A recent case, Passco Cypress Creek DST v. Neidinger, 2D2024-1982 (2nd DCA 2025), highlights the issues surrounding a tenant’s notice of non-renewal and resulting liquidated damages for failing to give the landlord proper notice.
The dispute illustrates how easily a landlord can lose the right to collect a termination or “insufficient notice” fee by failing to follow the strict requirements of section F.S. 83.575(2).
The case also demonstrates how confusion over liquidated damages versus unpaid rent can lead to claims under the Florida Consumer Collection Practices Act (FCCPA) and create unnecessary exposure for landlords.
The $1,540 Mistake: Why This Florida Landlord Got Sued Under the FCCPA
In Neidinger, the appellate court clarified the difference between an improper collection of a liquidated damages fee and a legitimate claim for unpaid rent arising from a month-to-month renewal, offering valuable guidance for property owners, managers, and attorneys on how to structure lease provisions, deliver proper notices, and pursue claims without triggering statutory penalties.
The Legal Dispute: Liquidated Damages vs. Unpaid Rent
In May 2021, Rebecca Neidinger signed a one-year lease with Passco Cypress Creek DST, the landlord. The lease term ran from July 14, 2021, to August 13, 2022. The lease required Neidinger to provide 60 days’ written notice of her intent to move out. If she failed to do so, the lease would automatically renew month-to-month. The lease also contained a liquidated damages clause that allowed the landlord to charge one month’s rent ($1,540) if the tenant failed to give the required 60-day notice but only if the landlord gave advance written notice at least 15 days before the start of the notice period, as required by F.S. 83.575(2).
The tenant gave only 35 days’ notice (on July 9, 2022) that she would vacate at the end of the lease. On July 11, 2022, the landlord notified her she would be charged a liquidated damages fee for failing to give 60 days’ notice. The landlord began sending collection notices labeling the charge as an “Insufficient Notice Fee” and retained her security deposit. The tenant disputed the charge, asserting that the landlord had not complied with the statutory requirement of advance notice.
Appeals Court Ruling: What the 2nd DCA Decided in 2025
In October 2022, the tenant filed suit against the landlord under the Florida Consumer Collection Practices Act (FCCPA), alleging that the landlord attempted to collect a debt it knew was not legitimate. The landlord filed a counterclaim, arguing that because the tenant failed to give 60 days’ notice, the lease renewed month-to-month and she owed prorated rent and other charges totaling $1,655.92.
Both parties filed motions for summary judgment. The tenant argued the charge was the same illegal liquidated damages fee, while the landlord argued it was prorated rent and actual damages. The trial court granted the tenant’s motion and denied the landlord’s, finding the landlord violated the FCCPA. Later, the court granted Neidinger’s motion for judgment on the pleadings, finding the counterclaim sought to collect the same fee previously ruled illegitimate. The landlord appealed.
Issues on Appeal
- Whether the trial court erred by granting judgment on the pleadings in favor of Neidinger.
Answer: yes - Whether the landlord’s counterclaim sought the same charge already found unlawful or instead different contractual damages.
Answer: no
Court’s Analysis
The Second District Court of Appeal reviewed the case de novo and reversed the trial court’s order. A judgment on the pleadings may only be granted when the moving party is clearly entitled to judgment as a matter of law based solely on the pleadings. The appellate court held that the trial court improperly relied on outside materials rather than the pleadings themselves.
The court explained that the lease allowed two distinct remedies: (1) liquidated damages if the landlord complied with section 83.575(2), and (2) month-to-month rent if the tenant failed to provide proper notice. Because the landlord failed to give the statutory notice, it could not collect liquidated damages. However, it might still recover month-to-month rent and other charges under the lease. The FCCPA claim and counterclaim therefore involved different legal theories, and the counterclaim was not barred by res judicata or collateral estoppel.
Court of Appeals Ruling
The appellate court held that the trial court erred in granting judgment on the pleadings. The landlord’s counterclaim alleged facts that could entitle it to recover unpaid rent and damages. The pleadings did not conclusively establish that the landlord sought the same illegitimate fee addressed in the FCCPA claim. Accordingly, the judgment was reversed and remanded for further proceedings.
Practical Guide: How to Collect a Non-Renewal Fee Legally in Florida
This case clarifies that a landlord’s FCCPA violation for attempting to collect improper liquidated damages under F.S. 83.575(2) does not preclude a separate claim for unpaid rent or damages from a month-to-month renewal. It also reinforces that courts must distinguish between illegal debt collection practices and valid contractual claims. Judgment on the pleadings is a narrow remedy and must be based strictly on the pleadings themselves.
For landlords, the decision underscores the importance of:
- Giving timely and compliant notices before imposing early termination or insufficient notice fees.
- Distinguishing between liquidated damages and rent owed.
- Avoiding relabeling a liquidated damages charge after failing to meet statutory notice requirements.
Facing a Tenant Dispute? Get Legal Guidance Before It’s Too Late
- Deliver Advance Notice per Section 83.575(2): Within 15 days before the start of the tenant’s required 60-day notice period, deliver written notice to the tenant informing them of their obligation to give nonrenewal notice and the potential liquidated damages if they fail to do so.
- Do Not Send Improper Charges to Collections: Never send a claim for unpaid liquidated damages to a collection agency or report it to a credit bureau unless you strictly complied with section 83.575(2). Improper debt collection attempts can expose landlords to FCCPA liability.
- Consult an Attorney Before Pursuing Disputed Fees: If a tenant disputes a liquidated damages claim for failing to give timely nonrenewal notice, consult an experienced landlord attorney to assess compliance and mitigate risk.
- Retain Legal Counsel Experienced in Landlord Litigation: Work with a landlord attorney who understands how to minimize litigation risks and use both the lease and Florida law to position you for success—whether through pre-suit resolution, litigation strategy, or favorable settlement terms.