Members:  I'm curious to learn whether you think the person in the following
fact scenario is a tenant subject to a possession action or not and subject
to an ejectment action.  Thank you for your thoughts.

FACTS:  Owner agrees to allow Mrs. Smith to move in to the Owner's
condominium in exchange for payment of the electricity bill.  Owner lives in
the condominium as well.  After one month, Mrs. Smith stops paying
electricity bill.  Owner then demands rent in the amount of $400 per month
which Mrs. Smith initially agrees to pay but the deal terms change when
Owner agrees that Mrs. Smith can remain in the unit without paying rent if
she will assist Owner with a foreclosure action.  Mrs. Smith at no time
paid the $400/month.  Mrs. Smith does assist Owner but now the foreclosure
has been resolved.  In the meantime, Mrs. Smith has invited another person
into the unit, refuses to pay rent, remove the visitor or to turn over
possession.

Eviction or Ejectment?

Thank you.

Regards,

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

301 Yamato Road, Suite 1240

Boca Raton, Florida 33431

Telephone: (561) 226-4628

Facsimile: (561) 994-6693

Website: www.horkylaw.com http://www.horkylaw.com/

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

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

That sounds like occupancy for consideration. Evict.

David  Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
Phone 954-491-1120
Toll Free 888-491-1120
Direct Phone 954-343-6941
Direct Fax 954-343-6942

[cid:image001.jpg@01CD1193.D160A910]

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, April 03, 2012 12:05 PM
To: landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Ejectment or possession action

Members:  I'm curious to learn whether you think the person in the following fact scenario is a tenant subject to a possession action or not and subject to an ejectment action.  Thank you for your thoughts.

FACTS:  Owner agrees to allow Mrs. Smith to move in to the Owner's condominium in exchange for payment of the electricity bill.  Owner lives in the condominium as well.  After one month, Mrs. Smith stops paying electricity bill.  Owner then demands rent in the amount of $400 per month  which Mrs. Smith initially agrees to pay but the deal terms change when Owner agrees that Mrs. Smith can remain in the unit without paying rent if she will assist Owner with a foreclosure action.  Mrs. Smith at no time paid the $400/month.  Mrs. Smith does assist Owner but now the foreclosure  has been resolved.  In the meantime, Mrs. Smith has invited another person into the unit, refuses to pay rent, remove the visitor or to turn over possession.

Eviction or Ejectment?

Thank you.

Regards,

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: www.horkylaw.comhttp://www.horkylaw.com/

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

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

The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have
received this communication in error, please notify us immediately by reply e-mail.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

A portion of our practice involves the collection of debt and any information you provide will be used for that purpose if we are attempting to collect a debt from you.

I don't think you have established a landlord - tenant relationship, so
chapter 83 does not apply.  I say unlawful detainer under chapter 82 is the
way to go.

Alberto M. Cardet, P.A.

1330 Coral Way #301

Miami FL 33145

305-403-7783

305-403-7824 (fax)

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, April 03, 2012 12:05 PM
To: landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Ejectment or possession action

Members:  I'm curious to learn whether you think the person in the following
fact scenario is a tenant subject to a possession action or not and subject
to an ejectment action.  Thank you for your thoughts.

FACTS:  Owner agrees to allow Mrs. Smith to move in to the Owner's
condominium in exchange for payment of the electricity bill.  Owner lives in
the condominium as well.  After one month, Mrs. Smith stops paying
electricity bill.  Owner then demands rent in the amount of $400 per month
which Mrs. Smith initially agrees to pay but the deal terms change when
Owner agrees that Mrs. Smith can remain in the unit without paying rent if
she will assist Owner with a foreclosure action.  Mrs. Smith at no time
paid the $400/month.  Mrs. Smith does assist Owner but now the foreclosure
has been resolved.  In the meantime, Mrs. Smith has invited another person
into the unit, refuses to pay rent, remove the visitor or to turn over
possession.

Eviction or Ejectment?

Thank you.

Regards,

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

301 Yamato Road, Suite 1240

Boca Raton, Florida 33431

Telephone: (561) 226-4628

Facsimile: (561) 994-6693

Website: www.horkylaw.com http://www.horkylaw.com/

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

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

Since evictions under Ch. 83 are usually a much more efficient process (both time and expense), I always try to find an argument to make it a L/T case if possible.  Under your facts, I would argue that Section 83.46(3) applies to their relationship (i.e. occupancy in exchange for employment), which allows the L/L to terminate the rental agreement in accordance with the notice requirements of 83.57.

Free rent in exchange for work being done, I believe, creates a landlord/tenant relationship pursuant to 83.46(3).  Just my two cents.

Cary 
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416 
Phone: (561) 281-2744 

IRS Circular 230 Notice:  Pursuant to recently enacted  U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law.  If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. 
Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

From: Alberto M. Cardet alcardet@gmail.com
To: 'RPPTL Landlord Tenant Committee' landten@lists.flabarrpptl.org
Sent: Tuesday, April 3, 2012 12:25 PM
Subject: Re: [RPPTL LandTen] Ejectment or possession action

I don’t think you have established a landlord – tenant relationship, so chapter 83 does not apply.  I say unlawful detainer under chapter 82 is the way to go.
 
Alberto M. Cardet, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783
305-403-7824 (fax)
 
From:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, April 03, 2012 12:05 PM
To: landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Ejectment or possession action
 
Members:  I’m curious to learn whether you think the person in the following fact scenario is a tenant subject to a possession action or not and subject to an ejectment action.  Thank you for your thoughts.
 
FACTS:  Owner agrees to allow Mrs. Smith to move in to the Owner’s condominium in exchange for payment of the electricity bill.  Owner lives in the condominium as well.  After one month, Mrs. Smith stops paying electricity bill.  Owner then demands rent in the amount of $400 per month  which Mrs. Smith initially agrees to pay but the deal terms change when Owner agrees that Mrs. Smith can remain in the unit without paying rent if she will assist Owner with a foreclosure action.   Mrs. Smith at no time paid the $400/month.  Mrs. Smith does assist Owner but now the foreclosure  has been resolved.  In the meantime, Mrs. Smith has invited another person into the unit, refuses to pay rent, remove the visitor or to turn over possession.
 
Eviction or Ejectment?
 
Thank you. 
 
 
Regards,
 
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: www.horkylaw.com
 
This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky@horkylaw.com.

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

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

Cary and Members of the Committee,
I can’t cite you the case right now, but you are correct that occupancy in exchange for work does create a landlord-tenant relationship.
Manny

[http://www.richmangreer.com/emailsig/logo.gif]

Manuel Farach / Of Counsel - Board Certified in Real Estate Law and Business Litigation by The Florida Bar

Richman Greer P.A.
One Clearlake Centre
Suite 1504
250 Australian Avenue South
West Palm Beach, Florida 33401
Office: 561.803.3500
Fax: 561.820.1608
Direct: 561.803.3501
Email: MFarach@richmangreer.com
www.RichmanGreer.comhttp://www.RichmanGreer.com

[http://www.richmangreer.com/emailsig/meritas.gif]

To ensure compliance with requirements imposed by the IRS, we inform
you that any U.S. federal tax advice contained in this communication (including
any attachments) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any transaction or matter
addressed herein.

This message contains confidential information and is intended for landten@lists.flabarrpptl.org. If you are not
landten@lists.flabarrpptl.org you are notified that disclosing, copying, distributing or taking any action in
reliance on the contents of this information is strictly prohibited. E-mail
transmission cannot be guarranteed to be secure or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender (MFarach@richmangreer.com) therefore does not accept liability for any errors or omissions in the contents of this message, which
arise as a result of e-mail transmission. If verification is required please request a hard-copy version.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Tuesday, April 03, 2012 1:41 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Ejectment or possession action

Since evictions under Ch. 83 are usually a much more efficient process (both time and expense), I always try to find an argument to make it a L/T case if possible.  Under your facts, I would argue that Section 83.46(3) applies to their relationship (i.e. occupancy in exchange for employment), which allows the L/L to terminate the rental agreement in accordance with the notice requirements of 83.57.
Free rent in exchange for work being done, I believe, creates a landlord/tenant relationship pursuant to 83.46(3).  Just my two cents.

Cary
Law Offices of Cary P. Sabol
P.O. Box 15981 | West Palm Beach | Florida | 33416
Phone: (561) 281-2744
IRS Circular 230 Notice: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice expressed above was neither written nor intended by the sender or this firm to be used and cannot be used by any taxpayer for the purpose of avoiding penalties that may be imposed under U.S. tax law. If any person uses or refers to any such tax advice in promoting, marketing or recommending a partnership or other entity, investment plan or arrangement to any taxpayer, then the advice should be considered to have been written to support the promotion or marketing by a person other than the sender or this firm of that transaction or matter, and such taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Confidentiality Notice: This electronic mail transmission is intended for the use of the individual or entity to which it is addressed and may contain confidential information belonging to the sender which is protected by the attorney-client privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this information is strictly prohibited. If you have received this transmission in error, please notify the sender immediately by e-mail and delete the original message. Thank you for your cooperation.

From: Alberto M. Cardet <alcardet@gmail.commailto:alcardet@gmail.com>
To: 'RPPTL Landlord Tenant Committee' <landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org>
Sent: Tuesday, April 3, 2012 12:25 PM
Subject: Re: [RPPTL LandTen] Ejectment or possession action

I don’t think you have established a landlord – tenant relationship, so chapter 83 does not apply.  I say unlawful detainer under chapter 82 is the way to go.

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

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, April 03, 2012 12:05 PM
To: landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Ejectment or possession action

Members:  I’m curious to learn whether you think the person in the following fact scenario is a tenant subject to a possession action or not and subject to an ejectment action.  Thank you for your thoughts.

FACTS:  Owner agrees to allow Mrs. Smith to move in to the Owner’s condominium in exchange for payment of the electricity bill.  Owner lives in the condominium as well.  After one month, Mrs. Smith stops paying electricity bill.  Owner then demands rent in the amount of $400 per month  which Mrs. Smith initially agrees to pay but the deal terms change when Owner agrees that Mrs. Smith can remain in the unit without paying rent if she will assist Owner with a foreclosure action.  Mrs. Smith at no time paid the $400/month.  Mrs. Smith does assist Owner but now the foreclosure  has been resolved.  In the meantime, Mrs. Smith has invited another person into the unit, refuses to pay rent, remove the visitor or to turn over possession.

Eviction or Ejectment?

Thank you.

Regards,

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: www.horkylaw.comhttp://www.horkylaw.com/

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

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

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

I would say unlawful detainer and/or eviction.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner

POTTER CLEMENT LOWRY

308 East Fifth Avenue

Mount Dora, Florida 32757

Phone:  352.383.4186

Fax:      352.383.0087

jnalexander@pcld-law.com BLOCKED::mailto:jnalexander@pcld-law.com

This message and any attachments are intended only for the use of the
addressee and may contain information that is privileged and
confidential.  If the reader of the message is not the intended
recipient, you are hereby notified that any dissemination of this
communication is strictly prohibited.  If you have received this e-mail
in error, please notify us immediately by replying to this e-mail
message or by telephone and delete this message and any attachments from
your system.  Thank you.

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J.
Horky
Sent: Tuesday, April 03, 2012 12:05 PM
To: landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Ejectment or possession action

Members:  I'm curious to learn whether you think the person in the
following fact scenario is a tenant subject to a possession action or
not and subject to an ejectment action.  Thank you for your thoughts.

FACTS:  Owner agrees to allow Mrs. Smith to move in to the Owner's
condominium in exchange for payment of the electricity bill.  Owner
lives in the condominium as well.  After one month, Mrs. Smith stops
paying electricity bill.  Owner then demands rent in the amount of $400
per month  which Mrs. Smith initially agrees to pay but the deal terms
change when Owner agrees that Mrs. Smith can remain in the unit without
paying rent if she will assist Owner with a foreclosure action.  Mrs.
Smith at no time paid the $400/month.  Mrs. Smith does assist Owner but
now the foreclosure  has been resolved.  In the meantime, Mrs. Smith has
invited another person into the unit, refuses to pay rent, remove the
visitor or to turn over possession.

Eviction or Ejectment?

Thank you.

Regards,

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

301 Yamato Road, Suite 1240

Boca Raton, Florida 33431

Telephone: (561) 226-4628

Facsimile: (561) 994-6693

Website: www.horkylaw.com http://www.horkylaw.com/

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

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

New Question

I have a client who is a landlord in a commercial center.  Lease provides for reimbursement of increase over base year of "insurance due and payable".  Types of insurance are specified.  There is a provision that an insurance bill or copy submitted shall be conclusive evidence of the amount of insurance, subject to manifest error, but no other detail on how cost of insurance is determined.

Tenant is now trying to go back to inception of lease (2005) and challenge inclusion of insurance broker fee in cost of insurance.

Any experience or case law?

This email message was sent by:

Lloyd Granet
Law Offices of Lloyd Granet, P.A.
2295 NW Corporate Boulevard, Suite 235
Boca Raton, FL 33431
Direct Dial:  (561) 999-0090
Main Number:  (561) 999-9300 x110
Fax: (561) 999-9400
Email: lgranet@granetlaw.com

NOTICE:  IRS Circular 230 Disclosure:  In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Lloyd Granet, P.A. requests that you immediately notify us at (561) 999-9300 (collect) and destroy this communication. Thank you.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph Alexander
Sent: Tuesday, April 03, 2012 2:36 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Ejectment or possession action

I would say unlawful detainer and/or eviction.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner
POTTER CLEMENT LOWRY
308 East Fifth Avenue
Mount Dora, Florida 32757
Phone:  352.383.4186
Fax:      352.383.0087
jnalexander@pcld-law.comBLOCKED::mailto:jnalexander@pcld-law.com

This message and any attachments are intended only for the use of the addressee and may contain information that is privileged and confidential.  If the reader of the message is not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited.  If you have received this e-mail in error, please notify us immediately by replying to this e-mail message or by telephone and delete this message and any attachments from your system.  Thank you.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]mailto:[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, April 03, 2012 12:05 PM
To: landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Ejectment or possession action

Members:  I'm curious to learn whether you think the person in the following fact scenario is a tenant subject to a possession action or not and subject to an ejectment action.  Thank you for your thoughts.

FACTS:  Owner agrees to allow Mrs. Smith to move in to the Owner's condominium in exchange for payment of the electricity bill.  Owner lives in the condominium as well.  After one month, Mrs. Smith stops paying electricity bill.  Owner then demands rent in the amount of $400 per month  which Mrs. Smith initially agrees to pay but the deal terms change when Owner agrees that Mrs. Smith can remain in the unit without paying rent if she will assist Owner with a foreclosure action.  Mrs. Smith at no time paid the $400/month.  Mrs. Smith does assist Owner but now the foreclosure  has been resolved.  In the meantime, Mrs. Smith has invited another person into the unit, refuses to pay rent, remove the visitor or to turn over possession.

Eviction or Ejectment?

Thank you.

Regards,

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: www.horkylaw.comhttp://www.horkylaw.com/

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

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

Not so helpful but will mention - one of the most irritating (LL perspective) negotiation issues in commercial leases seems to be the look-back limit for reconciliations or audits, from CAM and Taxes, to rights to pay reduced rent by reason of co-tenancy, exclusive violation, or other asserted breach. It's a huge negotiation issue on every lease it seems. Absent clarity on look-back limits, I find we are fighting this battle all the time. A couple of the national women's retailers (I won't mention names) are infamous for doing this, going back 10 years. It's awful.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lloyd Granet
Sent: Monday, April 09, 2012 9:14 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Ejectment or possession action

New Question

I have a client who is a landlord in a commercial center.  Lease provides for reimbursement of increase over base year of "insurance due and payable".  Types of insurance are specified.  There is a provision that an insurance bill or copy submitted shall be conclusive evidence of the amount of insurance, subject to manifest error, but no other detail on how cost of insurance is determined.

Tenant is now trying to go back to inception of lease (2005) and challenge inclusion of insurance broker fee in cost of insurance.

Any experience or case law?

This email message was sent by:

Lloyd Granet
Law Offices of Lloyd Granet, P.A.
2295 NW Corporate Boulevard, Suite 235
Boca Raton, FL 33431
Direct Dial:  (561) 999-0090
Main Number:  (561) 999-9300 x110
Fax: (561) 999-9400
Email: lgranet@granetlaw.com

NOTICE:  IRS Circular 230 Disclosure:  In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Lloyd Granet, P.A. requests that you immediately notify us at (561) 999-9300 (collect) and destroy this communication. Thank you.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph Alexander
Sent: Tuesday, April 03, 2012 2:36 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Ejectment or possession action

I would say unlawful detainer and/or eviction.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner
POTTER CLEMENT LOWRY
308 East Fifth Avenue
Mount Dora, Florida 32757
Phone:  352.383.4186
Fax:      352.383.0087
jnalexander@pcld-law.comBLOCKED::mailto:jnalexander@pcld-law.com

This message and any attachments are intended only for the use of the addressee and may contain information that is privileged and confidential.  If the reader of the message is not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited.  If you have received this e-mail in error, please notify us immediately by replying to this e-mail message or by telephone and delete this message and any attachments from your system.  Thank you.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]mailto:[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, April 03, 2012 12:05 PM
To: landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Ejectment or possession action

Members:  I'm curious to learn whether you think the person in the following fact scenario is a tenant subject to a possession action or not and subject to an ejectment action.  Thank you for your thoughts.

FACTS:  Owner agrees to allow Mrs. Smith to move in to the Owner's condominium in exchange for payment of the electricity bill.  Owner lives in the condominium as well.  After one month, Mrs. Smith stops paying electricity bill.  Owner then demands rent in the amount of $400 per month  which Mrs. Smith initially agrees to pay but the deal terms change when Owner agrees that Mrs. Smith can remain in the unit without paying rent if she will assist Owner with a foreclosure action.  Mrs. Smith at no time paid the $400/month.  Mrs. Smith does assist Owner but now the foreclosure  has been resolved.  In the meantime, Mrs. Smith has invited another person into the unit, refuses to pay rent, remove the visitor or to turn over possession.

Eviction or Ejectment?

Thank you.

Regards,

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: www.horkylaw.comhttp://www.horkylaw.com/

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

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

I agree, I inherited this lease, there is no look back issue and the tenant is the anchor.

This email message was sent by:

Lloyd Granet
Law Offices of Lloyd Granet, P.A.
2295 NW Corporate Boulevard, Suite 235
Boca Raton, FL 33431
Direct Dial:  (561) 999-0090
Main Number:  (561) 999-9300 x110
Fax: (561) 999-9400
Email: lgranet@granetlaw.com

NOTICE:  IRS Circular 230 Disclosure:  In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Lloyd Granet, P.A. requests that you immediately notify us at (561) 999-9300 (collect) and destroy this communication. Thank you.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Drobner, David S.
Sent: Monday, April 09, 2012 9:37 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Ejectment or possession action

Not so helpful but will mention - one of the most irritating (LL perspective) negotiation issues in commercial leases seems to be the look-back limit for reconciliations or audits, from CAM and Taxes, to rights to pay reduced rent by reason of co-tenancy, exclusive violation, or other asserted breach. It's a huge negotiation issue on every lease it seems. Absent clarity on look-back limits, I find we are fighting this battle all the time. A couple of the national women's retailers (I won't mention names) are infamous for doing this, going back 10 years. It's awful.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]mailto:[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lloyd Granet
Sent: Monday, April 09, 2012 9:14 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Ejectment or possession action

New Question

I have a client who is a landlord in a commercial center.  Lease provides for reimbursement of increase over base year of "insurance due and payable".  Types of insurance are specified.  There is a provision that an insurance bill or copy submitted shall be conclusive evidence of the amount of insurance, subject to manifest error, but no other detail on how cost of insurance is determined.

Tenant is now trying to go back to inception of lease (2005) and challenge inclusion of insurance broker fee in cost of insurance.

Any experience or case law?

This email message was sent by:

Lloyd Granet
Law Offices of Lloyd Granet, P.A.
2295 NW Corporate Boulevard, Suite 235
Boca Raton, FL 33431
Direct Dial:  (561) 999-0090
Main Number:  (561) 999-9300 x110
Fax: (561) 999-9400
Email: lgranet@granetlaw.commailto:lgranet@granetlaw.com

NOTICE:  IRS Circular 230 Disclosure:  In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Lloyd Granet, P.A. requests that you immediately notify us at (561) 999-9300 (collect) and destroy this communication. Thank you.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]mailto:[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph Alexander
Sent: Tuesday, April 03, 2012 2:36 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Ejectment or possession action

I would say unlawful detainer and/or eviction.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner
POTTER CLEMENT LOWRY
308 East Fifth Avenue
Mount Dora, Florida 32757
Phone:  352.383.4186
Fax:      352.383.0087
jnalexander@pcld-law.comBLOCKED::mailto:jnalexander@pcld-law.com

This message and any attachments are intended only for the use of the addressee and may contain information that is privileged and confidential.  If the reader of the message is not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited.  If you have received this e-mail in error, please notify us immediately by replying to this e-mail message or by telephone and delete this message and any attachments from your system.  Thank you.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]mailto:[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, April 03, 2012 12:05 PM
To: landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Ejectment or possession action

Members:  I'm curious to learn whether you think the person in the following fact scenario is a tenant subject to a possession action or not and subject to an ejectment action.  Thank you for your thoughts.

FACTS:  Owner agrees to allow Mrs. Smith to move in to the Owner's condominium in exchange for payment of the electricity bill.  Owner lives in the condominium as well.  After one month, Mrs. Smith stops paying electricity bill.  Owner then demands rent in the amount of $400 per month  which Mrs. Smith initially agrees to pay but the deal terms change when Owner agrees that Mrs. Smith can remain in the unit without paying rent if she will assist Owner with a foreclosure action.  Mrs. Smith at no time paid the $400/month.  Mrs. Smith does assist Owner but now the foreclosure  has been resolved.  In the meantime, Mrs. Smith has invited another person into the unit, refuses to pay rent, remove the visitor or to turn over possession.

Eviction or Ejectment?

Thank you.

Regards,

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: www.horkylaw.comhttp://www.horkylaw.com/

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

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

Lloyd, there is a statute of limitations issue that could limit the tenant's claim.  See Garden Isles Apts. No. 3 v. Connelly, 546 So.2d 38 (Fla. 4th DCA 1989) and Westinghouse Credit Corporation v. Grandoff Investments, 297 So.2d 104 (Fla. 2d DCA 1974).  I have pulled these cites from a 1997 research memo so they should be Sheperdized.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Lloyd Granet
Sent: Monday, April 09, 2012 9:14 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Ejectment or possession action

New Question

I have a client who is a landlord in a commercial center.  Lease provides for reimbursement of increase over base year of "insurance due and payable".  Types of insurance are specified.  There is a provision that an insurance bill or copy submitted shall be conclusive evidence of the amount of insurance, subject to manifest error, but no other detail on how cost of insurance is determined.

Tenant is now trying to go back to inception of lease (2005) and challenge inclusion of insurance broker fee in cost of insurance.

Any experience or case law?

This email message was sent by:

Lloyd Granet
Law Offices of Lloyd Granet, P.A.
2295 NW Corporate Boulevard, Suite 235
Boca Raton, FL 33431
Direct Dial:  (561) 999-0090
Main Number:  (561) 999-9300 x110
Fax: (561) 999-9400
Email: lgranet@granetlaw.commailto:lgranet@granetlaw.com

NOTICE:  IRS Circular 230 Disclosure:  In order to ensure compliance with IRS Circular 230, we must inform you that any U.S. tax advice contained in this transmission and any attachments hereto is not intended or written to be used and may not be used by any person for the purpose of (i) avoiding any penalty that may be imposed by the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

NOTICE: This communication is: (a) sent by an attorney or his/her agent, (b) confidential, and (c) intended only for the use of the individual or entity to which it is addressed. If the addressee is a client, this communication is also subject to applicable privileges. If you are not the addressee, or the employee or agent responsible for the delivery to the addressee, any dissemination, distribution or copying of this communication is prohibited. If you received this communication in error: (a) any dissemination, distribution or copying is prohibited, and (b) Lloyd Granet, P.A. requests that you immediately notify us at (561) 999-9300 (collect) and destroy this communication. Thank you.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Joseph Alexander
Sent: Tuesday, April 03, 2012 2:36 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Ejectment or possession action

I would say unlawful detainer and/or eviction.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner
POTTER CLEMENT LOWRY
308 East Fifth Avenue
Mount Dora, Florida 32757
Phone:  352.383.4186
Fax:      352.383.0087
jnalexander@pcld-law.comBLOCKED::mailto:jnalexander@pcld-law.com

This message and any attachments are intended only for the use of the addressee and may contain information that is privileged and confidential.  If the reader of the message is not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited.  If you have received this e-mail in error, please notify us immediately by replying to this e-mail message or by telephone and delete this message and any attachments from your system.  Thank you.

From: landten-bounces@lists.flabarrpptl.orgmailto:landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org]mailto:[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, April 03, 2012 12:05 PM
To: landten@lists.flabarrpptl.orgmailto:landten@lists.flabarrpptl.org
Subject: [RPPTL LandTen] Ejectment or possession action

Members:  I'm curious to learn whether you think the person in the following fact scenario is a tenant subject to a possession action or not and subject to an ejectment action.  Thank you for your thoughts.

FACTS:  Owner agrees to allow Mrs. Smith to move in to the Owner's condominium in exchange for payment of the electricity bill.  Owner lives in the condominium as well.  After one month, Mrs. Smith stops paying electricity bill.  Owner then demands rent in the amount of $400 per month  which Mrs. Smith initially agrees to pay but the deal terms change when Owner agrees that Mrs. Smith can remain in the unit without paying rent if she will assist Owner with a foreclosure action.  Mrs. Smith at no time paid the $400/month.  Mrs. Smith does assist Owner but now the foreclosure  has been resolved.  In the meantime, Mrs. Smith has invited another person into the unit, refuses to pay rent, remove the visitor or to turn over possession.

Eviction or Ejectment?

Thank you.

Regards,

Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
301 Yamato Road, Suite 1240
Boca Raton, Florida 33431
Telephone: (561) 226-4628
Facsimile: (561) 994-6693
Website: www.horkylaw.comhttp://www.horkylaw.com/

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

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

</pre>IRS CIRCULAR 230 NOTICE:  Pursuant to recently enacted<br>U.S. Treasury Department Regulations, we are now required<br>to advise you that, unless otherwise expressly indicated,<br>any federal tax advice expressed above was neither<br>written nor intended by the sender or this firm to be<br>used and cannot be used by any taxpayer for the purpose <br>of avoiding penalties that may be imposed under U.S. tax <br>law.  If any person uses or refers to any such tax advice<br>in promoting, marketing or recommending a partnership or<br>other entity, investment plan or arrangement to any <br>taxpayer, then the advice should be considered to have<br>been written to support the promotion or marketing by a <br>person other than the sender or this firm of that <br>transaction or matter, and such taxpayer should seek<br>advice based on the taxpayer's particular circumstances<br>from an independent tax advisor.<br><br><br>The information in this email transmission is privileged<br>and confidential.  If you are not the intended recipient,<br>nor the employee or agent responsible for delivering it to<br>the intended recipient, you are hereby notified that any<br>dissemination or copying of this transmission (including<br>any attachments) is strictly prohibited.  If you have<br>received this email in error, please notify the sender by<br>email reply.  Thank you.<br><pre>