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Orra landlord tenant act

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  • 1. BY: Nishad Khan, Esq. Landlord Tenant Act Update Effective July 1st By Nishad Khan, Esq. (407) 228-9711 www.NishadKhanLaw.com
  • 2. Legislative History  2012: FL Legislature passed an omnibus of changes to almost half of the 32 Sections of Part 2, Chapter 83.  Initially sponsored in Senate by Senator Stargel.  Rep. Porter sponsored companion HB 77 with support of Apartment Owner’s Association.  HB 77, incorporating amendments by the Senate, passed the House on March 13, 2013, approved by Governor on June 7, 2013, and became effective July 1, 2013.
  • 3. F.S. §83.42: Exclusions from Application of Part  Currently, §83.42 provides for certain exclusions to the applicability of Part II (occupancies under contract)  This bill narrows situations in which properties are under contract.  The Act will not apply to a contract for sale of a dwelling unit in which the buyer has paid: ◦ at least 12 months rent, or ◦ In which the buyer has paid at least one months’ rent and a deposit of at least (5%) of the purchase price of the property.
  • 4. F.S. §83.42: How Does this Affect You?  Brings certain leases under a purchase agreement where less than 12 months of rent (or less than 1 month and 5% deposit) within the coverage of the Act.  By doing so, the remedy of eviction would be available to parties under a lease/purchase contract as opposed to ejectment, a potentially longer cause of action.
  • 5. F.S. §83.48: Attorney Fees  Under F.S. 84.48, Attorney fees may be awarded to the prevailing party to recover fees from the non prevailing party in an action to enforce the lease, or provisions of the Act.  Bill’s supporters suggested this section could be used to award attorneys’ fees in a tenant’s personal injury action against a landlord for the landlord’s failure to maintain the dwelling unit in accordance with F.S. 83.51.  Bill codifies Gilbert v. Jabour, 527 So. 2d 951 (Fla. 3d DCA 1988) holding that attorneys’ fees may not be awarded in a PI claim based on LL’s duty to maintain the premises.
  • 6. F.S. §83.48: How Does This Affect You?  Although the bill prevents shrewd attorneys from collecting attorney fees through the Act, the Bill also adds that the right to claim attorney fees may not be waived in the lease agreement.
  • 7. §83.49: Deposit Money or Advanced Rent; Duty of Landlord –Tenant (Disclosure)  The Bill modifies four parts of F.S. 83.49 governing the treatment of security deposits:  Current Law requires LL to provide written notice disclosing certain remedies and time limits for claims on security deposits within 30 days of receipt of deposit from tenant. Section 83.49(2), F.S.  Bill modifies the notice requirement to eliminate the requirement that LL provide the special notice, and provides for a specific disclosure that may now either be given by notice or included in the lease.
  • 8. §83.49(2): Deposit Money or Advanced Rent; Duty of Landlord –Tenant- DISCLOSURE  YOUR LEASE REQUIRES PAYMENT OF CERTAIN DEPOSITS. THE LANDLORD MAY TRANSFER ADVANCE RENT TO THE LANDLORD’S ACCOUNT AS THEY ARE DUE AND WITHOUT NOTICE. WHEN YOU MOVE OUT, YOU MUST GIVE THE LANDLORD YOUR NEW ADDRESS SO THAT THE LANDLORD CAN SEND YOU NOTICES REGARDING YOUR DEPOSIT. THE LANDLORD MUST MAIL YOU NOTICE, WITHIN 30 DAYS AFTER YOU MOVE OUT, OF THE LANDLORD’S INTENT TO IMPOSE A CLAIM AGAINST THE DEPOSIT. IF YOU DO NOT REPLY TO THE LANDLORD STATING YOUR OBJECTION TO THE CLAIM WITHIN 15 DAYS AFTER RECEIPT OF THE LANDLORD’S NOTICE, THE LANDLORD WILL COLLECT THE CLAIM AND MUST MAIL YOU THE REMAINING DEPOSIT, IF ANY.  IF THE LANDLORD FAILS TO TIMELY MAIL YOU NOTICE, THE LANDLORD MUST RETURN THE DEPOSIT BUT MAY LATER FILE A LAWSUIT AGAINST YOU FOR DAMAGES. IF YOU FAIL TO TIMELY OBJECT TO A CLAIM, THE LANDLORD MAY COLLECT FROM THE DEPOSIT, BUT YOU MAY LATER FILE A LAWSUIT CLAIMING A REFUND. YOU SHOULD ATTEMPT TO INFORMALLY RESOLVE ANY DISPUTE BEFORE FILING A LAW SUIT. GENERALLY, THE PARTY IN WHOSE FAVOR A JUDGMENT IS RENDERED WILL BE AWARDED COSTS AND ATTORNEY FEES PAYABLE BY THE LOSING PARTY. THIS DISCLOSURE IS BASIC. PLEASE REFER TO PART II OF CHAPTER 83, TO DETERMINE YOUR LEGAL RIGHTS AND OBLIGATIONS.
  • 9. §83.49(2): Deposit Money or Advanced Rent; Duty of Landlord –Tenant (Advanced Rent)  Currently, the LL must deposit advance rent into a separate account.  Current law is silent as to whether the LL must give notice and opportunity to object before paying advance rent held separately.  The Bill now states that a landlord may withdraw advance rent held in a separate deposit account if due under the rental agreement without notice to the tenant.
  • 10. §83.49(2): Deposit Money or Advanced Rent; Duty of Landlord –Tenant (Claims)  Section 83.49(3)(a) provides that a tenant has 15 days to object to LL’s deduction of security deposit amounts after receipt of LL’s notice.  Current law is unclear as to whether a LL loses its right to file action against tenant for damages if the LL fails to send a timely notice of claim against the deposit.
  • 11. §83.49(2): Deposit Money or Advanced Rent; Duty of Landlord –Tenant (Claims)  The Bill codifies current case law in Durene v. Alcime, 448 So.2d 1208:  A landlord who fails to provide timely written notice of a claim against the deposit must return the deposit, but may file a later action for damages.
  • 12. §83.49(2): Deposit Money or Advanced Rent; Duty of Landlord –Tenant (Objections)  Currently, the tenant who fails to object to LL’s withholding of all or part of the deposit within 15 days of receipt of LL’s notice of intent to withhold loses its right to object to the withholding.  The Bill now provides that the tenant retains the right to pursue damages in a separate action against the landlord.
  • 13. §83.49(2): Deposit Money or Advanced Rent; Duty of Landlord –Tenant (Transfers)  Current law requires LL to transfer deposits to a new owner of the property.  In practice, some LL’s, especially ones who have been foreclosed on, neglect to transfer the deposit to the new owner.  In order to protect tenants from the burden of proving that new owner of the property has received the tenant’s deposit from the prior LL, the Bill creates a rebuttable presumption that the new owner has received the deposit, but the presumption is limited to one month’s rent.  The burden is shifted to the new LL to prove the deposit amount.  Tenant is presumed to have deposited one months rent in that instance.  Example: Situation where the prior LL neglects to transfer the deposit or a dispute as to the transferred amount occurs.
  • 14. §83.49(2): Deposit Money or Advanced Rent; Duty of Landlord –Tenant (Form Leases)  To accommodate LL’s with stocks of preprinted leases forms complying with current law, the Bill creates a new section providing that leases entered into on or before December 31, 2013, the LL may elect to comply with the current statutory disclosure requirements or the new disclosure requirements under the bill.
  • 15. The End! (407) 228-9711 nak@nishadkhanlaw.com www.NishadKhanLaw.com