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On August 30, 2018 Landlord filed an eviction for non-payment of rent due August 1st .  The landlord issued a notice of termination of Tenancy on August 8th,  effective August 18th.  The tenant did not post the rent claimed into the court registry and defended based on defective notice.   The lease that attached to the complaint states that it is a subsidized lease pursuant to the federal agency known as Housing and Urban Development (“HUD”) and states in relevant part:

MODEL LEASE FOR SUBSIDIZED PROGRAMS

  1. Termination of Tenancy:

. . .

  1. Any termination of this Agreement by the Landlord must be carried out in accordance with HUD regulations, State and local law, and the terms of this Agreement.

. . .

  1. If the Landlord proposes to terminate this Agreement, the Landlord agrees to give the Tenant written notice and the grounds for the proposed termination. If the Landlord is terminating this agreement for “other good cause”, the termination notice must be mailed to the Tenant and hand-delivered to the dwelling unit in the manner required by HUD at least 30 days before the date the Tenant will be required to move from the unit and in accordance with the State law requirements. Notices of proposed termination for other reasons must be given in accordance with any times frames set forth in State and local law. Any HUD required notice period may run concurrently with any notice period required by State or local law. All termination notices must:

– specify the date this Agreement will be terminated;

– state the grounds for termination with enough detail for the Tenant to prepare a defense

– advise the Tenant that he/she has 10 days within which to discuss the proposed termination of tenancy with the Landlord. The 10-day period will begin on the earlier of the date the notice was hand-delivered to the unit or the day after the date the notice is mailed. If the Tenant requests the meeting, the Landlord agrees to discuss the proposed termination with the Tenant; and

– advise the Tenant of his/her right to defend the action in court.

The notice that Plaintiff attached to its complaint was dated 08/08/2018. The notice stated in relevant part:

10 Day Notice to Vacate – Subsidized Units

Please be advised that Millennia Housing Management, Ltd., the managing agent does hereby terminate your tenancy at this property, . . .

Your tenancy shall be terminated as of 08/18/2018.

 

In accordance with HUD guidelines, Millenia Housing Management Ltd., hereby advises you that you have ten (10) calendar days following the date of this letter in which you may meet with the Site Manager to discuss the proposed termination of your lease, and all charges which are delinquent on your account.

24 C.F.R. 92.253 is a HUD regulation captioned “Tenant protections and selection”. This HUD regulation applies to the lease at issue. 24 C.F.R. 92.253(c) provides:

(c)Termination of tenancy. An owner may not terminate the tenancy or refuse to renew the lease of a tenant of rental housing assisted with HOME funds, except for serious or repeated violation of the terms and conditions of the lease; for violation of applicable Federal, State, or local law; for completion of the tenancy period for transitional housing or failure to follow any required transitional housing supportive services plan; or for other good cause. Good cause does not include an increase in the tenant’s income or refusal of the tenant to purchase the housing. To terminate or refuse to renew tenancy, the owner must serve written notice upon the tenant specifying the grounds for the action at least 30 days before the termination of tenancy.

(emphasis added)

In the instant case, the Plaintiff gave ten days written notice to the tenant that it was terminating the tenancy. The ten-day notice requirement in paragraph 23 of the lease only refers to the right to meet with the Landlord within ten days to discuss the issues related to termination of the tenancy. Paragraph 23 of the lease does not give the Landlord the right to terminate the lease on ten-days notice. Paragraph 23 of the lease provides that notice of termination must be given in accordance with HUD regulations. 24 C.F.R. 92.253 requires that prior to terminating the tenancy, the owner must give 30 days’ written notice to the tenant. Plaintiff failed to provide 30 days notice to the tenant that it was terminating the tenancy.

Defendant argued that the requirement to place funds in the registry of the court in order to defend against the action is preempted by 24 CFR 92.253. In Palma v. JPMorgan Chase Bank, 208 So. 3d 771 (Fla. 5th DCA, 2016) [41 Fla. L. Weekly D2694d], the Fifth District Court of Appeals found that when a contract incorporates HUD regulations, compliance with those regulations is mandatory. Because 24 CFR 92.253 provides conditions precedent to the termination of the tenancy, those conditions precedent were mandatory pursuant to Palma. For this reason, the Court did not reach the issue of Plaintiff’s defense to the motion to dismiss that Defendant did not place any funds in the registry of the Court. Because notice may not be retroactively cured, dismissal with prejudice was ruled appropriate.

FOREST FLA LLC v.  MONTGOMERY.  26 Fla. L. Weekly Supp. 918a.  Brevard County Court.   February 5, 2019