Page 13 - Boca Club News - September '20

Boca Club News, Page 13
Legal
The Coming Eviction Crisis
By Michael J Posner, Esq., a partner
in Ward, Damon, Posner, Pheterson
& Bleau, P.L. a mid-sized real
estate, estate planning and business-
oriented law firm serving all of South
Florida, with three offices in Palm
Beach County. They specialize in
residential and commercial real
estate and can assist with leases
and evictions. They can be reached at (561) 594-1452 or
at mjposner@warddamon.com
With the pandemic in full swing and the loss of a
substantial number of jobs in March 2020, the Governor of
the State of Florida issued Executive Order 20-94 on April
2nd, 2020. The Executive Order provided, in part: “I (the
Governor) hereby suspend and toll any statute providing
for an eviction cause of action under Florida law solely as Emergency directly impacting the ability of a residential
it relates to non-payment of rent by residential tenants due tenant to make rent payments.” This means that in any
to the COVID-19 emergency for 45 days from the date of eviction action the tenant will have an affirmative duty
this Executive Order, including any extensions.” That order to show a court that the tenant’s non-payment of rent is
expired May 17th, 2020, but was extended through June Covid-19 related.
2nd, 2020 by Executive Order 20-121 and further extended The eviction process in Florida is regulated by Chapter
through July 1st, 2020 by Executive Order 20-137 and 83, Florida Statutes, the Landlord-Tenant Act. No eviction
through August 1st, 2020 by Executive Order 20-159. may be commenced, nor may any landlord exercise a
On July 29th, 2020, the Governor issued Executive self-help remedy, without complying with the provisions
Order 20-180 that continued the eviction stay, but included of the Landlord-Tenant Act and the judicial procedures
a condition that tenants must meet to avoid eviction. promulgated thereunder. First, landlords must provide a
Specifically, the non-payment of rent must be due to delinquent tenant with a written notice providing the tenant
the tenant being adversely affected by the COVID-19 at least three business days to bring the lease current. If
emergency. The Order defines that as being “…loss of the tenant fails to pay, the landlord may commence an
employment, diminished wages or business income, or action in the Florida courts for eviction. A complaint is
other monetary loss realized during the Florida State of filed and must be served on the tenant either by personal
service (a requirement if a landlord is seeking damages
for unpaid rent) or by posting a copy of the complaint and
summons on a conspicuous location on the rental property
if two attempts for personal service have failed (only if the
landlord is seeking possession and not seeking damages
for unpaid rent).
Tenants have five business days to file a response to
the Landlord’s complaint. It is during this point in the
proceeding that a tenant must raise, as an affirmative
defense, that their failure to pay rent is due to a Covid-19
emergency. Under the Landlord-Tenant Act, no defenses
to an eviction can be raised (such as maintenance issues,
leaks, mold, etc.) unless the tenant pays the unpaid rent
into the registry of the court. Presumably, this condition
will not apply if a Covid-19 emergency defense is raised.
If the tenant fails to respond or raise any defenses to the
complaint, the landlord is entitled to the entry of an Order
for Tenant Removal. This Order directs the Clerk of the
Court to issue a Writ of Possession, which directs the
sheriff of the county to remove any persons in possession
of the rental property. Once the Writ is issued, the sheriff
will contact the landlord or their agent and schedule a
lockout of the property. The sheriff will post notice of
the lockout on the rental property, giving all occupants
24 hours to vacate.
Because many evictions have been stayed since April
2nd, 2020, there is a large backlog of unprocessed cases.
In addition to previously filed cases that were stayed by the
initial Executive Order, the Clerk of Palm Beach County
has indicated that an additional 1,000 eviction cases have
been filed since mid-March 2020. This volume of cases will
be difficult for the courts to process, and different judges
will interpret Covid-19 emergency defenses differently,
resulting in some tenants being evicted while others will
remain without paying any rent. It is unclear how long it
will take to clear this large backlog of evictions.
One issue is the fact that the stay on evictions did
not forgive the payment of rent. The Executive Order
specifically states, “All payments, including tolled
payments, are due when an individual is no longer
adversely affected by the COVID-19 emergency.” It is not
clear how many landlords will seek judgment for unpaid
rent against tenants, but regardless of their ability to collect
on such judgment, it will affect the tenants’ ability to rent
a new home or obtain credit. However, it appears that once
the courts start processing evictions, there will be many
new homeless families who simply can no longer afford
rent at a level prior to the pandemic.
Attention Dog Owners
It is your responsibility to pick up after your
dog. It’s the law. Some of you have been
negligent in doing so.
Please keep our
Boca community beautiful!