Darn it  -- That's the conclusion I reached, too, and I was hoping I was
wrong.

At least with input from the group, I can be confident that 715 offers the
only safe way of disposing of the personal property.

Anthony, I would appreciate a copy of the materials, if you can.

Thanks, all.

Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd.,  Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax:      954-962-3560
Email:  JMazor@Mazor.com

-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, November 29, 2011 4:51 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Disposition of personal property remaining
incommercial premises post-execution of writ of possession

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

This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is attorney-client
privileged or confidential, and/or may contain attorney work product.  If
you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have
received this communication in error, please delete all electronic copies of
this message and its attachments, if any, destroy any hard copies you may
have created and notify me immediately at: ajhorky.law@gmail.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

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

I would like a copy of the materials.

Leonard Cabral, Esq.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, November 29, 2011 4:51 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Disposition of personal property remaining
incommercial premises post-execution of writ of possession

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

This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is attorney-client
privileged or confidential, and/or may contain attorney work product.  If
you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have
received this communication in error, please delete all electronic copies of
this message and its attachments, if any, destroy any hard copies you may
have created and notify me immediately at: ajhorky.law@gmail.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

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

Good morning, Leonard.  Here are the materials.  Thank you.

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

This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is attorney-client
privileged or confidential, and/or may contain attorney work product.  If
you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have
received this communication in error, please delete all electronic copies of
this message and its attachments, if any, destroy any hard copies you may
have created and notify me immediately at: ajhorky.law@gmail.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Thursday, December 01, 2011 1:24 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Disposition of personal property remaining
incommercial premises post-execution of writ of possession

I would like a copy of the materials.

Leonard Cabral, Esq.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, November 29, 2011 4:51 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Disposition of personal property remaining
incommercial premises post-execution of writ of possession

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

This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is attorney-client
privileged or confidential, and/or may contain attorney work product.  If
you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have
received this communication in error, please delete all electronic copies of
this message and its attachments, if any, destroy any hard copies you may
have created and notify me immediately at: ajhorky.law@gmail.com.

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

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

A number of residential eviction cases have been dismissed with prejudice
based upon what I believe is a very distorted interpretation of FS, Section
83.56(5), copied at the bottom of this email. This may be something that
should be addressed by our committee.

We know that when a Landlord accepts rent, she loses the right to proceed on
any  already-delivered Notice to Pay or Vacate, and must prepare and deliver
a new Notice to Pay or Vacate reflecting the reduced outstanding balance.
There is some indication that some judges may be uncomfortable with a
Landlord accepting a partial payment and then quickly serving a new Notice
to Pay or Vacate.

These cases have held, in effect, that when a Landlord accepts rent that
includes any partial payment for the current month, she not only loses the
right to proceed on any  already-delivered Notice to Pay or Vacate,  but
also loses the right to do a new Notice to Pay or Vacate for the outstanding
balance for the current month, and loses the right to sue for eviction until
after the beginning of the next month!

The few judges that adhere to this approach seem to treat the current month
as a unified whole so that accepting any partial payment for that month
waives all enforcement rights for the whole month.

The orders of dismissal contain language such as:

        “2.        Plaintiff waived the right to bring this action by

accepting rental monies during the period of noncompliance being sued. §
83.56(5), Fla. Stat. Plaintiff accepted $500.00 in August.

        3.         Under § 83.56(5), Fla. Stat., when a landlord accepts

rent with actual knowledge of noncompliance by the tenant, the landlord
waives his or her right to terminate the rental agreement for the
noncompliance. Hodgson v. Jones, 6 Fla. L. Weekly Supp. 758a (Fla. 17th Cir.
Ct. 1999).

        4.         A partial payment of the rent is an act of

noncompliance for the reason that at the time the landlord accepts the
partial payment the landlord is aware that the tenant is not in full
compliance with the terms of the rental agreement.”

As a practical matter, this approach means that if a tenant can only make a
partial payment for a given month, unless it is very substantial, the
Landlord probably should refuse the partial payment and instead proceed to
evict because, otherwise, the tenant will be able to stay for the entire
month without paying anything beyond that partial payment.

This seemingly pro-tenant interpretation of the statute, if allowed to
stand, will simply mean more evictions and less ability to give any
consideration or flexibility to the tenants.

Your thoughts?

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

Florida Statutes, Section 83.56(5) says, in part:

        (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 . . . the landlord . . . 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.  . .
.

This distorted  and completely wrong view was started by Judge Martinez in
Orange County years ago and is spreading. It has even gone further where
some judges feel you completely waive your right to the balance forever if
you accept a partial payment.

This interpretation which has been promoted by those doing tenant defense
work is resulting in landlords refusing to take ANY partial payments and in
the end, MORE tenants get evicted.

To further the problem, some of this garbage, often in a twisted, inaccurate
and distorted fashion gets published in Florida Law Weekly which some judges
rely upon.

It is completely out of control and possibly the admin judges need to find
out what is going on.  The system is becoming clogged and in 21 years I have
never seen such an incredible mess.

Since the foreclosure debacle, more judges are gun shy and are setting
hearings where there is no money in the registry in complete violation of
the law.

The plethora of the wannabe attorney fake scum who charge people to "prepare
documents" has resulted in a massive amount of defective cases.

The Bar should revisit these terrible fill in the blank forms that non
attorneys are allowed to prepare.  They are HURTING the public and the
profession.

Harry Heist

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: Thursday, December 01, 2011 11:25 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

A number of residential eviction cases have been dismissed with prejudice
based upon what I believe is a very distorted interpretation of FS, Section
83.56(5), copied at the bottom of this email. This may be something that
should be addressed by our committee.

We know that when a Landlord accepts rent, she loses the right to proceed on
any  already-delivered Notice to Pay or Vacate, and must prepare and deliver
a new Notice to Pay or Vacate reflecting the reduced outstanding balance.
There is some indication that some judges may be uncomfortable with a
Landlord accepting a partial payment and then quickly serving a new Notice
to Pay or Vacate.

These cases have held, in effect, that when a Landlord accepts rent that
includes any partial payment for the current month, she not only loses the
right to proceed on any  already-delivered Notice to Pay or Vacate,  but
also loses the right to do a new Notice to Pay or Vacate for the outstanding
balance for the current month, and loses the right to sue for eviction until
after the beginning of the next month!

The few judges that adhere to this approach seem to treat the current month
as a unified whole so that accepting any partial payment for that month
waives all enforcement rights for the whole month.

The orders of dismissal contain language such as:

        “2.        Plaintiff waived the right to bring this action by

accepting rental monies during the period of noncompliance being sued. §
83.56(5), Fla. Stat. Plaintiff accepted $500.00 in August.

        3.         Under § 83.56(5), Fla. Stat., when a landlord accepts

rent with actual knowledge of noncompliance by the tenant, the landlord
waives his or her right to terminate the rental agreement for the
noncompliance. Hodgson v. Jones, 6 Fla. L. Weekly Supp. 758a (Fla. 17th Cir.
Ct. 1999).

        4.         A partial payment of the rent is an act of

noncompliance for the reason that at the time the landlord accepts the
partial payment the landlord is aware that the tenant is not in full
compliance with the terms of the rental agreement.”

As a practical matter, this approach means that if a tenant can only make a
partial payment for a given month, unless it is very substantial, the
Landlord probably should refuse the partial payment and instead proceed to
evict because, otherwise, the tenant will be able to stay for the entire
month without paying anything beyond that partial payment.

This seemingly pro-tenant interpretation of the statute, if allowed to
stand, will simply mean more evictions and less ability to give any
consideration or flexibility to the tenants.

Your thoughts?

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

Florida Statutes, Section 83.56(5) says, in part:

        (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 . . . the landlord . . . 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.  . .
.

Harry

I told the Seminole County Clerk that their pro-se complaint form did not
comply with Fla. Bar Forms AND did not comply with the rules of pleading. I
was ignored. So I brought a motion to dismiss for violation of the rules of
pleading. The judge agreed that the form did not comply with the law but
that a pro-se litigant should be able to rely on the forms provided by the
Clerk.  I filed a UPL complaint against the clerk and received a negative
decision from the Fla. bar stating that the Rules allow Chief Judges to
approve forms for use by the clerk..  What? First there was no indication
that the chief judge approved the form; second how does a chief judge
rewrite Fla. Bar Approved forms?

In 2010 the Fla Bar just revamped the forms to make it easier to fill in the
blank. Why don't they just fill in the blank with GET AN ATTORNEY?  The
Supreme Court denied cert and could have cleared up some of this mess. You
are right, (for once in your life (you know that I am kidding)), this is
hurting the public and the profession. The worst thing to give the public a
sense of fairness in the judicial system is when an attorney decides on
taking a case based on the judge that presides over the case rather than the
law.  It seems from your email that you are sick of this crap. I am feeling
your pain.  Next time you are in Orlando let me know. I think they opened a
new White Castle in Orlando. (Sorry group, no White Castle. Just an inside
story between Harry and I).

Leonard Cabral, Esq.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Thursday, December 01, 2011 11:43 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

This distorted  and completely wrong view was started by Judge Martinez in
Orange County years ago and is spreading. It has even gone further where
some judges feel you completely waive your right to the balance forever if
you accept a partial payment.

This interpretation which has been promoted by those doing tenant defense
work is resulting in landlords refusing to take ANY partial payments and in
the end, MORE tenants get evicted.

To further the problem, some of this garbage, often in a twisted, inaccurate
and distorted fashion gets published in Florida Law Weekly which some judges
rely upon.

It is completely out of control and possibly the admin judges need to find
out what is going on.  The system is becoming clogged and in 21 years I have
never seen such an incredible mess.

Since the foreclosure debacle, more judges are gun shy and are setting
hearings where there is no money in the registry in complete violation of
the law.

The plethora of the wannabe attorney fake scum who charge people to "prepare
documents" has resulted in a massive amount of defective cases.

The Bar should revisit these terrible fill in the blank forms that non
attorneys are allowed to prepare.  They are HURTING the public and the
profession.

Harry Heist

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: Thursday, December 01, 2011 11:25 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

A number of residential eviction cases have been dismissed with prejudice
based upon what I believe is a very distorted interpretation of FS, Section
83.56(5), copied at the bottom of this email. This may be something that
should be addressed by our committee.

We know that when a Landlord accepts rent, she loses the right to proceed on
any  already-delivered Notice to Pay or Vacate, and must prepare and deliver
a new Notice to Pay or Vacate reflecting the reduced outstanding balance.
There is some indication that some judges may be uncomfortable with a
Landlord accepting a partial payment and then quickly serving a new Notice
to Pay or Vacate.

These cases have held, in effect, that when a Landlord accepts rent that
includes any partial payment for the current month, she not only loses the
right to proceed on any  already-delivered Notice to Pay or Vacate,  but
also loses the right to do a new Notice to Pay or Vacate for the outstanding
balance for the current month, and loses the right to sue for eviction until
after the beginning of the next month!

The few judges that adhere to this approach seem to treat the current month
as a unified whole so that accepting any partial payment for that month
waives all enforcement rights for the whole month.

The orders of dismissal contain language such as:

        “2.        Plaintiff waived the right to bring this action by

accepting rental monies during the period of noncompliance being sued. §
83.56(5), Fla. Stat. Plaintiff accepted $500.00 in August.

        3.         Under § 83.56(5), Fla. Stat., when a landlord accepts

rent with actual knowledge of noncompliance by the tenant, the landlord
waives his or her right to terminate the rental agreement for the
noncompliance. Hodgson v. Jones, 6 Fla. L. Weekly Supp. 758a (Fla. 17th Cir.
Ct. 1999).

        4.         A partial payment of the rent is an act of

noncompliance for the reason that at the time the landlord accepts the
partial payment the landlord is aware that the tenant is not in full
compliance with the terms of the rental agreement.”

As a practical matter, this approach means that if a tenant can only make a
partial payment for a given month, unless it is very substantial, the
Landlord probably should refuse the partial payment and instead proceed to
evict because, otherwise, the tenant will be able to stay for the entire
month without paying anything beyond that partial payment.

This seemingly pro-tenant interpretation of the statute, if allowed to
stand, will simply mean more evictions and less ability to give any
consideration or flexibility to the tenants.

Your thoughts?

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

Florida Statutes, Section 83.56(5) says, in part:

        (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 . . . the landlord . . . 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.  . .
.

Harry, pls give me a call.

Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd.,  Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax:      954-962-3560
Email:  JMazor@Mazor.com

-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Thursday, December 01, 2011 11:43 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

This distorted  and completely wrong view was started by Judge Martinez in
Orange County years ago and is spreading. It has even gone further where
some judges feel you completely waive your right to the balance forever if
you accept a partial payment.

This interpretation which has been promoted by those doing tenant defense
work is resulting in landlords refusing to take ANY partial payments and in
the end, MORE tenants get evicted.

To further the problem, some of this garbage, often in a twisted, inaccurate
and distorted fashion gets published in Florida Law Weekly which some judges
rely upon.

It is completely out of control and possibly the admin judges need to find
out what is going on.  The system is becoming clogged and in 21 years I have
never seen such an incredible mess.

Since the foreclosure debacle, more judges are gun shy and are setting
hearings where there is no money in the registry in complete violation of
the law.

The plethora of the wannabe attorney fake scum who charge people to "prepare
documents" has resulted in a massive amount of defective cases.

The Bar should revisit these terrible fill in the blank forms that non
attorneys are allowed to prepare.  They are HURTING the public and the
profession.

Harry Heist

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: Thursday, December 01, 2011 11:25 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

A number of residential eviction cases have been dismissed with prejudice
based upon what I believe is a very distorted interpretation of FS, Section
83.56(5), copied at the bottom of this email. This may be something that
should be addressed by our committee.

We know that when a Landlord accepts rent, she loses the right to proceed on
any  already-delivered Notice to Pay or Vacate, and must prepare and deliver
a new Notice to Pay or Vacate reflecting the reduced outstanding balance.
There is some indication that some judges may be uncomfortable with a
Landlord accepting a partial payment and then quickly serving a new Notice
to Pay or Vacate.

These cases have held, in effect, that when a Landlord accepts rent that
includes any partial payment for the current month, she not only loses the
right to proceed on any  already-delivered Notice to Pay or Vacate,  but
also loses the right to do a new Notice to Pay or Vacate for the outstanding
balance for the current month, and loses the right to sue for eviction until
after the beginning of the next month!

The few judges that adhere to this approach seem to treat the current month
as a unified whole so that accepting any partial payment for that month
waives all enforcement rights for the whole month.

The orders of dismissal contain language such as:

        “2.        Plaintiff waived the right to bring this action by

accepting rental monies during the period of noncompliance being sued. §
83.56(5), Fla. Stat. Plaintiff accepted $500.00 in August.

        3.         Under § 83.56(5), Fla. Stat., when a landlord accepts

rent with actual knowledge of noncompliance by the tenant, the landlord
waives his or her right to terminate the rental agreement for the
noncompliance. Hodgson v. Jones, 6 Fla. L. Weekly Supp. 758a (Fla. 17th Cir.
Ct. 1999).

        4.         A partial payment of the rent is an act of

noncompliance for the reason that at the time the landlord accepts the
partial payment the landlord is aware that the tenant is not in full
compliance with the terms of the rental agreement.”

As a practical matter, this approach means that if a tenant can only make a
partial payment for a given month, unless it is very substantial, the
Landlord probably should refuse the partial payment and instead proceed to
evict because, otherwise, the tenant will be able to stay for the entire
month without paying anything beyond that partial payment.

This seemingly pro-tenant interpretation of the statute, if allowed to
stand, will simply mean more evictions and less ability to give any
consideration or flexibility to the tenants.

Your thoughts?

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

Florida Statutes, Section 83.56(5) says, in part:

        (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 . . . the landlord . . . 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.  . .
.

Rather than repeat the horror stories, suffice to say I completely agree with all of those who have commented on this issue.  I never know whether to advise my clients to accept the partial payment or not.  As they say, a bird in the hand...  And I generally work with small/independent landlords, so they often need the money more than the tenants do.  Would love to see a "fix" on this issue.

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. 
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From: Harry Heist harry@evict.com
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org
Sent: Thursday, December 1, 2011 11:42 AM
Subject: Re: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's right toi sue for possession

This distorted  and completely wrong view was started by Judge Martinez in Orange County years ago and is spreading. It has even gone further where some judges feel you completely waive your right to the balance forever if you accept a partial payment.
 
This interpretation which has been promoted by those doing tenant defense work is resulting in landlords refusing to take ANY partial payments and in the end, MORE tenants get evicted.
 
To further the problem, some of this garbage, often in a twisted, inaccurate  and distorted fashion gets published in Florida Law Weekly which some judges rely upon.
 
It is completely out of control and possibly the admin judges need to find out what is going on.  The system is becoming clogged and in 21 years I have never seen such an incredible mess.
 
Since the foreclosure debacle, more judges are gun shy and are setting hearings where there is no money in the registry in complete violation of the law.
 
The plethora of the wannabe attorney fake scum who charge people to "prepare documents" has resulted in a massive amount of defective cases.
 
The Bar should revisit these terrible fill in the blank forms that non attorneys are allowed to prepare.  They are HURTING the public and the profession.
 
Harry Heist
 
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
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: Thursday, December 01, 2011 11:25 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's right toi sue for possession
 
A number of residential eviction cases have been dismissed with prejudice based upon what I believe is a very distorted interpretation of FS, Section 83.56(5), copied at the bottom of this email. This may be something that should be addressed by our committee.
 
We know that when a Landlord accepts rent, she loses the right to proceed on any  already-delivered Notice to Pay or Vacate, and must prepare and deliver a new Notice to Pay or Vacate reflecting the reduced outstanding balance.  There is some indication that some judges may be uncomfortable with a Landlord accepting a partial payment and then quickly serving a new Notice to Pay or Vacate.
 
These cases have held, in effect, that when a Landlord accepts rent that includes any partial payment for the current month, she not only loses the right to proceed on any  already-delivered Notice to Pay or Vacate,  but also loses the right to do a new Notice to Pay or Vacate for the outstanding balance for the current month, and loses the right to sue for eviction until after the beginning of the next month!
 
The few judges that adhere to this approach seem to treat the current month as a unified whole so that accepting any partial payment for that month waives all enforcement rights for the whole month. 
                                               
The orders of dismissal contain language such as:
 
            “2.        Plaintiff waived the right to bring this action by accepting rental monies during the period of noncompliance being sued. § 83.56(5), Fla. Stat. Plaintiff accepted $500.00 in August.
 
            3.         Under § 83.56(5), Fla. Stat., when a landlord accepts rent with actual knowledge of noncompliance by the tenant, the landlord waives his or her right to terminate the rental agreement for the noncompliance. Hodgson v. Jones, 6 Fla. L. Weekly Supp. 758a (Fla. 17th Cir. Ct. 1999).
 
            4.         A partial payment of the rent is an act of noncompliance for the reason that at the time the landlord accepts the partial payment the landlord is aware that the tenant is not in full compliance with the terms of the rental agreement.”
 
As a practical matter, this approach means that if a tenant can only make a partial payment for a given month, unless it is very substantial, the Landlord probably should refuse the partial payment and instead proceed to evict because, otherwise, the tenant will be able to stay for the entire month without paying anything beyond that partial payment.
 
This seemingly pro-tenant interpretation of the statute, if allowed to stand, will simply mean more evictions and less ability to give any consideration or flexibility to the tenants.
 
Your thoughts? 
 
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
 
 
Florida Statutes, Section 83.56(5) says, in part:
 
            (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 . . . the landlord . . . 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.   . . .

landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten

Where else have you seen these wild rulings that partial payments ARE
noncompliance, and that accepting any rent for a given month waives your
right to start enforcement until after that month?

Does anyone know of any appellate decisions on this issue or of any cases
ruling to the contrary?

Does anyone have the legislative history on the waiver portion of statute?

Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd.,  Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax:      954-962-3560
Email:  JMazor@Mazor.com

-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Thursday, December 01, 2011 11:43 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

This distorted  and completely wrong view was started by Judge Martinez in
Orange County years ago and is spreading. It has even gone further where
some judges feel you completely waive your right to the balance forever if
you accept a partial payment.

This interpretation which has been promoted by those doing tenant defense
work is resulting in landlords refusing to take ANY partial payments and in
the end, MORE tenants get evicted.

To further the problem, some of this garbage, often in a twisted, inaccurate
and distorted fashion gets published in Florida Law Weekly which some judges
rely upon.

It is completely out of control and possibly the admin judges need to find
out what is going on.  The system is becoming clogged and in 21 years I have
never seen such an incredible mess.

Since the foreclosure debacle, more judges are gun shy and are setting
hearings where there is no money in the registry in complete violation of
the law.

The plethora of the wannabe attorney fake scum who charge people to "prepare
documents" has resulted in a massive amount of defective cases.

The Bar should revisit these terrible fill in the blank forms that non
attorneys are allowed to prepare.  They are HURTING the public and the
profession.

Harry Heist

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: Thursday, December 01, 2011 11:25 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

A number of residential eviction cases have been dismissed with prejudice
based upon what I believe is a very distorted interpretation of FS, Section
83.56(5), copied at the bottom of this email. This may be something that
should be addressed by our committee.

We know that when a Landlord accepts rent, she loses the right to proceed on
any  already-delivered Notice to Pay or Vacate, and must prepare and deliver
a new Notice to Pay or Vacate reflecting the reduced outstanding balance.
There is some indication that some judges may be uncomfortable with a
Landlord accepting a partial payment and then quickly serving a new Notice
to Pay or Vacate.

These cases have held, in effect, that when a Landlord accepts rent that
includes any partial payment for the current month, she not only loses the
right to proceed on any  already-delivered Notice to Pay or Vacate,  but
also loses the right to do a new Notice to Pay or Vacate for the outstanding
balance for the current month, and loses the right to sue for eviction until
after the beginning of the next month!

The few judges that adhere to this approach seem to treat the current month
as a unified whole so that accepting any partial payment for that month
waives all enforcement rights for the whole month.

The orders of dismissal contain language such as:

        “2.        Plaintiff waived the right to bring this action by

accepting rental monies during the period of noncompliance being sued. §
83.56(5), Fla. Stat. Plaintiff accepted $500.00 in August.

        3.         Under § 83.56(5), Fla. Stat., when a landlord accepts

rent with actual knowledge of noncompliance by the tenant, the landlord
waives his or her right to terminate the rental agreement for the
noncompliance. Hodgson v. Jones, 6 Fla. L. Weekly Supp. 758a (Fla. 17th Cir.
Ct. 1999).

        4.         A partial payment of the rent is an act of

noncompliance for the reason that at the time the landlord accepts the
partial payment the landlord is aware that the tenant is not in full
compliance with the terms of the rental agreement.”

As a practical matter, this approach means that if a tenant can only make a
partial payment for a given month, unless it is very substantial, the
Landlord probably should refuse the partial payment and instead proceed to
evict because, otherwise, the tenant will be able to stay for the entire
month without paying anything beyond that partial payment.

This seemingly pro-tenant interpretation of the statute, if allowed to
stand, will simply mean more evictions and less ability to give any
consideration or flexibility to the tenants.

Your thoughts?

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

Florida Statutes, Section 83.56(5) says, in part:

        (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 . . . the landlord . . . 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.  . .
.

Green in Volusia, Martinez in Orange

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
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.

-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Thursday, December 01, 2011 4:36 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

Where else have you seen these wild rulings that partial payments ARE
noncompliance, and that accepting any rent for a given month waives your
right to start enforcement until after that month?

Does anyone know of any appellate decisions on this issue or of any cases
ruling to the contrary?

Does anyone have the legislative history on the waiver portion of statute?

Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd.,  Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax:      954-962-3560
Email:  JMazor@Mazor.com

-----Original Message-----
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Thursday, December 01, 2011 11:43 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

This distorted  and completely wrong view was started by Judge Martinez in
Orange County years ago and is spreading. It has even gone further where
some judges feel you completely waive your right to the balance forever if
you accept a partial payment.

This interpretation which has been promoted by those doing tenant defense
work is resulting in landlords refusing to take ANY partial payments and in
the end, MORE tenants get evicted.

To further the problem, some of this garbage, often in a twisted, inaccurate
and distorted fashion gets published in Florida Law Weekly which some judges
rely upon.

It is completely out of control and possibly the admin judges need to find
out what is going on.  The system is becoming clogged and in 21 years I have
never seen such an incredible mess.

Since the foreclosure debacle, more judges are gun shy and are setting
hearings where there is no money in the registry in complete violation of
the law.

The plethora of the wannabe attorney fake scum who charge people to "prepare
documents" has resulted in a massive amount of defective cases.

The Bar should revisit these terrible fill in the blank forms that non
attorneys are allowed to prepare.  They are HURTING the public and the
profession.

Harry Heist

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: Thursday, December 01, 2011 11:25 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Dangerous Expansion of the waiver of Landlord's
right toi sue for possession

A number of residential eviction cases have been dismissed with prejudice
based upon what I believe is a very distorted interpretation of FS, Section
83.56(5), copied at the bottom of this email. This may be something that
should be addressed by our committee.

We know that when a Landlord accepts rent, she loses the right to proceed on
any  already-delivered Notice to Pay or Vacate, and must prepare and deliver
a new Notice to Pay or Vacate reflecting the reduced outstanding balance.
There is some indication that some judges may be uncomfortable with a
Landlord accepting a partial payment and then quickly serving a new Notice
to Pay or Vacate.

These cases have held, in effect, that when a Landlord accepts rent that
includes any partial payment for the current month, she not only loses the
right to proceed on any  already-delivered Notice to Pay or Vacate,  but
also loses the right to do a new Notice to Pay or Vacate for the outstanding
balance for the current month, and loses the right to sue for eviction until
after the beginning of the next month!

The few judges that adhere to this approach seem to treat the current month
as a unified whole so that accepting any partial payment for that month
waives all enforcement rights for the whole month.

The orders of dismissal contain language such as:

        “2.        Plaintiff waived the right to bring this action by

accepting rental monies during the period of noncompliance being sued. §
83.56(5), Fla. Stat. Plaintiff accepted $500.00 in August.

        3.         Under § 83.56(5), Fla. Stat., when a landlord accepts

rent with actual knowledge of noncompliance by the tenant, the landlord
waives his or her right to terminate the rental agreement for the
noncompliance. Hodgson v. Jones, 6 Fla. L. Weekly Supp. 758a (Fla. 17th Cir.
Ct. 1999).

        4.         A partial payment of the rent is an act of

noncompliance for the reason that at the time the landlord accepts the
partial payment the landlord is aware that the tenant is not in full
compliance with the terms of the rental agreement.”

As a practical matter, this approach means that if a tenant can only make a
partial payment for a given month, unless it is very substantial, the
Landlord probably should refuse the partial payment and instead proceed to
evict because, otherwise, the tenant will be able to stay for the entire
month without paying anything beyond that partial payment.

This seemingly pro-tenant interpretation of the statute, if allowed to
stand, will simply mean more evictions and less ability to give any
consideration or flexibility to the tenants.

Your thoughts?

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

Florida Statutes, Section 83.56(5) says, in part:

        (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 . . . the landlord . . . 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.  . .
.

landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten