[RPPTL LandTen] Cure defective notice during pendency of case?

[Anthony J. Horky]

Hello Members.  I'd appreciate your opinions on the following scenario.

 

Landlord files action for removal of a tenant (residential).  The 3-day
notice attached to the complaint is defective because it includes several
charges (all of them itemized on the notice) not defined in the lease as
rent.   After tenant files motion to dismiss, motion to determine rent, and
answers, the court holds a rent determination hearing wherein the tenant is
ordered to pay a sum certain into the register.  Tenant does so.  Next,
landlord's attorney files a motion to amend the complaint and to amend the
three day notice. Landlord does not serve the amended notice.  Instead, the
proposed Amended Complaint is identical to the original complaint accept:
(a) it no longer alleges items not defined in the lease as rent; and (b)
the 3-day notice attached to it is the amended (corrected) notice.
Moreover, the Amended Complaint still alleges that the 3-day notice
(amended) was served on ___ date-the same date as alleged in the original
complaint!   In other words, the landlord is alleging that the amended
notice was the one originally served.  

 

I've got several problems with that. 

 

Section 83.60(1)(a) says that the "landlord must be given the opportunity to
cure a deficiency in a notice or pleading before dismissal of the action."


 

QUESTIONS: 

 

1.        Does 83.60(1)(a) allow a landlord, in the middle of a lawsuit, to
change the amount due in the 3-day notice and proceed to prosecute the
eviction?  In my case, the original notice was for double what was actually
due-hence the tenant did not pay it.  Now, the corrected notice is for the
correct amount, which has already been paid into the registry.

 

2.       If the 3-day notice is a condition precedent to the right to bring
a removal action, what are the mechanics for allowing landlord to "cure" a
deficient notice before dismissal?  How can the case be allowed to proceed?

 

3.         Is the landlord permitted to falsely allege that the notice
(amended notice attached to the complaint) has already been served on the
date the deficient notice was served?  

 

Thank you for your time and opinions.  

 

 

Regards, 

 


 

AJH Logo mark

Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

2255 Glades Road, Suite 324A

Boca Raton, Florida 33431

T: 561.989.3206

F: 561.952.0096                    

 <http://www.horkylaw.com> www.horkylaw.com

 


This message and the documents attached to it, if any, are intended only for
the use of the addressee and may contain information that is attorney-client
privileged or confidential, and/or may contain attorney work product.  If
you are not the intended recipient, you are hereby notified that any
dissemination of this communication is strictly prohibited. If you have
received this communication in error, please delete all electronic copies of
this message and its attachments, if any, destroy any hard copies you may
have created and notify me immediately at:  <mailto:ahorky at horkylaw.com>
ahorky at horkylaw.com.

-------------------------------------------------------

Tax Advice Disclosure: To ensure compliance with requirements imposed by the
IRS under Circular 230, we inform you that any U.S. federal tax advice
contained in this communication (including any attachments), unless
otherwise specifically stated, was not intended or written to be used, and
cannot be used, for the purpose of (1) avoiding penalties under the Internal
Revenue Code or (2) promoting, marketing or recommending to another party
any matters addressed herein.

 

 

 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20140904/92a1e981/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 3209 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20140904/92a1e981/image001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 3895 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/landten/attachments/20140904/92a1e981/image002.png>