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The Plaintiff’s action in eviction was premised upon the alleged non-payment of rent. At the hearing to determine rent due, based upon the evidence presented, the court determined that rent in the amount of zero dollars was due each month. However, the three-day notice demanded payment of $100.00 in allegedly delinquent rent.
A three-day notice which demands monies other than delinquent rent is defective and fails to terminate the tenant’s rental agreement. See Cappelier v. Mahoney, 17 Fla. L. Weekly Supp. 662a (Fla. 18th Cir. Ct. 2010); Hanna v. Freckleton, 11 Fla. L. Weekly Supp. 967d (Fla. 11th Cir. Ct. 2004); Wright v. Brown, 20 Fla. L. Weekly Supp. 700b (Fla. Orange Cty. Ct. 2013).
The Court acknowledged that the Florida legislature amended effective July 1, 2013 Sec. 83.60(1)(a) to provide that “[i]n an action by the landlord for possession of a dwelling unit based upon nonpayment of rent. . . [t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.” But where no rent is due, it would be impossible for the Plaintiff to cure the defective notice or to bring the action for non-payment of rent [FLWSUPP 2704CHAR]. That is, under the facts of this case, the court finds that the action must have been brought under some legal theory other than the non-payment of rent. It would be errant for the landlord to be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action. Accordingly, Plaintiff’s Complaint must be dismissed without leave to amend. See Orozco v. Estrada, 23 Fla. L. Weekly Supp. 490a (Fla. Miami-Dade County Ct. 2015); Desha v. Smith 24 Fla. L. Weekly Supp. 238a (Fla. Manatee Cty. Ct. 2016).
Additionally, the three-day notice was also held facially defective in several other respects.
- The notice contained no proof of service rendering it defective. See Dan v. Litt, 14 Fla. L. Weekly Supp. 983b (Fla. Broward Cty. Ct. 2007); Rodriguez v. Serra, 17 Fla. L. Weekly Supp. 129a (Fla. Broward Cty. Ct. 2009).
- The notice demanded payment on a weekend rendering it defective. See 2000 Washington, Inc., v. Coaches, 8 Fla. L. Weekly Supp. 581b (Fla. Broward Cty. Ct. 2001); 95-45 Roosevelt Ave Corp. v. Research Sample Bank, Inc., 13 Fla. L. Weekly Supp. 844a (Fla. Broward Cty. Ct. 2006).
- The notice did not contain the landlord’s name rendering it defective. See Benoit v. Wilson, 17 Fla. L. Weekly Supp. 224a (Fla. Broward Cty. Ct. 2010); Adkins v. Mompremier, 17 Fla. L. Weekly Supp. 44a (Fla. Broward Cty. Ct. 2009).
- The notice did not contain the landlord’s address rendering it defective. See Hulac v. Cox, 19 Fla. L. Weekly Supp. 1105d (Fla. Lee Cty. Ct. 2012); Beapot v. Mccullough, 18 Fla. L. Weekly Supp. 296c (Fla. Osceola Cty. Ct. 2010); Luise v. Flores, 18 Fla. L. Weekly Supp. 295b (Fla. Volusia Cty. Ct. 2010); Jasiurkowski v. Harris, 17 Fla. L. Weekly Supp. 1253a (Fla. Broward Cty. Ct. 2010).
- The notice did not contain the landlord’s phone number rendering it defective. See Greenview Apartments v. Roger, 8 Fla. L. Weekly Supp. 513a (Fla. Broward Cty. Ct. 2001); Nadeau v. Solares, 13 Fla. L. Weekly Supp. 502b (Fla. Broward Cty. Ct. 2006).
The eviction was dismissed with the court awarding attorneys fees to the Defendant Tenant.
CHARNESKY v. OREFICE, Defendant. Volusia County. Case No. 2019 13042 CODL, Division 73. June 19, 2019. 27 Fla. L. Weekly Supp. 386a