[RPPTL LandTen] Residential 3 day and 15 day notices together

Thu Mar 17 14:49:27 PDT 2016

Below is an excerpt from a county court judge (Pope Hamerick III)
Defendants argue that the Landlord failed to properly invoke the Court's jurisdiction because a proper three day notice is a condition precedent for an eviction complaint and that two notices that are conflicting and confusing are defective as a matter of law, fail to comply with the statutory requirement of Section 83.56(3) of the Florida Statutes, and therefore the condition precedent to bring this suit was not met.
The question becomes is a notice defective if there are two notices that are conflicting, one notice states I have to move the other notice say I have to pay to stay.

Leonard P. Cabral
Leonardcabral at lenslaw.com

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Leonard Cabral
Sent: Thursday, March 17, 2016 5:40 PM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Subject: Re: [RPPTL LandTen] Residential 3 day and 15 day notices together

In the event that a tenant or subtenant “holds over beyond the term of his tenancy, the landlord has among his possible remedies the options of: (1) demanding double rent; (2) demanding a specific amount of continuing rent; or (3) suing for the possession of the property plus damages, including special damages for loss of the property's use.” Lincoln Oldsmobile, Inc. v. Branch, 574 So. 2d 1111, 1113 (Fla. 2d DCA 1990). The three remedies are mutually exclusive, and “the tenant's continued holdover constitutes an implied agreement to pay the rent demanded.” Id.
The way I read it requires notice that the lanldord will seek double rent if the tenant holds over or the tenant will be required to continue to pay the rent.
Leonard P. Cabral
Leonardcabral at lenslaw.com<mailto:Leonardcabral at lenslaw.com>

From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Lainie Simon
Sent: Thursday, March 17, 2016 5:13 PM
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Subject: Re: [RPPTL LandTen] Residential 3 day and 15 day notices together

I disagree about the double rent.  It applies from when the tenant holds over after termination, regardless of the reason.  I have never had a court rule otherwise.
Next, to be prudent, I would plead each termination separately in a separate count.  I do not see the down side in doing so.

My clients only serve both notices if they want the tenant out and don’t care if they pay.  If the tenant gets both, the tenant won’t pay because what delinquent tenant would pay the three day knowing they were terminated anyway?  My landlord clients do this when there is some issue with the three day, such as a dispute about the amount of rent or utilities, or whatever, that could delay an eviction on a three day, or any complaint about the landlord’s maintenance that could lead to a defense.  Next, if the tenant doesn’t pay regular rent, what is the likelihood that the landlord is going to see any double rent, unless there is a spectacularly solvent guarantor?  Landlords have to be realistic here.  A piece of paper is not money.  The landlord has to be fully educated and committed to bother to go through with the damages side, and the money should be worth it.  It rarely is in the run of the mill case.

By the time my clients want to get rid of a tenant, it is usually well beyond the value of one month of rent.  The landlord just wants the problem gone, and is willing to make the trade.  In any case, it is never a bad idea to be conservative and prudent, and plead everything separately and limit any potential defenses.

Lainie J. Simon, Esq.
185 NW Spanish River Boulevard
Suite 220
Boca Raton, FL  33431
561.445.1361
561.997.6224(fax)

PRIVILEGE AND CONFIDENTIALITY NOTICE: This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally privileged. The contents of this e-mail message and any attachments are intended solely for the party or parties addressed and named in this message. This communication and all attachments, if any, are intended to be and to remain confidential, and it may be subject to the applicable attorney - client and or work product privileges. If you are not the intended recipient of this message, or if this message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this message and its attachments. Do not deliver, distribute, or copy this message and or any attachments if you are not the intended recipient. Do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments. Although this E-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the  responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for damage arising in any way from its use.
Ê

On Mar 17, 2016, at 4:54 PM, Pat at hoganlegalservices.com<mailto:Pat at hoganlegalservices.com> wrote:

Alberto Cardet, I like your suggestion. Is there any case cite for your first paragraph?

Patrick T. Hogan, Esq.
Hogan Legal Services, P.A.
Pat at HoganLegalServices.com<mailto:Pat at hoganlegalservices.com>

-------- Original message --------
From: Alberto Cardet <alcardet at gmail.com<mailto:alcardet at gmail.com>>
Date:03/17/2016 4:02 PM (GMT-05:00)
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Subject: Re: [RPPTL LandTen] Residential 3 day and 15 day notices together
If your eviction / possession count is based on the 3-day notice then the tenancy was terminated pursuant to the 3-day notice, I don't know that you would be entitled to the double rent as a holdover, even if you waint until the next rental period.  If you plan on waiting for the next rental period anyway, in order to make the claim for double rent I would just use the 15-day notice to avoid any confusion defense

I have used the two notices together for landlords that want possession no matter what, landlord serves 3-day notice and hopes tenant does not pay so that eviction can start right away, and also serves a 15-day notice just in case payment is made,

Cardet Law, P.A.
1330 Coral Way #301
Miami FL 33145
305-403-7783

On Thu, Mar 17, 2016 at 3:02 PM, Lainie Simon <ljsimon1 at comcast.net<mailto:ljsimon1 at comcast.net>> wrote:
Mine usually do not do them together for that reason.
Note that the 15 day is not a real 15 day.  It is 15 days prior to the next time rent is due.  So for March, the ship has sailed.

Lainie J. Simon, Esq.
185 NW Spanish River Boulevard
Suite 220
Boca Raton, FL  33431
561.445.1361<tel:561.445.1361>
561.997.6224<tel:561.997.6224>(fax)

PRIVILEGE AND CONFIDENTIALITY NOTICE: This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally privileged. The contents of this e-mail message and any attachments are intended solely for the party or parties addressed and named in this message. This communication and all attachments, if any, are intended to be and to remain confidential, and it may be subject to the applicable attorney - client and or work product privileges. If you are not the intended recipient of this message, or if this message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this message and its attachments. Do not deliver, distribute, or copy this message and or any attachments if you are not the intended recipient. Do not disclose the contents or take any action in reliance upon the information contained in this communication or any attachments. Although this E-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the  responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for damage arising in any way from its use.
Ê

On Mar 17, 2016, at 12:46 AM, Mike Davis <mike at mgfdlaw.com<mailto:mike at mgfdlaw.com>> wrote:

Pat
The Notices aren't mutually exclusive.  I think it's the smart move by any landlord to serve a 3day.  Maybe he gets paid.  Then before the 15 day notice period to serve the non-renewal. Serving them together just insures no rent payment.  My clients don't see trading a chance at current rent to include it in a judgment as a good trade.

Either way he can file a 2-count complaint.

Sent from my iPhone

On Mar 16, 2016, at 10:41 PM, "pat at hoganlegalservices.com<mailto:pat at hoganlegalservices.com>" <pat at hoganlegalservices.com<mailto:pat at hoganlegalservices.com>> wrote:
Landlord wants to give simultaneous 3 day and a 15 day notices, and then wait to file for the eviction in the next month to try and get double rent (In other words a complaint for an eviction based on violation of 3-day notice in Count I, but a damages Count II based on double rent (83.58) from the refusal to get out at end of the month).

Any/All thoughts appreciated.

Thank you.

Patrick T. Hogan, Esq.
Hogan Legal Services, P.A.
Pat at HoganLegalServices.com<mailto:Pat at HoganLegalServices.com>

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