Several new landlord-tenant cases have been decided in Florida, and we want to share this legal update for your informational and operational edification. Below is a brief synopsis of the cases and the import of their rulings. Disclaimer: this article is not to be considered legal advice but is for general information purposes. You should consult with us regarding any legal question or issue you may have.
KAC 2021-1, LLC v. TRUE NORTH PROPERTY OWNER A, LLC, FLWSUPP 3109KAC (Broward County, October 27, 2023)
In this case, the tenant sued the landlord for violation of the Fair Debt Collection Practices Act (the Act). The tenant alleged that when the landlord posted a 3 day notice to pay on the tenant’s door that the landlord violated the Act, namely, that by posting the notice face-out towards the public, the landlord acted as a “debt collector publicly posting a debtor’s name in an attempt to collect a consumer debt.”
The court disagreed with the tenant and dismissed the action. In its opinion, the court reasoned that F.S. 83.56 requires the landlord to deliver a 3 day notice to pay to the tenant to enforce the lease obligation to pay rent. The court moreover ruled that posting notice on the door requires that the front of the notice face outward so that the tenant can easily see that the landlord has delivered the notice to the tenant, as opposed to make the notice discreet by making the front of the notice facing the door. Citing another case authority, the court said, “the accepted definition of ‘posting’ means to ensure the notice is immediately visible, akin to something being posted on a bulletin board, and that posting the notice face-down does not advance the purpose of the statute.”
Since the landlord posted the notice in compliance with state statute, the landlord was afforded “litigation immunity”:
“This Court then concluded, “Defendant is immune from liability due to the litigation privilege. . .if the legislature intended the 3-Day notice to be posted backwards or face down, then it was up to the legislature to state [the] same in the statute.”
As a result, the tenant had no cause of action against the landlord, and the tenant’s action was dismissed.
Based on this ruling, landlords are safe to post a 3 day notice to pay on the front door of the rental unit without violating the Fair Debt Collection Practices Act.
ARMINICAN PARTNERS, LLC, v. ALVAREZ, FLWSUPP 3109ARMI (Miami-Dade County, August 24, 2023)
In this case, the landlord wanted the court to order the tenant to pay double rent into the court registry as a holdover tenant pursuant to F.S. 83.58. The court denied the landlord’s request based on the following reasons:
- The argument that double the rent must be posted at this stage fails since the Court has not adjudicated the merits of this case. Specifically, this Court has not determined that the tenancy was legally terminated.
- Landlord failed to allege tenant was a holdover tenant and failed to demand double rent due and owing in the Complaint and in the Notice. Due to landlord’s failure to demand double rent in the Complaint and in the Notice, tenant does not need to pay double rent into the court registry. See Lincoln Oldsmobile Inc., v. Brach, 574 So. 2d 1111(Fla. 2nd DCA 1990).
Based on this ruling, if the landlord is going to seek an order that the tenant pay double rent into the court registry, the landlord must first allege it in the Complaint. But the decision also suggests that even if the landlord’s complaint alleges that double rent is owed, the court cannot order the tenant to pay double rent until the court decides that the tenant is, in fact, a holdover tenant.
Most courts do not hold evidentiary hearings for rent determination, so based on this ruling the court would not be able to order double rent to be paid into the court registry. However, if the court were to hold an evidentiary hearing on the matter, then the proof of holdover could be made. Judges throughout the state will likely vary on their rulings on this issue.
TUSCAN PLACE LIMITED PARTNERSHIP v. KING, FLWSUPP 3109TUSC (Miami-Dade County, November 7, 2023)
This case ruled on the issue of what constitutes a “guest” as it relates to terminating the lease when the tenant’s family member violates a lease provision (e.g. commits a crime). The court ruled against the landlord as it decided that the tenant’s son was not a “guest” and as such, the landlord could not terminate the tenant’s lease based on the son’s behavior. The court went through a somewhat lengthy factual analysis of what happened in the case, especially as it related to the specific date that the tenant’s son committed a crime on the property.
The tenant argued that landlord had no evidence that Defendant invited her son to the property on the day in question and that the landlord did not know which unit the tenant’s son had called that evening and had no records of the call. The tenant also provided an affidavit that her son did not call her on the night in question from the intercom call box and provided subpoenaed telephone records to corroborate her testimony. The tenant argued that her son could have called any apartment and gained access to the building. The landlord did not provide any direct evidence to contradict the tenant’s testimony.
The tenant also argued that, even though her son was on the rental property (an apartment community) and committed a crime while he was there, he did not live with her at the unit; he was not near her unit when he committed the crime; and he was not her “guest” at that time he committed the crime. She testified and presented evidence that on the date in question, he was not invited to her unit; she did not give him permission to be there; and she was not present on the property at the time he committed the crime.
The landlord could not produce any evidence that the son lived in the unit with his mom. Still, the landlord argued that the tenant’s son should be considered a guest or a person under the tenant’s control because he previously came to the property; the tenant did not request a trespass order to keep her son from coming to the property; and the tenant did not ask to have her locks changed. But these arguments were enough to carry the day.
The court ruled in favor of the tenant, stating briefly, “[t]he son’s prior visits to the property are not so numerous nor do they show any pattern that would indicate that he was a guest or person under the tenant’s control on December 12.” The court’s ruling is not much of an analysis, but still, this case is important to when you have a situation (especially in an apartment community) involving a tenant’s family member or friend who has, at times, been at the property and who violates a lease provision.
If you have knowledge of a tenant’s family member or friend causing problems at the rental property or community, you need to gather evidence that the family member is staying or living at the premises, has the tenant’s permission to be on the property, is under the tenant’s control or supervision, or in some manner, was complicit in the family member or friend’s presence at the property. In other words, the tenant’s relationship alone to the family member or friend may not be enough to terminate the lease when that family or friend violates a lease provision.
SADRUDDIN JIVANI v. MCRAE, 2023-074466-CC-23 (Miami-Dade County, October 16, 2023)
In this case, the landlord filed an eviction against the tenant for non-payment of rent. The parties entered into a settlement agreement, which resolved the back rent owed as alleged in the complaint. Per the terms of the agreement, tenant paid the full amount ordered to be posted and then made a subsequent payment pursuant to the agreement to the landlord. Landlord accepted the tenant’s full payment of back rent.
After entering this agreement and accepting full payment from the Defendant, the landlord then sought to execute on the writ of possession–without any grounds to do so and especially not because the tenant violated the settlement agreement. The tenant filed an Emergency Verified Motion to Stay Writ of Possession, and a hearing on the motion was held.
The Court found that landlord’s acceptance of the rent due and owing under the settlement agreement constituted waiver of landlord’s ability to execute on the Final Judgment and Writ of Possession. Consequently, the court denied the landlord’s request for a writ of possession and dismissed the eviction.
This case raises an interesting issue about enforcement of settlement agreements with the tenant. The landlord, here, clearly didn’t have grounds for a writ of possession when the tenant paid the full amount of rent as agreed upon in the settlement agreement, but this begs questions, like:
- What if the tenant paid part of the rent but not all? Would the landlord still be able to get a writ of possession?
- What if the tenant timely paid, say, 95% of the rent with plans on paying the remaining 5% to the landlord shortly after the payment deadline? Would the landlord still be able to get a writ of possession?
If you encounter a situation like this, get legal advice to ensure proper handling. It may be necessary that in the event the tenant wants to pay partial rent after a settlement agreement is entered, an addendum to the settlement agreement should be signed by the parties and the addendum be filed with the court for ratification.