Fellow Group Members,
 
I have a situation where I recently filed an eviction against a residential tenant who is currently in bankruptcy proceedings.  In fact, the tenant just filed a few weeks ago, but I think it's important to note that the bankruptcy was filed before the eviction was filed.  The attorney representing the tenant in bankruptcy says they are going to ask for a stay on Eviction case.  No lease by the way.  Not suing for back rent, just possession.
 
My understanding is that the landlord can proceed with the eviction, in rem only, as long as we are not seeking monetary damages, but I know very little about bankruptcy.  Has anyone else ever faced this situation?  Or does anyone know enough about bankruptcy to say whether the eviction would be stayed?  Any suggestions are appreciated. 
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.

I'm sorry to say I'm no expert but I think that even seeking possession would be a violation of the stay. I was under the impression that the automatic stay did not apply where the eviction was filed first not subsequent.  I would review I think its §362 if memory serves.  Beyond that, the debtor has to comply with certain requirements to maintain a stay against a residential landlord (see the section).  I think you need to move for relief from the stay and you'll probably get it in any case I would expect.

Our firm and our family support the wonderful work of Mount Sinai Medical Center
David Posnack Jewish Day School, and
The Holocaust Documentation and Education Center.

Ask us how you can help support these fine institutions.

JACOBS / OFFIR

                                          PERSPECTIVE IN PRACTICE

[QR Contact Eric]
Eric Jacobs, J.D., M.B.A.
Managing Partner
Board Certified

eric@jolegal.commailto:eric@jacobsoffir.com
1930 Harrison Street, Suite 208
Hollywood, Florida 33020http://maps.yahoo.com/py/maps.py?Pyt=Tmap&addr=1911+Harrison+Street&csz=Hollywood%2C+Florida+33020&country=us

Tel: 954-929-0679 http://www.plaxo.com/click_to_call?src=jj_signature&To=954-929-0679&Email=ericj@jerichotitle.com
fax: 888-632-4944
mobile: 954-243-3100 http://www.plaxo.com/click_to_call?src=jj_signature&To=954-243-3100&Email=ericj@jerichotitle.com

Confidentiality and Relationship Disclosure. If you are reading this, congratulations, you are probably the first.  For years law firms have included lengthy disclosures at the bottom of their emails which in our view are of, at best, marginal legal value.  We have decided not to do that.  Instead, we will ask that if you got this email and shouldn't have, let us know and please don't read it (though if you've read this, chances are that ship has sailed).  Also, just because we exchange emails doesn't make us your lawyer(s).  If you would like to create an attorney/ client relationship, we're glad to hear it and would be happy to provide you with an engagement letter.  As soon as you have received written confirmation from us, you can consider our relationship formed.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, November 29, 2011 12:47 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Evicton vs. Bankrupty question

Fellow Group Members,

I have a situation where I recently filed an eviction against a residential tenant who is currently in bankruptcy proceedings.  In fact, the tenant just filed a few weeks ago, but I think it's important to note that the bankruptcy was filed before the eviction was filed.  The attorney representing the tenant in bankruptcy says they are going to ask for a stay on Eviction case.  No lease by the way.  Not suing for back rent, just possession.

My understanding is that the landlord can proceed with the eviction, in rem only, as long as we are not seeking monetary damages, but I know very little about bankruptcy.  Has anyone else ever faced this situation?  Or does anyone know enough about bankruptcy to say whether the eviction would be stayed?  Any suggestions are appreciated.
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.

We deal with this all the time. You have to file a  Motion for Relief for
Stay.  You may want to dump the eviction case ASAP so you don't get in
trouble.

The landlord can't even serve a 3 Day without getting the Stay lifted.

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:  http://www.evict.com/ www.evict.com
Email:  mailto:harry@evict.com harry@evict.com

THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND
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DISTRIBUTION IS STRICTLY PROHIBITED.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, November 29, 2011 12:47 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Evicton vs. Bankrupty question

Fellow Group Members,

I have a situation where I recently filed an eviction against a residential
tenant who is currently in bankruptcy proceedings.  In fact, the tenant just
filed a few weeks ago, but I think it's important to note that the
bankruptcy was filed before the eviction was filed.  The attorney
representing the tenant in bankruptcy says they are going to ask for a stay
on Eviction case.  No lease by the way.  Not suing for back rent, just
possession.

My understanding is that the landlord can proceed with the eviction, in rem
only, as long as we are not seeking monetary damages, but I know very little
about bankruptcy.  Has anyone else ever faced this situation?  Or does
anyone know enough about bankruptcy to say whether the eviction would be
stayed?  Any suggestions are appreciated.

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.

If it is a Chapter 7 and the property is not claimed as exempt, then the "property" belongs to the Trustee.  If it is a Chapter 13, you need to review the plan to see how it is treated in the Plan.

Section 365 of the Bankruptcy Code relates to acceptance and rejection of executory contracts.  Check the debtors' schedules and see if they listed any executory contracts and what their intentions are regarding those contracts.  Chances are they did not list your lease.  You may need to file a Motion To Accept or Reject an Executory Contract along with a Motion For Relief From Stay.

In rem or not, your eviction is on hold until you first get permission from the bankruptcy court.  The stay is also a stay against property of the debtors and arguably they have a leasehold interest in the property.  If the attorney for the debtors asks to stay the eviction, as for back rent as a condition of the stay.  If the tenant is going to "accept" the executory contract, they have to cure defaults and provide "adequate assurances" that defaults will be promptly cured and of future performance.  Usually that means rent and attorneys' fees.

Probably much more than you wanted to know.  Good luck!

Chuck Hoskin

This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (850-433-6581) or by electronic mail (choskin@esclaw.commailto:choskin@esclaw.com) and then delete this message and all copies and backups thereof. Thank you.

Charles P. Hoskin
Direct Dial:  850-444-3881
Fax:  850-434-7163

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, November 29, 2011 11:47 AM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Evicton vs. Bankrupty question

Fellow Group Members,

I have a situation where I recently filed an eviction against a residential tenant who is currently in bankruptcy proceedings.  In fact, the tenant just filed a few weeks ago, but I think it's important to note that the bankruptcy was filed before the eviction was filed.  The attorney representing the tenant in bankruptcy says they are going to ask for a stay on Eviction case.  No lease by the way.  Not suing for back rent, just possession.

My understanding is that the landlord can proceed with the eviction, in rem only, as long as we are not seeking monetary damages, but I know very little about bankruptcy.  Has anyone else ever faced this situation?  Or does anyone know enough about bankruptcy to say whether the eviction would be stayed?  Any suggestions are appreciated.
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.

The issue here is whether the leasehold estate has been terminated prior to the debtor filing the petition.  If the lease has been effectively terminated, then it is not property of the estate and the debtor may not accept the executory contract under Section 365.  Whether or not the lease has been terminated prior to the filing may be a question of law or fact that the bankruptcy judge may have to decide, particularly if the tenant is in possession and won't leave.  Section 362 has a provision for residential landlords if a writ of possession has been issued before filing.  Otherwise, it is best to get an order from the bankruptcy court.

This e-mail message and all attachments transmitted with it may contain legally privileged and confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any reading, dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately by telephone (850-433-6581) or by electronic mail (choskin@esclaw.commailto:choskin@esclaw.com) and then delete this message and all copies and backups thereof. Thank you.

Charles P. Hoskin
Direct Dial:  850-444-3881
Fax:  850-434-7163

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Eric Jacobs, Esq.
Sent: Tuesday, November 29, 2011 12:24 PM
To: Cary Sabol; RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Evicton vs. Bankrupty question

I'm sorry to say I'm no expert but I think that even seeking possession would be a violation of the stay. I was under the impression that the automatic stay did not apply where the eviction was filed first not subsequent.  I would review I think its §362 if memory serves.  Beyond that, the debtor has to comply with certain requirements to maintain a stay against a residential landlord (see the section).  I think you need to move for relief from the stay and you'll probably get it in any case I would expect.

Our firm and our family support the wonderful work of Mount Sinai Medical Center
David Posnack Jewish Day School, and
The Holocaust Documentation and Education Center.

Ask us how you can help support these fine institutions.

JACOBS / OFFIR
PERSPECTIVE IN PRACTICE

[cid:image001.png@01CCAEA1.64FF1C70]
Eric Jacobs, J.D., M.B.A.
Managing Partner
Board Certified

eric@jolegal.commailto:eric@jacobsoffir.com
1930 Harrison Street, Suite 208
Hollywood, Florida 33020http://maps.yahoo.com/py/maps.py?Pyt=Tmap&addr=1911+Harrison+Street&csz=Hollywood%2C+Florida+33020&country=us

Tel: 954-929-0679 http://www.plaxo.com/click_to_call?src=jj_signature&To=954-929-0679&Email=ericj@jerichotitle.com
fax: 888-632-4944
mobile: 954-243-3100 http://www.plaxo.com/click_to_call?src=jj_signature&To=954-243-3100&Email=ericj@jerichotitle.com

Confidentiality and Relationship Disclosure. If you are reading this, congratulations, you are probably the first.  For years law firms have included lengthy disclosures at the bottom of their emails which in our view are of, at best, marginal legal value.  We have decided not to do that.  Instead, we will ask that if you got this email and shouldn't have, let us know and please don't read it (though if you've read this, chances are that ship has sailed).  Also, just because we exchange emails doesn't make us your lawyer(s).  If you would like to create an attorney/ client relationship, we're glad to hear it and would be happy to provide you with an engagement letter.  As soon as you have received written confirmation from us, you can consider our relationship formed.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, November 29, 2011 12:47 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Evicton vs. Bankrupty question

Fellow Group Members,

I have a situation where I recently filed an eviction against a residential tenant who is currently in bankruptcy proceedings.  In fact, the tenant just filed a few weeks ago, but I think it's important to note that the bankruptcy was filed before the eviction was filed.  The attorney representing the tenant in bankruptcy says they are going to ask for a stay on Eviction case.  No lease by the way.  Not suing for back rent, just possession.

My understanding is that the landlord can proceed with the eviction, in rem only, as long as we are not seeking monetary damages, but I know very little about bankruptcy.  Has anyone else ever faced this situation?  Or does anyone know enough about bankruptcy to say whether the eviction would be stayed?  Any suggestions are appreciated.
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.

Feel free to email my partner David Weisse, david@evict.com as he handles
these all the time.  It usually takes about 30 days to get the Stay lifted
if you jump on it.  The legitimacy of the eviction and the 3 Day Notice
concerns me if it was filed with knowledge of the BK.  Sometimes the tenant
is planning on leaving anyway so it does not mess up their rental history so
check to see what the attorney says before you file.

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 Chuck Hoskin
Sent: Tuesday, November 29, 2011 3:08 PM
To: 'Cary Sabol'; 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Eviction vs. Bankruptcy question

If it is a Chapter 7 and the property is not claimed as exempt, then the
"property" belongs to the Trustee.  If it is a Chapter 13, you need to
review the plan to see how it is treated in the Plan.

Section 365 of the Bankruptcy Code relates to acceptance and rejection of
executory contracts.  Check the debtors' schedules and see if they listed
any executory contracts and what their intentions are regarding those
contracts.  Chances are they did not list your lease.  You may need to file
a Motion To Accept or Reject an Executory Contract along with a Motion For
Relief From Stay.

In rem or not, your eviction is on hold until you first get permission from
the bankruptcy court.  The stay is also a stay against property of the
debtors and arguably they have a leasehold interest in the property.  If the
attorney for the debtors asks to stay the eviction, as for back rent as a
condition of the stay.  If the tenant is going to "accept" the executory
contract, they have to cure defaults and provide "adequate assurances" that
defaults will be promptly cured and of future performance.  Usually that
means rent and attorneys' fees.

Probably much more than you wanted to know.  Good luck!

Chuck Hoskin

This e-mail message and all attachments transmitted with it may contain
legally privileged and confidential information intended solely for the use
of the addressee. If the reader of this message is not the intended
recipient, you are hereby notified that any reading, dissemination,
distribution, copying, or other use of this message or its attachments is
strictly prohibited. If you have received this message in error, please
notify the sender immediately by telephone (850-433-6581) or by electronic
mail (choskin@esclaw.com) and then delete this message and all copies and
backups thereof. Thank you.

Charles P. Hoskin
Direct Dial:  850-444-3881
Fax:  850-434-7163

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, November 29, 2011 11:47 AM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Evicton vs. Bankrupty question

Fellow Group Members,

I have a situation where I recently filed an eviction against a residential
tenant who is currently in bankruptcy proceedings.  In fact, the tenant just
filed a few weeks ago, but I think it's important to note that the
bankruptcy was filed before the eviction was filed.  The attorney
representing the tenant in bankruptcy says they are going to ask for a stay
on Eviction case.  No lease by the way.  Not suing for back rent, just
possession.

My understanding is that the landlord can proceed with the eviction, in rem
only, as long as we are not seeking monetary damages, but I know very little
about bankruptcy.  Has anyone else ever faced this situation?  Or does
anyone know enough about bankruptcy to say whether the eviction would be
stayed?  Any suggestions are appreciated.

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.

Folks:

Issue:

What can be done with the Tenant's personal property when the Sheriff serves
a writ of possession on a non-residential tenant?

Residential Statute .  For residential property, § 83.62(2), Fla. Stat.
provides: "[When and after] ... the sheriff executes the writ ..., the
landlord ... may remove any personal property found on the premises to or
near the property line.” Also, “Subsequent to executing the writ of
possession, the landlord may request the sheriff to stand by to keep the
peace while the landlord changes the locks and removes the personal property
from the premises. ...” and it shields the Sheriff and Landlord from
liability for damage to the property.

Nonresidential. There is no statute that I can find, or any case law.
However:

1. The Landlord can’t just trash the personal property or dump it at the
   property line unless the lease explicitly allows it.

2. It seems reasonable to allow the tenant to return and remove the
   personal property;

3. Certainly the procedures contemplated by Sec. 715.10 … provide a safe,
   albeit time-consuming way to get rid of the stuff.

Other Choices for NonResidential?

One of my clients ignored our advice, dumped a big load of used computer
parts ultimately paid his former tenant $25,000 to settle the tenant’s
$300,000 conversion action. Another client took our advice, allowed us to
implement Ch. 715, got sued for a quarter-million anyway, and forced the
Plaintiff to drop the action.

Does anyone know of any other choices that might work quickly but still keep
the Landlord from getting sued for conversion.

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

Non-residential: Chapter 715.10 I think...

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Tuesday, November 29, 2011 4:01 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Disposition of personal property remaining incommercial premises post-execution of writ of possession

Folks:

Issue:

What can be done with the Tenant's personal property when the Sheriff serves a writ of possession on a non-residential tenant?

Residential Statute .  For residential property, § 83.62(2), Fla. Stat. provides: "[When and after] ... the sheriff executes the writ ..., the landlord ... may remove any personal property found on the premises to or near the property line." Also, "Subsequent to executing the writ of possession, the landlord may request the sheriff to stand by to keep the peace while the landlord changes the locks and removes the personal property from the premises. ..." and it shields the Sheriff and Landlord from liability for damage to the property.

Nonresidential. There is no statute that I can find, or any case law. However:

1. The Landlord can't just trash the personal property or dump it at the property line unless the lease explicitly allows it.

2. It seems reasonable to allow the tenant to return and remove the personal property;

3. Certainly the procedures contemplated by Sec. 715.10 ... provide a safe, albeit time-consuming way to get rid of the stuff.

Other Choices for NonResidential?

One of my clients ignored our advice, dumped a big load of used computer parts ultimately paid his former tenant $25,000 to settle the tenant's $300,000 conversion action. Another client took our advice, allowed us to implement Ch. 715, got sued for a quarter-million anyway, and forced the Plaintiff to drop the action.

Does anyone know of any other choices that might work quickly but still keep the Landlord from getting sued for conversion.

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

CLE course materials for the seminar presented by Anthony Horky in January 2010 on this very topic can be located on the Landlord Tenant website.  Thanks.

Brenda Ezell
Secretary, Landlord Tenant Committee

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Drobner, David S.
Sent: Tuesday, November 29, 2011 4:08 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Disposition of personal property remaining incommercial premises post-execution of writ of possession

Non-residential: Chapter 715.10 I think...

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Tuesday, November 29, 2011 4:01 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Disposition of personal property remaining incommercial premises post-execution of writ of possession

Folks:

Issue:

What can be done with the Tenant's personal property when the Sheriff serves a writ of possession on a non-residential tenant?

Residential Statute .  For residential property, § 83.62(2), Fla. Stat. provides: "[When and after] ... the sheriff executes the writ ..., the landlord ... may remove any personal property found on the premises to or near the property line." Also, "Subsequent to executing the writ of possession, the landlord may request the sheriff to stand by to keep the peace while the landlord changes the locks and removes the personal property from the premises. ..." and it shields the Sheriff and Landlord from liability for damage to the property.

Nonresidential. There is no statute that I can find, or any case law. However:

1. The Landlord can't just trash the personal property or dump it at the property line unless the lease explicitly allows it.

2. It seems reasonable to allow the tenant to return and remove the personal property;

3. Certainly the procedures contemplated by Sec. 715.10 ... provide a safe, albeit time-consuming way to get rid of the stuff.

Other Choices for NonResidential?

One of my clients ignored our advice, dumped a big load of used computer parts ultimately paid his former tenant $25,000 to settle the tenant's $300,000 conversion action. Another client took our advice, allowed us to implement Ch. 715, got sued for a quarter-million anyway, and forced the Plaintiff to drop the action.

Does anyone know of any other choices that might work quickly but still keep the Landlord from getting sued for conversion.

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.commailto:JMazor@Mazor.com

Thanks, Brenda.  I can email anyone who wants the materials from that
seminar, although it focused on residential fact patterns.  Section 715.10,
et seq. is supposed to be an “optional procedure for the disposition of
personal property” but the statute does not indicate what the other
procedures might be.  After having a client/landlord get stuck with dozens
of 18-wheeler trailers and other large, locked storage containers on a lot,
I’ve methodically reviewed the Florida statutes on this issue and could find
no other alternative to Section 715.10, et. seq.  The lease in question did
not contain a provision for the disposition of the property.  We ran UCC
searches to identify lien holders in addition to notifying the tenant at its
last known address. Florida Statutes, Chapters 705 and 715, appear to be the
only laws on disposing of personal property.    If someone is aware of an
alternative, I’d love to know about it. Thanks.

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

Email:  ajhorky.law@gmail.com

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From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Drobner, David
S.
Sent: Tuesday, November 29, 2011 4:08 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Disposition of personal property remaining
incommercial premises post-execution of writ of possession

Non-residential: Chapter 715.10 I think…

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Tuesday, November 29, 2011 4:01 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Disposition of personal property remaining
incommercial premises post-execution of writ of possession

Folks:

Issue:

What can be done with the Tenant's personal property when the Sheriff serves
a writ of possession on a non-residential tenant?

Residential Statute .  For residential property, § 83.62(2), Fla. Stat.
provides: "[When and after] ... the sheriff executes the writ ..., the
landlord ... may remove any personal property found on the premises to or
near the property line.” Also, “Subsequent to executing the writ of
possession, the landlord may request the sheriff to stand by to keep the
peace while the landlord changes the locks and removes the personal property
from the premises. ...” and it shields the Sheriff and Landlord from
liability for damage to the property.

Nonresidential. There is no statute that I can find, or any case law.
However:

1. The Landlord can’t just trash the personal property or dump it at the
   property line unless the lease explicitly allows it.

2. It seems reasonable to allow the tenant to return and remove the
   personal property;

3. Certainly the procedures contemplated by Sec. 715.10 … provide a safe,
   albeit time-consuming way to get rid of the stuff.

Other Choices for NonResidential?

One of my clients ignored our advice, dumped a big load of used computer
parts ultimately paid his former tenant $25,000 to settle the tenant’s
$300,000 conversion action. Another client took our advice, allowed us to
implement Ch. 715, got sued for a quarter-million anyway, and forced the
Plaintiff to drop the action.

Does anyone know of any other choices that might work quickly but still keep
the Landlord from getting sued for conversion.

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