No rachmones: the dynamics of Florida's pay-to-play eviction litigation.

• Author: Chamorro, Miguel J.

Shortly after a landlord and tenant enter into a commercial lease, bad blood develops between them. A dispute about the start of rent commencement culminates in an action for eviction over the nonpayment of rent. After the tenant answers the complaint, the landlord files a motion to determine the amount of rent due under the lease pursuant to F.S. [section]83.232--par for the course in nonpayment of rent actions. F.S. [section]83.232(1) provides that in an eviction action:

[T]he tenant shall pay into the court registry the amount alleged in the complaint as unpaid, or if such amount is contested, such amount as is determined by the court, and any rent accruing during the pendency of the action, when due, unless the tenant has interposed the defense of payment or satisfaction of the rent in the amount the complaint alleges as unpaid. Unless the tenant disputes the amount of accrued rent, the tenant must pay the amount alleged in the complaint into the court registry on or before the date on which his or her answer to the claim for possession is due. If the tenant contests the amount of accrued rent, the tenant must pay the amount determined by the court into the court registry on the day that the court makes its determination.... (1)

In a gesture of civility, the parties forgo a hearing on the motion by agreeing to an order that requires the tenant to deposit the undisputed rent that is due monthly into the court registry "on or by the first day of each month." Otherwise, the parties prepare for what they expect to be a lengthy lawsuit.

Several months later, the landlord notices that the tenant was two days late with one of its court-ordered payments. The landlord takes advantage of this seeming triviality by invoking F.S. [section]83.232(5), which states that the tenant's failure to pay as specified by the order: "[S]hall be deemed an absolute waiver of the tenant's defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon."

Accordingly, the landlord submits to the court an ex parte motion for default with a printout of the case docket and a proposed final judgment of possession. Within days, the court enters the judgment for possession. What seemed destined to be resolved through protracted litigation came instead to a swift conclusion due to this tenant's procrastination. Unable to deposit money into the court registry on the first day of a month that started on a weekend, the hapless tenant waited until the first Monday of the given month. Upon realizing his fatal mistake, the tenant filed an emergency motion to stay the eviction--an act of futility, as the judgment of possession was upheld.

The outcome described above was based on precedent like Park Adult. Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811 (Fla. 3d DCA 2010). The court in Park Adult utilized a word that appears on the title of this article, "rachmones" (Yiddish for "mercy"), to justify what one could consider an unfair ruling: "Although we may have 'rachmones' for the tenant ... the law is the law. It is not our job to carve exceptions into an otherwise clear and imperative statute." (2) Was such an outcome, in fact, justified? This article explores the uniqueness of F.S. [section]83.232 and its substantially similar residential counterpart, F.S. [section]83.60(2), their bright-line application by courts, and practical aspects concerning their use.

The Landlord's Favorite Law

F.S. [section][section]83.232 and 83.60(2) were enacted to prevent delinquent tenants from unjustly enriching themselves at their landlord's expense by occupying the premises rent-free while their landlord sues to evict them. (3) As one court explained it, "[w]e see no more reason to expect a landlord to continue furnishing housing without rent than to expect an oil supplier to continue furnishing oil without payment during a period of litigation." (4) These statutes preclude a scenario that is all too common in the residential mortgage foreclosure context: While foreclosure lawsuits are pending against them, delinquent mortgagors continue to live in their homes without paying anything, oftentimes for years. As such, these statutes are priceless tools for landlords because they presumably cull the meritorious tenants (i.e., those that can or are willing to pay the rent) from those that litigate in bad faith (i.e., those who lack the financial wherewithal or willingness to pay but defend the lawsuit anyway).

The statutes are appropriately nicknamed "pay-to-play" because a tenant must pay some rental money to retain possession of the premises during the eviction action, unless he or she proves that nothing is owed. Irrespective of the merits of the lawsuit, the failure to pay is fatal to the tenant because it thereupon loses the right to defend itself. Such an outcome is generally logical to a landlord, but it can sometimes be downright providential. A landlord that successfully invokes the statutory eviction-by-default can negotiate a favorable settlement of any related claims asserted in the lawsuit, which are typically monetary damages. Conversely, a tenant who may have been eager to litigate may welcome negotiations with the landlord once it is evicted or learns that a writ of possession has issued. Even a financially strong tenant is likely to agree to an unfavorable settlement because an eviction may block him or her from a critical source of revenue and cause liabilities to accrue at an alarming pace.

Playing with Fire

The plain language of F.S. [section][section]83.232 and 83.60(2) dictates a stern penalty to tenants who violate pay-to-play orders. To comply with them is a condition for maintaining, as opposed to merely raising, defenses to an eviction action. Upon a violation, the trial court "has no discretion other than to enter an immediate default for possession without further notice or hearing thereon." (6) Missed or late...