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Category: Landlord Tenant

  • Broward Residential Evictions Restart June 3, 2020 (Extended to August 1, 2020)

    Update: June 30, 2020 at 8:10 p.m. Governor Desantis issued executive order (20-159) extending Executive Order 20-94 (as extended by Executive Order 20- 121) until 12:01 a.m. on August 1, 2020. We are still experiencing issues with the clerk’s office refusing to issue writs and some judicial divisions not signing orders for obtaining judgments and writs on non-residential evictions and those not involving non-payment issues.

    Update: June 1, 2020 at 7:06 p.m. Governor Desantis issued an executive order (20-137) extending Executive Order 20-94 (as extended by Executive Order 20- 121) until 12:01 a.m. on July 1, 2020. This extension applies to residential properties for non-payment of rent. The Federal Cares Act legislation also remains in effect. Commercial Evictions and residential evictions that are not based on a termination for non-payment of rent are not affected by the Governor’s extension.

    On May 28, 2020, the 17th Judicial Circuit’s Chief Judge, Hon. Jack Tutor, issued Amended Administrative Order (AO) 2020-39-CO / 2020-40-Civ (Defaults, Writs of Garnishment, and Evictions and Writs of Possession).  The order reopens residential eviction proceedings in Broward County.

    Effective June 3, 2020, the Clerk of the Court will begin processing defaults and issuing writs of possession as permitted by law. The AO further suspends the Rule 1.580(a) “forthwith” requirement, meaning clerks are not required to expedite the issuance of said writs. The AO adds a new requirement that residential landlords must file a verification of compliance with the Cares Act which is still in effect until July 25, 2020 (120 days from March 27, 2020). Please refer to our prior blog article (click here) for more information about the specifics of the Cares Act.

    The verification of compliance with the Cares Act requires that the Plaintiff sign a verified statement as to the following facts:

    • The Plaintiff is not a multifamily borrower currently receiving a forbearance under the Cares Act for the property which is the subject of the eviction.
    • The eviction is for a reason other than nonpayment of rent
    • The action involves a commercial property, or does not involve a rental property that participates in federal assistance programs, and is not encumbered by a federally backed mortgage loan.

    The verified statement is in the nature of an affidavit, although does not require notarization. It contains an acknowledgment that “any material misrepresentation could cause … prosecution of a separate criminal law violation” and shall be signed under penalty of perjury. The verification cannot be signed by the filing attorney or property manager, it must be signed by an owner or an officer of the owning entity.

    For the entire text of the order please follow this link (2020-39-CO_2020-40-Civ_amended). The full AO contains a written definition of “covered dwelling” and the form of the verified statement that must be filed. The provisions of this AO apply to any residential eviction case based on non-payment filed on or after March 27, 2020, and shall automatically expire on July 28, 2020, unless amended or extended.

    The purpose of this article is to provide you a summary of the most up-to-date information available concerning developments concerning landlords in the State of Florida and more specifically, in Broward County. The author will attempt to keep this article up to date with additional information as it becomes available, but as the current state of affairs is a constantly evolving and fluid situation, you should refer to the sources cited herein for specific information. This is not intended to be a substitute for proper legal advice based on your specific facts and circumstances.

    A portion of our practice at Pompano Law is the representation of commercial and residential property owners. If you are a property owner in need of legal counsel, please feel free to reach out to us.

     

  • Eviction Orders: Florida’s Local, State and Federal Moratoriums

    Updated: May 29, 2020. This information has been superseded by a recent Administrative Order. Please click here to see our latest blog article with updated information, including the latest Administrative Order restarting residential evictions in Broward County.

    Updated: May 15, 2020 at 7:00 pm.

    On March 27, 2020, President Donald Trump signed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) into law. The law includes a federal eviction moratorium for residential tenants living in certain types of housing as summarized below.

    Under the provisions of the new law, residential landlords are restricted from filing new evictions for non-payment of rent, and prohibits “charg[ing] fees, penalties, or other charges to the tenant related to such nonpayment of rent.” §4024(b).

    The Act does not affect cases:

    1. that were filed before the moratorium took effect or that are filed after it sunsets
    2. that involve non-covered tenancies (see below), or
    3. where the eviction is based on another reason besides nonpayment of rent or nonpayment of other fees or charges.

    What types of housing are covered by the federal eviction moratorium?

    The eviction moratorium applies to “covered dwellings,” which includes those dwellings on or in “covered properties.” Section 4024(a) of the Act defines a “covered property” as a property that:

    1. participates in a “covered housing program”
    2. participates in the “rural housing voucher program;
    3. has a federally backed mortgage loan; or
    4. has a federally backed multifamily mortgage loan.

    The Act defines a federally backed mortgage loan as that which is “in whole or in part, or insured, guaranteed, supplemented, or assisted in any way, by any officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary of Housing and Urban Development or a housing or related program administered by any other such officer or agency, or is purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.” The National Housing Law Project, reports that about 70 percent of mortgages for single-family homes are federally backed.

    How long is the federal eviction moratorium in effect?

    The federal eviction moratorium took effect on March 27, 2020 and extends for 120 days.  Landlords that receive forbearances of federally backed multifamily mortgage loans must respect identical renter protections for the duration of the forbearance. §4023(d). Furthermore, the Act requires that Landlords of a covered dwelling may not require the tenant to vacate before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate; and may not issue a notice to vacate until after the expiration of the moratorium.

    On April 2, 2020, Florida’s Governor Ron DeSantis signed Executive Order 20-94 (Emergency Management – COVID-19 – Mortgage Foreclosure and Eviction Relief). The Order suspends and tolls any statute providing for an eviction cause of action under Florida law for 45 days from April 2, 2020, as it relates to non-payment of rent by residential tenants. The Order has the effect of suspending any notice for non-payment such as a three-day notice or other notice to pay rent or quit. Governor DeSantis, speaking in advance of the issuance of the Order, stated that it does not relieve an individual’s obligation to make rent payments, but is intended to provide “targeted, temporary relief from certain … evictions for 45 days.”

    Updated: On May 14, 2020, Governor Desantis signed Executive Order 20-114 extending the 20-94 from May 17, 2020 until 12:01 a.m. on June 2, 2020.

    Broward County’s Seventeenth Judicial Circuit, overseen by Chief Judge Jack Tutor, has also issued an Administrative Order (AO) (Administrative Order 2020-27-Temp (IV)(F)) which provides new rules in Broward County concerning defaults and writs of possession. The AO states that until the Courts resume normal operations, in all county and civil cases:

    1. No default shall be entered by the Clerk of Court; and
    2. No court default may be sought unless submitted by motion to the presiding judge detailing exigent circumstances which may warrant judicial relief. In the event the presiding judge is unavailable, the matter shall be presented to the Administrative Judge of the County Court or the Administrative Judge of the Circuit Civil Division, as appropriate, and if either are unavailable, to the Chief Judge.
    3. No writs of possession may issue until normal operations of the court resume.

    Updated: On April 6, 2020, Broward County’s Chief Judge for the 17th Judicial Circuit issued a  suspension of normal operations through May 29, 2020 (AO 20-32-Temp) which conforms with the Florida Supreme Court’s Administrative Order No. AOSC20-23 (In Re: Comprehensive COVID-19 Emergency Measures for the Florida State Courts, extending state court COVID-19 emergency procedures through the month of May).

    Do these orders affect commercial evictions based on non-payment of rent? 

    It is important to point out, that Broward County’s Administrative Order does not differentiate actions for possession based on a commercial or residential tenancy as does the State and Federal Orders.

    Update: The Broward County Sheriff’s office maintains their temporary suspension of writ enforcement with the following statement, “the Broward Sheriff’s Office, in coordination with the 17th Judicial Circuit, has decided to temporarily cease all eviction activities until further notice due to the current public health crisis.” This suspension does not differentiate between residential and commercial writs.

    The purpose of this article is to provide you a summary of the most updated information available concerning developments concerning landlords in the State of Florida and more specifically, in Broward County. The author will attempt to keep this article up to date with additional information as it becomes available, but as the current state of affairs is a constantly evolving and fluid situation, you should refer to the sources cited herein for specific information. This is not intended to be a substitute for proper legal advice based on your specific facts and circumstances.

    A portion of our practice at Pompano Law is the representation of commercial and residential property owners. If you are a property owner in need of legal counsel, please feel free to reach out to us.

     

     

  • Broward Associations: Acknowledgement and Rejection

    On September 10, 2013, the Broward County Commission voted to enact an amendment to its Code of Ordinances prohibiting discriminatory practices in real estate transactions. This includes Homeowner Associations and Cooperative Associations who review prospective purchase and lease applicants. The rules require that the association acknowledge receipt of a completed application within ten (10) days of submission. If the application package is incomplete, the acknowledgment letter must include a list of missing or incomplete items. Within forty-five (45) days after receipt of a completed application, the association must reject or approve the application and if rejected, must state the reason(s).

    Click to see the amendment to the code: Section 16 1/2-35.6 Required Notices in Connection with Application to Purchase or Rent Dwelling

    The existing ordinance contains all of the county’s non-discriminatory practices in real estate transactions. All real estate owners, managers and association boards would do well to review this ordinance from time to time.

    Click to see the entire Ordinance (prior to the amendment above): Section 16 1/2-35 (Discrimination in Real Estate Transactions)

    The Law Offices of Oates & Oates, P.A.’s practice includes real estate transactions, and is a licensed agent for Attorney’s Title Insurance Fund and Old Republic National Title Insurance.

     

  • Notice of Claim on Security Deposit

    Fla. Stat. 84.49(3)(a)…Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim.

    As the statute requires, when a tenant moves out of your property, if you intend to make a claim on their security deposit you have only a limited time to do so properly. Failure to properly send out a notice of claim on security deposit may result in a suit by the tenant to recover their deposit. The risk to a landlord for failing to provide the proper notice may result in the landlord being forced to turn over the deposit regardless of landlord’s damages for unpaid rent or damage to the premises. Additionally, tenants who hire an attorney to dispute the landlord’s claim on a security deposit may be awarded their attorney’s fees and costs resulting in potentially large losses to the landlord.

    There are specific methods for delivery of the notice as well as rules regarding whether or not your tenant has provided you a forwarding address. You should review Chapter 83 carefully to make sure you are using the best practices. The Law Offices of Oates & Oates, P.A. is a full service civil and business litigation firm which also handles all landlord tenant and real estate matters.

  • Order to Post Money to the Court Registry

    Link: Read more about this firm’s eviciton services

    During the pendency of an eviction case, whether residential or commercial, the Court may enter an order requiring the Tenant to post money into the Court registry. The Order may also include language that requires the Tenant to continue to post rent money to the registry of the court when each new payment becomes due. The Fourth District Court of Appeal recently issued an opinion on this very issue in a commercial tenant eviction.

    In the case of Poal Wk Taft v. Johnson Medical Center, 45 So.3d 37 (Fla. 4th DCA 2010), the lower court issued an order requiring the Tenant to post money into the registry of the court. The Appeals Court opinion said that, not only was the continued posting of rent to the court registry required as it became due, but the Tenant is also required to do that same by statute. During a commercial tenant eviction, “the tenant is required, even without court order, to make payments into the registry of the court when due.” Id. In the absence of strict compliance with these requirements, the landlord is entitled to a writ of possession without further hearing. Id.

    If you need assistance with a residential or commercial eviction, please call the attorneys at Oates & Oates.

    Read more about the eviction process at: https://2026.pompanolaw.com/practice-areas/evictions

     

  • Abandoned Property: Landlord Beware

    Link: Read more about this firm’s eviction services

    Whether you are a seasoned landlord with valuable management skills or a first-time landlord, the issue of eviction or abandonment could be an issue you have to face. The issue of abandoned property appears in two contexts. On one hand, a landlord could face the issue when the tenant has abandoned the property altogether by leaving for an indefinite period of time without giving notice. On the other, a landlord could face the issue when the lease has expired or been terminated yet the tenant fails to take all of his or her possessions with him. What are your rights and responsibilities as a landlord in each situation?

    In the first situation, a landlord is dealing with an abandoned dwelling upon which the tenant probably owes rent. The landlord needs to think about whether or not the property is actually abandoned as defined by Florida law. Florida Statute § 83.59(3)(c) states that a tenant has abandoned the dwelling when he or she is absent from the property for a period of time equal to one-half the time for periodic rental payment, as long as the rent is not current and the tenant has not notified the landlord of his or her absence in writing. For example, in Shorter Home Solutions, LLC v. Tyrance Kingdom, the Broward County court held that statutory abandonment of the property was apparent because the tenant, Tyrance Kingdom, had abandoned the dwelling when he left the premises without paying his monthly rent, without advising the landlord of his absence, and without returning to the premises until after the 15th day of the month. The landlord, Shorter Home Solutions, was entitled to remove the tenant’s personal property from the premises and was awarded a judgment of the balance on the rent and the reasonable cost of attorney’s fees.

    The second situation involves a bit more action on behalf of the landlord. This situation arises when the lease has expired or been terminated, be it by eviction or abandonment, and the tenant has left behind personal property in the dwelling. Under Florida Statute § 715.104, the landlord must give written notice to the tenant or any person he or she reasonably believes to be the owner of the property. The notice must describe the property, must advise the person that reasonable costs of storage may be charged, must state where the property can be claimed, and must set out the date before which the property must be claimed.

    If the tenant or owner of the property responds within the date specified and pays the reasonable costs of storage, the landlord must release the property to that person. However, if no one claims the property before the date specified, and the landlord believes that the resale value of the property will be less than $500, he or she may retain it for his or her own use, pursuant to Florida Statute § 715.109. Otherwise, the property must be sold at public sale by competitive bidding.

    Although landlords are an integral part of property management businesses in today’s society and their rights and responsibilities are set out by Florida law, disputes between them and their tenants are inevitable in these situations. If you face either of these situations as a landlord or tenant, the attorneys at Oates & Oates have the experience to help counsel you and enforce your rights.

    Ellen Stewart is a graduate student pursuing a juris doctor degree at Stetson University College of Law in Saint Petersburg, Florida. She is a legal research assistant for the Law Offices of Oates & Oates, P.A.

  • Protecting Commercial Property From Liens Arising Due to Tenant Improvements

    Commercial landlords and property managers should be familiar with Florida Statutes § 713.10, when it comes to protecting a property from the liens arising from work done to the property by a tenant. Recent case law illustrates what other protective measures can be taken by a landlord or property manager when it comes to improvements by tenants, especially if those improvements are required under the lease or if said improvements constitute the “pith of the lease.” 14th & Heinberg, LLC, vs. Henricksen & Co., Inc., 877 So.2d 34 (Fla. 1st DCA 2004)

    The issues arise when a tenant contracts for improvements to a leased property, and the contractors, suppliers or materialmen contracted to complete the improvements do not get paid. They file notices to owner and properly perfect their liens on the leased property. The issue for the landlord then becomes, is their property subject to the liens for the improvements and can the contractor properly enforce their lien in foreclosure against the property.

    “No lien language,” express provisions of a lease which prohibit liability for liens from tenant improvements, has been the usual protection for most landlords, however in many cases it is not a complete protection. Specifically, where a lease contemplates tenant improvements or even requires improvements to the property, the contractor can then argue that since the improvements were contemplated by the parties under the lease, that the landlord’s interest in the property is then subject to liens for the unpaid improvements.

    Section 713.10 provides that “a lien…shall extend to, and only to, the right, title, and interest of the person who contracts for the improvement or is thereafter acquired in the real property.” From a continued reading of 713.10, you can see the legislative interpretations of the cases that come before 14th & Heinberg. Among them, the Section provides for the recording of a short form or memorandum of lease to put the world on notice of the express language in the lease limiting liens by contractors completing tenant improvements.

    Even after 14th & Heinberg, the, as of yet, still unresolved question becomes whether any single protective measure is enough to properly protect a landlord’s interest. Perhaps the only appropriate reading may be that landlords must use every protection available in order to keep their properties from being subject to liens for tenant improvements. Of course each situation is factually distinct and there are many factors to consider to properly protecting an owner’s interest in a property from liens arising out of tenant improvements on the property. Therefore, the advice of a knowledgeable attorney in the preparation of a commercial lease agreement is always good practice.

  • 4th District Court of Appeal rules for Landlords

    The 4th District Court of Appeals, covering Broward, Palm Beach, St. Lucie, Martin, Indian River, and Okeechobee Counties, has ruled on a long standing disputed point of law in Broward County. The question:

    Whether a tenant claiming a defective or non-existent three-day notice is a residential eviction is required to tender undisputed rent into the court registry as set forth in Florida Statute § 83.60(2) in order to defend the action based on the defective or non-existent three-day notice.

    The ruling: “We answer the question in the affirmative and affirm the decision of the County Court.” Myron Alphesus Stanley, Jr. vs. Quest International Investment, Inc., 2010 WL 4861722 (Fla. 4th DCA 2010).

    The issue came about when a Landlord filed an eviction and three day notice using a form eviction complaint containing errors and omitting certain required information. The tenant thereafter filed a timely motion to dismiss, or in the alternative, motion to determine rent, but did not deposit the undisputed rent into the court registry as required by § 83.60(2), Florida Statutes. Broward County Court Judge Lee entered a default against the tenant for having failed to post the undisputed rent into the court registry and this appeal was filed.

    The 4th District made their ruling on the basis that the plain language of § 83.60(2) required the posting of unpaid rent to the court registry as a prerequisite to any defense other than payment. The Court declined to follow the Appellant’s argument that a proper three-day notice is a condition precedent to filing an action for possession of property. The Court was mindful of the public policy issues raised by the tenant, however left policy making to the legislature and felt its only obligation was to follow the plain meaning of the law.

    This is a win for landlords, who until now have been subject to different interpretations of the current law, depending on which judge was randomly assigned to the eviction. It is important to note that there are still other issues which remain for landlords who prepare and file their own evictions. The services of a competent and knowledgeable attorney are still the best way to avoid problems with an eviction. This ruling does not change the long standing law that a tenant is entitled to recover its attorney’s fees and costs from the landlord for an improperly filed eviction.

  • Residential Tenant Evictions

    Link: Read more about this firm’s eviction services 

    The most important precaution Landlords have against bad tenants is to obtain a rental application with the tenant’s identity before handing over the keys. Verifying the information and running a background check will ensure the renter is not a habitual deadbeat tenant. After the rental term has begun, be swift with the appropriate action at the fist sign of delinquincy. A typical eviction may take several weeks before the tenant is forced to move out.

    Rental Application

    Renters have protections as well against landlords that don’t strickly comply with the law. Florida law provides that a landlord may be responsible for a tenant’s attorney’s fees if a tenant is subjected to an unlawful eviction.

    Find out more about anything mentioned above including services such as background checking, identification verification and eviction history available through our office.