1. Conference of County Court Judges July, 2015
Managing the Landlord ~ Tenant Docket
Conference of County Court Judges July, 2015
Judge David E. Silverman
Judge Michaelle Gonzalez-Paulson

2. Learning Objectives
1.   Correctly apply pertinent law, including recent statutory changes, to decide common issues in landlord-tenant cases.
2.  List ways to expeditiously and efficiently handle a landlord- tenant caseload.

3. Practice Tip 1
Review file within days after service of process.
Judge should review file to determine if the Court has jurisdiction and, if so, whether:
Default is proper; Rent Determination Hearing should be set; or, Trial should be set.

4. Service of Process Chapter 48 Posted Service Personal Substitute
Prior attempts
At least 6 hours apart
Conspicuous location on premises

5. Service of Process - Scenario
Return of Service
The summons and complaint served by
[ ]Personal
[ ]Substitute
[Χ]Posting

6. Service of Process – Polling Results
The Clerk has entered a default on this Return of Service, the Court should,
Evict based on Clerk’s default
Decline to proceed pending filing of return reflecting proper service
Set hearing to determine proper service of process

7. Service of Process - Perspectives
Court’s Review of Return of Service
Effect of Clerk’s Default
Limitation on Damages
Court Costs
Response by Defendant
Effect on Deficiency in Service of Process
Effect on Damages Limitation

8. Practice Tip 2 Use template documents to expedite accurate decisions.
Judge should be able to promptly enter orders including,
Order for Default, Final Judgment of Eviction, Order Scheduling Rent Determination, Order Scheduling Trial

9. § 34.011 - County Court Jurisdiction
The County Court shall have
(1) Jurisdiction concurrent with the circuit court to consider landlord and tenant cases
(2) exclusive jurisdiction of proceedings relating to the right of possession of real property. . .

10. § 26.012 (2) – Circuit Court Jurisdiction
Circuit Courts shall have exclusive original jurisdiction:
(f) In actions of ejectment; and
(g) In all actions involving the title and boundaries of real property.

11. § 82.42 (2) – Exclusion from County Court Jurisdiction
Residential eviction does not apply
If the tenant is in possession by a contract for purchase of the residence unit and “has paid at least 12 months’ rent” or “at least 1 month’s rent and a deposit of at least 5 %” of the purchase price of the property.

12. Jurisdiction - Scenario
The Tenants’ Answer
“The landlord orally promised we would be able to buy the house and he would apply one third of our rent to the purchase price.”

13. Jurisdiction - Options
Where the tenant claims an interest in the residence by an alleged option, the Court should,
Evict absent rent deposit
Order accrued rent deposit
Conduct hearing to evaluate validity of claim
Transfer to circuit court

14. Jurisdiction - Perspectives
Effect of Amendment
Determination as to Interest
Domestic Tenancy
Unlawful Detainer
Mortgage Foreclosure Eviction
Federal Law Repealed
Recent Florida Statute

15. Practice Tip 3 Dispose of most cases by default judgment of eviction.
Where tenant has defaulted by failing to file answer or not posting accrued rent when required
Avoid emotional response that may result in unnecessary trial

16. § 83.60 (2) – Motion to Determine Rent
Failure of the tenant to pay the rent into the registry of the court “or to file a motion to determine the amount of rent within 5 days” entitles the landlord “to an immediate default judgment.”

17. § 83.60 (2) – Motion to Determine Rent
If a motion to determine rent is filed, “documentation in support of the allegation that the rent as alleged in the complaint is in error is required. ”

18. Motion to Determine Rent - Scenario
The Tenant’s Motion to Determine Rent
“The amount claimed by the landlord in the 3 day notice is wrong, we don’t owe that much.”

19. Motion to Determine Rent – Options
Without documentation, the Motion to Determine Rent asserts that rent claimed is in error, the Court should,
Evict
Order deposit of accrued rent
Set hearing on motion
Set hearing on motion only if inconsistency in amount claimed

20. Practice Tip 4 Facilitate online scheduling.
Place available hearing time online together with instructions on reserving hearing time.
Provide pertinent information – without giving legal advice – as to landlord-tenant issues.
Make template documents available.

21. § 83.60 (2) - Defense of Payment
In a residential eviction action, “if the tenant interposes any defense other than payment,” including “a defective 3-day notice,” the tenant shall deposit the accrued rent into the registry.

22. Defense of Payment – Scenario
The Tenant’s Answer
“The landlord orally agreed to take partial rent so he’s been paid everything he’s owed.”

23. Defense of Payment – Options
Where the Answer alleges rent obligation satisfied, the Court should –
Evict
Order payment of accrued rent as alleged in Complaint
Conduct evidentiary hearing as to amount of deposit
Schedule trial

24. Practice Tip 5 Avoid ex parte communications with litigants.
Expedited procedure does not vary responsibility under the Canons of Judicial Conduct.
Scheduling exception, limited with respect to basis, prompt disclosure, adverse appearance.

25. § 83.60 (1)(a) – Landlord May Cure Deficient Notice
“The landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.”
DS: Before we begin the closings, I’m renewing my request for a default judgment. The tenant only deposited $ in the registry. He was in arrears for two months, that’s $ The law directs you, your honor, to enter a default final judgment and not even consider their spurious arguments. [Slide(___)- statute]

26. Three Day Notice - Deficiencies
Improper 3-Day Notice
“Court observed” holidays
“Rent” only
Mailed notice - 5 additional days
Improper parties
Tenants not on lease
Improper or fictitious landlord

27. Three Day Notice – Options
Provided deposit of accrued rent, where the 3 day notice appears deficient, the Court should -
Evict where deficiency is not prejudicial
Stay for 20 days or less
Stay for more than 20 days
Dismiss with leave to amend

28. Practice Tip 6 Maintain a tracking log of eviction cases.
Identify how many days each eviction case is pending, at each stage, to disposition.
Compare cases to identify causes of delay, points at which delay occur, and procedures for expediting resolution.

29. Staying the Writ

30. Staying the Writ – Scenario
Following entry of an eviction judgment, the Court should stay execution of the writ upon,
Extreme adverse consequences
Landlord’s acceptance of rent after entry of the judgment
No stay

31. Staying the Writ – Polling Results

32. Perspectives Public Housing Tenants Mobile Home Evictions
Deposit Amount
Notice Requirements
Mobile Home Evictions
Basis for Eviction
Delaying the Writ
Condominium Assn. Evictions

33. Practice Tip 7 When scheduling trial, require deposit of accrued rent.
When the trial is scheduled into the next month, rent may continue to become due.
Including obligation to continue to deposit rent in trial order may limit potential adverse effects.

34. Conducting the Trial - § 83.60(1)
The landlord’s material noncompliance with §83.51(1) is “a complete defense” to an eviction action based upon nonpayment of rent and “the rent is to be reduced to reflect the diminution in value of the dwelling unit.”
The defense of material non- compliance may be raised by the tenant, “if 7 days have elapsed after delivery of written notice by the tenant.”
CB: That should warrant a reduction in rent to the extent that no money is owed so no eviction would be appropriate. [Slide(___) – material noncompliance statute]

35. Substantial Non-Compliance
If trial is held on Tenant’s substantial non-compliance claim and proper notice of withholding rent was given,
If the claim is established, the judge can then deny the eviction; and,
Reduce the rent as the evidence presents itself and apportion disbursement from the deposit.

36. Conducting the Trial – Option Slide
During the pro se eviction trial the Court poses –
No questions
Only clarifying questions
All or substantially all of the questions

37. Conducting the Trial - Perspectives
Lease and Defense
Security Deposit
Notice and Objection
Damages
Rent and Replacement Values
Liquidated Damages
Disbursement of Registry Funds

38. Practice Tip 8
Conduct hearings with lean efficiency, gentle decisiveness and manifest fairness.
Choose chambers or courtroom and the tenor of the venue.
Avoid the “tardy” default.
Identify agreed and disputed issues of fact and applicable law.

39. Attorney’s Fees
§ – The prevailing party in an action to enforce the rental agreement may recover “reasonable attorney’s fees,” a right that may not be waived in the lease.
§ (3)(c) The prevailing party in an action “to adjudicate the party's right to the security deposit,” is “entitled to receive” attorney’s fees.

40. Attorney’s Fees – Scenario
The landlord prevailed on the eviction claim and the tenant recovered a portion of the security deposit

41. Attorney’s Fees – Options
In this scenario, the Court should award attorney’s fees to –
The landlord
The tenant
Offset the parties’ attorney’s fees
Neither party

42. Attorney’s Fees - Perspectives
Evaluation of Hours
Standard Time
Increments of Time
Determining Hourly Rate
Experience and Qualifications
Multiplier
Contingency - Chance of Prevailing
Necessity for Effective Counsel

43. Practice Tip 9
Promote opportunities for settlement and schedule mediation.
Despite adverse relationship, enlightened self-interest often motivates parties to settle.
Judicial reservations regarding waiver of default notice.

44. § 83.52 – Tenant’s Obligation
The tenant at all times during the tenancy shall:
(1) Comply all obligations imposed upon tenants by applicable provisions of building, housing, and health codes. . .
(6) Not destroy, deface, damage, impair or remove any part of the premises or property therein belonging to the landlord nor permit any person to do so.
DS: The tenant also has an obligation not to damage the premises. [Slide(___) – Tenant’s Obligation] The tenant caused a substantial amount of damage to my client’s unit. They damaged the doors, stained the carpeting, and broke the appliances.

45. § – Tenant Holding Over
If the tenant holds over and continues in possession of the dwelling unit after the expiration of the rental agreement without permission The landlord may also recover double the amount of rent due on the dwelling unit.

46. Practice Tip 10 Obtain the perspective of the shareholders.
Meet with sheriff’s eviction deputy, clerks, landlords’ counsel, property managers, representatives for homeless veterans, tenant’s rights organizations, etc.
Avoid discussion of specific cases.

47. Thank you for participating in the presentation