This Collier County case made three novel rulings:
Defective Posting: May not post 3 day notice until ascertained tenant is absent
The property manager testified she served a 3 day notice by folding it and placing it in the tenant’s door. The tenant denied receiving the notice. The court ruled that while Florida law permits the three day notice to be served to the tenant by leaving a copy of the notice at the residence, it may be posted only if the tenant is absent from the premises. Without evidence evidence that the property manager attempted to determine if the tenant was absent from the premises prior to posting the three day notice, the posting is defective notice.
Bailment: Rent in possession of landlord, and stolen, is landlord’s loss, not tenant’s.
The three day notice included $348.00, which represented the tenant’s money orders that were stolen during a theft at the landlord’s office. That theft occurred while the money orders were in the possession of the landlord. The court ruled that the fund stolen from the landlord should not have been counted as rent on the three day notice.
Waiver occurred when the landlord accepted money orders paid by the tenant (See §83.56(5), Fla. Stat). Although the landlord ultimately returned the money orders to the tenant, the landlord held them too long. By not returning the payments to the tenant promptly, the landlord is deemed to have accepted them, even if the payments were not credited to the account. See, Belkin v. Robinson, 38 Fla. Supp.2d 188 (Broward 1989). By accepting rent while knowing of a noncompliance, the landlord waived whatever right he otherwise had to evict, pursuant to §83.56(5), Fla. Stat.
HARMONY SHORES MHP, LLC, vs. OAKLEY, Collier County Case No. 2015-CC-001599. December 17, 2015. Online Reference: FLWSUPP 2308HARM