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GH

Greg Hass

Fri, Feb 24, 2012 5:26 PM

Thanks Cary,

The LL in my hypo wouldn’t presume abandonment if all the rent had been paid in advance because the statute provides that the presumption does not apply if the rent is current – which it always would be in your scenario. In my hypo, the rent was not current on the day the LL arrived at his presumption (March 5th).

Greg

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 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

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Thanks Cary, The LL in my hypo wouldn’t presume abandonment if all the rent had been paid in advance because the statute provides that the presumption does not apply if the rent is current – which it always would be in your scenario. In my hypo, the rent was not current on the day the LL arrived at his presumption (March 5th). Greg 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 <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 [cid:image001.jpg@01C8B0EE.0B556530] _______________________________________________ landten mailing list landten@lists.flabarrpptl.org<mailto:landten@lists.flabarrpptl.org> http://mailman.fsr.com/mailman/listinfo/landten

AM

Alberto M. Cardet

Fri, Feb 24, 2012 6:53 PM

I say tenant wins, clock starts ticking in March after rent is not paid. Aside, from what the statute says, LL needs to exercise common sense, are the utilities still on, mail being delivered, all furniture and personal property in place? T may have good cause of action against LL. Interesting scenario, what if rent is behind but T’s absence caused because T has been arrested and does not bond out. I think I would still evict and remove belongings with Sheriff, to shield LL from any legal action by T.

AL

Alberto M. Cardet, P.A.

1330 Coral Way #301

Miami FL 33145

305-403-7783

305-403-7824 (fax)

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

cid:image001.jpg@01C8B0EE.0B556530

I say tenant wins, clock starts ticking in March after rent is not paid. Aside, from what the statute says, LL needs to exercise common sense, are the utilities still on, mail being delivered, all furniture and personal property in place? T may have good cause of action against LL. Interesting scenario, what if rent is behind but T’s absence caused because T has been arrested and does not bond out. I think I would still evict and remove belongings with Sheriff, to shield LL from any legal action by T. AL Alberto M. Cardet, P.A. 1330 Coral Way #301 Miami FL 33145 305-403-7783 305-403-7824 (fax) 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 cid:image001.jpg@01C8B0EE.0B556530

LO

Law Offices of Scott A. Frank

Fri, Feb 24, 2012 8:15 PM

Am I the only one who is not hooked into the meeting (meaning I typed in the wrong conference code twice), or is anyone else listening to this wonderful piano solo?

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.com

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: Friday, February 24, 2012 1:53 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Q regarding abandonment