Failure to Specifically Plead an Affirmative Defense Means Reversal of Dismissal In Florida Eviction Action
September 8th, 2015
Late Fees Can Make a Florida Eviction Three Day Defective
Note to landlords: you can never be too careful in drafting your 3-Day Notices, case in point; the 11th Circuit recently dismissed an eviction complaint due to plaintiff, Homestead Housing Partnership’s incorrect calculation of rent due on a 3-Day Notice. Homestead Housing Partnership I, LTD v. Lambe, 18 Fla. L. Weekly Supp. 908b (Fla. Miami-Dade County Ct. 2011).
The court held that the landlord’s 3-Day Notice was defective due to its inclusion of late fees assessed prior to the fourth of the month as stipulated in the lease agreement. The court dismissed the eviction complaint and awarded prevailing party attorneys’ fees and costs in favor of the defendant. See opinion and order below.
HOMESTEAD HOUSING PARTNERSHIP I, LTD, Plaintiff, vs. STACY LAMBE, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 11-0284-CC-26. July 27, 2011. Marvin H. Gillman, Judge. Counsel: Kenneth J. Lowenhaupt, Miami, for Plaintiff. Nicole Walsh, Legal Services of Greater Miami, Inc., Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS,
MOTION TO DETERMINE RENT, AND RESERVING
DEFENDANT’S RIGHT TO ATTORNEY’S FEES
THIS CAUSE came to be heard before the Court on July 21,2011, on Defendant’s Motions to Dismiss and to Determine rent. After hearing argument by counsel, reviewing the file, and the Court being otherwise fully advised of the premises, it is —
ORDERED AND ADJUDGED that:
The Court finds that the Plaintiff’s Three Day Notice, dated April 8, 2011, and attached to the Complaint is defective. The Notice states:
“YOU ARE HEREBY NOTIFIED THAT YOU ARE INDEBTED TO THE LANDINGS APARTMENT IN THE SUM OF $877.00 DOLLARS FOR THE RENT AND USE OF THE PREMISES LOCATED AT [Editor’s Note: Address Omitted] IN DADE COUNTY NOW OCCUPIED BY YOU.
THAT RENT WAS DUE ON THE 1st DAY OF APRIL, 2011, AND I DEMAND FULL AND IMMEDIATE PAYMENT . . .[continued]”
Defendant’s rent is $777.00 per month and is due on the first of the month. The parties agree that paragraph 9 of the lease allows the landlord to collect an additional $100.00 late fee as “additional rent” after 5:00 p.m. on the fourth day of the month.
The Court finds that the phrase “THAT RENT WAS DUE ON THE 1st DAY OF APRIL” [caps in original, underlining added for emphasis] refers to the $877.00 demanded. The notice is defective because only the tenant’s $777.00 rent was due on the first. The additional rent was not due until after 5:00 p.m. on the fourth. A proper Three-Day Notice is a condition precedent to an action for eviction. When less than all the requisite elements of a cause of action exist when the complaint is filed, the complaint must be dismissed without leave to amend. Rolling Oaks Homeowner’s Assn. v. Dade County, 492 So. 2d 686 (Fla. 3d DCA 1986).
Defendant’s Motion to Dismiss is granted and Plaintiff’s Complaint is dismissed with prejudice and without leave to amend. The money deposited in the Court registry by the Defendant for her rent during the pendency of this case shall remain until the counterclaim is resolved. As the Complaint for Eviction has been dismissed, Defendant is not obligated to continue to deposit rent to the Court registry. The Court finds that Defendant is the prevailing party on the claim for eviction and is entitled to attorney’s fees and costs pursuant to Fla. Stat. Section 83.48. Defendant’s right to fees is reserved during the pendency of the Counterclaim.