[RPPTL LandTen] Such a basic question . . .
that I am almost embarrassed to ask it.
But since I have no shame, I will.
What are the remedies, if any, if a residential landlord failed to maintain
a security deposit in a separate account? Landlord notified tenant in the
actual lease that the deposit will be commingled. Lease expires, and
Landlord is submitting a claim on the deposit.
Does the fact that the funds were commingled serve as any kind of defense
for the tenant? Is there any penalty on the landlord (who leases less than
5 units)?
Thanks for your indulgence.
Please note our new address.
Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
mailto:sfrank@saflaw.com sfrank@saflaw.com
http://www.saflaw.com/ www.saflaw.com
If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
disclosing it.
Pursuant to Internal Revenue Service guidance, be advised that any federal
tax advice contained in this written or electronic communication, including
any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.
It's actually a good question Scott - I've previously pondered it myself.
AFAIK, there's no specific penalty for violating 83.49 (1). However, LL would be at risk of civil claims by T to enforce LL's compliance (83.54), claims by T for whatever damages supposedly suffered by T as a result of LL's noncompliance (83.55), and the resulting atty fees for same (83.48). I would note that even though the LL's lease may purport to say that LL can/will commingle, I would argue that's a "prohibited provision" pursuant to 83.47. Also, the fact that LL leases fewer than 5 units only relieves LL of having to comply with the notice provision of 83.49 (2), I don't believe it relieves the LL of having to comply with 83.49 (1).
One thing I've never understood is why 83.49 (1) prohibits comingling, yet the notice contemplated by 83.49 (2) invites the LL to notify T of whether or not LL has comingled the funds - seemingly condoning that behavior right after prohibiting it - I must be missing something.
But to answer your question about using comingling as a defense by T, no, I don't think the fact that the LL wrongfully comingled funds serves as an absolute bar to a valid claim by LL on the security deposit at the termination of the lease. I suppose T could raise the issue but it seems like a loser to me if the LL's claims are otherwise meritorious. Note that the last sentence of 83.49 (3)(a) imposes the rather draconian penalty of forfeiture of right of LL to impose claim on deposit for failing to give the required 30 day notice under that subsection, but there is no such similar penalty spelled out in the statute for mere comingling.
Regards,
Greg
Greg Hass, Senior Counsel
Office of Law & Policy | FloridaRealtors(r)
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org
Be a Star at Florida Realtors Convention & Trade Expo
http://convention.floridarealtors.org August 24-28
[cid:image001.jpg@01C8B0EE.0B556530]
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank
Sent: Wednesday, June 15, 2011 5:15 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Such a basic question . . .
that I am almost embarrassed to ask it.
But since I have no shame, I will.
What are the remedies, if any, if a residential landlord failed to maintain a security deposit in a separate account? Landlord notified tenant in the actual lease that the deposit will be commingled. Lease expires, and Landlord is submitting a claim on the deposit.
Does the fact that the funds were commingled serve as any kind of defense for the tenant? Is there any penalty on the landlord (who leases less than 5 units)?
Thanks for your indulgence.
Please note our new address.
Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
sfrank@saflaw.commailto:sfrank@saflaw.com
www.saflaw.comhttp://www.saflaw.com/
If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it.
Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Respectfully, I have to disagree with Greg. The penalty for violating for
83.49(1) is that the Landlord loses the ability to make a claim against the
deposit completely. This does not mean that the Landlord waives any claim to
damages arising out of the tenancy, only that the Landlord can retain or
collect the deposit for such damage and must instead file an action.
Further, the Landlord is then exposed for failing to return the deposit
timely.
As for the notice, it is intended to keep the landlord honest and force the
Landlord to comply with the section at the outset. I would agree that the
formulation is a bit ridiculous since the whole issue could be resolved very
quickly by requiring the Landlord to segregate or allowing the lease to be
terminable or some other formulation. I have thought that it would be
logical to allow the Tenant to provide the Landlord notice of non compliance
with the section and a brief opportunity to cure, failing which the Tenant
could terminate the Lease at will.
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Wednesday, June 15, 2011 5:46 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Such a basic question . . .
It's actually a good question Scott - I've previously pondered it myself.
AFAIK, there's no specific penalty for violating 83.49 (1). However, LL
would be at risk of civil claims by T to enforce LL's compliance (83.54),
claims by T for whatever damages supposedly suffered by T as a result of
LL's noncompliance (83.55), and the resulting atty fees for same (83.48).
I would note that even though the LL's lease may purport to say that LL
can/will commingle, I would argue that's a "prohibited provision" pursuant
to 83.47. Also, the fact that LL leases fewer than 5 units only relieves LL
of having to comply with the notice provision of 83.49 (2), I don't believe
it relieves the LL of having to comply with 83.49 (1).
One thing I've never understood is why 83.49 (1) prohibits comingling, yet
the notice contemplated by 83.49 (2) invites the LL to notify T of whether
or not LL has comingled the funds - seemingly condoning that behavior right
after prohibiting it - I must be missing something.
But to answer your question about using comingling as a defense by T, no, I
don't think the fact that the LL wrongfully comingled funds serves as an
absolute bar to a valid claim by LL on the security deposit at the
termination of the lease. I suppose T could raise the issue but it seems
like a loser to me if the LL's claims are otherwise meritorious. Note that
the last sentence of 83.49 (3)(a) imposes the rather draconian penalty of
forfeiture of right of LL to impose claim on deposit for failing to give the
required 30 day notice under that subsection, but there is no such similar
penalty spelled out in the statute for mere comingling.
Regards,
Greg
Greg Hass, Senior Counsel
Office of Law & Policy | FloridaRealtorsR
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org
Be a Star at Florida Realtors Convention & Trade Expo
http://convention.floridarealtors.org August 24-28
cid:image001.jpg@01C8B0EE.0B556530
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of
Scott A. Frank
Sent: Wednesday, June 15, 2011 5:15 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Such a basic question . . .
that I am almost embarrassed to ask it.
But since I have no shame, I will.
What are the remedies, if any, if a residential landlord failed to maintain
a security deposit in a separate account? Landlord notified tenant in the
actual lease that the deposit will be commingled. Lease expires, and
Landlord is submitting a claim on the deposit.
Does the fact that the funds were commingled serve as any kind of defense
for the tenant? Is there any penalty on the landlord (who leases less than
5 units)?
Thanks for your indulgence.
Please note our new address.
Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
www.saflaw.com http://www.saflaw.com/
If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
disclosing it.
Pursuant to Internal Revenue Service guidance, be advised that any federal
tax advice contained in this written or electronic communication, including
any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.
Thanks Eric,
Do you happen to have any statutory or case law authority to support your comment that "the penalty for violating 83.49(1) is that the Landlord loses the ability to make a claim against the deposit completely"? I value your opinion but I'm not aware of anything in Florida that's directly on point - however, I haven't done any exhaustive research on this either - perhaps there are some trial court cases floating around on the subject?
For what it's worth, this morning I remembered we have Hauser's Florida Residential LL/T Manual in our library and I found the following statement on this subject in Section 7.03[6] of same: "What if the landlord impermissibly commingles the security deposit pursuant to Fla. Stat. Sec. 83.49(a) or (b)? No Florida court has yet ruled on this issue."
Regards,
Greg
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Eric Jacobs
Sent: Wednesday, June 15, 2011 7:31 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Such a basic question . . .
Respectfully, I have to disagree with Greg. The penalty for violating for 83.49(1) is that the Landlord loses the ability to make a claim against the deposit completely. This does not mean that the Landlord waives any claim to damages arising out of the tenancy, only that the Landlord can retain or collect the deposit for such damage and must instead file an action. Further, the Landlord is then exposed for failing to return the deposit timely.
As for the notice, it is intended to keep the landlord honest and force the Landlord to comply with the section at the outset. I would agree that the formulation is a bit ridiculous since the whole issue could be resolved very quickly by requiring the Landlord to segregate or allowing the lease to be terminable or some other formulation. I have thought that it would be logical to allow the Tenant to provide the Landlord notice of non compliance with the section and a brief opportunity to cure, failing which the Tenant could terminate the Lease at will.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Wednesday, June 15, 2011 5:46 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Such a basic question . . .
It's actually a good question Scott - I've previously pondered it myself.
AFAIK, there's no specific penalty for violating 83.49 (1). However, LL would be at risk of civil claims by T to enforce LL's compliance (83.54), claims by T for whatever damages supposedly suffered by T as a result of LL's noncompliance (83.55), and the resulting atty fees for same (83.48). I would note that even though the LL's lease may purport to say that LL can/will commingle, I would argue that's a "prohibited provision" pursuant to 83.47. Also, the fact that LL leases fewer than 5 units only relieves LL of having to comply with the notice provision of 83.49 (2), I don't believe it relieves the LL of having to comply with 83.49 (1).
One thing I've never understood is why 83.49 (1) prohibits comingling, yet the notice contemplated by 83.49 (2) invites the LL to notify T of whether or not LL has comingled the funds - seemingly condoning that behavior right after prohibiting it - I must be missing something.
But to answer your question about using comingling as a defense by T, no, I don't think the fact that the LL wrongfully comingled funds serves as an absolute bar to a valid claim by LL on the security deposit at the termination of the lease. I suppose T could raise the issue but it seems like a loser to me if the LL's claims are otherwise meritorious. Note that the last sentence of 83.49 (3)(a) imposes the rather draconian penalty of forfeiture of right of LL to impose claim on deposit for failing to give the required 30 day notice under that subsection, but there is no such similar penalty spelled out in the statute for mere comingling.
Regards,
Greg
Greg Hass, Senior Counsel
Office of Law & Policy | FloridaRealtors(r)
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org
Be a Star at Florida Realtors Convention & Trade Expo
http://convention.floridarealtors.org August 24-28
[cid:image001.jpg@01C8B0EE.0B556530]
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank
Sent: Wednesday, June 15, 2011 5:15 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Such a basic question . . .
that I am almost embarrassed to ask it.
But since I have no shame, I will.
What are the remedies, if any, if a residential landlord failed to maintain a security deposit in a separate account? Landlord notified tenant in the actual lease that the deposit will be commingled. Lease expires, and Landlord is submitting a claim on the deposit.
Does the fact that the funds were commingled serve as any kind of defense for the tenant? Is there any penalty on the landlord (who leases less than 5 units)?
Thanks for your indulgence.
Please note our new address.
Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
sfrank@saflaw.commailto:sfrank@saflaw.com
www.saflaw.comhttp://www.saflaw.com/
If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it.
Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Gentlemen:
When I saw the question it seemed vaguely familiar. I had the issue come up
in a security deposit dispute a few years ago, where the landlord testified
that he never deposited the money but rather kept it in a drawer at home.
I am cutting and pasting the part of my memo to the judge that dealt with
that issue. Ultimately, it was a non-issue for the judge but the tenant
made a big deal about it.
"At this juncture the location of the deposit money, whether a drawer or
Florida Bank, seems premature and irrelevant as entitlement to said deposit
money remains at issue. Further, Chapter 83 Florida Statutes does not
contain a remedy for the tenant nor a penalty for the landlord, when a
landlord fails to abide by the deposit requirements. See Pekofsky v Golden,
1 Fla. L. Weekly Supp. 478a (Fla. 11th Cir. Ct.1992) wherein the Eleventh
Judicial Circuit in its appellate capacity found no remedy provided in
section 83.49 for the landlord's failure to comply with the deposit
requirements."
I can't find my copy of the Pekofsky case I cited, but I'm working on it.
Albert
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Thursday, June 16, 2011 11:36 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Such a basic question . . .
Thanks Eric,
Do you happen to have any statutory or case law authority to support your
comment that "the penalty for violating 83.49(1) is that the Landlord loses
the ability to make a claim against the deposit completely"? I value your
opinion but I'm not aware of anything in Florida that's directly on point -
however, I haven't done any exhaustive research on this either - perhaps
there are some trial court cases floating around on the subject?
For what it's worth, this morning I remembered we have Hauser's Florida
Residential LL/T Manual in our library and I found the following statement
on this subject in Section 7.03[6] of same: "What if the landlord
impermissibly commingles the security deposit pursuant to Fla. Stat. Sec.
83.49(a) or (b)? No Florida court has yet ruled on this issue."
Regards,
Greg
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Eric Jacobs
Sent: Wednesday, June 15, 2011 7:31 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Such a basic question . . .
Respectfully, I have to disagree with Greg. The penalty for violating for
83.49(1) is that the Landlord loses the ability to make a claim against the
deposit completely. This does not mean that the Landlord waives any claim to
damages arising out of the tenancy, only that the Landlord can retain or
collect the deposit for such damage and must instead file an action.
Further, the Landlord is then exposed for failing to return the deposit
timely.
As for the notice, it is intended to keep the landlord honest and force the
Landlord to comply with the section at the outset. I would agree that the
formulation is a bit ridiculous since the whole issue could be resolved very
quickly by requiring the Landlord to segregate or allowing the lease to be
terminable or some other formulation. I have thought that it would be
logical to allow the Tenant to provide the Landlord notice of non compliance
with the section and a brief opportunity to cure, failing which the Tenant
could terminate the Lease at will.
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Wednesday, June 15, 2011 5:46 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Such a basic question . . .
It's actually a good question Scott - I've previously pondered it myself.
AFAIK, there's no specific penalty for violating 83.49 (1). However, LL
would be at risk of civil claims by T to enforce LL's compliance (83.54),
claims by T for whatever damages supposedly suffered by T as a result of
LL's noncompliance (83.55), and the resulting atty fees for same (83.48).
I would note that even though the LL's lease may purport to say that LL
can/will commingle, I would argue that's a "prohibited provision" pursuant
to 83.47. Also, the fact that LL leases fewer than 5 units only relieves LL
of having to comply with the notice provision of 83.49 (2), I don't believe
it relieves the LL of having to comply with 83.49 (1).
One thing I've never understood is why 83.49 (1) prohibits comingling, yet
the notice contemplated by 83.49 (2) invites the LL to notify T of whether
or not LL has comingled the funds - seemingly condoning that behavior right
after prohibiting it - I must be missing something.
But to answer your question about using comingling as a defense by T, no, I
don't think the fact that the LL wrongfully comingled funds serves as an
absolute bar to a valid claim by LL on the security deposit at the
termination of the lease. I suppose T could raise the issue but it seems
like a loser to me if the LL's claims are otherwise meritorious. Note that
the last sentence of 83.49 (3)(a) imposes the rather draconian penalty of
forfeiture of right of LL to impose claim on deposit for failing to give the
required 30 day notice under that subsection, but there is no such similar
penalty spelled out in the statute for mere comingling.
Regards,
Greg
Greg Hass, Senior Counsel
Office of Law & Policy | FloridaRealtorsR
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org
Be a Star at Florida Realtors Convention & Trade Expo
http://convention.floridarealtors.org August 24-28
cid:image001.jpg@01C8B0EE.0B556530
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of
Scott A. Frank
Sent: Wednesday, June 15, 2011 5:15 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Such a basic question . . .
that I am almost embarrassed to ask it.
But since I have no shame, I will.
What are the remedies, if any, if a residential landlord failed to maintain
a security deposit in a separate account? Landlord notified tenant in the
actual lease that the deposit will be commingled. Lease expires, and
Landlord is submitting a claim on the deposit.
Does the fact that the funds were commingled serve as any kind of defense
for the tenant? Is there any penalty on the landlord (who leases less than
5 units)?
Thanks for your indulgence.
Please note our new address.
Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
www.saflaw.com http://www.saflaw.com/
If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
disclosing it.
Pursuant to Internal Revenue Service guidance, be advised that any federal
tax advice contained in this written or electronic communication, including
any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.
Here's what I mean.
Client said he would enter into lease with tenant, i.e., written lease
and security deposit, when client returned from Puerto Rico. Tenant
begged to be allowed to place a "couple of things" in the house to be
rented before Client returned and lease was signed. Tenant, you guessed
it, moved himself and his entire family into the premises before the
client returned from Puerto Rico. Just after tenant and his family move
in, a house fire (each side blames the other) starts and destroys all of
tenant's goods. Thankfully, no one was hurt.
We are at the pleadings stage, and I have moved to dismiss based on
caveat lessee and, in effect, trespass. Tenant is saying, of course, he
had permission to move into the premises and that the premises were
uninhabitable (due to the faulty a/c which caused the fire).
Are there any other defense I am missing?
Richman Greer P.A.
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office:561.803.3500
Fax: 561.820.1608
Direct:561.803.3501
Email:MFarach@richmangreer.com
http://www.richmangreer.com/
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.
Manuel: I do not believe the common law rule of caveat lessee is applicable in a residential setting. See Mansur v Fubanks, 401 So.2d 328. There the Florida Supreme Court stated:
We hold that the owner of a residential dwelling unit, who leases it to a tenant for residential purposes, has a duty to reasonably inspect the premises before allowing the tenant to take possession, and to make the repairs necessary to transfer a reasonably safe dwelling unit to the tenant unless defects are waived by the tenant. This duty may be modified by agreement of the parties.
Also, that may act as a waiver if landlord wants to defend on the grounds that the "tenant" was not a tenant but a trespasser.
From the facts, it spears tenant had permission to enter the premises to put the "couple things" inside. I'd want to know who gave the tenant physical access to the premises and consider impleading that person if they opened the door for the prospective tenant and negligently failed to secure the premises after the articles were placed inside the premises.
At the motion to dismiss stage, without knowing whether tenant stated a cause of action in the 4-corners of the complaint, I can't offer any advice. Once your client has to answer, perhaps a counterclaim for trespass or unlawful entry and detainer and a negligence third-party action against the person who let the tenant move his entire family in.
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.commailto:ahorky@mbhlawyer.com
Website: www.mbhlawyer.comhttp://www.mbhlawyer.com/
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Thursday, June 16, 2011 6:16 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Premature Lessee Question
Here's what I mean.
Client said he would enter into lease with tenant, i.e., written lease and security deposit, when client returned from Puerto Rico. Tenant begged to be allowed to place a "couple of things" in the house to be rented before Client returned and lease was signed. Tenant, you guessed it, moved himself and his entire family into the premises before the client returned from Puerto Rico. Just after tenant and his family move in, a house fire (each side blames the other) starts and destroys all of tenant's goods. Thankfully, no one was hurt.
We are at the pleadings stage, and I have moved to dismiss based on caveat lessee and, in effect, trespass. Tenant is saying, of course, he had permission to move into the premises and that the premises were uninhabitable (due to the faulty a/c which caused the fire).
Are there any other defense I am missing?
[http://www.richmangreer.com/emailsig/logo.gif]
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office:561.803.3500
Fax: 561.820.1608
Direct:561.803.3501
Email:MFarach@richmangreer.com
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To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.
Manuel: Attached is a 2004 Fla. Practice Series section on landlord and tenant liability that might be helpful.
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.commailto:ahorky@mbhlawyer.com
Website: www.mbhlawyer.comhttp://www.mbhlawyer.com/
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Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the preceding message contains advice relating to a Federal tax issue, unless expressly stated otherwise the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.
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.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel Farach
Sent: Thursday, June 16, 2011 6:16 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Premature Lessee Question
Here's what I mean.
Client said he would enter into lease with tenant, i.e., written lease and security deposit, when client returned from Puerto Rico. Tenant begged to be allowed to place a "couple of things" in the house to be rented before Client returned and lease was signed. Tenant, you guessed it, moved himself and his entire family into the premises before the client returned from Puerto Rico. Just after tenant and his family move in, a house fire (each side blames the other) starts and destroys all of tenant's goods. Thankfully, no one was hurt.
We are at the pleadings stage, and I have moved to dismiss based on caveat lessee and, in effect, trespass. Tenant is saying, of course, he had permission to move into the premises and that the premises were uninhabitable (due to the faulty a/c which caused the fire).
Are there any other defense I am missing?
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Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office:561.803.3500
Fax: 561.820.1608
Direct:561.803.3501
Email:MFarach@richmangreer.com
www.richmangreer.comhttp://www.richmangreer.com/
[http://www.richmangreer.com/emailsig/meritas.gif]
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.
Thanks; its very helpful
Manny
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J.
Horky
Sent: Friday, June 17, 2011 11:47 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Premature Lessee Question
Manuel: Attached is a 2004 Fla. Practice Series section on landlord and
tenant liability that might be helpful.
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/
CONFIDENTIALITY NOTICE: Unless otherwise stated, the information in this
email transmission is privileged and confidential. If you are not the
intended recipient, nor the employee or agent responsible for delivering
it to the intended recipient, you are hereby notified that any
dissemination or copying of this transmission (including any
attachments) is strictly prohibited. If you have received this email in
error, please notify the sender by email reply. Thank you.
Internal Revenue Service regulations require that certain types of
written advice include a disclaimer. To the extent the preceding message
contains advice relating to a Federal tax issue, unless expressly stated
otherwise the advice is not intended or written to be used, and it
cannot be used by the recipient or any other taxpayer, for the purpose
of avoiding Federal tax penalties, and was not written to support the
promotion or marketing of any transaction or matter discussed herein.
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.
Richman Greer P.A.
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office:561.803.3500
Fax: 561.820.1608
Direct:561.803.3501
Email:MFarach@richmangreer.com
http://www.richmangreer.com/
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited. E-mail transmission cannot be guaranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which arise as a result of e-mail transmission. If verification is required please request a hard-copy version.
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Manuel
Farach
Sent: Thursday, June 16, 2011 6:16 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Premature Lessee Question
Here's what I mean.
Client said he would enter into lease with tenant, i.e., written lease
and security deposit, when client returned from Puerto Rico. Tenant
begged to be allowed to place a "couple of things" in the house to be
rented before Client returned and lease was signed. Tenant, you guessed
it, moved himself and his entire family into the premises before the
client returned from Puerto Rico. Just after tenant and his family move
in, a house fire (each side blames the other) starts and destroys all of
tenant's goods. Thankfully, no one was hurt.
We are at the pleadings stage, and I have moved to dismiss based on
caveat lessee and, in effect, trespass. Tenant is saying, of course, he
had permission to move into the premises and that the premises were
uninhabitable (due to the faulty a/c which caused the fire).
Are there any other defense I am missing?
Richman Greer P.A.http://www.richmangreer.com/emailsig/logo.gif
Manuel Farach / Of Counsel - Board Certified in Real Estate Law and
Business Litigation by The Florida Bar
Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office:561.803.3500
Fax: 561.820.1608
Direct:561.803.3501
Email:MFarach@richmangreer.com
www.richmangreer.com http://www.richmangreer.com/
http://www.richmangreer.com/emailsig/meritas.gif
To ensure compliance with requirements imposed by the IRS, we inform you
that any U.S. federal tax advice contained in this communication
(including any attachments) is not intended or written to be used, and
cannot be used, for the purpose of (i) avoiding penalties under the
Internal Revenue Code or (ii) promoting, marketing or recommending to
another party any transaction or matter addressed herein.
This message contains confidential information and is intended for
landten@lists.flabarrpptl.org. If you are not
landten@lists.flabarrpptl.org you are notified that disclosing, copying,
distributing or taking any action in reliance on the contents of this
information is strictly prohibited. E-mail transmission cannot be
guaranteed to be secure or error-free as information could be
intercepted, corrupted, lost, destroyed, arrive late or incomplete, or
contain viruses. The sender (MFarach@richmangreer.com) therefore does
not accept liability for any errors or omissions in the contents of this
message, which arise as a result of e-mail transmission. If verification
is required please request a hard-copy version.
Thank you all for your advice. I have been leaning towards the "if there's
no remedy, there's no remedy" side, but this helped me to clarify.
Fortunately, there's plenty of other bad things the landlord id with respect
to trying to grab the deposit.
Please note our new address.
Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
www.saflaw.com http://www.saflaw.com/
If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
disclosing it.
Pursuant to Internal Revenue Service guidance, be advised that any federal
tax advice contained in this written or electronic communication, including
any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M Cardet
Sent: Thursday, June 16, 2011 2:05 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Such a basic question . . .
Gentlemen:
When I saw the question it seemed vaguely familiar. I had the issue come up
in a security deposit dispute a few years ago, where the landlord testified
that he never deposited the money but rather kept it in a drawer at home.
I am cutting and pasting the part of my memo to the judge that dealt with
that issue. Ultimately, it was a non-issue for the judge but the tenant
made a big deal about it.
"At this juncture the location of the deposit money, whether a drawer or
Florida Bank, seems premature and irrelevant as entitlement to said deposit
money remains at issue. Further, Chapter 83 Florida Statutes does not
contain a remedy for the tenant nor a penalty for the landlord, when a
landlord fails to abide by the deposit requirements. See Pekofsky v Golden,
1 Fla. L. Weekly Supp. 478a (Fla. 11th Cir. Ct.1992) wherein the Eleventh
Judicial Circuit in its appellate capacity found no remedy provided in
section 83.49 for the landlord's failure to comply with the deposit
requirements."
I can't find my copy of the Pekofsky case I cited, but I'm working on it.
Albert
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Thursday, June 16, 2011 11:36 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Such a basic question . . .
Thanks Eric,
Do you happen to have any statutory or case law authority to support your
comment that "the penalty for violating 83.49(1) is that the Landlord loses
the ability to make a claim against the deposit completely"? I value your
opinion but I'm not aware of anything in Florida that's directly on point -
however, I haven't done any exhaustive research on this either - perhaps
there are some trial court cases floating around on the subject?
For what it's worth, this morning I remembered we have Hauser's Florida
Residential LL/T Manual in our library and I found the following statement
on this subject in Section 7.03[6] of same: "What if the landlord
impermissibly commingles the security deposit pursuant to Fla. Stat. Sec.
83.49(a) or (b)? No Florida court has yet ruled on this issue."
Regards,
Greg
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Eric Jacobs
Sent: Wednesday, June 15, 2011 7:31 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Such a basic question . . .
Respectfully, I have to disagree with Greg. The penalty for violating for
83.49(1) is that the Landlord loses the ability to make a claim against the
deposit completely. This does not mean that the Landlord waives any claim to
damages arising out of the tenancy, only that the Landlord can retain or
collect the deposit for such damage and must instead file an action.
Further, the Landlord is then exposed for failing to return the deposit
timely.
As for the notice, it is intended to keep the landlord honest and force the
Landlord to comply with the section at the outset. I would agree that the
formulation is a bit ridiculous since the whole issue could be resolved very
quickly by requiring the Landlord to segregate or allowing the lease to be
terminable or some other formulation. I have thought that it would be
logical to allow the Tenant to provide the Landlord notice of non compliance
with the section and a brief opportunity to cure, failing which the Tenant
could terminate the Lease at will.
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Wednesday, June 15, 2011 5:46 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Such a basic question . . .
It's actually a good question Scott - I've previously pondered it myself.
AFAIK, there's no specific penalty for violating 83.49 (1). However, LL
would be at risk of civil claims by T to enforce LL's compliance (83.54),
claims by T for whatever damages supposedly suffered by T as a result of
LL's noncompliance (83.55), and the resulting atty fees for same (83.48).
I would note that even though the LL's lease may purport to say that LL
can/will commingle, I would argue that's a "prohibited provision" pursuant
to 83.47. Also, the fact that LL leases fewer than 5 units only relieves LL
of having to comply with the notice provision of 83.49 (2), I don't believe
it relieves the LL of having to comply with 83.49 (1).
One thing I've never understood is why 83.49 (1) prohibits comingling, yet
the notice contemplated by 83.49 (2) invites the LL to notify T of whether
or not LL has comingled the funds - seemingly condoning that behavior right
after prohibiting it - I must be missing something.
But to answer your question about using comingling as a defense by T, no, I
don't think the fact that the LL wrongfully comingled funds serves as an
absolute bar to a valid claim by LL on the security deposit at the
termination of the lease. I suppose T could raise the issue but it seems
like a loser to me if the LL's claims are otherwise meritorious. Note that
the last sentence of 83.49 (3)(a) imposes the rather draconian penalty of
forfeiture of right of LL to impose claim on deposit for failing to give the
required 30 day notice under that subsection, but there is no such similar
penalty spelled out in the statute for mere comingling.
Regards,
Greg
Greg Hass, Senior Counsel
Office of Law & Policy | FloridaRealtorsR
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org
Be a Star at Florida Realtors Convention & Trade Expo
http://convention.floridarealtors.org August 24-28
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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of
Scott A. Frank
Sent: Wednesday, June 15, 2011 5:15 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Such a basic question . . .
that I am almost embarrassed to ask it.
But since I have no shame, I will.
What are the remedies, if any, if a residential landlord failed to maintain
a security deposit in a separate account? Landlord notified tenant in the
actual lease that the deposit will be commingled. Lease expires, and
Landlord is submitting a claim on the deposit.
Does the fact that the funds were commingled serve as any kind of defense
for the tenant? Is there any penalty on the landlord (who leases less than
5 units)?
Thanks for your indulgence.
Please note our new address.
Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p: (561) 372-7860
f: (561) 423-5721
www.saflaw.com http://www.saflaw.com/
If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or
disclosing it.
Pursuant to Internal Revenue Service guidance, be advised that any federal
tax advice contained in this written or electronic communication, including
any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.
