What if a judge does not follow the law in an eviction case?

[Pross001]

What is the name of your state (only U.S. law)? Florida

I'm a landlord in Palm Beach County, and I recently spoke to another landlord in my area. He told me that the new Judge, in our area, is calling hearings for evictions, even though the renters, that are being evicted, have not been paying the amounts owed at the court's escrow account, which is required by law. Furthermore, if the eviction gets all the way to the hearing stage, then the Judge cancels the hearing and forces the landlord to hire a lawyer, and then the hearing is rescheduled. Is the Judge allowed to randomly follow, or not follow the law, when they feel like it?

 

[FarmerJ]

Is this just rumor or is it factual based on court records ? if its based on court records then I would bet the best thing is to make monster sized stink, local news programs, states attorney generals offices, formal complaints to oversight boards. Appeals courts (basically sooner or later negative attention will either change how a local level judges do things or some one else will step up , run against them and point out every poor choice that a sitting judge makes during a election)

 

[Pross001]

Is this just rumor or is it factual based on court records ? if its based on court records then I would bet the best thing is to make monster sized stink, local news programs, states attorney generals offices, formal complaints to oversight boards. Appeals courts (basically sooner or later negative attention will either change how a local level judges do things or some one else will step up , run against them and point out every poor choice that a sitting judge makes during a election)

I can talk to that Landlord again on Monday to see if he can give me more details. As a private citizen, am I allow to check court records?

 

[latigo]

What is the name of your state (only U.S. law)? Florida

I'm a landlord in Palm Beach County, and I recently spoke to another landlord in my area. He told me that the new Judge, in our area, is calling hearings for evictions, even though the renters, that are being evicted, have not been paying the amounts owed at the court's escrow account, which is required by law. Furthermore, if the eviction gets all the way to the hearing stage, then the Judge cancels the hearing and forces the landlord to hire a lawyer, and then the hearing is rescheduled. Is the Judge allowed to randomly follow, or not follow the law, when they feel like it?

Since your information is second hand it seems safe to assume that you are not in possession of all the facts.

But let’s assume that a given landlord has brought an unlawful detainer action against a given tenant to regain possession.

In such cases the only time an “escrow account” would be involved is if the tenant were to raise as a defense the failure of the landlord to “maintain the premises” as required under Florida Statute 83.51 or that the landlord’s motive is “retaliatory” in accordance with F. S. 83.64.

But if having been so instructed the tenant fails within five days to pay the rent into the clerk’s escrow account -

THEN the tenant’s defenses are deemed waived and the landlord is “entitled to an immediate default judgment for removal of the tenant with a writ of possession”. (F. S. 83.60(1))

Now clearly that cannot happen automatically. There would be the need to document the court’s record of the fact of the tenant’s failure to pay the rent to the clerk.

Whether the record of non-payment is made by (1) the landlord’s affidavit, (2) the court takes judicial notice of the fact, or (3) it requires a hearing, I can’t say, but it should be an expedited process. But I can tell you that the court cannot require any civil litigant to be represented by counsel.

Also for the court to be ordering unnecessary continuances of such a simple process and one that is legislatively provided in order to hasten such cases to an early conclusion would appear to verge upon an abuse of judicial discretion.

And if the process is being consistently delayed then the issue should be taken before the Florida Judicial Counsel. All in my humble opinion, of course.

 

[Pross001]

Since your information is second hand it seems safe to assume that you are not in possession of all the facts.

But let’s assume that a given landlord has brought an unlawful detainer action against a given tenant to regain possession.

In such cases the only time an “escrow account” would be involved is if the tenant were to raise as a defense the failure of the landlord to “maintain the premises” as required under Florida Statute 83.51 or that the landlord’s motive is “retaliatory” in accordance with F. S. 83.64.

But if having been so instructed the tenant fails within five days to pay the rent into the clerk’s escrow account -

THEN the tenant’s defenses are deemed waived and the landlord is “entitled to an immediate default judgment for removal of the tenant with a writ of possession”. (F. S. 83.60(1))

Now clearly that cannot happen automatically. There would be the need to document the court’s record of the fact of the tenant’s failure to pay the rent to the clerk.

Whether the record of non-payment is made by (1) the landlord’s affidavit, (2) the court takes judicial notice of the fact, or (3) it requires a hearing, I can’t say, but it should be an expedited process. But I can tell you that the court cannot require any civil litigant to be represented by counsel.

Also for the court to be ordering unnecessary continuances of such a simple process and one that is legislatively provided in order to hasten such cases to an early conclusion would appear to verge upon an abuse of judicial discretion.

And if the process is being consistently delayed then the issue should be taken before the Florida Judicial Counsel. All in my humble opinion, of course.

This case involves your A typical delinquent rent scenario. The tenant can't, or won't pay the rent, the 3 day notice is given, then the eviction papers are filed at the court house, then the tenant receives the 5 day notice from the Sheriff. In Florida, the tenant then has to respond within 5 days, not including weekends and legal holidays. They have to submit, to the clerk, a written document defending their issue and the money owed in the Court's escrow account.


I definitely will be following up with this other landlord tomorrow to get more details. Honestly, I've never gotten up to the hearing to the part of the eviction process. The farthest I've been in the process was the mediation stage. However, the issue is a great concern to me, because I have to protect my interests.

 

[Zigner]

This case involves your A typical delinquent rent scenario. The tenant can't, or won't pay the rent, the 3 day notice is given, then the eviction papers are filed at the court house, then the tenant receives the 5 day notice from the Sheriff. In Florida, the tenant then has to respond within 5 days, not including weekends and legal holidays. They have to submit, to the clerk, a written document defending their issue and the money owed in the Court's escrow account.


I definitely will be following up with this other landlord tomorrow to get more details. Honestly, I've never gotten up to the hearing to the part of the eviction process. The farthest I've been in the process was the mediation stage. However, the issue is a great concern to me, because I have to protect my interests.

I take it you didn't bother actually looking at the code sections that latigo referenced, did you?

 

[Pross001]

I take it you didn't bother actually looking at the code sections that latigo referenced, did you?

I would like to post a copy of the Palm Beach county 5 day notice that is delivered by the Sheriff. But I don't see a way to do that. But, if I could post that document, you can clearly see that it is required that the tenant has to deposit the money with the clerk.

Let me go over (F. S. 83.60(1)), and I will speak with the other landlord, and I will update this thread

 

[Pross001]

Since your information is second hand it seems safe to assume that you are not in possession of all the facts.

But let’s assume that a given landlord has brought an unlawful detainer action against a given tenant to regain possession.

In such cases the only time an “escrow account” would be involved is if the tenant were to raise as a defense the failure of the landlord to “maintain the premises” as required under Florida Statute 83.51 or that the landlord’s motive is “retaliatory” in accordance with F. S. 83.64.

But if having been so instructed the tenant fails within five days to pay the rent into the clerk’s escrow account -

THEN the tenant’s defenses are deemed waived and the landlord is “entitled to an immediate default judgment for removal of the tenant with a writ of possession”. (F. S. 83.60(1))

Now clearly that cannot happen automatically. There would be the need to document the court’s record of the fact of the tenant’s failure to pay the rent to the clerk.

Whether the record of non-payment is made by (1) the landlord’s affidavit, (2) the court takes judicial notice of the fact, or (3) it requires a hearing, I can’t say, but it should be an expedited process. But I can tell you that the court cannot require any civil litigant to be represented by counsel.

Also for the court to be ordering unnecessary continuances of such a simple process and one that is legislatively provided in order to hasten such cases to an early conclusion would appear to verge upon an abuse of judicial discretion.

And if the process is being consistently delayed then the issue should be taken before the Florida Judicial Counsel. All in my humble opinion, of course.

In terms of this section of the law - "In such cases the only time an “escrow account” would be involved is if the tenant were to raise as a defense the failure of the landlord to “maintain the premises” as required under Florida Statute 83.51 or that the landlord’s motive is “retaliatory” in accordance with F. S. 83.64."

There is a separate approach in regards to the tenants options for withholding rent that is found in 83.56 that deals with the Landlord's noncompliance in maintaining the property. If the landlord is unwilling to properly make repairs then the tenant may withhold rent if a compliant is sent to the landlord through certified mail 7 days before rent is due.

According to this law, the only option to withhold rent that uses building maintenance as a defense is to use the 7 day notice option.

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0083/Sections/0083.56.html

http://www.pinellasclerk.org/aspinclude2/LandLordPDFs/FD60.pdf

http://browardlandlord.wordpress.com/category/landlord-tenant/7-day-notice-lease-violations/

Thus, I'm assuming, then the proper method for the court to determine whether there is a case for a hearing, without the depositing the money, is to find out if the tenant showed proof that they submitted the 7 day notice when the tenant responded to the 5 day notice from the Sheriff.