Fla. Stat. 84.49(3)(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant’s last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim.

As the statute requires, when a tenant moves out of your property, if you intend to make a claim on their security deposit you have only a limited time to do so properly. Failure to properly send out a notice of claim on security deposit may result in a suit by the tenant to recover their deposit. The risk to a landlord for failing to provide the proper notice may result in the landlord being forced to turn over the deposit regardless of landlord’s damages for unpaid rent or damage to the premises. Additionally, tenants who hire an attorney to dispute the landlord’s claim on a security deposit may be awarded their attorney’s fees and costs resulting in potentially large losses to the landlord.

There are specific methods for delivery of the notice as well as rule regarding whether or not your tenant has provided you a forwarding address. You should review Chapter 83 carefully to make sure you are using the best practices. The Law Offices of Oates & Oates, P.A. is a full service civil and business litigation firm which also handles all landlord tenant and real estate matters.

Link: Read more about this firm’s eviciton services

During the pendency of an eviction case, whether residential or commercial, the Court may enter an order requiring the Tenant to post money into the Court registry. The Order may also include language that requires the Tenant to continue to post rent money to the registry of the court when each new payment becomes due. The Fourth District Court of Appeal recently issued an opinion on this very issue in a commercial tenant eviction.

In the case of Poal Wk Taft v. Johnson Medical Center, 45 So.3d 37 (Fla. 4th DCA 2010), the lower court issued an order requiring the Tenant to post money into the registry of the court. The Appeals Court opinion said that, not only was the contined posting of rent to the court registry required as it became due, but the Tenant is also requried to do that same by statute. During a commercial tenant eviction, “the tenant is required, even without court order, to make payments into the registry of the court when due.” Id. In the absence of strict compliance with these requirements, the landlord is entitled to a writ of possession without further hearing. Id.

If you need assistance with a residential or commercial eviction, please call the attorneys at Oates & Oates. 

Read more about the eviction process at: http://www.pompanolaw.com/practice-areas/evictions

What becomes of your corporation when its continuance is no longer feasible? Many think of such things only after that deadlock vote, or after a shareholder or member’s death or disability. After that unavoidable life event, death, diability, or disagreement, the question usually becomes what happens next? The answer depends on whether you have a shareholder agreement, or in the case of a limited liability company, a membership agreement.

Florida Law has few favorable remedies for those situations where a partnership is no longer feasible. In the case of 50/50 owners, without a majority equity holder, any decision which is not agreed upon by both parties will result in a “deadlock.” Without some provision in the shareholder agreement which directs the parties, you end up with a deadlock vote. The only alternative when the parties cannot agree, is to look to the corporate documents to determine who has the deciding vote or whether dissolution and winding down the business is the only alternative. Florida law permits the judicial dissolution and winding up of a business in the event of deadlocked shareholders, but this alternative is not without drawback.

Aside from the cost of a judicial dissolution, such a remedy’s judicial termination means the end of the business. The better alternative is to prepare in advance for such an eventuality. Too often business owners are concerned with starting their business without the proper planning in place. A truism comes to mind; something is usually better than nothing. Even if the only planning done is to agree upon a majority stakeholder (i.e. a 51/49 partnership) you’ve still taken care of a large percentage of potential problems. But, what happens when a shareholder is disabled or has died. In the event of a shareholder death, shares of stock or membership interests are inherited by the next of kin regardless of their prior involvement.

Proper planning for the succession of the business or buy-sell arrangements are an essential part of running a business. Benjamin Franklin had it right; an ounce of prevention is better than a pound of cure. The attorneys at Oates & Oates can counsel you in the proper way to protect your business from the foils of lack of planning. We look forward to sharing with you our knowledge and experience in the before and after effects of business planning.

Link: Read more about this firm's eviction services

In the realm of landlord-tenant relationships, almost anything and everything can go wrong. When it does, landlords can protect themselves and their interests by understanding what is legally required for removing a tenant, and what constitutes “crossing the line.” With so much bad information being circulated about landlord-tenant laws, it is vitally important for landlord’s to comprehend the scope of their authority and how to handle problematic tenants, legally. If not, inexperienced landlords might find themselves unnecessarily defending against wrongful eviction claims.

According to Sentry Water Systems, Inc., a wrongful eviction is “a wrongful act in he nature of a trespass…” Sentry Water Systems Inc., v. ADCA Corp., 355 So.2d 1255 (Fla. 2^d DCA 1978).Wrongful evictions are directly viagra buy tied to the tenant’s right of quiet enjoyment, which dictates that the tenant shall have the right to “peaceably and quietly enjoy the demised premises…” Barton v. Mitchell Co., 507 So.2d 148 (Fla. 4^th DCA, 1987). This includes the right to be free of a landlord’s unwelcomed intrusion onto the tenant’s leased property. Id.

As a landlord, understanding tenant’s rights is a crucial factor in avoiding wrongful eviction claims. Here are some examples of actions that are grounds for wrongful evictions claims. Landlord’s cannot, directly or indirectly, terminate or interrupt any utility service furnished to the tenant. These services include, but are not limited to, water, heat, light, electricity, gas, etc…(See Florida Statute §83.67). Landlords cannot change locks to

prevent tenants from accessing the premises. Id. Furthermore, retaliation of any kind by a landlord based on the conduct of a tenant is will be closely scrutinized, and may be grounds for a wrongful eviction claim by the tenant. (Florida Statute § 83.64). Wrongful eviction claims allow a tenant to bring a claim against a landlord for statutory damages plus recovery of their attorney’s fees.

There are, however, three clearly delineated circumstances where a landlord will have cause to remove a tenant. (Florida Statute § 83.20). A landlord may remove a holdover tenant; one that continues to occupy the premises after the expiration or termination of the tenancy and without the landlord’s permission. Id. Landlords may remove tenants that default in the payment of rent pursuant to the agreement, after providing adequate notice of the required payment. Id. Lastly, tenants that fail to cure a material breach of the lease agreement after of receiving notice of breach from the landlord and an opportunity to cure, may be removed from the premises. Id. This article is but a short overview of wrongful eviction laws in Florida that may aid landlord’s in better understanding the options that are available to them when dealing with problem tenants.

If you are a landlord in need of assistance with a residential or commercial tenant from lease to eviction, the attorneys at Law Offices of Oates & Oates, P.A., can assist you.

Jason Abitbol is a graduate student pursuing a Juris Doctorate degree at Nova Southeastern University College of Law in Fort Lauderdale, Florida. He is a law clerk for the Law Offices of Oates & Oates, P.A.

It has become quite common for people, corporations, and other entities to employ a variety of names by which they choose to identify themselves. These alternative names are better known in the legal profession as fictitious names and are regulated in Florida by Florida Statute § 865.09. This statute defines fictitious names as “any name under which a person transacts business in this state, other that the person’s legal name” and requires registering the names with the Division of Corporations of the Department of State before a person may use the name to engage in business. (See Florida Statute § 865.09) There is, however, a common misconception about the protections afforded by the use of fictitious names.

The registering of a fictitious name does not act as a reservation of rights to that name. Many are under the impression that using a fictitious name for business purposes will afford them the same protection as the name used for incorporation. This is certainly not the case.

There have been many instances where cialis 20mg the same fictitious name has been shared by multiple people or entities. When such a scenario presents itself, no protection will be extended to any of the holders of the same fictitious name. In essence, if two people share the same fictitious name, courts will refuse to recognize one party’s claim to that name over another’s. In Worm World, the court held that “a fictitious name has no independent legal existence; rather, it is a fiction involving the name if the real party in interest and nothing more.” Worm World, Inc. v. Ironwood Productions, 917 So.2d 274 (Fla. 1^st DCA, 2005) However, in furtherance of justice, the same court held that failure to comply with registration requirements for fictitious names will not impair the validity of contracts entered into by the party using the fictitious name. Id. It is clear that, in Florida, the courts will seek to avoid inequitable outcomes caused by the use of fictitious name. Therefore, it would be unwise to expect the legal protection and recognition associated with legal names to be extended to fictitious name.

If your buying or selling a business or need help starting a new business, the attorneys at Law Offices of Oates & Oates, P.A., can assist you in every step along the way.

Jason Abitbol is a graduate student pursuing a Juris Doctorate degree at Nova Southeastern

University College of Law in Fort Lauderdale, Florida. He is a law clerk for the Law Offices of Oates & Oates, P.A.

Let’s imagine for a illustration purposes that you are a widget maker. Widget makers train for years to be certified in their field and they are highly compensated for their work. Once employed they use their widget making skills in lucrative careers where they build a client base and grow their widget making practice by working long hours and treating their customers well. Customer loyalty is high with widget makers.

Imagine our widget maker is just graduating from their post-graduate or other schooling and is newly out in the workforce looking for a job. They are offered their ideal job with Small Town Widget (a very well respected widget operation), close to home and doing the widget making they have trained for. The compensation is good and the widget making job seems to be “in the bag.” Then the hiring manager presents the widget maker with a restrictive covenant containing non-compete and non-solicitation provisions. She has never seen one of these before, so she asks her graduate school friends and others in the widget making industry about the restrictive covenant. All seem to indicate that it is pretty normal practice in the widget making industry to be required to sign one before starting your new job.

From the hiring manager or owner’s perspective there are good reasons for requiring a restrictive covenant.  They don’t want you to build a rapport with the customers or clients and then move next door and compete against them.  Also, they don’t want you building a working relationship with the other employees of the business and take them with you when you go off on your own. Our widget maker is concerned about the terms of the restrictive covenant which disallow her from widget making for a period of two (2) years after the termination of her employment in a geographic area defined as a five (5) mile radius from any Small Town Widget operation.

Our widget maker rightly questions her ability to take her widget making skills somewhere else.  Small Town Widget has offices all over the surrounding three counties. She is worried that if her employment ends with Small Town Widget she won’t be permitted to obtain another job within 100 miles from her home. She calls her attorney and seeks some advise.

Now imagine that widget maker is a doctor, dentist, CPA or other working professional. Employers like Small Town Widget have a vested interest in obtaining a restrictive covenant from their employees or independent contracts. However, if Small Town Widget is hiring her to bring her training and skills to their office their only concern should be their customers and employees and less about her going out next door and opening a competing business. After all, there are lots of widget making offices scattered throughout the area, but if she can’t solicit the customers or employees of Small Town Widget, then what concern is it of the Small Town Widget office to keep her from working within the restricted area?

Restrictive covenants, non-competes and non-solicitations, are a practice area that the attorneys at Law Offices of Oates & Oates, P.A. have much experience. Whether you are the employer or employee you should seek the advice of knowledgeable and experienced counsel before hiring new employees or signing a restrictive covenant. Please contact our offices to discuss how we might be able to assist you.

Link: Read more about this firm’s eviction services

Whether you are a seasoned landlord with valuable management skills or a first-time landlord, the issue of eviction or abandonment could be an issue you have to face. The issue of abandoned property appears in two contexts. On one hand, a landlord could face the issue when the tenant has abandoned the property altogether by leaving for an indefinite period of time without giving notice. On the other, a landlord could face the issue when the lease has expired or been terminated yet the tenant fails to take all of his or her possessions with him. What are your rights and responsibilities as a landlord in each situation?

In the first situation, a landlord is dealing with an abandoned dwelling upon which the tenant probably owes rent. The landlord needs to think about whether or not the property is actually abandoned as defined by Florida law. Florida Statute § 83.59(3)(c) states that a tenant has abandoned the dwelling when he or she is absent from the property for a period of time equal to one-half the time for periodic rental payment, as long as the rent is not current and the tenant has not notified the landlord of his or her absence in writing. For example, in Shorter Home Solutions, LLC v. Tyrance Kingdom, the Broward County court held that statutory abandonment of the property was apparent because the tenant, Tyrance Kingdom, had abandoned the dwelling when he left the premises without paying his monthly rent, without advising the landlord of his absence, and without returning to the premises until after the 15^th day of the month. The landlord, Shorter Home Solutions, was entitled to remove the tenant’s personal property from the premises and was awarded a judgment of the balance on the rent and the reasonable cost of attorney’s fees.

The second situation involves a bit more action on behalf of the landlord. This situation arises when the lease has expired or been terminated, be it by eviction or abandonment, and the tenant has left behind personal property in the dwelling. Under Florida Statute § 715.104, the landlord must give written notice to the tenant or any person he or she reasonably believes to be the owner of the property. The notice must describe the property, must advise the person that reasonable costs of storage may be charged, must state where the property can be claimed, and must set out the date before which the property must be claimed.

If the tenant or owner of the property responds within the date specified and pays the reasonable costs of storage, the landlord must release the property to that person. However, if no one claims the property before the date specified, and the landlord believes that the resale value of the property will be less than $500, he or she may retain it for his or her own use, pursuant to Florida Statute § 715.109. Otherwise, the property must be sold at public sale by competitive bidding.

Although landlords are an integral part of property management businesses in today’s society and their rights and responsibilities are set out by Florida law, disputes between them and their tenants are inevitable in these situations. If you face either of these situations as a landlord or tenant, the attorneys at Oates & Oates have the experience to help counsel you and enforce your rights.

Ellen Stewart is a graduate student pursuing a juris doctor degree at Stetson University College of Law in Saint Petersburg, Florida. She is a legal research assistant for the Law Offices of Oates & Oates, P.A.

Escrow agents are a fundamental tool in the practice of business and sales, however their use could lead to disputes rather than successful transactions. Take a contract for the purchase and sale of a property for example. This transaction is simple on face, but that is true only if the parties act as they agreed. A money deposit is placed into escrow and an agreement is made that the money is to be delivered to the designated party upon the performance of another condition or event, for example the relinquishment of the seller’s property rights. If the parties act according to their agreement, then the escrow agent is merely an intermediary in the deal. However, problems arise when parties do not perform as planned.

If either of the parties does not act as they agreed to or frustrates the transaction, that party terminates the deal and most likely the contract all together. The money that was placed into escrow becomes idle because the escrow agent is usually instructed not to release or refund any of the money until the dispute between the parties is settled. The escrow agent, in order to prevent the risk of multiple lawsuits against him, can file for what is called an interpleader action.

An interpleader action is defined in the Florida Rules of Civil Procedure under Rule 1.240. The rule states “persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.” The State of Florida bases this rule on the theory that conflicting parties should litigate their claims among themselves without involving the plaintiff or middleman in their dispute.

An interpleader action should be entered into when the escrow agent or middleman has no interest in the money that is the subject matter of the dispute and there is no independent liability asserted against him. An interpleader action requires the intermediary to place the money into the court’s custody. The intermediary or escrow agent is then dismissed as a party to the interpleader action and the defending parties must litigate and argue for their rights to the money among themselves.

But the intermediary or escrow agent does not walk away and leave the parties to dispute before recovering costs and attorneys fees incurred in initiating an interpleader action. Escrow agents are entitled to recover these fees and costs under the Florida Rules of Civil Procedure. In the case Ellison v. Riddle (Sept. 3, 1964), the Florida District Court of Appeals, Second District, defined this entitlement. The court stated “in order to be entitled to such an award the plaintiff must prove his total disinterest in the stake he holds other than that of bringing it into court so that conflicting claims thereto can be judicially determined…the plaintiff must also show he did nothing to cause the conflicting claims.”

A typical escrow agent will have total disinterest in the money deposit they hold during a transaction or sale and will have no involvement in the creation of the conflict that is the subject matter of the lawsuit. Therefore, an escrow agent is entitled to recover the costs and attorneys fees incurred in filing the interpleader action. If you believe you are entitled to such awards, the service and assistance of a knowledgeable attorney is a valuable tool. Please contact the office of Oates & Oates for more information.

Ellen Stewart is a graduate student pursuing a juris doctor degree at Stetson University College of Law in Saint Petersburg, Florida. She is a legal research assistant for the Law Offices of Oates & Oates, P.A.

More and more frequently I speak to judgment creditors with a judgment issued by a state or country other than Florida. The process of registering that judgment in Florida is called domestication. Once domesticated, the foreign judgment is given full faith and credit and is enforceable by Florida courts to the same extent as a Florida judgment.

The issue that I notice more frequently is that some judgments issued by other state and foreign jurisdictions won’t meet the requirements of Florida law when it comes to the original jurisdiction of the court issuing the original judgment. Florida’s domestication or registration process recognizes the judgment debtor’s ability to contest the enforceability of the judgment at any time for lack of the original court’s jurisdiction.

Let me explain by example. Some states permit service of a defendant by certified mail. Florida doesn’t recogize this type of service as adequate individual or substitute service, except in very limited circumstances. Additionally, some states have laws (commonly referred to as long-arm statutes) that permit their residents to sue non-residents in their state, when the defendant would not otherwise be subject to the court’s jurisdiction.

As an illustration, an Arizona resident or business has a contract dispute with a Florida individual or corporation. The Florida individual or corporation does not have an office in Arizona nor has the Floridian ever done business in Arizona. If the agreement does not state where venue and jurisdiction is for any dispute between the parties, can an Arizonian sue the Floridian in an Arizona court? Perhaps Arizona law permits this; I am not a licensed Arizona attorney and do not know Arizona law. However, as soon as you bring your Arizona judgment to Florida to collect it, the judgment debtor will object that they were not subject to the jurisdiction of the Arizona courts. Florida law permits the judgment debtor in this example to raise this defense at any time. Now you, as the judgment creditor, have shown your cards in your collection attempt and you are barred from collection due to jurisdictional grounds. You are left with only one option. You must reinstitiute your suit in a Florida court in the jurisdiction where the debtor resides or has an office for the conduct of its business. This way you serve the defendant under Florida law and in the end, obtain a Florida judgment.

Read more about the domestication process in Florida

 Before you hire an attorney to help you bring your judgment to Florida, make sure they consult with you on the issue of the originating court’s jurisdiction. Make sure they have the experience in dealing with the nuiances of this area of practice. If you would like to the speak with an attorney about the collection of your judgment, please call.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements.  Before you decide, ask us to send you free written information about our qualifications and experience.

Our office represents a number of contractors whose work includes maintenance. Whether it’s a lawn service, landscape contractor, pool contractor, or general contractor, I am often asked the question: Can I lien a job for maintenance work? Florida law requires that in order to have lien rights, the contractor (lienor) must have “improved” the property.

Improved is defined as (Section 713.01(14)):

“…build, erect, place, make, alter, remove, repair, or demolish any improvement over, upon, connected with, or beneath the surface of real property, or excavate any land, or furnish materials for any of these purposes, or perform any labor or services upon the improvements, including the furnishing of carpet or rugs or appliances that are permanently affixed to the real property and final construction cleanup to prepare a structure for occupancy; or perform any labor or services or furnish any materials in grading, seeding, sodding, or planting for landscaping purposes, including the furnishing of trees, shrubs, bushes, or plants that are planted on the real property, or in equipping any improvement with fixtures or permanent apparatus or provide any solid-waste collection or disposal on the site of the improvement.”

If the question remains after reading that definition, the 4th District Court of Appeals has provided an example upon which to provide more criteria for analysis. In Legault vs. Suncoast Lawn Service, Inc., (April 9, 1986) the Court stated that “an improvement, in order to support a mechanic’s [contractor] lien, must result in a permanent benefit to the land or the real property [building].” From the facts in that case, the contractor had mowed the property owner’s lawn and trimmed their shrubbery, and thereafter filed a lien for “lawn service.” The Court found that, although planting for landscaping purposes may be a permanent improvement, landscape maintenance services did not.

Chapter 713, Florida Statutes, awards attorney’s fees to the prevailing party in a dispute about the validity of a lien. Therefore it is important that you select a knowledgeable lien service or attorney to help you prepare and file your liens. While a lien service can assist you in preparing the appropriate forms, only a licensed attorney can give you legal advice about what materials or services can be properly liened.

If you need help in enforcing your lien rights, please call the attorneys at Oates & Oates.