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RPPTL Real Estate Leasing Committee

[RPPTL LandTen] FW: New Tenancy Decision

David Weisman

Tue, Dec 7, 2010 7:54 PM

            In case this did not yet get around, this is a great decision.

David Weisman
Board Certified Real Estate Lawyer
Greenspoon Marder, P.A.
Trade Center South, Suite 700
100 West Cypress Creek Road
Ft. Lauderdale, FL 33309
Phone 954-491-1120
Toll Free 888-491-1120
Direct Phone 954-343-6941
Direct Fax 954-343-6942

[cid:image001.png@01CB9615.4DCD9770]

From: Len Lubart
Sent: Tuesday, December 07, 2010 9:54 AM
To: ALL Attorneys
Subject: FW: New Tenancy Decision

For anyone that does landlord/tenant work.

From: condomania-bounces@lists.flabarrpptl.org [mailto:condomania-bounces@lists.flabarrpptl.org] On Behalf Of Michael J. Gelfand
Sent: Tuesday, December 07, 2010 2:57 AM
To: RPPTL Condominium and Planned Development Committee
Subject: [RPPTL-condomania] New Tenancy Decision

Dear Committee Members

Attached is a recent 4th DCA decision, Stanley v. Quest International Inv., addressing a certified question from the Broward County Court:

WHETHER A TENANT CLAIMING A DEFECTIVE OR NONEXISTENT THREE-DAY NOTICE IN A RESIDENTIAL EVICTION IS REQUIRED TO TENDER UNDISPUTED RENT INTO THE COURT REGISTRY AS SET FORTH IN FLORIDA STATUTE §83.60(2) IN ORDER TO DEFEND THE ACTION BASED ON THE DEFECTIVE OR NON- EXISTENT THREE DAY NOTICE.

Answering yes, the decision is notable for holding that in an eviction action for non-payment of rent, the plain language of §83.60(2), Fla. Stat. (2009), requires that a contesting defendant/tenant must post the disputed rent in the court registry even if the statutory Three Day Notice is non-existent, or defective.

Michael J. Gelfand
Florida Bar Board Certified Real Estate Attorney
Florida Supreme Court Certified Mediator:
Civil Circuit Court & Civil County Court
Gelfand & Arpe, P.A.http://www.gelfandarpe.com/
"Assisting Communities to Efficiently Reach Goals"
Regions Financial Tower, Suite 1220
1555 Palm Beach Lakes Blvd.
West Palm Beach Florida 33401
(561) 655-6224

This communication/transmission is intended only for the use of the addressee(s) named above and may contain information that is privileged and confidential. Access to this e-mail by anyone else is unauthorized. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, use or copying of this communication is strictly prohibited. If you received this transmission in error, please immediately alert the sender by reply e-mail and permanently delete and destroy this message and any attachments. To reply to our e-mail administrator directly, please send an e-mail to ga@gelfandarpe.com.mailto:ga@gelfandarpe.com.
Nothing contained in this message (including any attachments) shall constitute a contract or electronic signature under the Electronic Signatures in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions. This e-mail does not provide an opinion, nor without a fee agreement signed by the firm does this confirm representation or counsel.
IRS Circular 230 Notice: To ensure compliance with the requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and may not be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
P Please consider the environment before printing this e-mail

The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have
received this communication in error, please notify us immediately by reply e-mail.

Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

In case this did not yet get around, this is a great decision. David Weisman Board Certified Real Estate Lawyer Greenspoon Marder, P.A. Trade Center South, Suite 700 100 West Cypress Creek Road Ft. Lauderdale, FL 33309 Phone 954-491-1120 Toll Free 888-491-1120 Direct Phone 954-343-6941 Direct Fax 954-343-6942 [cid:image001.png@01CB9615.4DCD9770] From: Len Lubart Sent: Tuesday, December 07, 2010 9:54 AM To: ALL Attorneys Subject: FW: New Tenancy Decision For anyone that does landlord/tenant work. From: condomania-bounces@lists.flabarrpptl.org [mailto:condomania-bounces@lists.flabarrpptl.org] On Behalf Of Michael J. Gelfand Sent: Tuesday, December 07, 2010 2:57 AM To: RPPTL Condominium and Planned Development Committee Subject: [RPPTL-condomania] New Tenancy Decision Dear Committee Members Attached is a recent 4th DCA decision, Stanley v. Quest International Inv., addressing a certified question from the Broward County Court: WHETHER A TENANT CLAIMING A DEFECTIVE OR NONEXISTENT THREE-DAY NOTICE IN A RESIDENTIAL EVICTION IS REQUIRED TO TENDER UNDISPUTED RENT INTO THE COURT REGISTRY AS SET FORTH IN FLORIDA STATUTE §83.60(2) IN ORDER TO DEFEND THE ACTION BASED ON THE DEFECTIVE OR NON- EXISTENT THREE DAY NOTICE. Answering yes, the decision is notable for holding that in an eviction action for non-payment of rent, the plain language of §83.60(2), Fla. Stat. (2009), requires that a contesting defendant/tenant must post the disputed rent in the court registry even if the statutory Three Day Notice is non-existent, or defective. Michael J. Gelfand Florida Bar Board Certified Real Estate Attorney Florida Supreme Court Certified Mediator: Civil Circuit Court & Civil County Court Gelfand & Arpe, P.A.<http://www.gelfandarpe.com/> "Assisting Communities to Efficiently Reach Goals" Regions Financial Tower, Suite 1220 1555 Palm Beach Lakes Blvd. West Palm Beach Florida 33401 (561) 655-6224 This communication/transmission is intended only for the use of the addressee(s) named above and may contain information that is privileged and confidential. Access to this e-mail by anyone else is unauthorized. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, use or copying of this communication is strictly prohibited. If you received this transmission in error, please immediately alert the sender by reply e-mail and permanently delete and destroy this message and any attachments. To reply to our e-mail administrator directly, please send an e-mail to ga@gelfandarpe.com.<mailto:ga@gelfandarpe.com.> Nothing contained in this message (including any attachments) shall constitute a contract or electronic signature under the Electronic Signatures in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions. This e-mail does not provide an opinion, nor without a fee agreement signed by the firm does this confirm representation or counsel. IRS Circular 230 Notice: To ensure compliance with the requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and may not be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. P Please consider the environment before printing this e-mail The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Jeffrey Mazor

Tue, Dec 7, 2010 8:01 PM

From: Jeffrey R. Mazor, Esq.

For the 11th Circuit, to similar effect, see:

Not Reported in So.3d, 2010 WL 2649911 (Fla.Cir.Ct.)

Only the Westlaw citation is currently available.

Florida Circuit Court, Eleventh Judicial Circuit, Miami-Dade County,

Appellate Division.

Liana CARBALLOSA, Appellant,

Elizabeth ARIAS, Appellee.

Appellate Case No. 09-646 AP.

June 29, 2010.

On Appeal from the County Court, Miami-Dade County, Florida, Gladys Perez,
Judge.

Alberto Cardet, Esq., for Appellant.

Elizabeth Arias, Pro Se, for Appellee.

Before CARDONNE ELY, HUBBART, and TUNIS, JJ.

HUBBART, Judge.

*1 This is an appeal of an Order of Dismissal of a residential eviction
action and an Order denying a motion for rehearing entered by the county
court in Miami-Dade County. This Court has jurisdiction pursuant to Article
V, section 5(b), Florida Constitution and Florida Rules of Appellate
Procedure 9.030(c)(1)(A).

The Appellant, Liana Carballosa, (Ms. Carballosa or Landlord) filed a
residential eviction action against the Appellee, Elizabeth Arias, (Ms.
Arias or Tenant) in the court below for non-payment of rent. Ms. Arias
answered the complaint, but raised no defenses. Additionally, she did not
allege that the three-day notice required by Section 83.56(3), Florida
Statutes was defective nor did she pay rent into the registry of the court.
Ms. Carballosa moved for default final judgment for possession.

The trial court, sua sponte, without notice or hearing, dismissed the
complaint for the reason that the three-day notice was defective. The trial
court also denied Ms. Carballosa's timely motion for rehearing and for final
default judgment for possession. This appeal followed.

Assuming, but not deciding, that the three day notice was defective, it
could not form the basis for dismissal, in view of the tenant's failure to
pay rent into the court registry. Section 83.60(2), Florida Statutes,
provides in pertinent part:

Failure of the tenant to pay the rent into the registry of the court ...
constitutes an absolute waiver of the tenant's defenses other than payment,
and the landlord is entitled to an immediate default judgment for removal of
the tenant.

Given the requirements of section 83.60(2), it was error to dismiss the
complaint and not grant the Landlord's motion for default final judgment.

Accordingly, the order dismissing the complaint for eviction is REVERSED.

This cause is REMANDED to the trial court with instructions to enter final
judgment for removal of the tenant. Given our decision, it is not necessary
to reach the other issue raised by Appellant.

CARDONNE ELY and TUNIS, JJ., concur.

Fla.Cir.Ct.,2010.

Carballosa v. Arias

Not Reported in So.3d, 2010 WL 2649911 (Fla.Cir.Ct.)

From: landten-bounces@lists.flabarrpptl.org
[mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Tuesday, December 07, 2010 2:55 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] FW: New Tenancy Decision

            In case this did not yet get around, this is a great

decision.

David Weisman

Board Certified Real Estate Lawyer

Greenspoon Marder, P.A.

Trade Center South, Suite 700

100 West Cypress Creek Road

Ft. Lauderdale, FL 33309

Phone 954-491-1120

Toll Free 888-491-1120

Direct Phone 954-343-6941

Direct Fax 954-343-6942

cid:image003.png@01C9C405.DE5F2DF0

From: Len Lubart
Sent: Tuesday, December 07, 2010 9:54 AM
To: ALL Attorneys
Subject: FW: New Tenancy Decision

For anyone that does landlord/tenant work.

From: condomania-bounces@lists.flabarrpptl.org
[mailto:condomania-bounces@lists.flabarrpptl.org] On Behalf Of Michael J.
Gelfand
Sent: Tuesday, December 07, 2010 2:57 AM
To: RPPTL Condominium and Planned Development Committee
Subject: [RPPTL-condomania] New Tenancy Decision

Dear Committee Members

Attached is a recent 4th DCA decision, Stanley v. Quest International Inv.,
addressing a certified question from the Broward County Court:

WHETHER A TENANT CLAIMING A DEFECTIVE OR NONEXISTENT THREE-DAY NOTICE IN A
RESIDENTIAL EVICTION IS REQUIRED TO TENDER UNDISPUTED RENT INTO THE COURT
REGISTRY AS SET FORTH IN FLORIDA STATUTE §83.60(2) IN ORDER TO DEFEND THE
ACTION BASED ON THE DEFECTIVE OR NON- EXISTENT THREE DAY NOTICE.

Answering yes, the decision is notable for holding that in an eviction
action for non-payment of rent, the plain language of §83.60(2), Fla. Stat.
(2009), requires that a contesting defendant/tenant must post the disputed
rent in the court registry even if the statutory Three Day Notice is
non-existent, or defective.

Michael J. Gelfand

Florida Bar Board Certified Real Estate Attorney

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Gelfand http://www.gelfandarpe.com/ & Arpe, P.A.

"Assisting Communities to Efficiently Reach Goals"

Regions Financial Tower, Suite 1220

1555 Palm Beach Lakes Blvd.

West Palm Beach Florida 33401

(561) 655-6224

Nothing contained in this message (including any attachments) shall
constitute a contract or electronic signature under the Electronic
Signatures in Global and National Commerce Act, any version of the Uniform
Electronic Transactions Act or any other statute governing electronic
transactions. This e-mail does not provide an opinion, nor without a fee
agreement signed by the firm does this confirm representation or counsel.

IRS Circular 230 Notice: To ensure compliance with the requirements imposed
by the IRS, we inform you that any U.S. tax advice contained in this
communication (including any attachments) is not intended or written to be
used, and may not be used, for the purpose of (i) avoiding penalties under
the Internal Revenue Code or (ii) promoting, marketing or recommending to
another party any transaction or matter addressed herein.

P Please consider the environment before printing this e-mail

The information contained in this transmission may be attorney/client
privileged and confidential. It is intended only for the use of the
individual or entity named above. If the reader of this message is not the
intended recipient, you are hereby notified that any dissemination,
distribution or copying of this communication is strictly prohibited. If you
have
received this communication in error, please notify us immediately by reply
e-mail.

Pursuant to Internal Revenue Service guidance, be advised that any federal
tax advice contained in this written or electronic communication, including
any attachments or enclosures, is not intended or written to be used and it
cannot be used by any person or entity for the purpose of (i) avoiding any
tax penalties that may be imposed by the Internal Revenue Service or any
other U.S. Federal taxing authority or agency or (ii) promoting, marketing
or recommending to another party any transaction or matter addressed herein.

From: Jeffrey R. Mazor, Esq. For the 11th Circuit, to similar effect, see: Not Reported in So.3d, 2010 WL 2649911 (Fla.Cir.Ct.) Only the Westlaw citation is currently available. Florida Circuit Court, Eleventh Judicial Circuit, Miami-Dade County, Appellate Division. Liana CARBALLOSA, Appellant, v. Elizabeth ARIAS, Appellee. Appellate Case No. 09-646 AP. June 29, 2010. On Appeal from the County Court, Miami-Dade County, Florida, Gladys Perez, Judge. Alberto Cardet, Esq., for Appellant. Elizabeth Arias, Pro Se, for Appellee. Before CARDONNE ELY, HUBBART, and TUNIS, JJ. HUBBART, Judge. *1 This is an appeal of an Order of Dismissal of a residential eviction action and an Order denying a motion for rehearing entered by the county court in Miami-Dade County. This Court has jurisdiction pursuant to Article V, section 5(b), Florida Constitution and Florida Rules of Appellate Procedure 9.030(c)(1)(A). The Appellant, Liana Carballosa, (Ms. Carballosa or Landlord) filed a residential eviction action against the Appellee, Elizabeth Arias, (Ms. Arias or Tenant) in the court below for non-payment of rent. Ms. Arias answered the complaint, but raised no defenses. Additionally, she did not allege that the three-day notice required by Section 83.56(3), Florida Statutes was defective nor did she pay rent into the registry of the court. Ms. Carballosa moved for default final judgment for possession. The trial court, sua sponte, without notice or hearing, dismissed the complaint for the reason that the three-day notice was defective. The trial court also denied Ms. Carballosa's timely motion for rehearing and for final default judgment for possession. This appeal followed. Assuming, but not deciding, that the three day notice was defective, it could not form the basis for dismissal, in view of the tenant's failure to pay rent into the court registry. Section 83.60(2), Florida Statutes, provides in pertinent part: Failure of the tenant to pay the rent into the registry of the court ... constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant. Given the requirements of section 83.60(2), it was error to dismiss the complaint and not grant the Landlord's motion for default final judgment. Accordingly, the order dismissing the complaint for eviction is REVERSED. This cause is REMANDED to the trial court with instructions to enter final judgment for removal of the tenant. Given our decision, it is not necessary to reach the other issue raised by Appellant. CARDONNE ELY and TUNIS, JJ., concur. Fla.Cir.Ct.,2010. Carballosa v. Arias Not Reported in So.3d, 2010 WL 2649911 (Fla.Cir.Ct.) From: landten-bounces@lists.flabarrpptl.org [mailto:landten-bounces@lists.flabarrpptl.org] On Behalf Of David Weisman Sent: Tuesday, December 07, 2010 2:55 PM To: RPPTL Landlord Tenant Committee Subject: [RPPTL LandTen] FW: New Tenancy Decision In case this did not yet get around, this is a great decision. David Weisman Board Certified Real Estate Lawyer Greenspoon Marder, P.A. Trade Center South, Suite 700 100 West Cypress Creek Road Ft. Lauderdale, FL 33309 Phone 954-491-1120 Toll Free 888-491-1120 Direct Phone 954-343-6941 Direct Fax 954-343-6942 cid:image003.png@01C9C405.DE5F2DF0 From: Len Lubart Sent: Tuesday, December 07, 2010 9:54 AM To: ALL Attorneys Subject: FW: New Tenancy Decision For anyone that does landlord/tenant work. From: condomania-bounces@lists.flabarrpptl.org [mailto:condomania-bounces@lists.flabarrpptl.org] On Behalf Of Michael J. Gelfand Sent: Tuesday, December 07, 2010 2:57 AM To: RPPTL Condominium and Planned Development Committee Subject: [RPPTL-condomania] New Tenancy Decision Dear Committee Members Attached is a recent 4th DCA decision, Stanley v. Quest International Inv., addressing a certified question from the Broward County Court: WHETHER A TENANT CLAIMING A DEFECTIVE OR NONEXISTENT THREE-DAY NOTICE IN A RESIDENTIAL EVICTION IS REQUIRED TO TENDER UNDISPUTED RENT INTO THE COURT REGISTRY AS SET FORTH IN FLORIDA STATUTE §83.60(2) IN ORDER TO DEFEND THE ACTION BASED ON THE DEFECTIVE OR NON- EXISTENT THREE DAY NOTICE. Answering yes, the decision is notable for holding that in an eviction action for non-payment of rent, the plain language of §83.60(2), Fla. Stat. (2009), requires that a contesting defendant/tenant must post the disputed rent in the court registry even if the statutory Three Day Notice is non-existent, or defective. Michael J. Gelfand Florida Bar Board Certified Real Estate Attorney Florida Supreme Court Certified Mediator: Civil Circuit Court & Civil County Court Gelfand <http://www.gelfandarpe.com/> & Arpe, P.A. "Assisting Communities to Efficiently Reach Goals" Regions Financial Tower, Suite 1220 1555 Palm Beach Lakes Blvd. West Palm Beach Florida 33401 (561) 655-6224 This communication/transmission is intended only for the use of the addressee(s) named above and may contain information that is privileged and confidential. Access to this e-mail by anyone else is unauthorized. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, use or copying of this communication is strictly prohibited. If you received this transmission in error, please immediately alert the sender by reply e-mail and permanently delete and destroy this message and any attachments. To reply to our e-mail administrator directly, please send an e-mail to ga@gelfandarpe.com. Nothing contained in this message (including any attachments) shall constitute a contract or electronic signature under the Electronic Signatures in Global and National Commerce Act, any version of the Uniform Electronic Transactions Act or any other statute governing electronic transactions. This e-mail does not provide an opinion, nor without a fee agreement signed by the firm does this confirm representation or counsel. IRS Circular 230 Notice: To ensure compliance with the requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and may not be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. P Please consider the environment before printing this e-mail The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail. Pursuant to Internal Revenue Service guidance, be advised that any federal tax advice contained in this written or electronic communication, including any attachments or enclosures, is not intended or written to be used and it cannot be used by any person or entity for the purpose of (i) avoiding any tax penalties that may be imposed by the Internal Revenue Service or any other U.S. Federal taxing authority or agency or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.