MOTION TO DETERMINE RENT DELAY TACTIC
Your attorney filed an eviction on a resident that clearly is two month’s delinquent. There is no disputing the amount and no problems with the premises; the resident 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 resident has filed a “Motion to Determine Rent”. On top of that, the resident 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 resident 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 resident can successfully use against a manager and its use is on the rise.
How Can a Resident Defend an Eviction?
Residents have a number of remedies available to them when defending an eviction action. Some but certainly not all include actions whereby the resident can file an Answer with the court, which is basically a statement by the resident of reasons why he or she should not have to leave the premises. The resident can file a Motion to Dismiss whereby the resident 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 resident 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?”
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 resident. This is required by law, as the resident 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 resident disputes this amount or feels that the eviction is unjust and files an “Answer” with the court. By law, the resident when filing an Answer with the court is required to place into the Court Registry the rent amount which is asked for by the manager in the Complaint. Some residents comply, other residents don’t, and often the eviction continues on to completion, regardless of the Answer that the resident filed with the court. In this case, the resident may not get his or her day in court. There is one way a resident 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 resident 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 resident may file a Motion to Determine Rent if they are alleging that the rent asked for by the manager on the 3 Day Notice or the complaint is “in error”. It is possible that the manager has overstated the rent amount, the resident paid the rent, the resident is owed something by the manager, the resident has been given multiple 3 Day Notices with conflicting amounts, the resident was to receive a concession, or the premises are so deficient that the resident 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 resident 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 resident 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.
Most Motions to Determine Rent are legally insufficient, but they often end up triggering a court hearing nonetheless. The resident 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 resident’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.
Unfortunately, some judges will set a hearing on just about any Motion to Determine Rent, regardless of whether the resident 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 resident and the manager must now appear in court, the judge will take some testimony, and then the judge will order the resident 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 manager 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 resident must place in the Court Registry.
When does the Court require the money to be posted into the Court Registry?--Sometimes the resident is required to place the money into the Court Registry by 5 PM that day, or sympathetic and often inexperienced judges will give the resident a week or more to deposit the money. Sounds outrageous? It is.
How does the resident even know about this Motion to Determine Rent? --Unfortunately many court clerks tell the resident that he can do this and go as far as to provide the resident with a fill in the blank “Motion to Determine Rent.” Attorneys may represent the resident and file such a motion, and many of the legal aid organizations provide the resident with a form Motion to Determine rent solely for the purposes of delaying the case.
Suppose the resident does not deposit the money into the Court Registry as ordered by the judge?--If the resident 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 resident 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 resident 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:
- Giving the resident a 3 Day Notice with excessive late charges.
- Giving the resident conflicting 3 Day Notices.
- Giving the resident a notice after the 3 Day Notice
- Allowing a resident to make a repair and having a dispute about a reimbursement or a concession.
- Giving a resident 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.
- Carrying over a balance for a long time and then putting this balance on the 3 Day Notice
- Not maintaining the premises, causing the resident to feel they are entitled to a rent abatement
- Making oral payment arrangements with the resident.
Unfortunately, we cannot prevent a resident 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 resident is to place in the Court Registry is the amount on the 3 Day Notice and any amount that may have accrued. If the resident is claiming that the property value is diminished due to a deficiency with the premises, it is our firm position that the resident should place all the money into the Court Registry and these matters can be sorted out at trial. This separates the scam resident from the legitimate resident and is the whole reason why Florida law requires that the rent money be deposited into the Court Registry in order for a resident 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 manager for possession of a dwelling unit, if the resident interposes any defense other than payment, the resident 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 resident of such requirement in the summons. Failure of the resident 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 resident's defenses other than payment, and the manager is entitled to an immediate default judgment for removal of the resident 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 residents or residents receiving rent subsidies shall be required to deposit only that portion of the full rent for which the resident is responsible pursuant to federal, state, or local program in which they are participating.
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW