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Does the landlord’s defective 3 Day Notice or the tenant’s failure to post the rent decide the case ?

The various county courts of Florida have been in a long and heated disagreement over whether a defective 3 day notice from the landlord,  or the tenant’s failure to post the undisputed rent in the court registry determines the case.  The 4th District Court of Appeals (Palm Beach County, Broward County, St. Lucie County, Martin County, Indian River County, and Okeechobee County ) recently ruled in Stanley v. Quest International Investment, Inc., 50 So.3d 672 2010,  that where a landlord filed with an allegedly defective 3 day notice,  but the tenant had failed to post the rent into the court registry,  that the landlord was entitled to an immediate default judgment of possession.   More recently a Volusia County Court disagreed.  In Boyles v. Ziegler, County Court for Volusia County 2011 (18 Fla.L. Weekly Supp 912a) the court dismissed the eviction for defective 3 day notice even though the tenant had not posted any rent in the court registry.   The Volusia County Court cited to its appellate district,  the fifth,  ruling in Investment & Income Realty v. Bently,  480 So2d 219 (5th DCA 1985)  that a statutory cause of action can not be commenced until the claimant has complied with all of the conditions precedent.  I.e. that if the landlord’s 3 day notice is defective he was not entitled to file the eviction case, so it should be dismissed.   The Volusia court also cited to the Florida Supreme Court case of Ferry-Morse Seed Co. v. Hitchcock,  426 So.2d 958 (Fla. 1983) for the same proposition that “an action can not be commenced until all essential elements of the cause of action are present.”    The Volusia court did point out that even though the district courts of appeal had opposite opinions on this,  each county’s  court was obligated to follow their own district court of appeals’ ruling until the state supreme court has decided the issue once and for all.  So, for Broward, Palm Beach , St. Lucie,  Martin Indian River, and Okeechobee Counties at least,  the tenant will automatically be evicted if he does not post the undisputed rent into the court registry within five days of being served.

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