Where a three day notice is mailed to the tenant, or requires payment to a PO Box, or payment is to be sent out of the county in which the leased premises is located, five additional days must be added to the due date on the 3 day notice. The five additional days for mailing may count weekends and holidays as part of the five days, unless the fifth day falls on a weekend or holiday, in which case the due date shall be the next business day. NGUYEN vs. BROWN, County Court, 3rd Judicial Circuit in and for Columbia County, Civil Division. Case No. 08-442-CC. April 15, 2008. 15 Fla. L. Weekly Supp. 710a.
In Diaz v. Torres, [County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-CC-010491-O, Division 72. September 24, 2012. Wilfredo Martinez, Judge, 19 Fla. L. Weekly Supp. 1075a], the landlord used a 7 day notice to demand payment of rent instead of a 3 day notice.
Landlord’s notice stated, in part, “You are hereby notified that you are not complying with your lease in that [sic] NOT COMPLYING WITH OWNER’S REQUEST TO MOVE” (emphasis in original).
The notice also states “payment of $1,500.00 is due immediately, noncompliance within three days of receipt of this notice of your lease shall be terminated . . .”
The court ruled that notices that do not contain language in substantial compliance with § 83.56(3), Fla. Stat. are fatally defective. Gonsalves v. Williams, 18 Fla. L. Weekly Supp. 1180a (Fla. Orange Cty. Ct. 2011); Bakke v. Davis, 18 Fla. L. Weekly Supp. 1179a (Fla. Orange Cty. Ct. 2011); Prashad v. Graham, 18 Fla. L. Weekly Supp. 205c (Fla. Orange Cty. Ct. 2011); LaGree v. McNair, 18 Fla. L. Weekly Supp. 697c (Fla. Orange Cty. Ct. 2011).
The court also ruled that “Notices that contain confusing and conflicting demands demands are fatally defective.” Citing Gosuwn v. Hernandez, 18 Fla. L. Weekly Supp. 603b (Fla. Orange Cty. Ct. 2011).
The Court found that a 7-day notice of non-compliance does not contain language in substantial compliance with § ,, Fla. Stat. and, therefore, may not be used to evict a tenant for non-payment of rent.
Note: the case links to Florida Law Weekly Supplement above require a subscription to the service to access the cases.
Motion for default based on tenant’s failure to respond to eviction complaint within five business days and deposit monies into court registry is denied where tenant filed motion to dismiss due to fatally defective three-day notice in open court at hearing on motion for default
The battle between the jurisdictions as to whether the tenant automatically looses the eviction for failing to post the rent within five days of being served (the chicken), or whether the landlord looses if the 3 day notice is defective (egg) continues to rage on.
The tenant was served with a complaint for eviction April 18, 2012, but did not deposit the rent into the court registry within five days.
The landlord filed for a default which the court set for hearing on April 27, 2012. At the hearing the tenant filed a motion to dismiss based on a defective 3 day notice.
The court ruled denied landlord’s motion for default on the following basis:
That the tenant did not waive the right to present the arguments alleged in her Motion to Dismiss by failing to file the motion within five business days, after service of process. Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th Cir. Ct. 2009) (acknowledging a defective three-day notice can be attacked for the first time on appeal).
The Fifth District Court of Appeal acknowledged alleging the complaint fails to state a cause of action can be raised by motion even after default. Appel v. Lexington Insurance Co., 29 So.3d 377 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D481a].
Under the Florida Rules of Civil Procedure, a challenge to the court’s jurisdiction can be raised at any time. Fla. R. Civ. P. Rule 1.140. (emphasis added).
Furthermore, even if Defendant did not file any pleadings or motions in this action, the Court finds no Clerk’s Default was entered in this case prior to the hearing on Plaintiff’s Motion for Default and that would have been grounds to deny the motion at that time pending Plaintiff obtaining a Default from the Clerk’s office.
ROY VAZIRI, Plaintiff, vs. TASHA STENGER & JEWELL PAUL EDWARDO, Defendants. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-CC-004178-O, Division 72. May 29, 2012. Wilfredo Martinez, Judge. 19 Fla. L. Weekly Supp. 861a
Landlord filed an eviction based on a 3 day notice that, on its face, included late fees in the amount claimed. The lease had not defined late fees as “additional rent.” The tenant did not raise this in his answer. Subsequently, tenant hired a lawyer, who raised the defense of defective 3 day notice in a motion to dismiss. The landlord objected that as the defense was not raised in tenant’s answer, it was waived.
Summary: A 3 Day Notice is subject to 30 day validation period under Fair Debt Collection Practices Act.
In the case of Sailboat Bend Properties v. Larry Wyant 04-16677 COCE, County Court for Broward County, Florida, [12 Fla. L. Weekly Supp. 258a] the landlord’s attorney served a 3 day notice on the Defendant Tenant. The tenant defended by claiming that since the 3-day notice was not served by the landlord, but by an agent of the landlord, that agent was acting as a debt collector, and therefore subject to the Federal Fail Debt Collection Practices Act. FDCPA requires that debt collectors send the following notice with all demands for payment:
FAIR DEBT COLLECTION PRACTICES ACT
15 U.S.C. SECTION 1601(AS AMENDED) NOTICE
1. The amount of the debt is set forth above.
2. The creditors to whom the debt is owed are:
3. The debtor may dispute the validity of this debt, or any portion thereof, within 30 days of the receipt of this notice. If the debtor fails to dispute the debt, the debt will be assumed valid by the creditor.
4. If the debtor notifies the creditor’s lawyer in writing within 30 days of receipt of this notice that the debt, or any portion thereof is disputed, the creditors lawyer will obtain verification of the debt or a copy of a judgment and a copy of the verification will be mailed to debtor by the creditors’ attorney.
5. If the creditor named herein is not the original creditor, and if the debtor makes a written request to the creditors’ attorney within 30 days of receipt of this notice, the name and address of the original creditor will be mailed to the debtor by creditors’ attorney.
6. This communication is for the purposes of collecting a debt, and any information obtained from the debtor will be used for that purpose.
I hereby certify that a true copies hereof have been furnished to the above named addressee at the above noted addresses on, _________ by US Mail, postage prepaid
The above notice gives the debtor, 30 days in which to dispute the claim. Therefore the Court ruled that the landlord violated the Fair Debt Collection Practices act by filing the eviction suit before the 30 day validation period because he used a debt collector, his attorney, to serve the 3 day notice! [ see also Liliana Muniz vs. Edwin Collazo, case no.: 07-1847 COSO (62), Arlene Campos vs. Magalie Pittman-Star, Case No.: 06-00074 COCE (50) [13 Fla. L. Weekly Supp. 387a], Romea vs. Heiberger & Associates, U.S. District Court, S.D.N.Y. 97 Civ. 4681 (LAK) (December 23, 1997), Veronica Hairston and James Hairston vs. Whitehorn and Delman, 97 Civ. 3015 (JSM) U.S. Dist. Court, S.D.N.Y. 1998 U.S. Dist. Lexis 819 (January 30, 1998 filed), Codar vs. State of Arizona, 95 F. 3d 1156 (9th Cir. 1996).
The Court noted that the conflict can be avoided if the landlord herself signs and sends these letters to the tenants. The F.D.C.P.A. would not apply to such a landlord because she would not be collecting the debt of another, but rather her own debt. [Veronica Hairston and James Hairston vs. Whitehorn and Delman, 97 Civ. 3015 (JSM) U.S. Dist. Court, S.D.N.Y. 1998 U.S. Dist. Lexis 819 (January 30, 1998 filed)] Also, See Codar vs. State of Arizona, 95 F. 3d 1156 (9th Cir. 1996).
In Parkway North Apartments, Ltd., vs. McMillian (Lee County 2011, 18 Fla. L. Weekly Supp. 1192a) The landlord issued a 3 day notice with a 3 day deadline and also a FDCPA 30 day deadline on it. The court ruled that a notice with two different deadlines was confusing and therefore defective.
The moral of the story, landlords have to serve 3-day notices themselves.
The landlord issued a 3 day notice demanding payment of the rent to “Royal Isles Apt.” Subsequently “MPI JACKSON ORLANDO LLC” filed suit for eviction as plaintiff. The tenant moved to dismiss on the basis that there was no such entity as “Royal Isles Apt” and therefore the 3 day notice was defective. The court found that “Royal Isles Apt” was not registered as a business entity authorized to transact business in the State of Florida nor was “Royal Isles Apt.” registered as a fictitious name with the Florida Department of State, Division of Corporations. The court ruled “Plaintiff’s three-day notice is fatally defective because the entity making the demand for payment or possession of the premises was not authorized to transact business in the State of Florida at the time the notice was issued.” The case was dismissed without leave to amend. Attorneys fees and costs were awarded to the tenant.
MPI JACKSON ORLANDO LLC, vs. MYRICK, Orange County Court 2011, 19 Fla. L. Weekly Supp. 293c
The courts continue to issue differing rulings on how to apply the mailing rule. The basic premise is that five days must be added to the period of time designated for compliance when an act is required to be done by mail. [See Investment and Income Realty, Inc. v. Bentley (citing Fla. R. Civ. P. 1.090(e)).] If the landlord issues a 3 Day Notice and provides the tenant with a PO Box as the address to send the rent, the tenant would have to mail the rent and thus be entitled to the five days for mailing.
The Treachery of Images
is a painting by the Belgian surrealist René Magritte. The picture shows a pipe. Below it, Magritte painted, “Ceci n’est pas une pipe” French for “This is not a pipe.” The painting is not a pipe, but rather an image of a pipe, which was Magritte’s point:
[ for a full analysis of "The Treachery of Images" click here http://foucault.info/documents/foucault.thisIsNotaPipe.en.html ]
Similarly, a landlord issued a 3 Day notice to the tenant on which he wrote “this is not an eviction notice.” When the tenant failed to pay the rent after three days, the landlord filed an eviction in court. The judge ruled that if the three day notice stated it “is not an eviction notice, “ then it isnt*. Therefore the landlord failed to issue an eviction notice, which is a condition precedent to filing the case in court. Judgment was entered for the tenant and the case was didmissed with prejudice. Surreal ? You be the judge.
*THOMAS CALDERON, Plaintiff, vs. BONNIE MURPHY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County, Civil Division. Case No. 2010 21794 CONS. September 21, 2010. Honorable Shirley A. Green, Judge. 18 Fla. L. Weekly Supp. 698a
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.
Where a landlord issued a defective 3-day notice and filed and eviction based on it, the landlord can not cure the defect by issuing another 3-Day Notice after the case has been filed.
A landlord issued a 3-day notice dated June 18, 2004 demanding payment of monthly rent which was payable on the 23rd day of each month. The 3-day notice demanded payment for April 23, May 23, and June 23 2004 monthly rental payments. Since the June rent was not due yet, the landlord was not entitled to demand it. Florida Statutes Section 83.56(3) states that the 3-day notice to pay rent can only be given when the rent is in default.
Therefore the 3-day notice was defective and as a result the rental agreement was not terminated. Florida Statutes Section 83.59(1) requires that the rental agreement be terminated before an eviction action may be filed. Therefore the landlord was not entitled to file the eviction action. As the landlord had no right to file the action, the court had no right to grant the landlord any relief. Therefore the court can not require the tenant to post rent claimed in the court registry, or enter a default against the tenant for failure to so post, or even for failure to file an answer. A statutory cause of action can not be commenced until the Plaintiff has complied with all of the conditions precedent.
The landlord filed suit on July 23, 2004 pro se (without an attorney). Even though the landlord had waited another month, his suit was still subject to dismissal because the 3-day notice was defective at the time it was issued. The landlord attempted to cure his mistake by issuing another 3-day notice on August 6, 2004 demanding payment by August 12, 2004. But by demanding rent and providing that the tenant had an additional time in which to pay it, the landlord reinstated the tenancy and cancelled out the previous 3-day notice which he filed suit on. The law in Florida as to post-suit notices is that they render the original notice a legal nullity. The issuance of a post suit notice automatically entitled the tenant to a judgment against the landlord as a matter of law. The result was that the case against the tenant was dismissed on August 27, 2004 and a judgment entered against the landlord for the tenant’s attorneys fees. Thus, with the rent now five months delinquent, and a judgment to pay the tenant’s attorney, the landlord went to find an attorney of his own…