[RPPTL LandTen] LLT: 3-Day Notice

Thu May 16 14:36:24 PDT 2013

Thank you, Andrew.  Can you provide the name and author of the treatise,
as well?

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner

POTTER CLEMENT BERGHOLTZ ALEXANDER

308 East Fifth Avenue

Mount Dora, Florida 32757

Phone:  352.383.4186

Fax:       352.383.0087

jnalexander at pcld-law.com <BLOCKED::mailto:jnalexander at pcld-law.com> 

This message and any attachments are intended only for the use of the
addressee and may contain information that is privileged and
confidential.  If the reader of the message is not the intended
recipient, you are hereby notified that any dissemination of this
communication is strictly prohibited.  If you have received this e-mail
in error, please notify us immediately by replying to this e-mail
message or by telephone and delete this message and any attachments from
your system.  Thank you.

________________________________

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Andrew F.
Garofalo
Sent: Thursday, May 16, 2013 5:13 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] LLT: 3-Day Notice

This is a footnote from a treatise discussing this issue.  I have not
read the cases or Shepardized them but these cases are probably what you
need.  I believe they are mostly county court cases from Fla L Weekly
Supp.  

Footnote 53.  Hanna v. Freckleton, 11 Fla. L. Weekly Supp. 976d (11th
Cir. App. 2004); Devine v. Morales, 11 Fla. L. Weekly Supp. 356a
(Broward County 2004); Chacin v. Engle, 11 Fla. L. Weekly Supp. 845a
(Broward County 2004); Calamaro v. Mitchell, 8 Fla. L. Weekly Supp. 467c
(Broward County 2001); Caputi v. Singletary, 8 Fla. L. Weekly Supp. 125b
(Broward County 2000); Affordable Landmarks, Inc. v. Madiedo, 8 Fla. L.
Weekly Supp. 122a (Broward County 2000); Anacs v. Williams, 5 Fla. L.
Weekly Supp. 847 (Fla. Broward County Ct. 1998); Swan v. Jones, 3 Fla.
L. Weekly Supp. 36 (Fla. Manatee County Ct. 1995); Pappas v. Vaughn, 2
Fla. L. Weekly Supp. 59 (Fla. Broward County Ct. 1993); Faj-Hein v.
Storr, 1 Fla. L. Weekly Supp. 572 (Fla. Broward County Ct. 1993);
Lawson v. Alverez, 46 Fla. Supp. 2d 94 (Fla. Manatee County Ct. 1990) ;
New Citrus Park Apts. v. Jackson, 38 Fla. Supp. 2d 191 (Fla. Broward
County Ct. 1990) ;  Hoche v. Berry, 5 Fla. Supp. 2d 110 (Fla. Orange
County Ct. 1993) ;  Barcelona W. v. Ellis, 4 Fla. Supp. 2d 71 (Fla.
Orange County Ct. 1981) . See also Pearson v. Sims, 1 Fla. L. Weekly
Supp. 408 (Fla. Broward County Ct. 1993), which held that a notice was
defective when it demanded first and last month's rent plus a security
deposit. 

Andrew F. Garofalo
Attorney at Law | Board Certified in Real Estate Law

andrew at garofalolaw.net

Garofalo Law Office P.A.
7401 Wiles Road, Suite 319 | Coral Springs, FL 33067
T: (888) 658-8686 | F: (888) 658-7360
www.garofalolaw.net <http://www.garofalolaw.net/> 

The information in this communication (including any attachments) is
privileged and confidential.  If you are not the intended recipient, nor
the employee or agent responsible for delivering it to the intended
recipient, you are hereby notified that any dissemination or copying of
this communication (including any attachments) is strictly prohibited.
If you have received this communication in error, please notify the
sender.  Thank you.

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Joseph
Alexander
Sent: Thursday, May 16, 2013 4:32 PM
To: landten at lists.flabarrpptl.org
Subject: [RPPTL LandTen] LLT: 3-Day Notice

Dear Group:

I have encountered a problem in the County Court of Citrus County.  

In short, my client drafted and issued a 3-Day Notice prior to retaining
me.  Upon reviewing the 3-Day Notice I saw that the client had included
Late Fees as part of the past-due "rent".  I reviewed the Lease and it
did include language that deemed late fees as "rent".  Accordingly, I
informed the client that we could proceed with the action for eviction
using her 3-Day Notice.

I filed the Complaint with Citrus County, and immediately received an
Administrative Order indicating that if there is any non-compliance with
the Complaint or evidence at the time of the Final Judgment that the
Court could dismiss the action.  I reviewed my Complaint and exhibits
again, and determined that everything was in order.  I obtained a
Default (as to Possession) and proceeded with the Motion for Final
Judgment (Possession).  After a week or so, I received an Order of
Dismissal executed by the Judge, generally citing the Administrative
Order, Rules of Procedure and Florida Statute, but making no specific
identification of failures or deficiencies.

Upon talking to the JA I was able to "guess" that the defect was, in
fact, the 3-Day Notice including late fees.  I filed a Motion for
Rehearing, citing the Lease provision defining Late Fees as "Rent" and
the 4 references in the Complaint as to the inclusion of Late Fees as
"Rent", together with Section 83.43(6), FS, expecting the Judge to just
execute the Order vacating the Dismissal.  However, I was notified today
that the Judge is not going to sign the Order Vacating the Dismissal,
and that the matter will be set for hearing on June 4, and that the
Judge has sent the case to the Staff Attorney for research on the issue
of inclusion of Late Fees in the 3-Day Notice.

Ignoring the fact that both counts have been dismissed without any
notification of a specific failure, and ignoring the fact that the lease
will have expired by the time the hearing occurs, I am looking for any
case law on the late fees in the 3-Day Notice issue.  

I Have always just relied on 83.43(6), FS and have never had any
problems provided that the Lease defined the Late Fees (or anything
else) as "Rent".

I would really appreciate any case law on the matter, as I don't see
anything other than secondary sources.

That thud you hear is my head hitting my desk.

Thank you,                          P Think before you print.

Joseph N. Alexander | Partner

POTTER CLEMENT BERGHOLTZ ALEXANDER

308 East Fifth Avenue

Mount Dora, Florida 32757

Phone:  352.383.4186

Fax:       352.383.0087

jnalexander at pcld-law.com <BLOCKED::mailto:jnalexander at pcld-law.com> 

This message and any attachments are intended only for the use of the
addressee and may contain information that is privileged and
confidential.  If the reader of the message is not the intended
recipient, you are hereby notified that any dissemination of this
communication is strictly prohibited.  If you have received this e-mail
in error, please notify us immediately by replying to this e-mail
message or by telephone and delete this message and any attachments from
your system.  Thank you.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/mailman/private/landten/attachments/20130516/deffe53e/attachment-0001.html>