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Copy of Copy of Copy of Residential Tenant

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Stephanie Bonilla

on 22 October 2014

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Transcript of Copy of Copy of Copy of Residential Tenant

Presented by: Salvador A. Jurado Jr., P.E.
Residential Evictions
Does the Florida Residential Landlord
Tenant Act (“Act”) Apply?
Florida Statute 83, Part II

The Act applies to the rental of a dwelling unit. (F.S. 83.41)
Florida Statute 83, Part I, applies
to commercial leases.
Exclusions:

Transient occupancies
(e.g. hotels)

Institutional occupancies
(e.g. hospitals)
Important Definitions
(F.S. 83.43)
A structure or part of a structure that is rented for use as a home, residence, or sleeping place by one person or by two or more persons who maintain a common household
Dwelling Unit
any person entitled to occupy a dwelling unit under a rental agreement (All others in possession)
Tenant
Landlord
the owner or lessor of a dwelling unit
Rental Agreement
any written agreement, including amendments or addenda, or oral agreement for a duration of less than 1 year, providing for use and occupancy of premises.
Rent
Periodic payments due to the landlord from the tenant for occupancy under a rental agreement and any other payments due to the landlord from the tenant designated as rent or additional rent in a written rental agreement.
Are self evictions allowed in Florida?
NO! (F.S. 83.67)

A landlord of any dwelling unit shall not:
terminate or interrupt any utility service
prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks

A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees.
Eviction Process
Notice Phase
Complaint Phase
When can landlord
evict tenant?
In Florida, a landlord may evict a tenant for (3) reasons:
Tenant’s failure to pay rent
Tenant’s failure to comply with the leases’ rules and regulations
Landlord has terminated rental agreement

(Very important to determine which one of the above apply)
How does landlord evict a tenant?
F.S. 83 tells you what steps to follow depending on the reason for the eviction (e.g. nonpayment of rent, violation of lease, termination of lease).

Each one of the three reasons for eviction has a slightly different procedure that must be followed

Hire an attorney! A good attorney can provide a flat rate for an uncontested eviction so you will know your legal costs up front.
Nonpayment of Rent
F.S.83.56(3) requires that before a landlord can evict a tenant for the nonpayment of rent, the landlord must serve the tenant with a 3-Day Notice
You must be very careful when preparing the 3-Day Notice
Strictly constructed by the Courts
If 3-Day Notice is incorrect, Court will dismiss case and be subject to pay for tenant's attorney's fees.
If the 3-Day Notice is defective, Landlord will be permitted to amend the complaint with a new 3-Day Notice, but will be required to file a new eviction complaint.Williams v. Moorer, 39 Fla. Supp. 2d 165 (Fla. 2rd DCA 1991)
What does the 3-Day Notice need to say?
3-Day Notice needs to be substantially in the following form (F.S.83.56):
To: Name and Address of Tenant: 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) 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 _____.
Landlord’s name, address and phone number

3-Day Notice needs to be addressed to each tenant who signed lease and “all others in possession”.

If 3-Day Notice is hand delivered or posted, there needs to be a “Certificate” of Service” that states the method of delivery, the name and signature of the individual who delivered it and the date of delivery.
Sample 3-Day Notice
What if the lease requires a notice longer than (3) days?
If the lease requires a notice longer than 3 days, the longer notice will control.

Example: A lease stated that landlord was required to provide tenant with a 10-Day notice to pay rent or vacate the premises. The landlord gave tenant the standard 3-Day Notice. The Court ruled that the lease provision controlled because it was longer than the statutory provision so the landlord should have given the tenant 10 days. Lloyd v. Slater, 8 Fla. L. Weekly Supp. 647a (Broward County 2001).
How do you count
the (3) days?
In counting the 3 days, weekends and legal holidays can not be included.

Example: If the 3-Day Notice is delivered to the tenant on Thursday, January 5, 2012, the tenant has until Tuesday, January 10, 2012 to pay the rent or move out. (Friday is day one, Monday is day two, and Tuesday is day three.

Legal holidays for this purpose are all Court observed holidays. A Court calendar is available on most clerk’s websites.
How do you deliver the 3-Day
Notice to the Tenant?
Mailing (Not recommended)

Hand delivery

If the tenant is absent from the premises, by leaving a copy thereof at the residence. (F.S. 83.56)

Remember to always make a copy of the notice that was delivered.
Can Landlord include late
fee in 3-Day Notice?
Landlord can include a late fee in 3-Day Notice only if the late fee is defined as additional rent in the lease. The lease must say a late fee is considered additional rent.

A 3-Day Notice that includes amounts that are not defined as rent in the lease is defective.

A defective 3-Day Notice may result in a case being dismissed and the Landlord paying the tenant’s legal fees.
What if I realize I made a mistake on the 3-Day Notice? Can I deliver a new one?
If you realized you made a mistake on the 3-Day Notice, prepare and deliver a new one to the tenant.

The second notice voids the first notice.
What if tenants pay the rent during the (3) days?
The landlord MUST accept payment if the payment is made during the 3 days. Curley v. McMillan, 4 Fla. L. Weekly Supp. 475 (Fla. Escambia County Ct. 1996)

The Landlord does not have to accept payment if the payment is made after the 3 days have expired. Helga Skin Therapy, Inc. v. Dead River Props, Inc., 478 So. 2d 95 (Fla. 2nd DCA 1995)
What if tenant does not pay rent or move out during the 3-day period?
If Tenant does not pay rent or move out during the 3-Day Period, Landlord can file a Complaint for Eviction.
Tenant’s failure to comply with the leases’ provisions or the landlord’s rules and regulations
In Florida, a landlord is allowed to evict a tenant if the tenant fails to comply with the leases’ provisions or the landlord’s rules and regulations.

However, before an eviction can take place, certain notices must first be provided to tenant (F.S. 83.56).
-7-Day Notice to Cure
-7-Day Notice of Termination of Lease

The procedure that will need to be followed by landlord to evict a tenant depends on whether the violation is curable or non-curable
What is a curable violation?
Examples of “curable” violations include:
-Unauthorized pets
-Unauthorized vehicles
-Loud music at late hours of the night
-Failing to keep premises clean and sanitary

Tenant has a statutory duty to maintain premises (F.S. 83.52)
In addition to F.S. 83.52, the lease usually identifies tenant’s obligations
What needs to be done if
there is a curable violation?
A 7-Day Notice to Cure Violation needs to be delivered to Tenant.
What needs to be done if there
is a non-curable violation?
A 7-Day Notice of Termination of
Lease needs to be delivered to Tenant.
What does the 7-Day Notice to Cure need to say?
A 7-Day Notice to Cure needs to be in substantially the following form (F.S. 83.56):

-You are hereby notified that (detail the noncompliance or violation of the rule or regulation). 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 your being given an opportunity to cure the noncompliance.
SAMPLE
What if the tenant cures the violation with the 7 days?
If the tenant cures the violation within the 7-days, the tenant cannot be evicted.
What if the tenant does not cure the violation within the 7 days?
If the tenant does not cure the violation within the
7 days, the landlord can terminate the lease.
What if the tenant cures the violation within the 7 days but commits the same violation 5 months later?
If the tenant commits the same violation within the next 12 months after having received the 7-Day Notice to Cure, the landlord can terminate the lease.
What does the 7-Day Notice of
Termination of Lease need to say?
A 7-Day Notice of Termination of Lease needs to be in substantially the following form (F.S. 83.56):
-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).
Sample
What if the tenant does not vacate the premises after the lease is terminated?
If the tenant does not vacate the premises after the lease is terminated, the landlord can file a Complaint for Eviction.
How does a landlord terminate a month to month lease?
F.S. 83.57 provides that a tenancy without a specific duration may be terminated by either party giving written notice as follows:
When the tenancy is from year to year, by giving not less than 60 days’ notice prior to the end of any annual period;
-When the tenancy is from quarter to quarter, by giving not less than 30 days’ notice prior to the end of any quarterly period;
-When the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period; and
-When the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.
-
How do you know if it is a month to month tenancy?
If the rental agreement contains no provision as to duration of the tenancy, the duration is determined by the periods for which the rent is payable. (F.S. 83.46)

If the rent is payable weekly, then the tenancy is from week to week; if payable monthly, tenancy is from month to month; if payable quarterly, tenancy is from quarter to quarter; if payable yearly, tenancy is from year to year. (F.S. 83.46)
Landlord Remedies
Complaint for Eviction- to obtain possession and remove the tenant

Complaint for Damages- to obtain money owed under the lease
When can a landlord take possession of its unit?
The landlord shall not recover possession of a dwelling unit except:

(a) In an action for possession under subsection (2) or other civil action in which the issue of right of possession is determined;

(b)  When the tenant has surrendered possession of the dwelling unit to the landlord;

(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent Is current or the tenant has notified the landlord, in writing, of an Intended absence. (F.S. 83.59)
When can a landlord file a Complaint for Eviction?
If the rental agreement is terminated and the tenant does not vacate the premises, the landlord may recover possession of the dwelling unit by filing an eviction complaint.
What are the procedural rules that a landlord needs to follow when
filing an eviction complaint?
Rules of Summary Procedure apply to eviction only complaints. (F.S. 51.011)

-Rules of Summary Procedure do not apply to a damages or money cause of action and the process takes longer
-This is why landlords typically only file a 1 Count Complaint for Eviction and do not seek money damages.
What Court does an eviction
complaint need to be filed in?
County Court jurisdiction (F.S. 83.59)
Service of Eviction Complaint
In an action for possession of any residential premises if the tenant cannot be found in the county or there is no person 15 years of age or older residing at the tenant’s usual place of abode in the county after at least two attempts to obtain service as provided above in this subsection, summons may be served by attaching a copy to a conspicuous place on the property described in the complaint or summons. The minimum time delay between the two attempts to obtain service shall be 6 hours. (F.S. 48.183)
Tenant’s Answer to
Eviction Complaint
Tenant has five (5) days, excluding Saturdays, Sundays, and legal holidays, to file and serve its answer to eviction complaint. (F.S. 51.011)
If tenant raises any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due.
Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon. (F.S. 83.60)
What happens if Tenant
does not file an Answer?
The Landlord shall submit a Default, Final Judgment and Writ of Possession to the Court.
The Court will likely enter the Default and Final Judgment ordering the Clerk to issue the Writ of Possession.
The Writ of Possession will be sent to the Sheriff for execution.
What happens when landlord obtains Final Judgment for Eviction against Tenant?
The Clerk of Court issues a Writ of Possession that is given to the local police department
In Miami-Dade County, the County Police is responsible for this.
The County Police charges a $115.00
fee for its services. (Rush Option)
The Writ of Possession needs to be carefully drafted because it will be strictly followed by police and needs to include a contact name and telephone number for the Landlord.
What is the police procedure for executing a Writ of Possession?
The police will post a 24 hour notice on the subject property (F.S. 83.62)

After the 24 hour period expires, the police will return and if necessary remove the tenants.

Landlord’s agent must be present with:
-Locksmith

-Moving company (there are specific companies that specialize in evictions and will clear out the unit in minimal time)
What does landlord do with any
furniture left behind by tenant?
At the time the sheriff executes the writ of possession or at any time thereafter, the landlord
or the landlord’s agent may remove any personal property found on the premises to or near the property line. (F.S. 83.62)
Neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruction, or damage to the property after it has been removed. (F.S. 83.62)
Condominiums and HOA’s
Rent Demand Law: If the owner is past due with any monetary obligations due to Association, Association may collect rent directly from tenant.

-Statutory Notice must first be send to both owner and tenant that directs tenant to begin paying its rent directly to Association.
-Association allowed to collect full value of rent until owner’s monetary obligations are made current.

Condominiums (F.S. 718.116)

HOA’s (F.S. 720.3085)

After the above notice is sent, the normal eviction procedure applies if the tenant fails to pay the governing association.
Security Deposits
(Landlord’s Responsibilities)
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, 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.

If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit.
Security Deposits
(Tenant’s Responsibilities)
Unless the tenant objects to the imposition of the landlord’s claim or the amount thereof within 15 days after receipt of the landlord’s notice of intention to impose a claim, the landlord may then deduct the amount of his or her claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages. (F.S. 83.49)

Except when otherwise provided by the terms of a written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in the written lease, shall give at least 7 days’ written notice by certified mail or personal delivery to the landlord prior to vacating or abandoning the premises which notice shall include the address where the tenant may be reached. Failure to give such notice shall relieve the landlord of the above notice requirements.
Security Deposit
Prohibited provisions
in Rental Agreements
A provision in a rental agreement is void and unenforceable to the extent that it:
-Purports to waive or preclude the rights, remedies, or requirements set forth in this part.
-Purports to limit or preclude any liability of the landlord to the tenant or of the tenant to the landlord, arising under law. (F.S. 83.47)
Recommended provisions
in Rental Agreements
Define late fees as additional rent.
Detailed “Rules and Regulations”.
(This will help control behavior of tenants)
-Residential purposes only
-Quiet use and enjoyment
-Pets
-Parking
-Care and Maintenance
-Balconies
-Windows
-Interior and exterior walls
-Signs and attachments
Name all Tenants (including children) on lease.
(This will help determine if there are any additional unauthorized tenants residing within unit)
Landlord’s Statutory
Obligations
The landlord at all times during the tenancy shall:
-Comply with the requirements of applicable building, housing, and health codes;
-Maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. (landlord’s obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex) (F.S. 83.51)
Unless otherwise agreed to in writing, in addition to the requirements above, the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for:
-The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs. When vacation of the premises is required for such extermination, the landlord shall not be liable for damages but shall abate the rent. The tenant shall be required to temporarily vacate the premises for a period of time not to exceed 4 days, on 7 days’ written notice, if necessary, for extermination.
-Locks and keys.
-The clean and safe condition of common areas.
-Garbage removal
-Functioning facilities for heat during winter, running water, and hot water. (F.S. 83.51)
Nothing in this part authorizes the tenant to raise a noncompliance by the landlord with this subsection as a defense to an action for possession.
Nothing contained in this subsection prohibits the landlord from providing in the rental agreement that the tenant is obligated to pay costs or charges for garbage removal, water, fuel, or utilities.
The landlord is not responsible to the tenant for conditions created or caused by the negligent or wrongful act or omission of the tenant, a member of the tenant’s family, or other person on the premises with the tenant’s consent.
If the landlord materially fails to comply with F.S. 83.51 or material provisions of the rental agreement, within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement. (F.S. 83.56)
If the failure to comply with F.S. 83.51 or material provisions of the rental agreement is due to causes beyond the control of the landlord and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows:
-If the landlord’s failure to comply renders the dwelling unit uninhabitable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable.
-If the landlord’s failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance. (F.S. 83.56)
If the tenant does not notify the landlord of a defective condition and the landlord is not otherwise on notice of the need for repairs, the landlord cannot be held liable for breach of implied warranty of habitability. Siegel v. Deerwood Place Corp., 701 So. 2d 1190 (Fla. 3rd DCA 1997)
For more information, contact us at 305-442-3334 or visit our website www.srhl-law.com
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