Land Mines and Other Surprises in Residential Landlord and Tenant Cases
Residential landlord and tenant cases in Florida are simple and quick. Forms for the notices are prescribed by statute, and the procedures are simplified and summary in nature. Yet many landlords are waylaid by dismissal, and many tenants overlook available defenses. This article will outline a few of the surprises that can embroil and delay a case, result in dismissal, or otherwise drive the unsuspecting practitioner to reach for her antacid tablets.
Defects in Notice or Pleadings vs. Requirement to Deposit Rent
In Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998), rev. denied, 717 So. 2d 528 (Fla. 1998), the Fourth District Court of Appeal clarified a significant point concerning the three-day notice prescribed by Chapter 83.1 The statute provides that a landlord “may terminate the rental agreement” if the tenant fails to pay rent when due and the default continues for three days, excluding Saturday, Sunday, and legal holidays, after delivery of written demand by the landlord for payment of the rent or possession of the premises. In Bell, the three-day notice was defective, and, based on a number of previous circuit and county court cases recited in Bell, the trial court dismissed the eviction complaint, concluding that it lacked subject matter jurisdiction.
The Bell court analyzed those cases in the light of general case law concerning the subject matter jurisdiction of a court. Reasoning that the county court’s “jurisdiction of proceedings relating to the right of possession of real property and to the forcible or unlawful detention of lands and tenements,” is a matter of statute,2 and that the notice requirement can be waived in some circumstances, Bell concluded definitively that the trial court had subject matter jurisdiction over the eviction action, even if the three-day notice failed to substantially comply with the requirements of §83.56(3). Rather, according to Bell, that statute creates a condition precedent to an eviction action. “Failure of a plaintiff landlord to deliver any written notice under [the statute] would not deprive the court of the power to adjudicate the case.”3 Therefore, the three-day notice is not a matter of subject matter jurisdiction, but is a precondition to the maintenance of an action for eviction.
While Bell was clear in its holding and left no question that the three-day notice is not jurisdictional, the application of the holding by county and circuit courts statewide has varied and the results have been diverse.
A number of cases,4 while recognizing the rule of Bell either by reference or inference, have held that where the three-day notice was facially defective, an essential element of the plaintiff’s case was missing, thus mandating dismissal. Other county and circuit courts5 have held that a defense based on a defect in the three-day notice is waived by the failure of the tenant to deposit rent into the registry of the court as also required by statute.6
While §83.56 (3) requires “substantial” compliance with the provisions of that section, cases have required strict compliance with a number of very specific requirements, some of which may be a surprise to a well meaning party or attorney. Numerous cases have determined a three-day notice to be fatally defective where less than three days’ notice is given,7 or Saturdays and Sundays are included in the three days.8 There are many other ways to go wrong, however. For example, a three-day notice will be fatally defective if the lease calls for a 10-day notice,9 where the notice demands money other than rent,10 where it fails to include the landlord’s address and telephone number,11 or where it fails to give an additional five days in which to comply with the rent demand and the landlord is out of town or furnishes a post office box address in the three-day notice.12 In view of the statute’s stated requirement of “substantial” compliance with the statutory notice form, particular notice should be taken by lawyers representing landlords of the rulings of those now numerous dismissed cases in which the three-day notice contained language to the effect that the tenant should “vacate, quit, and deliver up the premises” and that he or she could “reinstate” the tenancy upon payment of the rent within the three-day period of the notice.13 This and similar language has repeatedly been held by county and circuit courts not to comply with the requirements of §83.56(3).
While specifically referencing Bell, some circuit and county courts have held that the requirement of a valid three-day notice must be “strictly construed,” and may be raised at any point in the summary proceeding, even on appeal.14 On the other hand, such an interpretation might be seen as inconsistent with the rent deposit requirement of §83.60(2), which provides:
In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. . . . Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within five days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon.
An interesting problem for judges, and one which must, in the absence of precedent, be resolved primarily on the basis of personal philosophy, concerns the treatment of those cases where the three-day notice is facially defective to some degree, but a default is entered. Since a default under Fla. R. Civ P. 1.500 operates as an admission only as to the well pleaded allegations of the complaint,15 and since the three-day notice is a condition precedent to the filing of an eviction complaint as per Bell, a legitimate question is raised whether a judgment of eviction after default can properly be entered in such a case. On the other hand, the requirements of a three-day notice can be waived under some circumstances,16 and the failure of the tenant to deposit the rent into the registry of the court pursuant to §83.60(2) may be one of those.17
Until the matter is addressed by the district courts of appeal or the Florida Supreme Court, it is predicted that trial courts, and circuit courts in their appellate capacity, will continue to diverge widely in their treatment of this area of the law.18
Claims Against Deposits Held by Landlords
statute19 the landlord must, within 15 days of the tenant’s vacating of the premises upon termination of the lease, either return the security deposit or give the tenant written notice by certified mail of the landlord’s intention to impose a claim on the deposit and the reason for imposing the claim. The statute applies whether the deposit is for advance rent or for security or damages. The notice directs the tenant to object in writing to the proposed deduction within 15 days. If the landlord fails to give the required notice within the 15-day period, the landlord forfeits the right to impose any claim upon the security deposit.
On the other hand, if the tenant vacates or abandons the premises prior to the termination of a written or oral lease, the tenant must give at least seven days’ written notice by certified mail or personal delivery to the landlord prior to vacating or abandoning the premises. The notice must include the address where the tenant may be reached.20 Failure of the tenant to give the notice relieves the landlord of the notice requirement of §83.49(3)(a), but does not otherwise affect the right of the tenant to all or part of the security deposit.
There are many important considerations for landlords, tenants, and the attorneys who represent them regarding the return of these deposits, particularly in view of the fact that fee awards in these disputes are mandatory.21 Discussion here is limited to three points.
First, if the premises are vacated at the end of the tenancy or term, the only required notice is from the landlord. If the tenant has not advised the landlord of the tenant’s new address, the landlord must still furnish written notice to the tenant at the tenant’s last known address, i.e., the leased premises.22 If the landlord fails to send the notice, or fails to send a notice that substantially complies with the requirements of the statute, including notice to the tenant that the tenant must reply and object within 15 days, then the landlord is barred from all claims to the deposit. This would be true even if the tenant destroyed the premises.23
Second, the tenant’s failure to serve the notice required under §83.49(5) serves only to relieve the landlord from his or her own notice requirement, but does not entitle the landlord to retain the security deposit.24 It is doubtful that, and no reported decisions were found where, a tenant would be required to give notice to the landlord if the landlord is terminating the tenancy through eviction proceedings. However, the landlord’s own notice requirements would arguably still be imposed.
Third, even if the landlord forfeits his or her right to claim the security deposit as the result of failing to give the necessary notice, the landlord still can pursue a claim for damages against the tenant. The failure to give the notice affects only the landlord’s claim against the security deposit.25
Issues Concerning Attorneys’ Fees
The landlord/tenant statute contains a general provision for the award of attorneys’ fees to the prevailing party.26 That statute provides that in any civil action brought to enforce the provisions of a rental agreement or provisions of Chapter 83, “the party in whose favor a judgment or decree has been rendered may recover reasonable court costs, including attorneys’ fees, from the nonprevailing party.” An award of fees under this statute is discretionary. However, the appellate courts have imposed limits on the exercise of that discretion. For example, it is not a proper exercise of discretion to award or deny fees based on the need of one party for funds with which to obtain counsel or the ability of the other party to furnish all or a portion of those funds, as is done in family law cases, and a fee determination made on that basis will be reversed on appeal.27
A written lease may provide a second, and sometimes broader, basis for an award of fees in a landlord and tenant case. For example, a lease provision may require an award of fees which is not discretionary. Such a provision will generally be binding upon the parties to the lease, and will continue to be binding even in the case of a tenant who holds over after the lease has terminated.28
A separate statute29 with an impact on fees in landlord and tenant cases provides that if a contract contains a provision allowing attorneys’ fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorneys’ fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. The effect of this statute is to take a unilateral lease provision for fees and to make it mutual.
As previously noted, fees in cases involving disputes over deposits held by landlords are not discretionary but are mandatory, and a trial court failing to award fees in such cases generally will be reversed on such grounds.30
The appellate decisions concerning fee awards for pro bono attorneys representing prevailing parties in landlord and tenant cases under any of these theories have reflected a strong tendency to approve such awards, and to reverse county court decisions which denied fees on the basis that the party to whom the service was rendered did not pay. For example, in Fergeston v. James,31 the circuit court reversed the county court’s denial of a fee award to the attorney for the successful tenant in an eviction case, even though the attorney had no expectation of payment from the tenant. Under these cases, it does not make a difference whether the attorney is a private attorney or a legal aid attorney.32
Obviously, there are some circumstances where a fee award is improper. An example of such a situation is found in Bianchi v. Goldman, 2 Fla. L. Weekly Supp. 579 (Fla. 11th Cir. 1994), in which the lease contained a provision which limited the amount of fees to be awarded to “15 percent of the recovery” by the landlord. The trial court awarded a $1,200 fee upon the recovery by the landlord of rent in the amount of $1,800. The appellate court reversed, and reduced the award to $270 without any additional hearing upon remand.
In Miami Beach Equity Investors Limited Partnership v. Granoff, 4 Fla. L. Weekly Supp. 755 (Fla. 11th Cir. 1997), the tenant sued to recover her security deposit upon termination of her tenancy by the landlord. The trial court found for the tenant, and awarded her fees and costs in the judgment. Subsequently, the landlord moved for rehearing, which motion was denied based on the trial court’s determination that no new issues were raised. The trial court then awarded additional fees to the tenant for the rehearing procedures based upon §57.105 on the grounds that there was a complete absence of any justiciable issue of law or fact raised by the motion for rehearing. The appellate court reversed the award of fees to the tenant for the rehearing only, holding that the fact that the matters had been argued previously did not render them meritless.33
Attorneys may also need a gentle reminder, since the issue does come up, that fees cannot be awarded in landlord and tenant cases if entitlement to fees is not pled.34
Another area where fee problems frequently arise in landlord and tenant cases is the determination of who is the prevailing party under the applicable statutes. Presently, under Florida law, the prevailing party for purposes of an attorneys’ fee award is the party who prevails on the significant issues in the litigation.35 Since sometimes there are multiple significant issues, confusion arises.
In Burns v. Telson, 8 Fla. L. Weekly Supp. 68 (Fla. 11th Cir. 2000), the circuit court reversed the county court’s failure to award fees under §83.49(3), because the county court made a determination both parties prevailed. The circuit court in Burns relied upon the decision of the Fourth District Court of Appeal in Lucite Center, Inc. v. Mercede, 606 So. 2d at493 (Fla. 4th DCA 1992), where the court declared that in “a breach of contract action, one party must prevail.”
Relying on other and later decisions of the courts of appeal,36 the circuit court in Marcosky v. Istesso, Inc., 8 Fla. L. Weekly Supp. 273 (Fla. 9th Cir. 2001), affirmed the trial court’s decision to deny both parties’ claims for fees in a security deposit dispute case on the grounds that both had prevailed on separate issues.
More Surprises
There are countless other matters which come up in landlord and tenant cases which can turn a simple summary eviction into a tar baby. A few examples of the variety of problems which arise will serve, but the possibilities are endless!
Clearly, an eviction action must be filed by the proper party. In a case37 in which the lease agreement and the three-day notice named someone other than the plaintiff as the landlord and owner of the property, the plaintiff had no apparent authority to file for eviction, even though the complaint averred ownership. The tenant objected on the grounds of standing, but failed to deposit money into the registry of the court. The trial court entered a default against the tenant after hearing, and judgment against the tenant followed. The appellate court reversed.38
In a reported trial court decision,39 the leased property was owned by the estate of the plaintiff’s deceased husband, and the plaintiff was not the personal representative. Upon the tenant’s motion to dismiss, the trial court charitably abated the action for 30 days in order to allow the plaintiff to plead and prove either ownership or authority to represent the interests of the estate. The tenant was not required to deposit rent in the meantime.
In a unique commercial landlord and tenant case which is included here because of the possible application of the reasoning in residential cases as well,40 the tenant failed to pay rent on time, but had spent very substantial sums in improving the property. The appellate court, in affirming the trial court’s denial of the eviction, reasoned that the landlord would receive a windfall if the lease were forfeited under the circumstances, in that the property could be leased at a substantially greater rental amount, thanks largely to the tenant’s improvements.
The opinion specifically includes the caveat, “Although the facts revealed that the landlord had established a pattern of accepting late rent, this opinion in no way endorses or condones the late payment of rent, but the unique facts of this case do not justify a forfeiture when all of the equities are considered.”41
On the issue of service of process by posting which is specifically authorized in landlord and tenant cases,42 it is important to recognize that such service also requires mailing. Service is “effective on the date of posting or mailing, whichever occurs later.”43
When a landlord elects to proceed with service by posting under the statute, the landlord is limited to recover possession only. This has been clarified by the appellate courts to exclude even an award of costs.47
Conclusion
Landlord and tenant cases are frequently fraught with legal and factual complexities. At the same time, in many of the cases, one or both parties are unrepresented by counsel. Adding to the difficulty, since the great majority of the cases are filed in county court, there are relatively few reported appellate decisions, and those that do exist are more difficult to locate.
It is hoped that this article will serve to point out to attorneys who practice in this area a few of the potential problems to watch out for.
1 Fla. Stat. §83.60(2).
2 Fla. Stat. §34.011(2).
3 Bell, 705 So. 2d at 114.
4 Among many possible examples: Deosaran v. Griffin, 5 Fla. L. Weekly Supp. 629 (Fla. Broward County Ct. 1998), in which the three-day notice failed to give a date to pay rent, Judge Rothschild granted a motion to dismiss with prejudice and awarded fees to the defendant as prevailing party; Mendes-Weeks v. Hall, 5 Fla. L. Weekly Supp. 782 (Fla. Broward County Ct. 1998), in which the three-day notice included a demand for a security deposit in addition to rent, Judge Herring granted a motion to dismiss with prejudice and awarded fees to the defendant; Chavez v. Hunter, 5 Fla. L.Weekly Supp. (Fla. Alachua County Ct. 1998), in which the “three-day” notice was served on a Friday and demanded rent or possession on the following Monday, Judge Sieg ruled that the notice was insufficient to terminate the tenancy and could not be the basis for a judgment of eviction; therefore, the tenant’s motion to dismiss was granted without prejudice; Cruise v. Slack, 6 Fla. L.Weekly Supp. (Fla. Escambia County Ct. 1998), in which the amount of rent demanded was inaccurate, Judge White granted the defendant’s motion to dismiss with prejudice “even where defendant has not deposited rent into the registry”; Peninsula Real Estate v. Granizo 6 Fla. L.Weekly (Fla. Dade County Ct. 1999), in a §8 eviction case in which the three-day notice included a demand for the portion of the rent for which the housing authority is legally responsible, Judge Dakis granted the tenant’s motion to dismiss without prejudice.
5 Among many possible examples, only several of which have been published: Christenson v. Chandler, 8 Fla. L.Weekly Supp. 468 (Fla. Broward County Ct. 2001), in which the three-day notice was defective in that it was not signed by the landlord, and Judge Pratt reasoned that it was unfair and contrary to the purposes of the statute to dismiss the landlord’s complaint with prejudice, in the absence of the tenant’s rent deposit, solely because the tenant was not properly notified; Johnson v. Francois, 6 Fla. L.Weekly Supp. 585 (Fla. 9th Cir. App. 1999), in which the three-day notice was defective but no rent was deposited by the tenant, and the Ninth Circuit in its appellate capacity reversed the county court’s dismissal on that grounds.
6 Fla. Stat. §83.60.
7 E.g., Viewmax Corporation v. Brown, 5 Fla. L.Weekly Supp. 629 (Fla. Broward County Ct. 1998) (two days’ notice).
8 E.g., San Marco Partners v. Wright, 5 Fla. L.Weekly Supp. 630 (Fla. Broward County Ct. 1998).
9 Kleiman v. Clara’s Closet Thrift Shoppe, Inc., 7 Fla. L.Weekly Supp. 695 (Fla. Broward County Ct. 2000).
10 Russell v. Thompson, 7 Fla. L.Weekly Supp. 554 (Fla. Broward County Ct. 2000).
11 Miller v. Doheny, 7 Fla. L.Weekly Supp. 412 (Fla. Broward County Ct. 2000).
12 Scott v. Ward, 7 Fla. L.Weekly Supp. 357 (Fla. Broward County Ct. 2000) (landlord’s address in Brooklyn, New York); Cadet v. Toussaint, 7 Fla. L.Weekly Supp. 66 (Fla. Broward County Ct. 1999) (landlord’s address given as post office box in three-day notice).
13 E.g., Ridore v. Stevens, 7 Fla. L.Weekly Supp. 147 (Fla. Broward County Ct. 1999); Calamaro v. Mitchell, 8 Fla. L.Weekly Supp. 467 (Fla. Broward County Ct. 2001; Myers v. Hart, 7 Fla. L.Weekly Supp. 697 (Fla. Broward County Ct. 2000) (notice stating that tenant may “redeem her tenancy if payment is made”).
14 Rhoades v. Moorland, 7 Fla. L.Weekly Supp. 67 (Fla. Broward County Ct. 1999) in which the tenant was initially defaulted, and then raised the inadequacy of three-day notice in a motion to stay the writ of possession; Hodgson v. Jones, Case No. 99-5583 (02) (Circuit Ct., Broward Co., September 24, 1999), cited in Rhoades.
15 Trawick, Florida Practice and Procedure §25-4.
16 E.g., Moskos v. Hand, 247 So. 2d 795 (Fla. 4th D.C.A. 1971) (waiver by lease provision); Clark v. Hiett, 495 So. 2d 773 (Fla. 2d D.C.A. 1986) (waiver by lease provision).
17 See K.D. Lewis Enterprises Corporation, Inc. v. Smith, 445 So. 2d 1032 (Fla. 5th D.C.A. 1984) (the requirement of the rent deposit is not rendered inapplicable by virtue of defenses or counterclaims raised by tenants).
18 Notably, Broward County appears to lead the way in published opinions to the effect that eviction complaints must be dismissed with prejudice, even absent a deposit of rent by the tenants in the event of a defective three-day notice. This is true even though Christenson v. Chandler held exactly the contrary and was also from Broward County. It is also noted that Broward County court opinions and the opinions of county courts from other more urban counties tend to be published much more frequently than do other county court opinions from around the state. Therefore, the reports of opinions from the county courts may not necessarily be relied upon to reflect statewide trends.
19 Fla. Stat. §83.49(3)(a).
20 Fla. Stat. §83.49(5).
21 Fla. Stat. §83.49(3)(c); Eguino v. Vinas, 6 Fla. L. Weekly Supp. 201 (Fla. 11th Cir. 1999) (circuit court reversing county court’s denial of fees).
22 Fla. Stat. §83.49(3)(a).
23 Fla. Stat. §83.49(3)(a); Durene v. Alcime, 448 So. 2d 1208 (Fla. 3d D.C.A. 1983).
24 Fla. Stat. §83.49(5).
25 Durene v. Alcime, 448 So. 2d 1208 (Fla. 3d D.C.A. 1984).
26 Fla. Stat. §83.48.
27 Riedinger v. Nasoni, 3 Fla. L. Weekly Supp. 94 (Fla. 19th Cir. 1994) (denial of fees must not be based on need and ability to pay; rather fees awarded to a prevailing party under §83.48 must be based upon the standards set out in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1151 (Fla. 1985)).
28 RH Holdings, Ltd. V. Barturen, 6 Fla. L. Weekly Supp. 23 (Fla. 11th Cir. 1998) (the attorney’s fees provision of the lease survived the expiration of the lease term for the holdover tenant); Rosamond v. Mann, 80 So. 2d 317 (Fla. 1955) (when tenant held over in a lease, tenant was required to follow the same covenants as the original lease).
29 Fla. Stat. §57.105(5).
30 Fla. Stat. §83.49(3)(c); Eguino v. Vinas, 6 Fla. L. Weekly Supp. 201 (Fla. 11th Cir. 1999) (circuit court reversing county court’s denial of fees).
31 5 Fla. L. Weekly Supp. 806 (Fla. 17th Cir. 1998). See also Riedinger v. Nasoni, 3 Fla. L. Weekly Supp. 94 (Fla. 19th Cir. 1994) (tenant was represented by a legal aid provider and had not incurred any obligation to pay fees).
32 Id.
33 Granoff, 4 Fla. L. Weekly at 756.
34 Finch v. Meadows Realty & Development, Inc., 2 Fla. L. Weekly Supp. 235 (Fla. 5th Cir. 1994).
35 Prosperi v. Code, Inc., 626 So. 2d 1360 (Fla. 1993); Moritz v. Hoyt Enterprises, 604 So. 2d 807 (Fla. 1992).
36 Cecchi v. Gordon, 524 So. 2d 501 (Fla. 3d D.C.A. 1988); Lewis Oil Comp. V. Milliken, 711 So. 2d 636 (Fla. 1st D.C.A. 1998).
37 Poole v. Patrick, 6 Fla. L. Weekly Supp. 257 (Fla. 12th Cir. 1999).
38 Id. at 258.
39 Sapp v. Richardson, 8 Fla. L. Weekly Supp. 111 (Fla. Escambia County Ct. 2000).
40 Key Investments Ltd. v. E.F. Hutton Realty Corporation, 6 Fla. L. Weekly Supp. 18 (Fla. 11th Circuit 1998).
41 Id. at 18.
42 Fla. Stat. §48.183.
43 Fla. Stat. §48.183(2).
44 Hertz Corp. v. Abadlia, 489 So. 2d 753 (Fla. 4th D.C.A. 1985).
S. Sue Robbins has been a county judge in Marion County since August 2000. She previously practiced law in Marion County since 1981.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, J. Michael Swaine, chair, and S. Dresden Brunner and William P. Sklar, editor.
