[RPPTL LandTen] Termination of short term occupancy without rent or lease
Thank you.
The real lesson is create a lease
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Dennis Chen
Sent: Wednesday, August 22, 2012 7:42 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without rent or lease
I recommend ejectment because some judges will find that Ch 82 does not apply because it is residential property. i believe I understand the argument that it is not a residential tenancy but nonetheless, there are many judges that will disagree and the process can take much longer. Take a look at the Broward county decision below.
Dennis A. Chen, Esq.
Chen Law Firm, PA
5401 S. Kirkman Rd., Ste. 310
Orlando, Florida 32819
Tel: (407) 392-1872tel:%28407%29%20392-1872
Fax: 1-866-571-3421tel:1-866-571-3421
dennis@chenlaw.netmailto:dennis@chenlaw.net
18 Fla. L. Weekly Supp. 556a
Online Reference: FLWSUPP 1806BERA
Landlord-tenant -- Eviction -- Unlawful detainer -- Action for unlawful detainer is inapplicable to residential tenancy -- Proper procedure is action for ejectment
THE ESTATE OF LOUIS N. BERARDI, Plaintiff, vs. VIRGINIA NASH & ALL OTHERS IN POSSESSION, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-20309 COCE (55). March 1, 2011. Honorable Sharon L. Zeller, Judge.
ORDER ON PLAINTIFF'S MOTION FOR REHEARING
THIS CAUSE came before the Court on Plaintiff's motion for rehearing. The Court having considered same, and being otherwise fully advised in premises, finds and decides as follows:
On or about January 25, 2011, this Court dismissed plaintiff's action against defendant for unlawful detainer, finding that Florida Statutes §82.02(2) and §82.04(2) specifically provide that an action for unlawful detainer is inapplicable to residential tenancies. Plaintiff has now filed a motion for rehearing arguing that this Court misinterpreted the meaning of the term "residential tenancies" as used in the context of Chapter 82, Florida Statutes. This Court has carefully reviewed the applicable statutes, the case law and other materials interpreting unlawful detainer and residential tenancies. This Court disagrees with plaintiff's argument that there was any misinterpretation on this court's part with regard to either Chapter 82 or Chapter 83 as it regards residential tenancies. Nash v. Hunt, 434 So.2d 51 (Fla. 3d DCA 1983). With all due respect to those other courts which have permitted an unlawful detainer action in a case such as this, it is this Court's opinion that the proper procedure here is an action for ejectment, not unlawful detainer. Toledo v. Escamilla, 962 So.2d 1028 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1876a]; Gonzalez v. Benoit, 424 So.2d 957 (Fla. 3d DCA 1983) receded from on other grounds Nash v. Hunt, supra.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff's Motion for Rehearing is DENIED.
On Wed, Aug 22, 2012 at 7:05 PM, Harry Heist <harry@evict.commailto:harry@evict.com> wrote:
Were they contested?
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428tel:1%20800%20253%208428
FAX: 1 800 367 9038tel:1%20800%20367%209038
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From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M. Cardet
Sent: Wednesday, August 22, 2012 6:52 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without rent or lease
I agree with Lainie. I've done a few in Miami-Dade under chapter 82, where the client's friend or friend of friend moved in and does not want to leave. Had one were client agreed to "lend" the key to a prospective tenant to see the property, prospective tenant "borrowed" key moved in and changed locks. Another where client "lent" vacant apartment to friend of a friend to use for storage, friend moved in and refused to leave.
I say go with Chapter 82, Civ Pro Form 1.938
Good Luck
Albert
Alberto M. Cardet, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783tel:305-403-7783
305-403-7824tel:305-403-7824 (fax)
From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lainie Simon
Sent: Wednesday, August 22, 2012 6:24 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without rent or lease
Why can't you try Ch 83 but with Ch 82 in the alternative? If there is no residential tenancy, there is a peaceable entry but unlawful detainer. At least you are in county court. I did this several years ago in PBC and Judge Lopez was good with it.
Lainie J. Simon, Esq.
185 NW Spanish River Boulevard
Suite 220
Boca Raton, FL 33431
561.997.1773tel:561.997.1773
561.445.1361tel:561.445.1361 (cell)
561.997.8448tel:561.997.8448 (fax)
PRIVILEGE AND CONFIDENTIALITY NOTICE: This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally privileged. The contents of this e-mail message and any attachments are intended solely for the party or parties addressed and named in this message. This communication and all attachments, if any, are intended to be and to remain confidential, and it may be subject to the applicable attorney - client and or work product privileges. If you are not the intended recipient of this message, or if this message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this message and its attachments. Do not deliver, distribute, or copy this message and or any attachments if you are not the intended recipient. Do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments. Although this E-mail and any attachments are believed to!
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On 8/22/12 5:38 PM, Lloyd Granet wrote:
Question:
Vacant house owned by trust
An individual is allowed to occupy on temporary basis (child of beneficiary of trust and contingent beneficiary of trust) without charge, while house is up for sale
House goes under contract and closing is scheduled. "Occupant" says unwilling to move out.
How can Occupant be removed?
This email message was sent by:
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Law Offices of Lloyd Granet, P.A.
2295 NW Corporate Boulevard, Suite 235
Boca Raton, FL 33431
Direct Dial: (561) 999-0090tel:%28561%29%20999-0090
Main Number: (561) 999-9300 x110tel:%28561%29%20999-9300%20x110
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I had one that was contested where Judge Caryn Schwartz determined that as
long as there was no issue relating to title or ownership; the case strictly
involved possession; and was not a chapter 83 tenancy (no landlord tenant
relationship) it was proper. This was an oral ruling from the bench not a
written order or opinion.
Albert
Alberto M. Cardet, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783
305-403-7824 (fax)
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Wednesday, August 22, 2012 7:06 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without
rent or lease
Were they contested?
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: www.evict.com http://www.evict.com/
Email: harry@evict.com
THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND
INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR
DISTRIBUTION IS STRICTLY PROHIBITED.
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M.
Cardet
Sent: Wednesday, August 22, 2012 6:52 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without
rent or lease
I agree with Lainie. Ive done a few in Miami-Dade under chapter 82, where
the clients friend or friend of friend moved in and does not want to leave.
Had one were client agreed to lend the key to a prospective tenant to see
the property, prospective tenant borrowed key moved in and changed locks.
Another where client lent vacant apartment to friend of a friend to use
for storage, friend moved in and refused to leave.
I say go with Chapter 82, Civ Pro Form 1.938
Good Luck
Albert
Alberto M. Cardet, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783
305-403-7824 (fax)
From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lainie Simon
Sent: Wednesday, August 22, 2012 6:24 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without
rent or lease
Why can't you try Ch 83 but with Ch 82 in the alternative? If there is no
residential tenancy, there is a peaceable entry but unlawful detainer. At
least you are in county court. I did this several years ago in PBC and Judge
Lopez was good with it.
Lainie J. Simon, Esq.
185 NW Spanish River Boulevard
Suite 220
Boca Raton, FL 33431
561.997.1773
561.445.1361 (cell)
561.997.8448 (fax)
PRIVILEGE AND CONFIDENTIALITY NOTICE: This e-mail is covered by the
Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally
privileged. The contents of this e-mail message and any attachments are
intended solely for the party or parties addressed and named in this
message. This communication and all attachments, if any, are intended to be
and to remain confidential, and it may be subject to the applicable attorney
- client and or work product privileges. If you are not the intended
recipient of this message, or if this message has been addressed to you in
error, please immediately alert the sender by reply e-mail and then delete
this message and its attachments. Do not deliver, distribute, or copy this
message and or any attachments if you are not the intended recipient. Do not
disclose the contents or take any action in reliance upon the information
contained in this communication or any attachments. Although this E-mail and
any attachments are believed to!
be free o
f any virus or other defect that might affect any computer system into which
it is received and opened, it is the responsibility of the recipient to
ensure that it is virus free and no responsibility is accepted by the sender
for damage arising in any way from its use.
Ê
On 8/22/12 5:38 PM, Lloyd Granet wrote:
Question:
Vacant house owned by trust
An individual is allowed to occupy on temporary basis (child of beneficiary
of trust and contingent beneficiary of trust) without charge, while house is
up for sale
House goes under contract and closing is scheduled. Occupant says
unwilling to move out.
How can Occupant be removed?
This email message was sent by:
Lloyd Granet
Law Offices of Lloyd Granet, P.A.
2295 NW Corporate Boulevard, Suite 235
Boca Raton, FL 33431
Direct Dial: (561) 999-0090
Main Number: (561) 999-9300 x110
Fax: (561) 999-9400
Email: lgranet@granetlaw.com
NOTICE: IRS Circular 230 Disclosure: In order to ensure compliance with
IRS Circular 230, we must inform you that any U.S. tax advice contained in
this transmission and any attachments hereto is not intended or written to
be used and may not be used by any person for the purpose of (i) avoiding
any penalty that may be imposed by the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any tax-related
matter(s) addressed herein.
NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b)
confidential, and (c) intended only for the use of the individual or entity
to which it is addressed. If the addressee is a client, this communication
is also subject to applicable privileges. If you are not the addressee, or
the employee or agent responsible for the delivery to the addressee, any
dissemination, distribution or copying of this communication is prohibited.
If you received this communication in error: (a) any dissemination,
distribution or copying is prohibited, and (b) Lloyd Granet, P.A. requests
that you immediately notify us at (561) 999-9300 (collect) and destroy this
communication. Thank you.
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http://mailman.fsr.com/mailman/listinfo/landten
Sounds like a good topic for a Actionline article and opportunity to educate the judges (as well as practitioners) on dealing with these types of short term removal issues. Any takers??
[cid:image001.jpg@01CD8122.10A348A0]
Neil B. Shoter
Partner / LEED Accredited Professional
Shutts & Bowen LLP
CityPlace Tower, 525 Okeechobee Blvd, Suite 1100 | West Palm Beach, FL 33401
Direct: (561) 650-8535 | Fax: (561) 822-5525
E-Mailmailto:NShoter@shutts.com | Biographyhttp://www.shutts.com/attorneys-Neil-Shoter.html | V-Cardhttp://www.shutts.com/vcard-181.vcf | Websitehttp://www.shutts.com
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lloyd Granet
Sent: Thursday, August 23, 2012 8:17 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without rent or lease
Thank you.
The real lesson is create a lease
This email message was sent by:
Lloyd Granet
Law Offices of Lloyd Granet, P.A.
2295 NW Corporate Boulevard, Suite 235
Boca Raton, FL 33431
Direct Dial: (561) 999-0090
Main Number: (561) 999-9300 x110
Fax: (561) 999-9400
Email: lgranet@granetlaw.commailto:lgranet@granetlaw.com
NOTICE: IRS Circular 230 Disclosure: In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.
NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Lloyd Granet, P.A. requests that you immediately notify us at (561) 999-9300 (collect) and destroy this communication. Thank you.
From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Dennis Chen
Sent: Wednesday, August 22, 2012 7:42 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without rent or lease
I recommend ejectment because some judges will find that Ch 82 does not apply because it is residential property. i believe I understand the argument that it is not a residential tenancy but nonetheless, there are many judges that will disagree and the process can take much longer. Take a look at the Broward county decision below.
Dennis A. Chen, Esq.
Chen Law Firm, PA
5401 S. Kirkman Rd., Ste. 310
Orlando, Florida 32819
Tel: (407) 392-1872tel:%28407%29%20392-1872
Fax: 1-866-571-3421tel:1-866-571-3421
dennis@chenlaw.netmailto:dennis@chenlaw.net
18 Fla. L. Weekly Supp. 556a
Online Reference: FLWSUPP 1806BERA
Landlord-tenant -- Eviction -- Unlawful detainer -- Action for unlawful detainer is inapplicable to residential tenancy -- Proper procedure is action for ejectment
THE ESTATE OF LOUIS N. BERARDI, Plaintiff, vs. VIRGINIA NASH & ALL OTHERS IN POSSESSION, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-20309 COCE (55). March 1, 2011. Honorable Sharon L. Zeller, Judge.
ORDER ON PLAINTIFF'S MOTION FOR REHEARING
THIS CAUSE came before the Court on Plaintiff's motion for rehearing. The Court having considered same, and being otherwise fully advised in premises, finds and decides as follows:
On or about January 25, 2011, this Court dismissed plaintiff's action against defendant for unlawful detainer, finding that Florida Statutes §82.02(2) and §82.04(2) specifically provide that an action for unlawful detainer is inapplicable to residential tenancies. Plaintiff has now filed a motion for rehearing arguing that this Court misinterpreted the meaning of the term "residential tenancies" as used in the context of Chapter 82, Florida Statutes. This Court has carefully reviewed the applicable statutes, the case law and other materials interpreting unlawful detainer and residential tenancies. This Court disagrees with plaintiff's argument that there was any misinterpretation on this court's part with regard to either Chapter 82 or Chapter 83 as it regards residential tenancies. Nash v. Hunt, 434 So.2d 51 (Fla. 3d DCA 1983). With all due respect to those other courts which have permitted an unlawful detainer action in a case such as this, it is this Court's opinion that the proper procedure here is an action for ejectment, not unlawful detainer. Toledo v. Escamilla, 962 So.2d 1028 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1876a]; Gonzalez v. Benoit, 424 So.2d 957 (Fla. 3d DCA 1983) receded from on other grounds Nash v. Hunt, supra.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff's Motion for Rehearing is DENIED.
On Wed, Aug 22, 2012 at 7:05 PM, Harry Heist <harry@evict.commailto:harry@evict.com> wrote:
Were they contested?
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428tel:1%20800%20253%208428
FAX: 1 800 367 9038tel:1%20800%20367%209038
"Serving the Property Management Professional"
Website: www.evict.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND INTENDED FOR THE PERSONS NAMED ABOVE ONLY. ALL OTHER USE, COPYING, OR DISTRIBUTION IS STRICTLY PROHIBITED.
From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Alberto M. Cardet
Sent: Wednesday, August 22, 2012 6:52 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without rent or lease
I agree with Lainie. I've done a few in Miami-Dade under chapter 82, where the client's friend or friend of friend moved in and does not want to leave. Had one were client agreed to "lend" the key to a prospective tenant to see the property, prospective tenant "borrowed" key moved in and changed locks. Another where client "lent" vacant apartment to friend of a friend to use for storage, friend moved in and refused to leave.
I say go with Chapter 82, Civ Pro Form 1.938
Good Luck
Albert
Alberto M. Cardet, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783tel:305-403-7783
305-403-7824tel:305-403-7824 (fax)
From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lainie Simon
Sent: Wednesday, August 22, 2012 6:24 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Termination of short term occupancy without rent or lease
Why can't you try Ch 83 but with Ch 82 in the alternative? If there is no residential tenancy, there is a peaceable entry but unlawful detainer. At least you are in county court. I did this several years ago in PBC and Judge Lopez was good with it.
Lainie J. Simon, Esq.
185 NW Spanish River Boulevard
Suite 220
Boca Raton, FL 33431
561.997.1773tel:561.997.1773
561.445.1361tel:561.445.1361 (cell)
561.997.8448tel:561.997.8448 (fax)
PRIVILEGE AND CONFIDENTIALITY NOTICE: This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally privileged. The contents of this e-mail message and any attachments are intended solely for the party or parties addressed and named in this message. This communication and all attachments, if any, are intended to be and to remain confidential, and it may be subject to the applicable attorney - client and or work product privileges. If you are not the intended recipient of this message, or if this message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this message and its attachments. Do not deliver, distribute, or copy this message and or any attachments if you are not the intended recipient. Do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments. Although this E-mail and any attachments are believed to!
be free o
f any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for damage arising in any way from its use.
Ê
On 8/22/12 5:38 PM, Lloyd Granet wrote:
Question:
Vacant house owned by trust
An individual is allowed to occupy on temporary basis (child of beneficiary of trust and contingent beneficiary of trust) without charge, while house is up for sale
House goes under contract and closing is scheduled. "Occupant" says unwilling to move out.
How can Occupant be removed?
This email message was sent by:
Lloyd Granet
Law Offices of Lloyd Granet, P.A.
2295 NW Corporate Boulevard, Suite 235
Boca Raton, FL 33431
Direct Dial: (561) 999-0090tel:%28561%29%20999-0090
Main Number: (561) 999-9300 x110tel:%28561%29%20999-9300%20x110
Fax: (561) 999-9400tel:%28561%29%20999-9400
Email: lgranet@granetlaw.commailto:lgranet@granetlaw.com
NOTICE: IRS Circular 230 Disclosure: In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.
NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Lloyd Granet, P.A. requests that you immediately notify us at (561) 999-9300tel:%28561%29%20999-9300 (collect) and destroy this communication. Thank you.
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