[RPPTL LandTen] Eviction Question
Please see the attached contents of my personal form file on the issues of enforceability of late fee provisions in leases. It looks like the usury argument probably does not apply to a late fee in a lease but the late fee must meet the standards for a valid liquidated damages clause. In my personal opinion, a daily late fee or a late fee of 10% of the amount of the late payment is vulnerable to the argument that it is an unenforceable penalty rather than an enforceable liquidated damages provision.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Wednesday, January 11, 2012 1:32 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] residential lease late fees
Our FAR "Residential Lease for Single Family Home or Duplex" has a Section 6 dealing with late fees. It has blanks to be filled in for both the amount of the late fee and the number of days after rent is due that it becomes "late". If left blank, the default setting is 4% of the rent payment for each rent payment made 5 days after the rent is due if paid monthly.
I'm curious to hear what the committee members thoughts are as to what the maximum the late fee can be before it is deemed unconscionably high/usury by a judge and rendered unenforceable - has anyone seen any cases on this?
Thanks,
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
The Voice for Real Estate(r) in Florida
[cid:image001.jpg@01CCD90B.427FC840]
</pre>IRS CIRCULAR 230 NOTICE: Pursuant to recently enacted<br>U.S. Treasury Department Regulations, we are now required<br>to advise you that, unless otherwise expressly indicated,<br>any federal tax advice expressed above was neither<br>written nor intended by the sender or this firm to be<br>used and cannot be used by any taxpayer for the purpose <br>of avoiding penalties that may be imposed under U.S. tax <br>law. If any person uses or refers to any such tax advice<br>in promoting, marketing or recommending a partnership or<br>other entity, investment plan or arrangement to any <br>taxpayer, then the advice should be considered to have<br>been written to support the promotion or marketing by a <br>person other than the sender or this firm of that <br>transaction or matter, and such taxpayer should seek<br>advice based on the taxpayer's particular circumstances<br>from an independent tax advisor.<br><br><br>The information in this email transmission is privileged<br>and confidential. If you are not the intended recipient,<br>nor the employee or agent responsible for delivering it to<br>the intended recipient, you are hereby notified that any<br>dissemination or copying of this transmission (including<br>any attachments) is strictly prohibited. If you have<br>received this email in error, please notify the sender by<br>email reply. Thank you.<br><pre>
Arthur,
Thank you very much - that is great information!
Regards,
Greg
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arthur J. Menor
Sent: Sunday, January 22, 2012 1:42 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] residential lease late fees
Please see the attached contents of my personal form file on the issues of enforceability of late fee provisions in leases. It looks like the usury argument probably does not apply to a late fee in a lease but the late fee must meet the standards for a valid liquidated damages clause. In my personal opinion, a daily late fee or a late fee of 10% of the amount of the late payment is vulnerable to the argument that it is an unenforceable penalty rather than an enforceable liquidated damages provision.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Wednesday, January 11, 2012 1:32 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] residential lease late fees
Our FAR "Residential Lease for Single Family Home or Duplex" has a Section 6 dealing with late fees. It has blanks to be filled in for both the amount of the late fee and the number of days after rent is due that it becomes "late". If left blank, the default setting is 4% of the rent payment for each rent payment made 5 days after the rent is due if paid monthly.
I'm curious to hear what the committee members thoughts are as to what the maximum the late fee can be before it is deemed unconscionably high/usury by a judge and rendered unenforceable - has anyone seen any cases on this?
Thanks,
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
The Voice for Real Estate(r) in Florida
Great stuff. Thank you Art.
Regards,
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: http://www.horkylaw.com www.horkylaw.com
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received this communication in error, please delete all electronic copies of
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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Arthur J. Menor
Sent: Sunday, January 22, 2012 1:42 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] residential lease late fees
Please see the attached contents of my personal form file on the issues of
enforceability of late fee provisions in leases. It looks like the usury
argument probably does not apply to a late fee in a lease but the late fee
must meet the standards for a valid liquidated damages clause. In my
personal opinion, a daily late fee or a late fee of 10% of the amount of the
late payment is vulnerable to the argument that it is an unenforceable
penalty rather than an enforceable liquidated damages provision.
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Wednesday, January 11, 2012 1:32 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] residential lease late fees
Our FAR "Residential Lease for Single Family Home or Duplex" has a Section 6
dealing with late fees. It has blanks to be filled in for both the amount
of the late fee and the number of days after rent is due that it becomes
"late". If left blank, the default setting is 4% of the rent payment for
each rent payment made 5 days after the rent is due if paid monthly.
I'm curious to hear what the committee members thoughts are as to what the
maximum the late fee can be before it is deemed unconscionably high/usury by
a judge and rendered unenforceable - has anyone seen any cases on this?
Thanks,
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
The Voice for Real EstateR in Florida
Happy Friday everyone.
I have a quick hypothetical to pose – please assume the facts are as follows:
-Tenants have paid their February rent in full on the due date of February 1st.
-Tenants leave for a 3 week cruise on Valentine’s Day – they don’t inform the LL of their plans.
-On March 1st, Tenants are still on their cruise and the March rent (due on March 1st) goes unpaid.
-On March 6th, Tenants get back from their 3 week cruise and find that the locks have been changed.
-When Tenants confront the LL he says he recovered possession of the dwelling unit on March 5th because he presumed the Tenants had abandoned.
LL argues he was within his rights to presume abandonment pursuant to 83.59 (3)(c) (see below) because on March 5th, the day he retook possession, no one had seen hide nor hair of the Tenants for over half a month. In addition, when he arrived at his presumption of abandonment, he checked to see if the rent was current and in fact it was not current since no rent was paid on March 1st. LL also checked and could find no notice of any intended absence from the Tenants. Thus, LL argues he met the test for presumption of abandonment.
Tenants on the other hand argue that the clock for presumed abandonment should not have started ticking until the rent was not current. They argue that they were only really absent for 5 days for purposes of the presumption of abandonment test (March 1st to March 5th) since their rent was current from February 14th through February 29th.
Who wins this fight?
Thanks,
Greg
83.59 Right of action for possession.—
(3) The landlord shall not recover possession of a dwelling unit except:
(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or
Greg Hass, Senior Counsel
Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org
The Voice for Real Estate® in Florida
Is there a continuous operating covenant? Were the premises cleaned out or left in a state that suggests just a temporary closure with personalty etc. still in place?
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Friday, February 24, 2012 11:55 AM
To: RPPTL Landlord Tenant Committee
Cc: Ryan Parker
Subject: [RPPTL LandTen] Q regarding abandonment
Happy Friday everyone.
I have a quick hypothetical to pose – please assume the facts are as follows:
-Tenants have paid their February rent in full on the due date of February 1st.
-Tenants leave for a 3 week cruise on Valentine’s Day – they don’t inform the LL of their plans.
-On March 1st, Tenants are still on their cruise and the March rent (due on March 1st) goes unpaid.
-On March 6th, Tenants get back from their 3 week cruise and find that the locks have been changed.
-When Tenants confront the LL he says he recovered possession of the dwelling unit on March 5th because he presumed the Tenants had abandoned.
LL argues he was within his rights to presume abandonment pursuant to 83.59 (3)(c) (see below) because on March 5th, the day he retook possession, no one had seen hide nor hair of the Tenants for over half a month. In addition, when he arrived at his presumption of abandonment, he checked to see if the rent was current and in fact it was not current since no rent was paid on March 1st. LL also checked and could find no notice of any intended absence from the Tenants. Thus, LL argues he met the test for presumption of abandonment.
Tenants on the other hand argue that the clock for presumed abandonment should not have started ticking until the rent was not current. They argue that they were only really absent for 5 days for purposes of the presumption of abandonment test (March 1st to March 5th) since their rent was current from February 14th through February 29th.
Who wins this fight?
Thanks,
Greg
83.59 Right of action for possession.—
(3) The landlord shall not recover possession of a dwelling unit except:
(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or
Greg Hass, Senior Counsel
Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org
The Voice for Real Estate® in Florida
I tell my clients the abandonment clock starts ticking when the rent is past due.
i.e. 15 days rent past due and unpaid and no sign of the tenant.
I feel the tenant wins but you could argue the other way.
Did the ll give back possession?
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 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: Friday, February 24, 2012 11:55 AM
To: RPPTL Landlord Tenant Committee
Cc: Ryan Parker
Subject: [RPPTL LandTen] Q regarding abandonment
Happy Friday everyone.
I have a quick hypothetical to pose – please assume the facts are as follows:
-Tenants have paid their February rent in full on the due date of February 1st.
-Tenants leave for a 3 week cruise on Valentine’s Day – they don’t inform the LL of their plans.
-On March 1st, Tenants are still on their cruise and the March rent (due on March 1st) goes unpaid.
-On March 6th, Tenants get back from their 3 week cruise and find that the locks have been changed.
-When Tenants confront the LL he says he recovered possession of the dwelling unit on March 5th because he presumed the Tenants had abandoned.
LL argues he was within his rights to presume abandonment pursuant to 83.59 (3)(c) (see below) because on March 5th, the day he retook possession, no one had seen hide nor hair of the Tenants for over half a month. In addition, when he arrived at his presumption of abandonment, he checked to see if the rent was current and in fact it was not current since no rent was paid on March 1st. LL also checked and could find no notice of any intended absence from the Tenants. Thus, LL argues he met the test for presumption of abandonment.
Tenants on the other hand argue that the clock for presumed abandonment should not have started ticking until the rent was not current. They argue that they were only really absent for 5 days for purposes of the presumption of abandonment test (March 1st to March 5th) since their rent was current from February 14th through February 29th.
Who wins this fight?
Thanks,
Greg
83.59 Right of action for possession.—
(3) The landlord shall not recover possession of a dwelling unit except:
(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or
Greg Hass, Senior Counsel
Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org
The Voice for Real Estate® in Florida
I'm going with the tenant on this one. The abandonment clock starts running once the tenant is in default. Under the L/L's argument, tenant could pay all their rent in advance, go on vaca, and the L/L could still take back possession. That doesn't carry any logic. Furthermore, under your facts, there is no evidence of abandonment (i.e. moving out possession).
I would suggest the L/L immediately give back possession.
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: Greg Hass GregH@floridarealtors.org
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Cc: Ryan Parker ryanp@floridarealtors.org
Sent: Friday, February 24, 2012 11:55 AM
Subject: [RPPTL LandTen] Q regarding abandonment
Happy Friday everyone.
I have a quick hypothetical to pose – please assume the facts are as follows:
-Tenants have paid their February rent in full on the due date of February 1st.
-Tenants leave for a 3 week cruise on Valentine’s Day – they don’t inform the LL of their plans.
-On March 1st, Tenants are still on their cruise and the March rent (due on March 1st) goes unpaid.
-On March 6th, Tenants get back from their 3 week cruise and find that the locks have been changed.
-When Tenants confront the LL he says he recovered possession of the dwelling unit on March 5th because he presumed the Tenants had abandoned.
LL argues he was within his rights to presume abandonment pursuant to 83.59 (3)(c) (see below) because on March 5th, the day he retook possession, no one had seen hide nor hair of the Tenants for over half a month. In addition, when he arrived at his presumption of abandonment, he checked to see if the rent was current and in fact it was not current since no rent was paid on March 1st. LL also checked and could find no notice of any intended absence from the Tenants. Thus, LL argues he met the test for presumption of abandonment.
Tenants on the other hand argue that the clock for presumed abandonment should not have started ticking until the rent was not current. They argue that they were only really absent for 5 days for purposes of the presumption of abandonment test (March 1st to March 5th) since their rent was current from February 14th through February 29th.
Who wins this fight?
Thanks,
Greg
83.59 Right of action for possession.—
(3) The landlord shall not recover possession of a dwelling unit except:
(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or
Greg Hass, Senior Counsel
Office of Law & Policy |FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk:407.438.1400, ext. 2421
visit:http://www.floridarealtors.org
The Voice for Real Estate® in Florida
landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
David,
Please assume it’s a residential lease with no continuous operating covenant. Also, assume the premises look like Tenants took off in a relative hurry to catch a cruise.
Thanks,
Greg
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Drobner, David S.
Sent: Friday, February 24, 2012 12:00 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Q regarding abandonment
Is there a continuous operating covenant? Were the premises cleaned out or left in a state that suggests just a temporary closure with personalty etc. still in place?
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Greg Hass
Sent: Friday, February 24, 2012 11:55 AM
To: RPPTL Landlord Tenant Committee
Cc: Ryan Parker
Subject: [RPPTL LandTen] Q regarding abandonment
Happy Friday everyone.
I have a quick hypothetical to pose – please assume the facts are as follows:
-Tenants have paid their February rent in full on the due date of February 1st.
-Tenants leave for a 3 week cruise on Valentine’s Day – they don’t inform the LL of their plans.
-On March 1st, Tenants are still on their cruise and the March rent (due on March 1st) goes unpaid.
-On March 6th, Tenants get back from their 3 week cruise and find that the locks have been changed.
-When Tenants confront the LL he says he recovered possession of the dwelling unit on March 5th because he presumed the Tenants had abandoned.
LL argues he was within his rights to presume abandonment pursuant to 83.59 (3)(c) (see below) because on March 5th, the day he retook possession, no one had seen hide nor hair of the Tenants for over half a month. In addition, when he arrived at his presumption of abandonment, he checked to see if the rent was current and in fact it was not current since no rent was paid on March 1st. LL also checked and could find no notice of any intended absence from the Tenants. Thus, LL argues he met the test for presumption of abandonment.
Tenants on the other hand argue that the clock for presumed abandonment should not have started ticking until the rent was not current. They argue that they were only really absent for 5 days for purposes of the presumption of abandonment test (March 1st to March 5th) since their rent was current from February 14th through February 29th.
Who wins this fight?
Thanks,
Greg
83.59 Right of action for possession.—
(3) The landlord shall not recover possession of a dwelling unit except:
(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or
Greg Hass, Senior Counsel
Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org
The Voice for Real Estate® in Florida
Thanks Harry,
Just a hypothetical based on a debate we were having in the office. No Tenants have been harmed in this exercise ☺
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Friday, February 24, 2012 12:07 PM
To: 'RPPTL Landlord Tenant Committee'
Cc: Ryan Parker
Subject: Re: [RPPTL LandTen] Q regarding abandonment
I tell my clients the abandonment clock starts ticking when the rent is past due.
i.e. 15 days rent past due and unpaid and no sign of the tenant.
I feel the tenant wins but you could argue the other way.
Did the ll give back possession?
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.comhttp://www.evict.com/
Email: harry@evict.commailto: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: Friday, February 24, 2012 11:55 AM
To: RPPTL Landlord Tenant Committee
Cc: Ryan Parker
Subject: [RPPTL LandTen] Q regarding abandonment
Happy Friday everyone.
I have a quick hypothetical to pose – please assume the facts are as follows:
-Tenants have paid their February rent in full on the due date of February 1st.
-Tenants leave for a 3 week cruise on Valentine’s Day – they don’t inform the LL of their plans.
-On March 1st, Tenants are still on their cruise and the March rent (due on March 1st) goes unpaid.
-On March 6th, Tenants get back from their 3 week cruise and find that the locks have been changed.
-When Tenants confront the LL he says he recovered possession of the dwelling unit on March 5th because he presumed the Tenants had abandoned.
LL argues he was within his rights to presume abandonment pursuant to 83.59 (3)(c) (see below) because on March 5th, the day he retook possession, no one had seen hide nor hair of the Tenants for over half a month. In addition, when he arrived at his presumption of abandonment, he checked to see if the rent was current and in fact it was not current since no rent was paid on March 1st. LL also checked and could find no notice of any intended absence from the Tenants. Thus, LL argues he met the test for presumption of abandonment.
Tenants on the other hand argue that the clock for presumed abandonment should not have started ticking until the rent was not current. They argue that they were only really absent for 5 days for purposes of the presumption of abandonment test (March 1st to March 5th) since their rent was current from February 14th through February 29th.
Who wins this fight?
Thanks,
Greg
83.59 Right of action for possession.—
(3) The landlord shall not recover possession of a dwelling unit except:
(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or
Greg Hass, Senior Counsel
Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org
The Voice for Real Estate® in Florida
Since you referred to a residential section, I assume this is a residence.
The statute says:
"... In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if
he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments.
However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or
The presumption cannot have applied until the rent deadline in March.
Jeff
Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd., Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax: 954-962-3560
Email: JMazor@Mazor.com
-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, February 24, 2012 12:12 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Q regarding abandonment
I'm going with the tenant on this one. The abandonment clock starts running once the tenant is in default. Under the L/L's argument, tenant could pay all their rent in advance, go on vaca, and the L/L could still take back possession. That doesn't carry any logic. Furthermore, under your facts, there is no evidence of abandonment (i.e. moving out possession).
I would suggest the L/L immediately give back possession.
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: Greg Hass < mailto:GregH@floridarealtors.org GregH@floridarealtors.org>
To: RPPTL Landlord Tenant Committee < mailto:landten@lists.flabarrpptl.org landten@lists.flabarrpptl.org>
Cc: Ryan Parker < mailto:ryanp@floridarealtors.org ryanp@floridarealtors.org>
Sent: Friday, February 24, 2012 11:55 AM
Subject: [RPPTL LandTen] Q regarding abandonment
Happy Friday everyone.
I have a quick hypothetical to pose – please assume the facts are as follows:
-Tenants have paid their February rent in full on the due date of February 1st.
-Tenants leave for a 3 week cruise on Valentine’s Day – they don’t inform the LL of their plans.
-On March 1st, Tenants are still on their cruise and the March rent (due on March 1st) goes unpaid.
-On March 6th, Tenants get back from their 3 week cruise and find that the locks have been changed.
-When Tenants confront the LL he says he recovered possession of the dwelling unit on March 5th because he presumed the Tenants had abandoned.
LL argues he was within his rights to presume abandonment pursuant to 83.59 (3)(c) (see below) because on March 5th, the day he retook possession, no one had seen hide nor hair of the Tenants for over half a month. In addition, when he arrived at his presumption of abandonment, he checked to see if the rent was current and in fact it was not current since no rent was paid on March 1st. LL also checked and could find no notice of any intended absence from the Tenants. Thus, LL argues he met the test for presumption of abandonment.
Tenants on the other hand argue that the clock for presumed abandonment should not have started ticking until the rent was not current. They argue that they were only really absent for 5 days for purposes of the presumption of abandonment test (March 1st to March 5th) since their rent was current from February 14th through February 29th.
Who wins this fight?
Thanks,
Greg
83.59 Right of action for possession.—
(3) The landlord shall not recover possession of a dwelling unit except:
(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or
Greg Hass, Senior Counsel
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