LANDLORD/TENANT UPDATE

Vacating Premises Will Not Render Complaint Moot

In Gallahan v. Mair[1], the landlord had delivered two separate notices: a notice attached to the complaint dated January 4, 2005 requesting that the defendants vacate the premises by January 8, 2005, and a second notice undated but stated on its face that “you have 3 days to pay or you will be evicted within 5 days by the law – just so you know. You have until 1/17/05 to vacate the premises or they will put you out”.

The defendants argued that the Court lacked jurisdiction because a proper three-day notice was a condition precedent for an eviction complaint and that the two notices were conflicting and confusing and were defective as a matter of law and failed to meet the statutory requirements of Section 83.56(3) of the Florida Statutes.

The plaintiff argued that the notices did not conflict and that it didn’t matter whether they did or not because the defendants had already vacated the premises. The plaintiff argued, consequently, that the Court could simply proceed to the second count regarding money damages and never address the eviction issue.

The Court, however, disagreed and held that a precondition for an action for possession is service of a proper notice terminating the tenancy. If the plaintiff, in such an action, fails to invoke the court’s jurisdiction, in the first instance, by service of a proper three-day notice, less than all the requisite elements of a cause of action exist at the time the complaint is filed and the complaint must be dismissed without leave to amend.

Since the complaint should never have been filed in the first instance, the Court was not able to proceed to the plaintiff’s money damages claim. Notwithstanding, the Court retained jurisdiction to award attorneys fees and costs.

When Will Default NOT Entitle You to a Clerk’s Default

In Veco Investment, LLC v. Young Oil Company, Inc.[2], Veco Investments, LLC (“Veco”) entered into a gas station lease and petroleum purchase agreement with Young Oil Company, Inc. (“Young”). After a dispute, Young filed an eviction action and Veco did not file a timely answer. Young then moved for a clerk’s default without notice to Veco on March 23, 2004 and the clerk entered the default.

Veco moved to vacate the default on the grounds that notice of the application of the default was required under Fla.R.Civ.Pro. 1.500. The trial court denied the motion to set aside default and entered final judgment on April 6, 2004. Veco appealed.

Young’s complaint contained a series of exhibits documenting communication with Veco and its representative Sidney Brodie, a former attorney. It was clear from the communication that Young understood Brodie to be acting on the defendant’s behalf with Young copying Brodie on much of the correspondence. At no time did Young object to communicating with Brodie. In addition, there was evidence of extensive communication back and forth in an attempt to resolve the outstanding issues including tender of settlement checks to Young by Veco.

Young’s position was that communications from Brodie did not amount to “paper from the defendant”. Notwithstanding, the Court held, Young’s decision to copy Brodie on every letter regarding the eviction evidenced that it was communicating with Brodie on behalf of the defendant. The fact that Young had received settlement checks on behalf of Veco and had received letters by Veco’s acknowledged representative triggered the requirement of notice to the defendant prior to seeking the default.

The Court reviewed cases in which the defendant had defaulted but the court had determined that some action resulted in notice being required to the defendant prior to default: (i) out of state counsel, not admitted to the Florida Bar, sent a letter requesting information about the lawsuit; (ii) counsel’s letter advising he had not yet been retained; and (iii) a letter signed by a paralegal of a law firm. Each of the foregoing actions were held sufficient to require notice prior to entry of default.

Further, in the instant case, the Court held that issues of meritorious defense and excusable neglect were irrelevant where notice prior to default was required to have been given since the default was procedurally defective.

The default was vacated, the case reversed and remanded with directions to accept the defendant’s answer and proceed on the merits.

All Elements of a Cause of Action Must Exist at the Time of Filing

In Triangle Management & Investment Corp. v. Luke[3], the defendant made a motion to dismiss the plaintiff’s complaint for eviction. In finding for the defendant, the Court addressed a number of issues.

First, the court noted that the Three-Day Notice attached to the complaint was given on Thursday, April 7, 2005 and demanded payment “on or before the 11^th day of April, 2005”. April 8, day one, was a Friday. April 9 and April 10, Saturday and Sunday were excluded as weekend days. Since demand was for April 11 – the second day – insufficient notice was given.

Second, the plaintiff was a corporation and a corporation may not represent itself in a contested eviction action.

Third, 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 without leave to amend. The statutory right of an action for possession only accrues, the Court pointed out, upon the termination of the tenancy. The right to file an amended complaint relates back to the date of the original complaint. If the cause of action did not exist at the time of the initial filing an amended complaint cannot be filed. So no post-suit Three-Day Notice can be served and then if the defendant does not comply, the landlord terminate the tenancy and file an amended complaint since all of the elements of the action did not exist at the time of the initial filing.

It then follows that if an essential element of the plaintiff’s action is missing at the time of the filing, the tenant need not make a deposit of rent into the Court Registry. Since, in the instant action, the Three-Day Notice was fatally defective, and, therefore, the plaintiff failed to terminate the rental agreement prior to filing the Complaint with the Court, the defendant was not required to make a deposit with the Court.

Since the Three-Day Notice was defective and plaintiff’s failure to terminate the rental agreement prior to filing the Complaint for tenant eviction, the Complaint was dismissed without leave to amend.

In Custom Homes of South Florida (sic) Custom Homes of South Florida, Inc. v. Atterbury[4], the defendant moved to dismiss and the Court granted the defendant’s motion based on the following:

The Three-Day Notice attached to the Complaint was fatally defective because it was on the letterhead of Custom Homes of New England and listed their address as being in Massachusetts. At the bottom of the page the notice indicated that it was being given by Custom Homes of South Florida but their address was located in Delray Beach, Palm Beach County, Florida. Because the landlord was located in a different city and county than the leased premises, the Court held, the tenant should have been given the opportunity to mail the rent or keys. The tenant should not have been required to drive to Delray Beach, Florida or South Easton, Massachusetts to make delivery. Consequently, the Court held, the notice should have given the tenant five (5) days to perform rather than three (3) days.

In addition, the Three-Day Notice was defective because it sought bounced check fees and bounced check fees are not rent and may not be demanded in a Three-Day Notice unless there is a written lease agreement which defines such fees as “rent” or “additional rent”.

Since the plaintiff failed to terminate the rental agreement, plaintiff had no right to file the Complaint and the tenant was not required to make a deposit into the Court Registry.

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