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Why Construcion Eviction Is “Bad For The Environment”
LEGAL NEWS by KEVIN KNIGHT
Every now and then we hear about a landlord’s actions or inaction for that matter “forcing the tenant out of possession.” Years ago, some unscrupulous landlords may have “relished the opportunity” to cause a less than desirable tenant to leave through some “over/innocent action” that was simply too much for the tenant to bear. As a contrast, some tenants who just didn’t like either their unit or the complex or didn’t have the rent money may have argued that the landlord created a bad situation. All of these back and forth arguments come under the title of “constructive eviction” and a recent appellate case in Florida examined this concept. This article will consider the case of Nugent v Michelis, 46 FLW D533e (Fla. 4th DCA March 10, 2021).
Given that much is being made these days about “Covid” and its impact on whether landlords can evict and tenants have to pay, adding this additional concern of construction can be “bad for the landlord/tenant relationship and environment” because it further clouds the parties’ rights.
THE NUGENT FACTS: Michelis was an owner/landlord who rented a home to a tenant who in turn sublet the home to Nugent (confused already as to the parties’ rights?). Nugent noticed a water leak and potential mold and water damage during a mold inspection hired by Nugent and Nugent notified Michelis.
While the home issues were being fixed, Nugent stayed elsewhere but her belongings were left in the home. Nugent also gave a friend permission to stay in the home while the repairs were being made (apparently the situation was less tolerable to Nugent than it was to her friend).
When Nugent’s friend returned to the home, the locks on the door had been changed. Nugent contacted Michelis to find out why this had been done and Michelis “acted” like she didn’t know who Nugent was, which prompted Nugent to call law enforcement. This wasn’t enough. Nugent also contacted a locksmith and the homeowners’ association’s security department. “Outnumbered” Michelis allowed Nugent’s friend to enter the home. Much to the friend’s surprise, Nugent’s belongings and the friend’s belongings were no longer in the home.
THE NUGENT SUIT: Nugent sued Michelis for constructive eviction, civil conversion (i.e., theft) and unjust enrichment. The count for constructive eviction also sought recovery of damages, costs and attorney’s fees.
Michelins defended the suit and counterclaimed for breach of the rental agreement and unjust enrichment. Nugent defended against Michelis’ counterclaim and said that Michelis’ claim was bared by Section 83.67(6), Florida Statutes.
A couple of the key provisions of Section 83.67 are as follows:
83.67 Prohibited practices.—
(1) A landlord of any dwelling unit governed by this part shall not cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord.
By: Kevin Knight
(2) A landlord of any dwelling unit governed by this part shall not prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks or using any bootlock or similar device.
(5) A landlord of any dwelling unit governed by this part shall not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, repair, or replacement; and the landlord shall not remove the tenant’s personal property from the dwelling unit unless such action is taken after surrender, abandonment, recovery of possession of the dwelling unit due to the death of the last remaining tenant in accordance with s. 83.59(3)(d), or a lawful eviction….
(6) A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees. Subsequent or repeated violations that are not contemporaneous with the initial violation shall be subject to separate awards of damages. (bold emphasis added).
THE NUGENT TRIAL: The case went to trial and over 2 days, the Judge listened to Nugent’s and Michelis’ version of the facts. At the end of the trial, the Judge found that Michelis had violated Section 83.67 and had “unlawfully attempted [a] self help eviction” by changing the locks.
Nugent then filed a motion asking the court to award attorneys fees and costs for the constructive eviction but the attorney referenced a wrong law that dealt with arbitration and not with a trial. Michelis filed bankruptcy. After Michelis filed bankruptcy, Nugent’s attorney then withdrew from representing Nugent and Nugent was then “on her own” (pro se is the legal term).
As if that wasn’t enough, the trial judge retired. Then, Michelis’ bankruptcy was dismissed. Acting as her own attorney (and apparently disregarding the adage that a person who acts as their own attorney has a fool for a client), Nugent then scheduled her motion for fees and costs before a new judge with a new attorney (who later withdrew).
Without going blow for blow, ultimately, the new judge determined that Nugent was not entitled to attorneys fees and costs because her original motion didn’t have the right information.
THE NUGENT APPEAL: On appeal, Nugent’s right to attorney’s fees was affirmed and the case was returned to the trial court to determine the amount. The appellate court’s decision was based on the reasoning that Michelis was on “fair notice” that Nugent intended to seek attorneys’ fees even if there were “typos” in her request(s).
BOTTOM LINE: Constructive eviction is clearly, “bad for the environment” and can be costly and expensive to both sides. Landlords should carefully consider their actions and inactions to make sure that the tenant isn’t given a reason both to “leave for free” and to file a claim for damages, costs and attorneys’ fees under Section 83.67.
