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A tenant was served with an eviction April 24, 2008 and filed an answer on April 28 admitting non-payment of rent. The court granted the eviction on May 2nd. On May 5th Tenant hired and attorney who filed a motion to reconsider based on a defective 3 day notice. The court ruled that in order to defend based on a defective 3 day notice the tenant must: 1) allege that the undisputed portion of the rent has been paid or tendered to the landlord before the 3 day notice was up 2) deposit the undisputed rent into the court registry 3) request a rent determination hearing (supported by adequate documentation that the amount of rent demanded by the landlord was more than was actually due).

The court ruled that the failure of the tenant to deposit the undisputed rent with the court was a waiver of the tenant’s right to raise a defense of defective or lack of notice. The court emphasized that all of the tenants arguments : failure to terminate the tenancy,failure to state a claim, and failure of a condition precedent – are all defined as “defenses.” The statute provides “failure of the tenant to pay the rent into the registry of the court … constitutes and absolute waiver of the tenant’s defenses other than payment.”

Paradise Realty v. Percy Johnson 08-6213 COCE (53) 15 Fla.L. Weekly Supp. 739a