VOLUME 2 - ISSUE 12 LEGAL UPDATE
- The Motion to Stay the Writ of Possession – a Tenant Delay Tactic
- Billing for Water Now or In The Future
- Prohibited Practices and the Residential Landlord
THE MOTION TO STAY THE WRIT OF POSSESSION
A TENANT DELAY TACTIC
by Harry Anthony Heist, Attorney at Law
A Motion to Stay a Writ of Possession is a document that a tenant files with the court which has the result of “staying” or “stopping” an eviction action after a final judgment for the landlord has already been entered. The Motion to Stay a Writ of Possession is one of the less commonly used legal techniques by tenants to stall or stop an eviction action, but it does occur enough to warrant a better understanding of the process by a landlord. It is probably the least understood and more baffling Motions, so we will start with a brief overview of the eviction process and see where the Motion fits in.
The Eviction Process in a Nutshell
For the purposes of this article, we will explain the eviction process in its most simplest of forms and use the Uncontested Residential Eviction Action as our example. In an uncontested eviction, the tenant is served with the eviction summons and complaint either by the sheriff or a process server. The tenant has 5 business days after being served to “fight” the case by filing an answer with the court. In an uncontested case, the tenant does not file anything with the court, and the clerk of court enters a “default” against the tenant. The file then goes to the judge who after a cursory review of the file will sign the “Final Judgment”. The Final Judgment states that the eviction is granted in favor of the landlord, and the Final Judgment orders the clerk of court to “issue” a Writ of Possession, which is a document commanding the sheriff of the county to place the landlord in possession of the premises. NOTE: For an in-depth article on the Writ of Possession click here. The sheriff then takes the Writ of Possession, serves it on the person or the door of the premises if the tenant is not home and on the Writ of Possession it states the date and time that the sheriff will be back on the premises to remove the tenant, this usually being 24 to 48 hours from the time the Writ of Possession is served. The removal of the tenant is called the execution of the Writ of Possession. Theoretically, and in most cases, the sheriff comes back on the stated date and time, and the tenant is removed from the premises. The catch is that the tenant is able to file a motion with the court to derail this entire process at any time after the Final Judgment is signed by the judge and before the sheriff actually physically removes the tenant from the premises. This Motion is called a Motion to Stay the Writ of Possession
What is a Motion to Stay the Writ of Possession?
Simply put, the Motion to Stay the Writ of Possession is a document filed with the court asking the judge to “stay” or “stop” the sheriff from executing the Writ of Possession and removing the tenant. It can be a typed or handwritten document filed by the tenant or the tenant’s attorney if one is retained. The Motion to Stay the Writ of Possession may state that the tenant paid the rent, the eviction was unfair, the tenant needs more time, the case is defective or just about anything on earth that the tenant can come up with to convince a judge that the eviction should be stopped or make the judge feel sorry for the tenant. If the judge is swayed, the tenant gets their day in court.
How does the Motion to Stay the Writ of Possession affect the process?
Once this Motion is filed with the court, it is immediately sent to the judge, an emergency hold is put on the case, and the judge reviews the Motion and the reasons why the tenant feels they are entitled to having the Writ of Possession stayed. A Motion to Stay a Writ of Possession is taken very seriously by the court system, and the judge will almost immediately review the Motion. If the judge upon reading the Motion feels that there is some real legal basis why the eviction should be “stayed”, the judge will grant the Motion without a hearing and set it for a later hearing, or will set an EMERGENCY hearing to have the landlord and the tenant present evidence as to whether or why the Writ of Possession should or should not be stayed. If the judge upon reading the Motion to Stay the Writ of Possession feels it is completely without merit, the judge will enter an Order denying the motion, and the eviction continues on.
The judge Grants the Motion to Stay the Writ of Possession – Now what?
If the judge grants the Motion to Stay the Writ of Possession, the judge enters an Order Staying the Writ of Possession and will set a hearing, which basically gives the tenant a chance to present evidence as if the case were contested and a hearing were set in the beginning stages of the case. If the tenant has failed to post the rent money into the court registry, it is doubtful that the tenant will prevail, but if the tenant can prove that possibly they paid the rent and it was mis-posted by the landlord, or placed a large sum of money into the court registry, even if late, there always is a chance that the tenant can win the action. Your attorney may file a Motion to Lift the Stay of Writ of Possession if the judge grants the tenants Motion to Stay the Writ of Possession.
The judge Denies the Motion to Stay the Writ of Possession – Now what?
If the judge denies the Motion to Stay the Writ of Possession, the case proceeds on without delay just as if nothing happened. If there is a hearing set, and at that hearing the landlord prevails, the judicial assistant or judge will notify the sheriff’s department to execute the Writ of Possession. If your attorney has filed a Motion to Lift the Stay of the Writ of Possession, and the case is heard and decided in the landlord’s favor again, the judicial assistant or judge will notify the sheriff’s department to execute the Writ of Possession.
Sounds confusing doesn’t it? Is it all that bad?
The Motion to Stay the Writ of Possession is a bit confusing, as the landlord thinks they have won the case completely, only to be thrown this curveball at the end of the process. Will the case be delayed? Often, but usually by only a few days if the judge grants a hearing to the tenant. In the vast majority of cases when the tenant files a Motion to Stay the Writ of Possession, the judge reads it and denies it right then and there, and not a moment is lost and no hearing occurs. The worst case scenario is that the judge will grant the Motion to Stay the Writ of Possession, a hearing will be set, and the judge will feel your case is defective or there is a good legal basis why the tenant should not be evicted. Remember what Yogi Berra said: “It's not over until it's over”.
Is there anything that can be done to prevent the tenant from filing a Motion to Stay a Writ of Possession?
Absolutely nothing. A landlord’s best defense though is to make sure the eviction is filed properly, the notice was done with care, the landlord did not take any rent during the eviction action, and the landlord’s records are clear and concise.
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BILLING FOR WATER NOW OR IN THE FUTURE
by Harry Anthony Heist, Attorney at Law
Traditionally in apartment communities, water is paid for by the property owner and included in the tenant’s rental amount. Most apartment communities do not have separate water meters for each unit. Due to the increasing cost of water and technological advances in water flow measuring and resulting lower costs of retrofitting, many apartment communities are hiring companies to sub-meter their units and handle the billing aspects. This cost shifting results in tremendous savings to the owners of the apartment communities, and most likely also results in water conservation overall. The task of sub-metering is not difficult in most buildings but the legalities of getting the tenant to now pay for the water that was once included in their rent presents some challenges.
The Current Tenant Problem
Most leases simply state that water is included in the rent or it is the owner’s responsibility to pay water. In cases like this, if an apartment community decides to sub-meter, there is no way possible to make the current tenant under the current lease pay for the water. If it was not in the contract, they are under no legal obligation to pay for water. The only option the landlord has is to non-renew the tenant’s lease at the end of the term and offer a new lease with the proper wording in the lease stating that the water is the tenant’s responsibility.
A common lease clause that partially solves the problem
A common provision found in many Florida leases states the following :
Insufficient Lease Clause
…Unless separately metered, we supply the water and sewer for normal usage. If separately metered, you must pay the water and sewer as additional rent when rent is due. If you do not have separately metered water, we may add separate metering…
As you can see from this clause, it would appear that in the event the unit was sub- metered after the tenant moved in, you would be able to now make the tenant pay for the water as additional rent when rent is due. Unfortunately the clause is not very clear, does not cover all scenarios and we know that ambiguity is construed in favor of the tenant.
Suppose you are going to institute a RUBS program?
Ratio Utility Billing Systems (RUBS) is a system whereby the landlord charges water use by a ratio like the square feet of the unit, bedrooms and/or the number of tenants in a unit. This system avoids the retrofitting necessary to sub-meter an apartment building, but has its own problems as well. Many tenants feel this system is unfair, as it could be inaccurate, as some tenants will invariably overpay for usage, while other tenants will underpay as these systems assume constant and equal water usage. Can an apartment community use the sample clause above if they decide to implement a RUBS program? The answer would be no, as that clause only addresses sub-metering. Therefore, if the lease does not address the possible future implementation of a RUBS program, there is no way you can impose it on a current tenant.
A Possible Lease Clause Based Solution
Even if you have no immediate plans to sub-meter an apartment community or institute a RUBS program, we feel that your lease should allow for the possibility at a later time. Water costs may increase dramatically, you may sell the apartment community, or you may just decide that RUBS or sub-metering is the way to go. Without a proper lease clause, your hands are tied.
Sample Lease Clause
Currently water and/or sewer is provided by the Landlord and Tenant agrees to use same in a reasonable manner. Tenant agrees that at some time in the future, Landlord may pass this cost on to the Tenant, and Tenant agrees to pay for water and/or sewer each month upon demand with the monthly rental payments as additional rent, as Landlord may decide to sub-meter the apartment or institute a Ratio Utility Billing System whereby Tenant agrees to pay upon demand the cost of water and/or sewer based upon a formula taking into account factors including but not limited to the unit square feet, number of bedrooms and/or the number of tenants. Tenant shall be given 30 days prior written notice by Landlord if Tenant becomes responsible for paying for water and/or sewer.
The Importance of Disclosure
While a clause potentially making a tenant responsible for water at a future time is legal, when the time comes to implement the clause and begin billing the tenant, sparks will fly. There will be cries of unfairness, surprise and alleged verbal promises. If you intend to use such a clause, we recommend that it is clearly pointed out to the tenant or possibly placed in a separate document as an addendum. A water/sewer bill could substantially increase the rental amount, and we recommend that before you sub-meter or implement a RUBS program you check with your attorney on the plan of action and legalities.
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PROHIBITED PRACTICES AND THE
by Harry Anthony Heist, Attorney at Law
If you were to ask a typical landlord if they would ever engage in a prohibited practice, you would most likely get a resounding “of course not”. Most landlords realize that self- help evictions are no longer allowed, and doing drastic things like taking off the tenant’s door will certainly result in a lawsuit these days. Florida Statutes Section 83.67 clearly lists out the prohibited practices and imposes a penalty of 3 months’ rent to the tenant, plus the landlord will have to pay the tenant’s attorney’s fees in the event an attorney is involved with the case. Many attorneys will readily take a prohibited practices case if it is clear that the landlord is in violation, and the various legal aid organizations have a list of attorneys in private practice who will take these on a referral basis. Surprisingly, many landlords commit prohibited practices intentionally and unintentionally to this day, and are often found in court having to pay significant sums of money to the tenant. It is not relevant that the tenant may not have paid rent for months or is the world’s worst tenant. The case will completely hinge on whether or not the landlord committed a prohibited practice. This article will examine Florida Statutes 83.67 and focus on some common prohibited practices that even the most seasoned professional landlord commits without even realizing it.
Interruption of Services
A common problem that arises is when the tenant is supposed to put the electricity in their own name and either does not do so, or the electric service reverts back into the owner’s name if the tenant has service and then fails to pay for such service. The latter situation is extremely common in apartment communities where the arrangement with the electric company is to have the electric service on in the apartment community’s name unless it is in the tenant’s name. Commonly, the landlord discovers that the electric service is in his or her name, and rightly upset, decides to call the electric company, tell the electric company that is was supposed to be in the tenant’s name and then tells the electric company to shut off the electric. In single family home rentals, the tenant’s failure to put the electric in their own name is usually discovered when the out of state owner receives a huge electric bill and calls the property manager. The actual landlord or the property manager thinks it is then permissible to call the electric company and tell them to shut it off. In the apartment setting, the on-site property manager usually discovers this when the bill comes in. In both cases, it is a prohibited practice to directly or indirectly shut off the electric. Directly would mean that you called the electric company and told them to take it out of your name; indirectly would be to fail to pay for the service if the landlord received a shut off warning. Our office receives calls concerning this issue on a regular basis, and many of our clients either ask if they can have the electricity shut off or have already done so. As you can see, this prohibited practice is alive and well!! Electricity is not the only utility covered under “service”. The statute also includes water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration and although not mentioned, the court may interpret cable, satellite or phone as a service. The key to avoiding the problem is to make sure that the services are not on when the tenant moves into the unit and avoid any situation where the services revert to the landlord in the event the tenant fails to pay.
LAW FS 83.67(1) No landlord of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord.
Lockout of the Tenant
Locking out a tenant as a means of self-help eviction was legal a very long time ago. It is legal no more, and most landlords would never do such a thing, so you may think. Suppose you are trying to get the tenant to come to the office to see you. You change the locks and put a note on the door asking the tenant to come to the office. The tenant comes home at 7 pm, the office is closed, and he is locked out. Prohibited practice? You bet. You can never change the locks on a tenant’s door to “get the tenant’s attention” or for any reason, unless the tenant requests that the locks are changed. Now what about a situation where one tenant asks you to change the locks? You oblige, and a week later the other tenant on the lease comes to you and says he or she can’t get in, as her co tenant/roommate changed the locks. Are you required to let this person in? If they are on the lease, you are, and your failure to let them in could result in a prohibited practices charge against you. We recommend that in any case where a tenant wants a lock changed, all the tenants put this in writing on one request form.
LAW FS 83.67(2)A landlord of any dwelling unit governed by this part shall prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks or using any bootlock or similar device
Armed Forces Discrimination
Is it risky to rent to someone in the United Stated Armed Forces? Absolutely. The laws protecting service members have been broadened not only to allow them to break their lease if they go on active duty, but to allow an active duty service member to break a lease to move onto base housing which could be right down the street. The recent law changes have made many landlords hesitant to rent to service members, and some landlords have decided to try to avoid renting to service members at all costs. A few years ago, this was not considered a prohibited practice, but now it is.
LAW FS 83.67(3) No landlord of any dwelling unit governed by this part may not discriminate against a member of the United States Armed Forces in offering a dwelling unit for rent or in any of the term of the rental agreement.
Display of Flags
Most leases have clauses which prohibit hanging any items from the premises. Often landlords have to deal with situations where a tenant hangs clothing, banners or flags from their balcony. These could be anything from a sports related flag or banner to a large flag from the tenant’s country of origin. A few years ago, the law was specifically changed to make to a prohibited practice to prohibit a tenant from displaying a United States flag on the premises in accordance with the law. There is no exception in the law for landlords of single family homes or condo in condo associations or homeowner's associations. For an in-depth article on the Flag Law click here.
LAW FS 83.67(4)A landlord may not prohibit a tenant from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and one-half feet by 6 feet, in a respectful manner in or on the dwelling unit, regardless of any provision in the rental agreement dealing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The landlord is not liable for damages caused by a United States flag displayed by a tenant. Any United States flag may not infringe upon the space rented by any other tenant.
Abandoned Property and Removal of Items
Removal of Items: As we mentioned previously, most landlords are keenly aware that you cannot remove a tenant’s door in a self-help eviction situation. This prohibition also extends to locks, roof, walls and windows. The only exception to this would be for a landlord to remove such items for the purposes of maintenance or repair. Some unscrupulous landlords remove such items under the guise of making a repair on the item and delay the repair so as to influence the tenant to vacate.
Abandoned Property: Abandoned property removal is one of the most common prohibited practices committed by even the best landlords. The usual cases involve those where the landlord thinks the items are abandoned, when in actuality they are not, and the landlord then disposes of the property, only for the tenant to come back and demand the property. The landlord can be charged with a prohibited practice, conversion, civil theft and even criminally. It is crucial that the landlord knows what abandoned property is and has the proper wording clearly in the lease. The lease wording is as follows:
BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY
Even with the proper lease wording, the unit must be “abandoned” before the landlord can dispose of the “abandoned property”. Legal abandonment has nothing to do with what our common sense may tell us. Abandonment is defined in the law, and if all the elements of abandonment are not present, the items left behind are not abandoned property. Click here for a full article on Abandonment .
Self-Help and Personal Property
The tenant has junk outside their door, cars parked on the front lawn, bicycle chained to the railing, chairs in the breezeway and a lanai full of everything, including the prohibited gas grill. Code enforcement is citing the property each day. Can the landlord clean up the place and throw out any of these items? They should be able to, but unfortunately the law would most likely consider this a prohibited practice, subjecting the landlord to the 3 month rent penalty, attorney’s fees, conversion charges, civil theft charges and possible criminal charges. The landlord’s only recourse is to serve the tenant with a proper 7 Day Notice of Non Compliance with Opportunity to Cure and treat this like any other lease and/or law noncompliance.
LAW FS 83.67(5) A landlord of any dwelling unit governed by this part may not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, repair, or replacement; and the landlord may not remove the tenant's personal property from the dwelling unit unless the action is taken after surrender, abandonment, or a lawful eviction. If provided in the rental agreement or a written agreement separate from the rental agreement, upon surrender or abandonment by the tenant, the landlord is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the tenant's personal property; if provided in the rental agreement there must be printed or clearly stamped on such rental agreement a legend in substantially the following form: BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).
What are the Penalties for Committing a Prohibited Practice?
The easy answer as mentioned before is 3 months’ rent plus attorney’s fee and court costs in the event the tenant decided to hire an attorney. Unfortunately the penalty could be much higher, and potentially one prohibited practice could contain multiple violations and increase the penalty. We dealt with a case where a landlord had shut off the electricity, which in turn shut off the well pump and the result was a 6 month rent penalty plus attorney’s fees. We have seen numerous cases of self-help cleaning up of the property where the tenant’s property was thrown away resulting in thousands of dollars being paid out to the tenant. The electric shut off by the landlord when he or she realizes the tenant has not put the electric in the tenant’s name is a common occurrence. Prohibited practices are alive and well. Follow the law and exercise caution. Common sense and instinct have absolutely nothing to do with the law.
LAW FS 83.67 (6) A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months' rent, whichever is greater, and costs, including attorney's fees. Subsequent or repeated violations that are not contemporaneous with the initial violation shall be subject to separate awards of damages. (7) A violation of this section constitutes irreparable harm for the purposes of injunctive relief. (8) The remedies provided by this section are not exclusive and do not preclude the tenant from pursuing any other remedy at law or equity which the tenant may have. The remedies provided by this section shall also apply to a service member prospective tenant who has been discriminated against under subsection (3).
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