Land mines and other surprises in residential landlord and tenant cases.

• Author: Robbins, S. Sue
• Position: Real Property, Probate and Trust Law - Florida

Residential landlord and tenant cases in Florida are simple and quick. Forms for the notices are prescribed by statute, and the procedures are simplified and summary in nature. Yet many landlords are waylaid by dismissal, and many tenants overlook available defenses. This article will outline a few of the surprises that can embroil and delay a case, result in dismissal, or otherwise drive the unsuspecting practitioner to reach for her antacid tablets.

Defects in Notice or Pleadings vs. Requirement to Deposit Rent

In Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998), rev. denied, 717 So. 2d 528 (Fla. 1998), the Fourth District Court of Appeal clarified a significant point concerning the three-day notice prescribed by Chapter 83. (1) The statute provides that a landlord "may terminate the rental agreement" if the tenant fails to pay rent when due and the default continues for three days, excluding Saturday, Sunday, and legal holidays; after delivery of written demand by the landlord for payment of the rent or possession of the premises. In Bell, the three-day notice was defective, and, based on a number of previous circuit and county court cases recited in Bell, the trial court dismissed the eviction complaint, concluding that it lacked subject matter jurisdiction. The Bell court analyzed those cases in the light of general case law concerning the subject matter jurisdiction of a court. Reasoning that the county court's "jurisdiction of proceedings relating to the right of possession of real property and to the forcible or unlawful detention of lands and tenements," is a matter of statute, (2) and that the notice requirement can be waived in some circumstances, Bell concluded definitively that the trial court had subject matter jurisdiction over the eviction action, even if the three-day notice failed to substantially comply with the requirements of [section] 83.56(3). Rather, according to Bell, that statute creates a condition precedent to an eviction action. "Failure of a plaintiff landlord to deliver any written notice under [the statute] would not deprive the court of the power to adjudicate the case." (3) Therefore, the three-day notice is not a matter of subject matter jurisdiction, but is a precondition to the maintenance of an action for eviction.

While Bell was clear in its holding and left no question that the three-day notice is not jurisdictional, the application of the holding by county and circuit courts statewide has varied and the results have been diverse.

A number of cases, (4) while recognizing the rule of Bell either by reference or inference, have held that where the three-day notice was facially defective, an essential element of the plaintiffs case was missing, thus mandating dismissal. Other county and circuit courts (5) have held that a defense based on a defect in the three-day notice is waived by the failure of the tenant to deposit rent into the registry of the court as also required by statute. (6)

While [section] 83.56 (3) requires "substantial" compliance with the provisions of that section, cases have required strict compliance with a number of very specific requirements, some of which may be a surprise to a well meaning party or attorney. Numerous cases have determined a three-day notice to be fatally defective where less than three days' notice is given, (7) or Saturdays and Sundays are included in the three days. (8) There are many other ways to go wrong, however. For example, a three-day notice will be fatally defective if the lease calls for a 10-day notice, (9) where the notice demands money other than rent, (10) where it fails to include the landlord's address and telephone number, (11) or where it fails to give an additional five days in which to comply with the rent demand and the landlord is out of town or furnishes a post office box address in the three-day notice. (12) In view of the statute's stated requirement of "substantial" compliance with the statutory notice form, particular notice should be taken by lawyers representing landlords of the rulings of those now numerous dismissed cases in which the three-day notice contained language to the effect that the tenant should "vacate, quit, and deliver up the premises" and that he or she could "reinstate" the tenancy upon payment of the rent within the three-day period of the notice? This and similar language has repeatedly been held by county and circuit courts not to comply with the requirements of [section] 83.56(3).

While specifically referencing Bell, some circuit and county courts have held that the requirement of a valid three-day notice must be "strictly construed," and may be raised at any point in the summary proceeding, even on appeal. (14) On the other hand, such an interpretation might be seen as inconsistent with the rent deposit requirement of [section] 83.60(2), which provides:

In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due.... Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within five days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process 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 with a writ of possession to issue without further notice or hearing thereon.

An interesting problem for judges, and,one which must, in the absence of precedent, be resolved primarily on the basis of personal philosophy, concerns the treatment of those cases where the three-day notice is...