Residential Eviction Mediations October 11, 2012 Mediator Workshop Judge David E. Silverman davidsilverman.com 1
Purpose of Mediating Evictions Venting Clarifying Issues Creating Alternatives Inspiring Humanity Reducing Trauma
Motives and Concerns Landlor ndlord Tenant enant Loss of Rental Alternate Housing Income Financial Problems Damage to Personal Issues Residence Condition of Loss of Value Residence Attorney’s Fees and Court Costs 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. . . ? 5
Default Judgment • Judicial Review of File – 10 th 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 11
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.” 12
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 15
Scenario 4 Septem tember ber 2, 201 012 The parties‟ entire agreement Dear Landlord, is contained in this written De Dear ar La Landl dlor ord, d, Based on Laurel’s complaint and our lease. No modification of As s we we oral ally ly ag agreed, , I wi will get the roof f inspection, your condo is in violation of city the terms of this lease may leaks aks fi fixed d inst stead ad of f pay aying ng this month’s building codes regarding rodents. be made orally . rent. If this is not corrected in 10 days you be fined $100.00 per day. La Laurel The Building Department September 3, 2012 16
Exercising Discretion • Judicial Response − Delay Execution of Writ − Extend Time for Deposit − Immediate Eviction • Schedule Hearing − Deposit Required − Mediation and Hearing 17
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 18
Sample Stipulations • Laurel will pay David $1,200 by adding • L aurel agrees to move out of the $200 per month to her regular monthly apartment on or before 5:00 pm rent of $800 starting November 1, on October 31, 2012. 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 . 19
Damages and Collection • Loss of Rental Income • Garnishment • Damages to Premises – Wages • 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. 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 21
• Number 5 • Number 6 • Number 2 • Number 4 • Number 7 • Number 1 • Number 3 If I don‟t wrap this up Geez, this place is so awful I Hey, wasn‟t the landlord a I bet the realtor has some How about if I ask, “Could Staring a hole through the If I leave the tenants in Seven Things You better evict them for their own tenant I could say, “I gather quickly, I could miss my great locations to put my big campaign contributor? you begin to pay in three I can probably pick up Shouldn’t Be Thinking this is a violation of the „no - good. tee time. signs. or four months?” and see this property really animals‟ provision.” When Deciding an Eviction if the landlord does cheap. anything I can hold him in Case contempt for. 22
Than ank y you u f for pa partic ticipating ipating i in n t this presentation pr entation o on n Residential dential E Eviction tion Me Medi diat ations ons 23
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