Re: [RPPTL LandTen] residential eviction question
I agree with those who have stated that 83.56(5) results in the landlord's waiver of his/her abillity to proceed with the eviction if he/she accepts any partial payments. I always advise my L/L clients not to accept anything after suit has been filed. However, I have tried to make this argument a few times here in Palm Beach County while representing tenants, but the judges don't agree and refused to dismiss the action. I assume they are reluctant to punish a landlord in this situation. Obviously the tenants do not have the money or ability to appeal this decision.
Does anyone have any case law to support this position? I looked but couldn't find any.
Cary Sabol
Cary P. Sabol, Esq.
P.O. Box 15981
West Palm Beach, Florida 33416
Phone: (561) 281-2744
Confidentiality Notice: This email transmission and any attachments are confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or use of the information contained herein is STRICTLY PROHIBITED.
--- On Wed, 3/3/10, Chuck Hoskin CPH@esclaw.com wrote:
From: Chuck Hoskin CPH@esclaw.com
Subject: Re: [RPPTL LandTen] residential eviction question
To: "'RPPTL Landlord Tenant Committee'" landten@lists.flabarrpptl.org
Date: Wednesday, March 3, 2010, 9:52 AM
#yiv1363072835 filtered #yiv1929613745 {
font-family:Cambria;}
#yiv1363072835 filtered #yiv1929613745 {
font-family:Calibri;}
#yiv1363072835 filtered #yiv1929613745 {margin:1.0in 1.0in 1.0in 1.0in;}
#yiv1363072835 #yiv1929613745 P.MsoNormal {
MARGIN:0in 0in 0pt;FONT-FAMILY:"sans-serif";FONT-SIZE:11pt;}
#yiv1363072835 #yiv1929613745 LI.MsoNormal {
MARGIN:0in 0in 0pt;FONT-FAMILY:"sans-serif";FONT-SIZE:11pt;}
#yiv1363072835 #yiv1929613745 DIV.MsoNormal {
MARGIN:0in 0in 0pt;FONT-FAMILY:"sans-serif";FONT-SIZE:11pt;}
#yiv1363072835 #yiv1929613745 A:link {
COLOR:blue;TEXT-DECORATION:underline;}
#yiv1363072835 #yiv1929613745 SPAN.MsoHyperlink {
COLOR:blue;TEXT-DECORATION:underline;}
#yiv1363072835 #yiv1929613745 A:visited {
COLOR:purple;TEXT-DECORATION:underline;}
#yiv1363072835 #yiv1929613745 SPAN.MsoHyperlinkFollowed {
COLOR:purple;TEXT-DECORATION:underline;}
#yiv1363072835 #yiv1929613745 SPAN.EmailStyle17 {
FONT-FAMILY:"serif";COLOR:windowtext;}
#yiv1363072835 #yiv1929613745 .MsoChpDefault {
}
#yiv1363072835 #yiv1929613745 DIV.Section1 {
}
Gale:
In my opinion, 83.60(2) requires the tenant to deposit the rent into the registry of the court for all breaches of the lease, not just non-payment of rent. Also, in my opinion, 83.56(5) provides for a waiver of all tenant non-compliance if the landlord accepts the rent. There are also cases on waiver in the non-residential setting, but I do not have them handy. As a disclaimer, judges have been known to disagree with me. Therefore, you should not cite "Chuck" as authority for this.
In order not to waive the default and to preserve the money, my recommendation is to file a Motion To Determine Rent and To Require Deposit of Rent, have the court determine the amount of past due rent and monthly accrual, just like a payment default case, and have the tenant deposit the rent into the registry of the court.
I hope that helps.
Chuck
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 Gale Silbermann
Sent: Tuesday, March 02, 2010 4:08 PM
To: landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] residential eviction question
Has anyone terminated a residential lease for a lease violation, other than non-payment of rent, and accepted rent while the case was pending? I have a situation where the case has dragged on for more than 6 months without the rent being paid. It is subsidized housing so the amount is small but we want the rent from the tenant, who is willing to pay. But if we accept rent will that waive our issue with the lease non-compliance?
Any help would be greatly appreciated.
Gale
Gale Silbermann
Baxter, Strohauer, Mannion & Silbermann, PA
1150 Cleveland Street, Suite 300
Clearwater, FL 33755
(727) 461-6100
(727) 447-6899 Fax
IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties imposed under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication or in any attachment.
The information contained in this message is privileged and confidential. It is intended only for the use of the addressee named above. If the reader of this message is not the intended recipient, you are notified that any dissemination, distribution, or copying of this message is strictly prohibited. If you have received this message in error, please notify the sender by reply email and destroy and delete this message. Thank you for your cooperation.
-----Inline Attachment Follows-----
landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten