The Pitfalls of Subleasing

Often in this economy, tenants are short on cash and sublease (whether authorized to or not) to others who are not on the lease agreement with the landlord. Whether the person subleasing from the tenant is a tenant themselves or an "occupant" is fact dependent. So let's get to it:

Who is a landlord?

The landlord, by definition, is the owner of the property. Landlords alone have the right to file a lawsuit under Chapter 83, Florida Statutes. There are limited exceptions for a property manager to do so, but that is another topic for another post. To find out who the actual landlord of a property is, look it up either in the official records of the county (the deed) or the property appraiser's database. 

But I'm definitely the landlord, why should I look it up?

Ok. I will not disagree with you. However some landlords have lost money to me on that assertion. If you placed the home under a business entity or trust account, "you" are not the landlord, the business or trust account is the landlord. "You" are the property manager. If you file an action to evict somebody from the property and that person walks into my office you are in for a world of hurt.

I just found out that my tenant has subleased the property but the lease agreement does not allow that. What can I do?

You can send a seven-day notice of material non-compliance to the actual tenant informing them that subleasing is not permitted and giving them seven days to remove the occupant. If they fail to do so within seven days you can file an eviction action against them. If the lease agreement is an oral (unwritten) lease agreement, then you will need to prove to the Court that part of the agreement was that subleasing was not permitted. That will be a difficult task indeed once the tenant testifies that no such discussion took place.

A written lease agreement setting out the terms of the landlord-

tenant relationship can be one of the most important documents

protecting the rights of both parties to such a relationship. While

oral agreements (unwritten) are permitted, they are difficult to 

interpret and/or enforce. For best results, get it in writing.

Who is a tenant?

A tenant is a person who pays rent to the landlord or the landlord's designated agent. The landlord-tenant relationship exists if there is an agreement to occupy another's property in exchange for money (or sometimes work). If "rent" is being paid to somebody other than the landlord under a contract, then there is no landlord-tenant relationship. This mistake often occurs when the "property manager" (I use that term loosely) drafts the contract and place themselves in the landlord position. Not only is it a misrepresentation, but this type of mistake fails to create privity between the landlord and the "tenant" who is technically an occupant. A ratification can correct the privity problem but must be done correctly so as to not run afoul of the requirements of Florida law.

If I am renting property from a tenant: am I a tenant?

You are a tenant if and only if you have paid rent to the property owner directly, not through the actual tenant unless that tenant is a property manager to the landlord as well. It would be highly recommended that you actually get a copy of the lease agreement that the tenant is operating under. Many leases forbid subleases and therefore the act of moving in without the actual landlord's permission would create grounds for the tenant (and you) to get evicted.

If you have never paid rent to the landlord or to the landlord's property manager or agent, you are an occupant. Occupant rights rise and fall with the lease agreement.

The tenant I am renting from is threatening to evict me, is that legal?

A tenant may not evict a person from the property. Only a landlord can file an eviction. A property manager can file a single count non-contested eviction to completion, but once the matter is contested only the landlord (if a natural person) can proceed pro se or hire an attorney to proceed on the landlord's behalf.

Who is an occupant?

An occupant is any person who resides on the landlord's property either through a sublease, as a long-term guest, or as a result of their familial relationship with the tenant (ie: minor children). An occupant has never paid rent to the landlord and therefore their rights rise and fall with the lease agreement. Occupants should never be listed on an eviction action. If you never paid rent to the landlord and happen to be served with an eviction complaint you can defend on privity and your status as a non-tenant.

Minor children are the most common (in my experience) occupant. They should not be listed on the lease agreement by name and instead as Minor Child 1, Minor Child 2,... etc, or by their initials. Remember that should an eviction action be filed the lease agreement needs to be attached. Minor children should never be named in a complaint and should not be named as a party defendant. It is a violation of the rules of procedure in Florida and depending on the disposition of the judge may 

So who can sue who?

Under Chapter 83, Florida Statutes a tenant and landlord may sue each other. An occupant, on the other hand, has no standing to sue the landlord or the tenant. Neither the landlord nor the tenant has standing to sue an occupant.

Landlord-tenant law in Florida seems relatively straightforward until attorneys get involved. The landmines found throughout the statutory framework in Florida can have financially devastating consequences for landlords, tenants, and occupants who are not familiar with the nuances of the practice area. For example:

- Landlord files an eviction action against Tenant1, Tenant2, and Occupant1. Occupant1 grabs an attorney who moves to dismiss and because there is no privity the dismissal is granted. A motion for attorney's fees for anywhere between $1000-$1500 can be anticipated.

On the flip side, Occupant1 does not obtain an attorney and fails to answer appropriately. The attorney who files the action files a motion for attorney's fees. If Occupant1 fails to notify the court that privity does not exist Occupant1 may be on the hook for attorney fees even if unjustified. Unrepresented occupants should realize that the court is not there to represent them.

- Property manager "landlord" files an eviction action against Tenant1, Tenant2, and Occupant1. All three go find attorneys who agree to represent them after discovering that the "landlord" is actually not the person who filed the suit, but a business entity owned by the "landlord". Three motions to dismiss are filed (all three for "lack of standing" and one for "privity) and are granted. Three motions for attorneys fees later and the property manager may be out between $1500 and $3000. Not good.

Learn from the mistakes of others.

The law firm the author words for has represented many tenants and occupants against landlords  or "landlords" who are later shocked to find that they are on the hook for thousands of dollars in attorney fees. The same firm represents landlords who are often at wits end dealing with tenants and occupants they cannot seem to have removed from the property.

Breastfeeding in Florida

Happy Holidays 2015 from Hallisky & Davis

Jimmy Davis nominated as one of "10 best" Attorneys in Florida - and why this does not matter.

Imagine my surprise, and the amount of ego inflating pride I felt when I got this letter in the mail that states "Congratulations! We are pleased to announce that you have been nominated as one of the '10 Best' Attorneys for Florida. This came from an organization called the "American Institute of Family Law Attorneys".

I blushed with pride, and smiled ear to ear. I said to everybody near my P.O. Box, "Look, I'm the best attorney ever!" (I did not really do that, but you know...)

Here is the instantaneous problem with this reward. I have barely dabbled in family law. My results have been good by all accounts, but one of the 10 best? I think not. This, my curious readers, is what one calls a "vanity award". Should I pay for this award, I will instantly go from nominated to winner. Congratulations me!

Oh Vanity Award, your name is Narcissus

As a consumer of legal services, or an attorney, it should be pretty clear why these pseudo awards should not be utilized by attorneys to promote their skills. Similar to paying for a noble title, paying for an award is not only a hollow victory, but it may very well show how unethical attorney marketing may be. Consider in Florida

Rules 4-7.13(a)(2), (b)(2), (b)(3) and Rules 4-7.14(a)(2)

If an attorney were to use this on advertising material, these rules require that attorney to determine whether the advertisement contains any reference to past results that cannot be objectively verifiable; whether it omits material information; or if "literally accurate" would it have the potential to mislead a would-be client regarding a material fact.

In this case, the answer is yes, yes, and yes. Sure my past results are good, but they are normal outcomes to normal cases. I have had children returned from other states, successfully defended clients from false accusations, and resolved other more "cookie cutter" cases. There is information material to any selection of the top ten, including how much experience and the complexity of the cases undertaken and won. Finally, it is "literally accurate" that I was "nominated" as one of the top 10, but in light of everything else... would it not be reasonable that a person seeing that "award" get misled as to my abilities and reputation in the courts? Of course.

I shredded the award

What what?!? But... no, if I ever become one of the "top 10" in Florida I would rather earn it, not pay for it. In fact, I have earned

• The Guardian of Justice from Community Legal Services of Mid-Florida, Inc.; 
• The President's Volunteer Service Award from President Obama;
• The Volunteer of the Year Award from United Way;
• The Pro Bono Service Award by the Florida Bar President;
• The Volusia County Pro Bono Attorney of the Year from Community Legal Services of Mid-Florida, Inc.; and
• The One Pro Bono Award from The Florida Supreme Court, Young Lawyers Division of the Florida Bar, and the Florida Pro Bono Coordinators Association.

How much did I pay for these? Exactly $0.00, exactly as it should be.

Great, so how do I know whether my attorney's awards are earned or paid?

Look them up. Others are writing about these "vanity awards". My nomination came from American Institute of Family Law Attorneys. I believe they are simply in the business of making money from my Profession, and that those in my profession using their "award" to market themselves are misleading consumers of legal services.

I use my real awards to market myself to be sure. But if you are in the market for an attorney, beware the hype. Find out which awards are real and which are purchased filler for websites.

Pro Bono Work - Advocating for the Underserved

"I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone's cause for lucre or malice." _ The Florida Oath of Attorney

The other day I was criticized for fighting for a client's money. That money was, relative to the paychecks of the people in the room, small. But for some of my clients the amount in dispute was enormous. These clients, when in court for either criminal or civil issues, walk away feeling marginalized and set aside as unimportant because "the amount in dispute is not worth the court's time." 

"The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." _ Art. I, s. xxi, Fla. Const.

How the dollar value of the case means anything to any real sense of justice escapes me. Justice denied to a person simply because they are poor is like a cancer. It grows malignantly through the attitudes of the economic class that was targeted as unworthy who begin looking at the justice system as a weapon for those of means. Worse, it will metastasize into the atmosphere of the courts because once a court rejects a litigant because of their income, it becomes easier to do the same in the future.

Justice is not about the money. It is about the framework of the law and how it should be applied in all cases, no matter the economic situation of those involved. We in the Profession should be wary of allowing the courts to marginalize the poor without a fight. The consequences are dire, because there is always somebody out there who thinks our client is poor.

Board of Governors of The Florida Bar from the Seventh Judicial Circuit, Seat 1

When this opening was announced I was emailed and asked to run for the position. The nominating form had some great attorneys on it. They were dedicated to their clients; they spent time consulting the poor in legal matters; and they contributed to the community and the Profession in ways I could not possibly detail here. These are attorneys I frequently look up to so being nominated by them made it very difficult to refuse.

Pro Bono Service - Recently I was privileged to travel to Tallahassee and stand before our Supreme Court along with a cohort of fellow pro bono volunteer attorneys who have directly confronted the problem of accessibility to legal representation. Too often, pro se litigants with legitimate legal issues are denied a chance at justice and attorneys who volunteer cannot save everybody. I believe that some parts of this problem can be tackled using education and technology, and that the Profession should be experimenting with solutions that could resolve simpler matters as swiftly as possible.

Technology & the Law - Because of my background in engineering and science, I want to explore how technology can be used to pull the Profession into the 21st century. Creating a more efficient court system with technologically armed attorneys representing their clients would streamline the courts and allow all of us to concentrate more on what matters to us and those we represent. I want to contribute to this evolution of legal services.

Helping Others - Finally, there are many other issues facing the Florida Bar besides these two and they certainly have equally dedicated champions. Anemic court funding, poorly compensated government attorneys, increased support for legal aid firms, soft cover books which hurt less when the judge tosses the book at you, and mentorship opportunities for attorneys are some examples of the problems I would be looking forward to addressing with other board members.

I do not have all the answers, nor will I pretend to. These are difficult problems before us and no one attorney will solve any one of them. But I would be happy to take part in finding the solutions and it would be an honor to represent you on the Board of Governors. So remember to vote and let's tackle these problems together.

Welfare Fraud : The State v. You and What You Should Know

Public Assistance Fraud is a serious crime with misdemeanor and felony penalties depending on how much is alleged to have been pilfered from Florida's entitlement programs. If you have been charged with violating s. 414.39, Florida Statutes (2013) you need to know that unfortunately the odds are highly stacked against you.

Mistakes by the Florida Department of Children and Families (DCF)

DCF, like other government agencies, makes a lot of mistakes. The problem is that as an individual those mistakes is difficult to discover. Here is why:

Imagine that you have been charged with failing to report a change of circumstance (leading to the public assistance fraud) charge. You swear you remember reporting faithfully. When you obtain your records from DCF you notice that the records of other individuals are in your file, but you cannot find any evidence of your report. Why? That's obvious, they misplaced your report in somebody else's file.

It becomes easy to prove that DCF put the wrong information in your file, but that's not proof that you reported or that DCF placed your report in somebody else's file. The only way to prove that is to find your report in the other file. But imagine the costs of having DCF thumb through all of their files to catch that mistake, it's not going to happen.

So your sole piece of evidence is proof that DCF could have made an error and misfiled your report. Standing before a jury with that is hardly comforting. 

To eliminate misfiling errors and to speed up efficiency, DCF now allows communication online. A demonstrable error has already been observed by this firm when a business account report that was filed online could not be found by staff during a phone interview. This opens up the possibility that reports are simply not being processed through the web site and somehow end up floating out in internet-limbo.

The State's Track Record on Public Assistance Fraud

Making matters worse is that the State has a stellar track record for convicting people charged with fraudulently obtained public benefits. In 2010, 291 individuals decided to go to trial. 283 were convicted, 8 were acquitted. That's a 97.3% conviction rate. Dr. Charles J. Mullin, Statistical Analysis of Fraud in the 

Florida Food Assistance Program (Nov. 28, 2012). Also in 2010, 2856 individuals fought the State in administrative disqualification hearings. 2811 convictions and waivers obtained, only 45 acquittals. Id. That's an average 98.4% win rate for the State. Id.

Based on these numbers alone (without the self-serving optimism of defense attorneys) your average chance of winning against the State of Florida is 2.15%. Now genius defense attorneys may be able to show better results but most of us are not geniuses. If you encounter an attorney that claims to be a genius, I would recommend you ask the following questions:

- How many public benefits fraud cases have you defended?

- How many did you bring to trial?

- What is your percentage of wins?

Remember that the numbers above don't take into consideration the skills of the prosecutor or defense attorneys, the temperament of the judge, or the fickleness of the jury. Despite the wide variety of circumstances the State walks away with win after win after win.

The Good News

There's good news? Yes... sort of. Apparently the State's general attitude is to simply recoup the money they "lost" paying out benefits to you and avoid trial. This is amazing considering how easy it is for them to win these cases. With that in mind it is now more important for you to deal realistically with an attorney who understands that your best interests (97.3% of the time) are served by avoiding a conviction and agreeing to paying back the state.

Why is this true? Generally speaking it would cost more (on top of what the state already claims to have lost) to incarcerate you instead of just getting you to pay the money to the State. So there is a strong incentive to push people into what is called pre-trial intervention. While this is hardly justice since both the innocent and guilty are caught up in the system, it is (97.3%) of the time in your best interest to take the deal.

If you or somebody you know, or if you are a DCF worker who would like to provide evidence of errors happening within the system, contact the Law Offices of Jimmy Allen Davis, P.L. at the (386) 873-8422 or email PDF scans of your evidence to jimmy.davis.esq@gmail.com  Feel free to do so anonymously. It's very important that society expose the problems within the DCF - State Attorney Office alliance.