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

Thu Sep 4 13:47:52 PDT 2014

The case is Stanley v. Quest. It held that even if no three day notice was alleged to have been issued, if there is an agreed upon amount owed into the registry, or if the court finds a certain amount is due, that money must be deposited or a default and judgment is entered. Hence, a three day notice is not a condition precedent in that an eviction can be completed, as in you cannot argue that failure to provide it would necessitate the dismissal of the case regardless of any other factors like money owed. In combination with the statutory change, it certainly could be argued that a defective notice is no longer an applicable defense in evictions.

One question Anthony. Did your client attempt to pay what he believed to be the correct amount due? I have also had clients do that when I have caught them early enough. That would give rise to a different defense, that being refusal of rent, instead of a notice issue. Most times I do not catch them early enough, but may apply in your case.

James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Harry Heist
Sent: Thursday, September 04, 2014 4:31 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Cure defective notice during pendency of case?

This is an example of a messy, confusing statutory change where the Bar sat back and did not get involved. Again.

Harry

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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of James Zink
Sent: Thursday, September 04, 2014 4:23 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Cure defective notice during pendency of case?

Anthony,

I have some of the same questions you have about that change to the statute, and it scares the heck out of me as a tenant attorney as I believe it could be interpreted that way. I can answer at least a few items there. First, I believe there is case law out there that holds a three day notice is not considered a condition precedent. I operate out of the 4th DCA and I am pretty sure it was from that court. I will try to find it.

Second, in the limited times I have actually argued this, I would argue the landlord must at least substantially comply with the three day notice requirement. As in, if the landlord is 100 dollars off and the tenant owes 5000, that is one thing, but if in your case, the landlord doubled the amount owed, I would argue that such a deficiency should not be curable by a simple amendment and requires a new three day notice to be served. In other words, I encourage the judge the read the statute as defining deficiency as incidental or relatively minor, but for major items, would require a new notice. To be honest, this is just trying to give a judge an opening to make a ruling in a tenant's favor, and if you get a judge who just thinks your client should be out, they can probably use that part of the statute to do it. It was a non-sense change to the statute that could be a death knell for tenants in the hands of a landlord friendly judge. I routinely caution clients about this and that different judges could provide very different outcomes before they put money into the registry.

If anyone has anything that can be used to combat this from the DCA level, it would be greatly appreciated, though I know this is largely a landlord rep list serv.

James Zink, Esq.
Florida Rural Legal Services, Inc.
3111 South Dixie Highway, Suite 140
West Palm Beach, FL 33405
Phone: (561) 820-8902 x. 6025
Fax: (561) 820-8892

The information contained in this e-mail, including any attachment(s), is intended solely for use by the named addressee(s). If you are not the intended recipient, or a person designated as responsible for delivering such messages to the intended recipient, you are not authorized to disclose, copy, distribute or retain this message, in whole or in part, without written authorization from the sender.  If you have received this message in error, please notify the sender immediately

From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Thursday, September 04, 2014 4:12 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Cure defective notice during pendency of case?

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,

[cid:image003.png at 01CFC85E.F0960BC0]

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

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