VOLUME 2 - ISSUE 10 LEGAL UPDATE
- Motion to Determine Rent – A Tenant Delay Tactic
- New Sexual Predator and Offender Ordinances and how they affect the Landlord
- Florida Consumer Collection Laws and the Tenant Debt Dispute
MOTION TO DETERMINE RENT
A TENANT DELAY TACTIC
by Harry Anthony Heist, Attorney at Law
Your attorney filed an eviction on a tenant that clearly is two month’s delinquent. There is no disputing the amount and no problems with the premises; the tenant just has no money and told you he could not pay the rent. You think it is a slam dunk eviction when out of the blue, your attorney notifies you that the tenant has filed a “Motion to Determine Rent”. On top of that, the tenant has not posted one dime into the Court Registry and a court hearing is set for next week. How could this be? Doesn’t the tenant have to post the rent money into the Court Registry? The Motion to Determine Rent is one of the most annoying time delay tactics a tenant can successfully use against a landlord and its use is on the rise.
How can a Tenant defend an eviction?
Tenants have a number of remedies available to them when defending an eviction action. Some but certainly not all include actions whereby the tenant can file an Answer with the court, which is basically a statement by the tenant of reasons why he or she should not have to leave the premises. The tenant can file a Motion to Dismiss whereby the tenant tries to say that there is some defect in your paperwork or reason why the case should just be completely dismissed and thrown out of court, or the tenant can file what is called a Motion to Determine Rent. This article will examine the Motion to Determine Rent in depth, so you may have a better understanding of how it affects the eviction process.
WHAT IS A “MOTION TO DETERMINE RENT ?”
Background--When you file an eviction action for non-payment of rent, you must attach a 3 Day Notice to the eviction complaint and allege in the eviction complaint how much is owed by the tenant. This is required by law, as the tenant needs to know for what amount he or she is being evicted. Usually this amount is the rent and late charges (if the lease considers late charges as additional rent), plus any other periodic payments due under the lease terms and amounts which are considered rent. Oftentimes the tenant disputes this amount or feels that the eviction is unjust and files an “Answer” with the court. By law, the tenant when filing an Answer with the court, is required to place into the Court Registry the rent amount which is asked for by the landlord in the Complaint. Some tenants comply, other tenants don’t, and often the eviction continues on to completion, regardless of the Answer that the tenant filed with the court. In this case, the tenant may not get his or her day in court. There is one way a tenant can get heard in court WITHOUT filing an answer OR putting any money into the Court Registry. This is by filing a Motion to Determine Rent.
Legal Basis of the Motion--Florida law states that a tenant who is contesting an eviction must file an Answer within 5 business days of being served with the eviction summons OR may file a Motion to Determine Rent asking the judge to decide how much rent is owed, and how much if any should be deposited into the Court Registry. This will frequently trigger a court hearing.
Requirements of a Motion to Determine Rent--According to law, a tenants may file a Motion to Determine Rent if they are alleging that the rent asked for by the landlord on the 3 Day Notice or the complaint is “in error”. It is possible that the landlord has overstated the rent amount, the tenant paid the rent, the tenant is owed something by the landlord, the tenant has been given multiple 3 Day Notices with conflicting amounts, the tenant was to receive a concession, or the premises are so deficient that the tenant feels that the amount asked for should not be the amount that they should have to place in the Court Registry, or any other thing the tenant can come up with to make it appear that they do not understand what the amount of rent truly should be or how much they should pay. By law, the tenant is required to attach documentation to the Motion to Determine Rent showing some proof to the judge that the rent amount alleged in the complaint is in error.
The Problem--Most Motions to Determine Rent are legally insufficient, but they often end up triggering a court hearing nonetheless. The tenant does not attach documentation to the Motion showing that the rent is “in error”. Often the Motion simply says, “I want the court to determine how much rent is owed”. Use of the motion can be an outrageous abuse of the system, and judges are acting improperly when they set these matters for hearing. The tenant’s Motion to Determine Rent should often be “stricken” by the court as legally insufficient, but in many cases the hearing is set, and off to court we go.
The Result--Unfortunately, some judges will set a hearing on just about any Motion to Determine Rent, regardless of whether the tenant has properly filed the Motion, and the courts will do this with or without documentation attached to the Motion. This results in a time wasting hearing in most cases. The tenant and the landlord must now appear in court, the judge will take some testimony, and then the judge will order the tenant to place in the Court Registry the amount the judge feels is the amount of rent owed. Usually, this amount is exactly what the 3 day notice states and the amount that the landlord asked for in the complaint plus any rent that may have accumulated during the time the eviction was filed and the time the parties are in court. The eviction case is not heard at this time. It is only a limited hearing to determine how much money the tenant must place in the Court Registry.
When does the Court require the money to be posted into the Court Registry?--Sometimes the tenant is required to place the money into the Court Registry by 5 PM that day, or sympathetic and often inexperienced judges will give the tenant a week or more to deposit the money. Sounds outrageous? It is.
How does the tenant even know about this Motion to Determine Rent? --Unfortunately many court clerks tell the tenant that he can do this and go as far as to provide the tenant with a fill in the blank “Motion to Determine Rent.” Attorneys may represent the tenant and file such a motion, and many of the legal aid organizations provide the tenant with a form Motion to Determine rent solely for the purposes of delaying the case.
Suppose the tenant does not deposit the money into the Court Registry as ordered by the judge?--If the tenant fails to comply with the judge’s order, the judge will sign a Final Judgment of Eviction and the case will proceed to completion with no further court hearing.
Suppose the tenant deposits the money into the Court Registry as ordered?--The court will then set a trial, and a full fledged eviction trial will occur sometime when it is suitable for the judge. This could be in a few days or a few weeks depending on the judge’s schedule.
What can be done to minimize the occurrence of the Motion to Determine Rent?--While it is nearly impossible to prevent a tenant from filing a Motion to Determine Rent, there are certain things which are done by a property manager that increase the risk that such a motion will be filed. The following will increase the Motion to Determine Rent risk:
1. Giving the tenant a 3 Day Notice with excessive late charges.
2. Giving the tenant conflicting 3 Day Notices.
3. Giving the tenant a notice after the 3 Day Notice
4. Allowing a tenant to make a repair and having a dispute about a reimbursement or a concession.
5. Giving a tenant an open ended 3 Day Notice which says they owe a particular amount plus a certain amount per day causing the notice to be ambiguous.
6. Carrying over a balance for a long time and then putting this balance on the 3 Day Notice
7. Not maintaining the premises, causing the tenant to feel they are entitled to a rent abatement
8. Making oral payment arrangements with the tenant.
CONCLUSION--Unfortunately, we cannot prevent a tenant from filing a Motion to Determine Rent, and the frequency of these motions is increasing. A clean 3 Day Notice stating the exact amount owed, breaking out any other charges and making it easy to look at the lease agreement and the notice to see a nice match will be very helpful and is advisable in all cases. An experienced attorney will emphasize to the judge that the amount the tenant is to place in the Court Registry is the amount on the 3 Day Notice and any amount that may have accrued. If the tenant is claiming that the property value is diminished due to a deficiency with the premises, it is our firm position that the tenant should place all the money into the Court Registry, and these matters can be sorted out at trial. This separates the scam tenant from the legitimate tenant and is the whole reason why Florida law requires that the rent money be deposited into the Court Registry in order for a tenant to have a trial in court. Now… if only all the judges would follow the law.
FLORIDA STATUTES PERTAINING TO
THE MOTION TO DETERMINE RENT
83.60 Defenses to action for rent or possession; procedure …(2) In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. 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 to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon. In the event 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. Public housing tenants or tenants receiving rent subsidies shall be required to deposit only that portion of the full rent for which the tenant is responsible pursuant to federal, state, or local program in which they are participating.
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NEW SEXUAL PREDATOR AND OFFENDER ORDINANCES
HOW THEY AFFECT THE LANDLORD
by Harry Anthony Heist, Attorney at Law
Background of “Megans Law”
Megan's Law was created to provide information to the community as to the presence of sexual predators and offenders in their neighborhood. Through the Florida Department of Law Enforcement’s website and many other websites maintained by municipalities, it is possible for anyone to look up a person to see if they are a registered predator or offender and see the exact address of that person. Megan’s Law was named after 7-year old Megan Kanka, who was sexually assaulted and murdered by a convicted sexual predator; the law was created to have a system in place under which people could be notified of the presence of such a person in their community.
Florida Law--Florida Law does not require a private person such as a landlord to inquire as to whether someone is a sexual predator or offender, does not prohibit renting to one, and creates no requirement for the landlord to notify the community or immediate neighbors if they do in fact rent to a registered sexual offender or predator. While Florida law imposes restrictions on where a sexual predator or offender can live, there in no duty or obligation on a Florida landlord to inquire about the sexual predator or offender status of a person, or prohibit them from renting where he or she would be in violation of Florida law. Megan’s law as it applies to Florida only requires law enforcement to set up some sort of notification system to help a community know of the presence of an offender or predator in their neighborhood. The FDLE website is such a step in this direction. There are other laws that apply to the registered sexual predator or offender which prohibit them from living within a certain number of feet from places like schools, designated public school bus stops, day care centers, parks, beach playgrounds, libraries, churches or other places where children regularly congregate, but until now, this was not the concern of the Florida landlord.
New Ordinances as they apply to the Registered Sexual Offender, Predator and the property owners
Registered Sexual Offenders and Predators--Certain Florida municipalities, such as Ormond Beach, and Florida counties, such as Seminole County, are creating and have enacted ordinances which are further restricting where registered sexual predators or offender may reside, AND in the case of Seminole County, imposing criminal penalties on landlords if they rent to such a person in violation of the ordinances. The City of Ormond Beach will most likely soon pass an ordinance which prohibits any sexual predator or offender who has committed an illegal act of a sexual nature on a person less than the age of 16 years to establish a permanent residence within 2500 feet of a school, designated public school bus stop, day care center, park, beach playground, library, church or other place where children regularly congregate. The 2500 feet is measured from the outer limits of the residence to the nearest outer property line of the prohibited area “as the crow flies. Violation of this by the registered sexual predator or offender can result in a fine of $500.00 and by imprisonment for up to 60 days. Repeat offenders of the ordinance will suffer substantially greater penalties.
Owners--The proposed Ormond Beach ordinance makes it unlawful for the property owner to rent to any registered sexual predator or offender if such person will be in violation of the 2500 foot rule, and the enacted Seminole County Ordinance subjects the property owner to a criminal misdemeanor punishable by up to 60 days in jail and /or a fine up to $500.00. The property owner can actually now go to jail for renting to a sexual predator or offender.
Exceptions to the ordinances--There are some limited exceptions to these ordinances. In Ormond Beach for example, if a sexual predator or offender was currently living within the 2500 foot buffer zone prior to the enactment of the ordinance, there will be no violation of the ordinance, or if a school, designated public school bus stop, day care center, park, beach playground, library, church or other place where children regularly congregate is placed into service after the person has moved in, there is no violation. Once the lease expires though, the sexual predator and the owner will be in violation of the ordinance, if the tenant does not move.
What does this means to the property owner?--All owners need to immediately check the FDLE sexual predators and offenders website to see if they are indeed renting to a person on the list. If this is the case, it is highly recommend that the owner immediately examine the lease or the tenancy to see how soon a Notice of Non-Renewal can be given, and this Notice of Non-Renewal should be given in accordance with the terms of the lease and Florida law, plus be sent by certified mail, regular mail and by hand delivery or posting on the premises, to cover all bases. Many tenants served with a Notice of Non- Renewal deny receiving the notice, and this can complicate or prevent an eviction from occurring successfully if the tenant fails to vacate per the notice.
Practical Considerations--Every owner and property manager needs to be diligent in conducting criminal background checks on all applicants. There are many excellent companies which provide these checks at a very reasonable cost. We recommend using a Florida company, as they may have more up to date access to the court records. Even after you receive the background history, it is imperative that you check the FDLE website and make a written notation when you checked the website, the exact name you checked as provided by you from the applicant, and the steps you took to verify the information. The FDLE website has photographs of the registrants to assist you in verifying who you are dealing with, as many people have similar names. A registered sexual predator or offender will do whatever it takes to get housing, as they probably have been denied on numerous occasions and will often change the spelling of their name or fill out the application illegibly to make your search more difficult. As you can see, the “as the crow flies” distance requirement is extremely broad. Check with your local municipality, sheriff’s department and police station if you are unsure where your property is located in relation to a school, designated public school bus stop, day care center, park, beach playground, library, church or other place where children regularly congregate. If a property manager places a registered sexual offender or predator within this area and the property owner gets in trouble, be sure that you will not be the next to get in trouble. Remember, 2500 feet is almost one half mile, so the chances are very high that your property could fall within the danger zone.
NOTE Future issues of the Legal Newsletter will keep you up to date with the details pertaining to each ordinance.
TO RECEIVE COPIES OF THE PROPOSED ORMOND BEACH ORDINANCE OR THE ENACTED SEMINOLE COUNTY ORDINANCE, EMAIL US AT Info@Evict.com .
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FLORIDA CONSUMER COLLECTION LAWS AND THE TENANT DEBT DISPUTE
by Harry Anthony Heist, Attorney at Law
You send out a Notice of Intention to Impose a Claim on Security Deposit due to tenant damages. The tenant writes you a letter disputing the charges and calling you every name in the book. You write a letter back explaining your charges and tell the tenant that if they don’t pay, you are going to send the account to collections, and it will affect their credit. Sounds reasonable, right? You just violated the Florida Consumer Collections Law. The penalty? Actual damages PLUS additional statutory damages of up to $1,000.00, together with court costs and reasonable attorney's fees incurred by the tenant. This is serious business, and attorneys are out there just waiting for you to violate the law.
History of the Law -- Most landlords are familiar with or have heard of the Fair Debt Collections Practices Act, the FDCPA. These are the Federal Laws that govern “debt collectors”. When you send a file to a collection agency, the agency must follow these laws or they and you could be subject to penalties if the FDCPA is violated. Since the FDCPA applies only to “debt collectors”, the landlord usually does not have to worry about compliance to a great extent, as at least for now, a landlord or a property manager is for the most part not considered a ”debt collector” under the FDCPA. A “debt collector” under the FDCPA is more closely defined as someone who collects delinquent debts of another. The purpose of the FDCPA was to create laws to curb abuses by debt collectors who sometimes threaten and harass debtors. As you can see, the FDCPA governs debt collectors, but what if you are collecting a debt that is due to you? If you are collecting rent, you are considered an “original creditor”, thus you are not a “debt collector” as defined by the FDCPA, but you are not off the hook yet. An original creditor is governed by Florida Statutes Consumer Collection Act Section 559.
Florida Statutes and the Original Creditor-- Florida Statutes Section 559 governs not only debt collectors as does the FDCPA, but also governs the original creditor. This would be the landlord or the property manager. This article will examine only one specific section of the Florida Consumer Collection Law and how it applies to the owner or property manager.
Security Deposit Disputes-- After a tenant vacates the premises, the landlord is required to send the tenant the Notice of Intention to Impose Claim on Security Deposit according to Florida Statutes 83.49. The receipt of this required notice by the former tenant is the single largest cause of disputes. Many tenants simply disagree with the amount that the landlord has claimed from the security deposit and make it clear to the landlord or property manager in the form of a letter. This letter is a “dispute” by the tenant.
Common Practice-- Upon the landlord’s receipt of a dispute letter by the former tenant, the landlord may or may not respond to the tenant in writing. A typical response by the landlord is an explanation of why the landlord charged the tenant, and the letter tries to justify the amount charged. Although not required by law, and not recommended by us, sending a letter to the tenant explaining or justifying the charges is not illegal in any way. Often the landlord or property manager sends out a demand letter to the tenant specifying the charges owed and telling the tenant that if these amounts are not paid by a specific time or arrangements are not made, the debt will be sent to collections and potentially affect the tenant’s credit. This is where the problem begins.
Threatening to send a debt to collections -- Threatening to send a debt to collections is NOT illegal. Threatening to send a “disputed” debt to collections is NOT illegal. Threatening to send a “disputed” debt to collections without telling the debtor that the debt will be sent as a “disputed” debt is completely illegal under Florida law. Unfortunately this happens all the time. The landlord sends out the Notice of Intention to Impose Claim on Security Deposit, the former tenant disputes, and the collection letters go out just like that. Violations of Florida Statutes occur every day, and more and more attorneys are keenly aware of the law regarding this.
The Penalties Sending the debtor a letter stating that they will be sent to collections or that their credit may be affected WITHOUT telling the debtor that the fact that the “debt is disputed” will be disclosed to the collection agency or credit reporting agency triggers a penalty of up to $1000.00 per occurrence, and in the event an attorney has sued the landlord, the attorney will be entitled to an award of attorney’s fees and costs, which could far exceed the $1000.00. If an attorney thinks you may have done this to many debtors, the attorney may just decide to file a class action lawsuit against you, which could cost tens if not hundreds of thousands of dollars in defense, penalties and attorney’s fees of the attorney filing the lawsuit.
SAMPLE WORDING ON ANY CORRESPONDENCE
AFTER YOU GET A DISPUTE
We are in receipt of your letter disputing the debt of $(INSERT AMOUNT). Our collection agency and anyone else inquiring about your creditworthiness shall be notified of your debt as a “disputed debt”.
Practical Considerations 1. Never forget to use the word “disputed debt” when telling the debtor that the debt will be sent to collections.
2. Never threaten to affect someone’s credit report.
3. Send your collection agency a certified letter informing them that the debt is “disputed”, and keep a record of this in the file.
4. If someone inquires about the debtor’s creditworthiness or delinquency, always disclose that the debt is disputed.
5. Try to settle disputes to avoid litigation.
FLORIDA CONSUMER COLLECTION PROHIBITED PRACTICES
559.72 Prohibited practices generally.--In collecting consumer debts, no person shall: (1) Simulate in any manner a law enforcement officer or a representative of any governmental agency;
(2) Use or threaten force or violence;
(3) Tell a debtor who disputes a consumer debt that she or he or any person employing her or him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor's reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed as required by subsection (6);
(4) Communicate or threaten to communicate with a debtor's employer prior to obtaining final judgment against the debtor, unless the debtor gives her or his permission in writing to contact her or his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection, but this shall not prohibit a person from telling the debtor that her or his employer will be contacted if a final judgment is obtained;
(5) Disclose to a person other than the debtor or her or his family information affecting the debtor's reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false;
(6) Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact. If a disclosure is made prior to such reasonable dispute having been asserted and written notice is received from the debtor that any part of the debt is disputed and if such dispute is reasonable, the person who made the original disclosure shall reveal upon the request of the debtor within 30 days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the preceding 90 days;
(7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family;
(8) Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family;
(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist;
(10) Use a communication which simulates in any manner legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney at law, when it is not;
(11) Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments which only attorneys are authorized to prepare;
(12) Orally communicate with a debtor in such a manner as to give the false impression or appearance that such person is or is associated with an attorney;
(13) Advertise or threaten to advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor;
(14) Publish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts;
(15) Refuse to provide adequate identification of herself or himself or her or his employer or other entity whom she or he represents when requested to do so by a debtor from whom she or he is collecting or attempting to collect a consumer debt;
(16) Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor. An example of this would be an envelope addressed to "Deadbeat, Jane Doe" or "Deadbeat, John Doe";
(17) Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor's time zone without the prior consent of the debtor;
(18) Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the debtor's attorney fails to respond within a reasonable period of time to a communication from the person, unless the debtor's attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication; or
(19) Cause charges to be made to any debtor for communications by concealment of the true purpose of the communication, including collect telephone calls and telegram fees.
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