October 1st, 2011
A Pinellas County court recently dismissed a Florida eviction action brought by a mobile home owner against its occupant for deficiencies, which included: failing to prove ownership of real property (the owner claimed that his mobile home was real property and failed to allege that he owned the lot that the mobile was situated on), pursuant to the Florida Mobile Home Act, and failure of condition precedent in the service of a defective three-day notice (the three-day notice accounted for rent that was not yet in default), pursuant to the Florida Residential Landlord and Tenant Act. See Order below.
ROBERT J. MAHER, Plaintiff, vs. JANICE JACOBS, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 12-3138-CO-40. UCN 522012CC0003138XXCOCO. April 30, 2012. Edwin B. Jagger, Judge. Counsel: Robert J. Maher, pro se Plaintiff. James J. Moss, Bay Area Legal Services, Inc., St. Petersburg, for Defendant.
THIS CAUSE CAME TO BE HEARD upon Defendant’s Motion to Dismiss Plaintiff’s Complaint previously filed in this matter. Defendant, counsel for Defendant and the pro se Plaintiff were present. The Court, being duly advised in the premises, finds that Plaintiff in his Complaint alleges he owns “the following described real property” but identifies the “real property” as “a 1962 Newman Mobile Home, locate (sic) on Lot #39…”. Pursuant to Sec. 320.015(1), Fla. Stat., a mobile home is not real property unless “the owner of the mobile home is also the owner of the land on which the mobile home is located and said mobile home is permanently affixed thereto.” Based on the Complaint, Plaintiff has not alleged that he owns the lot on which mobile home is located. Based on the copy of the April 1, 2012 “Notice from Landlord to Tenant…” attached to the Complaint, Plaintiff has demanded “possession of the premises” (or payment of $700 for “rent”). Sec. 83.43(5), Fla. Stat., defines “premises” as “a dwelling unit and the structure of which it is a part and a mobile home lot [emphasis added].” Plaintiff has brought this action pursuant to Ch. 83, Part II, Fla. Stat. Plaintiff could not bring this action pursuant to Ch. 723, Fla. Stat., since the owner of the mobile home park on which the trailer in which Defendant resides is not Plaintiff but “Winifred L. Wieker, Trustee” (based on Pinellas County Official Records Book 5126 Page 1825).
Moreover, the Complaint alleges “Defendant failed to pay the rent due April 01, 2012,” but a “Memorandum Of Lease” Plaintiff attached to a copy of the Complaint served on Defendant via first class U.S. mail by its own terms states the tenancy did not commence until April 1, 2012; and the undated “Memorandum of Lease” is not signed by either Plaintiff or Defendant. Consequently, the April 1, 2012 “Notice from Landlord to Tenant” demanded rent which was not in default on the date of the notice; and, since the notice identifies Plaintiff’s address as one in a county which is not the same on in which the rental premises is located, Plaintiff was obligated to add five (5) days to the three (3) days (excluding Saturdays, Sundays, and legal holidays) to pay rent allegedly due or vacate (see, e.g., Sed Real Estate Corp. v. Petro, 13 Fla. Law Weekly Supp. 504b (Fla. Broward Cty. Ct. 2006)). A landlord’s substantial compliance with Sec. 83.56(3), Fla. Stat. is a condition precedent to the initiation of a court action for possession of the premises for nonpayment of rent. Therefore, it is
ORDERED AND ADJUDGED that Defendant’s Motion is GRANTED. Plaintiff’s Complaint is hereby dismissed without leave to amend.
The Court reserves jurisdiction on the issue of the amount of attorney’s fees to be awarded to Defendant’s counsel as the “prevailing party” pursuant to Sec. 83.48, Fla. Stat.