by Zana Dupee, Esq.
In a residential eviction case, if the tenant claims that the Landlord's 3-day notice was defective or non-existent, does the tenant have to pay the undisputed rent into the court registry as set forth in Florida Statute 83.60(2)? Some might argue that since the notice is required before the Landlord can even file the suit, then the tenent could raise a defective notice as a defense without triggering the statutory requirement to pay the rent into the court registry. This issue was litigated quite a bit recently and the appeals court ruled that the tenant DOES have to pay the rent before they can raise the defense of defective or non-existent 3-day notice.
The statute states:
In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, 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 which accrues during the pendency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process 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 with a writ of possession to issue without further notice or hearing thereon. In the event a motion to determine rent is filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies shall be required to deposit only that portion of the full rent for which the tenant is responsible pursuant to federal, state, or local program in which they are participating. Fla. Stat. 83.60 (2).
The court noted the strong and plain language of the statute requiring a tenant to pay rent in the registry of the court if the tenant raises any defense other than payment. The court also stated that if the tenant does not pay the rent to the court registry, then the tenant has absolutely waived his defenses and the landlord is entitled to an immediate default judgment.
If you are a Landlord in North Florida who needs legal assistance, or if you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.
Comments