17 Fla. L. Weekly Supp. 884a
Online Reference: FLWSUPP 1710CARBLandlord-tenant — Eviction — Notice — Defects — Assuming without deciding that three-day notice was defective, this could not form basis for dismissal of eviction action where tenant failed to pay rent into court registry — Failure of tenant to pay rent into registry of court constitutes waiver of tenant’s defenses other than payment — Error to sua sponte dismiss eviction complaint and to deny landlord’s motion for default final judgment
LIANA CARBALLOSA, Appellant, v. ELIZABETH ARIAS, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-646 AP. Lower Case No. 09-8763 CC 26. June 29, 2010. On Appeal from the County Court, Miami-Dade County, Gladys Perez, Judge. Counsel: Alberto Cardet, for Appellant. Elizabeth Arias, Pro Se, for Appellee.
(Before CARDONNE ELY, HUBBART, and TUNIS JJ.)
(HUBBART, Judge.) This is an appeal of an Order of Dismissal of a residential eviction action and an Order denying a motion for rehearing entered by the county court in Miami-Dade County. This Court has jurisdiction pursuant to Article V, section 5(b), Florida Constitution and Florida Rules of Appellate Procedure 9.030(c)(1)(A).
The Appellant, Liana Carballosa, (“Ms. Carballosa” or “Landlord”) filed a residential eviction action against the Appellee, Elizabeth Arias, (“Ms. Arias” or “Tenant”) in the court below for non-payment of rent. Ms. Arias answered the complaint, but raised no defenses. Additionally, she did not allege that the three-day notice required by Section 83.56(3), Florida Statutes was defective nor did she pay rent into the registry of the court. Ms. Carballosa moved for default final judgment for possession.
The trial court, sua sponte, without notice or hearing, dismissed the complaint for the reason that the three-day notice was defective. The trial court also denied Ms. Carballosa’s timely motion for rehearing and for final default judgment for possession. This appeal followed.
Assuming, but not deciding, that the three day notice was defective, it could not form the basis for dismissal, in view of the tenant’s failure to pay rent into the court registry. Section 83.60(2), Florida Statutes, provides in pertinent part:
Failure of the tenant to pay the rent into the registry of the court . . . constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant.
Given the requirements of section 83.60(2), it was error to dismiss the complaint and not grant the Landlord’s motion for default final judgment.
Accordingly, the order dismissing the complaint for eviction is REVERSED.
This cause is REMANDED to the trial court with instructions to enter final judgment for removal of the tenant. Given our decision, it is not necessary to reach the other issue raised by Appellant. (CARDONNE ELY AND TUNIS, JJ. concur.)
