Conference of County Court Judges July, 2015 Judge David E. Silverman Judge Michaelle Gonzalez-Paulson Managing the Landlord ~ Tenant Docket.

Conference of County Court JudgesJuly, 2015

Judge David E. SilvermanJudge Michaelle Gonzalez-

Paulson

Managing the Landlord ~ Tenant Docket

Learning Objectives

1.   Correctly apply pertinent law, including recent statutory changes, to decide common issues in landlord-tenant cases.

2.  List ways to expeditiously and efficiently handle a landlord-tenant caseload.

3

Practice Tip 1

Review file within 7 - 10 days after service of process.

Judge should review file to determine if the Court has jurisdiction and, if so, whether:

Default is proper; Rent Determination Hearing should be set; or, Trial should be set.

Service of Process

Chapter 48 Personal Substitute

Posted Service Prior attempts At least 6 hours apart Conspicuous location on premises

4

Service of Process - Scenario

Return of Service

5

The summons and complaint served by [ ]Personal [ ]Substitute[Χ]Posting

Service of Process –Polling Results

The Clerk has entered a default on this Return of Service, the Court should,

A.Evict based on Clerk’s default

B.Decline to proceed pending filing of return reflecting proper service

C.Set hearing to determine proper service of process

6

Service of Process - Perspectives

Court’s Review of Return of Service Effect of Clerk’s Default

Limitation on Damages Court Costs

Response by Defendant Effect on Deficiency in Service of

Process Effect on Damages Limitation

7

8

Practice Tip 2

Use template documents to expedite accurate decisions.

Judge should be able to promptly enter orders including,

Order for Default, Final Judgment of Eviction, Order Scheduling Rent Determination, Order Scheduling Trial

9

§ 34.011 - County CourtJurisdiction 

The County Court shall have (1) Jurisdiction concurrent with the

circuit court to consider landlord and tenant cases

(2) exclusive jurisdiction of proceedings relating to the right of possession of real property. . .

10

§ 26.012 (2) –Circuit Court Jurisdiction 

Circuit Courts shall have exclusive original jurisdiction: (f) In actions of ejectment; and (g) In all actions involving the title

and boundaries of real property.

11

§ 82.42 (2) – Exclusion from County Court Jurisdiction 

Residential eviction does not apply If the tenant is in possession by a

contract for purchase of the residence unit and “has paid at least 12 months’ rent” or “at least 1 month’s rent and a deposit of at least 5 %” of the purchase price of the property.

Jurisdiction - Scenario

The Tenants’ Answer

12

“The landlord orally promised we would be able to buy the house and he would apply one third of our rent to the purchase price.”

Jurisdiction - Options

Where the tenant claims an interest in the residence by an alleged option, the Court should,

A.Evict absent rent deposit

B.Order accrued rent deposit

C.Conduct hearing to evaluate validity of claim

D.Transfer to circuit court13

Jurisdiction - Perspectives

Effect of Amendment Determination as to Interest

Domestic Tenancy Unlawful Detainer

Mortgage Foreclosure Eviction Federal Law Repealed Recent Florida Statute

14

15

Practice Tip 3

Dispose of most cases by default judgment of eviction.

Where tenant has defaulted by failing to file answer or not posting accrued rent when required

Avoid emotional response that may result in unnecessary trial

§ 83.60 (2) –Motion to Determine Rent

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 within 5 days” entitles the landlord “to an immediate default judgment.”

16

§ 83.60 (2) –Motion to Determine Rent

If a motion to determine rent is filed, “documentation in support of the allegation that the rent as alleged in the complaint is in error is required. ”

17

Motion to Determine Rent - Scenario

The Tenant’s Motion to Determine Rent

18

“The amount claimed by the landlord in the 3 day notice is wrong, we don’t owe that much.”

Motion to Determine Rent – Options

Without documentation, the Motion to Determine Rent asserts that rent claimed is in error, the Court should,

A.Evict

B.Order deposit of accrued rent

C.Set hearing on motion

D.Set hearing on motion only if inconsistency in amount claimed

19

20

Practice Tip 4

Facilitate online scheduling.

Place available hearing time online together with instructions on reserving hearing time.

Provide pertinent information – without giving legal advice – as to landlord-tenant issues.

Make template documents available.

21

§ 83.60 (2) - Defense of Payment

In a residential eviction action, “if the tenant interposes any defense other than payment,” including “a defective 3-day notice,” the tenant shall deposit the accrued rent into the registry.

Defense of Payment – Scenario

The Tenant’s Answer

22

“The landlord orally agreed to take partial rent so he’s been paid everything he’s owed.”

Where the Answer alleges rent obligation satisfied, the Court should –

A.Evict

B.Order payment of accrued rent as alleged in Complaint

C.Conduct evidentiary hearing as to amount of deposit

D.Schedule trial

Defense of Payment – Options

23

24

Practice Tip 5

Avoid ex parte communications with litigants.

Expedited procedure does not vary responsibility under the Canons of Judicial Conduct.

Scheduling exception, limited with respect to basis, prompt disclosure, adverse appearance.

25

§ 83.60 (1)(a) – Landlord May Cure Deficient Notice

“The landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.”

Three Day Notice - Deficiencies

Improper 3-Day Notice “Court observed” holidays “Rent” only Mailed notice - 5 additional days

Improper parties Tenants not on lease Improper or fictitious landlord

26

Three Day Notice – Options

Provided deposit of accrued rent, where the 3 day notice appears deficient, the Court should -

A.Evict where deficiency is not prejudicial

B.Stay for 20 days or less

C.Stay for more than 20 days

D.Dismiss with leave to amend

27

28

Practice Tip 6

Maintain a tracking log of eviction cases.

Identify how many days each eviction case is pending, at each stage, to disposition.

Compare cases to identify causes of delay, points at which delay occur, and procedures for expediting resolution.

Staying the Writ

29

Staying the Writ – Scenario

Following entry of an eviction judgment, the Court should stay execution of the writ upon,

A.Extreme adverse consequencesB.Landlord’s acceptance of rent

after entry of the judgmentC.No stay

30

31

Staying the Writ – Polling Results

Perspectives

Public Housing Tenants Deposit Amount Notice Requirements

Mobile Home Evictions Basis for Eviction Delaying the Writ

Condominium Assn. Evictions

32

33

Practice Tip 7

When scheduling trial, require deposit of accrued rent.

When the trial is scheduled into the next month, rent may continue to become due.

Including obligation to continue to deposit rent in trial order may limit potential adverse effects.

34

Conducting the Trial - § 83.60(1)

The defense of material non-compliance may be raised by the tenant, “if 7 days have elapsed after delivery of written notice by the tenant.”

The landlord’s material noncompliance with §83.51(1) is “a complete defense” to an eviction action based upon nonpayment of rent and “the rent is to be reduced to reflect the diminution in value of the dwelling unit.”

35

Substantial Non-Compliance

If trial is held on Tenant’s substantial non-compliance claim and proper notice of withholding rent was given, If the claim is established, the judge

can then deny the eviction; and, Reduce the rent as the evidence

presents itself and apportion disbursement from the deposit.

Conducting the Trial – Option Slide

During the pro se eviction trial the Court poses –

A.No questions

B.Only clarifying questions

C.All or substantially all of the questions

36

Conducting the Trial - Perspectives

Lease and Defense Security Deposit

Notice and Objection Damages

Rent and Replacement Values Liquidated Damages

Disbursement of Registry Funds

37

38

Practice Tip 8

Conduct hearings with lean efficiency, gentle decisiveness and manifest fairness.

Choose chambers or courtroom and the tenor of the venue.

Avoid the “tardy” default. Identify agreed and disputed issues

of fact and applicable law.

39

Attorney’s Fees

§ 83.48 – The prevailing party in an action to enforce the rental agreement may recover “reasonable attorney’s fees,” a right that may not be waived in the lease.

§ 83.49 (3)(c) The prevailing party in an action “to adjudicate the party's right to the security deposit,” is “entitled to receive” attorney’s fees.

Attorney’s Fees – Scenario

40

The landlord prevailed on the eviction claim and the tenant recovered a portion of the security deposit

In this scenario, the Court should award attorney’s fees to –

A.The landlord

B.The tenant

C.Offset the parties’ attorney’s fees

D.Neither party

Attorney’s Fees – Options

41

Attorney’s Fees - Perspectives

Evaluation of Hours Standard Time Increments of Time

Determining Hourly Rate Experience and Qualifications

Multiplier Contingency - Chance of Prevailing Necessity for Effective Counsel

42

43

Practice Tip 9

Promote opportunities for settlement and schedule mediation.

Despite adverse relationship, enlightened self-interest often motivates parties to settle.

Judicial reservations regarding waiver of default notice.

44

§ 83.52 – Tenant’s Obligation

The tenant at all times during the tenancy shall: (1) Comply all obligations imposed upon

tenants by applicable provisions of building, housing, and health codes. . .

(6) Not destroy, deface, damage, impair or remove any part of the premises or property therein belonging to the landlord nor permit any person to do so.

45

§ 83.58 – Tenant Holding Over

If the tenant holds over and continues in possession of the dwelling unit after the expiration of the rental agreement without permission. . . . The landlord may also recover double the amount of rent due on the dwelling unit.

46

Practice Tip 10

Obtain the perspective of the shareholders.

Meet with sheriff’s eviction deputy, clerks, landlords’ counsel, property managers, representatives for homeless veterans, tenant’s rights organizations, etc.

Avoid discussion of specific cases.

Thank you for participating

in the presentation