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Where a landlord issued a defective 3-day notice and filed and eviction based on it,  the landlord can not cure the defect by issuing another 3-Day Notice after the case has been filed.

A landlord issued a 3-day notice dated June 18, 2004 demanding payment of monthly rent which was payable on the 23rd day of each month.  The 3-day notice demanded payment for April 23,  May 23, and June 23 2004 monthly rental payments.  Since the June rent was not due yet, the landlord was not entitled to demand it.  Florida Statutes Section 83.56(3) states that the 3-day notice to pay rent can only be given when the rent is in default.

Therefore the 3-day notice was defective and as a result the rental agreement was not terminated.  Florida Statutes Section 83.59(1) requires that the rental agreement be terminated before an eviction action may be filed.  Therefore the landlord was not entitled to file the eviction action.  As the landlord had  no right to file the action,  the court had no right to grant the landlord any relief.  Therefore the court can not require the tenant to post rent claimed in the court registry, or enter a default against the tenant for failure to so post, or even for failure to file an answer.  A statutory cause of action can not be commenced until the Plaintiff has complied with all of the conditions precedent.

The landlord filed suit on July 23, 2004 pro se (without an attorney).  Even though the landlord had waited another month,  his suit was still subject to dismissal because the 3-day notice was defective at the time it was issued.  The landlord attempted to cure his mistake by issuing another 3-day notice on August 6, 2004 demanding payment by August 12, 2004.  But by demanding rent and providing that the tenant had an additional time in which to pay it,  the landlord reinstated the tenancy and cancelled out the previous 3-day notice which he filed suit on.  The law in Florida as to post-suit notices is that they render the original notice a legal nullity.  The issuance of a post suit notice automatically entitled the tenant to a judgment against the landlord as a matter of law.  The result was that the case against the tenant was dismissed on August 27, 2004 and a judgment entered against the landlord for the tenant’s attorneys fees.  Thus, with the rent now five months delinquent, and a judgment  to pay the tenant’s attorney,  the landlord went to find an attorney of his own…

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