevailing
party gets attorney's fees. So you can choose to have arbitration as an
option but that just would not preclude someone from opting out and filing
suit instead.

egel Laurent, ESQ.
*Laurent Law Office, P.L.*
930 South State Road 7
Plantation, FL 33317
Phone: 786. 453. 7198 // Fax: 786.233.6169

Email Confidentiality Privileged/Confidential Information may be contained
in this message.
If you are not the addressee indicated in this message (or responsible for
delivery of the message to such person), you may not copy or send this
message to anyone.  In such case, you should destroy this message and
kindly notify the sender by reply e-mail.

Debt collection disclosure: a portion of our firm’s practice involves the
collection of debts on behalf of our client(s).  If you are someone against
whom our client(s) has a claim, please be aware that this communication is
from a debt collector as defined by law and any information obtained will
be used for that purpose.

On Tue, Dec 8, 2020 at 7:54 AM RPPTL Real Estate Leasing Committee <
landten at lists.flabarrpptl.org> wrote:

> Good points Jordan, but the Florida Supreme Court has ruled (admittedly
> with regard to a different statute section) that a “civil action or
> proceeding” encompasses arbitration (see attached).
>
> This one is not clear but my best guess is that you can arbitrate the
> issue; the question of whether you would get prevailing party fees is even
> murkier.
>
>
>
> *Manuel Farach*
> Attorney at Law
>
> [image: mcglinchey]
>
> *mfarach at mcglinchey.com <mfarach at mcglinchey.com>*
> One E Broward Blvd, Ste 1400, Fort Lauderdale, FL 33301
> T (954) 356-2528  F (954) 756-8064
>
> *bio <https://www.mcglinchey.com/people/manuel-farach>** | **vCard
> <https://www.mcglinchey.com/people/manuel-farach/vcard>** | **mcglinchey.com
> <https://www.mcglinchey.com>*
>
> [image: visit McGlinchey's COVID-19 Resource Center]
> <https://www.mcglinchey.com/firm/covid-19-resource-center/?utm_source=email&utm_medium=signature&utm_campaign=covid19>
>
> Alabama  California  Florida  Louisiana  Massachusetts  Mississippi  New
> York  Ohio  Tennessee  Texas  Washington, DC
>
>
>
> *From:* landten-bounces at lists.flabarrpptl.org <
> landten-bounces at lists.flabarrpptl.org> *On Behalf Of *RPPTL Real Estate
> Leasing Committee
> *Sent:* Tuesday, December 08, 2020 7:41 AM
> *To:* landten at lists.flabarrpptl.org
> *Subject:* Re: [RPPTL Leasing Committee] Arbitration clause for Sec Dep
> Disputes
>
>
>
> I do not believe the issue can be decided by arbitration, and that if it
> was in the lease, the provision would be unenforceable.
>
>
>
> Section 83.47(1)(a) provides that a "provision in a rental agreement is
> void and unenforceable to the extent that it . . . [p]urports to waive or
> preclude the rights, remedies, or requirements set forth" in the Act.
>
> 83.47(1)(b) renders a provision unenforceable if it “[p]urports to limit
> or preclude any liability of the landlord to the tenant or of the tenant to
> the landlord, arising under law.”
>
>
>
> Section 83.54 states that "[a]ny right or duty declared" in the Act "is
> enforceable by civil action."
>
>
>
> Best,
>
>
>
> Jordan Marcus Brill, Esq.
>
> Glachman & Brill, P.A.
>
> 6421 Congress Ave., Suite 120
>
> Boca Raton, FL 33487
>
> (561)859-0679
>
> jordan at glachmanbrill.com
>
> www.glachmanbrill.com
>
>
>
> *The information contained in this email message is intended for review
> and use of the senders intended recipient and no other. Any recipient or
> reader of this email that is not an intended recipient or reader is  hereby
> notified that any dissemination, distribution or copying of this
> communication is strictly prohibited; any wrongful dissemination or receipt
> shall not constitute a waiver of any privilege held by the sender or any
> intended recipient  or client of  the sender.  If you have received this
> communication in error, please immediately notify us via email directed
> to jordan at glachmanbrill.com <jordan at glachmanbrill.com> and by telephone to
> 561-859-0679, and destroy the original message and all copies thereof and
> related communications thereto.  Thank you.*
>
>
>
> *From:* landten-bounces at lists.flabarrpptl.org <
> landten-bounces at lists.flabarrpptl.org> *On Behalf Of *RPPTL Real Estate
> Leasing Committee
> *Sent:* Tuesday, December 8, 2020 7:07 AM
> *To:* landten at lists.flabarrpptl.org
> *Subject:* Re: [RPPTL Leasing Committee] Arbitration clause for Sec Dep
> Disputes
>
>
>
> There’s no prohibition on the issue being decided by arbitration, but the
> prevailing party will probably not get their attorney’s fees in an
> arbitration proceeding. 83.49(3)(c) reads:
>
>
>
> (c) If either party institutes an action in a court of competent
> jurisdiction to adjudicate the party’s right to the security deposit, the
> prevailing party is entitled to receive his or her court costs plus a
> reasonable fee for his or her attorney. The court shall advance the cause
> on the calendar.
>
>
>
> *Manuel Farach*
> Attorney at Law
>
> [image: mcglinchey]
>
> *mfarach at mcglinchey.com <mfarach at mcglinchey.com>*
> One E Broward Blvd, Ste 1400, Fort Lauderdale, FL 33301
> T (954) 356-2528  F (954) 756-8064
>
> *bio <https://www.mcglinchey.com/people/manuel-farach>** | **vCard
> <https://www.mcglinchey.com/people/manuel-farach/vcard>** | **mcglinchey.com
> <https://www.mcglinchey.com>*
>
> [image: visit McGlinchey's COVID-19 Resource Center]
> <https://www.mcglinchey.com/firm/covid-19-resource-center/?utm_source=email&utm_medium=signature&utm_campaign=covid19>
>
> Alabama  California  Florida  Louisiana  Massachusetts  Mississippi  New
> York  Ohio  Tennessee  Texas  Washington, DC
>
>
>
> *From:* landten-bounces at lists.flabarrpptl.org <
> landten-bounces at lists.flabarrpptl.org> *On Behalf Of *RPPTL Real Estate
> Leasing Committee
> *Sent:* Monday, December 07, 2020 9:56 PM
> *To:* landten at lists.flabarrpptl.org
> *Subject:* Re: [RPPTL Leasing Committee] Arbitration clause for Sec Dep
> Disputes
>
>
>
> I would argue that the statute states that either party may bring suit not
> that either party may arbitrate.
>
>
>
> Leonard P. Cabral, Esq.
>
>
>
> *From:* landten-bounces at lists.flabarrpptl.org <
> landten-bounces at lists.flabarrpptl.org> *On Behalf Of *RPPTL Real Estate
> Leasing Committee
> *Sent:* Monday, December 7, 2020 5:31 PM
> *To:* 'RPPTL Landlord Tenant Committee' <landten at lists.flabarrpptl.org>
> *Subject:* [RPPTL Leasing Committee] Arbitration clause for Sec Dep
> Disputes
>
>
>
> A property manager is asking me why an arbitration clause can’t be put in
> a residential lease for Security Deposit disputes and I basically don’t
> know the answer.
>
>
>
> Is this because the law does not provide for it in 83.49?  I have never
> seen one.
>
>
>
> Anyone?
>
>
>
> 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* <harry at evict.com>
>
> [image: cid:image007.png at 01D6CD36.6F04C540]
> <https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870>
>
>
> *Visit us on Facebook*
>
>
>
>
>
> 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.
>
>
>
>
>
>
>
>
> ------------------------------
>
>
> www.mcglinchey.com | www.CafaLawBlog.com
>
> McGlinchey Stafford, PLLC in Alabama, Florida, Louisiana, Massachusetts,
> Mississippi, New York, Ohio, Tennessee, Texas, and Washington DC and
> McGlinchey Stafford, LLP in California.
>
> Confidentiality Statement: This email may contain attorney-client
> privileged or confidential information. It is for the sole use of the
> intended recipient(s). If you have received this transmission in error,
> immediately notify us by telephone at 504-586-1200 and return the original
> message to us at McGlinchey Stafford, 12th Floor, 601 Poydras Street, New
> Orleans, LA, 70130 via the United States Postal Service.
>
> We take steps to remove metadata in attachments sent by email, and any
> remaining metadata should be presumed inadvertent and should not be viewed
> or used without our express permission. If you receive an attachment
> containing metadata, please notify the sender immediately and a replacement
> will be provided.
>
> See McGlinchey Stafford Disclaimer/Privacy Policy
> https://www.mcglinchey.com/disclaimer/
> _______________________________________________
> landten mailing list
> landten at lists.flabarrpptl.org
> http://mailman.fsr.com/mailman/listinfo/landten
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20201208/177d02ba/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image006.png
Type: image/png
Size: 16303 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20201208/177d02ba/image006-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image007.png
Type: image/png
Size: 1153 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20201208/177d02ba/image007-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2104 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20201208/177d02ba/image001-0001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image003.png
Type: image/png
Size: 32049 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20201208/177d02ba/image003-0001.png>