Empathy List Archives

FS

Frank, Scott A.

Tue, Jul 20, 2010 9:22 PM

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 http://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 mailto:SAFrank@arnstein.com

Offices in Illinois, Florida, and Wisconsin

This electronic mail transmission may contain confidential or privileged information.
If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or disclosing it.

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.

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 <http://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 <mailto:SAFrank@arnstein.com> Offices in Illinois, Florida, and Wisconsin This electronic mail transmission may contain confidential or privileged information. If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. 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.

AJ

Anthony J. Horky

Tue, Jul 20, 2010 10:18 PM

In my opinion, since Shirley is a party to the written lease, I would serve Shirley with a 3-day notice (provided the lease does not state some other notice period). With regard to Laverne, she is a tenant without a specific term. I would serve her with a Notice to Terminate the Tenancy as follows:

Section 83.57 governs termination of tenancies without specific terms. A tenancy without a specific duration, as defined in § 83.46(2) or (3), may be terminated by either party giving written notice in the manner provided in § 83.56(4), Fla. Stat, as follows:

When the Tenancy is from

By giving not less than

year to year

60 days' notice prior to the end of any annual period

quarter to quarter

30 days' notice prior to the end of any quarterly period

Month to month

15 days' notice prior to the end of any monthly period

week to week

7 days' notice prior to the end of any weekly period

Regards,

Anthony J. Horky, Esq.

Mombach, Boyle & Hardin, P.A.

500 East Broward Boulevard

Suite 1950 Broward Financial Centre

Ft. Lauderdale, Florida 33394

Telephone: 954.467.2200 ext. 225

Facsimile: 954.467.2210

E-Mail: ahorky@mbhlawyer.com

Website: www.mbhlawyer.com

CONFIDENTIALITY NOTICE: Unless otherwise stated, the information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email transmission in error, please notify the sender by email reply immediately. Thank you.

Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the proceeding message contains advice relating to a Federal tax issue, unless expressly stated otherwise, the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein.

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 sued 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.

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Frank, Scott A.
Sent: Tuesday, July 20, 2010 5:22 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] A question to my learned colleagues

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 http://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 mailto:SAFrank@arnstein.com

Offices in Illinois, Florida, and Wisconsin

This electronic mail transmission may contain confidential or privileged information.
If you believe that you have received this message in error, please notify
the sender by reply transmission and delete the message without copying or disclosing it.

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.

In my opinion, since Shirley is a party to the written lease, I would serve Shirley with a 3-day notice (provided the lease does not state some other notice period). With regard to Laverne, she is a tenant without a specific term. I would serve her with a Notice to Terminate the Tenancy as follows: Section 83.57 governs termination of tenancies without specific terms. A tenancy without a specific duration, as defined in § 83.46(2) or (3), may be terminated by either party giving written notice in the manner provided in § 83.56(4), Fla. Stat, as follows: When the Tenancy is from By giving not less than year to year 60 days' notice prior to the end of any annual period quarter to quarter 30 days' notice prior to the end of any quarterly period Month to month 15 days' notice prior to the end of any monthly period week to week 7 days' notice prior to the end of any weekly period Regards, Anthony J. Horky, Esq. Mombach, Boyle & Hardin, P.A. 500 East Broward Boulevard Suite 1950 Broward Financial Centre Ft. Lauderdale, Florida 33394 Telephone: 954.467.2200 ext. 225 Facsimile: 954.467.2210 E-Mail: ahorky@mbhlawyer.com Website: www.mbhlawyer.com CONFIDENTIALITY NOTICE: Unless otherwise stated, the information in this email transmission is privileged and confidential. If you are not the intended recipient, nor the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination or copying of this transmission (including any attachments) is strictly prohibited. If you have received this email transmission in error, please notify the sender by email reply immediately. Thank you. Internal Revenue Service regulations require that certain types of written advice include a disclaimer. To the extent the proceeding message contains advice relating to a Federal tax issue, unless expressly stated otherwise, the advice is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer, for the purpose of avoiding Federal tax penalties, and was not written to support the promotion or marketing of any transaction or matter discussed herein. 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 sued 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. ________________________________ From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Frank, Scott A. Sent: Tuesday, July 20, 2010 5:22 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] A question to my learned colleagues 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 <http://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 <mailto:SAFrank@arnstein.com> Offices in Illinois, Florida, and Wisconsin This electronic mail transmission may contain confidential or privileged information. If you believe that you have received this message in error, please notify the sender by reply transmission and delete the message without copying or disclosing it. 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.

FS

Frank, Scott A.

Tue, Jul 20, 2010 10:22 PM

Yes, but if Laverne is not paying, then wouldn't a 3-day notice suffice for terminating the month-to-month tenancy?

Scott A Frank
Attorney at Law
ARNSTEIN & LEHR LLP
www.arnstein.com http://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 mailto:SAFrank@arnstein.com

Offices in Illinois, Florida, and Wisconsin

From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Tuesday, July 20, 2010 6:18 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] A question to my learned colleagues