[RPPTL Leasing Committee] Eviction Question

Thu Feb 25 15:16:24 PST 2021

I agree with Amanda, no judgment for damages, including attorney fees and
costs without personal service see 83.625 below.  Also feel a motion to
dismiss is appropriate as the case is moot once the tenant vacated.

83.625 Power to award possession and enter money judgment.—In an action by
the landlord for possession of a dwelling unit based upon nonpayment of
rent, if the court finds the rent is due, owing, and unpaid and by reason
thereof the landlord is entitled to possession of the premises, the court,
in addition to awarding possession of the premises to the landlord, shall
direct, in an amount which is within its jurisdictional limitations, the
entry of a money judgment with costs in favor of the landlord and against
the tenant for the amount of money found due, owing, and unpaid by the
tenant to the landlord. However, no money judgment shall be entered unless
service of process has been effected by personal service or, where
authorized by law, by certified or registered mail, return receipt, or in
any other manner prescribed by law or the rules of the court; and no money
judgment may be entered except in compliance with the Florida Rules of
Civil Procedure. The prevailing party in the action may also be awarded
attorney’s fees and costs.

Alberto M. Cardet, Esq.
Cardet Law, P.A.
PO Box 830746
Miami FL 33283
305-403-7783

On Thu, Feb 25, 2021 at 5:52 PM RPPTL Real Estate Leasing Committee <
landten at lists.flabarrpptl.org> wrote:

> “T contacts L and advises that he will be moving at the end of November
> and L can offset the two month’s past due rent leaving T with a balance of
> less than $50”
>
>
>
> How is this construed as “an agreement”?
>
>
>
> How many times did you hear a tenant say: “Use my security deposit for my
> rent owed”?   Is that an agreement?
>
>
>
> Harry
>
>
>
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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:* Thursday, February 25, 2021 3:54 PM
> *To:* landten at lists.flabarrpptl.org
> *Subject:* Re: [RPPTL Leasing Committee] Eviction Question
>
>
>
> In light of that, I would encourage the Tenant to file a Motion to Vacate
> the Default (likely as to the damages count only) and defend on the basis
> that the claim was resolved by settlement.
>
>
>
> Amanda R. Kison, Esq.
>
> Board Certified Business Litigation
>
> Bentley Law Firm P.A.
>
> 783 South Orange Ave., 3rd Floor
>
> Sarasota, FL 34236
>
> (941) 556-9030 (Main)
>
> www.thebentleylawfirm.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:* Thursday, February 25, 2021 3:10 PM
> *To:* landten at lists.flabarrpptl.org
> *Subject:* Re: [RPPTL Leasing Committee] Eviction Question
>
>
>
> Thank you so much Amanda!  The Tenant did default because he reached out
> directly to the landlord believing that this would resolve the issue and
> the case would be dismissed.
>
>
>
> *From:* landten-bounces at lists.flabarrpptl.org <
> landten-bounces at lists.flabarrpptl.org> *On Behalf Of *RPPTL Real Estate
> Leasing Committee
> *Sent:* Thursday, February 25, 2021 2:59 PM
> *To:* landten at lists.flabarrpptl.org
> *Subject:* Re: [RPPTL Leasing Committee] Eviction Question
>
>
>
> Hi Brenda!
>
>
>
> If I understand the fact pattern correctly, its not an issue of mootness
> given that the lease has now expired, but that the eviction was resolved as
> a result of the agreement to offset (the security deposit?) to the amount
> owed for the last two months of rent. If they did in fact reach an
> agreement the Oct/Nov rent, I would argue the Landlord is estopped from
> seeking a final judgment of eviction as a result of the settlement and
> Tenant’s relinquishment of possession.
>
>
>
> A few other points of concern: is the Tenant defaulted? Normally, if there
> is no personal service, there can be no judgment for damages or fees as to
> the tenant, only a judgment for possession. Even if the Tenant is
> defaulted, he/she would still have the right to contest the amount of
> damages, which includes the attorneys’ fees requested.
>
>
>
> Amanda R. Kison, Esq.
>
> Board Certified Business Litigation
>
> Bentley Law Firm P.A.
>
> 783 South Orange Ave., 3rd Floor
>
> Sarasota, FL 34236
>
> (941) 556-9030 (Main)
>
> www.thebentleylawfirm.com
>
>
>
> *Please note that* *Bentley Law Firm is taking precautionary measures to
> safeguard its personnel, clients, and guests due to concerns regarding
> COVID-19.  As with Firm personnel, we are asking our guests to refrain from
> visiting Bentley Law Firm  unless absolutely necessary.  We will be
> available by email, Skype or telephone as usual.*
>
>
>
> *We appreciate your understanding and cooperation and apologize for any
> inconvenience.*
>
>
>
> *From:* landten-bounces at lists.flabarrpptl.org <
> landten-bounces at lists.flabarrpptl.org> *On Behalf Of *RPPTL Real Estate
> Leasing Committee
> *Sent:* Thursday, February 25, 2021 2:25 PM
> *To:* RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
> *Subject:* [RPPTL Leasing Committee] Eviction Question
>
>
>
> Hi everyone.  I have an eviction question (and for those of you who know
> me, no I am not the litigator here 😊).  Here are the relevant facts:
>
>
>
> Lease ends November 30th.
>
> T fails to pay rent for October and November
>
> L files an eviction complaint in November (fails to personally serve T who
> is still on the property but later posts on the door)
>
> T contacts L and advises that he will be moving at the end of November and
> L can offset the two month’s past due rent leaving T with a balance of less
> than $50
>
> T moves out and T & L inspect the property at the end of the lease.
>
> L relets the premises
>
> L sends notice of claim to withhold SD and notice of balance of <$50
>
> Now T’s attorney has filed a motion for final judgment of eviction and
> attorney’s fees.
>
>
>
> My question is whether the eviction action is moot since the lease has
> expired.  I believe it should be dismissed since there is no longer a LL/T
> relationship between the parties.
>
>
>
> Side note: the fee request is fairly significant and seems out of line
> with what the efforts should have been. Should there even be a final
> judgment of eviction to base the fees on?
>
>
>
> Does anyone have any advice for how the T’s attorney should respond to
> this motion for final judgment? I think it should be motion to dismiss
> because the issue is moot.
>
>
>
> Thanks for your thoughts.
>
>
>
> Brenda
>
>
>
>
>
> Best regards,
>
>
>
> Brenda B. Ezell, B.C.S.
>
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