Failure to Specifically Plead an Affirmative Defense Means Reversal of Dismissal In Florida Eviction Action
September 8th, 2015
Strict adherence to the requirements of Florida statute is required when prosecuting a Florida eviction so it is important that you have an attorney who understands the detailed landlord tenant law. The requirement of providing three days notice to tenants as a condition precedent to filing an eviction must be complied with to the letter of the law. In Orange County Florida an eviction was dismissed due to a fatally defective Three Day Notice when the court determined that the notice provided zero days notice prior to the filing of the eviction. Additionally, the court determined that it was improper to include late fees in the calculation of rent due via the Three Day Notice when late fee provisions were not present in the rental agreement. See order below.
AMANDA SINGH, Plaintiff, vs. CHRYSTOL M ROLLE, Defendant. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2012-CC-003646-O, Division 72. April 18, 2012. Wilfredo Martinez, Judge. Counsel: Stephen L. Skipper, for Plaintiff. Jaisen J. Stango, Orlando, for Defendant.
THIS CAUSE came before the Court for hearing on April 18, 2012 upon Defendant’s Motion to Dismiss. Defendant appeared by counsel, Jaisen J. Stango, Esquire. Plaintiff appeared by counsel, Stephen Skipper, Esquire. The Court, after hearing argument from counsel, carefully reviewing the pleadings, motions, and exhibits attached thereto, and otherwise being fully informed in the premises, finds that the motion has merit and should be granted. Accordingly, for the reasons stated herein, the Court does hereby
ORDER, ADJUDGE, and FIND as follows:
1. This is an action to evict a residential tenant for nonpayment of rent subject to the Florida Residential Landlord and Tenant Act.
2. This Court lacks jurisdiction in this particular eviction to award Plaintiff possession of the leased premises because Plaintiff has attached a three-day notice to the complaint which is fatally defective and failed to terminate Defendant’s rental agreement, an essential element to a cause of action for tenant removal. Investment and Income Realty, Inc. v. Bentley, 480 So.2d 219 (Fla. 5th DCA 1985) (ruling that a residential tenant eviction for non-payment of rent cannot be commenced until the landlord has complied with the notice requirements of § 83.56(3), Fla. Stat.).
3. The notice attached the complaint is fatally defective on its face because it provides Defendant with zero days to pay the rent or vacate the premises. Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th Cir. Ct. 2009); Taylor v. Joseph, 18 Fla. L. Weekly Supp. 902b (Fla. Orange Cty. Ct. 2011); Jean v. Moore, 18 Fla. L. Weekly Supp. 115a (Fla. Orange Cty. Ct. 2011).
4. The notice attached the complaint is also fatally defective because on its face it clearly demands $70.00 as late fees which are not designated as additional rent pursuant to the terms of a written rental agreement.Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th Cir. Ct. 2009); Bhitar v. Risbrook, 18 Fla. L. Weekly Supp. 897b (Fla. Orange Cty. Ct. 2011); Palacio v. Mahadeo, Bhitar v. Risbrook, 18 Fla. L. Weekly Supp. 897b (Fla. Orange Cty. Ct. 2010). Rent is defined as the periodic payments due the landlord from the tenant for occupancy under a rental agreement and any other payments due the landlord from the tenant as may be designated as rent in a written rental agreement. § 83.43(6), Fla. Stat. Paragraph 3 of the complaint alleges the Defendant is in possession of the leased premises under an oralrental agreement. Therefore, it is clear that the Plaintiff may not demand late fees in a three-day notice.
5. The issuance of a proper three-day notice in substantial compliance with § 83.56(3), Fla. Stat., is a condition precedent to filing suit for possession of a dwelling unit. Investment and Income Realty, Inc. v. Bentley, 480 So.2d 219 (Fla. 5th DCA 1985); Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th Cir. Ct. 2009).
6. The Fifth District Court of Appeal acknowledged a “statutory cause of action cannot be commenced until the claimant has complied with all the conditions precedent.” Investment and Income Realty, Inc. v. Bentley, 480 So.2d 219 (citing Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958 (Fla. 1983)).
7. The Fifth District Court of Appeal held it is proper to dismiss a residental tenant eviction action where the landlord failed to comply with the notice requirements of § 83.56(3), Fla. Stat. Id.
8. A fatally defective three-day notice cannot be corrected in the same case. The landlord must file a new eviction based upon a new and valid three-day notice. Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th Cir. Ct. 2009).
9. When less than all of the requisite elements of a cause of action were in existence when the complaint was filed, the claims must be dismissed without leave to amend. Rolling Oaks Homeowner’s Ass’n, Inc. v. Dade County, 492 So.2d 686 (Fla. App. 3rd DCA 1986); Orlando Sports Stadium v. Sentinel Star Company, 316 So.2d 607 (Fla. 4th DCA 1975), (ruling a plaintiff may not be permitted to cure the defect of a non-existent cause of action when the suit began by amending pleadings); Hasam Realty Corporation v. Dade County, 178 So.2d 747 (Fla. 4th DCA 1965) (finding the Rules of Civil Procedure which provide for amended or supplemental pleadings can not remedy the lack of an existent cause of action at the time the complaint was filed).
10. Defendant’s Motion to Dismiss is GRANTED. The above-captioned civil action is hereby DISMISSED without leave to amend.
11. The parties stipulated that Defendant is the prevailing party in this case and is entitled to recover costs, including reasonable attorney’s fees, from the Plaintiff pursuant to § 83.48, Fla. Stat., Fla. R. Civ. P. 1.420(d), and any other applicable law, rule, or statute. The parties stipulated to a reasonable rate and a reasonable rate in open court.
12. The Court retains jurisdiction to hear any other motions and grant any other relief in furtherance with this order and ruling in this case.