Empathy List Archives

GH

Greg Hass

Tue, Dec 22, 2009 5:16 PM

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

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

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

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

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

However, Section 83.17 provides that any provision in a rental agreement
is void and unenforceable to the extent that it purports to waive or
preclude the rights, remedies, or requirements set forth in this part,
etc.

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

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

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

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

Thanks for your comments in advance.

Regards,

Greg

Greg Hass, Senior Counsel

Office of Law & Policy

Florida REALTORS(r)

7025 Augusta National Drive

Orlando, FL 32872-5025

Ph: (407) 438-1400

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

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

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

Curious to hear the committee members' thoughts on the question I got today. Apparently a T of a condo unit is holding over beyond the termination date of their written lease with LL. LL wants them out and notifies their condo association that T is a squatter. Association then sends letter to T saying the association will be changing the locks because their rules require that there must be a valid/current written lease on file with the association and there no longer is a current lease. The question I have is can a condo association lawfully engage in what would be considered "prohibited practices" for a landlord under the LL/T statute? Here are some of the statutes that I think may come into play: Section 83.67 (2) provides that a "...a landlord of any dwelling unit...shall not prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks..." Section 718.303 provides that Tenants are governed by the condo docs and they are deemed incorporated into any lease. However, Section 83.17 provides that any provision in a rental agreement is void and unenforceable to the extent that it purports to waive or preclude the rights, remedies, or requirements set forth in this part, etc. Under 83.58 the remedy for a tenant holding over is for the Landlord to file for an eviction. Section 718.303 also provides that an association or unit owner may file an action for "damages" or "injunctive relief" against a tenant. 718.106 provides that "...when a unit is leased, a tenant shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners..." Does the fact that 718.303 provides for the filing of actions for damages and injunctive relief against Tenants imply that other actions (such as changing locks, cutting off electricity, etc) would be prohibited? Would it be possible to argue that the LL should be held responsible for the actions of his association (of which the LL is a member) and therefore claim damages for prohibited practices under 83.67(6)? Note that 83.67 (1) uses the phrase "...shall not cause, directly or indirectly, ..." Is the LL "indirectly" engaging in prohibited practices where he stands by and perhaps even encourages his association to engage in what would be prohibited practices if the LL were to take the action directly? Thanks for your comments in advance. Regards, Greg Greg Hass, Senior Counsel Office of Law & Policy Florida REALTORS(r) 7025 Augusta National Drive Orlando, FL 32872-5025 Ph: (407) 438-1400 GregH@FAR.org <mailto:GregH@FAR.org> LEGAL DISCLAIMER: The information transmitted is intended solely for the individual or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of or taking action in reliance upon this information by persons or entities other than the intended recipient is prohibited. If you have received this email in error please contact the sender and delete the material from any computer. Florida Realtors(r) A brand new real estate organization with 93 years of experience! http://www.floridarealtors.org <http://www.floridarealtors.org>

H

harry (at) evict.com

Tue, Dec 22, 2009 5:27 PM

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

Harry Heist

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

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

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

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

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

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

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

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

However, Section 83.17 provides that any provision in a rental agreement is
void and unenforceable to the extent that it purports to waive or preclude
the rights, remedies, or requirements set forth in this part, etc.

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

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

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

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

Thanks for your comments in advance.

Regards,

Greg

Greg Hass, Senior Counsel

Office of Law & Policy

Florida REALTORSR

7025 Augusta National Drive

Orlando, FL 32872-5025

Ph: (407) 438-1400

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

cid:image001.jpg@01C8B0EE.0B556530

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

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

The landlord needs to file an eviction. No lockout is legal. The tenant is a holdover if the tenancy was properly terminated by the lease or by proper notice, if necessary, from the landlord. The association has no right to deny the tenant access but may have a right to file an eviction on behalf of the unit owner if stated in the docs. The landlord would be wise to have an attorney file the eviction as it will be less complex and cheaper. Harry Heist LAW OFFICES OF HEIST, WEISSE & DAVIS, P.A. PH: 1 800 253 8428 FAX: 1 800 367 9038 "Serving the Property Management Professional" Website: www.evict.com <http://www.evict.com/> Email: harry@evict.com THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED. From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass Sent: Tuesday, December 22, 2009 12:17 PM To: landten@lists.flabarrpptl.org Subject: [RPPTL LandTen] Condo changing locks on Tenants Curious to hear the committee members' thoughts on the question I got today. Apparently a T of a condo unit is holding over beyond the termination date of their written lease with LL. LL wants them out and notifies their condo association that T is a squatter. Association then sends letter to T saying the association will be changing the locks because their rules require that there must be a valid/current written lease on file with the association and there no longer is a current lease. The question I have is can a condo association lawfully engage in what would be considered "prohibited practices" for a landlord under the LL/T statute? Here are some of the statutes that I think may come into play: Section 83.67 (2) provides that a ".a landlord of any dwelling unit.shall not prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks." Section 718.303 provides that Tenants are governed by the condo docs and they are deemed incorporated into any lease. However, Section 83.17 provides that any provision in a rental agreement is void and unenforceable to the extent that it purports to waive or preclude the rights, remedies, or requirements set forth in this part, etc. Under 83.58 the remedy for a tenant holding over is for the Landlord to file for an eviction. Section 718.303 also provides that an association or unit owner may file an action for "damages" or "injunctive relief" against a tenant. 718.106 provides that ".when a unit is leased, a tenant shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners." Does the fact that 718.303 provides for the filing of actions for damages and injunctive relief against Tenants imply that other actions (such as changing locks, cutting off electricity, etc) would be prohibited? Would it be possible to argue that the LL should be held responsible for the actions of his association (of which the LL is a member) and therefore claim damages for prohibited practices under 83.67(6)? Note that 83.67 (1) uses the phrase ".shall not cause, directly or indirectly, ." Is the LL "indirectly" engaging in prohibited practices where he stands by and perhaps even encourages his association to engage in what would be prohibited practices if the LL were to take the action directly? Thanks for your comments in advance. Regards, Greg Greg Hass, Senior Counsel Office of Law & Policy Florida REALTORSR 7025 Augusta National Drive Orlando, FL 32872-5025 Ph: (407) 438-1400 <mailto:GregH@FAR.org> GregH@FAR.org cid:image001.jpg@01C8B0EE.0B556530 LEGAL DISCLAIMER: The information transmitted is intended solely for the individual or entity to which it is addressed and may contain confidential and/or privileged material. Any review, retransmission, dissemination or other use of or taking action in reliance upon this information by persons or entities other than the intended recipient is prohibited. If you have received this email in error please contact the sender and delete the material from any computer. Florida RealtorsR A brand new real estate organization with 93 years of experience! <http://www.floridarealtors.org> http://www.floridarealtors.org

GH

Greg Hass

Tue, Dec 22, 2009 5:42 PM

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

Regards,

Greg

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

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