Empathy List Archives

AJ

Alderman, Jason

Wed, Dec 30, 2009 12:43 AM

But the tenant's estate is burdened by the restrictive covenants set forth in the recorded condo declarations. If the covenants permit, then owner and tenant have consented. I'd consider what if any docs the tenant signed during the approval process ( which is typically a condition to rental). They may be a further basis for consent.

From: landten-bounces@lists.flabarrpptl.org
To: RPPTL Landlord Tenant Committee
Sent: Tue Dec 29 19:30:13 2009
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

I apologize for chiming in so late on this, but I have been out of town on an emergency. The first thought that comes to my mind is ownership. The Association owns the common areas, not the unit. I do not agree that the Association can initiate self-help practices directed at the unit to prevent the tenant from having access to the unit, such as changing the locks. The locks are the property of the unit owner. As indicated below, this could expose the Association to trespass liability and possibly conversion. Likely the Association could direct such measures to prevent use of the pool, gym, or other common areas. The second thought that comes to mind is rights and liabilities. The tenant is in privity with the landlord/unit owner while the unit owner is in privity with the Association. Thus, it would seem that the landlord/unit owner’s remedy is against the tenant while the Association’s remedy is against the unit owner for breach of the condo docs for having an unauthorized tenant. If the unit owner is directly or indirectly using the Association to do its work in evicting the tenant, by prohibited practices or otherwise, in my opinion, the Association is acting as an agent of the unit owner and liability for prohibited practices should pass to the unit owner.

Regards,

Anthony J. Horky, Esq.

Mombach, Boyle & Hardin, P.A.

500 East Broward Boulevard

Suite 1950 Broward Financial Centre

Ft. Lauderdale, Florida 33394

Telephone: 954.467.2200 ext. 225

Facsimile: 954.467.2210

E-Mail: ahorky@mbhlawyer.com

Website: www.mbhlawyer.com

This message and its attachments are sent by or on behalf of a lawyer and may contain information that is confidential and protected by privilege from disclosure. If you are not the intended recipient, you are prohibited from printing, copying, forwarding or saving them. Please delete the message and attachments without printing, copying, forwarding or saving them, and notify the sender immediately.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com
Sent: Tuesday, December 22, 2009 2:32 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

Agreed on all points.

Harry

LAW OFFICES OF
HEIST, WEISSE & DAVIS, P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com http://www.evict.com/
Email: harry@evict.com

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Tuesday, December 22, 2009 2:16 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

Harry, I would argue that disabling an access gate card would fall within the umbrella of prohibited practices under 83.62 (2), but of course this brings me back to the original conundrum of whether or not a condo association can lawfully engage in what would otherwise be considered “prohibited practices” for a landlord under the LL/T statute.

Tequisha, I also had a call recently where a condo association, as part of its T approval process, was requiring the T to sign something purportedly making the T personally liable to the association for unpaid assessments in the event the LL doesn’t pay the assessments. The question posed to me was If a “Contract to Lease” (an FAR form) that’s already been signed by prospective LL and prospective T says it’s contingent on Association approval and approval is subsequently denied based on prospective T’s refusal to sign a document that is arguably unreasonable, does prospective T get his money back? The FAR Contract to Lease provides that prospective T will “make all reasonable efforts…to obtain Association approval…” My opinion FWIW was that it would be reasonable for a prospective T to balk at signing such a lease addendum mandated by the association.

Regards,

Greg

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com
Sent: Tuesday, December 22, 2009 1:54 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

I have never seen a condo association change locks but have seen them deny access by disabling an access gate card.

Harry

LAW OFFICES OF
HEIST, WEISSE & DAVIS, P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com http://www.evict.com/
Email: harry@evict.com

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Tequisha Myles
Sent: Tuesday, December 22, 2009 1:43 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

We are starting to see many Condo Associations in Palm Beach County that require the Tenant to sign lease addendums that force a tenant to pay rent to the Association directly if the landlord fails to pay his or her maintenance fees. Also these lease addendums state that the Association is somehow authorized to evict the tenant for non-payment. So a prohibited practices amendment to include any type of community association may be worth exploring…

Tequisha Y. Myles, Esq.

Fair Housing and Elder Law Projects

Legal Aid Society of Palm Beach County

423 Fern Street, Suite 200

West Palm Beach, FL 33401

(561) 655-8944 Ext. 296

(561) 655-5269 Fax

tmyles@legalaidpbc.org BLOCKED::BLOCKED::mailto:tmyles@legalaidpbc.org

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Eric A. Jacobs
Sent: Tuesday, December 22, 2009 1:01 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

While that’s true, I think the Association would have clear exposure for trespass and other claims. It would in my view make no sense to amend the statute since the Association is not in any case the Tenant’s Landlord. At best, I think the Association might be able to bring an action for Ejectment if the association docs permit.

Our firm and our family supports the wonderful work of

Mount Sinai Medical Center and its Neonatal ICU.

Please check out our Share page at

http://www.msmcfoundation.org/EricandNicoleJacobs http://www.msmcfoundation.org/EricandNicoleJacobs

Eric Jacobs, J.D., M.B.A.
Managing Partner
Board Certified – Real Estate

eric@jacobsoffir.com mailto:eric@jacobsoffir.com
1911 Harrison Street
Hollywood, Florida 33020 http://maps.yahoo.com/py/maps.py?Pyt=Tmap&addr=1911+Harrison+Street&csz=Hollywood%2C+Florida+33020&country=us

Tel: 954-929-0679 http://www.plaxo.com/click_to_call?src=jj_signature&To=954-929-0679&Email=ericj@jerichotitle.com
fax: 954-929-0926
mobile: 954-243-3100 http://www.plaxo.com/click_to_call?src=jj_signature&To=954-243-3100&Email=ericj@jerichotitle.com

CONFIDENTIALITY STATEMENT: The information contained in this electronic communication, including any and all attachments and enclosures, may be privileged and is strictly confidential, intended solely for the use of the person(s) identified above to receive this communication. If you are not the person(s) identified above to receive this communication, you are hereby notified that you may not disclose, print, copy, disseminate, or otherwise use the information contained herein. If you are an employee or agent of the person(s) identified above to receive this communication and, as such, you have been authorized to deliver this communication to such person(s), you may disclose, print, copy, disseminate, or otherwise use the information contained in this communication solely for the purpose of such delivery. Unauthorized interception and/or use of this communication are/is strictly prohibited and may be punishable by law. If you have received this communication in error, please reply and notify the sender (only) of that fact and delete the communication, including any and all attachments and enclosures, from your computer or other electronic device on which you may have received this communication.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Tuesday, December 22, 2009 12:42 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

Thanks Harry. I agree with you that the proper procedure is for the LL to file for eviction. However, I’m starting to think that perhaps 83.67 needs to be amended to clarify that not only the Landlord, but also his/her association is prohibited from engaging in any of the so-called prohibited practices / self-help eviction techniques. As it stands now, a literal reading of the statute would suggest it doesn’t directly apply to associations.

Regards,

Greg

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com
Sent: Tuesday, December 22, 2009 12:28 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

The landlord needs to file an eviction. No lockout is legal. The tenant is a holdover if the tenancy was properly terminated by the lease or by proper notice, if necessary, from the landlord. The association has no right to deny the tenant access but may have a right to file an eviction on behalf of the unit owner if stated in the docs. The landlord would be wise to have an attorney file the eviction as it will be less complex and cheaper.

Harry Heist

LAW OFFICES OF
HEIST, WEISSE & DAVIS, P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com http://www.evict.com/
Email: harry@evict.com

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Tuesday, December 22, 2009 12:17 PM
To: landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Condo changing locks on Tenants

Curious to hear the committee members’ thoughts on the question I got today. Apparently a T of a condo unit is holding over beyond the termination date of their written lease with LL. LL wants them out and notifies their condo association that T is a squatter. Association then sends letter to T saying the association will be changing the locks because their rules require that there must be a valid/current written lease on file with the association and there no longer is a current lease.

The question I have is can a condo association lawfully engage in what would be considered “prohibited practices” for a landlord under the LL/T statute?

Here are some of the statutes that I think may come into play:

Section 83.67 (2) provides that a “…a landlord of any dwelling unit…shall not prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks…”

Section 718.303 provides that Tenants are governed by the condo docs and they are deemed incorporated into any lease.

However, Section 83.17 provides that any 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, etc.

Under 83.58 the remedy for a tenant holding over is for the Landlord to file for an eviction.

Section 718.303 also provides that an association or unit owner may file an action for “damages” or “injunctive relief” against a tenant.

718.106 provides that “…when a unit is leased, a tenant shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners…”

Does the fact that 718.303 provides for the filing of actions for damages and injunctive relief against Tenants imply that other actions (such as changing locks, cutting off electricity, etc) would be prohibited? Would it be possible to argue that the LL should be held responsible for the actions of his association (of which the LL is a member) and therefore claim damages for prohibited practices under 83.67(6)? Note that 83.67 (1) uses the phrase “…shall not cause, directly or indirectly, …” Is the LL “indirectly” engaging in prohibited practices where he stands by and perhaps even encourages his association to engage in what would be prohibited practices if the LL were to take the action directly?

Thanks for your comments in advance.

Regards,

Greg

Greg Hass, Senior Counsel

Office of Law & Policy

Florida REALTORS®

7025 Augusta National Drive

Orlando, FL 32872-5025

Ph: (407) 438-1400

GregH@FAR.org mailto:GregH@FAR.org

LEGAL DISCLAIMER: The information transmitted is intended solely for the individual or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of or taking action in reliance upon this information by persons or entities other than the intended recipient is prohibited. If you have received this email in error please contact the sender and delete the material from any computer.

Florida Realtors®
A brand new real estate organization with 93 years of experience!
http://www.floridarealtors.org

But the tenant's estate is burdened by the restrictive covenants set forth in the recorded condo declarations. If the covenants permit, then owner and tenant have consented. I'd consider what if any docs the tenant signed during the approval process ( which is typically a condition to rental). They may be a further basis for consent. ________________________________ From: landten-bounces@lists.flabarrpptl.org To: RPPTL Landlord Tenant Committee Sent: Tue Dec 29 19:30:13 2009 Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants I apologize for chiming in so late on this, but I have been out of town on an emergency. The first thought that comes to my mind is ownership. The Association owns the common areas, not the unit. I do not agree that the Association can initiate self-help practices directed at the unit to prevent the tenant from having access to the unit, such as changing the locks. The locks are the property of the unit owner. As indicated below, this could expose the Association to trespass liability and possibly conversion. Likely the Association could direct such measures to prevent use of the pool, gym, or other common areas. The second thought that comes to mind is rights and liabilities. The tenant is in privity with the landlord/unit owner while the unit owner is in privity with the Association. Thus, it would seem that the landlord/unit owner’s remedy is against the tenant while the Association’s remedy is against the unit owner for breach of the condo docs for having an unauthorized tenant. If the unit owner is directly or indirectly using the Association to do its work in evicting the tenant, by prohibited practices or otherwise, in my opinion, the Association is acting as an agent of the unit owner and liability for prohibited practices should pass to the unit owner. Regards, Anthony J. Horky, Esq. Mombach, Boyle & Hardin, P.A. 500 East Broward Boulevard Suite 1950 Broward Financial Centre Ft. Lauderdale, Florida 33394 Telephone: 954.467.2200 ext. 225 Facsimile: 954.467.2210 E-Mail: ahorky@mbhlawyer.com Website: www.mbhlawyer.com This message and its attachments are sent by or on behalf of a lawyer and may contain information that is confidential and protected by privilege from disclosure. If you are not the intended recipient, you are prohibited from printing, copying, forwarding or saving them. Please delete the message and attachments without printing, copying, forwarding or saving them, and notify the sender immediately. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com Sent: Tuesday, December 22, 2009 2:32 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants Agreed on all points. Harry LAW OFFICES OF HEIST, WEISSE & DAVIS, P.A. PH: 1 800 253 8428 FAX: 1 800 367 9038 "Serving the Property Management Professional" Website: www.evict.com <http://www.evict.com/> Email: harry@evict.com THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass Sent: Tuesday, December 22, 2009 2:16 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants Harry, I would argue that disabling an access gate card would fall within the umbrella of prohibited practices under 83.62 (2), but of course this brings me back to the original conundrum of whether or not a condo association can lawfully engage in what would otherwise be considered “prohibited practices” for a landlord under the LL/T statute. Tequisha, I also had a call recently where a condo association, as part of its T approval process, was requiring the T to sign something purportedly making the T personally liable to the association for unpaid assessments in the event the LL doesn’t pay the assessments. The question posed to me was If a “Contract to Lease” (an FAR form) that’s already been signed by prospective LL and prospective T says it’s contingent on Association approval and approval is subsequently denied based on prospective T’s refusal to sign a document that is arguably unreasonable, does prospective T get his money back? The FAR Contract to Lease provides that prospective T will “make all reasonable efforts…to obtain Association approval…” My opinion FWIW was that it would be reasonable for a prospective T to balk at signing such a lease addendum mandated by the association. Regards, Greg From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com Sent: Tuesday, December 22, 2009 1:54 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants I have never seen a condo association change locks but have seen them deny access by disabling an access gate card. Harry LAW OFFICES OF HEIST, WEISSE & DAVIS, P.A. PH: 1 800 253 8428 FAX: 1 800 367 9038 "Serving the Property Management Professional" Website: www.evict.com <http://www.evict.com/> Email: harry@evict.com THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Tequisha Myles Sent: Tuesday, December 22, 2009 1:43 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants We are starting to see many Condo Associations in Palm Beach County that require the Tenant to sign lease addendums that force a tenant to pay rent to the Association directly if the landlord fails to pay his or her maintenance fees. Also these lease addendums state that the Association is somehow authorized to evict the tenant for non-payment. So a prohibited practices amendment to include any type of community association may be worth exploring… Tequisha Y. Myles, Esq. Fair Housing and Elder Law Projects Legal Aid Society of Palm Beach County 423 Fern Street, Suite 200 West Palm Beach, FL 33401 (561) 655-8944 Ext. 296 (561) 655-5269 Fax tmyles@legalaidpbc.org <BLOCKED::BLOCKED::mailto:tmyles@legalaidpbc.org> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Eric A. Jacobs Sent: Tuesday, December 22, 2009 1:01 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants While that’s true, I think the Association would have clear exposure for trespass and other claims. It would in my view make no sense to amend the statute since the Association is not in any case the Tenant’s Landlord. At best, I think the Association might be able to bring an action for Ejectment if the association docs permit. Our firm and our family supports the wonderful work of Mount Sinai Medical Center and its Neonatal ICU. Please check out our Share page at http://www.msmcfoundation.org/EricandNicoleJacobs <http://www.msmcfoundation.org/EricandNicoleJacobs> Eric Jacobs, J.D., M.B.A. Managing Partner Board Certified – Real Estate eric@jacobsoffir.com <mailto:eric@jacobsoffir.com> 1911 Harrison Street Hollywood, Florida 33020 <http://maps.yahoo.com/py/maps.py?Pyt=Tmap&addr=1911+Harrison+Street&csz=Hollywood%2C+Florida+33020&country=us> Tel: 954-929-0679 <http://www.plaxo.com/click_to_call?src=jj_signature&To=954-929-0679&Email=ericj@jerichotitle.com> fax: 954-929-0926 mobile: 954-243-3100 <http://www.plaxo.com/click_to_call?src=jj_signature&To=954-243-3100&Email=ericj@jerichotitle.com> CONFIDENTIALITY STATEMENT: The information contained in this electronic communication, including any and all attachments and enclosures, may be privileged and is strictly confidential, intended solely for the use of the person(s) identified above to receive this communication. If you are not the person(s) identified above to receive this communication, you are hereby notified that you may not disclose, print, copy, disseminate, or otherwise use the information contained herein. If you are an employee or agent of the person(s) identified above to receive this communication and, as such, you have been authorized to deliver this communication to such person(s), you may disclose, print, copy, disseminate, or otherwise use the information contained in this communication solely for the purpose of such delivery. Unauthorized interception and/or use of this communication are/is strictly prohibited and may be punishable by law. If you have received this communication in error, please reply and notify the sender (only) of that fact and delete the communication, including any and all attachments and enclosures, from your computer or other electronic device on which you may have received this communication. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass Sent: Tuesday, December 22, 2009 12:42 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants Thanks Harry. I agree with you that the proper procedure is for the LL to file for eviction. However, I’m starting to think that perhaps 83.67 needs to be amended to clarify that not only the Landlord, but also his/her association is prohibited from engaging in any of the so-called prohibited practices / self-help eviction techniques. As it stands now, a literal reading of the statute would suggest it doesn’t directly apply to associations. Regards, Greg From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com Sent: Tuesday, December 22, 2009 12:28 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants The landlord needs to file an eviction. No lockout is legal. The tenant is a holdover if the tenancy was properly terminated by the lease or by proper notice, if necessary, from the landlord. The association has no right to deny the tenant access but may have a right to file an eviction on behalf of the unit owner if stated in the docs. The landlord would be wise to have an attorney file the eviction as it will be less complex and cheaper. Harry Heist LAW OFFICES OF HEIST, WEISSE & DAVIS, P.A. PH: 1 800 253 8428 FAX: 1 800 367 9038 "Serving the Property Management Professional" Website: www.evict.com <http://www.evict.com/> Email: harry@evict.com THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass Sent: Tuesday, December 22, 2009 12:17 PM To: landten@lists.flabarrpptl.org Subject: [RPPTL LandTen] Condo changing locks on Tenants Curious to hear the committee members’ thoughts on the question I got today. Apparently a T of a condo unit is holding over beyond the termination date of their written lease with LL. LL wants them out and notifies their condo association that T is a squatter. Association then sends letter to T saying the association will be changing the locks because their rules require that there must be a valid/current written lease on file with the association and there no longer is a current lease. The question I have is can a condo association lawfully engage in what would be considered “prohibited practices” for a landlord under the LL/T statute? Here are some of the statutes that I think may come into play: Section 83.67 (2) provides that a “…a landlord of any dwelling unit…shall not prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks…” Section 718.303 provides that Tenants are governed by the condo docs and they are deemed incorporated into any lease. However, Section 83.17 provides that any 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, etc. Under 83.58 the remedy for a tenant holding over is for the Landlord to file for an eviction. Section 718.303 also provides that an association or unit owner may file an action for “damages” or “injunctive relief” against a tenant. 718.106 provides that “…when a unit is leased, a tenant shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners…” Does the fact that 718.303 provides for the filing of actions for damages and injunctive relief against Tenants imply that other actions (such as changing locks, cutting off electricity, etc) would be prohibited? Would it be possible to argue that the LL should be held responsible for the actions of his association (of which the LL is a member) and therefore claim damages for prohibited practices under 83.67(6)? Note that 83.67 (1) uses the phrase “…shall not cause, directly or indirectly, …” Is the LL “indirectly” engaging in prohibited practices where he stands by and perhaps even encourages his association to engage in what would be prohibited practices if the LL were to take the action directly? Thanks for your comments in advance. Regards, Greg Greg Hass, Senior Counsel Office of Law & Policy Florida REALTORS® 7025 Augusta National Drive Orlando, FL 32872-5025 Ph: (407) 438-1400 GregH@FAR.org <mailto:GregH@FAR.org> LEGAL DISCLAIMER: The information transmitted is intended solely for the individual or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of or taking action in reliance upon this information by persons or entities other than the intended recipient is prohibited. If you have received this email in error please contact the sender and delete the material from any computer. Florida Realtors® A brand new real estate organization with 93 years of experience! http://www.floridarealtors.org

CH

Chuck Hoskin

Wed, Dec 30, 2009 4:41 PM

My 2 cents. I agree with Anthony. For removal of the tenant, the Association would probably be the agent of the unit owner and the owner would have liability for prohibited practices under Chapter 83.

Chuck Hoskin

This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (850-433-6581) or by electronic mail (choskin@esclaw.com) and then delete this message and all copies and backups thereof. Thank you.

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alderman, Jason
Sent: Tuesday, December 29, 2009 6:44 PM
To: landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

But the tenant's estate is burdened by the restrictive covenants set forth in the recorded condo declarations. If the covenants permit, then owner and tenant have consented. I'd consider what if any docs the tenant signed during the approval process ( which is typically a condition to rental). They may be a further basis for consent.

From: landten-bounces@lists.flabarrpptl.org
To: RPPTL Landlord Tenant Committee
Sent: Tue Dec 29 19:30:13 2009
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants
I apologize for chiming in so late on this, but I have been out of town on an emergency. The first thought that comes to my mind is ownership. The Association owns the common areas, not the unit. I do not agree that the Association can initiate self-help practices directed at the unit to prevent the tenant from having access to the unit, such as changing the locks. The locks are the property of the unit owner. As indicated below, this could expose the Association to trespass liability and possibly conversion. Likely the Association could direct such measures to prevent use of the pool, gym, or other common areas. The second thought that comes to mind is rights and liabilities. The tenant is in privity with the landlord/unit owner while the unit owner is in privity with the Association. Thus, it would seem that the landlord/unit owner's remedy is against the tenant while the Association's remedy is against the unit owner for breach of the condo docs for having an unauthorized tenant. If the unit owner is directly or indirectly using the Association to do its work in evicting the tenant, by prohibited practices or otherwise, in my opinion, the Association is acting as an agent of the unit owner and liability for prohibited practices should pass to the unit owner.

Regards,

Anthony J. Horky, Esq.
Mombach, Boyle & Hardin, P.A.
500 East Broward Boulevard
Suite 1950 Broward Financial Centre
Ft. Lauderdale, Florida 33394
Telephone: 954.467.2200 ext. 225
Facsimile: 954.467.2210
E-Mail: ahorky@mbhlawyer.com mailto:ahorky@mbhlawyer.com
Website: www.mbhlawyer.com http://www.mbhlawyer.com

This message and its attachments are sent by or on behalf of a lawyer and may contain information that is confidential and protected by privilege from disclosure. If you are not the intended recipient, you are prohibited from printing, copying, forwarding or saving them. Please delete the message and attachments without printing, copying, forwarding or saving them, and notify the sender immediately.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com
Sent: Tuesday, December 22, 2009 2:32 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

Agreed on all points.

Harry

LAW OFFICES OF
HEIST, WEISSE & DAVIS, P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com http://www.evict.com/
Email: harry@evict.com mailto:harry@evict.com
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Tuesday, December 22, 2009 2:16 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

Harry, I would argue that disabling an access gate card would fall within the umbrella of prohibited practices under 83.62 (2), but of course this brings me back to the original conundrum of whether or not a condo association can lawfully engage in what would otherwise be considered "prohibited practices" for a landlord under the LL/T statute.

Tequisha, I also had a call recently where a condo association, as part of its T approval process, was requiring the T to sign something purportedly making the T personally liable to the association for unpaid assessments in the event the LL doesn't pay the assessments. The question posed to me was If a "Contract to Lease" (an FAR form) that's already been signed by prospective LL and prospective T says it's contingent on Association approval and approval is subsequently denied based on prospective T's refusal to sign a document that is arguably unreasonable, does prospective T get his money back? The FAR Contract to Lease provides that prospective T will "make all reasonable efforts...to obtain Association approval..." My opinion FWIW was that it would be reasonable for a prospective T to balk at signing such a lease addendum mandated by the association.

Regards,
Greg

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com
Sent: Tuesday, December 22, 2009 1:54 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

I have never seen a condo association change locks but have seen them deny access by disabling an access gate card.

Harry

LAW OFFICES OF
HEIST, WEISSE & DAVIS, P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com http://www.evict.com/
Email: harry@evict.com mailto:harry@evict.com
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Tequisha Myles
Sent: Tuesday, December 22, 2009 1:43 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

We are starting to see many Condo Associations in Palm Beach County that require the Tenant to sign lease addendums that force a tenant to pay rent to the Association directly if the landlord fails to pay his or her maintenance fees. Also these lease addendums state that the Association is somehow authorized to evict the tenant for non-payment. So a prohibited practices amendment to include any type of community association may be worth exploring...

Tequisha Y. Myles, Esq.
Fair Housing and Elder Law Projects
Legal Aid Society of Palm Beach County
423 Fern Street, Suite 200
West Palm Beach, FL 33401
(561) 655-8944 Ext. 296
(561) 655-5269 Fax
tmyles@legalaidpbc.org BLOCKED::BLOCKED::mailto:tmyles@legalaidpbc.org

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Eric A. Jacobs
Sent: Tuesday, December 22, 2009 1:01 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

While that's true, I think the Association would have clear exposure for trespass and other claims. It would in my view make no sense to amend the statute since the Association is not in any case the Tenant's Landlord. At best, I think the Association might be able to bring an action for Ejectment if the association docs permit.

Our firm and our family supports the wonderful work of
Mount Sinai Medical Center and its Neonatal ICU.
Please check out our Share page at
http://www.msmcfoundation.org/EricandNicoleJacobs

[cid:510293916@30122009-1CFC]

Eric Jacobs, J.D., M.B.A.
Managing Partner
Board Certified - Real Estate

eric@jacobsoffir.com mailto:eric@jacobsoffir.com
1911 Harrison Street
Hollywood, Florida 33020http://maps.yahoo.com/py/maps.py?Pyt=Tmap&addr=1911+Harrison+Street&csz=Hollywood%2C+Florida+33020&country=us
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CONFIDENTIALITY STATEMENT: The information contained in this electronic communication, including any and all attachments and enclosures, may be privileged and is strictly confidential, intended solely for the use of the person(s) identified above to receive this communication. If you are not the person(s) identified above to receive this communication, you are hereby notified that you may not disclose, print, copy, disseminate, or otherwise use the information contained herein. If you are an employee or agent of the person(s) identified above to receive this communication and, as such, you have been authorized to deliver this communication to such person(s), you may disclose, print, copy, disseminate, or otherwise use the information contained in this communication solely for the purpose of such delivery. Unauthorized interception and/or use of this communication are/is strictly prohibited and may be punishable by law. If you have received this communication in error, please reply and notify the sender (only) of that fact and delete the communication, including any and all attachments and enclosures, from your computer or other electronic device on which you may have received this communication.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Tuesday, December 22, 2009 12:42 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

Thanks Harry. I agree with you that the proper procedure is for the LL to file for eviction. However, I'm starting to think that perhaps 83.67 needs to be amended to clarify that not only the Landlord, but also his/her association is prohibited from engaging in any of the so-called prohibited practices / self-help eviction techniques. As it stands now, a literal reading of the statute would suggest it doesn't directly apply to associations.

Regards,
Greg

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com
Sent: Tuesday, December 22, 2009 12:28 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants

The landlord needs to file an eviction. No lockout is legal. The tenant is a holdover if the tenancy was properly terminated by the lease or by proper notice, if necessary, from the landlord. The association has no right to deny the tenant access but may have a right to file an eviction on behalf of the unit owner if stated in the docs. The landlord would be wise to have an attorney file the eviction as it will be less complex and cheaper.

Harry Heist

LAW OFFICES OF
HEIST, WEISSE & DAVIS, P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com http://www.evict.com/
Email: harry@evict.com mailto:harry@evict.com
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Tuesday, December 22, 2009 12:17 PM
To: landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Condo changing locks on Tenants

Curious to hear the committee members' thoughts on the question I got today. Apparently a T of a condo unit is holding over beyond the termination date of their written lease with LL. LL wants them out and notifies their condo association that T is a squatter. Association then sends letter to T saying the association will be changing the locks because their rules require that there must be a valid/current written lease on file with the association and there no longer is a current lease.

The question I have is can a condo association lawfully engage in what would be considered "prohibited practices" for a landlord under the LL/T statute?

Here are some of the statutes that I think may come into play:

Section 83.67 (2) provides that a "...a landlord of any dwelling unit...shall not prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks..."

Section 718.303 provides that Tenants are governed by the condo docs and they are deemed incorporated into any lease.

However, Section 83.17 provides that any 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, etc.

Under 83.58 the remedy for a tenant holding over is for the Landlord to file for an eviction.

Section 718.303 also provides that an association or unit owner may file an action for "damages" or "injunctive relief" against a tenant.

718.106 provides that "...when a unit is leased, a tenant shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners..."

Does the fact that 718.303 provides for the filing of actions for damages and injunctive relief against Tenants imply that other actions (such as changing locks, cutting off electricity, etc) would be prohibited? Would it be possible to argue that the LL should be held responsible for the actions of his association (of which the LL is a member) and therefore claim damages for prohibited practices under 83.67(6)? Note that 83.67 (1) uses the phrase "...shall not cause, directly or indirectly, ..." Is the LL "indirectly" engaging in prohibited practices where he stands by and perhaps even encourages his association to engage in what would be prohibited practices if the LL were to take the action directly?

Thanks for your comments in advance.

Regards,
Greg

Greg Hass, Senior Counsel
Office of Law & Policy
Florida REALTORS(r)
7025 Augusta National Drive
Orlando, FL 32872-5025
Ph: (407) 438-1400
GregH@FAR.org mailto:GregH@FAR.org
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My 2 cents. I agree with Anthony. For removal of the tenant, the Association would probably be the agent of the unit owner and the owner would have liability for prohibited practices under Chapter 83. Chuck Hoskin This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (850-433-6581) or by electronic mail (choskin@esclaw.com) and then delete this message and all copies and backups thereof. Thank you. Charles P. Hoskin Direct Dial: 850-444-3881 Fax: 850-434-7163 ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alderman, Jason Sent: Tuesday, December 29, 2009 6:44 PM To: landten@lists.flabarrpptl.org Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants But the tenant's estate is burdened by the restrictive covenants set forth in the recorded condo declarations. If the covenants permit, then owner and tenant have consented. I'd consider what if any docs the tenant signed during the approval process ( which is typically a condition to rental). They may be a further basis for consent. ________________________________ From: landten-bounces@lists.flabarrpptl.org To: RPPTL Landlord Tenant Committee Sent: Tue Dec 29 19:30:13 2009 Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants I apologize for chiming in so late on this, but I have been out of town on an emergency. The first thought that comes to my mind is ownership. The Association owns the common areas, not the unit. I do not agree that the Association can initiate self-help practices directed at the unit to prevent the tenant from having access to the unit, such as changing the locks. The locks are the property of the unit owner. As indicated below, this could expose the Association to trespass liability and possibly conversion. Likely the Association could direct such measures to prevent use of the pool, gym, or other common areas. The second thought that comes to mind is rights and liabilities. The tenant is in privity with the landlord/unit owner while the unit owner is in privity with the Association. Thus, it would seem that the landlord/unit owner's remedy is against the tenant while the Association's remedy is against the unit owner for breach of the condo docs for having an unauthorized tenant. If the unit owner is directly or indirectly using the Association to do its work in evicting the tenant, by prohibited practices or otherwise, in my opinion, the Association is acting as an agent of the unit owner and liability for prohibited practices should pass to the unit owner. Regards, Anthony J. Horky, Esq. Mombach, Boyle & Hardin, P.A. 500 East Broward Boulevard Suite 1950 Broward Financial Centre Ft. Lauderdale, Florida 33394 Telephone: 954.467.2200 ext. 225 Facsimile: 954.467.2210 E-Mail: ahorky@mbhlawyer.com<mailto:ahorky@mbhlawyer.com> Website: www.mbhlawyer.com<http://www.mbhlawyer.com> This message and its attachments are sent by or on behalf of a lawyer and may contain information that is confidential and protected by privilege from disclosure. If you are not the intended recipient, you are prohibited from printing, copying, forwarding or saving them. Please delete the message and attachments without printing, copying, forwarding or saving them, and notify the sender immediately. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com Sent: Tuesday, December 22, 2009 2:32 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants Agreed on all points. Harry LAW OFFICES OF HEIST, WEISSE & DAVIS, P.A. PH: 1 800 253 8428 FAX: 1 800 367 9038 "Serving the Property Management Professional" Website: www.evict.com<http://www.evict.com/> Email: harry@evict.com<mailto:harry@evict.com> THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass Sent: Tuesday, December 22, 2009 2:16 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants Harry, I would argue that disabling an access gate card would fall within the umbrella of prohibited practices under 83.62 (2), but of course this brings me back to the original conundrum of whether or not a condo association can lawfully engage in what would otherwise be considered "prohibited practices" for a landlord under the LL/T statute. Tequisha, I also had a call recently where a condo association, as part of its T approval process, was requiring the T to sign something purportedly making the T personally liable to the association for unpaid assessments in the event the LL doesn't pay the assessments. The question posed to me was If a "Contract to Lease" (an FAR form) that's already been signed by prospective LL and prospective T says it's contingent on Association approval and approval is subsequently denied based on prospective T's refusal to sign a document that is arguably unreasonable, does prospective T get his money back? The FAR Contract to Lease provides that prospective T will "make all reasonable efforts...to obtain Association approval..." My opinion FWIW was that it would be reasonable for a prospective T to balk at signing such a lease addendum mandated by the association. Regards, Greg From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com Sent: Tuesday, December 22, 2009 1:54 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants I have never seen a condo association change locks but have seen them deny access by disabling an access gate card. Harry LAW OFFICES OF HEIST, WEISSE & DAVIS, P.A. PH: 1 800 253 8428 FAX: 1 800 367 9038 "Serving the Property Management Professional" Website: www.evict.com<http://www.evict.com/> Email: harry@evict.com<mailto:harry@evict.com> THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Tequisha Myles Sent: Tuesday, December 22, 2009 1:43 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants We are starting to see many Condo Associations in Palm Beach County that require the Tenant to sign lease addendums that force a tenant to pay rent to the Association directly if the landlord fails to pay his or her maintenance fees. Also these lease addendums state that the Association is somehow authorized to evict the tenant for non-payment. So a prohibited practices amendment to include any type of community association may be worth exploring... Tequisha Y. Myles, Esq. Fair Housing and Elder Law Projects Legal Aid Society of Palm Beach County 423 Fern Street, Suite 200 West Palm Beach, FL 33401 (561) 655-8944 Ext. 296 (561) 655-5269 Fax tmyles@legalaidpbc.org<BLOCKED::BLOCKED::mailto:tmyles@legalaidpbc.org> From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Eric A. Jacobs Sent: Tuesday, December 22, 2009 1:01 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants While that's true, I think the Association would have clear exposure for trespass and other claims. It would in my view make no sense to amend the statute since the Association is not in any case the Tenant's Landlord. At best, I think the Association might be able to bring an action for Ejectment if the association docs permit. Our firm and our family supports the wonderful work of Mount Sinai Medical Center and its Neonatal ICU. Please check out our Share page at http://www.msmcfoundation.org/EricandNicoleJacobs [cid:510293916@30122009-1CFC] Eric Jacobs, J.D., M.B.A. Managing Partner Board Certified - Real Estate eric@jacobsoffir.com<mailto:eric@jacobsoffir.com> 1911 Harrison Street Hollywood, Florida 33020<http://maps.yahoo.com/py/maps.py?Pyt=Tmap&addr=1911+Harrison+Street&csz=Hollywood%2C+Florida+33020&country=us> Tel: 954-929-0679 <http://www.plaxo.com/click_to_call?src=jj_signature&To=954-929-0679&Email=ericj@jerichotitle.com> fax: 954-929-0926 mobile: 954-243-3100 <http://www.plaxo.com/click_to_call?src=jj_signature&To=954-243-3100&Email=ericj@jerichotitle.com> CONFIDENTIALITY STATEMENT: The information contained in this electronic communication, including any and all attachments and enclosures, may be privileged and is strictly confidential, intended solely for the use of the person(s) identified above to receive this communication. If you are not the person(s) identified above to receive this communication, you are hereby notified that you may not disclose, print, copy, disseminate, or otherwise use the information contained herein. If you are an employee or agent of the person(s) identified above to receive this communication and, as such, you have been authorized to deliver this communication to such person(s), you may disclose, print, copy, disseminate, or otherwise use the information contained in this communication solely for the purpose of such delivery. Unauthorized interception and/or use of this communication are/is strictly prohibited and may be punishable by law. If you have received this communication in error, please reply and notify the sender (only) of that fact and delete the communication, including any and all attachments and enclosures, from your computer or other electronic device on which you may have received this communication. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass Sent: Tuesday, December 22, 2009 12:42 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants Thanks Harry. I agree with you that the proper procedure is for the LL to file for eviction. However, I'm starting to think that perhaps 83.67 needs to be amended to clarify that not only the Landlord, but also his/her association is prohibited from engaging in any of the so-called prohibited practices / self-help eviction techniques. As it stands now, a literal reading of the statute would suggest it doesn't directly apply to associations. Regards, Greg From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of harry@evict.com Sent: Tuesday, December 22, 2009 12:28 PM To: 'RPPTL Landlord Tenant Committee' Subject: Re: [RPPTL LandTen] Condo changing locks on Tenants The landlord needs to file an eviction. No lockout is legal. The tenant is a holdover if the tenancy was properly terminated by the lease or by proper notice, if necessary, from the landlord. The association has no right to deny the tenant access but may have a right to file an eviction on behalf of the unit owner if stated in the docs. The landlord would be wise to have an attorney file the eviction as it will be less complex and cheaper. Harry Heist LAW OFFICES OF HEIST, WEISSE & DAVIS, P.A. PH: 1 800 253 8428 FAX: 1 800 367 9038 "Serving the Property Management Professional" Website: www.evict.com<http://www.evict.com/> Email: harry@evict.com<mailto:harry@evict.com> THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass Sent: Tuesday, December 22, 2009 12:17 PM To: landten@lists.flabarrpptl.org Subject: [RPPTL LandTen] Condo changing locks on Tenants Curious to hear the committee members' thoughts on the question I got today. Apparently a T of a condo unit is holding over beyond the termination date of their written lease with LL. LL wants them out and notifies their condo association that T is a squatter. Association then sends letter to T saying the association will be changing the locks because their rules require that there must be a valid/current written lease on file with the association and there no longer is a current lease. The question I have is can a condo association lawfully engage in what would be considered "prohibited practices" for a landlord under the LL/T statute? Here are some of the statutes that I think may come into play: Section 83.67 (2) provides that a "...a landlord of any dwelling unit...shall not prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks..." Section 718.303 provides that Tenants are governed by the condo docs and they are deemed incorporated into any lease. However, Section 83.17 provides that any 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, etc. Under 83.58 the remedy for a tenant holding over is for the Landlord to file for an eviction. Section 718.303 also provides that an association or unit owner may file an action for "damages" or "injunctive relief" against a tenant. 718.106 provides that "...when a unit is leased, a tenant shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners..." Does the fact that 718.303 provides for the filing of actions for damages and injunctive relief against Tenants imply that other actions (such as changing locks, cutting off electricity, etc) would be prohibited? Would it be possible to argue that the LL should be held responsible for the actions of his association (of which the LL is a member) and therefore claim damages for prohibited practices under 83.67(6)? Note that 83.67 (1) uses the phrase "...shall not cause, directly or indirectly, ..." Is the LL "indirectly" engaging in prohibited practices where he stands by and perhaps even encourages his association to engage in what would be prohibited practices if the LL were to take the action directly? Thanks for your comments in advance. Regards, Greg Greg Hass, Senior Counsel Office of Law & Policy Florida REALTORS(r) 7025 Augusta National Drive Orlando, FL 32872-5025 Ph: (407) 438-1400 GregH@FAR.org<mailto:GregH@FAR.org> [cid:510293916@30122009-1D03] LEGAL DISCLAIMER: The information transmitted is intended solely for the individual or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of or taking action in reliance upon this information by persons or entities other than the intended recipient is prohibited. If you have received this email in error please contact the sender and delete the material from any computer. Florida Realtors(r) A brand new real estate organization with 93 years of experience! http://www.floridarealtors.org

H

harry (at) evict.com

Wed, Dec 30, 2009 5:22 PM

Hello All,

When evicting a tenant who is known to be in the military, the way we read
the law is that an ad litem attorney has to get into the picture and the
cost is borne by the Plaintiff. It seems odd as the Plaintiff is finding an
attorney and paying them to be the attorney for the military Defendant.

We have had a couple occasions where we had to do this already and were
wondering how anyone else is dealing with it or who knows attorneys in
certain counties who will act as the ad litem attorney for a low fee. The ad
litem attorney's job is to attempt to locate the tenant and if there is a
meritorious defense, make it.

Thanks,

Harry Heist

LAW OFFICES OF
HEIST, WEISSE & DAVIS, P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com http://www.evict.com/
Email: harry@evict.com

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND
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Hello All, When evicting a tenant who is known to be in the military, the way we read the law is that an ad litem attorney has to get into the picture and the cost is borne by the Plaintiff. It seems odd as the Plaintiff is finding an attorney and paying them to be the attorney for the military Defendant. We have had a couple occasions where we had to do this already and were wondering how anyone else is dealing with it or who knows attorneys in certain counties who will act as the ad litem attorney for a low fee. The ad litem attorney's job is to attempt to locate the tenant and if there is a meritorious defense, make it. Thanks, Harry Heist LAW OFFICES OF HEIST, WEISSE & DAVIS, P.A. PH: 1 800 253 8428 FAX: 1 800 367 9038 "Serving the Property Management Professional" Website: www.evict.com <http://www.evict.com/> Email: harry@evict.com THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.