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

Thu Sep 25 13:20:11 PDT 2014

Thank you everyone for your responses.  This might be an ActionLine article
in the making.    

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                    

www.horkylaw.com

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Thursday, September 04, 2014 7:24 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Cure defective notice during pendency of case?

Someone on this list stated that this amendment would cause more problems
was right.  As far a jurisdiction there are 3 prongs to jurisdiction,
Subject matter, personal, and procedural. There is a Bar Journal article
that explains this and is available online on the Fl bar webpage.  What most
tenant filed was a motion to dismiss for lack of jurisdiction due to a three
day notice 

Failed to explain procedural jurisdiction which would include a condition
precedent.  Others filed motion to dismiss for failure to state a cause of
action which is more accurate since the condition precedent was not
fulfilled.  

With the new law it seems he condition precedent can be corrected by serving
a new notice and an amended complaint which I would argue is not allowed by
Chapter 51.   My conundrum is does a motion to determine rent heard before a
motion to dismiss for defective notice so the landlord can correct the
pleading.  If the landlord can amend a notice and serves it and the tenant
complies is the case dismissed, moot or does it proceed.  In any case who is
the prevailing party? Who is entitle to Costs and fees?   If the court
requires the rent in the registry of the court before the amended notice how
can the tenant tender rent that is in the court registry? 

Can the tenant file a counterclaim for a FCCPA violation (Fl Consumer
Collection Protection Act 559.72) for a notice that demands money not due?

Leonard P. Cabral, Esq.

Leonardcabral at lenslaw.com

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jay Taplin
Sent: Thursday, September 04, 2014 4:52 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Cure defective notice during pendency of case?

Anthony, please see footnote 1 in the attached case, it is of some help. 

Jay A. Taplin

Florida Bar Board Certified Real Estate Law
Taplin & Associates
Suite 1510, Regions Bank Tower
1555 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33401
(561) 684-8399 (ph)
(561) 471-8055 (fax)
 <mailto:jtaplin at taplinlaw.net> jtaplin at taplinlaw.net

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From:  <mailto:landten-bounces at lists.flabarrpptl.org>
landten-bounces at lists.flabarrpptl.org [
<mailto: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

LAW OFFICES OF 
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From:  <mailto:landten-bounces at lists.flabarrpptl.org>
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

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From:  <mailto:landten-bounces at lists.flabarrpptl.org>
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, 

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                    

www.horkylaw.com
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-------------------------------------------------------

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
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