[RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res LL-T Act

[Greg Hass]

Perhaps the Enderby case can be distinguished from the hypothetical posed by Jeff in that the LL in Enderby had already given the T an 83.56 (2)(a) notice terminating the lease immediately with no chance to come into compliance.  In that situation, it doesn't really make sense for the LL to continue collecting rent from a tenant where the noncompliance alleged by the LL was supposedly of such a dastardly nature that the T should not be given any opportunity to cure.  In that situation, I can see a court saying that the LL can't have it both ways - claiming to have already terminated the lease on one hand yet continuing to accept rent in the other.

In contrast, the LL in  Jeff's hypothetical below only gave the T a "7 day cure notice" - which I'm assuming is the 7 day notice under 83.56 (2)(b).  In that circumstance the LL should be okay in accepting the rent so long as the rent is accepted by the LL before the 7 day cure period expires.  After that, it would get iffy because the suggested form notice states that the lease is "deemed terminated" unless T comes into compliance.  Thus, if LL accepts rent after the 7 days when the lease is already "deemed terminated" according to LL's notice, LL runs the risk of T arguing that the LL must have viewed the T as having come into compliance, else why would LL have accepted rent for a lease already "deemed terminated".

One thing I find perplexing is that section 83.56 (2)(b) states that if the T doesn't come into compliance within 7 days, the landlord "shall" (not "may") terminate the rental agreement by reason thereof, yet the suggested notice found in the same statute says the lease "shall be deemed" terminated.  So is the termination automatic or must the LL actually take some additional affirmative step to terminate?  If the latter, what if he doesn't?  I suppose it doesn't really matter once the LL accepts rent after the 7 days has elapsed because it will open the door for the T to argue that surely the LL must have viewed the T as having come into compliance, else why accept rent for the supposedly terminated lease.

If the statute were amended to read "may terminate" instead of "shall terminate"/"deemed terminated", it might give the LL the added flexibility desired in dealing with a T who doesn't come into compliance within 7 days as Harry alluded to below.

Greg Hass, Senior Counsel

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony Horky
Sent: Tuesday, August 02, 2011 6:19 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res LL-T Act

I don't agree with the holding in the Enderby case, Jeff.  I think that the "noncompliance" has to be of the same character.  The statute says if the landlord accepts rent with knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions...

The law recognizes/differentiates between monetary and nonmonetary defaults and that the landlord can terminate the lease for monetary and nonmonetary defaults.  In my opinion, that is what the statute does.  The statute first talks about a waiver for accepting "rent" followed by  "or" and next talks about waiver for accepting "performance by the tenant of any other provision of the rental agreement that is at variance with its provisions".

I would argue that a nonmonetary default cannot be waived by accepting monetary performance.

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Law Offices of Scott A. Frank
Sent: Tuesday, August 02, 2011 2:56 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res LL-T Act

Here's a quick variation from this commercial attorney who was faced with this residential question:

What if the tenant did work to the house that was not objected to?  Specifically, tenant painted bedrooms and replaced light fixtures.  Landlord had been in the home multiple times and viewed these changes.  Never objected.  Rent was paid and accepted for an additional 6-9 months.  After lease expiration, Landlord put a claim on the deposit.

Did landlord waive this claim?

Scott A. Frank
Attorney at Law
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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Tuesday, August 02, 2011 2:47 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res LL-T Act

A more common issue in the same vein is when a tenant owes a past due water bill or electric bill and the landlord continues to accept rent.

I don't know the answer but tell my clients that if they accept rent with knowledge of a continuing noncompliance, they may have waived their rights.  In the case of a past due elect bill type continuing noncompliance, if they accept rent, I feel they can't take action that month. I tell them to serve the 7 Day Cure the next month and if they want to proceed, refuse rent and especially do not serve a Three Day.  I am not sure that a damage like a broken window is a "continuing noncompliance".

Although it is a problem for landlords, it also can be unfair burden to a tenant if a landlord is forced to evict for a $150 electric bill and can't choose to accept rent and deal with the electric bill later.

Harry

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jeff Mazor
Sent: Tuesday, August 02, 2011 2:25 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Question on FS 83.56(5) Waiver; also, Review Res LL-T Act

Someone please tell me I'm wrong.

Assume a residential lease prohibits the tenant from damaging the Landlord's property; the Tenant does so anyway and thereafter refuses to pay for the repairs but pays (and the landlord accepts) the accruing regular monthly rent.  Later, the Landlord does a 7 day cure notice; the Tenant ignores it and instead pays and the Landlord accepts the next month's rent.

Eventually, the Landlord decides to sue. In light of Florida Statutes, Section 83.56(5)*, it seems that the Landlord has lost any remedies he may have had. For example:

Can he sue for possession?

Can he sue for money damages alone?

If by accepting the rental payments the Landlord has waived all remedies, then we need to try to change the section. It would be crazy to force a Landlord to chose immediately between suing a Tenant and losing the right to sue.

See the below copy of Enderby v. Blades.







* FS 83.56(5) If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance. Any tenant who wishes to defend against an action by the landlord for possession of the unit for noncompliance of the rental agreement or of relevant statutes shall comply with the provisions in s. 83.60(2). The court may not set a date for mediation or trial unless the provisions of s. 83.60(2) have been met, but shall enter a default judgment for removal of the tenant with a writ of possession to issue immediately if the tenant fails to comply with s. 83.60(2). This subsection does not apply to that portion of rent subsidies received from a local, state, or national government or an agency of local, state, or national government; however, waiver will occur if an action has not been instituted within 45 days of the noncompliance.

**
7 Fla. L. Weekly Supp. 413b
Landlord-tenant -- Eviction -- Landlord waived right to evict tenants for non-compliance where landlord accepted and cashed tenant's rental payment -- Complaint for tenant eviction dismissed without leave to amend

RALPH T. ENDERBY, Plaintiff, vs. MONICA BLADES, NEGUS VICKERS and LATISHA WILSON, Defendants. County Court, 17th Judicial Circuit in and for Broward County. Case No. 00-01927 COWE. March 21, 2000. Jane Fishman, Judge. Counsel: Charles L. Simon, C.L. Simon, P.A., Ft. Lauderdale, for Defendants.


ORDER GRANTING DEFENDANT'S MOTION

TO DISMISS PLAINTIFF'S COMPLAINT

WITHOUT LEAVE TO AMEND
THIS CAUSE, having come before the Court for hearing on March 17, 2000 on Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to Amend, and the Court having heard the arguments and testimony provided and otherwise being fully informed in the premises, the Court does hereby

ORDER, FIND AND ADJUDGE as follows:

1. Plaintiff filed a Complaint for tenant eviction against Defendants on March 1, 2000 based on a Seven-Day Notice dated February 21, 2000 that terminated Defendants' lease effective immediately, and gave Defendants seven (7) days to vacate the premises.


2. On or about March 8, 2000 Defendants tendered the March, 2000 rent to Plaintiff, and Plaintiff acknowledged in Open Court that he accepted and cashed said rent payment. The canceled check shows that it was deposited on March 10, 2000 and paid on March 13, 2000.

3. Section 83.56(5) of the Florida Statutes, provides that ``[i]f the landlord accepts rent with actual knowledge of non-compliance by the tenant... the landlord waives his right to terminate the rental agreement or to bring a civil action for that non-compliance.'' Pursuant to Section 83.56(5), Plaintiff waived his right to evict Defendants based on the grounds stated or referred to in the February 23, 2000 Seven-Day Notice. Moskos vs. Hand, 247 So. 2d 795 (4th DCA 1971). The In Apartments vs. Lisa McGauley and Allen Bryant, Case No. 98-3771 COWE (80), 5 F.L.W. Supp. 848b, decided by Judge Steven B. Shutter on June 22, 1998. Deerfield East Associated, Ltd. vs. Sara Cooper, Case No. 96-18097, Judge Jay S. Spechler (November 5, 1996). Homefinders vs. John (Sean, Malloy, Case No. 97-1208, Judge Jay S. Spechler (February 4, 1997). Jonathan Scott vs. Regina Jordan and Robert Lee Wilson, Case No. 97-16156, Judge Zebedee W. Wright (November 25, 1997). San Marco Partners, L.C. vs. Jennifer Wright, Case No. 98-2115 COCE (56) [5 Fla. L. Weekly Supp. 630b], Judge Ronald Rothschild (March 5, 1998).

4. Due to Plaintiff's acceptance of rent, there is no need for this Court to render an opinion as to whether Plaintiff's Seven-Day Notice dated February 21, 2000 fails to comply with the statutory requirements of Section 83.56(2) of the Florida Statutes, for the reasons noted in Defendants' Motion to Dismiss.

5. Defendants' Motion to Dismiss Plaintiff's Complaint Without Leave to Amend is hereby granted.

6. Defendants are the prevailing parties in this action.

7. Defendants' counsel, Charles L. Simon, is entitled to recover reasonable attorneys' fees of and from Plaintiff RALPH T. ENDERBY.

8. The Court retains jurisdiction to award costs, including reasonable attorneys' fees against Plaintiff.


* * *

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