[RPPTL LandTen] Prepaid or Last Month's rent issue
Does anyone have an opinion on this clause?
“In the event the Tenant breaches the lease by vacating prior to the last month of the lease owing rent under the terms of the lease or leaves damages that exceed the security deposit, Tenant agrees that if the Landlord is holding any prepaid rent, the Tenant agrees these funds may be used for any damages or rent due under the terms of the lease and/or Florida law”
My partner feels that a “last month’s rent” can only be used for the “last month” of the lease and cannot be used for anything else. This can create an absurd result of having to return a last month’s rent to a tenant who has damaged the premises in excess of the security deposit or owes many more month’s rent per the lease.
I disagree.
Thoughts?
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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First, the clause as written converts the pre-paid rent to a fund for damages.
It would be less of a discussion if the lease provided for two months of security and no pre-paid rent.
David Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
200 E. Broward Blvd., Suite 1800
Fort Lauderdale, FL 33301
Phone 954-491-1120 Ext. 1015
Direct Phone 954-343-6941
Direct Fax 954-343-6942
[cid:image006.jpg@01CF99C8.29DF4240]
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Wednesday, December 23, 2015 1:20 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Prepaid or Last Month's rent issue
Does anyone have an opinion on this clause?
“In the event the Tenant breaches the lease by vacating prior to the last month of the lease owing rent under the terms of the lease or leaves damages that exceed the security deposit, Tenant agrees that if the Landlord is holding any prepaid rent, the Tenant agrees these funds may be used for any damages or rent due under the terms of the lease and/or Florida law”
My partner feels that a “last month’s rent” can only be used for the “last month” of the lease and cannot be used for anything else. This can create an absurd result of having to return a last month’s rent to a tenant who has damaged the premises in excess of the security deposit or owes many more month’s rent per the lease.
I disagree.
Thoughts?
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:image003.png@01D13D88.5D3165A0]https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
Visit us on Facebook
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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.
That is what I recommend but many clients want a LMR and tenants want to pay a LMR and then this situation arises all the time.
Constantly.
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 David Weisman
Sent: Wednesday, December 23, 2015 1:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Prepaid or Last Month's rent issue
First, the clause as written converts the pre-paid rent to a fund for damages.
It would be less of a discussion if the lease provided for two months of security and no pre-paid rent.
David Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
200 E. Broward Blvd., Suite 1800
Fort Lauderdale, FL 33301
Phone 954-491-1120 Ext. 1015
Direct Phone 954-343-6941
Direct Fax 954-343-6942
cid:image006.jpg@01CF99C8.29DF4240
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Wednesday, December 23, 2015 1:20 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Prepaid or Last Month's rent issue
Does anyone have an opinion on this clause?
“In the event the Tenant breaches the lease by vacating prior to the last month of the lease owing rent under the terms of the lease or leaves damages that exceed the security deposit, Tenant agrees that if the Landlord is holding any prepaid rent, the Tenant agrees these funds may be used for any damages or rent due under the terms of the lease and/or Florida law”
My partner feels that a “last month’s rent” can only be used for the “last month” of the lease and cannot be used for anything else. This can create an absurd result of having to return a last month’s rent to a tenant who has damaged the premises in excess of the security deposit or owes many more month’s rent per the lease.
I disagree.
Thoughts?
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428
FAX: 1 800 367 9038
"Serving the Property Management Professional"
Website: http://www.evict.com/ www.evict.com
Email: mailto:harry@evict.com harry@evict.com
https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
Visit us on Facebook
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The 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.
Unless specifically indicated otherwise, any discussion of tax issues contained in this e-mail, including any attachments, is not, and is not intended to be, ''written advice'' as defined in Section 10.37 of Treasury Department Circular 230.
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.
Harry,
I agree with you. I think the clause would help.
This case may be helpful. Plakhov v Serova, 126 So. 3d 1221 (Fla. 4DCA
2012)
Dennis
Dennis A. Chen, Esq.
Chen Law Firm, PA
13360 W. Colonial Dr, Ste. 470
Winter Garden, Florida 34787
Tel: (407) 392-1872
dennis@chenlaw.net
Bankruptcy * Civil Litigation * Landlord/Tenant * Personal Injury * Real
Estate Litigation
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On Wed, Dec 23, 2015 at 1:20 PM, Harry Heist harry@evict.com wrote:
Does anyone have an opinion on this clause?
*“*In the event the Tenant breaches the lease by vacating prior to the
last month of the lease owing rent under the terms of the lease or leaves
damages that exceed the security deposit, Tenant agrees that if the
Landlord is holding any prepaid rent, the Tenant agrees these funds may be
used for any damages or rent due under the terms of the lease and/or
Florida law”
My partner feels that a “last month’s rent” can only be used for the “last
month” of the lease and cannot be used for anything else. This can create
an absurd result of having to return a last month’s rent to a tenant who
has damaged the premises in excess of the security deposit or owes many
more month’s rent per the lease.
I disagree.
Thoughts?
Harry
*LAW OFFICES OF HEIST, WEISSE & WOLK P.A.PH: 1 800 253 8428
<1%20800%20253%208428>FAX: 1 800 367 9038 <1%20800%20367%209038>"Serving
the Property Management Professional"Website: *www.evict.com
http://www.evict.com/
- Email: *harry@evict.com harry@evict.com
https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
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Key to the Plakhov decision was that the subject lease did not restrict the use of the security deposit. Rather than stating in the leases that the security deposit shall be applied against damages to the property, I state that the security deposit is to be applied against any breach of the lease (the lease specifies the duty of the tenant to maintain it in good condition etc). Thus, failure to pay rent is a breach as is any failure to abide by other covenants.
On Dec 28, 2015, at 11:31 AM, Dennis Chen dennis@chenlaw.net wrote:
Harry,
I agree with you. I think the clause would help.
This case may be helpful. Plakhov v Serova, 126 So. 3d 1221 (Fla. 4DCA 2012)
Dennis
Dennis A. Chen, Esq.
Chen Law Firm, PA
13360 W. Colonial Dr, Ste. 470
Winter Garden, Florida 34787
Tel: (407) 392-1872
dennis@chenlaw.net mailto:dennis@chenlaw.net
Bankruptcy * Civil Litigation * Landlord/Tenant * Personal Injury * Real Estate Litigation
CONFIDENTIALITY NOTICE: This e-mail, including any attachment, contains legally privileged and confidential information and is intended solely for the recipient. Should the intended recipient forward this message to any person or entity, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, you are hereby notified that any review, dissemination, distribution, or copying of this communication is prohibited. If this communication was sent or received in error, please notify us by reply e-mail and delete the original message.
On Wed, Dec 23, 2015 at 1:20 PM, Harry Heist <harry@evict.com mailto:harry@evict.com> wrote:
Does anyone have an opinion on this clause?
“In the event the Tenant breaches the lease by vacating prior to the last month of the lease owing rent under the terms of the lease or leaves damages that exceed the security deposit, Tenant agrees that if the Landlord is holding any prepaid rent, the Tenant agrees these funds may be used for any damages or rent due under the terms of the lease and/or Florida law”
My partner feels that a “last month’s rent” can only be used for the “last month” of the lease and cannot be used for anything else. This can create an absurd result of having to return a last month’s rent to a tenant who has damaged the premises in excess of the security deposit or owes many more month’s rent per the lease.
I disagree.
Thoughts?
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428 tel:1%20800%20253%208428
FAX: 1 800 367 9038 tel:1%20800%20367%209038
"Serving the Property Management Professional"
Website: www.evict.com http://www.evict.com/
Email: harry@evict.com mailto:harry@evict.com
<image001.png> https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
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<Plakhov v Serova.pdf>_______________________________________________
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I would add that the security deposit secures tenant’s performance of its obligation under the lease agreement, including any breach for nonpayment of rent and that the landlord may, at its sole discretion, apply the security deposit against unpaid rent. Or similar language. The point being that tenants try to avoid paying last month’s rent by telling the landlord to apply their security deposit. My leases give the landlord the option but not the requirement to do so.
Regards,
AJH Logo mark
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F: 561.952.0096
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: mailto:ahorky@horkylaw.com 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.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Robert Wunker
Sent: Monday, December 28, 2015 12:03 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Prepaid or Last Month's rent issue
Key to the Plakhov decision was that the subject lease did not restrict the use of the security deposit. Rather than stating in the leases that the security deposit shall be applied against damages to the property, I state that the security deposit is to be applied against any breach of the lease (the lease specifies the duty of the tenant to maintain it in good condition etc). Thus, failure to pay rent is a breach as is any failure to abide by other covenants.
On Dec 28, 2015, at 11:31 AM, Dennis Chen dennis@chenlaw.net wrote:
Harry,
I agree with you. I think the clause would help.
This case may be helpful. Plakhov v Serova, 126 So. 3d 1221 (Fla. 4DCA 2012)
Dennis
Dennis A. Chen, Esq.
Chen Law Firm, PA
13360 W. Colonial Dr, Ste. 470
Winter Garden, Florida 34787
Tel: (407) 392-1872
dennis@chenlaw.net
Bankruptcy * Civil Litigation * Landlord/Tenant * Personal Injury * Real Estate Litigation
CONFIDENTIALITY NOTICE: This e-mail, including any attachment, contains legally privileged and confidential information and is intended solely for the recipient. Should the intended recipient forward this message to any person or entity, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, you are hereby notified that any review, dissemination, distribution, or copying of this communication is prohibited. If this communication was sent or received in error, please notify us by reply e-mail and delete the original message.
On Wed, Dec 23, 2015 at 1:20 PM, Harry Heist harry@evict.com wrote:
Does anyone have an opinion on this clause?
“In the event the Tenant breaches the lease by vacating prior to the last month of the lease owing rent under the terms of the lease or leaves damages that exceed the security deposit, Tenant agrees that if the Landlord is holding any prepaid rent, the Tenant agrees these funds may be used for any damages or rent due under the terms of the lease and/or Florida law”
My partner feels that a “last month’s rent” can only be used for the “last month” of the lease and cannot be used for anything else. This can create an absurd result of having to return a last month’s rent to a tenant who has damaged the premises in excess of the security deposit or owes many more month’s rent per the lease.
I disagree.
Thoughts?
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428 tel:1%20800%20253%208428
FAX: 1 800 367 9038 tel:1%20800%20367%209038
"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 <image001.png>
Visit us on Facebook
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http://mailman.fsr.com/mailman/listinfo/landten
<Plakhov v Serova.pdf>_______________________________________________
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Thanks. Actually, mine do use the word “may”. Sorry to mislead in my paraphrasing that otherwise.
On Dec 28, 2015, at 12:19 PM, Anthony J. Horky ahorky@horkylaw.com wrote:
I would add that the security deposit secures tenant’s performance of its obligation under the lease agreement, including any breach for nonpayment of rent and that the landlord may, at its sole discretion, apply the security deposit against unpaid rent. Or similar language. The point being that tenants try to avoid paying last month’s rent by telling the landlord to apply their security deposit. My leases give the landlord the option but not the requirement to do so.
Regards,
<image003.png>
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F: 561.952.0096
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 mailto: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.
From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of Robert Wunker
Sent: Monday, December 28, 2015 12:03 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Prepaid or Last Month's rent issue
Key to the Plakhov decision was that the subject lease did not restrict the use of the security deposit. Rather than stating in the leases that the security deposit shall be applied against damages to the property, I state that the security deposit is to be applied against any breach of the lease (the lease specifies the duty of the tenant to maintain it in good condition etc). Thus, failure to pay rent is a breach as is any failure to abide by other covenants.
On Dec 28, 2015, at 11:31 AM, Dennis Chen <dennis@chenlaw.net mailto:dennis@chenlaw.net> wrote:
Harry,
I agree with you. I think the clause would help.
This case may be helpful. Plakhov v Serova, 126 So. 3d 1221 (Fla. 4DCA 2012)
Dennis
Dennis A. Chen, Esq.
Chen Law Firm, PA
13360 W. Colonial Dr, Ste. 470
Winter Garden, Florida 34787
Tel: (407) 392-1872
dennis@chenlaw.net mailto:dennis@chenlaw.net
Bankruptcy * Civil Litigation * Landlord/Tenant * Personal Injury * Real Estate Litigation
CONFIDENTIALITY NOTICE: This e-mail, including any attachment, contains legally privileged and confidential information and is intended solely for the recipient. Should the intended recipient forward this message to any person or entity, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, you are hereby notified that any review, dissemination, distribution, or copying of this communication is prohibited. If this communication was sent or received in error, please notify us by reply e-mail and delete the original message.
On Wed, Dec 23, 2015 at 1:20 PM, Harry Heist <harry@evict.com mailto:harry@evict.com> wrote:
Does anyone have an opinion on this clause?
“In the event the Tenant breaches the lease by vacating prior to the last month of the lease owing rent under the terms of the lease or leaves damages that exceed the security deposit, Tenant agrees that if the Landlord is holding any prepaid rent, the Tenant agrees these funds may be used for any damages or rent due under the terms of the lease and/or Florida law”
My partner feels that a “last month’s rent” can only be used for the “last month” of the lease and cannot be used for anything else. This can create an absurd result of having to return a last month’s rent to a tenant who has damaged the premises in excess of the security deposit or owes many more month’s rent per the lease.
I disagree.
Thoughts?
Harry
LAW OFFICES OF
HEIST, WEISSE & WOLK P.A.
PH: 1 800 253 8428 tel:1%20800%20253%208428
FAX: 1 800 367 9038 tel:1%20800%20367%209038
"Serving the Property Management Professional"
Website: www.evict.com http://www.evict.com/
Email: harry@evict.com mailto:harry@evict.com
<image001.png> https://www.facebook.com/pages/Heist-Weisse-Wolk-PA/343965575625870
Visit us on Facebook
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<Plakhov v Serova.pdf>_______________________________________________
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