So, the owner fires management or management fires owner, where does sec dep go?

Law: (7)  Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a written receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant.

So. Sale from one owner to another, manager can transfer to new owner. Change in designated agent, manager can transfer to designated agent.

Big question. Suppose transfer is from manager to current owner?

Orlando judge said manager had to transfer to current owner when management was terminated.

Tampa case: attached. Opposite interpretation.

Issue: was the omission of “current owner” in the statute a mistake or on purpose? Is it obvious that a current owner has the same rights as a new “agent”  or a new “owner” so it goes without saying an agent can transfer to the current owner?

See attached from “Florida Bad Law Weekly”.

This needs to be clarified.  It is an easy legislative fix.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

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Harry,

Do you have the Orlando case? To me, a big part of why the judge ruled this way is not just the language of the statute, but the fact that the termination of the management contract occurred after the tenant vacated, thus starting the clock on the return of the deposit or the issuance of a Notice of Claim. Without reading the Orlando case, I would think this judge’s interpretation is correct, largely because the statute is essentially written in a way that presumes the deposit is to be returned but for action by the landlord. In other words, it is the tenant’s money until it is properly claimed upon by the landlord. With that in mind, it is far more pragmatic, given the facts here, to require the management team to hold the deposit and notify the landlord in writing of the effect if the landlord fails to cooperate and allow the inspection of the property as it is the tenant’s money being held, not the landlord’s. I would be willing to bet the judge would have ruled differently if the contract were terminated while the tenancy was ongoing, based on how the decision was written.

James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892

The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender.  If you have received this message in error, please notify the sender immediately

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 12:39 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Security deposit issues

So, the owner fires management or management fires owner, where does sec dep go?

Law: (7)  Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a written receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant.

So. Sale from one owner to another, manager can transfer to new owner. Change in designated agent, manager can transfer to designated agent.

Big question. Suppose transfer is from manager to current owner?

Orlando judge said manager had to transfer to current owner when management was terminated.

Tampa case: attached. Opposite interpretation.

Issue: was the omission of “current owner” in the statute a mistake or on purpose? Is it obvious that a current owner has the same rights as a new “agent”  or a new “owner” so it goes without saying an agent can transfer to the current owner?

See attached from “Florida Bad Law Weekly”.

This needs to be clarified.  It is an easy legislative fix.

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.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
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James,

The termination of management has nothing to do with the 30 day clock. I am not sure I understand.

Management is terminated all the time prior to the end of the lease for a myriad of reasons.

Forcing the agent to hold the tenant’s money makes no sense especially when the owner will most likely not comply with FS 83.49 and if the agent has been fired, how does he/she have any power to inspect and make a claim on the deposit?

The owner is responsible for the tenant’s money. The agent is simply holding it. Whenever I see agents abscond with deposit money, the owner is on the hook for the agent’s actions.

I really feel this is a case of sloppy drafting. My interpretation is that the “current owner”  is not mentioned because it is obvious that the money can be transferred to the current owner who will have to comply with the law just like the agent would if they were managing.

Let’s say I designate my friend “Joe” to be my “rental agent” instead of my current property manager who is licensed and works for Century 21. Joe has no license, he simply is my “rental agent”. Note there is no definition of rental agent in 83 unless I am missing it.  So the legislature intended it is OK to transfer the money to Joe but not to ME as the owner?  It would seem absurd.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of James Zink
Sent: Tuesday, July 14, 2015 1:00 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

Harry,

Do you have the Orlando case? To me, a big part of why the judge ruled this way is not just the language of the statute, but the fact that the termination of the management contract occurred after the tenant vacated, thus starting the clock on the return of the deposit or the issuance of a Notice of Claim. Without reading the Orlando case, I would think this judge’s interpretation is correct, largely because the statute is essentially written in a way that presumes the deposit is to be returned but for action by the landlord. In other words, it is the tenant’s money until it is properly claimed upon by the landlord. With that in mind, it is far more pragmatic, given the facts here, to require the management team to hold the deposit and notify the landlord in writing of the effect if the landlord fails to cooperate and allow the inspection of the property as it is the tenant’s money being held, not the landlord’s. I would be willing to bet the judge would have ruled differently if the contract were terminated while the tenancy was ongoing, based on how the decision was written.

James Zink, Esq.

Florida Rural Legal Services, Inc.

3111 South Dixie Highway, Suite 140

West Palm Beach, FL 33405

Phone: (561) 820-8902 x. 6025

Fax: (561) 820-8892

The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender.  If you have received this message in error, please notify the sender immediately

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 12:39 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Security deposit issues

So, the owner fires management or management fires owner, where does sec dep go?

Law: (7)  Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a written receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant.

So. Sale from one owner to another, manager can transfer to new owner. Change in designated agent, manager can transfer to designated agent.

Big question. Suppose transfer is from manager to current owner?

Orlando judge said manager had to transfer to current owner when management was terminated.

Tampa case: attached. Opposite interpretation.

Issue: was the omission of “current owner” in the statute a mistake or on purpose? Is it obvious that a current owner has the same rights as a new “agent”  or a new “owner” so it goes without saying an agent can transfer to the current owner?

See attached from “Florida Bad Law Weekly”.

This needs to be clarified.  It is an easy legislative fix.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

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The Orlando case was not published.

I don’t believe the date of cancellation of management has anything to do with this.

Owners hold money all the time.  Agents hold money.  The fact that an agent gives the money to the owner does not mean the owner is entitled to keeping it, it means the owner is entrusted with it like in any other transfer.

If an owner can hold it in the beginning, an agent can hold it, a new agent can hold it, a NEW owner can hold it, why can’t an agent transfer it to the current owner as long as the tenant is notified?  If the current owner fails to properly handle it, they can be sued.  An agent should not be sued.  I have gotten agents out of these cases with a motion to dismiss many times. The proper party is the OWNER as long as the agent is not hiding the owner.  Is a “rental agent” some sort of special person that should have more powers than the actual owner?

This is simply bad law and a statute that needs to be fixed.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of James Zink
Sent: Tuesday, July 14, 2015 1:00 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

Harry,

Do you have the Orlando case? To me, a big part of why the judge ruled this way is not just the language of the statute, but the fact that the termination of the management contract occurred after the tenant vacated, thus starting the clock on the return of the deposit or the issuance of a Notice of Claim. Without reading the Orlando case, I would think this judge’s interpretation is correct, largely because the statute is essentially written in a way that presumes the deposit is to be returned but for action by the landlord. In other words, it is the tenant’s money until it is properly claimed upon by the landlord. With that in mind, it is far more pragmatic, given the facts here, to require the management team to hold the deposit and notify the landlord in writing of the effect if the landlord fails to cooperate and allow the inspection of the property as it is the tenant’s money being held, not the landlord’s. I would be willing to bet the judge would have ruled differently if the contract were terminated while the tenancy was ongoing, based on how the decision was written.

James Zink, Esq.

Florida Rural Legal Services, Inc.

3111 South Dixie Highway, Suite 140

West Palm Beach, FL 33405

Phone: (561) 820-8902 x. 6025

Fax: (561) 820-8892

The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender.  If you have received this message in error, please notify the sender immediately

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 12:39 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Security deposit issues

So, the owner fires management or management fires owner, where does sec dep go?

Law: (7)  Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a written receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant.

So. Sale from one owner to another, manager can transfer to new owner. Change in designated agent, manager can transfer to designated agent.

Big question. Suppose transfer is from manager to current owner?

Orlando judge said manager had to transfer to current owner when management was terminated.

Tampa case: attached. Opposite interpretation.

Issue: was the omission of “current owner” in the statute a mistake or on purpose? Is it obvious that a current owner has the same rights as a new “agent”  or a new “owner” so it goes without saying an agent can transfer to the current owner?

See attached from “Florida Bad Law Weekly”.

This needs to be clarified.  It is an easy legislative fix.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

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Perhaps I wasn’t clear in my previous email. My reading of the case you sent was that the judge stated that because the contract was in force at the time the lease terminated, tenant vacated, and clock started under 83.49, the management team could not wash their hands of the situation by sending the money to the owner and terminating the contract. Essentially, what the judge said was that because they were holding the money at the time the 30 day clock started (or 15 days in the case where either no inspection is completed or where no damage is found), they had to finish the process and could not remove themselves from it. I don’t believe the judge said that the landlord is entitled to keep the money, unless I missed that in the decision. It just said that the management company should not have sent it, which I think is pragmatically correct given the timelines within which they are working. There is nothing in that decision that prohibits the management company from seeking the return of the money from the owners.

The only point of my statement was that I do not believe that the decision was based on the missing language from the statute, which you are correct needs to be clarified. The judge rendered the decision largely due to the fact that the management company was holding the money at the time the tenants vacated, thus starting the process under 83.49. Had the management team terminated the contract while the lease was ongoing, I am not sure the judge would come to the same conclusion.

I agree with you it is obvious that the current owner can receive the money from the terminated rental agent, and am not surprised at the sloppy drafting. Again, I do not think this decision was based on that missing language, but was based on the fact that the rental agent was holding the money while the process had already begun under 83.49.

James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892

The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender.  If you have received this message in error, please notify the sender immediately

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 1:42 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues

James,

The termination of management has nothing to do with the 30 day clock. I am not sure I understand.

Management is terminated all the time prior to the end of the lease for a myriad of reasons.

Forcing the agent to hold the tenant’s money makes no sense especially when the owner will most likely not comply with FS 83.49 and if the agent has been fired, how does he/she have any power to inspect and make a claim on the deposit?

The owner is responsible for the tenant’s money. The agent is simply holding it. Whenever I see agents abscond with deposit money, the owner is on the hook for the agent’s actions.

I really feel this is a case of sloppy drafting. My interpretation is that the “current owner”  is not mentioned because it is obvious that the money can be transferred to the current owner who will have to comply with the law just like the agent would if they were managing.

Let’s say I designate my friend “Joe” to be my “rental agent” instead of my current property manager who is licensed and works for Century 21. Joe has no license, he simply is my “rental agent”. Note there is no definition of rental agent in 83 unless I am missing it.  So the legislature intended it is OK to transfer the money to Joe but not to ME as the owner?  It would seem absurd.

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.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
[cid:image001.png@01D0BE3B.CB46D830]https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

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From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of James Zink
Sent: Tuesday, July 14, 2015 1:00 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

Harry,

Do you have the Orlando case? To me, a big part of why the judge ruled this way is not just the language of the statute, but the fact that the termination of the management contract occurred after the tenant vacated, thus starting the clock on the return of the deposit or the issuance of a Notice of Claim. Without reading the Orlando case, I would think this judge’s interpretation is correct, largely because the statute is essentially written in a way that presumes the deposit is to be returned but for action by the landlord. In other words, it is the tenant’s money until it is properly claimed upon by the landlord. With that in mind, it is far more pragmatic, given the facts here, to require the management team to hold the deposit and notify the landlord in writing of the effect if the landlord fails to cooperate and allow the inspection of the property as it is the tenant’s money being held, not the landlord’s. I would be willing to bet the judge would have ruled differently if the contract were terminated while the tenancy was ongoing, based on how the decision was written.

James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892

The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender.  If you have received this message in error, please notify the sender immediately

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 12:39 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Security deposit issues

So, the owner fires management or management fires owner, where does sec dep go?

Law: (7)  Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a written receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant.

So. Sale from one owner to another, manager can transfer to new owner. Change in designated agent, manager can transfer to designated agent.

Big question. Suppose transfer is from manager to current owner?

Orlando judge said manager had to transfer to current owner when management was terminated.

Tampa case: attached. Opposite interpretation.

Issue: was the omission of “current owner” in the statute a mistake or on purpose? Is it obvious that a current owner has the same rights as a new “agent”  or a new “owner” so it goes without saying an agent can transfer to the current owner?

See attached from “Florida Bad Law Weekly”.

This needs to be clarified.  It is an easy legislative fix.

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.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
[cid:image001.png@01D0BE3B.CB46D830]https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

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The moment the agreement was terminated, the owner would be under the obligation to follow FS 83.49. A manager loses all his/her powers and duties once terminated. When an owner terminates a manager, the owner is on their own.

The money was disbursed to the owner who simply did not follow the law.  The owner should have been an indispensible party and the management should have been dismissed if a motion to dismiss was filed and I do not know if it was.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of James Zink
Sent: Tuesday, July 14, 2015 1:53 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

Perhaps I wasn’t clear in my previous email. My reading of the case you sent was that the judge stated that because the contract was in force at the time the lease terminated, tenant vacated, and clock started under 83.49, the management team could not wash their hands of the situation by sending the money to the owner and terminating the contract. Essentially, what the judge said was that because they were holding the money at the time the 30 day clock started (or 15 days in the case where either no inspection is completed or where no damage is found), they had to finish the process and could not remove themselves from it. I don’t believe the judge said that the landlord is entitled to keep the money, unless I missed that in the decision. It just said that the management company should not have sent it, which I think is pragmatically correct given the timelines within which they are working. There is nothing in that decision that prohibits the management company from seeking the return of the money from the owners.

The only point of my statement was that I do not believe that the decision was based on the missing language from the statute, which you are correct needs to be clarified. The judge rendered the decision largely due to the fact that the management company was holding the money at the time the tenants vacated, thus starting the process under 83.49. Had the management team terminated the contract while the lease was ongoing, I am not sure the judge would come to the same conclusion.

I agree with you it is obvious that the current owner can receive the money from the terminated rental agent, and am not surprised at the sloppy drafting. Again, I do not think this decision was based on that missing language, but was based on the fact that the rental agent was holding the money while the process had already begun under 83.49.

James Zink, Esq.

Florida Rural Legal Services, Inc.

3111 South Dixie Highway, Suite 140

West Palm Beach, FL 33405

Phone: (561) 820-8902 x. 6025

Fax: (561) 820-8892

The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender.  If you have received this message in error, please notify the sender immediately

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 1:42 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues

James,

The termination of management has nothing to do with the 30 day clock. I am not sure I understand.

Management is terminated all the time prior to the end of the lease for a myriad of reasons.

Forcing the agent to hold the tenant’s money makes no sense especially when the owner will most likely not comply with FS 83.49 and if the agent has been fired, how does he/she have any power to inspect and make a claim on the deposit?

The owner is responsible for the tenant’s money. The agent is simply holding it. Whenever I see agents abscond with deposit money, the owner is on the hook for the agent’s actions.

I really feel this is a case of sloppy drafting. My interpretation is that the “current owner”  is not mentioned because it is obvious that the money can be transferred to the current owner who will have to comply with the law just like the agent would if they were managing.

Let’s say I designate my friend “Joe” to be my “rental agent” instead of my current property manager who is licensed and works for Century 21. Joe has no license, he simply is my “rental agent”. Note there is no definition of rental agent in 83 unless I am missing it.  So the legislature intended it is OK to transfer the money to Joe but not to ME as the owner?  It would seem absurd.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of James Zink
Sent: Tuesday, July 14, 2015 1:00 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

Harry,

Do you have the Orlando case? To me, a big part of why the judge ruled this way is not just the language of the statute, but the fact that the termination of the management contract occurred after the tenant vacated, thus starting the clock on the return of the deposit or the issuance of a Notice of Claim. Without reading the Orlando case, I would think this judge’s interpretation is correct, largely because the statute is essentially written in a way that presumes the deposit is to be returned but for action by the landlord. In other words, it is the tenant’s money until it is properly claimed upon by the landlord. With that in mind, it is far more pragmatic, given the facts here, to require the management team to hold the deposit and notify the landlord in writing of the effect if the landlord fails to cooperate and allow the inspection of the property as it is the tenant’s money being held, not the landlord’s. I would be willing to bet the judge would have ruled differently if the contract were terminated while the tenancy was ongoing, based on how the decision was written.

James Zink, Esq.

Florida Rural Legal Services, Inc.

3111 South Dixie Highway, Suite 140

West Palm Beach, FL 33405

Phone: (561) 820-8902 x. 6025

Fax: (561) 820-8892

The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender.  If you have received this message in error, please notify the sender immediately

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 12:39 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Security deposit issues

So, the owner fires management or management fires owner, where does sec dep go?

Law: (7)  Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a written receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant.

So. Sale from one owner to another, manager can transfer to new owner. Change in designated agent, manager can transfer to designated agent.

Big question. Suppose transfer is from manager to current owner?

Orlando judge said manager had to transfer to current owner when management was terminated.

Tampa case: attached. Opposite interpretation.

Issue: was the omission of “current owner” in the statute a mistake or on purpose? Is it obvious that a current owner has the same rights as a new “agent”  or a new “owner” so it goes without saying an agent can transfer to the current owner?

See attached from “Florida Bad Law Weekly”.

This needs to be clarified.  It is an easy legislative fix.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

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There is no definition for “rental agent” in Chapter 83 but property manager is defined :
Accordingly, for purposes of this opinion, a "property manager" is defined as one who is responsible for the day-to-day management of the residential rental property, as evidenced by such factors as responsibility for renting of units, maintenance of rental property, and collection of rent The Fla. Bar re: Advisory Opinion Nonlawyer Preparation of Landlord Uncontested Evictions,605 So. 2d 868 (Fla. 1992), clarified, 627 So. 2d 485, 487 (Fla. 1993)

A rental agent is not a property manager. A rental agent advertises to rent an apartment for rent, takes his/her commission and that should be all he should be doing but because they have a real-estate license they think they can practice law.  . On the other hand a property manager should be able to take a security deposit since he/she is “responsible for the day to day management of the residential rental property”.  If the rental agent is not responsible for day to day management then anything after presenting the lease for signature in my opinion is UPL.

Leonard P. Cabral
Leonardcabral@lenslaw.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 1:42 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues

James,

The termination of management has nothing to do with the 30 day clock. I am not sure I understand.

Management is terminated all the time prior to the end of the lease for a myriad of reasons.

Forcing the agent to hold the tenant’s money makes no sense especially when the owner will most likely not comply with FS 83.49 and if the agent has been fired, how does he/she have any power to inspect and make a claim on the deposit?

The owner is responsible for the tenant’s money. The agent is simply holding it. Whenever I see agents abscond with deposit money, the owner is on the hook for the agent’s actions.

I really feel this is a case of sloppy drafting. My interpretation is that the “current owner”  is not mentioned because it is obvious that the money can be transferred to the current owner who will have to comply with the law just like the agent would if they were managing.

Let’s say I designate my friend “Joe” to be my “rental agent” instead of my current property manager who is licensed and works for Century 21. Joe has no license, he simply is my “rental agent”. Note there is no definition of rental agent in 83 unless I am missing it.  So the legislature intended it is OK to transfer the money to Joe but not to ME as the owner?  It would seem absurd.

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.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
[cid:image001.png@01D0BEA5.E542B5A0]https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

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From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of James Zink
Sent: Tuesday, July 14, 2015 1:00 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

Harry,

Do you have the Orlando case? To me, a big part of why the judge ruled this way is not just the language of the statute, but the fact that the termination of the management contract occurred after the tenant vacated, thus starting the clock on the return of the deposit or the issuance of a Notice of Claim. Without reading the Orlando case, I would think this judge’s interpretation is correct, largely because the statute is essentially written in a way that presumes the deposit is to be returned but for action by the landlord. In other words, it is the tenant’s money until it is properly claimed upon by the landlord. With that in mind, it is far more pragmatic, given the facts here, to require the management team to hold the deposit and notify the landlord in writing of the effect if the landlord fails to cooperate and allow the inspection of the property as it is the tenant’s money being held, not the landlord’s. I would be willing to bet the judge would have ruled differently if the contract were terminated while the tenancy was ongoing, based on how the decision was written.

James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892

The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender.  If you have received this message in error, please notify the sender immediately

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 12:39 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Security deposit issues

So, the owner fires management or management fires owner, where does sec dep go?

Law: (7)  Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a written receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant.

So. Sale from one owner to another, manager can transfer to new owner. Change in designated agent, manager can transfer to designated agent.

Big question. Suppose transfer is from manager to current owner?

Orlando judge said manager had to transfer to current owner when management was terminated.

Tampa case: attached. Opposite interpretation.

Issue: was the omission of “current owner” in the statute a mistake or on purpose? Is it obvious that a current owner has the same rights as a new “agent”  or a new “owner” so it goes without saying an agent can transfer to the current owner?

See attached from “Florida Bad Law Weekly”.

This needs to be clarified.  It is an easy legislative fix.

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.comhttp://www.evict.com/
Email: harry@evict.commailto:harry@evict.com
[cid:image001.png@01D0BEA5.E542B5A0]https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

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.

This is incorrect Leonard.

A rental agent and a property manager is no different.  Under 475, property management is not a listed real estate activity requiring licensure.  “Leasing” is.

Not sure where UPL is coming into this discussion. You are off track.

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 Leonard Cabral
Sent: Wednesday, July 15, 2015 2:28 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

There is no definition for “rental agent” in Chapter 83 but property manager is defined :

    Accordingly, for purposes of this opinion, a "property manager" is defined as one who is responsible for the day-to-day management of the residential rental property, as evidenced by such factors as responsibility for renting of units, maintenance of rental property, and collection of rent The Fla. Bar re: Advisory Opinion Nonlawyer Preparation of Landlord Uncontested Evictions,605 So. 2d 868 (Fla. 1992), clarified, 627 So. 2d 485, 487 (Fla. 1993)

A rental agent is not a property manager. A rental agent advertises to rent an apartment for rent, takes his/her commission and that should be all he should be doing but because they have a real-estate license they think they can practice law.  . On the other hand a property manager should be able to take a security deposit since he/she is “responsible for the day to day management of the residential rental property”.  If the rental agent is not responsible for day to day management then anything after presenting the lease for signature in my opinion is UPL.

Leonard P. Cabral

Leonardcabral@lenslaw.com

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 1:42 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues

James,

The termination of management has nothing to do with the 30 day clock. I am not sure I understand.

Management is terminated all the time prior to the end of the lease for a myriad of reasons.

Forcing the agent to hold the tenant’s money makes no sense especially when the owner will most likely not comply with FS 83.49 and if the agent has been fired, how does he/she have any power to inspect and make a claim on the deposit?

The owner is responsible for the tenant’s money. The agent is simply holding it. Whenever I see agents abscond with deposit money, the owner is on the hook for the agent’s actions.

I really feel this is a case of sloppy drafting. My interpretation is that the “current owner”  is not mentioned because it is obvious that the money can be transferred to the current owner who will have to comply with the law just like the agent would if they were managing.

Let’s say I designate my friend “Joe” to be my “rental agent” instead of my current property manager who is licensed and works for Century 21. Joe has no license, he simply is my “rental agent”. Note there is no definition of rental agent in 83 unless I am missing it.  So the legislature intended it is OK to transfer the money to Joe but not to ME as the owner?  It would seem absurd.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

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 James Zink
Sent: Tuesday, July 14, 2015 1:00 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

Harry,

Do you have the Orlando case? To me, a big part of why the judge ruled this way is not just the language of the statute, but the fact that the termination of the management contract occurred after the tenant vacated, thus starting the clock on the return of the deposit or the issuance of a Notice of Claim. Without reading the Orlando case, I would think this judge’s interpretation is correct, largely because the statute is essentially written in a way that presumes the deposit is to be returned but for action by the landlord. In other words, it is the tenant’s money until it is properly claimed upon by the landlord. With that in mind, it is far more pragmatic, given the facts here, to require the management team to hold the deposit and notify the landlord in writing of the effect if the landlord fails to cooperate and allow the inspection of the property as it is the tenant’s money being held, not the landlord’s. I would be willing to bet the judge would have ruled differently if the contract were terminated while the tenancy was ongoing, based on how the decision was written.

James Zink, Esq.

Florida Rural Legal Services, Inc.

3111 South Dixie Highway, Suite 140

West Palm Beach, FL 33405

Phone: (561) 820-8902 x. 6025

Fax: (561) 820-8892

The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender.  If you have received this message in error, please notify the sender immediately

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 12:39 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Security deposit issues

So, the owner fires management or management fires owner, where does sec dep go?

Law: (7)  Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records to the new owner or agent, and upon transmittal of a written receipt therefor, the transferor is free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant.

So. Sale from one owner to another, manager can transfer to new owner. Change in designated agent, manager can transfer to designated agent.

Big question. Suppose transfer is from manager to current owner?

Orlando judge said manager had to transfer to current owner when management was terminated.

Tampa case: attached. Opposite interpretation.

Issue: was the omission of “current owner” in the statute a mistake or on purpose? Is it obvious that a current owner has the same rights as a new “agent”  or a new “owner” so it goes without saying an agent can transfer to the current owner?

See attached from “Florida Bad Law Weekly”.

This needs to be clarified.  It is an easy legislative fix.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

Visit us on Facebook

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.

I have a case where the property manager hired a nonlawyer to fill out the
Sup. Court forms for an uncontested eviction.  Problems  with the filing
included that the nonlawyer named the property manager as the plaintiff.
Also, the nonlawyer checked off that the plaintiff owned the property and
filed all the other forms.  When my office was hired, because the tenant
became active, we voluntarily dismissed the eviction (in the nick of time
before the tenant hired a lawyer and was awarded fees) and refiled the
eviction properly.  Interestingly, and as an aside, the judge signed the
judgment and issued the writ of possession as few days after the dismissal,
initially making the property mgr ‹ and the owner/landlord ‹  think that we
didn¹t need to dismiss and start over.  Also note that the property mgr told
us that this nonlawyer has successfully filed lots of evictions for it in
the past (they were lucky, the tenants just left instead of hiring attorneys
or otherwise challenging)  My position was, is, that if the judge signed
the order beforel the dismissal, it would be our obligation (we filed a
notice of appearance) to advise the court of the mistake and to vacate the
judgment and I told the client that ‹ especially because the allegation that
the property mgr owned the property was a fraud upon the court to gain
standing for the property mgr.

My question is, if the property mgr can file the eviction (properly naming
the landlord/owner as plaintiff) and the rest of the forms to obtain judment
without a hearing, can the property mgr hire some other nonlawyer to file,
that is, act as agent of the property mgr to do the eviction?

Thank you.

This e-mail transmission and any documents, files or previous e-mail
messages attached to it, are confidential and are protected by the
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From:  landten-bounces@lists.flabarrpptl.org on behalf of Leonard Cabral
LensLaw@Lenslaw.com
Reply-To:  RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Date:  Wednesday, July 15, 2015 at 2:28 AM
To:  RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Subject:  Re: [RPPTL LandTen] Security deposit issues

There is no definition for ³rental agent² in Chapter 83 but property manager
is defined :
Accordingly, for purposes of this opinion, a "property manager" is
defined as one who is responsible for the day-to-day management of the
residential rental property, as evidenced by such factors as responsibility
for renting of units, maintenance of rental property, and collection of rent
The Fla. Bar re: Advisory Opinion Nonlawyer Preparation of Landlord
Uncontested Evictions,605 So. 2d 868 (Fla. 1992), clarified, 627 So. 2d 485,
487 (Fla. 1993)

A rental agent is not a property manager. A rental agent advertises to rent
an apartment for rent, takes his/her commission and that should be all he
should be doing but because they have a real-estate license they think they
can practice law.  . On the other hand a property manager should be able to
take a security deposit since he/she is ³responsible for the day to day
management of the residential rental property².  If the rental agent is not
responsible for day to day management then anything after presenting the
lease for signature in my opinion is UPL.

Leonard P. Cabral
Leonardcabral@lenslaw.com

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 1:42 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues

James,

The termination of management has nothing to do with the 30 day clock. I am
not sure I understand.

Management is terminated all the time prior to the end of the lease for a
myriad of reasons.

Forcing the agent to hold the tenant¹s money makes no sense especially when
the owner will most likely not comply with FS 83.49 and if the agent has
been fired, how does he/she have any power to inspect and make a claim on
the deposit?

The owner is responsible for the tenant¹s money. The agent is simply holding
it. Whenever I see agents abscond with deposit money, the owner is on the
hook for the agent¹s actions.

I really feel this is a case of sloppy drafting. My interpretation is that
the ³current owner²  is not mentioned because it is obvious that the money
can be transferred to the current owner who will have to comply with the law
just like the agent would if they were managing.

Let¹s say I designate my friend ³Joe² to be my ³rental agent² instead of my
current property manager who is licensed and works for Century 21. Joe has
no license, he simply is my ³rental agent². Note there is no definition of
rental agent in 83 unless I am missing it.  So the legislature intended it
is OK to transfer the money to Joe but not to ME as the owner?  It would
seem absurd.

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 mailto:harry@evict.com

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
Visit us on Facebook

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 James Zink
Sent: Tuesday, July 14, 2015 1:00 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

Harry,

Do you have the Orlando case? To me, a big part of why the judge ruled this
way is not just the language of the statute, but the fact that the
termination of the management contract occurred after the tenant vacated,
thus starting the clock on the return of the deposit or the issuance of a
Notice of Claim. Without reading the Orlando case, I would think this
judge¹s interpretation is correct, largely because the statute is
essentially written in a way that presumes the deposit is to be returned but
for action by the landlord. In other words, it is the tenant¹s money until
it is properly claimed upon by the landlord. With that in mind, it is far
more pragmatic, given the facts here, to require the management team to hold
the deposit and notify the landlord in writing of the effect if the landlord
fails to cooperate and allow the inspection of the property as it is the
tenant¹s money being held, not the landlord¹s. I would be willing to bet the
judge would have ruled differently if the contract were terminated while the
tenancy was ongoing, based on how the decision was written.

James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892

The information contained in this e-mail, including any attachment(s), is
intended solely for use by the named addressee(s). If you are not the
intended recipient, or a person designated as responsible for delivering
such messages to the intended recipient, you are not authorized to disclose,
copy, distribute or retain this message, in whole or in part, without
written authorization from the sender.  If you have received this message in
error, please notify the sender immediately

From:landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 12:39 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Security deposit issues

So, the owner fires management or management fires owner, where does sec dep
go?

Law: (7)  Upon the sale or transfer of title of the rental property from one
owner to another, or upon a change in the designated rental agent, any and
all security deposits or advance rents being held for the benefit of the
tenants shall be transferred to the new owner or agent, together with any
earned interest and with an accurate accounting showing the amounts to be
credited to each tenant account. Upon the transfer of such funds and records
to the new owner or agent, and upon transmittal of a written receipt
therefor, the transferor is free from the obligation imposed in subsection
(1) to hold such moneys on behalf of the tenant.

So. Sale from one owner to another, manager can transfer to new owner.
Change in designated agent, manager can transfer to designated agent.

Big question. Suppose transfer is from manager to current owner?

Orlando judge said manager had to transfer to current owner when management
was terminated.

Tampa case: attached. Opposite interpretation.

Issue: was the omission of ³current owner² in the statute a mistake or on
purpose? Is it obvious that a current owner has the same rights as a new
³agent²  or a new ³owner² so it goes without saying an agent can transfer to
the current owner?

See attached from ³Florida Bad Law Weekly².

This needs to be clarified.  It is an easy legislative fix.

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 mailto:harry@evict.com

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It seems to me that the non-lawyer is guilty of practicing without a license

Robert M. Schwartz, Esq.

Florida Bar Board Certified Real Estate Lawyer

Robert Marc Schwartz, P.A.

4700 NW Boca Raton Blvd., Suite 104

Boca Raton, FL 33431-4860

Phone (561) 241-1850

Fax (561) 241-1845

Bob@RobertSchwartzPA.com

Christine@RobertSchwartzPA.Com

WWW.RobertSchwartzPA.Com http://www.robertschwartzpa.com/

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THANK YOU

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Gioia DeCarlo
Sent: Wednesday, July 15, 2015 7:47 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

I have a case where the property manager hired a nonlawyer to fill out the
Sup. Court forms for an uncontested eviction.  Problems  with the filing
included that the nonlawyer named the property manager as the plaintiff.
Also, the nonlawyer checked off that the plaintiff owned the property and
filed all the other forms.  When my office was hired, because the tenant
became active, we voluntarily dismissed the eviction (in the nick of time
before the tenant hired a lawyer and was awarded fees) and refiled the
eviction properly.  Interestingly, and as an aside, the judge signed the
judgment and issued the writ of possession as few days after the dismissal,
initially making the property mgr - and the owner/landlord -  think that we
didn't need to dismiss and start over.  Also note that the property mgr told
us that this nonlawyer has successfully filed lots of evictions for it in
the past (they were lucky, the tenants just left instead of hiring attorneys
or otherwise challenging)  My position was, is, that if the judge signed
the order beforel the dismissal, it would be our obligation (we filed a
notice of appearance) to advise the court of the mistake and to vacate the
judgment and I told the client that - especially because the allegation that
the property mgr owned the property was a fraud upon the court to gain
standing for the property mgr.

My question is, if the property mgr can file the eviction (properly naming
the landlord/owner as plaintiff) and the rest of the forms to obtain judment
without a hearing, can the property mgr hire some other nonlawyer to file,
that is, act as agent of the property mgr to do the eviction?

Thank you.

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From: landten-bounces@lists.flabarrpptl.org on behalf of Leonard Cabral
LensLaw@Lenslaw.com
Reply-To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Date: Wednesday, July 15, 2015 at 2:28 AM
To: RPPTL Landlord Tenant Committee landten@lists.flabarrpptl.org
Subject: Re: [RPPTL LandTen] Security deposit issues

There is no definition for "rental agent" in Chapter 83 but property manager
is defined :

    Accordingly, for purposes of this opinion, a "property manager" is

defined as one who is responsible for the day-to-day management of the
residential rental property, as evidenced by such factors as responsibility
for renting of units, maintenance of rental property, and collection of rent
The Fla. Bar re: Advisory Opinion Nonlawyer Preparation of Landlord
Uncontested Evictions,605 So. 2d 868 (Fla. 1992), clarified, 627 So. 2d 485,
487 (Fla. 1993)

A rental agent is not a property manager. A rental agent advertises to rent
an apartment for rent, takes his/her commission and that should be all he
should be doing but because they have a real-estate license they think they
can practice law.  . On the other hand a property manager should be able to
take a security deposit since he/she is "responsible for the day to day
management of the residential rental property".  If the rental agent is not
responsible for day to day management then anything after presenting the
lease for signature in my opinion is UPL.

Leonard P. Cabral

Leonardcabral@lenslaw.com

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 1:42 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues

James,

The termination of management has nothing to do with the 30 day clock. I am
not sure I understand.

Management is terminated all the time prior to the end of the lease for a
myriad of reasons.

Forcing the agent to hold the tenant's money makes no sense especially when
the owner will most likely not comply with FS 83.49 and if the agent has
been fired, how does he/she have any power to inspect and make a claim on
the deposit?

The owner is responsible for the tenant's money. The agent is simply holding
it. Whenever I see agents abscond with deposit money, the owner is on the
hook for the agent's actions.

I really feel this is a case of sloppy drafting. My interpretation is that
the "current owner"  is not mentioned because it is obvious that the money
can be transferred to the current owner who will have to comply with the law
just like the agent would if they were managing.

Let's say I designate my friend "Joe" to be my "rental agent" instead of my
current property manager who is licensed and works for Century 21. Joe has
no license, he simply is my "rental agent". Note there is no definition of
rental agent in 83 unless I am missing it.  So the legislature intended it
is OK to transfer the money to Joe but not to ME as the owner?  It would
seem absurd.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

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From:landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of James Zink
Sent: Tuesday, July 14, 2015 1:00 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues

Harry,

Do you have the Orlando case? To me, a big part of why the judge ruled this
way is not just the language of the statute, but the fact that the
termination of the management contract occurred after the tenant vacated,
thus starting the clock on the return of the deposit or the issuance of a
Notice of Claim. Without reading the Orlando case, I would think this
judge's interpretation is correct, largely because the statute is
essentially written in a way that presumes the deposit is to be returned but
for action by the landlord. In other words, it is the tenant's money until
it is properly claimed upon by the landlord. With that in mind, it is far
more pragmatic, given the facts here, to require the management team to hold
the deposit and notify the landlord in writing of the effect if the landlord
fails to cooperate and allow the inspection of the property as it is the
tenant's money being held, not the landlord's. I would be willing to bet the
judge would have ruled differently if the contract were terminated while the
tenancy was ongoing, based on how the decision was written.

James Zink, Esq.

Florida Rural Legal Services, Inc.

3111 South Dixie Highway, Suite 140

West Palm Beach, FL 33405

Phone: (561) 820-8902 x. 6025

Fax: (561) 820-8892

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From:landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, July 14, 2015 12:39 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Security deposit issues

So, the owner fires management or management fires owner, where does sec dep
go?

Law: (7)  Upon the sale or transfer of title of the rental property from one
owner to another, or upon a change in the designated rental agent, any and
all security deposits or advance rents being held for the benefit of the
tenants shall be transferred to the new owner or agent, together with any
earned interest and with an accurate accounting showing the amounts to be
credited to each tenant account. Upon the transfer of such funds and records
to the new owner or agent, and upon transmittal of a written receipt
therefor, the transferor is free from the obligation imposed in subsection
(1) to hold such moneys on behalf of the tenant.

So. Sale from one owner to another, manager can transfer to new owner.
Change in designated agent, manager can transfer to designated agent.

Big question. Suppose transfer is from manager to current owner?

Orlando judge said manager had to transfer to current owner when management
was terminated.

Tampa case: attached. Opposite interpretation.

Issue: was the omission of "current owner" in the statute a mistake or on
purpose? Is it obvious that a current owner has the same rights as a new
"agent"  or a new "owner" so it goes without saying an agent can transfer to
the current owner?

See attached from "Florida Bad Law Weekly".

This needs to be clarified.  It is an easy legislative fix.

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

https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870

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