Managing the Landlord Tenant Docket Conference of County

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

Learning Objectives q 1. Correctly apply pertinent law, including recent statutory changes, to decide common issues in landlord-tenant cases. q 2. List ways to expeditiously and efficiently handle a landlordtenant caseload.

Practice Tip 1 q Review file within 7 - 10 days after service of process. q Judge should review file to determine if the Court has jurisdiction and, if so, whether: n Default is proper; Rent Determination Hearing should be set; or, Trial should be set. 3

Service of Process o Chapter 48 n Personal n Substitute o Posted Service n Prior attempts n At least 6 hours apart n Conspicuous location on premises 4

Service of Process - Scenario o Return of Service The summons and complaint served by [ ]Personal [ ]Substitute [Χ]Posting 5

Service of Process – Polling Results q 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 o Court’s Review of Return of Service n Effect of Clerk’s Default o Limitation on Damages n Court Costs o Response by Defendant n Effect on Deficiency in Service of Process n Effect on Damages Limitation 7

Practice Tip 2 q Use template documents to expedite accurate decisions. q Judge should be able to promptly enter orders including, n Order for Default, Final Judgment of Eviction, Order Scheduling Rent Determination, Order Scheduling Trial 8

§ 34. 011 - County Court Jurisdiction o The County Court shall have n (1) Jurisdiction concurrent with the circuit court to consider landlord and tenant cases n (2) exclusive jurisdiction of proceedings relating to the right of possession of real property. . . 9

§ 26. 012 (2) – Circuit Court Jurisdiction o Circuit Courts shall have exclusive original jurisdiction: n (f) In actions of ejectment; and n (g) In all actions involving the title and boundaries of real property. 10

§ 82. 42 (2) – Exclusion from County Court Jurisdiction o Residential eviction does not apply n 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. 11

Jurisdiction - Scenario o The Tenants’ Answer “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. ” 12

Jurisdiction - Options q 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 court 13

Jurisdiction - Perspectives o Effect of Amendment n Determination as to Interest o Domestic Tenancy n Unlawful Detainer o Mortgage Foreclosure Eviction n Federal Law Repealed n Recent Florida Statute 14

Practice Tip 3 q Dispose of most cases by default judgment of eviction. n Where tenant has defaulted by failing to file answer or not posting accrued rent when required n Avoid emotional response that may result in unnecessary trial 15

§ 83. 60 (2) – Motion to Determine Rent o 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 o 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 o The Tenant’s Motion to Determine Rent “The amount claimed by the landlord in the 3 day notice is wrong, we don’t owe that much. ” 18

Motion to Determine Rent – Options o 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

Practice Tip 4 q Facilitate online scheduling. n Place available hearing time online together with instructions on reserving hearing time. n Provide pertinent information – without giving legal advice – as to landlord-tenant issues. n Make template documents available. 20

§ 83. 60 (2) - Defense of Payment o 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. 21

Defense of Payment – Scenario o The Tenant’s Answer “The landlord orally agreed to take partial rent so he’s been paid everything he’s owed. ” 22

Defense of Payment – Options o 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 23

Practice Tip 5 q Avoid ex parte communications with litigants. n Expedited procedure does not vary responsibility under the Canons of Judicial Conduct. n Scheduling exception, limited with respect to basis, prompt disclosure, adverse appearance. 24

§ 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. ” 25

Three Day Notice - Deficiencies o Improper 3 -Day Notice n “Court observed” holidays n “Rent” only n Mailed notice - 5 additional days o Improper parties n Tenants not on lease n Improper or fictitious landlord 26

Three Day Notice – Options q 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

Practice Tip 6 q Maintain a tracking log of eviction cases. n Identify how many days each eviction case is pending, at each stage, to disposition. n Compare cases to identify causes of delay, points at which delay occur, and procedures for expediting resolution. 28

Staying the Writ 29

Staying the Writ – Scenario q Following entry of an eviction judgment, the Court should stay execution of the writ upon, A. Extreme adverse consequences B. Landlord’s acceptance of rent after entry of the judgment C. No stay 30

Staying the Writ – Polling Results 31

Perspectives o Public Housing Tenants n Deposit Amount n Notice Requirements o Mobile Home Evictions n Basis for Eviction n Delaying the Writ o Condominium Assn. Evictions 32

Practice Tip 7 q When scheduling trial, require deposit of accrued rent. n When the trial is scheduled into the next month, rent may continue to become due. n Including obligation to continue to deposit rent in trial order may limit potential adverse effects. 33

Conducting the Trial - § 83. 60(1) o The defense of material non. The landlord’s material noncompliance with § 83. 51(1) is “a compliance may be raised by the tenant, “if 7 days have elapsed after complete defense” to an eviction delivery of written notice by the action based upon nonpayment of tenant. ” rent and “the rent is to be reduced to reflect the diminution in value of the dwelling unit. ” 34

Substantial Non-Compliance o If trial is held on Tenant’s substantial non-compliance claim and proper notice of withholding rent was given, n If the claim is established, the judge can then deny the eviction; and, n Reduce the rent as the evidence presents itself and apportion disbursement from the deposit. 35

Conducting the Trial – Option Slide o 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 o Lease and Defense o Security Deposit n Notice and Objection o Damages n Rent and Replacement Values n Liquidated Damages o Disbursement of Registry Funds 37

Practice Tip 8 q Conduct hearings with lean efficiency, gentle decisiveness and manifest fairness. n Choose chambers or courtroom and the tenor of the venue. n Avoid the “tardy” default. n Identify agreed and disputed issues of fact and applicable law. 38

Attorney’s Fees o § 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. o § 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. 39

Attorney’s Fees – Scenario The landlord prevailed on the eviction claim and the tenant recovered a portion of the security deposit 40

Attorney’s Fees – Options q 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 41

Attorney’s Fees - Perspectives o Evaluation of Hours n Standard Time n Increments of Time o Determining Hourly Rate n Experience and Qualifications o Multiplier n Contingency - Chance of Prevailing n Necessity for Effective Counsel 42

Practice Tip 9 q Promote opportunities for settlement and schedule mediation. n Despite adverse relationship, enlightened self-interest often motivates parties to settle. n Judicial reservations regarding waiver of default notice. 43

§ 83. 52 – Tenant’s Obligation o The tenant at all times during the tenancy shall: n (1) Comply all obligations imposed upon tenants by applicable provisions of building, housing, and health codes. . . n (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. 44

§ 83. 58 – Tenant Holding Over o 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. 45

Practice Tip 10 q Obtain the perspective of the shareholders. n Meet with sheriff’s eviction deputy, clerks, landlords’ counsel, property managers, representatives for homeless veterans, tenant’s rights organizations, etc. n Avoid discussion of specific cases. 46

Thank you for participating in the presentation 47