Residential Landlord Tenant Law is governed by Florida Statutes ch. 83, pt. 2. The statute contains a provision in F.S. 83.60(2) that requires the tenant to post all back rent and rent that accrues during the pending eviction proceeding into the court registry, and the tenant’s failure to do so results in the tenant waiving all defenses. There is one exception, however, to the requirement that the tenant post the back rent into the court registry; that is, if the tenant raises the defense of payment. There is an appellate case issued on August 21, 2024 in the First District Court of Appeals that addresses that issue, Colby v. Zicarelli, 1D2023-1135 (Fla. App. Aug 21, 2024)
Reversed Judgment: The Impact of Unverified Rent Payment Claims
In the underlying eviction case, the landlord filed the underlying eviction action for unpaid rent, alleging the tenant failed to pay rent for January, February, and March 2023. The tenant filed an Answer and Motion to Determine Rent, alleging that she paid rent in cash for January and February. Still, the court ordered that the tenant post all back rent alleged in the Complaint.
When the tenant failed to post rent for January and February into the court registry, the trial court granted default judgment in the landlord’s favor. The tenant filed the appeal, arguing that because she interposed payment as a defense, the trial court was required to conduct an evidentiary hearing before granting default judgment. The appellate court agreed and reversed the county court’s judgment.
F.S. 83.60(2) states,
“In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, including, but not limited to, the defense of a defective 3-day notice, 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 that accrues during the pendency of the proceeding, when due.”
The appellate court cited this statute, stating,
“As dictated by statute, the tenant must pay rent into the court registry or file a motion to determine rent and the failure to do either entitles the landlord to default judgment for removal of the tenant via writ of possession without further hearing. ‘The only exception to this express statutory requirement is if the tenant interposes a defense of payment.’ (citations omitted).
Since the county court did not hold a hearing on the issue of payment of rent and entered a default judgment when the tenant didn’t pay rent into the court registry, which amounts she alleged that she had paid in cash in January and February 2023, the county court violated the plain language of this statute. Of course, the tenant preserved her appeal by posting all other back rent and accrued rent into the court registry. Had the tenant failed to do so, the county court’s judgment would have been affirmed.
How to Protect Against Tenant Payment Disputes
The Colby case illustrates reasons why professional landlords have established policies not to receive cash payments from tenants. Money orders present the same issue as cash payment. If the landlord accepts any payment that is not traceable to a bank account, at a minimum, it opens an opportunity for the tenant to allege the defense of payment in cash or money order. Of course, the tenant’s defense could be a fabrication just to delay the eviction, and a hearing may still need to be held to determine the issue of payment, but having a no-cash or no-money-order policy would help the landlord refute a tenant’s defense of payment.
What is also helpful for landlords on the issues of payment is to have an accurate and easy-to-read rent payment ledger. See our article on how to prepare a rent ledger. When a tenant raises a defense of rent payment, the ledger can be filed with the clerk of court and introduced into evidence at a rent determination hearing as a business record to help prove what payments the tenant made or didn’t make.
Protecting Your Rental Business: Insights from the Colby Decision
In conclusion, the Colby v. Zicarelli case underscores the critical importance for landlords to maintain stringent policies and thorough documentation. The appellate court’s decision highlights that landlords must be prepared to address tenant defenses, particularly the defense of payment, by ensuring that rent payments are traceable and well-documented. Implementing policies such as refusing cash payments and maintaining accurate rent ledgers can significantly strengthen a landlord’s position in court. By learning from the Colby case, landlords can better navigate the complexities of eviction law and avoid potential pitfalls that could jeopardize their cases.
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