I assume the client's main interest is recovering possession of the property as Laverne and Shirely are likely judgment proof. I would prepare one 3-day notice naming both Laverne, Shirely and all others in possession, the obligation to pay is the same whether pursuant to the written lease or some other tacit verbal agreement with lavern. File the action for possession naming Laverne, Shirely and all others in possession. Rely on the contract with Shirely for the complaint. My experience has been that judges will consider that laverne took possession pursuant to the agreement with shirely and if the rent is not being paid by either then neither has the right to possession, although a judgment for damages pursuant to the contract would only be proper against Shirely. Also, if the lights are off for non-payment you are likely going to either get a default or if there is an answer you will get a court registry default for failure to comply with 83.60(2)

just my thoughts - good luck

Alberto M. Cardet, P.A.
1330 Coral Way #301
Miami Fl 33145
305-403-7783
305-403-7824 (fax)

--- SAFrank@arnstein.com wrote:

From: "Frank, Scott A." <SAFrank@arnstein.com>
To: "RPPTL Landlord Tenant Committee" <landten@lists.flabarrpptl.org>
Subject: [RPPTL LandTen] A question to my learned colleagues
Date: Tue, 20 Jul 2010 17:22:00 -0400

I have a client who used to be in the business of flipping houses. As you may guess, he is now in the business of renting houses.

He has a bit of a current dilemma, and asked for my thoughts. Not being a residential LL-Tenant guy, I thought I would ask for yours. Here is his current scenario:

LL rented a house and signed a lease with Sister 1 ("Shirley"). Shirley was not a great payer, but usually paid. Sister 2 ("Laverne") moved in with Shirley. Landlord was aware. Shirley took off. Laverne paid some money to the Landlord, which the Landlord accepted, knowing it was from Laverne and that Shirley was gone. No amendment to the original lease and no new written lease with Laverne. Laverne is now quite behind (and, by the way, the electric has been paid off for non-payment). Client/Landlord wants to send three-day notice and evict.

My initial thought is to prepare and deliver 2 notices, one each to Laverne and Shirley, and then to file possession action against Laverne and Shirley as well. My concern is that since the Landlord accepted money from Laverne after Shirley disappeared, Laverne's defenses could include that Landlord either (i) agree to an assignment of the lease from Shirley to Laverne, or (ii) entered into a new non-written (i.e., month-to-month) tenancy agreement with Laverne. But if we don't serve Shirley, she may have a defense, as the original lease was never terminated. So by naming both, LL can preclude these defenses. But can he evict two different people for the same property, under potentially two different rental agreements, at the same time? Is there a better (cleaner) way?

Thoughts?

Thanks.

Scott A Frank Attorney at Law
ARNSTEIN & LEHR LLP

www.arnstein.com

515 North Flagler Drive

Sixth Floor

West Palm Beach, Florida 33401-4323

Phone: 561.833.9800

Fax: 561.655.5551

433 Plaza Real
Suite 275
Boca Raton, Florida 33401-4323
Phone: 561.962.4145
Fax: 561.962.4245
SAFrank@arnstein.com

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