Residential Eviction Mediations

Residential Eviction
Mediations
October 11, 2012
Mediator Workshop
Judge David E. Silverman
davidsilverman.com
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Purpose of Mediating Evictions
 Venting
 Clarifying Issues
 Creating Alternatives
 Inspiring Humanity
 Reducing Trauma
Motives and Concerns
Landlord
 Loss of Rental
Income
 Damage to
Residence
 Loss of Value
 Attorney’s Fees and
Court Costs
Tenant
 Alternate Housing
 Financial Problems
 Personal Issues
 Condition of
Residence
 Failure to Repair
Scenario 1
4
Mediation Session
• Setting the Tone
– Empathy Without Identification
• Relative Strengths and Weaknesses
– Discussion of Jurisdiction and Defenses
• Caucuses
• Predictive Questioning
– Will the Court consider. . . ?
– What will you gain/lose if. . . ?
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Default Judgment
• Judicial Review of File
– 10th Day After Filing
– Service of Process
– Jurisdiction
• Most Common Situations
– Failure to Answer
– Answer – Failure to Deposit
• Default Final Judgment
6
Tenant’s Answer
7
T
Answer Without Deposit
• Issues Raised by Tenant’s Answer
• Jurisdiction
• Counterclaim in Excess of $15,000
• Denial of Landlord/Tenant Relationship
• Claim of Right, Title or Interest
• Defense of Payment
• Services In Lieu
• Deferral of Rent
8
Scenario 2
The Tenant may purchase the
property at the appraised
market value and one-third
of Tenant‟s rental payments
will be applied to the
purchase price.
9
Domestic Tenancy
Angelina is fed up with Brad’s stuff all over
the place and tells him to move out of her
house. He refuses and stops paying the
mortgage. She sues to evict.
There is no evidence of a LL-T relationship
here, so Chapter 83 and summary procedure
are not available. . . .
10
Condominium Assn. Eviction
• § 718.116(11)
– Demand upon tenant to pay future
monetary obligation of delinquent owner
– Condo, Homeowner and Cooperative
– Past obligations not required to be paid by
tenant
– Tenant may deduct payment to assn. from
rent due landlord
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Mortgage Foreclosure Eviction
• Protecting Tenants at Foreclosure
Act of 2009, 12 U.S.C. § 5220
• A tenant under a “bona fide”
residential lease shall be afforded at
least ninety days notice to vacate
following the foreclosure of a
“federally-related mortgage loan.”
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Scenario 3
13
Motion to Dismiss
• Improper 3-Day Notice
– “Court observed” holidays, mailing time
– “Rent”
• Improper parties
– Named on 3-Day Notice, Lease
– Improper owner as Landlord
• Notice of Non-Compliance
• Short Notice of Non Renewal
14
Defenses to Eviction
• Acceptance of Rent – Waiver
• Oral Agreement
– Deferring Payment of Rent
– Acceptance of Services
• Cure of Violation
– Removal of Guest or Pet
– Repair of Premises
• Retaliatory Eviction
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Scenario 4
The
parties‟
September
2, 2012 entire agreement
Dear
Landlord,
is
contained
this and
written
Dear
Landlord,
Based
on Laurel’s in
complaint
our
lease.
No modification of
inspection,
your
condo
is inIviolation
of city
As we orally agreed,
will get the
roof
the terms of this lease may
building
codes
regarding
rodents.
leaks
fixed
instead
of
paying
this month’s
be made orally.
rent.If this is not corrected in 10 days you be
fined $100.00 per Laurel
day.
The Building Department
September 3, 2012
Exercising Discretion
• Judicial Response
•
− Delay Execution of Writ
− Extend Time for Deposit
− Immediate Eviction
Schedule Hearing
− Deposit Required
− Mediation and Hearing
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Common Stipulations
• Vacate Time Certain
– Avoidance of Eviction Judgment
– Preservation of Residence
• Stay and Pay
– Monthly Payments
• Eviction Upon Default
– Affidavit of Non-Payment
– Additional 3 Day Notice
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Sample Stipulations
•• Laurel
pay David
$1,200
Laurelwill
agrees
to move
outbyofadding
the
$200 per month to her regular monthly
apartment on or before 5:00 pm
rent of $800 starting November 1,
on
October
2012.
2012
until full31,
payment
is made.
•
If Laurel doesn’t pay her rent or the
extra amount by the first of each
month, David may obtain a eviction
judgment and writ of possession by
affidavit and without notice.
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Damages and Collection
Loss of Rental Income
•• Garnishment
• Damages
– Wages to Premises
• Sufficiency
of Proof
– Bank Accounts
Measure of Damages
•• Exemptions
Improvement
––Head
of Household
Repair | Replacement
––Homestead
Preexisting
Conditions
––Social
Security
– Normal Wear and Tear
20
Songs and Singers
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Home – Michael Bublé
Our House – Crosby, Stills, Nash & Young
Gypsies, Tramps and Thieves – Cher
I’m Goin’ to Hire a Wino to Decorate Our Home
– Dave Frizzell
King of the Road – Roger Miller
Hotel California – Eagles
Mrs. Robinson – Simon & Garfunkle
Homeward Bound – Simon & Garfunkle
Take Me Home Country Roads – John Denver
The Green, Green Grass of Home
– Elvis Presley
Monty Python – John Cleese
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••• Number
Number 5
2
4
7
6
Number
31
If
Iwasn‟t
don‟t
wrap
this
up
Geez,
Staring
this
aplace
hole
is
through
so
awful
the
I
Hey,
I
bet
the
realtor
the
landlord
has
some
a
How
about
if
I
ask,
“Could
If
ISeven
leave
the
tenants
in
Things
You
better
tenant
evict
I
could
them
say,
for
“I
their
gather
own
quickly,
I
could
miss
my
big
great
campaign
locations
contributor?
to
put
my
you
begin
to
pay
in
three
I can probably pick up
this
is
a violation
good.
ofand
thesee
„noShouldn’t
Be
Thinking
tee
time.
signs.
or
four
months?”
this
property really
animals‟ provision.”
if Deciding
the landlord
cheap. an does
When
Eviction
anything I can hold him in
Case
contempt for.
22
Thank you for
participating in this
presentation on
Residential Eviction
Mediations
23