[RPPTL LandTen] FW: New Tenancy Decision

Tue Dec 7 12:01:54 PST 2010

From:  Jeffrey R. Mazor, Esq. 

For the 11th Circuit, to similar effect, see:

Not Reported in So.3d, 2010 WL 2649911 (Fla.Cir.Ct.)

Only the Westlaw citation is currently available.

Florida Circuit Court, Eleventh Judicial Circuit, Miami-Dade County,

Appellate Division.

Liana CARBALLOSA, Appellant,

v.

Elizabeth ARIAS, Appellee.

Appellate Case No. 09-646 AP.

June 29, 2010.

On Appeal from the County Court, Miami-Dade County, Florida, Gladys Perez,
Judge.

Alberto Cardet, Esq., for Appellant.

Elizabeth Arias, Pro Se, for Appellee.

Before CARDONNE ELY, HUBBART, and TUNIS, JJ.

HUBBART, Judge.

*1 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.

Fla.Cir.Ct.,2010.

Carballosa v. Arias

Not Reported in So.3d, 2010 WL 2649911 (Fla.Cir.Ct.)

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Tuesday, December 07, 2010 2:55 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] FW: New Tenancy Decision

                In case this did not yet get around, this is a great
decision.

David  Weisman

Board Certified Real Estate Lawyer

Greenspoon Marder, P.A.

Trade Center South, Suite 700

100 West Cypress Creek Road

Ft. Lauderdale, FL 33309

Phone 954-491-1120

Toll Free 888-491-1120

Direct Phone 954-343-6941

Direct Fax 954-343-6942

cid:image003.png at 01C9C405.DE5F2DF0

From: Len Lubart 
Sent: Tuesday, December 07, 2010 9:54 AM
To: ALL Attorneys
Subject: FW: New Tenancy Decision

For anyone that does landlord/tenant work.

From: condomania-bounces at lists.flabarrpptl.org
[mailto:condomania-bounces at lists.flabarrpptl.org] On Behalf Of Michael J.
Gelfand
Sent: Tuesday, December 07, 2010 2:57 AM
To: RPPTL Condominium and Planned Development Committee
Subject: [RPPTL-condomania] New Tenancy Decision

Dear Committee Members

Attached is a recent 4th DCA decision, Stanley v. Quest International Inv.,
addressing a certified question from the Broward County Court:

WHETHER A TENANT CLAIMING A DEFECTIVE OR NONEXISTENT THREE-DAY NOTICE IN A
RESIDENTIAL EVICTION IS REQUIRED TO TENDER UNDISPUTED RENT INTO THE COURT
REGISTRY AS SET FORTH IN FLORIDA STATUTE §83.60(2) IN ORDER TO DEFEND THE
ACTION BASED ON THE DEFECTIVE OR NON- EXISTENT THREE DAY NOTICE.

Answering yes, the decision is notable for holding that in an eviction
action for non-payment of rent, the plain language of §83.60(2), Fla. Stat.
(2009), requires that a contesting defendant/tenant must post the disputed
rent in the court registry even if the statutory Three Day Notice is
non-existent, or defective.  

Michael J. Gelfand

Florida Bar Board Certified Real Estate Attorney

Florida Supreme Court Certified Mediator:

   Civil Circuit Court & Civil County Court

Gelfand  <http://www.gelfandarpe.com/> & Arpe, P.A.

"Assisting Communities to Efficiently Reach Goals"

Regions Financial Tower, Suite 1220

1555 Palm Beach Lakes Blvd.

West Palm Beach Florida 33401

(561) 655-6224

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