IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT, IN AND
FOR PALM BEACH COUNTY, FLORIDA.
CASE NO. CL 02-14116 AB (Judge Labarga)
Tammy Yates, Peter Miller, Maria L. Cruz, and Jose Ortega as
Class Representatives of those similarly situated;
Plaintiffs,
vs.
Equity Residential Properties Trust; a real
estate trust licensed to do business in the State of Florida.;
Equity Residential Properties Management Corp. a
corporation licensed to do business in the State of Florida;
Equity Residential Properties Management Corp. II, a
corporation licensed to do business in Florida;
Equity Residential Properties Management Ltd. a limited
partnership licensed to do business in the State of Florida;
Equity Residential Properties Management Ltd. II a limited
partnership licensed to do business in the State of Florida; and
ERP Operating Limited Partnership a limited partnership
licensed to do business in the State of Florida.
Defendants.
__________________________________/
Class Representation
Class Action Complaint
GENERAL AVERMENTS
1. Equity Residential Properties Trust (hereinafter the Trust)
is a real estate investment trust licensed to do business in the
State of Florida and was, at all times material hereto, doing
business in Palm Beach County. The Trust is engaged in the trade
and commerce of acquiring and renting residential apartments throughout
the State of Florida for personal and family residential housing.
The Trust owns, controls, manages and operates approximately 184
apartment rental complexes in the State of Florida composed of
approximately 33,000 rental apartment units. The Trust actively
promotes its rental housing through its web site at www.equityapartments.com.
This web site is designed to facilitate and promote the rental
of its apartments throughout the State of Florida. The web site
includes a map of Florida which lists all of its Florida apartment
complexes making them available for rental with further information
on their managing agents located at each it's 184 complexes in
the State of Florida. Seventeen of these complexes are located
in Palm Beach County Florida. The Trust maintains offices throughout
Florida including rental offices in Palm Beach County Florida.
2. Equity Residential Properties Management Corp. is a corporation
licensed to do business in the State of Florida and was, at all
times material hereto, doing business in Palm Beach County. The
Defendant maintains offices throughout Florida including rental
offices in Palm Beach County Florida. Equity Residential Properties
Management Corp. II is also a corporation licensed to do business
in Florida and maintains offices throughout Florida including
rental offices in Palm Beach County Florida. These two corporations
are agents of the Trust, are solely owned by the Trust and all
of their policies, operational procedures and other management
functions, are directed by the Trust.
3. Equity Residential Properties Management Ltd. and Equity Residential
Properties Management Ltd. II are limited partnerships licensed
with and doing business in the State of Florida. Both of these
partnerships have the same corporate offices as the Trust and
maintain offices throughout Florida including rental offices in
Palm Beach County Florida. These partnerships are agents of the
Trust, are solely owned by the Trust and all of their policies,
operational procedures and other management functions, are directed
by the Trust. The general partner for these limited partnerships
is ERP Operating Limited Partnership.
4. The ERP Operating Limited Partnership is a limited partnership
licensed to do business in the State of Florida. This limited
partnership lists the Trust as its general partner. The ERP Operating
Limited Partnership has the same offices as the Trust and maintains
offices throughout Florida including rental offices in Palm Beach
County Florida. This partnership is the agent of the Trust, is
solely owned by the Trust and all of its policies, operational
procedures and other management functions, are directed by the
Trust.
5. All the above named corporate, limited partnerships and trust
Defendants shall hereinafter be referred to collectively as "Landlord".
6. Plaintiffs are former tenants of Landlord in the State of Florida.
Plaintiffs Peter Miller, Maria L. Cruz and Jose Ortega all reside
in Palm Beach County and were tenants at Landlord's Pines of Springdale
apartment complex located at 2500 Springdale Blvd. Palm Springs,
Palm Beach County Florida during the years 1999 and 2000. Plaintiff
Tammy Yates is a resident of Orange County Florida who was a tenant
in the Landlord's Mission Bay Apartments in Orlando Florida during
the year 2002.
7. Jurisdiction lies with the Circuit Court as this is a Class
Action seeking damages in excess of $15,000 and other injunctive
relief.
8. As part of its promotion and rental of apartment complexes
in the State of Florida the Landlord actively markets and solicits
young persons in their 20s as a major source of prospective tenants.
Plaintiffs were so solicited as further alleged herein although
the amount of fees and monthly rental varied. Landlord uses a
uniform rental application process and form for all prospective
tenants who will occupy and live in the Landlord's properties.
Landlord uses a uniform Florida lease form for all tenants who
will occupy and live in the Landlord's properties in Florida.
Landlord employs a uniform policy and form for all tenants who
terminate their tenancy, or who's tenancy expires, and vacate
the Landlord's properties. These forms, policies and process were
and are uniformly used with the Plaintiffs and with it's 184 rental
complexes in the State of Florida and were used by Landlord with
all tenants in Florida although the amounts of certain fees and
rentals varied.
9. The rental application form spells out certain deposits and
fees that are collected from a prospective tenant who contacts
a rental agent for the Landlord at any one of the 184 complexes
located in Florida. The fee is currently $50 per adult over the
age of 18 and $75 for married couples which is described as non-refundable.
The rental application form also requires a $99 application deposit
and requires an administration fee of $250 which are described
as non-refundable. The total fees that a prospective tenant must
pay in order to apply equals $399. These and similar forms are
and were used thoughout the State of Florida, including the Plaintiffs,
and are attached hereto as Exhibit "A". Other fees include
pet deposit fees broken down as a pet deposit of $150 per pet
which is described as refundable. However, in addition to the
pet deposit there is a pet sanitation fee of $200 per pet which
is described as non-refundable.
10. After filling out the application form and paying $399 the
tenant is not given a copy of the prospective lease. The terms
of the form lease are not disclosed on the Landlord's web site.
The tenant must agree to the following application deposit agreement:
Application Deposit Agreement - Each applicant for whom a credit check is run is required to pay the sum of $399, in consideration for Owner taking the dwelling unit off the market while considering approval of this application. Of this amount $50 is a non-refundable fee for processing the application and $250 is a non-refundable administration fee. The remainder $99 is an application deposit in connection with this application. If the Applicant is approved by Owner and the contemplated lease is entered into, the application deposit shall be credited to the required security deposit. If Applicant notifies the Owner that Applicant wishes to withdraw this Application for Rental prior to approval, or if Applicant is approved, but fails to promptly enter into the contemplated lease, then the entire sum of $349 shall be forfeited to the Owner. If the application is not approved, the non-refundable administration fee and the application deposit will be refunded. Keys will be furnished only after contemplated lease and other rental documents have been properly executed by all parties, and only after applicable rentals and security deposits have been paid. This application is preliminary only and does not obligate Owner or Owner's Agent to execute a lease or deliver possession of the proposed premises. I have read and agree to the provisions as stated.
11. After the prospective tenant has submitted the $399 deposit
and completed the application form for occupancy the Landlord
performs an investigation or personal background check on the
prospective tenant. If the tenant is approved his or her application
fee of $399 is applied as follows: $99 is applied to the security
deposit for the lease, $50 is kept by the Landlord as a non-refundable
screening fee for conducting the background credit check, and
$250 is also kept by the Landlord as a "non-refundable administration
fee". If the applicant is rejected then the tenant is refunded
$300 and the Landlord retains $99. If the applicant is accepted
then the tenant, for the first time, is shown the prospective
lease with all the various fees and other charges located on the
front page of the lease. A copy of the form lease used in all
transactions, including the Plaintiffs, in the State of Florida
is attached hereto as Exhibit "B".
12. The prospective tenant is given very little time to review
the lease. If the approved tenant does review the lease and rejects
its terms then the entire $399 deposit is kept by the Landlord
less the $50 screening fee. The prospective tenant is many times
asked to provide a "co-signer" to guarantee payment
of all obligations under the lease. The prospective tenant is
predominately inexperienced with commercial transactions and complicated
lease contract terms. The relevant provisions of said form lease
are outlined as follows:
RESIDENTIAL EQUITY PROPERTIES
STANDARD APARTMENT LEASE FLORIDA
TERM OF LEASE
BEGINNING [specific date] ENDING [specific date]
MONTHLY RENT: $_____ PER MONTH
MONTHLY CHARGES: $____ TOTAL MONTHLY RENT DUE
MONTH-TO-MONTH FEE: APPLICABLE AT LEASE TERMINATION
SECURITY DEPOSIT: [specific amount or $0]
EARLY TERMINATION FEE: [same as one month's rent] DUE WITH MANDATORY WRITTEN 60 DAY NOTICE OF TERMINATION PLUS ALL CONCESSIONS THAT WERE GIVEN AT TIME OF MOVE IN. SEE ALSO RENT CONCESSION PART OF LEASE
RENT CONCESSION
$____ OFF AUGUST OF 2001 RENT. TOTAL AMOUNT OF CONCESSIONS IS
$____ AND IS DUE BACK TO ______________ APARTMENTS IF ALL LEASE
TERMS ARE NOT FULFILLED ALONG WITH ALL OTHER APPLICABLE FEES.
SEE ALSO EARLY TERMINATION PART OF THIS LEASE.
LESSOR:
Equity Residential Properties Management Corp.,
as agent for the owner of [apartment complex]
STANDARD FLORIDA LEASE PROVISIONS
1. Rent. You agree that all fees
listed on the face of this lease, and all late fees, dishonored
check fees and any and all contractual fees shall be deemed as
an additional rent. The monthly rent is due at the lessors address
on or before the first day of each month without demand. ......
(e.s.)
...
4. Security Deposit. Before you may occupy the apartment you must pay us the full security deposit indicated on the face of this lease. Your security deposit is not prepaid rent but is a good faith deposit for your faithful fulfillment of each provision of this lease and as provided by state law, and as a contingency against damages to the apartment or premises of this community caused by you or your family, guest, or agents. This security deposit may not be applied by you to any rent payment. Your responsibility for damages under this lease is not limited to the amount of the security deposit, and we may use all the rights and remedies we are provided by law to recover all damages we sustain. The deposit or any portion of it that is returned to you may be returned in full to one Resident if all other residents have so authorized in writing or may be returned in one check payable to all residents. (e.s.)
5. Non-refundable fee
In addition to the rent in the security deposit provided here
in Resident agrees to pay a one time non-refundable fee as set
forth on the front of this lease. This fee in no way releases
Resident from the obligation of leaving the premises in as good
a condition as when received by Resident, reasonable use and wear
accepted. (e.s.)
....
11. Notice to vacate /removal
UNLESS EITHER YOU OR WE NOTIFY THE OTHER OF TERMINATION IN WRITING
AT LEAST 60 DAYS IN ADVANCE OF THE EXPIRATION OF THE ORIGINAL
LEASE TERM, THIS LEASE WILL NOT TERMINATE UPON ITS EXPIRATION,
BUT WILL REMAIN IN EFFECT ON A MONTH-TO-MONTH TENANCY SUBJECT
TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. If this lease
converts to a month-to-month tenancy, either party may terminate
the tenancy by giving the other party at least 30 days prior written
notice of termination. In the event Resident remains in possession
as a month-to-month tenant, lessor may raise the periodic rent
the first month of the month to month tenancy or anytime thereafter
by providing no less than 15 days notice of such rent increase.
During any such month-to-month tenancy Resident, in addition to
the payment of rent, shall pay lessor the month to month fee being
charged by lessor at the expiration of the lease term, which amount
shall be considered additional rent. Such month-to-month fee shall
be payable monthly and in addition to all other rent payments
due here under, at the same time and in the same manner as monthly
rent is paid by Resident to lessor. If we give you a notice of
the monthly rent increase as described in the immediately preceding
sentence you may then elect to terminate the lease effective on
the last day prior to the monthly rent increase by giving us notice
of your election to terminate no later than the date which is
either (a) 30 days prior to the monthly rent increase or (b) 15
days after receipt of our notice of a monthly rent increase, whichever
date is later. SUBJECT TO PARAGRAPH 14 BELOW IF YOU VACATE YOUR
APARTMENT WITHOUT GIVING US NOTICE AS REQUIRED UNDER THIS SECTION,
YOU WILL BE LIABLE FOR AN ADDITIONAL PAYMENT OF RENT AT THE SAME
RATE AS THE RENT FOR THE LAST MONTH YOU OCCUPY THE APARTMENT,
WHICH ADDITIONAL RENT PAYMENT SHALL BE CONSIDERED LIQUIDATED DAMAGES.
Except for extensions on a month-to-month basis as described above
in this section, renewals or extensions of this lease, must be
by written agreement signed by both you and us. If your lease
is not being renewed you grant us the right to inspect and show
need the apartment to prospective residents during normal business
hours during the last 30 days of your tenancy. (e.s.)
....
14. DEADLINE EARLY TERMINATION
A. RESIDENT SHALL HAVE THE RIGHT TO TERMINATE THIS LEASE PRIOR
TO THE LAST DAY OF THE LEASE TERM IF AND ONLY IF ALL OF THE FOLLOWING
CONDITIONS ARE MET: (I) WRITTEN NOTICE OF SUCH EARLY TERMINATION
(THE " EARLY TERMINATION NOTICE ") MUST BE GIVEN BY
RESIDENT TO LESSOR AT LEAST SIXTY (60) DAYS PRIOR TO THE EFFECTIVE
DATE OF SUCH TERMINATION (THE " EARLY TERMINATION DATE ");
(II) RESIDENT MUST NOT BE IN DEFAULT UNDER THIS LEASE EITHER ON
THE DATE OF SUCH EARLY TERMINATION NOTICE OR ON THE EARLY TERMINATION
DATE; (III) UNLESS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY
LESSOR, THE EARLY TERMINATION NOTICE MUST BE ACCOMPANIED BY A
PAYMENT OF ALL RENT PAYABLE THROUGH AND INCLUDING THE EARLY TERMINATION
DATE (RENT FOR ANY PARTIAL MONTH SHALL BE OF APPROPRIATELY PRO
RATED) PLUS THE EARLY TERMINATION FEE SET FORTH ON THE FACE OF
THIS LEASE; (IV) RESIDENT SHALL FULFILL ALL COVENANTS AND OBLIGATIONS
UNDER THIS LEASE APPLICABLE TO THE PERIOD PRIOR TO AND INCLUDING
THE EARLY TERMINATION DATE; (V) RESIDENT SHALL COMPLETELY VACATE
AND SURRENDER THE APARTMENT (AND STORAGE AND IF ANY) AND ACCORDANCE
WITH THE TERMS OF THIS LEASE; AND (VI) RESIDENTS SHALL OBTAIN
FINAL UTILITY BILLS AND PAY ALL OUTSTANDING CHARGES FOR UTILITY
SERVICES UP TO AND INCLUDING THE EARLY TERMINATION DATE.
B. IF YOU VACATE THE APARTMENT PRIOR TO THE EXPIRATION OF THIS LEASE AND YOU HAVE NOT COMPLIED WITH ALL OF THE PROVISIONS OF PARAGRAPH A ABOVE, YOUR LIABILITY TO PAY RENT SHALL CONTINUE UNTIL THE APARTMENT IS RERENTED OR THE LEASE EXPIRATION DATE, WHICHEVER IS SOONER. YOU SHALL ALSO PAY US ALL LAWFUL EXPENSES AND DAMAGES RESULTING THEREFROM INCLUDING BUT NOT LIMITED TO COURT COSTS, ATTORNEY'S FEES, AND ANY COSTS INCURRED IN RERENTING THE APARTMENT INCLUDING, WITHOUT LIMITATION, REPAINTING, CLEANING, AND PREPARING TO THE APARTMENT OF FOR RENTING. (e.s.)
15. Termination: Upon termination, you agree to vacate the community premises. When you vacate the apartment you agree to do so peacefully and returned possession of the apartment in like condition as when you receive it, reasonable wear and tear excepted.
16. Holding over: If you fail to deliver all keys in vacate the apartment on or before the termination of this lease you shall pay for the period of your holdover the sum equal to two times the daily rate for your apartment, or that of the maximum sum as provided for by state law, whichever is less. The daily rate for your apartment shall be calculated by dividing the monthly rent by the number of days in the applicable month. (e.s.)
....
31. Waiver of jury trial: The parties waive trial by jury on any
action arising in any way from Resident's tenancy and agree that
a nonjury trial is the selected form for adjudication of all actions
arising from the tenancy, exclusive, but not limited to cause
of action arising from contract and tort claims. (e.s.)
CLASS REPRESENTATION ALLEGATIONS
13. Once the tenant has taken occupancy of the apartment Landlord
imposes certain uniform policies which can be divided into three
categories of tenants:
a. Tenants that fail to pay their rent and must be evicted through
legal process
(Evicted Tenants). It is Landlord's policy to aggressively evict
those tenants who fail to pay their rent on time. Landlord uses
the same law firms to assure a uniform policy of eviction through
out the State. The landlord's policy on evictions is to first
have the tenant removed through a writ possession from the County
Court. After the tenant is effectively removed from the premises
the Landlord then re lets the premises within a relatively short
period of time. Landlord then directs legal counsel to prosecute
count two of the eviction complaint in County Court and obtain
a judgment against the evicted tenants for unpaid rent. Landlord
files an affidavit with the Court showing the date the premises
where re rented and the amount of unpaid rent from the date the
former tenant stopped paying rent until the premises are rented
to a new tenant. Landlord does not attempt to collect a so called
"early termination fee" or "lease fulfillment fee",
which constitutes one month's rent, and Landlord does not attempt
to collect a so called "insufficient notice - FBSS"
fee which can equal two additional months rent. It is Landlord's
uniform policy that it will not attempt to collect these "fees"
for additional rent from Evicted Tenants in County Court because
Landlord is aware and knows that the Florida Residential Landlord
Tenant Act, does not allow an award of damages for unpaid rent
that exceeds the amount of rent lost from date of default to date
of new tenant occupancy. Evicted Tenants are not part of the Class
as defined herein.
b. Plaintiffs Peter Miller, Maria L. Cruz and Jose Ortega and
other similarly situated tenants are tenants who moved or left
their apartment prior to the expiration of their rental term,
but who have paid all or most of their rents due up to the date
of moving, and shall be referred to as "Early Termination
Tenants". Landlord has a separate uniform policy for those
Early Termination Tenants. Since the Early Termination Tenant
has voluntarily removed him or herself from the apartment, eviction
and a writ of possession are not needed from the County Court.
Landlord first requires the Early Termination Tenant to execute
a "Notice of Intent to Vacate", see attached Exhibit
"C-1". After the Early Termination Tenant has vacated
the apartment the Landlord then sends a statement to the Early
Termination Tenants and their co-signers demanding payment, see
attached Exhibit "C-2". The statement demands the payment
of the "early termination fee" or "lease fulfillment
fee", which constitutes one month's rent, plus an "insufficient
notice - FBSS" fee which can equal two additional months
rent, for a total demand of up to three additional months of rent.
If the Early Termination Tenants or their co-signers fail to pay
this demand for "early termination fee" or "lease
fulfillment fee", plus an "insufficient notice - FBSS"
fee then Landlord will deduct all or a portion of its claim from
the Early Termination Tenants' security deposit or advanced rent.
If the Early Termination Tenants or their co-signers fail to pay
this demand then it is Landlord's uniform policy to enforce payment
of the demanded multiple rent. See the attached Exhibit "C-3".
These demands are made irrespective of when the apartment was
re rented and the Landlord's actual loss of rentals. Early Termination
Tenants and their co-signers who received a demand to pay multiple
rent for an "early termination fee", "lease fulfillment
fee", and/ or an "insufficient notice fee" within
the previous four (4) years are herein part of the Class.
c. Plaintiff Tammy Yates and similarly situated tenants are tenants
who have completed the full term of their rental agreement, vacated
their apartments at the expiration of that term, and have paid
all or most rents due, are referred to herein as "End of
Term Tenants". It is Landlord's uniform policy to send a
notice to these tenants approximately 80 days prior to the expiration
of their lease term requesting them to renew their lease. A copy
of this form notice is attached hereto as Exhibit "D-1".
It is Landlord's uniform policy not to disclose to End of Term
Tenants that Landlord intends to extend the lease term and to
charge the End of Term Tenants or their co-signers, an additional
two months rent at the expiration of the original lease term.
When the expiration of the lease term occurs, and the End of Term
Tenants move out of the apartment, the Landlord then sends a notice
to the End of Term Tenants and their co-signers, demanding that
they pay an additional two months rent, or "insufficient
notice-FBSS" fee, for their alleged failure to give a 60
day notice of renewal of their lease. A copy of this form statement
is attached hereto as Exhibit "D-2". If the End of Term
Tenants or their co-signers, fail to pay this demand then Landlord
will deduct all or a portion of this claim from the End of Term
Tenants' security deposit or advanced rent. If the End of Term
Tenants or their co-signers fail to pay this demand then it is
Landlord's uniform policy to enforce same just as it does for
Early Termination Tenants. See the attached Exhibit "D-3".
End of Term Tenants and their co-signers who received a demand
to pay multiple rent for an "insufficient notice fee"
within the previous four (4) years are herein part of the Class.
14. Landlord knows that it's collection methods described above
do not give it the legal right to collect multiple rent fees as
a claim against Early Termination Tenants and/ or their co-signers.
Landlord is fully aware of its rental vacancy rates and the length
of time it takes to relet its own apartments. The computation
of any lost rents from Early Termination Tenants is readily projected
prior to the execution of any lease with these tenants. The Landlord's
uniform policy is to always retake possession of the apartment
and relet the apartments immediately after vacancy. Under the
terms of its rental agreement Landlord has access to the apartment
to show new prospective tenants, which it does as a normal practice.
Charging Early Termination Tenants and/ or their co-signers multiple
rent for an "early termination fee", "lease fulfillment
fee", and/ or an "insufficient notice fee" is an
intentional practice which violates the provisions of Section
83.595, F.S:
(2) If the landlord retakes possession of the dwelling
unit for the account of the tenant, the landlord has a duty to
exercise good faith in attempting to relet the premises, and any
rentals received by the landlord as a result of the reletting
shall be deducted from the balance of rent due from the tenant.
For purposes of this section, "good faith in attempting to
relet the premises" means that the landlord shall use at
least the same efforts to relet the premises as were used in the
initial rental or at least the same efforts as the landlord uses
in attempting to lease other similar rental units but does not
require the landlord to give a preference in leasing the premises
over other vacant dwelling units that the landlord owns or has
the responsibility to rent.
Charging Early Termination Tenants and/ or their co-signers
multiple rent for an "early termination fee", "lease
fulfillment fee", and/ or an "insufficient notice fee"
is an intentional practice to impose a penalty charge which Landlord
knows is unlawful and is designed to take advantage of inexperienced
tenants who do not have the resources and ability to defend themselves.
15. Landlord knows that its collection methods described above
do not give it the legal right to collect multiple rent for an
"insufficient notice fee" as a claim against End of
Term Tenants and/ or their co-signers. The Landlord's uniform
policy is to always retake possession of the apartment and relet
the apartments immediately after vacancy. Under the terms of its
rental agreement Landlord has access to the apartment to show
new prospective tenants which it does as a normal practice. Charging
End of Term Tenants and/ or their co-signers multiple rent for
an "insufficient notice fee" is an intentional practice
to impose a penalty charge which Landlord knows is unlawful and
is designed to take advantage of inexperienced tenants who do
not have the resources and ability to defend themselves.
16. The Class of Early Termination Tenants, End of Term Tenants,
and their co-signers meet the requirements for Class Certification
under Rule 1.220 (b)(1) and (b)(2), Fla.R.C.P.:
a. Numerosity: The proposed Class, which consists of over 33,000
past and present Florida tenants and co-signers, is so numerous
that joinder of all members is impracticable.
b. Commonality: There are questions of law and fact which are
common to the Class, including whether charging multiple rent
for an "early termination fee", "lease fulfillment
fee", and/ or an "insufficient notice fee" is an
intentional but unlawful practice to impose a penalty charge and
whether the Landlord committed unlawful consumer collection practices
under the Florida Consumer Collection Practices Act or committed
deceptive, unconscionable and unfair trade practices under the
Florida Deceptive and Unfair Trade Practices Act all as alleged
herein.
c. Typicality: Plaintiffs' claims are typical of those of the
Class. The Plaintiffs allege the same type of injuries due to
Landlord's conduct, to wit: the statutory minimum of $500 damages
or the overpayment of multiple rent for "early termination
fee", "lease fulfillment fee", and/ or an "insufficient
notice fee", whichever is greater. The Plaintiffs have the
same interest in recovering damages, included statutory or actual
damages, from the Landlord.
d. Adequacy: Plaintiffs will fairly and adequately represent and
protect the interests of the class members, and Plaintiffs have
no interest antagonistic to those of the class. Furthermore, Plaintiffs
have retained counsel who are competent, experienced and committed.
e. Class Action under Rule 1.220(b)(3) — Predominance and
Superiority: The common issues outlined herein predominate over
any individual issues in the case and will be the focus of this
litigation. Furthermore, a class action is superior to other available
methods for the fair and efficient adjudication of this controversy
for the following reasons: (i) it is economically impracticable
for Class Members to prosecute individual actions because the
individual claims are so small; (ii) Plaintiffs are aware of no
other litigation concerning this controversy already commenced
by Class Members; (iii) it is desirable to concentrate these claims
in a single forum because no member of the Class has sustained
damages sufficient to warrant litigation of the claims separately;
(iv) there are no difficulties likely to be encountered in the
management of a class action.
Count I
Chapter 559 Part VI, the Consumer
Collection Practices Act
17. Paragraphs 1-16 are herein realleged.
18. Early Termination Tenants and End of Term Tenants are consumers
as they rent or have rented apartments in the last four (4) years
from Landlord for personal, family and household use. Landlord's
claim for multiple rent for "early termination fee",
"lease fulfillment fee", and/ or an "insufficient
notice fee", or portions thereof, is an attempt to collect
an alleged but unenforceable obligation or debt from Early Termination
Tenants, End of Term Tenants, and/ or their co-signers. Landlord
has, as a consistent practice, demanded that Early Termination
Tenants, End of Term Tenants and/ or their co-signers pay these
moneys all of which arise out of a transaction in which the moneys
demanded and housing services provided are primarily for personal,
family, or household purposes, whether or not such obligation
or debt has been reduced to judgment. Landlord has threatened
adverse credit reports, and has adversely reported to credit agencies,
all to the detriment of Early Termination Tenants, End of Term
Tenants and/ or their co-signers who have refused to pay these
alleged but unenforceable obligations for "early termination
fee", "lease fulfillment fee", and/ or an "insufficient
notice fee".
19. As a regular practice Landlord has, and continues to claim,
attempt, or threaten to enforce said obligation and debt for "early
termination fee", "lease fulfillment fee", and/
or an "insufficient notice fee" against Early Termination
Tenants, End of Term Tenants, and/ or their co-signers when Landlord
knew that said debt or obligation was not legitimate and a violation
of Section 83.595, F.S. and an unlawful penalty.
20. The Landlord's said practice violates the provisions of Section
559.72(9) Florida Statutes, giving rise to an action by Early
Termination Tenants, End of Term Tenants and/ or their co-signers
for actual damages for those who paid said obligation or debt
for "early termination fee", "lease fulfillment
fee", and/ or an "insufficient notice fee" plus
interest, or a minimum of $500 damages to those that did not pay
said obligation or debt but who were threatened with collection,
plus attorneys fees and costs all pursuant to Section 559.77 ,
F.S.
Wherefore, Early Termination Tenants, End of Term Tenants and/ or their co-signers pray that this court certify them as a class action and award them damages, attorneys fees and court costs and to further enjoin Landlord from continuing said practices. Early Termination Tenants, End of Term Tenants and/ or their co-signers further demand trial by jury on all issues triable by jury.
Count II
Chapter 501 Part II, the Florida Deceptive
and Unfair Trade Practices Act
21. Paragraphs 1-16 are herein realleged.
22. Early Termination Tenants and End of Term Tenants are consumers
as they rent or have rented apartments in the last four (4) years
from Landlord for personal, family and household use. Landlord's
claim for multiple rent for "early termination fee",
"lease fulfillment fee", and/ or an "insufficient
notice fee", or portions thereof, is an attempt to collect
an alleged but unenforceable obligation or debt from Early Termination
Tenants, End of Term Tenants, and/ or their co-signers. Landlord
has, as a consistent practice, demanded that Early Termination
Tenants, End of Term Tenants and/ or their co-signers pay these
moneys all of which arise out of a transaction in which the moneys
demanded and housing services provided are primarily for personal,
family, or household purposes, whether or not such obligation
or debt has been reduced to judgment. Landlord has threatened
adverse credit reports, and has adversely reported to credit agencies,
all to the detriment of Early Termination Tenants, End of Term
Tenants and/ or their co-signers who have refused to pay these
alleged but unenforceable obligations for "early termination
fee", "lease fulfillment fee", and/ or an "insufficient
notice fee".
23. As a regular practice Landlord has, and continues to claim,
attempt, or threaten to enforce said obligation and debt for "early
termination fee", "lease fulfillment fee", and/
or an "insufficient notice fee" against Early Termination
Tenants, End of Term Tenants, and/ or their co-signers, all of
which constitute unfair, deceptive and unconscionable trade practices.
Landlord's practice of not allowing a timely preview of the form
lease terms, imposing terms which attempt to require Early Termination
Tenants, End of Term Tenants, and/ or their co-signers to pay
penalties, and to deny all tenants the right of jury trial constitute
unfair, deceptive and unconscionable trade practices.
24. The Landlord' s said practices violate the provisions of Section
501.204, Florida Statutes, giving rise to an action by Early Termination
Tenants, End of Term, and/ or their co-signers, for actual damages
incurred plus attorneys fees and costs all pursuant to Section
501.2105 and 501.211, F.S.
Wherefore, Early Termination Tenants, End of Term Tenants and/
or their co-signers pray that this court certify them as a class
action and award them damages, interest, attorneys fees and court
costs and to further enjoin Landlord from continuing said practices.
Early Termination Tenants, End of Term Tenants, and/ or their
co-signers further demand trial by jury on all issues triable
by jury.
ROD TENNYSON, P.A.
Attorney for Class Plaintiffs
1450 Centrepark Blvd, Suite 100
West Palm Beach, Florida 33401
(561) 478-7600
By:_________________________________
ROD TENNYSON
Florida Bar No. 149479
BABBITT, JOHNSON, OSBORNE AND LECLAINCHE, P.A.
Attorney for Class Plaintiffs
1450 Centrepark Blvd, Suite 100
West Palm Beach, Florida 33401
(561) 684-2500
By:_________________________________
JOSEPH R. JOHNSON
Florida Bar No. 372250
Exhibits to the Complaint complaintexhibits.pdf
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