Student Apartment COVID Frustration of Purpose Frequently Asked Legal Questions

What is the basis for the lawsuits?

Many students rented apartments for the purpose of attending University classes in-person. In many cases, their landlords were aware of this reason for leasing the apartments. At the time the leases were signed, neither the student nor the landlord anticipated the risk of Coronavirus. When Universities discontinued in-person classes due to Coronavirus, the students’ purpose in renting their apartments was frustrated. Under the established legal doctrine of frustration of purpose, tenants may seek to excuse payment under the leases because their purpose has been frustrated.

What am I entitled to?

Tenants may be entitled to rescission of their leases, refund of rent paid under protest back to whenever the purpose of the lease was frustrated and the student moved out,[1] and statutory damages of up to $1000 per occurrence of unlawful collection activity (including written or oral assertions that the tenant owes rent), plus attorney fees.

What is the origin of the frustration of purpose doctrine?

The doctrine of frustration of purpose dates back over a century to a series of cases involving the coronation of King Edward VII and Queen Alexandra. The King fell ill with appendicitis two days before the planned Coronation and it was postponed. Parties who had rented apartments with views of the parade route sought rescission of their contracts because their purpose (viewing the procession) had been frustrated. In what were called the “Coronation cases” (not to be confused with the Coronavirus cases), courts generally held that the contracts were voided on the ground of frustration of purpose because the parties had intended to use the accommodations to view the celebrations.

Has the doctrine of frustration of purpose been applied in Florida?

Yes, the doctrine was recently applied in Loving Childcare v. Bre Mariner, 209 So.3d 622 (Fla. 5th DCA 2017), which involved a daycare center in a shopping plaza. The landlord and tenant specifically discussed doubts about whether the daycare would be able to obtain government approval to operate, and the parties proceeded with the lease anyway. Later, when the government denied permanent licensure, the tenant breached the lease. The appellate court allowed the tenant to defend the resulting lawsuit on the grounds of frustration of purpose.

In the case of student housing during Coronavirus, unlike in Loving Childcare, the risk of frustration of purpose due to Coronavirus was completely unforeseeable. The student tenants thus have an even better argument than Loving Childcare, and this case provides a good argument for tenants seeking to modify or terminate their leases due to Coronavirus. I discussed the case in further detail in a recent article.

Why is it the landlord’s problem if the school is closed?

Many landlords have deliberately sought University students as tenants. These landlords should accommodate students during this difficult time. Many landlords advertise that they are University-affiliated or at least close to campus. Most landlords near campus specifically market to University students. Some landlords even require that students maintain their status as students. Landlords often refer repeatedly to the University and its rules in their leases and state that they will report students to the University for misbehavior or breach of the lease (including its rent provisions.) Many landlords use wording, colors, or logos that imply affiliation with the University. In one case, a landlord has a ground lease with the University for the land that it built is apartments on! The more that the landlord has attempted to market to students and affiliate with the University, the more they subject themselves to a frustration of purpose argument.

What other arguments do you make?

Our arguments vary from landlord to landlord, lease to lease, and tenant to tenant. However, recurring themes are that amenities and common areas have been closed due to Coronavirus and that tenants have no way to enforce social distancing with other tenants, including other tenants in their apartment who have their own separate leases with the landlord. Students with particular medical conditions, or who have been impacted by Coronavirus in unique ways, my also wish to raise these issues.

What does my lease say about cancellation?

Some, but not most, leases contain provisions regarding the need to cancel the lease. Because no party could have anticipated Coronavirus before 2020, leases signed before that time generally do not address Coronavirus (or other pandemics.) More general provisions may be relevant, but must be evaluated on a case by case basis, and are still subject to general legal and equitable doctrines.

What other lease provisions might impact the lawsuit?

Some student leases state that the landlord is not obligated to provide you with an apartment at the inception of the lease term! These provisions state that if the landlord cannot provide you with an apartment within a certain period from the beginning of the lease, then the landlord can simply return any security deposit or rent payment and cancel the lease. In other words, the landlord isn’t actually obligated to do anything at all, they simply have an option to give you an apartment (or not) when you show up to begin your lease term. These provisions are very common in student housing leases. However, these provisions weaken the enforceability of the lease. Under the established legal doctrine of mutuality of consideration, both parties to an agreement must be bound if either is to be bound. Because the landlords have drafted their leases so that they are not bound, it is not proper for them to nonetheless hold the students to the leases.

How can I join the lawsuit against the landlords?

We have not filed a class action that is generally applicable to all students. As an initial matter, each landlord uses different lease language and engages in different practices, so the most straightforward way to proceed is to sue each landlord individually. A lawsuit filed against one landlord would not directly impact students renting at other properties, except to the extent that it established legal precedent upon which those students could rely in future litigation. Further, at this time we feel that the best way to obtain good results for our clients is to file an individual lawsuit by each student against that student’s respective landlord. Class actions are more complex and entail additional procedures. However, it is possible that we might decide in the future to represent a class. For now, however, if you want to be represented by us, you will need to retain us individually.

Who is eligible to file a lawsuit?

We are currently representing students who had leases for the 2019-2020 school year or the 2020-2021 school year, or both. If you had a lease and moved out of your apartment and did not return then you may be eligible to file a lawsuit. Further, if you have an upcoming or current lease going forward and you cannot or do not need to live on campus for the upcoming school year, you are also eligible to file a lawsuit.

I had an apartment lease that expires in summer of 2020. Am I eligible to file a lawsuit?

Yes. If you have not paid your rent, then we would seek a declaration that you are not liable for those rent payments. If you have paid some rent after you moved out of the apartment due to Coronavirus, then we would seek to recoup those payments. We may also seek damages for any unlawful collection calls or correspondence. Lastly, we would seek attorney fees as described below.

I have an apartment lease for the upcoming 2020-2021 school year. Am I eligible to file a lawsuit?

Yes, we would seek a declaration that the purpose of your lease has been frustrated due to Coronavirus and that you are therefore not liable for rent payments. We may also seek damages for any unlawful collection calls or correspondence. Lastly, we would seek attorney fees as described below. Due to the amount of rent due during the course of a full year’s lease term, you could save rent payments of approximately $10,000 if you prevail.

I had a lease for last school year and I have another lease coming up or I had already extended my lease when Coronavirus arose. Can you handle both matters?

Most likely yes. We would apply the doctrines and procedures outlined above as appropriate to each lease.

How can you recover attorney fees?

Most residential leases include provisions that if the landlord sues you to recover rent, they may collect attorney fees. Under Florida law, those provisions are reciprocal, meaning that if the tenant wins, then the tenant can then collect their attorney fees from the landlord. Further, certain statutory provisions, including Florida Statutes regarding unlawful collection practices, provide for attorney fees to be awarded to consumers.

What is the cost to file a lawsuit?

The hard costs to file a lawsuit are approximately $500, including filing fees and costs for a process server to formally serve the Defendant(s). These are the amounts we have to pay others to get the process started. As for our fee, depending on the facts and circumstances, we offer flat fee, hybrid hourly / contingency, or, in exceptional circumstances, costs only plus contingency arrangements. Typically, we will write a letter for $500 or file a lawsuit for $1500. If you start with a letter and then decide to file a lawsuit, then the $500 for the letter will be credited toward the $1500 for the lawsuit. All matters, without exception, require at least a nominal upfront investment by the client. If we recover costs or fees from the landlord, we will credit these back to you, based upon our particular arrangement.

How do you make money doing this?

In the event of a successful outcome, either through a judgment or settlement against a landlord, we would seek that the court award attorney fees against the landlord (or that the landlord pay the same in connection with a settlement.) We want to help students and we believe in this litigation. We are performing the work with only a nominal upfront payment and look to a successful outcome for our clients for our livelihood.

Who would you sue?

Most landlords have a management company, so most lawsuits are against both the landlord and the management company. There are therefore two defendants.

Will I get collection letters?

If you get a collection letter, we will respond and direct them to the lawsuit. This has happened to several clients. Each collection agency ceased communication or declined to proceed further after we responded.

Do I need to pay my rent while the lawsuit is pending?

That’s up to you. We are confident in our legal strategy, but you, and only you, are responsible for the consequences of your actions. If you choose to pay your rent, we recommend that you mark all payments as “under protest.” If you do not pay rent, it is possible that the landlord could turn you over to collections or report you to the credit bureaus. If the landlord or other parties act improperly, we might assert additional claims or seek additional compensation on your behalf. As part of any settlement or resolution of a matter, we would ask that the landlord agree to withhold or retract any derogatory remarks in a reference check or credit report.

How long will the legal process take?

This will depend on the court, judge, and docket to which your case is assigned to, which will in turn depend on where the property is located, the amount of rent and other damages at issue, and whether your lease has any provisions on where and how disputes are adjudicated. We can file a Complaint and initiate the process promptly after we are retained.

I am a parent who guaranteed a lease for my son or daughter. Can you help me?

Yes, this is the most common type of inquiry we receive. We can represent you and/or your child to assist with dealing with the landlord.

I would rather try and work something out with my landlord rather than sue. Can you help me?

We can help you. Most clients who have tried to negotiate with their landlords have been unsuccessful. Most landlords (and business generally) will not negotiate with you unless they think you are serious about asserting your legal rights. We have filed multiple lawsuits and so everybody knows we mean business. We can help you negotiate with your landlord if this is how you wish to proceed.

My lease has an arbitration clause, can I still litigate?

A few leases contain arbitration provisions. We can still litigate for you. Most consumer arbitration rules require the business that invokes the arbitration to over most of the fees paid to the arbitrators. Such cases may require special arrangements. Arbitration sometimes proceeds faster than litigation in court.

What are the costs and risks of proceeding?

We are confident in our legal strategy, but all litigation entails risks. If you do not pay your rent, you may be subject to collections attempts or the landlord may report you to the credit bureaus. If you lose, you might be ordered to pay the landlord’s attorney fees. We will work hard to mitigate these and other risks, but no party can guarantee the outcome of any litigation matter.

I have further questions.

Please email a copy of your lease and any correspondence to [email protected] Please include your home address and your telephone number, along with your email address, and confirm your ability to pay a retainer as outlined above. We will review and respond if we are able to accept your case.

Please note that review of this FAQ does not create an attorney-client relationship. This FAQ is for informational purposes only and is not legal advice applicable to your particular situation. You are not our client, and we are not your lawyers, unless and until you pay a deposit and receive a fully executed Engagement Agreement signed by both you and us.

[1] Many students moved out on March 13, 2020, at the beginning of Spring Break, when many schools closed for the semester.