[RPPTL LandTen] Security deposit issues
The Florida Bar needs to shut down these people who are using document
preparation companies using the Supreme Court forms and causing public harm.
The whole thing should be revisited by the Bar. Did the Bar intend to create
pseudo lawyers who ARE giving legal advice?
Keep watching what is going on and what the Florida Bar is doing right
before your eyes .
Soon only complex litigation will require lawyers.
I am glad that I put my 25 years in already. The little guy is doomed.
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 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
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
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such messages to the intended recipient, you are not authorized to disclose,
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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
Visit us on Facebook
THIS E-MAIL MESSAGE IS CONFIDENTIAL, ATTORNEY-CLIENT PRIVILEGED, AND
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DISTRIBUTION IS STRICTLY PROHIBITED.
_______________________________________________ landten mailing list
landten@lists.flabarrpptl.org
http://mailman.fsr.com/mailman/listinfo/landten
Nothing will be done until there is a private right of action against these "pseudo lawyers" with a minimum $$ penalty since the Bar doesn't police UPL. The only other way to put them out of business is allow self help evictions but that would put everyone out of business.
Leonard P. Cabral
Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Wednesday, July 15, 2015 12:19 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues
The Florida Bar needs to shut down these people who are using document preparation companies using the Supreme Court forms and causing public harm. The whole thing should be revisited by the Bar. Did the Bar intend to create pseudo lawyers who ARE giving legal advice?
Keep watching what is going on and what the Florida Bar is doing right before your eyes .
Soon only complex litigation will require lawyers.
I am glad that I put my 25 years in already. The little guy is doomed.
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@01D0BF08.C49E0BC0]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.orgmailto: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.
[cid:image002.png@01D0BF08.C49E0BC0]
This e-mail transmission and any documents, files or previous e-mail messages attached to it, are confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify me by forwarding this e-mail to Info@dvllclegal.commailto:Info@dvllclegal.com, or by telephone at (845) 321-0242 and then delete the message and its attachments from your computer.
From: <landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org> on behalf of Leonard Cabral <LensLaw@Lenslaw.commailto:LensLaw@Lenslaw.com>
Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>
Date: Wednesday, July 15, 2015 at 2:28 AM
To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.orgmailto: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.commailto:Leonardcabral@lenslaw.com
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 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@01D0BF08.C49E0BC0]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@01D0BF08.C49E0BC0]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.
_______________________________________________ landten mailing list landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten
A non-lawyer can fill in the on the Florida Bar approved forms with information proved by the owner; PERIOD. A property manager can file an eviction in the owner's name with a document from the owner giving stating the property manager permission to file the eviction and file a motion for Default if the eviction is uncontested. If contested the owner or attorney must appear. A property manager may not ask for money damages for rent.
I have cited two cases below. To understand UPL read both cases together as the second opinion clarifies property manages, real estate agents, what forms a non-lawyer can fill out and what property managers can do legally. 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)
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Robert M Schwartz
Sent: Wednesday, July 15, 2015 8:56 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues
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.commailto:Bob@RobertSchwartzPA.com
Christine@RobertSchwartzPA.Commailto:Christine@RobertSchwartzPA.Com
WWW.RobertSchwartzPA.Comhttp://www.robertschwartzpa.com/
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THANK YOU
From: landten-bounces@lists.flabarrpptl.orgmailto: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.
[cid:image002.png@01D0BF1C.E8775AB0]
This e-mail transmission and any documents, files or previous e-mail messages attached to it, are confidential and are protected by the attorney-client privilege and/or work product doctrine. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any review, disclosure, copying, dissemination, distribution or use of any of the information contained in, or attached to this e-mail transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify me by forwarding this e-mail to Info@dvllclegal.commailto:Info@dvllclegal.com, or by telephone at (845) 321-0242 and then delete the message and its attachments from your computer.
From: <landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org> on behalf of Leonard Cabral <LensLaw@Lenslaw.commailto:LensLaw@Lenslaw.com>
Reply-To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>
Date: Wednesday, July 15, 2015 at 2:28 AM
To: RPPTL Landlord Tenant Committee <landten@lists.flabarrpptl.orgmailto: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.commailto:Leonardcabral@lenslaw.com
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 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
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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
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_______________________________________________ landten mailing list landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org http://mailman.fsr.com/mailman/listinfo/landten
Harry
I partly disagree that a “rental agent” and a “property manager” are the same although in some instances they could be. (I may have been confusing. Hopefully this may clear it up up. I was responding to the hypothetical designating 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”. In the hypothetical Joe is not a rental agent and need not be licensed to be a “property manager”. And the Property manager licensed by Century 21 many not fit the definition of “property manager” depending on the extent of his role in managing the property. I get really pissed when a realtors who are only listing a property for lease, and has no other involvement in the maintenance of the property files an eviction for non payment to get the current tenant out to make his/her commission. It is the unlicensed practice of law. I have provided my outline below.
There is no definition of "rental agent" in Chapter 475 or Chapter 83. There is a definition for Broker and Sales person in Chapter 475 as you suggest but the definition of “property manager” is defined by the The Fla. Bar re: Advisory Opinions which I cited in the earlier email and is the bases of this discussion below. Pursuant to DBPR, a rental agent may or may not need to be licensed depending on their role. According to DBPR a person renting or leasing or attempts to rent or lease real property of another for compensation requires a license BUT a salaried employee of an owner of an apartment community working in an onsite rental office does not need a license. So an on sight “rental agent” and “property manager” may be the same (and may file evictions for the landlord) but a rental agent licensed pursuant to Chapter 475 can not file an eviction unless they are also the property manager or they have participated in the unlicensed practice of law. So my reference to UPL as it applies to this discussion was to define a “property manager”
In 1992 the Florida The Supreme Court also concluded it is the unlicensed practice of law for a nonlawyer to draft and file a complaint for eviction and motion for default and to obtain a final judgment and writ of possession for a landlord but also authorized a "property manager", with or without a power of attorney, to draft and serve a Three Day Notice, draft and file a Complaint for Eviction and Motion for Default and obtain a Final Judgment and Writ of Possession for the landlord in an uncontested residential evictions and mandated that the property manager utilize the Florida Bar approved forms pursuant to Rule 10-1.1(b) which must also be signed and filed by the landlord. In other words an exception for these activities normally performed by attorneys was carved out for "property managers". Then in 1993 The supreme Court of Florida clarified the above opinion rejecting the definition of “property manager” to include only those persons licensed as real estate brokers or salespersons under chapter 475. The Court limited the definition of a property manager 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. Real estate brokers and salespersons who are licensed under chapter 475 may also qualify as "property managers" if they otherwise fit within this definition or property manager. Stated another way a licensed Real estate broker or sales person may not draft and serve a Three Day Notice, draft and file a Complaint for Eviction and Motion for Default and obtain a Final Judgment and Writ of Possession for the landlord in an uncontested residential eviction unless they are responsible for the day-to-day management of the residential rental property.
Leonard P. Cabral
Leonardcabral@lenslaw.com
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Wednesday, July 15, 2015 5:47 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues
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.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.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.commailto:Leonardcabral@lenslaw.com
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 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@01D0BFD6.19229DF0]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.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@01D0BFD6.19229DF0]https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
Visit us on Facebook
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Unfortunately the whole thing makes no difference to the judges who don’t care.
Need an eviction? This company charges more than me. http://www.evictionsexpress.com/index.html
The Florida Bar needs to dedicate more money to UPL enforcement and less to making it easier for people to engage in UPL.
I would do more than just complain about it but simply don’t care that much anymore.
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 Leonard Cabral
Sent: Thursday, July 16, 2015 5:29 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues
Harry
I partly disagree that a “rental agent” and a “property manager” are the same although in some instances they could be. (I may have been confusing. Hopefully this may clear it up up. I was responding to the hypothetical designating 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”. In the hypothetical Joe is not a rental agent and need not be licensed to be a “property manager”. And the Property manager licensed by Century 21 many not fit the definition of “property manager” depending on the extent of his role in managing the property. I get really pissed when a realtors who are only listing a property for lease, and has no other involvement in the maintenance of the property files an eviction for non payment to get the current tenant out to make his/her commission. It is the unlicensed practice of law. I have provided my outline below.
There is no definition of "rental agent" in Chapter 475 or Chapter 83. There is a definition for Broker and Sales person in Chapter 475 as you suggest but the definition of “property manager” is defined by the The Fla. Bar re: Advisory Opinions which I cited in the earlier email and is the bases of this discussion below. Pursuant to DBPR, a rental agent may or may not need to be licensed depending on their role. According to DBPR a person renting or leasing or attempts to rent or lease real property of another for compensation requires a license BUT a salaried employee of an owner of an apartment community working in an onsite rental office does not need a license. So an on sight “rental agent” and “property manager” may be the same (and may file evictions for the landlord) but a rental agent licensed pursuant to Chapter 475 can not file an eviction unless they are also the property manager or they have participated in the unlicensed practice of law. So my reference to UPL as it applies to this discussion was to define a “property manager”
In 1992 the Florida The Supreme Court also concluded it is the unlicensed practice of law for a nonlawyer to draft and file a complaint for eviction and motion for default and to obtain a final judgment and writ of possession for a landlord but also authorized a "property manager", with or without a power of attorney, to draft and serve a Three Day Notice, draft and file a Complaint for Eviction and Motion for Default and obtain a Final Judgment and Writ of Possession for the landlord in an uncontested residential evictions and mandated that the property manager utilize the Florida Bar approved forms pursuant to Rule 10-1.1(b) which must also be signed and filed by the landlord. In other words an exception for these activities normally performed by attorneys was carved out for "property managers". Then in 1993 The supreme Court of Florida clarified the above opinion rejecting the definition of “property manager” to include only those persons licensed as real estate brokers or salespersons under chapter 475. The Court limited the definition of a property manager 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. Real estate brokers and salespersons who are licensed under chapter 475 may also qualify as "property managers" if they otherwise fit within this definition or property manager. Stated another way a licensed Real estate broker or sales person may not draft and serve a Three Day Notice, draft and file a Complaint for Eviction and Motion for Default and obtain a Final Judgment and Writ of Possession for the landlord in an uncontested residential eviction unless they are responsible for the day-to-day management of the residential rental property.
Leonard P. Cabral
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Wednesday, July 15, 2015 5:47 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues
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
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
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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
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If you feel that a “rental agent” somehow has less duties etc than a “property manager” then why would the statute refer to a rental agent as being able to receive the money? The writers of the statute most likely assumed the rental agent was indeed managing and they were not simply doing finder’s fee or tenant placement, 2 more terms which are used interchangeably.
It is just poor drafting in the law. The terms are used interchangeably.
Rarely does a person who only does tenant placement/finder’s fee file evictions. The eviction filers are primarily the ones who engage in “property management”
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
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From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Thursday, July 16, 2015 5:29 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Security deposit issues
Harry
I partly disagree that a “rental agent” and a “property manager” are the same although in some instances they could be. (I may have been confusing. Hopefully this may clear it up up. I was responding to the hypothetical designating 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”. In the hypothetical Joe is not a rental agent and need not be licensed to be a “property manager”. And the Property manager licensed by Century 21 many not fit the definition of “property manager” depending on the extent of his role in managing the property. I get really pissed when a realtors who are only listing a property for lease, and has no other involvement in the maintenance of the property files an eviction for non payment to get the current tenant out to make his/her commission. It is the unlicensed practice of law. I have provided my outline below.
There is no definition of "rental agent" in Chapter 475 or Chapter 83. There is a definition for Broker and Sales person in Chapter 475 as you suggest but the definition of “property manager” is defined by the The Fla. Bar re: Advisory Opinions which I cited in the earlier email and is the bases of this discussion below. Pursuant to DBPR, a rental agent may or may not need to be licensed depending on their role. According to DBPR a person renting or leasing or attempts to rent or lease real property of another for compensation requires a license BUT a salaried employee of an owner of an apartment community working in an onsite rental office does not need a license. So an on sight “rental agent” and “property manager” may be the same (and may file evictions for the landlord) but a rental agent licensed pursuant to Chapter 475 can not file an eviction unless they are also the property manager or they have participated in the unlicensed practice of law. So my reference to UPL as it applies to this discussion was to define a “property manager”
In 1992 the Florida The Supreme Court also concluded it is the unlicensed practice of law for a nonlawyer to draft and file a complaint for eviction and motion for default and to obtain a final judgment and writ of possession for a landlord but also authorized a "property manager", with or without a power of attorney, to draft and serve a Three Day Notice, draft and file a Complaint for Eviction and Motion for Default and obtain a Final Judgment and Writ of Possession for the landlord in an uncontested residential evictions and mandated that the property manager utilize the Florida Bar approved forms pursuant to Rule 10-1.1(b) which must also be signed and filed by the landlord. In other words an exception for these activities normally performed by attorneys was carved out for "property managers". Then in 1993 The supreme Court of Florida clarified the above opinion rejecting the definition of “property manager” to include only those persons licensed as real estate brokers or salespersons under chapter 475. The Court limited the definition of a property manager 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. Real estate brokers and salespersons who are licensed under chapter 475 may also qualify as "property managers" if they otherwise fit within this definition or property manager. Stated another way a licensed Real estate broker or sales person may not draft and serve a Three Day Notice, draft and file a Complaint for Eviction and Motion for Default and obtain a Final Judgment and Writ of Possession for the landlord in an uncontested residential eviction unless they are responsible for the day-to-day management of the residential rental property.
Leonard P. Cabral
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Wednesday, July 15, 2015 5:47 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Security deposit issues
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
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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
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
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
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