As you all know, we have been asked to provide input as to a possible review
and revision of Part 2 of Section 83, the Residential Landlord Tenant Act.
As Neil mentioned earlier this review by the legislature is not of any
specific issue or by any particular constituency, more of part of a list of
issues that has pending for a while and has been picked for review this
session.  It may or may not go anywhere this session, depending on if it
gets sponsored.  Also, time is short as we must respond within the next 2 -3
weeks.

What we are looking for from our members is not a re-write of the statute or
specific language, but something more along the lines of either bullet
points or a short narrative as to recurring issues and how they can be
resolved.  We need to provide the net result we would like to see from a
change in the statute not actual language.

Please email me directly acardet@justice.com your specific issue(s) so that
I may compile a list, time permitting we may briefly discuss them at our
Thursday meeting.  We would like to schedule a phone conference for late
next week so that we can discuss our list of issues in more detail.

Thank you

Albert

Alberto M. Cardet, P.A.

1330 Coral Way #301

Miami FL 33145

305-403-7783

305-403-7824 (fax)

This is a good opportunity for those of you practicing in the Residential area to give input on problems in the Statute you see on a daily basis.  Some of the suggested areas for input include notice requirements, maintenance obligations, simplification of otherwise confusing provisions.  Your input to Alberto and his subcommittee is appreciated.

Neil

[http://www.shutts.com/shutts100.jpg]
Neil B. Shoter
Partner / LEED Accredited Professional

Shutts & Bowen LLP
1100 CityPlace Tower, 525 Okeechobee Boulevard | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mailmailto:NShoter@shutts.com | Biographyhttp://www.shutts.com/attorneys-Neil-Shoter.html | V-Cardhttp://www.shutts.com/vcard-181.vcf | Websitehttp://www.shutts.com/

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M. Cardet
Sent: Monday, August 01, 2011 12:03 PM
To: landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Review Res LL-T Act

As you all know, we have been asked to provide input as to a possible review and revision of Part 2 of Section 83, the Residential Landlord Tenant Act.  As Neil mentioned earlier this review by the legislature is not of any specific issue or by any particular constituency, more of part of a list of issues that has pending for a while and has been picked for review this session.  It may or may not go anywhere this session, depending on if it gets sponsored.  Also, time is short as we must respond within the next 2 -3 weeks.

What we are looking for from our members is not a re-write of the statute or specific language, but something more along the lines of either bullet points or a short narrative as to recurring issues and how they can be resolved.  We need to provide the net result we would like to see from a change in the statute not actual language.

Please email me directly acardet@justice.commailto:acardet@justice.com your specific issue(s) so that I may compile a list, time permitting we may briefly discuss them at our Thursday meeting.  We would like to schedule a phone conference for late next week so that we can discuss our list of issues in more detail.

Thank you

Albert

Alberto M. Cardet, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783
305-403-7824 (fax)

</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>

Section 83.56 (3) Sets forth the three day notice. The section provides that the notice shall 'contain a statement in substantially the following form:'

Tenant defense lawyers get many cases thrown out for minor deficiencies in this statement. I suggest some language that would soften this result so that a tenant who does not pay cannot get more free time. For example, make the Tenant post the rent in order to challenge these deficiencies rather than subject the case to dismissal.

David  Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
Phone 954-491-1120
Toll Free 888-491-1120
Direct Phone 954-343-6941
Direct Fax 954-343-6942

[cid:image001.jpg@01CC5057.A59C4300]

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M. Cardet
Sent: Monday, August 01, 2011 12:03 PM
To: landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Review Res LL-T Act

As you all know, we have been asked to provide input as to a possible review and revision of Part 2 of Section 83, the Residential Landlord Tenant Act.  As Neil mentioned earlier this review by the legislature is not of any specific issue or by any particular constituency, more of part of a list of issues that has pending for a while and has been picked for review this session.  It may or may not go anywhere this session, depending on if it gets sponsored.  Also, time is short as we must respond within the next 2 -3 weeks.

What we are looking for from our members is not a re-write of the statute or specific language, but something more along the lines of either bullet points or a short narrative as to recurring issues and how they can be resolved.  We need to provide the net result we would like to see from a change in the statute not actual language.

Please email me directly acardet@justice.commailto:acardet@justice.com your specific issue(s) so that I may compile a list, time permitting we may briefly discuss them at our Thursday meeting.  We would like to schedule a phone conference for late next week so that we can discuss our list of issues in more detail.

Thank you

Albert

Alberto M. Cardet, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783
305-403-7824 (fax)

The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have
received this communication in error, please notify us immediately by reply e-mail.

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.

Someone please tell me I'm wrong.

Assume a residential lease prohibits the tenant from damaging the Landlord's
property; the Tenant does so anyway and thereafter refuses to pay for the
repairs but pays (and the landlord accepts) the accruing regular monthly
rent.  Later, the Landlord does a 7 day cure notice; the Tenant ignores it
and instead pays and the Landlord accepts the next month's rent.

Eventually, the Landlord decides to sue. In light of Florida Statutes,
Section 83.56(5)*, it seems that the Landlord has lost any remedies he may
have had. For example:

Can he sue for possession?

Can he sue for money damages alone?

If by accepting the rental payments the Landlord has waived all remedies,
then we need to try to change the section. It would be crazy to force a
Landlord to chose immediately between suing a Tenant and losing the right to
sue.

See the below copy of Enderby v. Blades.

• FS 83.56(5) If the landlord accepts rent with actual knowledge of a
  noncompliance by the tenant or accepts performance by the tenant of any
  other provision of the rental agreement that is at variance with its
  provisions, or if the tenant pays rent with actual knowledge of a
  noncompliance by the landlord or accepts performance by the landlord of any
  other provision of the rental agreement that is at variance with its
  provisions, the landlord or tenant waives his or her right to terminate the
  rental agreement or to bring a civil action for that noncompliance, but not
  for any subsequent or continuing noncompliance. Any tenant who wishes to
  defend against an action by the landlord for possession of the unit for
  noncompliance of the rental agreement or of relevant statutes shall comply
  with the provisions in s. 83.60(2). The court may not set a date for
  mediation or trial unless the provisions of s. 83.60(2) have been met, but
  shall enter a default judgment for removal of the tenant with a writ of
  possession to issue immediately if the tenant fails to comply with s.
  83.60(2). This subsection does not apply to that portion of rent subsidies
  received from a local, state, or national government or an agency of local,
  state, or national government; however, waiver will occur if an action has
  not been instituted within 45 days of the noncompliance.

**

7 Fla. L. Weekly Supp. 413b

Landlord-tenant -- Eviction -- Landlord waived right to evict tenants for
non-compliance where landlord accepted and cashed tenant's rental payment --
Complaint for tenant eviction dismissed without leave to amend

RALPH T. ENDERBY, Plaintiff, vs. MONICA BLADES, NEGUS VICKERS and LATISHA
WILSON, Defendants. County Court, 17th Judicial Circuit in and for Broward
County. Case No. 00-01927 COWE. March 21, 2000. Jane Fishman, Judge.
Counsel: Charles L. Simon, C.L. Simon, P.A., Ft. Lauderdale, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION

TO DISMISS PLAINTIFF'S COMPLAINT

WITHOUT LEAVE TO AMEND

THIS CAUSE, having come before the Court for hearing on March 17, 2000 on
Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to Amend,
and the Court having heard the arguments and testimony provided and
otherwise being fully informed in the premises, the Court does hereby

ORDER, FIND AND ADJUDGE as follows:

1. Plaintiff filed a Complaint for tenant eviction against Defendants on
   March 1, 2000 based on a Seven-Day Notice dated February 21, 2000 that
   terminated Defendants' lease effective immediately, and gave Defendants
   seven (7) days to vacate the premises.

2. On or about March 8, 2000 Defendants tendered the March, 2000 rent to
   Plaintiff, and Plaintiff acknowledged in Open Court that he accepted and
   cashed said rent payment. The canceled check shows that it was deposited on
   March 10, 2000 and paid on March 13, 2000.

3. Section 83.56(5) of the Florida Statutes, provides that ``[i]f the
   landlord accepts rent with actual knowledge of non-compliance by the
   tenant... the landlord waives his right to terminate the rental agreement or
   to bring a civil action for that non-compliance.'' Pursuant to Section
   83.56(5), Plaintiff waived his right to evict Defendants based on the
   grounds stated or referred to in the February 23, 2000 Seven-Day Notice.
   Moskos vs. Hand, 247 So. 2d 795 (4th DCA 1971). The In Apartments vs. Lisa
   McGauley and Allen Bryant, Case No. 98-3771 COWE (80), 5 F.L.W. Supp. 848b,
   decided by Judge Steven B. Shutter on June 22, 1998. Deerfield East
   Associated, Ltd. vs. Sara Cooper, Case No. 96-18097, Judge Jay S. Spechler
   (November 5, 1996). Homefinders vs. John (Sean, Malloy, Case No. 97-1208,
   Judge Jay S. Spechler (February 4, 1997). Jonathan Scott vs. Regina Jordan
   and Robert Lee Wilson, Case No. 97-16156, Judge Zebedee W. Wright (November
   25, 1997). San Marco Partners, L.C. vs. Jennifer Wright, Case No. 98-2115
   COCE (56) [5 Fla. L. Weekly Supp. 630b], Judge Ronald Rothschild (March 5,
   1998).

4. Due to Plaintiff's acceptance of rent, there is no need for this Court to
   render an opinion as to whether Plaintiff's Seven-Day Notice dated February
   21, 2000 fails to comply with the statutory requirements of Section 83.56(2)
   of the Florida Statutes, for the reasons noted in Defendants' Motion to
   Dismiss.

5. Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to
   Amend is hereby granted.

6. Defendants are the prevailing parties in this action.

7. Defendants' counsel, Charles L. Simon, is entitled to recover reasonable
   attorneys' fees of and from Plaintiff RALPH T. ENDERBY.

8. The Court retains jurisdiction to award costs, including reasonable
   attorneys' fees against Plaintiff.

A more common issue in the same vein is when a tenant owes a past due water
bill or electric bill and the landlord continues to accept rent.

I don't know the answer but tell my clients that if they accept rent with
knowledge of a continuing noncompliance, they may have waived their rights.
In the case of a past due elect bill type continuing noncompliance, if they
accept rent, I feel they can't take action that month. I tell them to serve
the 7 Day Cure the next month and if they want to proceed, refuse rent and
especially do not serve a Three Day.  I am not sure that a damage like a
broken window is a "continuing noncompliance".

Although it is a problem for landlords, it also can be unfair burden to a
tenant if a landlord is forced to evict for a $150 electric bill and can't
choose to accept rent and deal with the electric bill later.

Harry

LAW OFFICES OF
HEIST, WEISSE, DAVIS & 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 Jeff Mazor
Sent: Tuesday, August 02, 2011 2:25 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res
LL-T Act

Someone please tell me I'm wrong.

Assume a residential lease prohibits the tenant from damaging the Landlord's
property; the Tenant does so anyway and thereafter refuses to pay for the
repairs but pays (and the landlord accepts) the accruing regular monthly
rent.  Later, the Landlord does a 7 day cure notice; the Tenant ignores it
and instead pays and the Landlord accepts the next month's rent.

Eventually, the Landlord decides to sue. In light of Florida Statutes,
Section 83.56(5)*, it seems that the Landlord has lost any remedies he may
have had. For example:

Can he sue for possession?

Can he sue for money damages alone?

If by accepting the rental payments the Landlord has waived all remedies,
then we need to try to change the section. It would be crazy to force a
Landlord to chose immediately between suing a Tenant and losing the right to
sue.

See the below copy of Enderby v. Blades.

• FS 83.56(5) If the landlord accepts rent with actual knowledge of a
  noncompliance by the tenant or accepts performance by the tenant of any
  other provision of the rental agreement that is at variance with its
  provisions, or if the tenant pays rent with actual knowledge of a
  noncompliance by the landlord or accepts performance by the landlord of any
  other provision of the rental agreement that is at variance with its
  provisions, the landlord or tenant waives his or her right to terminate the
  rental agreement or to bring a civil action for that noncompliance, but not
  for any subsequent or continuing noncompliance. Any tenant who wishes to
  defend against an action by the landlord for possession of the unit for
  noncompliance of the rental agreement or of relevant statutes shall comply
  with the provisions in s. 83.60(2). The court may not set a date for
  mediation or trial unless the provisions of s. 83.60(2) have been met, but
  shall enter a default judgment for removal of the tenant with a writ of
  possession to issue immediately if the tenant fails to comply with s.
  83.60(2). This subsection does not apply to that portion of rent subsidies
  received from a local, state, or national government or an agency of local,
  state, or national government; however, waiver will occur if an action has
  not been instituted within 45 days of the noncompliance.

**

7 Fla. L. Weekly Supp. 413b

Landlord-tenant -- Eviction -- Landlord waived right to evict tenants for
non-compliance where landlord accepted and cashed tenant's rental payment --
Complaint for tenant eviction dismissed without leave to amend

RALPH T. ENDERBY, Plaintiff, vs. MONICA BLADES, NEGUS VICKERS and LATISHA
WILSON, Defendants. County Court, 17th Judicial Circuit in and for Broward
County. Case No. 00-01927 COWE. March 21, 2000. Jane Fishman, Judge.
Counsel: Charles L. Simon, C.L. Simon, P.A., Ft. Lauderdale, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION

TO DISMISS PLAINTIFF'S COMPLAINT

WITHOUT LEAVE TO AMEND

THIS CAUSE, having come before the Court for hearing on March 17, 2000 on
Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to Amend,
and the Court having heard the arguments and testimony provided and
otherwise being fully informed in the premises, the Court does hereby

ORDER, FIND AND ADJUDGE as follows:

1. Plaintiff filed a Complaint for tenant eviction against Defendants on
   March 1, 2000 based on a Seven-Day Notice dated February 21, 2000 that
   terminated Defendants' lease effective immediately, and gave Defendants
   seven (7) days to vacate the premises.

2. On or about March 8, 2000 Defendants tendered the March, 2000 rent to
   Plaintiff, and Plaintiff acknowledged in Open Court that he accepted and
   cashed said rent payment. The canceled check shows that it was deposited on
   March 10, 2000 and paid on March 13, 2000.

3. Section 83.56(5) of the Florida Statutes, provides that ``[i]f the
   landlord accepts rent with actual knowledge of non-compliance by the
   tenant... the landlord waives his right to terminate the rental agreement or
   to bring a civil action for that non-compliance.'' Pursuant to Section
   83.56(5), Plaintiff waived his right to evict Defendants based on the
   grounds stated or referred to in the February 23, 2000 Seven-Day Notice.
   Moskos vs. Hand, 247 So. 2d 795 (4th DCA 1971). The In Apartments vs. Lisa
   McGauley and Allen Bryant, Case No. 98-3771 COWE (80), 5 F.L.W. Supp. 848b,
   decided by Judge Steven B. Shutter on June 22, 1998. Deerfield East
   Associated, Ltd. vs. Sara Cooper, Case No. 96-18097, Judge Jay S. Spechler
   (November 5, 1996). Homefinders vs. John (Sean, Malloy, Case No. 97-1208,
   Judge Jay S. Spechler (February 4, 1997). Jonathan Scott vs. Regina Jordan
   and Robert Lee Wilson, Case No. 97-16156, Judge Zebedee W. Wright (November
   25, 1997). San Marco Partners, L.C. vs. Jennifer Wright, Case No. 98-2115
   COCE (56) [5 Fla. L. Weekly Supp. 630b], Judge Ronald Rothschild (March 5,
   1998).

4. Due to Plaintiff's acceptance of rent, there is no need for this Court to
   render an opinion as to whether Plaintiff's Seven-Day Notice dated February
   21, 2000 fails to comply with the statutory requirements of Section 83.56(2)
   of the Florida Statutes, for the reasons noted in Defendants' Motion to
   Dismiss.

5. Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to
   Amend is hereby granted.

6. Defendants are the prevailing parties in this action.

7. Defendants' counsel, Charles L. Simon, is entitled to recover reasonable
   attorneys' fees of and from Plaintiff RALPH T. ENDERBY.

8. The Court retains jurisdiction to award costs, including reasonable
   attorneys' fees against Plaintiff.

Here's a quick variation from this commercial attorney who was faced with
this residential question:

What if the tenant did work to the house that was not objected to?
Specifically, tenant painted bedrooms and replaced light fixtures.  Landlord
had been in the home multiple times and viewed these changes.  Never
objected.  Rent was paid and accepted for an additional 6-9 months.  After
lease expiration, Landlord put a claim on the deposit.

Did landlord waive this claim?

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 Harry Heist
Sent: Tuesday, August 02, 2011 2:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review
Res LL-T Act

A more common issue in the same vein is when a tenant owes a past due water
bill or electric bill and the landlord continues to accept rent.

I don't know the answer but tell my clients that if they accept rent with
knowledge of a continuing noncompliance, they may have waived their rights.
In the case of a past due elect bill type continuing noncompliance, if they
accept rent, I feel they can't take action that month. I tell them to serve
the 7 Day Cure the next month and if they want to proceed, refuse rent and
especially do not serve a Three Day.  I am not sure that a damage like a
broken window is a "continuing noncompliance".

Although it is a problem for landlords, it also can be unfair burden to a
tenant if a landlord is forced to evict for a $150 electric bill and can't
choose to accept rent and deal with the electric bill later.

Harry

LAW OFFICES OF
HEIST, WEISSE, DAVIS & 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 Jeff Mazor
Sent: Tuesday, August 02, 2011 2:25 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res
LL-T Act

Someone please tell me I'm wrong.

Assume a residential lease prohibits the tenant from damaging the Landlord's
property; the Tenant does so anyway and thereafter refuses to pay for the
repairs but pays (and the landlord accepts) the accruing regular monthly
rent.  Later, the Landlord does a 7 day cure notice; the Tenant ignores it
and instead pays and the Landlord accepts the next month's rent.

Eventually, the Landlord decides to sue. In light of Florida Statutes,
Section 83.56(5)*, it seems that the Landlord has lost any remedies he may
have had. For example:

Can he sue for possession?

Can he sue for money damages alone?

If by accepting the rental payments the Landlord has waived all remedies,
then we need to try to change the section. It would be crazy to force a
Landlord to chose immediately between suing a Tenant and losing the right to
sue.

See the below copy of Enderby v. Blades.

• FS 83.56(5) If the landlord accepts rent with actual knowledge of a
  noncompliance by the tenant or accepts performance by the tenant of any
  other provision of the rental agreement that is at variance with its
  provisions, or if the tenant pays rent with actual knowledge of a
  noncompliance by the landlord or accepts performance by the landlord of any
  other provision of the rental agreement that is at variance with its
  provisions, the landlord or tenant waives his or her right to terminate the
  rental agreement or to bring a civil action for that noncompliance, but not
  for any subsequent or continuing noncompliance. Any tenant who wishes to
  defend against an action by the landlord for possession of the unit for
  noncompliance of the rental agreement or of relevant statutes shall comply
  with the provisions in s. 83.60(2). The court may not set a date for
  mediation or trial unless the provisions of s. 83.60(2) have been met, but
  shall enter a default judgment for removal of the tenant with a writ of
  possession to issue immediately if the tenant fails to comply with s.
  83.60(2). This subsection does not apply to that portion of rent subsidies
  received from a local, state, or national government or an agency of local,
  state, or national government; however, waiver will occur if an action has
  not been instituted within 45 days of the noncompliance.

**

7 Fla. L. Weekly Supp. 413b

Landlord-tenant -- Eviction -- Landlord waived right to evict tenants for
non-compliance where landlord accepted and cashed tenant's rental payment --
Complaint for tenant eviction dismissed without leave to amend

RALPH T. ENDERBY, Plaintiff, vs. MONICA BLADES, NEGUS VICKERS and LATISHA
WILSON, Defendants. County Court, 17th Judicial Circuit in and for Broward
County. Case No. 00-01927 COWE. March 21, 2000. Jane Fishman, Judge.
Counsel: Charles L. Simon, C.L. Simon, P.A., Ft. Lauderdale, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION

TO DISMISS PLAINTIFF'S COMPLAINT

WITHOUT LEAVE TO AMEND

THIS CAUSE, having come before the Court for hearing on March 17, 2000 on
Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to Amend,
and the Court having heard the arguments and testimony provided and
otherwise being fully informed in the premises, the Court does hereby

ORDER, FIND AND ADJUDGE as follows:

1. Plaintiff filed a Complaint for tenant eviction against Defendants on
   March 1, 2000 based on a Seven-Day Notice dated February 21, 2000 that
   terminated Defendants' lease effective immediately, and gave Defendants
   seven (7) days to vacate the premises.

2. On or about March 8, 2000 Defendants tendered the March, 2000 rent to
   Plaintiff, and Plaintiff acknowledged in Open Court that he accepted and
   cashed said rent payment. The canceled check shows that it was deposited on
   March 10, 2000 and paid on March 13, 2000.

3. Section 83.56(5) of the Florida Statutes, provides that ``[i]f the
   landlord accepts rent with actual knowledge of non-compliance by the
   tenant... the landlord waives his right to terminate the rental agreement or
   to bring a civil action for that non-compliance.'' Pursuant to Section
   83.56(5), Plaintiff waived his right to evict Defendants based on the
   grounds stated or referred to in the February 23, 2000 Seven-Day Notice.
   Moskos vs. Hand, 247 So. 2d 795 (4th DCA 1971). The In Apartments vs. Lisa
   McGauley and Allen Bryant, Case No. 98-3771 COWE (80), 5 F.L.W. Supp. 848b,
   decided by Judge Steven B. Shutter on June 22, 1998. Deerfield East
   Associated, Ltd. vs. Sara Cooper, Case No. 96-18097, Judge Jay S. Spechler
   (November 5, 1996). Homefinders vs. John (Sean, Malloy, Case No. 97-1208,
   Judge Jay S. Spechler (February 4, 1997). Jonathan Scott vs. Regina Jordan
   and Robert Lee Wilson, Case No. 97-16156, Judge Zebedee W. Wright (November
   25, 1997). San Marco Partners, L.C. vs. Jennifer Wright, Case No. 98-2115
   COCE (56) [5 Fla. L. Weekly Supp. 630b], Judge Ronald Rothschild (March 5,
   1998).

4. Due to Plaintiff's acceptance of rent, there is no need for this Court to
   render an opinion as to whether Plaintiff's Seven-Day Notice dated February
   21, 2000 fails to comply with the statutory requirements of Section 83.56(2)
   of the Florida Statutes, for the reasons noted in Defendants' Motion to
   Dismiss.

5. Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to
   Amend is hereby granted.

6. Defendants are the prevailing parties in this action.

7. Defendants' counsel, Charles L. Simon, is entitled to recover reasonable
   attorneys' fees of and from Plaintiff RALPH T. ENDERBY.

8. The Court retains jurisdiction to award costs, including reasonable
   attorneys' fees against Plaintiff.

I don't agree with the holding in the Enderby case, Jeff.  I think that the
"noncompliance" has to be of the same character.  The statute says if the
landlord accepts rent with knowledge of a noncompliance by the tenant or
accepts performance by the tenant of any other provision of the rental
agreement that is at variance with its provisions.

The law recognizes/differentiates between monetary and nonmonetary defaults
and that the landlord can terminate the lease for monetary and nonmonetary
defaults.  In my opinion, that is what the statute does.  The statute first
talks about a waiver for accepting "rent" followed by  "or" and next talks
about waiver for accepting "performance by the tenant of any other provision
of the rental agreement that is at variance with its provisions".

I would argue that a nonmonetary default cannot be waived by accepting
monetary performance.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of
Scott A. Frank
Sent: Tuesday, August 02, 2011 2:56 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review
Res LL-T Act

Here's a quick variation from this commercial attorney who was faced with
this residential question:

What if the tenant did work to the house that was not objected to?
Specifically, tenant painted bedrooms and replaced light fixtures.  Landlord
had been in the home multiple times and viewed these changes.  Never
objected.  Rent was paid and accepted for an additional 6-9 months.  After
lease expiration, Landlord put a claim on the deposit.

Did landlord waive this claim?

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 Harry Heist
Sent: Tuesday, August 02, 2011 2:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review
Res LL-T Act

A more common issue in the same vein is when a tenant owes a past due water
bill or electric bill and the landlord continues to accept rent.

I don't know the answer but tell my clients that if they accept rent with
knowledge of a continuing noncompliance, they may have waived their rights.
In the case of a past due elect bill type continuing noncompliance, if they
accept rent, I feel they can't take action that month. I tell them to serve
the 7 Day Cure the next month and if they want to proceed, refuse rent and
especially do not serve a Three Day.  I am not sure that a damage like a
broken window is a "continuing noncompliance".

Although it is a problem for landlords, it also can be unfair burden to a
tenant if a landlord is forced to evict for a $150 electric bill and can't
choose to accept rent and deal with the electric bill later.

Harry

LAW OFFICES OF
HEIST, WEISSE, DAVIS & 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 Jeff Mazor
Sent: Tuesday, August 02, 2011 2:25 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res
LL-T Act

Someone please tell me I'm wrong.

Assume a residential lease prohibits the tenant from damaging the Landlord's
property; the Tenant does so anyway and thereafter refuses to pay for the
repairs but pays (and the landlord accepts) the accruing regular monthly
rent.  Later, the Landlord does a 7 day cure notice; the Tenant ignores it
and instead pays and the Landlord accepts the next month's rent.

Eventually, the Landlord decides to sue. In light of Florida Statutes,
Section 83.56(5)*, it seems that the Landlord has lost any remedies he may
have had. For example:

Can he sue for possession?

Can he sue for money damages alone?

If by accepting the rental payments the Landlord has waived all remedies,
then we need to try to change the section. It would be crazy to force a
Landlord to chose immediately between suing a Tenant and losing the right to
sue.

See the below copy of Enderby v. Blades.

• FS 83.56(5) If the landlord accepts rent with actual knowledge of a
  noncompliance by the tenant or accepts performance by the tenant of any
  other provision of the rental agreement that is at variance with its
  provisions, or if the tenant pays rent with actual knowledge of a
  noncompliance by the landlord or accepts performance by the landlord of any
  other provision of the rental agreement that is at variance with its
  provisions, the landlord or tenant waives his or her right to terminate the
  rental agreement or to bring a civil action for that noncompliance, but not
  for any subsequent or continuing noncompliance. Any tenant who wishes to
  defend against an action by the landlord for possession of the unit for
  noncompliance of the rental agreement or of relevant statutes shall comply
  with the provisions in s. 83.60(2). The court may not set a date for
  mediation or trial unless the provisions of s. 83.60(2) have been met, but
  shall enter a default judgment for removal of the tenant with a writ of
  possession to issue immediately if the tenant fails to comply with s.
  83.60(2). This subsection does not apply to that portion of rent subsidies
  received from a local, state, or national government or an agency of local,
  state, or national government; however, waiver will occur if an action has
  not been instituted within 45 days of the noncompliance.

**

7 Fla. L. Weekly Supp. 413b

Landlord-tenant -- Eviction -- Landlord waived right to evict tenants for
non-compliance where landlord accepted and cashed tenant's rental payment --
Complaint for tenant eviction dismissed without leave to amend

RALPH T. ENDERBY, Plaintiff, vs. MONICA BLADES, NEGUS VICKERS and LATISHA
WILSON, Defendants. County Court, 17th Judicial Circuit in and for Broward
County. Case No. 00-01927 COWE. March 21, 2000. Jane Fishman, Judge.
Counsel: Charles L. Simon, C.L. Simon, P.A., Ft. Lauderdale, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION

TO DISMISS PLAINTIFF'S COMPLAINT

WITHOUT LEAVE TO AMEND

THIS CAUSE, having come before the Court for hearing on March 17, 2000 on
Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to Amend,
and the Court having heard the arguments and testimony provided and
otherwise being fully informed in the premises, the Court does hereby

ORDER, FIND AND ADJUDGE as follows:

1. Plaintiff filed a Complaint for tenant eviction against Defendants on
   March 1, 2000 based on a Seven-Day Notice dated February 21, 2000 that
   terminated Defendants' lease effective immediately, and gave Defendants
   seven (7) days to vacate the premises.

2. On or about March 8, 2000 Defendants tendered the March, 2000 rent to
   Plaintiff, and Plaintiff acknowledged in Open Court that he accepted and
   cashed said rent payment. The canceled check shows that it was deposited on
   March 10, 2000 and paid on March 13, 2000.

3. Section 83.56(5) of the Florida Statutes, provides that ``[i]f the
   landlord accepts rent with actual knowledge of non-compliance by the
   tenant... the landlord waives his right to terminate the rental agreement or
   to bring a civil action for that non-compliance.'' Pursuant to Section
   83.56(5), Plaintiff waived his right to evict Defendants based on the
   grounds stated or referred to in the February 23, 2000 Seven-Day Notice.
   Moskos vs. Hand, 247 So. 2d 795 (4th DCA 1971). The In Apartments vs. Lisa
   McGauley and Allen Bryant, Case No. 98-3771 COWE (80), 5 F.L.W. Supp. 848b,
   decided by Judge Steven B. Shutter on June 22, 1998. Deerfield East
   Associated, Ltd. vs. Sara Cooper, Case No. 96-18097, Judge Jay S. Spechler
   (November 5, 1996). Homefinders vs. John (Sean, Malloy, Case No. 97-1208,
   Judge Jay S. Spechler (February 4, 1997). Jonathan Scott vs. Regina Jordan
   and Robert Lee Wilson, Case No. 97-16156, Judge Zebedee W. Wright (November
   25, 1997). San Marco Partners, L.C. vs. Jennifer Wright, Case No. 98-2115
   COCE (56) [5 Fla. L. Weekly Supp. 630b], Judge Ronald Rothschild (March 5,
   1998).

4. Due to Plaintiff's acceptance of rent, there is no need for this Court to
   render an opinion as to whether Plaintiff's Seven-Day Notice dated February
   21, 2000 fails to comply with the statutory requirements of Section 83.56(2)
   of the Florida Statutes, for the reasons noted in Defendants' Motion to
   Dismiss.

5. Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to
   Amend is hereby granted.

6. Defendants are the prevailing parties in this action.

7. Defendants' counsel, Charles L. Simon, is entitled to recover reasonable
   attorneys' fees of and from Plaintiff RALPH T. ENDERBY.

8. The Court retains jurisdiction to award costs, including reasonable
   attorneys' fees against Plaintiff.

Perhaps the Enderby case can be distinguished from the hypothetical posed by Jeff in that the LL in Enderby had already given the T an 83.56 (2)(a) notice terminating the lease immediately with no chance to come into compliance.  In that situation, it doesn't really make sense for the LL to continue collecting rent from a tenant where the noncompliance alleged by the LL was supposedly of such a dastardly nature that the T should not be given any opportunity to cure.  In that situation, I can see a court saying that the LL can't have it both ways - claiming to have already terminated the lease on one hand yet continuing to accept rent in the other.

In contrast, the LL in  Jeff's hypothetical below only gave the T a "7 day cure notice" - which I'm assuming is the 7 day notice under 83.56 (2)(b).  In that circumstance the LL should be okay in accepting the rent so long as the rent is accepted by the LL before the 7 day cure period expires.  After that, it would get iffy because the suggested form notice states that the lease is "deemed terminated" unless T comes into compliance.  Thus, if LL accepts rent after the 7 days when the lease is already "deemed terminated" according to LL's notice, LL runs the risk of T arguing that the LL must have viewed the T as having come into compliance, else why would LL have accepted rent for a lease already "deemed terminated".

One thing I find perplexing is that section 83.56 (2)(b) states that if the T doesn't come into compliance within 7 days, the landlord "shall" (not "may") terminate the rental agreement by reason thereof, yet the suggested notice found in the same statute says the lease "shall be deemed" terminated.  So is the termination automatic or must the LL actually take some additional affirmative step to terminate?  If the latter, what if he doesn't?  I suppose it doesn't really matter once the LL accepts rent after the 7 days has elapsed because it will open the door for the T to argue that surely the LL must have viewed the T as having come into compliance, else why accept rent for the supposedly terminated lease.

If the statute were amended to read "may terminate" instead of "shall terminate"/"deemed terminated", it might give the LL the added flexibility desired in dealing with a T who doesn't come into compliance within 7 days as Harry alluded to below.

Greg Hass, Senior Counsel

Office of Law & Policy | FloridaRealtors(r)
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org

Be a Star at Florida Realtors Convention & Trade Expo
http://convention.floridarealtors.org August 24-28

[cid:image001.jpg@01C8B0EE.0B556530]

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony Horky
Sent: Tuesday, August 02, 2011 6:19 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res LL-T Act

I don't agree with the holding in the Enderby case, Jeff.  I think that the "noncompliance" has to be of the same character.  The statute says if the landlord accepts rent with knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions...

The law recognizes/differentiates between monetary and nonmonetary defaults and that the landlord can terminate the lease for monetary and nonmonetary defaults.  In my opinion, that is what the statute does.  The statute first talks about a waiver for accepting "rent" followed by  "or" and next talks about waiver for accepting "performance by the tenant of any other provision of the rental agreement that is at variance with its provisions".

I would argue that a nonmonetary default cannot be waived by accepting monetary performance.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank
Sent: Tuesday, August 02, 2011 2:56 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res LL-T Act

Here's a quick variation from this commercial attorney who was faced with this residential question:

What if the tenant did work to the house that was not objected to?  Specifically, tenant painted bedrooms and replaced light fixtures.  Landlord had been in the home multiple times and viewed these changes.  Never objected.  Rent was paid and accepted for an additional 6-9 months.  After lease expiration, Landlord put a claim on the deposit.

Did landlord waive this claim?

Scott A. Frank
Attorney at Law
LAW OFFICES OF SCOTT A. FRANK, P.A.
7781 NW Beacon Square Boulevard, Suite 102
Boca Raton, FL 33487
p:  (561) 372-7860
f:  (561) 423-5721
sfrank@saflaw.commailto:sfrank@saflaw.com
www.saflaw.comhttp://www.saflaw.com/

If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, August 02, 2011 2:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res LL-T Act

A more common issue in the same vein is when a tenant owes a past due water bill or electric bill and the landlord continues to accept rent.

I don't know the answer but tell my clients that if they accept rent with knowledge of a continuing noncompliance, they may have waived their rights.  In the case of a past due elect bill type continuing noncompliance, if they accept rent, I feel they can't take action that month. I tell them to serve the 7 Day Cure the next month and if they want to proceed, refuse rent and especially do not serve a Three Day.  I am not sure that a damage like a broken window is a "continuing noncompliance".

Although it is a problem for landlords, it also can be unfair burden to a tenant if a landlord is forced to evict for a $150 electric bill and can't choose to accept rent and deal with the electric bill later.

Harry

LAW OFFICES OF
HEIST, WEISSE, DAVIS & 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 Jeff Mazor
Sent: Tuesday, August 02, 2011 2:25 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res LL-T Act

Someone please tell me I'm wrong.

Assume a residential lease prohibits the tenant from damaging the Landlord's property; the Tenant does so anyway and thereafter refuses to pay for the repairs but pays (and the landlord accepts) the accruing regular monthly rent.  Later, the Landlord does a 7 day cure notice; the Tenant ignores it and instead pays and the Landlord accepts the next month's rent.

Eventually, the Landlord decides to sue. In light of Florida Statutes, Section 83.56(5)*, it seems that the Landlord has lost any remedies he may have had. For example:

Can he sue for possession?

Can he sue for money damages alone?

If by accepting the rental payments the Landlord has waived all remedies, then we need to try to change the section. It would be crazy to force a Landlord to chose immediately between suing a Tenant and losing the right to sue.

See the below copy of Enderby v. Blades.

• FS 83.56(5) If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance. Any tenant who wishes to defend against an action by the landlord for possession of the unit for noncompliance of the rental agreement or of relevant statutes shall comply with the provisions in s. 83.60(2). The court may not set a date for mediation or trial unless the provisions of s. 83.60(2) have been met, but shall enter a default judgment for removal of the tenant with a writ of possession to issue immediately if the tenant fails to comply with s. 83.60(2). This subsection does not apply to that portion of rent subsidies received from a local, state, or national government or an agency of local, state, or national government; however, waiver will occur if an action has not been instituted within 45 days of the noncompliance.

**
7 Fla. L. Weekly Supp. 413b
Landlord-tenant -- Eviction -- Landlord waived right to evict tenants for non-compliance where landlord accepted and cashed tenant's rental payment -- Complaint for tenant eviction dismissed without leave to amend

RALPH T. ENDERBY, Plaintiff, vs. MONICA BLADES, NEGUS VICKERS and LATISHA WILSON, Defendants. County Court, 17th Judicial Circuit in and for Broward County. Case No. 00-01927 COWE. March 21, 2000. Jane Fishman, Judge. Counsel: Charles L. Simon, C.L. Simon, P.A., Ft. Lauderdale, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION

TO DISMISS PLAINTIFF'S COMPLAINT

WITHOUT LEAVE TO AMEND
THIS CAUSE, having come before the Court for hearing on March 17, 2000 on Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to Amend, and the Court having heard the arguments and testimony provided and otherwise being fully informed in the premises, the Court does hereby

ORDER, FIND AND ADJUDGE as follows:

1. Plaintiff filed a Complaint for tenant eviction against Defendants on March 1, 2000 based on a Seven-Day Notice dated February 21, 2000 that terminated Defendants' lease effective immediately, and gave Defendants seven (7) days to vacate the premises.

2. On or about March 8, 2000 Defendants tendered the March, 2000 rent to Plaintiff, and Plaintiff acknowledged in Open Court that he accepted and cashed said rent payment. The canceled check shows that it was deposited on March 10, 2000 and paid on March 13, 2000.

3. Section 83.56(5) of the Florida Statutes, provides that ``[i]f the landlord accepts rent with actual knowledge of non-compliance by the tenant... the landlord waives his right to terminate the rental agreement or to bring a civil action for that non-compliance.'' Pursuant to Section 83.56(5), Plaintiff waived his right to evict Defendants based on the grounds stated or referred to in the February 23, 2000 Seven-Day Notice. Moskos vs. Hand, 247 So. 2d 795 (4th DCA 1971). The In Apartments vs. Lisa McGauley and Allen Bryant, Case No. 98-3771 COWE (80), 5 F.L.W. Supp. 848b, decided by Judge Steven B. Shutter on June 22, 1998. Deerfield East Associated, Ltd. vs. Sara Cooper, Case No. 96-18097, Judge Jay S. Spechler (November 5, 1996). Homefinders vs. John (Sean, Malloy, Case No. 97-1208, Judge Jay S. Spechler (February 4, 1997). Jonathan Scott vs. Regina Jordan and Robert Lee Wilson, Case No. 97-16156, Judge Zebedee W. Wright (November 25, 1997). San Marco Partners, L.C. vs. Jennifer Wright, Case No. 98-2115 COCE (56) [5 Fla. L. Weekly Supp. 630b], Judge Ronald Rothschild (March 5, 1998).

4. Due to Plaintiff's acceptance of rent, there is no need for this Court to render an opinion as to whether Plaintiff's Seven-Day Notice dated February 21, 2000 fails to comply with the statutory requirements of Section 83.56(2) of the Florida Statutes, for the reasons noted in Defendants' Motion to Dismiss.

5. Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to Amend is hereby granted.

6. Defendants are the prevailing parties in this action.

7. Defendants' counsel, Charles L. Simon, is entitled to recover reasonable attorneys' fees of and from Plaintiff RALPH T. ENDERBY.

8. The Court retains jurisdiction to award costs, including reasonable attorneys' fees against Plaintiff.

I have always been baffled about whether a 7 Day Notice of Termination must
be given after the 7 Day Cure expiration and have advised my clients to do
this in the interest of caution. It would be nice if this were more clear.

Harry

LAW OFFICES OF
HEIST, WEISSE, DAVIS & 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: Wednesday, August 03, 2011 10:15 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review
Res LL-T Act

Perhaps the Enderby case can be distinguished from the hypothetical posed by
Jeff in that the LL in Enderby had already given the T an 83.56 (2)(a)
notice terminating the lease immediately with no chance to come into
compliance.  In that situation, it doesn't really make sense for the LL to
continue collecting rent from a tenant where the noncompliance alleged by
the LL was supposedly of such a dastardly nature that the T should not be
given any opportunity to cure.  In that situation, I can see a court saying
that the LL can't have it both ways - claiming to have already terminated
the lease on one hand yet continuing to accept rent in the other.

In contrast, the LL in  Jeff's hypothetical below only gave the T a "7 day
cure notice" - which I'm assuming is the 7 day notice under 83.56 (2)(b).
In that circumstance the LL should be okay in accepting the rent so long as
the rent is accepted by the LL before the 7 day cure period expires.  After
that, it would get iffy because the suggested form notice states that the
lease is "deemed terminated" unless T comes into compliance.  Thus, if LL
accepts rent after the 7 days when the lease is already "deemed terminated"
according to LL's notice, LL runs the risk of T arguing that the LL must
have viewed the T as having come into compliance, else why would LL have
accepted rent for a lease already "deemed terminated".

One thing I find perplexing is that section 83.56 (2)(b) states that if the
T doesn't come into compliance within 7 days, the landlord "shall" (not
"may") terminate the rental agreement by reason thereof, yet the suggested
notice found in the same statute says the lease "shall be deemed"
terminated.  So is the termination automatic or must the LL actually take
some additional affirmative step to terminate?  If the latter, what if he
doesn't?  I suppose it doesn't really matter once the LL accepts rent after
the 7 days has elapsed because it will open the door for the T to argue that
surely the LL must have viewed the T as having come into compliance, else
why accept rent for the supposedly terminated lease.

If the statute were amended to read "may terminate" instead of "shall
terminate"/"deemed terminated", it might give the LL the added flexibility
desired in dealing with a T who doesn't come into compliance within 7 days
as Harry alluded to below.

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 http://www.floridarealtors.org

Be a Star at Florida Realtors Convention & Trade Expo
http://convention.floridarealtors.org
http://convention.floridarealtors.org August 24-28

cid:image001.jpg@01C8B0EE.0B556530

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony Horky
Sent: Tuesday, August 02, 2011 6:19 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review
Res LL-T Act

I don't agree with the holding in the Enderby case, Jeff.  I think that the
"noncompliance" has to be of the same character.  The statute says if the
landlord accepts rent with knowledge of a noncompliance by the tenant or
accepts performance by the tenant of any other provision of the rental
agreement that is at variance with its provisions.

The law recognizes/differentiates between monetary and nonmonetary defaults
and that the landlord can terminate the lease for monetary and nonmonetary
defaults.  In my opinion, that is what the statute does.  The statute first
talks about a waiver for accepting "rent" followed by  "or" and next talks
about waiver for accepting "performance by the tenant of any other provision
of the rental agreement that is at variance with its provisions".

I would argue that a nonmonetary default cannot be waived by accepting
monetary performance.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Law Offices of
Scott A. Frank
Sent: Tuesday, August 02, 2011 2:56 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review
Res LL-T Act

Here's a quick variation from this commercial attorney who was faced with
this residential question:

What if the tenant did work to the house that was not objected to?
Specifically, tenant painted bedrooms and replaced light fixtures.  Landlord
had been in the home multiple times and viewed these changes.  Never
objected.  Rent was paid and accepted for an additional 6-9 months.  After
lease expiration, Landlord put a claim on the deposit.

Did landlord waive this claim?

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 Harry Heist
Sent: Tuesday, August 02, 2011 2:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review
Res LL-T Act

A more common issue in the same vein is when a tenant owes a past due water
bill or electric bill and the landlord continues to accept rent.

I don't know the answer but tell my clients that if they accept rent with
knowledge of a continuing noncompliance, they may have waived their rights.
In the case of a past due elect bill type continuing noncompliance, if they
accept rent, I feel they can't take action that month. I tell them to serve
the 7 Day Cure the next month and if they want to proceed, refuse rent and
especially do not serve a Three Day.  I am not sure that a damage like a
broken window is a "continuing noncompliance".

Although it is a problem for landlords, it also can be unfair burden to a
tenant if a landlord is forced to evict for a $150 electric bill and can't
choose to accept rent and deal with the electric bill later.

Harry

LAW OFFICES OF
HEIST, WEISSE, DAVIS & 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

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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Tuesday, August 02, 2011 2:25 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res
LL-T Act

Someone please tell me I'm wrong.

Assume a residential lease prohibits the tenant from damaging the Landlord's
property; the Tenant does so anyway and thereafter refuses to pay for the
repairs but pays (and the landlord accepts) the accruing regular monthly
rent.  Later, the Landlord does a 7 day cure notice; the Tenant ignores it
and instead pays and the Landlord accepts the next month's rent.

Eventually, the Landlord decides to sue. In light of Florida Statutes,
Section 83.56(5)*, it seems that the Landlord has lost any remedies he may
have had. For example:

Can he sue for possession?

Can he sue for money damages alone?

If by accepting the rental payments the Landlord has waived all remedies,
then we need to try to change the section. It would be crazy to force a
Landlord to chose immediately between suing a Tenant and losing the right to
sue.

See the below copy of Enderby v. Blades.

• FS 83.56(5) If the landlord accepts rent with actual knowledge of a
  noncompliance by the tenant or accepts performance by the tenant of any
  other provision of the rental agreement that is at variance with its
  provisions, or if the tenant pays rent with actual knowledge of a
  noncompliance by the landlord or accepts performance by the landlord of any
  other provision of the rental agreement that is at variance with its
  provisions, the landlord or tenant waives his or her right to terminate the
  rental agreement or to bring a civil action for that noncompliance, but not
  for any subsequent or continuing noncompliance. Any tenant who wishes to
  defend against an action by the landlord for possession of the unit for
  noncompliance of the rental agreement or of relevant statutes shall comply
  with the provisions in s. 83.60(2). The court may not set a date for
  mediation or trial unless the provisions of s. 83.60(2) have been met, but
  shall enter a default judgment for removal of the tenant with a writ of
  possession to issue immediately if the tenant fails to comply with s.
  83.60(2). This subsection does not apply to that portion of rent subsidies
  received from a local, state, or national government or an agency of local,
  state, or national government; however, waiver will occur if an action has
  not been instituted within 45 days of the noncompliance.

**

7 Fla. L. Weekly Supp. 413b

Landlord-tenant -- Eviction -- Landlord waived right to evict tenants for
non-compliance where landlord accepted and cashed tenant's rental payment --
Complaint for tenant eviction dismissed without leave to amend

RALPH T. ENDERBY, Plaintiff, vs. MONICA BLADES, NEGUS VICKERS and LATISHA
WILSON, Defendants. County Court, 17th Judicial Circuit in and for Broward
County. Case No. 00-01927 COWE. March 21, 2000. Jane Fishman, Judge.
Counsel: Charles L. Simon, C.L. Simon, P.A., Ft. Lauderdale, for Defendants.

ORDER GRANTING DEFENDANT'S MOTION

TO DISMISS PLAINTIFF'S COMPLAINT

WITHOUT LEAVE TO AMEND

THIS CAUSE, having come before the Court for hearing on March 17, 2000 on
Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to Amend,
and the Court having heard the arguments and testimony provided and
otherwise being fully informed in the premises, the Court does hereby

ORDER, FIND AND ADJUDGE as follows:

1. Plaintiff filed a Complaint for tenant eviction against Defendants on
   March 1, 2000 based on a Seven-Day Notice dated February 21, 2000 that
   terminated Defendants' lease effective immediately, and gave Defendants
   seven (7) days to vacate the premises.

2. On or about March 8, 2000 Defendants tendered the March, 2000 rent to
   Plaintiff, and Plaintiff acknowledged in Open Court that he accepted and
   cashed said rent payment. The canceled check shows that it was deposited on
   March 10, 2000 and paid on March 13, 2000.

3. Section 83.56(5) of the Florida Statutes, provides that ``[i]f the
   landlord accepts rent with actual knowledge of non-compliance by the
   tenant... the landlord waives his right to terminate the rental agreement or
   to bring a civil action for that non-compliance.'' Pursuant to Section
   83.56(5), Plaintiff waived his right to evict Defendants based on the
   grounds stated or referred to in the February 23, 2000 Seven-Day Notice.
   Moskos vs. Hand, 247 So. 2d 795 (4th DCA 1971). The In Apartments vs. Lisa
   McGauley and Allen Bryant, Case No. 98-3771 COWE (80), 5 F.L.W. Supp. 848b,
   decided by Judge Steven B. Shutter on June 22, 1998. Deerfield East
   Associated, Ltd. vs. Sara Cooper, Case No. 96-18097, Judge Jay S. Spechler
   (November 5, 1996). Homefinders vs. John (Sean, Malloy, Case No. 97-1208,
   Judge Jay S. Spechler (February 4, 1997). Jonathan Scott vs. Regina Jordan
   and Robert Lee Wilson, Case No. 97-16156, Judge Zebedee W. Wright (November
   25, 1997). San Marco Partners, L.C. vs. Jennifer Wright, Case No. 98-2115
   COCE (56) [5 Fla. L. Weekly Supp. 630b], Judge Ronald Rothschild (March 5,
   1998).

4. Due to Plaintiff's acceptance of rent, there is no need for this Court to
   render an opinion as to whether Plaintiff's Seven-Day Notice dated February
   21, 2000 fails to comply with the statutory requirements of Section 83.56(2)
   of the Florida Statutes, for the reasons noted in Defendants' Motion to
   Dismiss.

5. Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to
   Amend is hereby granted.

6. Defendants are the prevailing parties in this action.

7. Defendants' counsel, Charles L. Simon, is entitled to recover reasonable
   attorneys' fees of and from Plaintiff RALPH T. ENDERBY.

8. The Court retains jurisdiction to award costs, including reasonable
   attorneys' fees against Plaintiff.