Condominium Pet Selective Enforcement

A condominium association prohibited all pets; except for birds and fish.  A tenant in the building owned a dog and the association filed a lawsuit to have the dog removed.  The tenant raised the affirmative defense of “selective enforcement” as other occupants had cats. 
The trial court ruled that cats are “fundamentally different than dogs” in that they are not noisy and don’t defecate outdoors and granted the association a summary judgment. 
 On appeal, the 4th District Court of Appeals stated that a party challenging the enforcement of an otherwise valid restrictive covenant has the burden to prove defensive matters that preclude enforcement, such as the enforcing authority acted in an unreasonable or arbitrary manner. Id. (citing Killearn Acres Homeowners Ass’n v. Keever, 595 So. 2d 1019, 1021 (Fla. 1st DCA 1992)). 
Restrictive covenants must be strictly enforced. Although a cat is different than a dog, a cat is also not a bird or a fish as stated in the covenants that was allowed. Thus, the trial court erred in holding that cats were permissible although dogs were not.   The Court found that the Association was selectively enforcing the restriction, and the summary judgment was reversed.

Eviction or Ejectment?

A landlord and tenant entered a lease-option to pay rent and have some of that money applied to purchasing the property; but the landlord filed for eviction.

The trial court ruled that an eviction is not the appropriate remedy where the occupant of the property has equity in the property. See e.g., Ward v. Estate of Ward, 1 So. 3d 238 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D28f]; Toledo v. Escamilla, 962 So.2d 1028 (Fla. 3rd DCA 2007) [32 Fla. L. Weekly D1876a]. In amending s. 83.42 Fla. Stat. in 2013, the legislature set a bright line for distinguishing tenants from buyers. See McKinney v. Dickson, 21 Fla. L. Weekly Supp. 175a (Lake Co. 2013).

While the county court may determine whether a tenant/buyer has equity in the property, Section 26.012(g) Fla. Stat. grants exclusive jurisdiction to the Circuit Court in actions involving title to real property/ejectment.  Thus, landlord’s proper cause of action was an ejectment in circuit court, not an eviction in county court, and the case was ordered transferred to circuit court for further proceedings. 

Harner vs. Carter, County Court, 7th Judicial Circuit in and for Volusia County. October 6, 2014. 22 Fla. L. Weekly Supp. 462a.

Condo Assessments Extinguished By Tax Deed

An investor purchased  the tax deed for a condominium unit.  It turned out that the original owner had not only failed to pay his taxes,  but owed the condominium association $8686.40  in  dues.   The condominium association tried to collect the back dues from the tax deed buyer, citing the condominium statute 718.116 which states that buyers through foreclosures or deeds in lieu take subject to condo dues., and 718.120  which states that a tax deed does not extinguish the provisions of the declaration of condominium against a unit.  The court noted that Florida Statutes Section 197.573(2), governing tax deed states

“this section shall not protect covenants creating any debt or lien against or upon the property, except one providing for satisfaction and survival of a lien of record held by a municipal or county governmental unit, or requiring the grantee to expend money for any purpose”

The court ruled that condo dues fell under “expend money for any purpose”  and therefore ARE  extinguished by a tax deed.  The legislature clearly intended that only municipal liens survive a tax deed.  The legislative intent was to protect the interests of the government  both in attracting tax deed buyers and municipalities,   but not to elevate condominium associations,  amongst   all creditors,   to the level of municipalities.

Bailey v. Sea Dip Beach Resort Condominium Association, Inc.  20 Fla. L. Weekly Supp. 266b. Volusia County 2012

Who is Liable for Utility Bills of Former Tenant?

A utility company or even a municipality providing water a sewer services may not refuse service or discontinue service to either the owner or a prospective tenant due to an unpaid utility bill where service was in the name of a prior tenant. Florida Statutes § 180.135 provides

Utility Services; refusal or discontinuance of services for nonpayment of service charges by former occupant of rental unit prohibited; unpaid service charges of former occupant not to be basis for lien against rental property, exception

(1)(a) any other provision of the law to the contrary notwithstanding. No municipality may refuse services or discontinue utility, water, or sewer service to the owner of any rental unit or to a tenant or prospective tenant of such rental unit for nonpayment of service charges incurred by a former occupant of the rental unit; any such unpaid service charges incurred by a former occupant will not be the basis for any lien against the rental property or legal action against the present tenant or owner to recover such charges except to the extent that the present tenant or owner has benefited directly from the service provided to the former occupant.

(b) This section applies only if the former occupant of the rental unit contracted for such services with the municipality or if the municipality provided services with knowledge of the former occupant’s name and period the occupant was provided the services.

(4) In any case where a (residential) tenant does not make a payment for service charges to a municipality for the provision of utility, water, or sewer services, the landlord may thereupon commence eviction proceedings.

The statute applies if the utilities were in the name of the former tenant. If the landlord had provided the deposit for the utility account,

the statute would still apply of the municipality was provided the name of the former tenant and informed of the time period of the tenancy. In the case of Berke v. City of Miami Beach, 568 So.2d 108 (Fla. 3rd DCS 1990) the City of Miami Beach file a lien against the rental property for the unpaid utility bills of the former tenants. The court of appeal ruled that the city could not impose a lien against the rental property. The fact that the tenants received utilities was deemed not to be a benefit to the landlord. The court stated that the city should have protected itself by requiring the landlord to co-sign for the utility account.

In another case, the water pipe broke while the landlord was in possession of the rental property resulting in a huge water bill which he did not pay. The landlord then rented the property to a tenant, who kept his water bill current. The city kept billing the landlord for the previous usage and when the landlord still did not pay this bill, the city cut off the water without any notice to the tenant. The court ruled that this violated due process Davis v. Weir 497 F.2d 139 (5th Cir. 1974). Another court found that requiring a tenant to pay a former tenant’s water bill violated the equal protection clause Kroger v. Guarino, 412 F. Supp 1375 (E.D. Pa 1976) aff’d 549 F.2d 795 (3rd Cir. 1977). The court rejected these arguments in a case where the utilities were in the name of a husband, who left his wife and with an unpaid utility bill. The utility refused to let her open an account in her own name until the prior bill was paid. The court rejected her due process argument because she had enjoyed the benefit of the utilities. . The court rejected these arguments in a case where the utilities were in the name of a husband, who left his wife and with an unpaid utility bill. The utility refused to let her open an account in her own name until the prior bill was paid. The court rejected her due process argument because she had enjoyed the benefit of the utilities. Haynsworth v. South Carolina Elec. & Gas Co. 488 F. Supp 565 (D.S.C. 1979).

Florida Landlords Given “Do-Over” For Defective 3 Day Notices

Until July 1, 2013 if the landlord filed an eviction with a defective 3 day notice, the case was subject to dismissal with prejudice.   The newly amended statutes went into effect July 1, 2013.

Current the law requires that “[t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.” Fla. Stat. 83.60(1)(a).

This means that a defective complaint will be dismissed without prejudice and with leave to amend the complaint and continue the lawsuit.

DIANA MARVEZ, Appellant, v. STEVEN CANDELARIA , Appellees. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County . November 19, 2014. An Appeal from an order of dismissal in the County Court in and for Miami-Dade County.  22 Fla. L. Weekly Supp. 515b.

(PER CURIAM.) Diana Marvez filed suit to evict Steven Candelaria and Mayelin Candelaria. Subsequently, the Candelarias moved to dismiss the action. The motion to dismiss was granted with prejudice and Marvez appeals. 

As a preliminary matter, this Court observes that a dismissal with prejudice is a harsh determination that ends an action without addressing the merits. Dismissal with prejudice is especially harsh where the failure of the complaint is amenable to amendment. Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 253 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1381a]. 

In the present instance, the motion to dismiss sought dismissal on the grounds that Marvez’s complaint for eviction rested upon a deficient three day notice. The motion further asserted that the wrong lease agreement had been attached to the complaint. This, contend the Candelarias, required dismissal with prejudice. 

Effective July 1, 2013, Florida law changed to require that “[t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.” Fla. Stat. 83.60(1)(a). 

Based upon the foregoing, the Trial Court’s Order of Dismissal REVERSED. The cause is REMANDED to the trial court for entry of an order of dismissal without prejudice and with leave to amend pursuant to section 83.60(1)(a). The Trial Court shall assess appellate fees and costs pursuant to section 83.48, Florida Statues, to the party ultimately prevailing below. (ZABEL, SHAPIRO, LINDSEY, JJ., Concurring).

Legislators Introduce the Permanent Protecting Tenants at Foreclosure Act of 2015

WASHINGTONSen. Richard Blumenthal (D-CT) and Rep. Keith Ellison (D-MN) introduced the Permanently Protecting Tenants at Foreclosure Act of 2015 (H.R. 1354) today. The bill ensures expired federal protections for renters living in foreclosed properties are renewed.
“Families who pay their rent and play by the rules should not be evicted simply because their landlord fails to pay hismortgage,” Sen. Blumenthal said.  “This measure is necessary to protect tenants from eviction when their landlord defaults.  The Act that protected them previously expired in 2014, so tenants may now be evicted, inexplicably and inexcusably when the building owner faces foreclosure.  As a matter of common sense and basic fairness, families should be spared life on the street when landlords shirk their obligations.”
“When a building owner falls into foreclosure, people who live in the property may be forced out—even if they’ve paid their rent in full and on time,” Ellison said. “It’s wrong that families face homelessness because the owner of the property where they live failed to make payments on time. The Permanently Protecting Tenants in Foreclosure Act ensures families have the time they need to find new housing.”
“The PTFA provides critical protection to innocent renter families whose homes have been foreclosed.  PTFA is an important tool, especially now, given the significant national shortage of rental housing,” said National Housing Law Project Executive Director Marcia Rosen.
“Without federal protections in place, many renters in foreclosed properties are vulnerable to summary eviction and homelessness. In nearly half the states, these renters can be evicted with five days’ notice or less, through no fault of their own,” said National Law Center on Homelessness and Poverty Executive Director Maria Foscarinis.
“We are grateful to Senator Blumenthal and Representative Ellison for introducing this crtical legislation to protect renters when their landlords’ properties go into foreclosure. We hope Congress acts swiftly to enact these protections,” said Sheila Crowley, President and CEO for National Low Income Housing Coalition.
While much of the response to the foreclosure crisis has focused on homeowners, 27% of properties and 40% of the units in foreclosure are estimated to be renter-occupied. These renters often have no idea that their landlord has fallen behind on mortgage payments, and usually have continued to pay their rent even as their landlord has failed to pay the mortgage. Prior to the passage of the Protecting Tenants at Foreclosure Act (PTFA) in May 2009, tenants were often required to move with as little as a few days-notice. The law ensured that most tenants can stay in their home for the remainder of their lease or for at least 90 days post-foreclosure.
But Congress did not extend the PTFA and it expired on December 31, 2014. The Permanently Protecting Tenants atForeclosure Act of 2015 makes the law permanent. 
The Permanently Protecting Tenants at Foreclosure Act of 2015 is co-sponsored by:  Reps. G.K. Butterfield, MichaelCapuano, Katherine Clark, Elijah Cummings, Al Green, Raul Grijalva, Hank Johnson, Alcee L. Hastings, Rubén Hinojosa, Marci Kaptur, Jim Langevin, Barbara Lee, John Lewis, Stephen Lynch, Carolyn B. Maloney, James P. McGovern, Gregory Meeks, Gwen Moore, Eleanor Holmes Norton, Mark Pocan, Louise Slaughter, Adam Smith, Mark Takano and Maxine Waters.

Florida Supreme Court Set to Hear Oral Arguments in Foreclosure Statute of Limitations Case Bartram

On April 1, 2015, the Florida Supreme Court finally set a date to hear the Bartram case, where the Court will decide the fate of the statute of limitations in foreclosure cases.  

The Bartram Court in the 5th DCA decided that the five-year deadline to collect started anew when each mortgage payment was missed. That essentially means the bank is under no deadline to refile for the life of the mortgage, typically 30 years, plus 5 years.

As a defense lawyer, I personally do not expect the Florida Supreme Court to wipe away tens of millions of dollars in mortgage debt, or give hundreds of Florida homeowners essentially free houses.  I fully expect the Florida Supreme Court to come to that final decision and then craft legal reasoning to reach that final decision, mostly by affirming its prior ruling in Singleton vs. Greymar; the very case the Bartram court used in its reasoning.  The Singleton court was the originator of the theory that each new mortgage payment missed was the basis for a continuing default, and that essentially the bank could re-file foreclosure over and over again alleging a newer default date.   

I fully expect the Florida Supreme Court to affirm its own ruling in Singleton, thus affirming Bartram.  It sounds like a lot of the big name foreclosure defense lawyers concur, finally accepting that even if legally correct it will not be the outcome due to equity (what is fair, which is not a landslide victory for homeowners giving free homes) reasons.

New Foreclosure Procedures to Cancel Sales in Broward County, Florida

In the past, sale date cancellation hearings were scheduled at will, even with 1-2 days notice.  Now, the Court is requiring at least 5 business days notice to the Court itself via an email to set the date for a hearing to cancel a sale date.  Any hearings not confirmed by the Court will NOT be heard as walk-ins as in the past.
ANNOUNCEMENT! From the 17th Judicial Court Broward
The following announcement was posted on the doors of the court rooms today:
Beginning Tuesday, March 17, 2015 all Add Ons will be handled in the following manner:
All Add Ons will be scheduled with prior email notification ONLY.
For Emergency Motion to Stop a Sale please email the Foreclosure Unit at least 5 working days prior to the hearing.
The email address is Cases will be considered schedule by way of an email confirmation.
For all other Add Ons please also email us at least10 days out. In all cases the name of your motion must be stated. Again your hearing will ONLY be considered confirmed by email from Division 11.