Siblings Battle Over Fate of Home Eviction

Posted on by djht

An Attempted Home Eviction Became Deadly

“According to Clearwater Fire Rescue, firefighters responded to a home at 1506 Meadow Dale Drive just after 3:30 a.m.

When firefighters arrived, the roof of the home was engulfed in flames. The roof later collapsed. 

On the same day the house burned down, its’ current resident, Shannon Gillespie, 45, was in court for an emergency hearing to get her out. Shannon is the daughter that Daniel Gillespie tried to evict from the house shortly before his death.

Shannon’s siblings previously received a court order to sell the house. The closing was, in fact, scheduled for Friday.

During today’s hearing, Daniel Kortenhaus, an attorney for Shannon’s siblings, said they believe Shannon started the fire.

“The house at 1506 Meadow Dale Drive was burned to the ground last night and speculation on our side, of course, is that the defendant may or was probably culpable,” said Kortenhaus.

Today’s hearing marked the latest episode in a 16-month court battle over the house between Shannon and her relatives. The four Gillespie children inherited the home following their father’s death.”

Source:  Bay News 9
Read Full Article:  https://www.baynews9.com/fl/tampa/news/2020/01/29/flames-sweep-through-clearwater-home-overnight

End Goal of a Residential Eviction Lawsuit

Posted on by djht
What is the end goal of a residential eviction lawsuit?
 
The end goal of a residential eviction lawsuit is not to put the tenant onto the street.
 
The goal of the eviction is to change the tenant’s mind about where the tenant is going to live.
 
Many times I hear from angry landlords that want to toss the tenant into the street and destroy the tenant’s credit so the tenant can’t do this same thing to some other landlord.
 
I always correct them.  The goal of a residential eviction is not to put the tenant out on the street.
 
The goal is to change the tenant’s mind about where the tenant is going to live.
 
The THREE DAY NOTICE makes the tenant think that the tenant might have to move.
 
The EVICTION COMPLAINT and EVICTION SUMMONS make the tenant think about finding another place to live.
 
Once the tenant has changed his/her mind about where he/she wants to live, the eviction lawsuit is about 95% over.  It is a psychological victory.
 
Oftentimes the tenant will then voluntarily vacate the property before the FINAL JUDGMENT FOR POSSESSION is signed by the judge.
 
That is a win for the landlord and sometimes eliminates the need for posting of the WRIT OF POSSESSION by the sheriff.

Why Three Day Notice to Tenant?

Posted on by djht
Why a three day notice when tenants do not pay?

“The tenants have not paid in two months, why does the landlord now need to give the tenants a THREE DAY NOTICE?”

This is a complaint that I regularly hear from landlords that have bent over backward to work with tenants that have financial problems.

 

There are two reasons:

First, the court system wants to give tenants every chance that it can.  It does not matter it the tenant is a year behind in the payment of the rent.   If a residential landlord wants to terminate a tenancy for non-payment, the court will still require the landlord to provide a pre-suit notice, known as a THREE DAY NOTICE.

Second, the law requires it.  Florida Statute 83.56 says that before filing a suit for possession based on non-payment of rent, the landlord must first deliver a THREE DAY NOTICE to the tenant, also known as a pre-suit notice.  The law says that the landlord must always give the tenant the opportunity fix the problem that tenant has created, before the landlord files a suit for possession under Florida’s Landlord-Tenant Act.

The lesson here is to not allow your tenants to get two months behind in the payment of rent.

 

Let Pinellas County Eviction Lawyer, Daniel Kortenhaus help you with collecting unpaid rent as a Residential or Commercial Landlord – contact today!

Commercial Landlord Collecting Unpaid Rent

Posted on by djht
Commercial Landlord Unpaid Rent
Collect Unpaid Rent for Commercial Landlords

Are you a Commercial Landlord that is having trouble collecting the rent? 

Do you have a Commercial Tenant that won’t pay the rent?

 

The law is on your side.  Here is why:

 

  1. Under Florida Statute 83.232(5), a Commercial Tenant is required to deposit rent into the court registry as the rent accrues.  “The tenant is required, even without court order, to make payments into the court registry when due.  Where the court enters an order requiring payment, those payments are also to be made as they accrue… ”  Poal WK Taft, LLC v. Johnson Medical Center Corp., 45 So.3d 37, 39 (Fla. 4DCA 2010).

  2. When a Commercial Tenant fails to deposit the rent into the court registry, a Florida Commercial Landlord can ask the court to issue a judgment for possession without giving the tenant a court hearing.   “Where the tenant has not paid the rent into the registry of the court in accordance with court order and statute, the landlord is entitled to a writ of possession without further hearing.  Poal WK Taft, LLC v. Johnson Medical Center Corp., 45 So.3d 37, 39 (Fla 4DCA 2010).

  3. The trial court does not have the discretion to extend the date of the required rent deposit. “The trial court exercises no discretion, and the landlord is entitled to the issuance of a writ of possession as a matter of right.”  Poal WK Taft, LLC v. Johnson Medical Center Corp., 45 So.3d 37, 39 (Fla. 4DCA 2010).  See also, 214 Main Street Corp. v. Tanksley, 947 So.2d 490 (Fla. 2DCA 2007); Stetson Management, Inc. v. Fiddler’s Elbow, Inc., 18 So.3d 317 (Fla. 2DCA 2009);  and Kosoy Kendall Associates, LLC v. Los Latinos Restaurant, Inc.,  10 So.3d 1168 (Fla. 3 DCA 2009).

  4. The issuance of the judgment for possession in favor of the Commercial Landlord is mandatory.  Not only does the trial court have no discretion, the trial court may not even consider the Commercial Tenant’s reason for the late payment.  “…trial courts have no discretion in entering an immediate default for possession under these circumstances.  The trial court may not consider the reasons why the deposit was not timely made.”  DTRS Intercontinental Miami, LLC v. A.K. Gift Shop, Inc., 77 So.3d 785,787 (Fla. 3DCA 2012).

  5. The issuance of the judgment for possession in favor of the Commercial Landlord is a ministerial duty which can be compelled.  In Palm Beach Marketplace, LLC v. Ayeda’s Mexican Restaurant, Inc., 103 So.3d 911 (Fla. 4DCA 2012), the Commercial Landlord petitioned to compel the trial court to enter a default and issue a writ of possession after the Commercial Tenant failed to comply with the requirements of Florida Statute 83.232(5).  The Fourth District Court of Appeal granted the petition to compel and said:  “As the landlord demonstrates, the trial court has a ministerial duty to provide the remedies set forth in the statute.”

If you are a Commercial Landlord and your Commercial Tenant won’t pay the rent, the law is on your side.  Using Florida Statute 83.232(5), I can help you put the tenant out.

Let Pinellas County Eviction Lawyer, Daniel Kortenhaus help you with collecting unpaid rent as a Commercial Landlord – contact today!

Does your tenant have a lease agreement?

Posted on by djht

lease agreementIn many phone conferences with landlords, I have been told “there is no lease”  meaning there is no signed agreement.  Sometimes landlords think that the fact that there is no signed agreement will benefit them in some way or make the eviction move more quickly.  That is not the case.  Believe it or not, Florida’s landlord-tenant act does not contain the word “Lease”.  Instead, it contains the phrase “Rental Agreement”. 

A Rental Agreement means any written agreement, including amendments or addenda, or oral agreement for a duration of less than 1 year, providing for use and occupancy of premises.

Florida’s landlord-tenant act treats written rental agreements (Written Leases) and oral rental agreements (Oral Leases) the same.  There is no advantage to having an oral lease as opposed to a written lease when filing an eviction against a tenant.  And when a landlord tells me that “there is no lease”,  chances are that there actually is — an oral lease.

Let Pinellas County Eviction Lawyer, Daniel Kortenhaus help you with your Rental Agreement (Written Lease) – contact today!

What to do with tenant’s abandoned property?

Posted on by djht

Pinellas County Eviction Lawyer - Tenant AbandonmentNo, the landlord does not get to keep the tenant’s personal items. At the end of an eviction case, when the sheriff delivers the completed writ of possession to the landlord, the tenant’s personal items should be carried out to the sidewalk and photographed.

The landlord should not keep any of the tenant’s personal items, no matter how far behind the tenant was in the payment of rent. No landlord wants to be falsely accused of stealing a tenants personal items, and believe it or not, it does happen. This is where a Pinellas County Eviction Lawyer can help.

To protect itself, a residential landlord should have the following language inserted into its lease forms:

BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY.

Need help? Let Pinellas County Eviction Lawyer Daniel Kortenhaus assist you. Contact today

Compulsory counterclaim rule bars retaliation lawsuit against landlord

Posted on by djht

I say hit them hard and hit them fast.   When headed into a lawsuit with tenant, you need to hit them hard and hit them fast.  Case in point.

In October of 2017, I filed an eviction lawsuit based for non-payment of rent for a property in Pinellas Park, Florida.  The story was this:  Back in 2015, two women that lived in the same neighborhood were friends.  Friend number one had financial problems and was in foreclosure.  Friend  number two was being transferred out of state by her job.  You guessed it, friend number one (the lady with financial problems) convinced friend number two to let her rent friend number two’s house.

Two years later, friend number two loses her job and wants to move back into her own house.  Unbelievably, friend number one refuses to move out and claims that she is buying the house.  Friend number two came to me in tears.  No job and no place to live.  I filed a quick eviction in the County Court.  Thankfully friend number one (the crazy tenant) filed an answer containing a rambling bunch of nonsense and the eviction lawsuit was quickly decided in favor of my client.

After the eviction, the crazy tenant convinced another lawyer to sue friend number two in the Circuit Court claiming that she was actually buying the house, not renting, and that she wanted the money refunded if friend number two wasn’t going to sell her the house.  No kidding.

The crazy tenant that lost her own house in foreclosure filed a lawsuit saying that my client had breached an agreement to sell her another house.  Because the crazy tenant’s claim for refund was not alleged as an issue in the original County Court eviction case, I raised the compulsory counterclaim rule as a defense and got the Circuit Court to dismiss the frivolous lawsuit at the first hearing.  It was a slam dunk.

The other lawyer walked out of the courthouse with her head spinning.   Also, when my client got back into her own house, it was an absolute mess.  It looked like the crazy tenant had not cleaned the house in two years.  It was filthy.

The lesson here is simple.  Never rent to friends.  When headed into a lawsuit with a tenant, hit them hard, hit them fast, and hire a lawyer that knows what he is doing.