LANDLORD/TENANT UPDATE
RETOOK POSSESSION AND WANT FINAL JUDGMENT?
In Olen Residential Realty Corp. v. Romine,1 the Court addressed the plaintiff’s right to damages after the plaintiff took back possession following an eviction proceeding.
Count II of the Complaint sought rent for January 2004 plus “complete rent through the term of the lease” plus “contractual fees.” The defendant had deposited a portion of the January rent into the Court Registry but had failed to deposit February rent.
The Court’s opinion focused on the plaintiff’s request for liquidated damages in the amount of three times monthly rent plus all of March rent together with a rental concession fee of $1,774 for a total liquidated damages fee of about five months’ rent. At trial, the plaintiff had presented no evidence of a good faith effort to re-let the premises despite the fact that the complex had an average occupancy rate of 98%.
In reviewing the enforceability of liquidate damages clauses, the Court stated that a “liquidated damages” clause must fail if an option is granted to the landlord to either choose liquidated damages or to sue for actual damages because it indicates an intent to penalize the defaulting tenant and negates the intent to liquidate damages in the event of breach. Since, the option means that neither party intended the liquidated damages sum to be the agreed-upon measure of damages, the provision is invalid.
Several provisions in the subject lease provided for a “liquidated damages” figure while additional provisions granted the plaintiff its full remedies under Chapter 83 F.S. against the defendant tenant even if those damages exceeded the “liquidated damages” sums. Consequently, the Court held, no agreed-sum for damages had been established between the parties to the lease and the liquidated damages clause was unenforceable.
Next, the Court addressed Section 83.75 F.S., which provision specifically permits liquidated damages but only as applied to tenants at the end of their lease. Since, the defendant in this case had been evicted and was not at the end of his lease, the Court held, the plaintiff had no remedy under Section 83.75 F.S. Rather, the Court held, Section
83.595 F.S. of the Florida Residential Landlord Tenant Act (the “Act”) governs the plaintiff’s measure of damages. The Act prohibits a landlord from collecting “double rent” and any lease provision in violation of the Act is void.
Pursuant to the Act:
1. if the tenant breaches and the landlord takes possession or the tenant delivers possession or has abandoned, the landlord may:
2. if the landlord retakes for the tenant’s benefit, the landlord has a duty to exercise good faith in attempting to re-let and must credit the tenant’s account for any rentals received therefor. Good faith is defined to mean that the landlord will use the same effort he were to use in the initial effort to rent the premises but doesn’t have to give the premises a preference in leasing over other available units.
Consequently, the landlord has an affirmative duty to mitigate damages in the event that he retakes possession for the benefit of the tenant.
Since the plaintiff, at trial, presented no evidence that it had made a good faith effort to re-let the premises, the Court presumed that the plaintiff took possession for its own account and the plaintiff’s damages were limited to unpaid rent, plus utilities and water to date of retaking, late fees incurred prior to retaking on March 3, 2004 when the tenant’s liability terminated plus court costs and attorney’s fees.
BANKRUPTCY STAY FOR TENANT’S BENEFIT – NOT THIS TIME.
In Mincey v. Leicht2, the plaintiff commenced an eviction proceeding against the defendants on July 22, 2004. One of the defendants, Jeffrey Leicht (“Jeffrey”), answered and the Court set a Rent Determination Hearing for August 5, 2004 ultimately requiring that Jeffrey deposit $3,500 no later than August 9, 2004.
On August 6, 2004, Jeffrey filed a written request arguing that the eviction should be stayed and he should not be required to deposit rent because the plaintiff filed Chapter 13 and that the plaintiff may not, without bankruptcy court leave, commence an eviction proceeding.
Notwithstanding, pursuant to 11 USC §362(a)(1), the Court held, the filing of a bankruptcy petition operates as a stay of a judicial, administrative, or other action or proceeding against the debtor only. In addition, the Court stated, since, under the bankruptcy act, the debtor’s projected disposable income is applied to payment under the bankruptcy plan, and rent is part of disposable income, arguably, the debtor was obligated to commence the eviction proceeding. Consequently, the Court held, no leave of the Bankruptcy Court or Chapter 13 Trustee was required prior to commencing the eviction proceeding.
COUNTY COURT PROPERLY STRUCK COUNTERCLAIM
In Mosseri v. Olen Residential Realty Corp.3, the appellate court made short shrift of the appellant’s contentions.
As an initial matter, the Appellant contended that the lower court erred in entering the final default judgment arguing that the trial court lacked jurisdiction over the issues, that the order and judgment were based on misrepresentations and that double rent was not warranted.
The Appellant cited Jafra Steel Corp. v. City of Miami, 174 So.2d 624 (Fla. 3d DCA 1965) for the proposition that a county trial court lacks jurisdiction to rule on a motion to strike a counterclaim that exceeds the jurisdictional limit of the county court because jurisdiction lies with the circuit court. However, the Appellate Court pointed out, that decision had been reversed by the Florida Supreme Court in City of Miami v. Jafra Steel Corp., 184 So.2d 178 (Fla. 1966).
The Appellant next contended that the summons was defective but made no reference to the record. The Appellate Court thoroughly reviewed the record, found good service and, consequently, refused to disturb the presumption that the trial court had jurisdiction.
Next, the Court held, the Appellant’s contention that the order and judgment were based on misrepresentations was also not supported by the record. Where the trial court makes no specific findings of fact in its final judgment, the reviewing court must accept the facts to be those shown by the evidence most favorable to the prevailing party, the Court stated. Based on that presumption, the Court held that the trial court’s decision was supported by substantial competent evidence and the Appellant had failed in his burden of demonstrating error.
Finally, the Appellant contended that double rent was unwarranted. The Court disposed of that argument simply by citing to Florida Statute §83.58, which statute clearly states that the landlord may recover double rent at the end of a lease term if the tenant fails to surrender possession.
You guessed it, the Appellant was not represented by counsel.
P.O. BOX THREE-DAY NOTICE NEEDS MORE TIME
In 2918 Jackson Street LLC v. Ocasio4, the defendant filed Motion to Dismiss Plaintiff’s Complaint for Tenant Eviction without Leave to Amend and Defendant’s Motion for Judgment on the Pleadings.
The plaintiff had attached a three-day notice to the complaint. The Court held that the three-day notice was defective on its face and failed to comply with Section 83.56(3) of the Florida Statutes because it listed the landlord’s address and place for payment of rent as a post office box without giving the defendant an additional five (5) days for mailing as required by Rule 1.090(e) of the Florida Rules of Civil Procedure and Florida Case Law. Since it is impossible to deliver rent or keys to a post office box, an additional five days must have been allowed for the mailing thereof.
Since the defective notice did not terminate the lease, a predicate condition to the commencement of the eviction proceeding and an essential element of plaintiff’s case, there was no requirement for defendant to pay rent into the Court Registry.
The defendant’s motions were granted and the defendant was held the prevailing party.
MORE DEFECTIVE NOTICES
In Lee v. Partone5, the Court once again addressed the issue of defective notice.
The plaintiff had attached a three-day notice to the Complaint. The Court held that it was fatally defective, failed to terminate the defendant’s rental agreement, and, consequently, at the time of filing the action, the plaintiff had no cause of action for eviction.
Specifically, the three-day notice was defective because it (i) demanded that the tenant vacate within six (6) days for failing to pay a security deposit even though a security deposit is not rent and may not be demanded in a three-day notice; and (ii) did not give the defendant the opportunity to pay and remain in possession (remember, you pay – you stay).
In addition, the Complaint was fatally defective (i) because it alleged that an oral agreement had expired by timely notice given and the defendant refused to vacate but the three-day notice established that the tenancy was a month-to-month tenancy and Florida law does not authorize a three-day notice or six-day notice to terminate a month-to-month tenancy – a fifteen (15)-day notice is required to have been given and must terminate on the last day of the rental period at midnight; and (ii) it sought to evict the tenant for having a dog over 25 pounds, but neither the three-day notice or the six-day notice met the requirement that the tenant be given a seven-day notice to cure.
Since the notices were statutory, they could not be corrected in the same case, and the Defendant’s Motion to Dismiss without Leave to Amend was granted.
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1 11 Fla. L. Weekly Supp. 840b (15th Jud. Cir.). 2 11 Fla. L. Weekly Supp. 933b (17th Jud. Cir.). 3 11 Fla. L. Weekly Supp. 976a (17th Jud. Cir. (Appellate)). 4 11 Fla. L. Weekly Supp. 1016a (17th Jud. Cir.). 5 11 Fla. L. Weekly Supp. 1017 (17th Jud. Cir. )