15Aug 2019

An old friend of yours recently lost their home and needs a place to stay. Feeling sympathetic, you generously invite them to stay with you at home or property rent free or with a small/de minimis contribution towards monthly expenses.  Everything goes smoothly for a couple weeks or months, but you eventually realize they’ve become a problem guest or simply worn out their welcome.  For example, they’ve begun leaving the house a mess, running up your utility bills, arguing with you, and disturbing your neighbors. Alternatively, maybe you’re no longer significant others/lovers, and having your ex-boyfriend or ex-girlfriend live with you is awkward.   You’ve asked them to leave, and they’ve made little or no effort to find their own place.  Finally, you demand that they leave, but they refuse.   What now?

Although this scenario may sound unusual, it is more common than you think and does not only involve guests or friends. Seniors sometimes find themselves in these situations when they invite or allow an adult child who has fallen on hard times into their home or property.

Typically, the police are unwilling to intervene once a guest has been living at your home or property for an extended period and established signs of residency–such as having all his possessions in the home or having his mail delivered to your address. The police will advise you it’s a “civil matter” and you’re going to have to file a civil lawsuit. 

What kind of lawsuit do you file? 

If your guest has been staying at your home or property and there is no lease/rental agreement, and have not been paying rent or only paying a small/de minimis amount, then an Eviction Action is not the proper form of lawsuit. Evictions are to remove tenants, and a guest is not a tenant as long as they have not paid rent or any other regular amounts for the right to stay in your home.

Assuming your guest has been staying for free, some people may advise you that an ejectment is the proper lawsuit. However, ejectment is ordinarily used to resolve disputes over title to property, and clearly, your guest has no claim of title. Not to mention, ejectments can take months to resolve. There is a better and quicker way to address your problem.

Florida Statute Chapter 82, provides for an action called, “unlawful detainer.” [See link attached for pdf copy of 2019 version of Florida Statute Chapter 82]  A person is unlawfully detaining property if they were invited in by a legal possessor but refused to leave once the invitation was withdrawn. Although unlawful detainer is not the same as eviction, it is governed by the same special rules of procedure and moves through the courts quickly on an expedited basis.

To win the unlawful detainer, you will have to prove the following:

  • that you had the legal right to occupy the property;
  • that you invited the guest in;
  • that you later asked the guest to leave; and
  • that the guest refused to do so.

It is important to remember that if a guest has regularly made payments to you–such as rent or sharing the electric bill–they may be able to legally establish a tenancy and defeat your unlawful detainer, forcing you to re-file your lawsuit as an eviction.

01Mar 2019

What do I do if my tenant is not paying rent? Post a three (3) day notice!

Presuming that tenant is under a traditional lease and pays rent on a monthly basis, the first thing to do is post a three (3) day notice!  This is how to official inform the tenant that they must pay rent, or you’re going to take legal action to evict them.  Florida law states that right to notice, cannot be waived in the lease, and this three (3) day notice period, also known legally as a “right to cure” period needs to be handled properly, or it can cause you a world of problems down the road if you wind up needing to file an eviction action.     

One of the specific and most important elements of a proper and effective three (3) day notice, is making sure that it contains very specific statutory required language.   If you’d like assistance preparing a three day notice, that contains the required language, simply contact this office and we’d be happy to help. If you decide to do it your self, make sure to be careful, there is a mine field of potential pitfalls that can cause problems down the road.  

A common pitfall is failing to properly calculate the correct three (3) day notice time period.  Make sure to give the tenant three (3) full business days to pay/cure their default, and the date that the notice is posted does not count.  Business days means that holidays and weekends do not count in the calculation either.  If you have specific questions, please feel free to call and we’d be happy to walk you through the eviction process.       

The information above is for general information purposes only, and shall not be construed to create an attorney client relationship.  It is highly recommended that you retain an attorney to assist with your specific situation, so that they can tailor a strategy to properly deal with your specific case. 

27Jun 2016

The US Supreme Court ruled 5-3 that a Texas law regulating abortion is unconstitutional as it places substantial obstacle which the court deemed an “undue burden” on a women’s right to seek an abortion. There were two provisions of the Texas law that were challenged and ruled unconstitutional.

The first provision labeled by the court as the “admitting-privileges requirement” provided that, “a physician performing or inducing an abortion … must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that … is located not further than 30 miles from the location at which the abortion is performed or induced.”

The second provision, which the court deemed the “surgical-center requirement” required that “the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.”

The court concluded that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Planned Parenthood of Southeastern Pa. V. Casey, 505 U.S. 833, 878, and each violates the Federal Constitution Amdt. 14 § 1., which held that “a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” In Casey, the court went on to hold that, “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right” id., at 878.

24May 2016

A very big case recently came out of the Florida Supreme Court in the workers comp area of law. The case ruled that the statutory limits that were placed on the amount of attorney’s fees that could be awarded in Worker’s Comp cases is unconstitutional, because it violates the due process protections provided by both the Florida & U.S. Constitutions. The Florida Legislature attempted to link the award of attorney’s fees to the amount benefit that was obtained by the attorney representing the claimant. Here is a brief summary of the case.

The claimant, Marvin Castellanos, was injured during the course of his employment with New Door Company. Through the assistance of an attorney, Castellanos prevailed in his workers’ compensation claim, after the attorney successfully refuted numerous defenses raised by the employer and its insurance carrier. However, because of Fla. Statute § 440.34 limits a claimant’s ability to recover attorney’s fees to a sliding scale based on the amount of workers’ compensation benefits obtained, the fee awarded to Castellanos’ attorney amounted to only $.53 per hour for 107.2 hours worth of work determined by the Judge of Compensation Claims (JCC) to be “reasonable and necessary” in litigating this complex case.

This statutory frame work would make it financial unfeasible for an attorney to assist a claimant in securing workers compensation benefits. Consequently, the court held that Fla. Statute § 440.34 is unconstitutional under both the Florida and United States Constitutions as a violation of due process protections. See art. I, § 9, Fla. Const.; U.S. Const. amend. XIV, § 1.

The justification for this holding lies in the fact that the courts have found that the right of a claimant to obtain a reasonable attorney’s fee when successful in securing benefits has been considered a critical feature of the workers’ compensation law since 1941. See Murray v. Mariner Health, 994 So. 2d 1051, 1057-58 (Fla. 2008). From its outset, the workers’ compensation law was designed to assure, as the current legislative statement of purpose provides, “the quick and efficient delivery of disability and medical benefits to an injured worker.” § 440.015, Fla. Stat. (2009).

Yet, while the Legislature has continued to enunciate this purpose, in reality, the workers’ compensation system has become increasingly complex to the detriment of the claimant, who depends on the assistance of a competent attorney to navigate the thicket.* (See Footnote below) Indeed, as this Court long ago observed, allowing a claimant to “engage competent legal assistance” actually “discourages the carrier from unnecessarily resisting claims” and encourages attorneys to undertake representation in non-frivolous claims, “realizing that a reasonable fee will be paid for [their] labor.” Ohio Cas. Grp. v. Parrish, 350 So. 2d 466, 470 (Fla. 1977).
The purpose of providing for a statutory mandated “reasonable attorney’s fee” award in Workers Compensation cases, was because often times the claimants were denied benefits and need the assistance of counsel to assist them with securing coverage for their injury.

Thus, in the case of Ohio Casualty Group, 350 So. 2d at 470 the Florida Supreme Court previously held that the award of “reasonable attorney’s fees” was “enacted to enable an injured employee who has not received an equitable compensation award to engage competent legal assistance and, in addition, to penalize a recalcitrant employer. If the services of an attorney become necessary, and the carrier is ordered to pay compensation, attorney’s fees must be assessed against the carrier so that the benefits awarded the employee will constitute a net recovery. Thus, in adding attorney’s fees to the injured worker’s compensation award, [the provision] discourages the carrier from unnecessarily resisting claims in an attempt to force a settlement upon an injured worker. In addition, if the worker has a meritorious case, an attorney will be inclined to represent him, realizing that a reasonable fee will be paid for his labor and not deducted from perhaps a modest benefit due the claimant. Conversely, if the attorney believes the claim is frivolous, he would be inclined to decline representation.”

* To name just a few of the ways in which the workers’ compensation system has become increasingly complex and difficult, if not impossible, for an injured worker to successfully navigate without the assistance of an attorney: (1) the elimination of the provision that the workers’ compensation law be liberally construed in favor of the injured worker, § 440.015, Fla. Stat.; (2) reductions in the duration of temporary benefits, § 440.15(2)(a), Fla. Stat.; (3) an extensive fraud and penalty provision, § 440.105, Fla. Stat.; (4) a heightened standard of “major contributing cause” that applies in a majority of cases rather than the less stringent “proximate cause” standard in civil cases, § 440.09(1), Fla. Stat.; (5) a heightened burden of proof of “clear and convincing evidence” in some types of cases, §§ 440.02(1), 440.09(1), Fla. Stat.; (6) the elimination of the “opt out” provision, §§ 440.015, 440.03, Fla. Stat.; and (7) the addition of an offer of settlement provision that allows only the employer, and not the claimant, to make an offer to settle, § 440.34(2), Fla. Stat.

23Jun 2015

Has your Homeowner’s Association taken away your access to the community gate? A new trend among some community associations is to take away or deactivate members gate access clicker or card if they fall behind on their regular assessments/dues. This appears to be a violation of Florida law. Specifically, Florida Statute 720.305(3) clearly addresses the issue with respect to Homeowner’s Associations, stating in relevant part,

(3) If a member is more than 90 days delinquent in paying a monetary obligation due to the association, the association may suspend the rights of the member, or the member’s tenant, guest, or invitee, to use common areas and facilities until the monetary obligation is paid in full. This subsection does not apply to that portion of common areas used to provide access or utility services to the parcel. Suspension does not impair the right of an owner or tenant of a parcel to have vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park. The notice and hearing requirements under subsection (2) do not apply to a suspension imposed under this subsection.

Thus, there does not appear to be any wiggle room/ambiguity in the law. If the Association encumbers or impairs access they are in violation of the law. If you are confronted with this situation, please contact the law office of David C. Levine, P.A., so that we can discuss the specifics of your situation and see how we may be able to help you with resolving this problem.

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