Members:

I received a call from a tenant who signed a residential lease.  After
taking possession, he allowed his girlfriend to move in who does not pay
rent and did not sign the lease.  The relationship soured and now girlfriend
refuses to leave.  I am of the opinion that although the tenant  is still in
possession and entry by the girlfriend was lawful, her permission to remain
in possession has been withdrawn and the tenant's remedy is unlawful
detainer.  Any feedback would be greatly appreciated.  Thank you.

Regards,

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F: 561.952.0096

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

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I would kick both of them out by eviction. This guy violated his lease by
allowing an unauthorized occupant. If the owner has knowledge of her now and
accepts rent, this could make her into a tenant and/or create a waiver of
the noncompliance. I see it happen all the time. Next, she will get a
restraining order against him and he will be forced to leave. Bad news.

Harry

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FAX: 1 800 367 9038
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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Thursday, April 02, 2015 11:50 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Girlfriend refuses to leave, now what?

Members:

I received a call from a tenant who signed a residential lease.  After
taking possession, he allowed his girlfriend to move in who does not pay
rent and did not sign the lease.  The relationship soured and now girlfriend
refuses to leave.  I am of the opinion that although the tenant  is still in
possession and entry by the girlfriend was lawful, her permission to remain
in possession has been withdrawn and the tenant's remedy is unlawful
detainer.  Any feedback would be greatly appreciated.  Thank you.

Regards,

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F: 561.952.0096

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
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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.

Harry is right, I've seen that happen many times too.  The proper tenant's roommate, girlfriend/boyfriend/friend, etc. gets a restraining order and the tenant can't even live in his/her own house and the unauthorized occupant gets to stay.
Although, being that the "tenant" called you, I would file it as a Chapter 82 unlawful detainer action.  Permission was given to stay there temporarily, if there's no written agreement, then that permission has been revoked, and tenant can file unlawful detainer case to remove the unwanted guest.
CaryLaw Offices of Cary P. SabolP.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: Harry Heist harry@evict.com
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org
Sent: Thursday, April 2, 2015 12:08 PM
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

#yiv1612343813 #yiv1612343813 -- _filtered #yiv1612343813 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;} _filtered #yiv1612343813 {font-family:Tahoma;panose-1:2 11 6 4 3 5 4 4 2 4;}#yiv1612343813 #yiv1612343813 p.yiv1612343813MsoNormal, #yiv1612343813 li.yiv1612343813MsoNormal, #yiv1612343813 div.yiv1612343813MsoNormal {margin:0in;margin-bottom:.0001pt;font-size:11.0pt;}#yiv1612343813 a:link, #yiv1612343813 span.yiv1612343813MsoHyperlink {color:blue;text-decoration:underline;}#yiv1612343813 a:visited, #yiv1612343813 span.yiv1612343813MsoHyperlinkFollowed {color:purple;text-decoration:underline;}#yiv1612343813 p.yiv1612343813MsoAcetate, #yiv1612343813 li.yiv1612343813MsoAcetate, #yiv1612343813 div.yiv1612343813MsoAcetate {margin:0in;margin-bottom:.0001pt;font-size:8.0pt;}#yiv1612343813 span.yiv1612343813EmailStyle15 {color:#1F497D;}#yiv1612343813 span.yiv1612343813EmailStyle16 {color:#1F497D;}#yiv1612343813 span.yiv1612343813EmailStyle17 {color:#1F497D;}#yiv1612343813 span.yiv1612343813EmailStyle18 {color:#1F497D;}#yiv1612343813 span.yiv1612343813EmailStyle19 {color:black;}#yiv1612343813 span.yiv1612343813BalloonTextChar {}#yiv1612343813 span.yiv1612343813EmailStyle25 {color:#1F497D;}#yiv1612343813 .yiv1612343813MsoChpDefault {font-size:10.0pt;} _filtered #yiv1612343813 {margin:1.0in 1.0in 1.0in 1.0in;}#yiv1612343813 div.yiv1612343813WordSection1 {}#yiv1612343813 I would kick both of them out by eviction. This guy violated his lease by allowing an unauthorized occupant. If the owner has knowledge of her now and accepts rent, this could make her into a tenant and/or create a waiver of the noncompliance. I see it happen all the time. Next, she will get a restraining order against him and he will be forced to leave. Bad news.   Harry  LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website:  www.evict.com
Email: harry@evict.com
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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 Anthony J. Horky
Sent: Thursday, April 02, 2015 11:50 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Girlfriend refuses to leave, now what?  Members:  I received a call from a tenant who signed a residential lease.  After taking possession, he allowed his girlfriend to move in who does not pay rent and did not sign the lease.  The relationship soured and now girlfriend refuses to leave.  I am of the opinion that although the tenant  is still in possession and entry by the girlfriend was lawful, her permission to remain in possession has been withdrawn and the tenant’s remedy is unlawful detainer.  Any feedback would be greatly appreciated.  Thank you.    Regards,   
|    | Anthony J. Horky, EsquireAnthony J. Horky, P.A.2255 Glades Road, Suite 324ABoca Raton, Florida 33431T: 561.989.3206F: 561.952.0096                    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: 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.      

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Unless there was a forcible entry (which it doesn’t sound like at all), it’s an ejectment action

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Conrad Kahn
Sent: Thursday, April 02, 2015 2:03 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I believe unlawful detainee only applies to nonresidential tenancy.  See Fla. Stat. 82.02.  And eviction would be inappropriate too because there's no landlord-tenant relationship. Therefore, the proper cause of action is ejectment under chapter 66.  This must be filed in circuit court unfortunately.
On Apr 2, 2015 11:53 AM, "Anthony J. Horky" <ahorky@horkylaw.commailto:ahorky@horkylaw.com> wrote:
Members:
I received a call from a tenant who signed a residential lease.  After taking possession, he allowed his girlfriend to move in who does not pay rent and did not sign the lease.  The relationship soured and now girlfriend refuses to leave.  I am of the opinion that although the tenant  is still in possession and entry by the girlfriend was lawful, her permission to remain in possession has been withdrawn and the tenant’s remedy is unlawful detainer.  Any feedback would be greatly appreciated.  Thank you.

Regards,

[AJH Logo mark]

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206tel:561.989.3206

F: 561.952.0096tel:561.952.0096

www.horkylaw.comhttp://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: ahorky@horkylaw.commailto: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.

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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.
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Office: 561.803.3500
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Direct: 561.803.3501
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I don’t necessarily agree that unlawful detention only applies to non-residential tenancies.  I think 82.02(2) and 82.02(4) simply mean that you can’t file an unlawful detention action if you have a residential landlord-tenant relationship.  Here, there is no landlord-tenant relationship between the tenant and his girlfriend. The landlord-tenant relationship exists between the tenant and his landlord.  To file an ejectment, you need to have a valid claim to legal title. The tenant doesn’t have legal title.

Unlawful detainer would be my recommendation. Richards v. Finley, 259 So.2d 167.

[cid:image006.jpg@01CF99C8.29DF4240]
Dariel Abrahamy, Esq.
Shareholder
200 E. Broward Blvd, Suite 1800
Fort Lauderdale, FL 33301
P: 954-491-1120; F: 954-343-6972
Dariel.Abrahamy@gmlaw.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Conrad Kahn
Sent: Thursday, April 02, 2015 2:03 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I believe unlawful detainee only applies to nonresidential tenancy.  See Fla. Stat. 82.02.  And eviction would be inappropriate too because there's no landlord-tenant relationship. Therefore, the proper cause of action is ejectment under chapter 66.  This must be filed in circuit court unfortunately.
On Apr 2, 2015 11:53 AM, "Anthony J. Horky" <ahorky@horkylaw.commailto:ahorky@horkylaw.com> wrote:
Members:
I received a call from a tenant who signed a residential lease.  After taking possession, he allowed his girlfriend to move in who does not pay rent and did not sign the lease.  The relationship soured and now girlfriend refuses to leave.  I am of the opinion that although the tenant  is still in possession and entry by the girlfriend was lawful, her permission to remain in possession has been withdrawn and the tenant’s remedy is unlawful detainer.  Any feedback would be greatly appreciated.  Thank you.

Regards,

[AJH Logo mark]

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206tel:561.989.3206

F: 561.952.0096tel:561.952.0096

www.horkylaw.comhttp://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: ahorky@horkylaw.commailto: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.

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received this communication in error, please notify us immediately by reply e-mail.

Unless specifically indicated otherwise, any discussion of tax issues contained in this e-mail, including any attachments, is not, and is not intended to be, ''written advice'' as defined in Section 10.37 of Treasury Department Circular 230.

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Same here.  I've filed many unlawful detainer cases under Chapter 82 for various reasons, including facts similar to the case in discussion.  I would recommend Chapter 83, not Ejectment.
Cary Law Offices of Cary P. SabolP.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: Joseph Alexander jalexander@lieserskaff.com
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Thursday, April 2, 2015 3:22 PM
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I agree with Daniel and the others...unlawful detainer.Please excuse any typos, as this email was sent from my mobile device.Thank you,Joseph N. Alexander
LIESER SKAFF ALEXANDER, PLLC
511 W. Bay Street
Suite 350
Tampa, Florida 33606
Phone: (813) 280-1256
Fax: (813) 251-8715
Email: jalexander@lieserskaff.com
Web: www.lieserskaff.com
   

On Apr 2, 2015 3:08 PM, "Dariel Abrahamy" Dariel.Abrahamy@gmlaw.com wrote:

I don’t necessarily agree that unlawful detention only applies to non-residential tenancies.  I think 82.02(2) and 82.02(4) simply mean that you can’t file an unlawful detention action if you have a residential landlord-tenant relationship.  Here, there is no landlord-tenant relationship between the tenant and his girlfriend. The landlord-tenant relationship exists between the tenant and his landlord.  To file an ejectment, you need to have a valid claim to legal title. The tenant doesn’t have legal title. Unlawful detainer would be my recommendation.Richards v. Finley, 259 So.2d 167.  Dariel Abrahamy, Esq.Shareholder200 E. Broward Blvd, Suite 1800Fort Lauderdale, FL 33301P: 954-491-1120; F: 954-343-6972Dariel.Abrahamy@gmlaw.com    From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]On Behalf Of Conrad Kahn
Sent: Thursday, April 02, 2015 2:03 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what? I believe unlawful detainee only applies to nonresidential tenancy.  See Fla. Stat. 82.02.  And eviction would be inappropriate too because there's no landlord-tenant relationship. Therefore, the proper cause of action is ejectment under chapter 66.  This must be filed in circuit court unfortunately. On Apr 2, 2015 11:53 AM, "Anthony J. Horky" ahorky@horkylaw.com wrote:Members: I received a call from a tenant who signed a residential lease.  After taking possession, he allowed his girlfriend to move in who does not pay rent and did not sign the lease.  The relationship soured and now girlfriend refuses to leave.  I am of the opinion that although the tenant  is still in possession and entry by the girlfriend was lawful, her permission to remain in possession has been withdrawn and the tenant’s remedy is unlawful detainer.  Any feedback would be greatly appreciated.  Thank you.  Regards, 
|   | Anthony J. Horky, EsquireAnthony J. Horky, P.A.2255 Glades Road, Suite 324ABoca Raton, Florida 33431T: 561.989.3206F: 561.952.0096                   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: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.  |

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Thank you everyone for your excellent input.

Based on the opposing views this seems to be a grey area.  I’m inclined to try unlawful detainer first but have recommended that the tenant attempt to pay the ex-girlfriend to leave.  There are several incidents of prior police calls so the references to a restraining order was well taken.  So was the comment that the landlord may find the tenant in breach and have them both removed.  I do not believe that ejectment is correct as there is no issue of who has better title to the residence, and eviction is not applicable because there is no rental agreement, oral or written, between the tenant and his girlfriend.  That leaves unlawful detainer only.

82.04 Remedy for unlawful detention.—

(1) If any person enters or has entered in a peaceable manner into any lands or tenements when the entry is lawful and after the expiration of the person’s right continues to hold them against the consent of the party entitled to possession, the party so entitled to possession is entitled to the summary procedure under s. 51.011 http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0051/Sections/0051.011.html , at any time within 3 years after the possession has been withheld from the party against his or her consent.

(2) This section shall not apply with regard to residential tenancies.

This is a case of two persons living in a residence, but for the girlfriend it is not a “residential tenancy.”  Although Chapter 82 does not apply to “residential tenancies” there is no such defined term under Chapters 82 or 83.  As I wrote in ActionLine last year, without a definition we should look to the terms under 83 that together can be used to define such a tenancy.  There is no indicia of such tenancy here. The girlfriend did not enter into a “rental agreement,” she is not a “tenant,” the tenant is not a “landlord,” and the girlfriend is not paying “rent.”  At the same time, the tenant is entitled to possession.

Regards,

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F: 561.952.0096

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.

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Thursday, April 02, 2015 3:38 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

Same here.  I've filed many unlawful detainer cases under Chapter 82 for various reasons, including facts similar to the case in discussion.  I would recommend Chapter 83, not Ejectment.

Cary

Law Offices of Cary P. Sabol

P.O. Box 15981 | West Palm Beach | Florida | 33416

Phone: (561) 281-2744

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From: Joseph Alexander jalexander@lieserskaff.com
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Sent: Thursday, April 2, 2015 3:22 PM
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I agree with Daniel and the others...unlawful detainer.

Please excuse any typos, as this email was sent from my mobile device.

Thank you,

Joseph N. Alexander
LIESER SKAFF ALEXANDER, PLLC
511 W. Bay Street
Suite 350
Tampa, Florida 33606
Phone: (813) 280-1256
Fax: (813) 251-8715
Email: jalexander@lieserskaff.com
Web: www.lieserskaff.com http://www.lieserskaff.com/

On Apr 2, 2015 3:08 PM, "Dariel Abrahamy" Dariel.Abrahamy@gmlaw.com wrote:

I don’t necessarily agree that unlawful detention only applies to non-residential tenancies.  I think 82.02(2) and 82.02(4) simply mean that you can’t file an unlawful detention action if you have a residential landlord-tenant relationship.  Here, there is no landlord-tenant relationship between the tenant and his girlfriend. The landlord-tenant relationship exists between the tenant and his landlord.  To file an ejectment, you need to have a valid claim to legal title. The tenant doesn’t have legal title.

Unlawful detainer would be my recommendation. Richards v. Finley, 259 So.2d 167.

cid:image006.jpg@01CF99C8.29DF4240

Dariel Abrahamy, Esq.

Shareholder

200 E. Broward Blvd, Suite 1800

Fort Lauderdale, FL 33301

P: 954-491-1120; F: 954-343-6972

Dariel.Abrahamy@gmlaw.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Conrad Kahn
Sent: Thursday, April 02, 2015 2:03 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I believe unlawful detainee only applies to nonresidential tenancy.  See Fla. Stat. 82.02.  And eviction would be inappropriate too because there's no landlord-tenant relationship. Therefore, the proper cause of action is ejectment under chapter 66.  This must be filed in circuit court unfortunately.

On Apr 2, 2015 11:53 AM, "Anthony J. Horky" ahorky@horkylaw.com wrote:

Members:

I received a call from a tenant who signed a residential lease.  After taking possession, he allowed his girlfriend to move in who does not pay rent and did not sign the lease.  The relationship soured and now girlfriend refuses to leave.  I am of the opinion that although the tenant  is still in possession and entry by the girlfriend was lawful, her permission to remain in possession has been withdrawn and the tenant’s remedy is unlawful detainer.  Any feedback would be greatly appreciated.  Thank you.

Regards,

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F: 561.952.0096

www.horkylaw.com http://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.

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It never leaves unlawful detainer only.
Always do an alternative count for eviction.  You don’t know what she is going to say and you don’t know the comfort level of the judge with unlawful detainer.  You also have to think of the clerk and JA—they know eviction but not unlawful detainer.  There is theory and reality.  Reality holds that you always include a count for eviction.

Lainie J. Simon, Esq.
185 NW Spanish River Boulevard
Suite 220
Boca Raton, FL  33431
561.445.1361
561.997.6224(fax)

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On Apr 3, 2015, at 10:53 AM, Anthony J. Horky ahorky@horkylaw.com wrote:

Thank you everyone for your excellent input.

Based on the opposing views this seems to be a grey area.  I’m inclined to try unlawful detainer first but have recommended that the tenant attempt to pay the ex-girlfriend to leave.  There are several incidents of prior police calls so the references to a restraining order was well taken.  So was the comment that the landlord may find the tenant in breach and have them both removed.  I do not believe that ejectment is correct as there is no issue of who has better title to the residence, and eviction is not applicable because there is no rental agreement, oral or written, between the tenant and his girlfriend.  That leaves unlawful detainer only.

82.04 Remedy for unlawful detention.—
(1) If any person enters or has entered in a peaceable manner into any lands or tenements when the entry is lawful and after the expiration of the person’s right continues to hold them against the consent of the party entitled to possession, the party so entitled to possession is entitled to the summary procedure under s. 51.011 http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0051/Sections/0051.011.html, at any time within 3 years after the possession has been withheld from the party against his or her consent.
(2) This section shall not apply with regard to residential tenancies.

This is a case of two persons living in a residence, but for the girlfriend it is not a “residential tenancy.”  Although Chapter 82 does not apply to “residential tenancies” there is no such defined term under Chapters 82 or 83.  As I wrote in ActionLine last year, without a definition we should look to the terms under 83 that together can be used to define such a tenancy.  There is no indicia of such tenancy here. The girlfriend did not enter into a “rental agreement,” she is not a “tenant,” the tenant is not a “landlord,” and the girlfriend is not paying “rent.”  At the same time, the tenant is entitled to possession.

Regards,

<image002.png>
Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F: 561.952.0096

www.horkylaw.com http://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: ahorky@horkylaw.com mailto:ahorky@horkylaw.com.

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Thursday, April 02, 2015 3:38 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

Same here.  I've filed many unlawful detainer cases under Chapter 82 for various reasons, including facts similar to the case in discussion.  I would recommend Chapter 83, not Ejectment.

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: Joseph Alexander <jalexander@lieserskaff.com mailto:jalexander@lieserskaff.com>
To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.org mailto:landten@lists.flabarrpptl.org>
Sent: Thursday, April 2, 2015 3:22 PM
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I agree with Daniel and the others...unlawful detainer.
Please excuse any typos, as this email was sent from my mobile device.
Thank you,
Joseph N. Alexander
LIESER SKAFF ALEXANDER, PLLC
511 W. Bay Street
Suite 350
Tampa, Florida 33606
Phone: (813) 280-1256
Fax: (813) 251-8715
Email: jalexander@lieserskaff.com mailto:jalexander@lieserskaff.com
Web: www.lieserskaff.com http://www.lieserskaff.com/

On Apr 2, 2015 3:08 PM, "Dariel Abrahamy" <Dariel.Abrahamy@gmlaw.com mailto:Dariel.Abrahamy@gmlaw.com> wrote:
I don’t necessarily agree that unlawful detention only applies to non-residential tenancies.  I think 82.02(2) and 82.02(4) simply mean that you can’t file an unlawful detention action if you have a residential landlord-tenant relationship.  Here, there is no landlord-tenant relationship between the tenant and his girlfriend. The landlord-tenant relationship exists between the tenant and his landlord.  To file an ejectment, you need to have a valid claim to legal title. The tenant doesn’t have legal title.

Unlawful detainer would be my recommendation. Richards v. Finley, 259 So.2d 167.

<image003.jpg>
Dariel Abrahamy, Esq.
Shareholder
200 E. Broward Blvd, Suite 1800
Fort Lauderdale, FL 33301
P: 954-491-1120; F: 954-343-6972
Dariel.Abrahamy@gmlaw.com mailto:Dariel.Abrahamy@gmlaw.com

From: landten-bounces@lists.flabarrpptl.org mailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Conrad Kahn
Sent: Thursday, April 02, 2015 2:03 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I believe unlawful detainee only applies to nonresidential tenancy.  See Fla. Stat. 82.02.  And eviction would be inappropriate too because there's no landlord-tenant relationship. Therefore, the proper cause of action is ejectment under chapter 66.  This must be filed in circuit court unfortunately.
On Apr 2, 2015 11:53 AM, "Anthony J. Horky" <ahorky@horkylaw.com mailto:ahorky@horkylaw.com> wrote:
Members:
I received a call from a tenant who signed a residential lease.  After taking possession, he allowed his girlfriend to move in who does not pay rent and did not sign the lease.  The relationship soured and now girlfriend refuses to leave.  I am of the opinion that although the tenant  is still in possession and entry by the girlfriend was lawful, her permission to remain in possession has been withdrawn and the tenant’s remedy is unlawful detainer.  Any feedback would be greatly appreciated.  Thank you.

Regards,

<image004.png>
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F: 561.952.0096
www.horkylaw.com http://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: ahorky@horkylaw.com mailto: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.

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