[RPPTL Leasing Committee] Arbitration clause for Sec Dep Disputes
RPPTL Real Estate Leasing Committee
landten at lists.flabarrpptl.org
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
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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]
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> *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
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> jordan at glachmanbrill.com
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> *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
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>
> *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
>
>
>
>
>
>
>
>
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