Empathy List Archives

DC

Dennis Chen

Wed, May 2, 2012 5:44 PM

In a situation involving a single family home. Can an unlawful detainer
action be included as a separate count in a circuit court action for
ejectment?

Unlawful detainer appears to fall in the exclusive jurisdiction of the
county court and ejectment in the circuit court. I wanted to file an
unlawful detainer action as an additional count because of the summary
procedure provision and if it does not work we proceed under the ejectment
count. In addition, there is no lease or rental agreement. No rent is
paid or has been paid in the past.

Dennis A. Chen, Esq.
dennis@chenlaw.net

In a situation involving a single family home. Can an unlawful detainer action be included as a separate count in a circuit court action for ejectment? Unlawful detainer appears to fall in the exclusive jurisdiction of the county court and ejectment in the circuit court. I wanted to file an unlawful detainer action as an additional count because of the summary procedure provision and if it does not work we proceed under the ejectment count. In addition, there is no lease or rental agreement. No rent is paid or has been paid in the past. Dennis A. Chen, Esq. dennis@chenlaw.net

AJ

Anthony J. Horky

Wed, May 2, 2012 6:30 PM

My two cents:

I think the first question is whether it is a permissible cause of action.
You say this is a single family home. A "residential tenancy" can exist
without a written lease and consideration can be something other than money.
Unlawful detainer actions are not permitted for residential tenancies.
Sections 82.02(2) and 82.04 say "[t]his section shall not apply to
residential tenancies."

I'm curious to see what other members think.

Regards,

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

301 Yamato Road, Suite 1240

Boca Raton, Florida 33431

Telephone: (561) 226-4628

Facsimile: (561) 994-6693

Website: http://www.horkylaw.com/ www.horkylaw.com

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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Dennis Chen
Sent: Wednesday, May 02, 2012 1:44 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Ejectment & Unlawful Detainer

In a situation involving a single family home. Can an unlawful detainer
action be included as a separate count in a circuit court action for
ejectment?

Unlawful detainer appears to fall in the exclusive jurisdiction of the
county court and ejectment in the circuit court. I wanted to file an
unlawful detainer action as an additional count because of the summary
procedure provision and if it does not work we proceed under the ejectment
count. In addition, there is no lease or rental agreement. No rent is paid
or has been paid in the past.

Dennis A. Chen, Esq.
dennis@chenlaw.net

My two cents: I think the first question is whether it is a permissible cause of action. You say this is a single family home. A "residential tenancy" can exist without a written lease and consideration can be something other than money. Unlawful detainer actions are not permitted for residential tenancies. Sections 82.02(2) and 82.04 say "[t]his section shall not apply to residential tenancies." I'm curious to see what other members think. Regards, Anthony J. Horky, Esquire Anthony J. Horky, P.A. 301 Yamato Road, Suite 1240 Boca Raton, Florida 33431 Telephone: (561) 226-4628 Facsimile: (561) 994-6693 Website: <http://www.horkylaw.com/> www.horkylaw.com This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: <mailto:ahorky@horkylaw.com> ahorky@horkylaw.com. ------------------------------------------------------- Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Dennis Chen Sent: Wednesday, May 02, 2012 1:44 PM To: RPPTL Landlord Tenant Committee Subject: Re: [RPPTL LandTen] Ejectment & Unlawful Detainer In a situation involving a single family home. Can an unlawful detainer action be included as a separate count in a circuit court action for ejectment? Unlawful detainer appears to fall in the exclusive jurisdiction of the county court and ejectment in the circuit court. I wanted to file an unlawful detainer action as an additional count because of the summary procedure provision and if it does not work we proceed under the ejectment count. In addition, there is no lease or rental agreement. No rent is paid or has been paid in the past. Dennis A. Chen, Esq. dennis@chenlaw.net

CS

Cary Sabol

Thu, May 3, 2012 2:23 AM

I don't see why you cannot plead the unlawful detainer claim as an alternative to the ejectment and since the ejectment action is within the Circuit Court jurisdiction, you can bootstrap the unlawful detainer claim. I believe this was your actual question.

Regarding the other comment that an unlawful detainer does not apply to a residential tenancy ... I agree with the strict reading of the unlawful detainer statute, but disagree that it can never apply to a residential property. I feel that, under the right facts, you can apply an unlawful detainer claim to a residential property. The key to this issue is whether your situation is a "tenancy" which is defined at 83.43. If no "tenancy" was ever created, then I feel you can support a claim for unlawful detainer.

If the Legislature would expedite the ejectment process, I don't think we would even need to have this conversation. It seems like the two often fall under the same factual scenarios. My two cents, hope it helps.
Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744

IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.
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From: Dennis Chen dennis@chenlaw.net
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Wednesday, May 2, 2012 1:44 PM
Subject: Re: [RPPTL LandTen] Ejectment & Unlawful Detainer

In a situation involving a single family home. Can an unlawful detainer action be included as a separate count in a circuit court action for ejectment?

Unlawful detainer appears to fall in the exclusive jurisdiction of the county court and ejectment in the circuit court. I wanted to file an unlawful detainer action as an additional count because of the summary procedure provision and if it does not work we proceed under the ejectment count. In addition, there is no lease or rental agreement. No rent is paid or has been paid in the past.

Dennis A. Chen, Esq.
dennis@chenlaw.net

landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten

I don't see why you cannot plead the unlawful detainer claim as an alternative to the ejectment and since the ejectment action is within the Circuit Court jurisdiction, you can bootstrap the unlawful detainer claim. I believe this was your actual question. Regarding the other comment that an unlawful detainer does not apply to a residential tenancy ... I agree with the strict reading of the unlawful detainer statute, but disagree that it can never apply to a residential property. I feel that, under the right facts, you can apply an unlawful detainer claim to a residential property. The key to this issue is whether your situation is a "tenancy" which is defined at 83.43. If no "tenancy" was ever created, then I feel you can support a claim for unlawful detainer. If the Legislature would expedite the ejectment process, I don't think we would even need to have this conversation. It seems like the two often fall under the same factual scenarios. My two cents, hope it helps. Cary Law Offices of Cary P. Sabol P.O. Box 15981 | West Palm Beach | Florida | 33416 Phone: (561) 281-2744 ________________________________ IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation. ________________________________ From: Dennis Chen <dennis@chenlaw.net> To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org> Sent: Wednesday, May 2, 2012 1:44 PM Subject: Re: [RPPTL LandTen] Ejectment & Unlawful Detainer In a situation involving a single family home. Can an unlawful detainer action be included as a separate count in a circuit court action for ejectment? Unlawful detainer appears to fall in the exclusive jurisdiction of the county court and ejectment in the circuit court. I wanted to file an unlawful detainer action as an additional count because of the summary procedure provision and if it does not work we proceed under the ejectment count. In addition, there is no lease or rental agreement. No rent is paid or has been paid in the past. Dennis A. Chen, Esq. dennis@chenlaw.net _______________________________________________ landten mailing list landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten