Mediations October 11, 2012 Mediator Workshop Judge David E. - - PowerPoint PPT Presentation

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

Landlor ndlord Tenant enant

 Loss of Rental

Income

 Damage to

Residence

 Loss of Value  Attorney’s Fees and

Court Costs

 Alternate Housing  Financial Problems  Personal Issues  Condition of

Residence

 Failure to Repair

Scenario 1

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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

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T

Tenant’s Answer

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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

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The Tenant may purchase the

property at the appraised market value and one-third

• f Tenant‟s rental payments

will be applied to the purchase price.

Scenario 2

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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. . . .

Domestic Tenancy

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

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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

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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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Septem tember ber 2, 201 012 De Dear ar La Landl dlor

• rd,

d, As s we we oral ally ly ag agreed, , I wi will get the roof f leaks aks fi fixed d inst stead ad of f pay aying ng this month’s rent. La Laurel

The parties‟ entire agreement is contained in this written

• lease. No modification of

the terms of this lease may be made orally.

Scenario 4

Dear Landlord, Based on Laurel’s complaint and our inspection, your condo is in violation of city building codes regarding rodents. If this is not corrected in 10 days you be fined $100.00 per day. The Building Department September 3, 2012

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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 agrees to move out of the

apartment on or before 5:00 pm

• n October 31, 2012.
• Laurel will pay David $1,200 by adding

$200 per month to her regular monthly rent of $800 starting November 1, 2012 until full 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
• Damages to Premises
• Sufficiency of Proof
• Measure of Damages

– Improvement – Repair | Replacement – Preexisting Conditions – Normal Wear and Tear

• Garnishment

– Wages – Bank Accounts

• Exemptions

– Head of Household – Homestead – Social Security

Songs and Singers

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1. Home – Michael Bublé

• 2. Our House – Crosby, Stills, Nash & Young
• 3. Gypsies, Tramps and Thieves – Cher
• 4. I’m Goin’ to Hire a Wino to Decorate Our Home

– Dave Frizzell

• 5. King of the Road – Roger Miller
• 6. Hotel California – Eagles
• 7. Mrs. Robinson – Simon & Garfunkle
• 8. Homeward Bound – Simon & Garfunkle
• 9. Take Me Home Country Roads – John Denver
• 10. The Green, Green Grass of Home

– Elvis Presley

• 11. Monty Python – John Cleese

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• Number 4

Staring a hole through the tenant I could say, “I gather this is a violation of the „no- animals‟ provision.” Geez, this place is so awful I better evict them for their own good.

How about if I ask, “Could you begin to pay in three

• r four months?” and see

if the landlord does anything I can hold him in contempt for.

• Number 3
• Number 7

Hey, wasn‟t the landlord a big campaign contributor?

• Number 5
• Number 6

I bet the realtor has some great locations to put my signs. If I leave the tenants in I can probably pick up this property really cheap. If I don‟t wrap this up quickly, I could miss my tee time.

• Number 2
• Number 1

Seven Things You Shouldn’t Be Thinking When Deciding an Eviction Case

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Than ank y you u f for pa partic ticipating ipating i in n t this pr presentation entation o

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