17 Fla. L. Weekly Supp. 213a
Online Reference: FLWSUPP 1703AQUI
Landlord-tenant — Eviction — Notice — Defects — Three-day notice is fatally defective for giving less than three business days to pay or vacate, for failing to address co-tenant, and for failing to give five additional days for responding to notice served by certified mail — Due to fatally defective notice and landlord’s failure to terminate rental agreement prior to filing eviction action, there was no requirement for tenant to deposit rent into court registry — Complaint dismissed without leave to amend
WALTER H. AQUIRRE, Plaintiff, vs. WILLIAM GONZALES & JUANA GONZALES, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-16791 COCE (54). December 8, 2009. Lisa Trachman, Judge. Counsel: Charles L. Simon, Charles L. Simon, P.A., Sunrise, for Defendant.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT FORTENANT EVICTION WITHOUT LEAVE TO AMENDAND GRANT DEFENDANTS’ MOTION FOR JUDGEMENT ON THE PLEADINGS
THIS CAUSE, having come before the Court on Defendants’ Motion to Dismiss Plaintiff’s Complaint for Tenant Eviction Without Leave to Amend and Defendants’ Motion for Judgement on the Pleadings and the Court having reviewed the pleadings and the exhibits attached thereto and otherwise being fully advised in the premises, the Court does hereby
ORDER, ADJUDGE AND FIND as follows:
1. Plaintiff has attached a Three-Day Notice to the Complaint which is defective, failed to terminate Defendants’ rental agreement, and accordingly Plaintiff has no cause of action pursuant to Section 83.59(1) of the Florida Statutes.
(a) Plaintiff’s September 23, 2009 Three-Day Notice is fatally defective on its face and fails to comply with the statutory requirements of Section 83.56(3) of the Florida Statutes as even of the notice had been served on September 23, 2009 it demanded payment or possession on or before September 26, 2009 thereby giving the tenants only two (2) days to pay or vacate. Thursday, September 24 was day number one. Friday, September 25, 2009 was only day number two. Plaintiff’s Three-Day Notice demanded payment or possession on September 26, 2009 which is excluded pursuant to Section 83.56(3) of the Florida Statutes as being a weekend after giving only two (2) days notice to the tenants.
Accordingly, Plaintiff has failed to terminate Defendant’s rental agreement and has no lawful right to commence this eviction action pursuant to Section 83.59(1) of the Florida Statutes. With no right to sue Defendant for eviction, this Court cannot require rent to be paid into the Court Registry or enter a default due to Defendant’s failure to pay said rent. Section 83.60(2) of the Florida Statutes applies only to lawfully commenced eviction actions where it is clear from the exhibits attached to the Complaint that the rental agreement has been lawfully terminated. In this case, Defendant’s rental agreement was not lawfully terminated.
The Appellate Court for Broward County, Judge Charles Greene presiding, ruled on this very issue on November 19, 2007 in the case of Robert Ward & Peggy Ward, Appellants/Defendants vs. Kevin Andrew Jackson, Appellee/Plaintiff, case no: 07-6962 (02) [15 Fla. L. Weekly Supp. 138b]. The Appellate Court reversed a lower court decision, case no: 07-2122(52) that refused to grant Defendants’ Motion to Dismiss Plaintiff’s Complaint (Without Leave to Amend) and refused to grant Defendants’ Motion for Judgment on the Pleadings where Plaintiff had afforded Defendants (like the case herein) with two days or less excluding Saturday, Sunday and legal holidays to pay or vacate. Judge Greene found, “the lower court erred in denying the Wards’ Motion to Dismiss and/or Motion for Judgment on the Pleadings.” “See Investment & Income Realty vs. Bentley, 480 So.2d 219 (Fla. 5th DCA 1985)(Condition precedent must be fulfilled before action can be commenced). In light of Roche v. Nguyen, the Wards cannot be required to deposit funds into the registry where the conditions precedent of Fla. Stat. 83.56(3) are not satisfied, as such would be futile. Roche v. Nguyen, Case No. 06-12904 CACE 03 [14 Fla. L. Weekly Supp. 432a]; Roche v. Nguyen, Case No. 4D07-956.” Judge Greene remanded the case back to the lower court to award attorney’s fees to Defendants/Appellants pursuant to Section 83.48 of the Florida Statutes.
(b) Plaintiff’s September 23, 2009 Three-Day Notice is fatally defective on its face and fails to comply with the statutory requirements of Section 83.56(3) of the Florida Statutes as no Three-Day Notice was ever addressed to Juana Gonzales. Alternatively, if Juana Gonzales is not a tenant, Plaintiff had no legal right to sue her for eviction.
(c) Plaintiff’s September 23, 2009 Three-Day Notice is fatally defective on its face and fails to comply with the statutory requirements of Section 83.56(3) of the Florida Statutes as it is clear from the face that the notice was served by certified mail, return receipt requested. Plaintiff failed to provide an additional five (5) days in the notice to mail the rent or keys. It is also clear from the certified mail receipt attached to the Complaint that the Three-Day Notice was in fact not received until September 28, 2009 and it was therefore impossible for Defendant William Gonzales to comply with the notice and pay rent or deliver possession by September 26, 2009.
2. County Courts have jurisdiction to hear landlord-tenant cases however, before the Court can grant a landlord any affirmative relief or require the tenant to deposit rent into the Court Registry or enter a default judgment pursuant to Section 83.60(2) of the Florida Statutes, the Complaint and exhibits thereto must show on their face that the landlord lawfully terminated the tenant’s rental agreement prior to commencing an action for eviction and therefore has a cause of action pursuant to Section 83.59(1) of the Florida Statutes. This was not done in this case do to the defective Three-Day Notice .
3. In order for a landlord to maintain an action for tenant eviction for non-payment of rent, the landlord must first give a three-day notice that complies with the statutory requirements of Section 83.56(3) of the Florida Statutes, and second properly terminate a tenant’s rental agreement prior to filing a complaint for eviction. If the landlord gives the statutorily required three-day notice, and properly terminates the rental agreement, prior to filing the eviction action, then if the tenant raises any defense other than payment, the tenant must post the rent into the Court Registry or the landlord is entitled to a default judgment pursuant to Section 83.60(2) of the Florida Statutes. Park Plaza Associates Ltd. vs. Glenn D. Paraday and Deborah A. Paraday, Case No. 99-05843 COWE (81), decided by the Honorable Jane Fishman on August 20, 1999, 6 Fla. L. Weekly Supp. 730c.
4. Due to the fatally defective Three-Day Notice, and Plaintiff’s failure to terminate the rental agreement, prior to filing the Complaint for tenant eviction, an essential element of Plaintiff’s cause of action was missing, and there was no requirement for Defendant to pay rent into the Court Registry. Rihena Hodgson vs. Gurlet M. Jones, 6 Fla. L. Weekly Supp. 758a, Carl Coleman, Appellant vs. Cabino Rentals, Appellee, 9 Fla. L. Weekly Supp. 134a (Circuit Court 3rd Judicial Circuit, Columbia County), Daniel Gamo, Appellant vs. Bruce Heller, Appellee, 8 Fla. L. Weekly Supp. 549b (17th Circuit Court, Broward County Appellate Division, June 19, 2001), Juan Pablo Tobar and Luis Tobar, Appellants vs. Maurice Bernard, Appellee, Case No: 04-8785 CACE (03) (Circuit Court, Broward County Appellate Division, November 30, 2004), [12 Fla. L. Weekly Supp. 130a].
5. A valid three-day notice that substantially complies with the statutory requirements of Section 83.56(3) of the Florida Statutes must be given to the tenant prior to the commencement/initiation of a tenant eviction lawsuit. Plaintiff may not give a new three-day notice and file an amended complaint in this action. Since less than all the requisite elements of the cause of action for tenant eviction were in existence when the Complaint was filed, the Trial Court must dismiss without leave to amend. Rolling Oaks Homeowner’s Association vs. Dade County, 492 So.2d 686 (3d DCA 1986). The statutory right of an action for possession only accrues upon the termination of the tenancy. Investment and Income Realty Inc. vs. Bentley, 480 So. 2d 219, 220 (Fla. 5th DCA 1985). The dismissal of this action will be with prejudice and without leave to amend in that the notice being improper, the Plaintiffs did not have a valid cause of action on the facts existing at the time the action was commenced. Lee v. Graham, 1 Fla. L. Weekly Supp. 493 (Sarasota Co. 1993); Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607, 610 (Fla. 4th DCA 1975). A statutory cause of action cannot be commenced until the Plaintiff has complied with all conditions precedent. Ferry-Morse Seed Co. v. Hitchcock, 426 S.2d 958, 961 (Fla. 1983).
6. As was stated in the Appellate decision in Broward County on September 24, 1999 by the Honorable Leonard L. Stafford in the case of Rihena Hodgson vs. Gurlet M. Jones, 6 Fla. L. Weekly Supp. 758(a), Appeal No. 99-5583 (02), Section 83.59(1), Florida Statutes, clearly makes termination of a rental agreement a condition precedent to filing suit for possession. Since the rental agreement in this case was not terminated prior to suit because the Three-Day Notice was defective, “Appellee had no cause of action for eviction at the time of filing suit. Consequently, with no right to bring an action for eviction, no judgment could be entered in her favor.” “. . .the Court finds that such error is nonetheless reviewable on appeal.” “Finally, the defects in Appellee’s Notice cannot be corrected on remand. Where an action requires statutory notice prior to suit and that notice is defective, the defects cannot be corrected in the same case.” Carl Coleman, Appellant vs. Cabino Rentals, Appellee, 9 Fla. L. Weekly Supp. 134(Circuit Court 3rd Judicial Circuit, Columbia County), Daniel Gamo, Appellant vs. Bruce Heller, Appellee, 8 Fla. L. Weekly Supp. 549 (17th Circuit Court, Broward County Appellate Division, June 19, 2001).
7. The Court is not unmindful of the 4th District Court of Appeal’s recent decision in Bell vs. Kornblatt, 23 Fla. L. Weekly D264 (Fla. 4th DCA January 21, 1998), which held that a court retains jurisdiction to adjudicate a case regardless of any lack of notice. This Court has based its decision on Plaintiff’s defective Three-Day Notice, and failure to terminate Defendants’ rental agreement, and thereby failing to state a cause of action upon which this Court could grant Plaintiff any affirmative relief.
8. Defendants’ Motion to Dismiss Plaintiff’s Complaint without leave to amend and Motion for Judgement on the Pleadings is hereby granted.
9. Defendants are the prevailing parties in this action.
10. Defendants’ counsel, Charles L. Simon, is entitled to recover costs, including reasonable attorneys’ fees of and from Plaintiff.
11. The Court retains jurisdiction to award Defendants’ counsel costs including reasonable attorneys’ fees of and from Plaintiff.
