3 Day Eviction Notice

 

Arbor Land Trust v. Rozier, 5 Fla. L. Weekly Supp. 21b (Alachua Co. 1997)

When issuing a three-day notice, if the Landlord demands payment of monies other than rent or monies expressly defined as “rent” by the lease, that notice will deemed defective as it does not substantially comply with Florida Statute § 83.56(3). Where late fees are defined as rent in a set of “House Rules” executed simultaneously with the lease, the Landlord will be deemed to have improperly included monies other than “rent” or “additional rent” and, as such, the eviction action dismissed with prejudice.

Arbor Land Trust, Plaintiff, v. Gloria Rozier, Defendant. County Court, 8th Judicial Circuit In And For Alachua County, Florida. Civil Division. Case No. 97-2864-LT, Division IV. Order entered on August 19, 1997 by Judge Phyllis D. Kotey.

Cite as: Arbor Land Trust v. Rozier, 5 Fla. L. Weekly Supp. 21b (Alachua Co. 1997).

The Plaintiff, Arbor Land Trust (the "Landlord"), sued the Defendant, Gloria Rozier (the "Tenant"), for possession of a dwelling unit pursuant to Florida Statute § 83.59.  According to the Complaint, the Tenant was in possession of the rental property pursuant to a yearly lease that provided the rent must be paid in the amount of $425 each month.  The residential lease agreement further provided that the Tenant would be entitled to receive a $50 discount off of the monthly rent for each month the $425 was received timely.  There was no provision in the lease for charging the tenant a late fee if the rent was not paid in a timely manner. 

In addition to the lease, the Tenant signed a document called "House Rules."  The lease incorporates the House Rules and provides the House Rules are subject to change by the Landlord without notice and become binding on the Tenant once the Tenant is served without a copy of the modified "House Rules." 

Paragraph 7 of the House Rules provides that:

A late charge of $50.00 will be imposed on any payment not made within three days of its due date.  An additional late charge of $50.00 will be imposed on any payment not made within fifteen days of its due date.... Resident agrees that for the purposes of eviction all charges and amounts due shall be considered rent.  (emphasis added).

When the Tenant failed to timely pay the rent, the Landlord served the Tenant with a document titled "Three Days Notice," which demanded that the Tenant pay $515 for the rent and use of the premises of possession.  The Court was unclear as to how the Landlord arrived at the sum of $515.  However, what was clear was the fact that the Landlord was charging money in excess of the rental amount of $425.

Subject matter jurisdiction over the termination of a residential rental agreement is based upon the Defendant's being given proper notice by the Plaintiff.  Such notice must be provided as required by Florida Statute § 83.56.  See Swan v. Jones, 3 Fla. L. Weekly Supp. 36 (Manatee Co. 1995).; Broward Gardens v. Evans, 3 Fla. L. Weekly Supp. 36 (Manatee Co. 1995).  Substantial compliance with § 83.56(3) prohibits the notice from demanding the payment of funds other than rent. 

The Court stated that there can be "no doubt that a portion of the payments demanded by the Plaintiff in this case includes items other than rent."  The issue for the Court is whether the Plaintiff's effort to address this by calling the late payments rent in a document other than the lease is sufficient to comply with § 83.56(3)'s statutory mandate.

The Court ruled against the Landlord asserting that the nature of the House Rules would not be permitted to open the door to what can be considered rent.  Merely calling late payments "rent" in a document signed simultaneously with the residential lease agreement was legally insufficient to change the nature of the late payments.  The Court was unpersuaded that the Tenant's execution of the document should change that result stating that "just because an agreement has been signed does not mean that this Court will enforce it."  Unless the late fee provision is included in the lease, it will have no force or effect.

In fact, the Court found that the portion of paragraph 17 of the lease which grant to the Landlord the unilateral authority to change the terms of the "House Rules" was unconscionable pursuant to Florida Statute § 83.45 and, as a result, would be striken from the Lease as unenforceable.

As a result, the Court dismissed the eviction Complaint with prejudice and retained jurisdiction to consider an award of the Tenant's motion for attorneys' fees and costs.