FLORIDA LANDLORD/TENANT UPDATE
MONEY, MONEY, MONEY, MONEEEYYY…PAYMENT INTO REGISTRY
In Barfield v. Busby1, Ms. Busby had filed for a non-payment eviction against the Barfields. Each of the Barfields filed a separate Answer, Affirmative Defense, Motion to Dismiss and Counterclaim. Neither Barfield deposited rent into the Court Registry nor did they file a Motion to Determine Rent to be deposited therein.
Ms. Busby filed a Motion for a Court’s Default. Final Judgment of Possession was entered as well as a Writ of Possession. The Barfield’s appealed.
The Barfields argued that since they served a notice of material noncompliance pursuant to section 83.51(1), Florida Statutes, they had presented a complete defense to an eviction for non-payment of rent and that no money was required to be deposited in the Court Registry.
The Appellate Court pointed out that Section 83.60, Florida Statutes, clearly states that serving a notice under Section 83.51(1) is a defense to an action for non-payment of rent only if the tenant deposits rent because the basis for the defense is other than payment.
The Barfield’s also alleged that the three-day notice conflicted with the complaint as to the amount of the rent due and therefore the action for eviction should have been dismissed. The Appellate Court stated that Section 83.60(2) provided relief in such a circumstance: filing of a motion to determine the amount of rent due within five days of service of the summons. Since the Barfields failed to file such a motion, entry of final judgment for possession was proper and the Appellate Court affirmed.
Deposit Requires Valid Three-Day Notice
In Scott v. Gurrera2, on appeal the Court vacated a default judgment for failure to deposit rent into the court registry because the Landlord had served a fatally defective Three-Day Notice. The Court reiterated that a statutory prerequisite to the commencement of a tenant eviction for non-payment of rent is that the landlord must first give a valid Three-Day Notice to the tenant. Nor can a new Three-Day Notice and amended complaint revive the landlord’s claim.
Without a valid Three-Day Notice, the landlord never properly terminated the rental agreement and the statutory right of an action for possession never accrued.
The Appellee/Plaintiff was required to pay the Appellant/Defendant’s counsel’s attorney fee.
In Ardelean v. Vinyard3, the defendant had made a Motion to Dismiss Plaintiff’s Complaint with Leave to Amend and a Motion for Judgment on the Pleadings based upon defendant’s allegation that the Plaintiff prematurely filed the eviction action prior to terminating the defendant’s rental agreement. Consequently, the defendant alleged, the plaintiff had no right to commence the eviction proceeding.
The Court held that until the Court heard and ruled on the defendant’s motions, there was no requirement for the defendant to post rent into the court registry nor could a default judgment be entered against the defendant for failure to post rent into the court registry since the requirement to post rent only applies if the landlord has lawfully terminated the rental agreement.
Defective Three-Day Notice
In Bilby v. Randall4, the Three-Day Notice given by the landlord was given on February 10, 2004 and demanded payment or possession on or before February 10, 2004 – giving tenant zero days to pay or vacate.
Since on the face of the Complaint and exhibits annexed thereto, it was clear that the landlord had failed to lawfully terminate the rental agreement, the Court held, the Court had no authority to require that the tenant post rent and/or enter a default judgment for the tenant’s failure to do so. Indeed, the Court stated, an essential element of the plaintiff’s case failed; namely, that the rental agreement had been terminated. Since less than all the requisite elements of the cause of action for tenant eviction were in existence when the Complaint was filed, the Complaint was dismissed with prejudice and without leave to amend. See, also, O’Connor v. Shebes, 11 Fla. L. Weekly Supp. 752b (Fla. 17th Jud. Cir. 2004)(premature filing after giving zero days to vacate).
In Meyers v. Kessel5, the defendant made a Motion to Dismiss Plaintiff’s Complaint for Tenant Eviction Without Leave to Amend and a Motion for Judgment on the Pleadings based on plaintiff’s failure to effectively terminate the rental agreement.
Upon reviewing the Plaintiff’s Complaint, the Court held that it failed to state a cause of action for tenant eviction because the Three-Day Notice (a) gave the tenant until February 24, 2004 to pay or vacate but the plaintiff prematurely filed his Complaint on February 24, 2004; (b) wrongfully notified the tenant to vacate, quit and deliver the premises “you hold as our tenant”; and (c) it wrongfully notified the defendant that he could reinstate his tenancy – thereby acknowledging that at the time plaintiff gave the notice, he had wrongfully terminated defendant’s rental agreement or there would be no tenancy to reinstate. Finally, the Three-Day Notice acknowledged that rent was paid monthly and there is no such thing as a Three-day Notice; to terminate a month-to-month tenancy, a proper Fifteen-Day Notice must be given.
Due to the fatally defective Three-Day Notice, and plaintiff’s failure to terminate the rental agreement, prior to filing the Complaint for eviction, an essential element of plaintiff’s cause of action was missing and, therefore, there was no requirement for the tenant to deposit rent into the Court Registry.
Since less than all the requisite elements of the cause of action for tenant eviction were in existence when the Complaint was filed, the Court dismissed the Complaint with prejudice and without leave to amend. Once again, the Court pointed out that a statutory cause of action cannot be commenced until the plaintiff has complied with all conditions precedent.
In LeMesurier v. Lathan,6 the defendant made a Motion to Dismiss Plaintiff’s Complaint for Tenant Eviction Without Leave to Amend and Motion for Judgment on the Pleadings.
The Court reviewed the Three-Day Notice attached to the Complaint and held that it was fatally defective, failed to terminate the rental agreement, and plaintiff had no cause of action because: (a) it demanded both money other than rent and money in excess of the rent owed by demanding security, which security is not rent and not permitted to be demanded in a Three-Day Notice; (b) it failed to state who the landlord was; and (c) it demanded payment or possession on a day that the Clerk’s office was closed. See, also, Harobor Inn of Coral Springs Assocs. Ltd. v Piccirillo, 11 Fla. L. Weekly Supp. 753 (Fla. 17th Jud. Cir. 2004)(Three-Day Notice demanded payment on legal holiday – Clerk’s office was closed).
Further, the Three-Day Notice was signed by KV, as authorized agent for an unstated landlord; the Complaint was filed by and signed by LH. Consequently, the Court reasoned, if KV was the authorized agent of the plaintiff, then LH had no standing to file the action. If LH was the authorized agent of the plaintiff, then neither had given the tenant a pre-suit notice as required by Chapter 83 of the Florida Statutes. Due to the defective Three-Day Notice, no deposit of rent into the Court Registry was required.
In addition, the plaintiff alleged in the Complaint that the oral agreement expired by timely notice given of such termination. The Court pointed out that a month-to-month tenancy may only be terminated by the giving of a fifteen-day notice given in advance of the end of the monthly rental period for which the oral month-to-month tenancy would be terminated on the last day of the month at midnight. The Court dismissed the Complaint with prejudice without leave to amend.
In Barber v. Fain,7 the plaintiff’s non-renewal notice clearly stated that the tenant was to vacate on or before May 14, 2004. The earliest that the tenant could have terminated would have been 12:01 A.M. on May 15, 2004 and the earliest that plaintiff could have commenced the eviction action would have been May 17, 2004.
Notwithstanding, the plaintiff prematurely commenced the eviction action on May 14, 2004 only giving the tenants until May 13, 2004 to vacate prior to wrongfully terminating their rental agreement. Case dismissed with prejudice without leave to amend.
In Holness v. Freeman/Weeks8, the Court was faced with the premature commencement of an action since the Three-Day Notice sought payment or possession on or before April 27, 2004 and the plaintiff commenced on April 26, 2004. That not being bad enough, the plaintiff gave the defendant a post-suit notice. Clearly, the post-suit notice rendered the pre-suit Three-Day Notice a nullity and automatically entitled the defendant to a final judgment as a matter of law.
It cannot be too strongly stated: a Three-Day Notice may only demand RENT – nothing else. In Stotsky Holdings, LLC v. Simmons9, the Court dismissed the action because the Three-Day Notice demanded late charges as well as security. In O’Connor v. Shebes10, the Court dismissed because the Three-Day Notice demanded arrears for utility bills.
The Court in O’Connor v. Shebes11 also reiterated the rule that when the landlord’s address is in a different city and state, the tenant is entitled to mail the rent or keys to the landlord’s address. Accordingly, pursuant to Rule 1.090(e) of the Florida Rules of Civil Procedure and Florida Case Law, the defendant was entitled to eight (8) days to pay or vacate rather than three (3) days and any Three-Day Notice giving less than eight is fatally defective.
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1 11 Fla. L. Weekly Supp. 396 (Fla. 9th Jud. Cir (Appellate) 2004). 2 11 Fla. L. Weekly Supp. 480 (Fla. 17th Jud. Cir. 2004). 3 11 Fla. L. Weekly Supp. 481a (Fla. 17th Jud. Cir. 2004). 4 11 Fla. L. Weekly Supp. 481b (Fla. 17th Jud. Cir. 2004). 5 11 Fla. L. Weekly Supp. 482 (Fla. 17th Jud. Cir. 2004). 6 11 Fla. L. Weekly Supp. 750b (Fla. 17th Jud. Cir. 2004). 7 11 Fla. L. Weekly Supp. 751 (Fla. 17th Jud. Cir. 2004). 8 11 Fla. L. Weekly Supp. 756c (Fla. 17th Jud. Cir. 2004). 9 11 Fla. L. Weekly Supp. 752a (Fla. 17th Jud. Cir. 2004). 10 11 Fla. L. Weekly Supp. 752b (Fla. 17th Jud. Cir. 2004). 11 11 Fla. L. Weekly Supp. 752b (Fla. 17th Jud. Cir. 2004).