LANDLORD/TENANT UPDATE
In Jones Walker Palm Gardens Associates Joint Venture v. Jackson1, the plaintiff had served the tenant with a notice of lease termination, which notice indicated that the lease was being terminated due to “poor housekeeping”.
The Court held that the plaintiff’s notice failed to provide adequate factual specificity and detail with respect to the nature of the tenant’s alleged non-compliance. Pursuant to Section 83.56(2)(a) of the Florida Statutes, the Court stated, to terminate a tenancy for noncompliance, the landlord must “deliver a written notice specifying the noncompliance.” Plaintiff’s notice failed to provide the defendant with sufficient information to enable her to prepare her defenses in an eviction action – such specificity might include dates and precise nature of the “poor housekeeping”.
In addition, the notice failed to provide the tenant with a seven (7)-day period in which to cure the noncompliance prior to the landlord’s termination of the lease.
Since proper notice to the tenant is a predicate to maintaining an action for eviction and the notice delivered to the defendant was defective, the lease was not properly terminated and the plaintiff had no cause of action for eviction.
In addition, because the lease was subsidized by HUD, the plaintiff was required to commence its eviction action within forty-five (45) days of the non-compliance alleged in the plaintiff’s written notice terminating the lease. Having failed to do so, the plaintiff waived its right to terminate the tenant’s HUD subsidized agreement.
In Forsythe v. Roth2, the Court held that the three-day notice served by the plaintiff was defective on its face because it demanded a $25.00 late charge in addition to rent.
Under Section 83.56(3) of the Florida Statutes, the Court stated, unless there is a written lease agreement and that lease agreement specifically defines late charges as rent or additional rent, they may not be demanded in a Three-Day Notice.
Prior to filing the Complaint for eviction, the plaintiff was required to first, serve a valid Three-Day Notice; and second, terminate the tenant’s lease. Had the plaintiff done so, the tenant would have been required to post the rent into the Court Registry in order to avoid a default judgment.
Since at the time that the plaintiff commenced the action for eviction, plaintiff had not served a proper Three-Day Notice and properly terminated the lease, the tenant was not required to make a rent deposit with the Court Registry.
Since the plaintiff was required to serve a Three-Day Notice that strictly complied with the statutory requirements of Section 83.56(3) of the Florida Statutes and failed to do so, the plaintiff could not serve a new three-day notice and file an amended complaint in the action. 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 action without leave to amend.
In Goodson v. Rickie Castro & Nick3, the plaintiff accepted a partial payment of rent and thereafter served the tenant with a Notice to Vacate. The Court stated that Section 83.56(5) of the Florida Statutes provides that if the landlord accepts rent with actual knowledge of noncompliance, the landlord waives the right to terminate the lease or bring action based on the noncompliance.
Partial payment of rent is an act of noncompliance, the Court held. In addition, at the time the partial payment was accepted, the plaintiff had actual knowledge that the tenant was in noncompliance with the terms of the lease. Consequently, the Court held, the complaint failed to state a cause of action because the plaintiff had waived the right to commence an action based on the noncompliance.
In addition, the Notice to Vacate was fatally defective because it was dated August 13, 2004 and demanded payment of rent or possession within three days from the date of the delivery of the notice; here, on or before August 18, 2004. However, the address for the landlord in the Notice to Vacate was a post office box; consequently, the Court held, five days should have been added to the date of performance since the tenant could not deliver to a post office box address.
Since the Notice to Vacate was defective, it could not operate to terminate the tenant’s lease. If the lease was not properly terminated prior to the filing of the eviction action, no such cause of action existed and no judgment could be entered in the landlord’s favor.
Finally, the Notice to Vacate indicated that the tenant had always paid rent late. The Court, relying on prior case law, held that where there was a pattern of accepting late payments, the plaintiff was under an “affirmative duty to place the tenant on advance notice that untimely payments would no longer be accepted.” There was no indication in the instant case that the plaintiff ever notified the tenant that late payments would no longer be accepted and the Court dismissed the action without leave to amend.
In Lakes of Welleby v. Reynolds4 , the landlord had served a Three-Day Notice on the tenant. Thereafter, the landlord elected to give the tenant an additional period of time to pay the rent after initially serving the Three-Day Notice and served an additional Three-Day Notice.
Unfortunately, the plaintiff filed the eviction action prior to the expiration of three-daywaiting period applicable to the second Three-Day Notice. Consequently, the Court was required to dismiss the action.
In Royal Orleans LLC v. Montgomery5, the plaintiff served a notice dated September 1, 2004 and included a demand for September rent. The Court held that the September rent was not in default because the first day that demand for rent owed in September could be made was September 2. Consequently, plaintiff’s Three-Day Notice given on September 1, 2004 was premature.
However, the Court held, even if the plaintiff had given the Three-Day Notice on September 2, 2004, it would have been fatally defective on its face as it demanded payment or possession on September 7, 2004. The Court stated that Friday, September 3, 2004, would be day number one. Saturday and Sunday are excluded as weekend days. Monday, September 6, 2004 was excluded as a legal holiday (Labor Day) for which the clerk’s office was closed. September 7 would have only been the second day with the plaintiff filing its eviction action prematurely on September 8.
Alternatively, the Court stated, Section 83.56(3) of the Florida Statutes defines legal holidays as Court observed holidays or when the clerk’s office is closed. If the notice was served on September 1, 2004, the clerk’s office was closed on September 2nd and 3rd due to the hurricane, September 4th and 5th were excluded as weekend days, September 6 was excluded as Labor Day leaving September 7 as day number one with a premature filing on September 8, 2004.
Consequently, either way, the defendant’s motion to dismiss without leave to amend was granted since the rental agreement was not terminated prior to filing the eviction complaint.
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1 12 Fla. L. Weekly Supp. 182b (County Court, Lee County, November 4, 2004.) 2 12 Fla. L. Weekly Supp. 173b (County Court, Broward County, September 13, 2004.) 3 11 Fla. L. Weekly Supp. 74 (County Court, Columbia County, October 13, 2004.) 4 11 Fla. L. Weekly Supp. 102a (County Court, Broward County, October 20, 2004.) 5 11 Fla. L. Weekly Supp. 100 (County Court, Broward County, September 20, 2004.)