LAWRENCE BROOKS
v.
GHYANDEO NARINE
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Lawrence Brooks appealed a final judgment of possession in a residential tenant eviction case, arguing the three-day statutory notice was fatally defective. The Ninth Judicial Circuit Court reversed the lower court's judgment, finding the notice failed to comply with Florida Statute § 83.56(3) in multiple respects, thereby failing to terminate the tenancy and depriving the complaint of a valid cause of action.
The court held that the three-day notice was fatally defective because it: (1) gave Brooks no time to cure by requiring payment on the same day notice was served; (2) lacked a complete address including city and state; and (3) contained a material discrepancy between the rent amount claimed and the rent amount specified in the lease. Because the notice failed to comply with statutory requirements, it did not terminate the tenancy, the complaint failed to state a cause of action, and the judgment of possession could not stand.
[1] A three-day notice to pay rent or quit must provide the tenant with a full three days to cure the default.
[2] A statutory notice for eviction must contain a proper address for payment of delinquent rent, including the city and state.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 83.59(1), Florida Statutes, clearly makes termination of the rental agreement a condition precedent to filing suit for possession.”
Establishes that valid statutory notice is an essential prerequisite to any eviction action
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGhyandeo Narine filed an eviction action against tenant Lawrence Brooks for nonpayment of rent. The three-day notice of intent to terminate the tenanc…
The full statement of facts, procedural history, and disposition for this case are member content.
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IN THE CIRCUIT COURT FOR THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR ORANGE COUNTY, FLORIDA
LAWRENCE BROOKS,
CASE NO.: CVA1 07-84
Appellant,
Lower Case No.: 2007-CC-14430
vs.
GHYANDEO NARINE,
Appellee. ______________________/
Appeal from the County Court, For Orange County, Deb S. Blechman, County Judge.
Michael L. Resnick, Esquire, For Appellant.
No appearance for Appellee.
BEFORE POWELL, WHITEHEAD, MUNYON, J.J.
AMENDED FINAL ORDER REVERSING LOWER COURT WITH DIRECTIONS (Corrected as to citation to section 83.56(3), Florida Statutes)
Lawrence Brooks (Appellant) timely appeals the trial court’s final judgment of possession in favor of Ghyandeo Narine (Appellee), entered on October 22, 2007, and the trial court’s order denying defendant’s motion for rehearing, entered on October 29, 2007. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. We find that errors occurred during the litigation of this residential tenant eviction case which require reversal of the final judgment for possession and costs.1
Since the three-day notice was defective, it did not terminate the tenancy, and for this reason, we find that the complaint failed to state a cause of action. See Rogers v. Smorkes, 8 Fla. L. Weekly Supp. 400b (Fla. 17th Cir. Ct. March 23, 2001); Spry v. Budau, 7 Fla. L. Weekly Supp. 631a (Fla. 17th Cir. Ct. June 26, 2000); Hodgson v. Jones, 6 Fla. L. Weekly Supp. 758a (Fla. 17th Cir. Ct. Sept. 24, 1999). We agree entirely with the reasoning of the above cited cases. The court in Hodgson said it best: While the record does not indicate that Appellant raised an issue below as to any defects in the three-day notices, the Court finds that such error is nonetheless reviewable on appeal. Section 83.59(1), Florida Statutes, clearly makes termination of the rental agreement a condition precedent to filing suit for possession. [citation omitted]. Since the rental agreement in this case was not terminated prior to suit because the three day notices were defective, Appellee had no cause of action for eviction at the time of filing suit. Consequently, with no right to bring an action for eviction, no judgment could be entered in her favor. Finally, the defects in Appellee’s notice cannot be corrected on remand. Where an action requires statutory notice prior to suit and that notice is defective, the defects cannot be corrected in the same case. Under such circumstances, the landlord must file a new action based upon a new and valid notice. [citations omitted].
Lastly, even though the complaint requested only possession, Appellant was not required to pay rent into the registry of the court since the complaint failed to state a cause of action. See Rogers, 8 Fla. L. Weekly Supp. 400b.
For the reasons set forth above, we find that it was error to: (1) enter the default; (2) require rent payment into the registry; (3) enter the final judgment for possession and costs; (4) issue the writ of possession; and (5) deny Appellant’s motion to set aside the final judgment. Accordingly, it is hereby ORDERED AND ADJUDGED that the lower court’s Final Judgment is REVERSED; the Default and Writ of Possession are VACATED; Appellant’s motion for appellate attorney’s fees and costs is GRANTED, the assessment of which is REMANDED to the lower court; Appellant’s motion for clarification is GRANTED; and this case is REMANDED for further proceedings consistent with this opinion. Upon receipt of the mandate, the lower court is DIRECTED to enter an order dismissing the complaint with prejudice.
DONE and ORDERED at Orlando, Florida this ___13___day of ______November___, 2009.
_________/s/_________________________
ROM W. POWELL
Senior Judge
__________/s/_________________________ _________/s/_________________________ REGINALD WHITEHEAD
LISA T. MUNYON Circuit Judge
Circuit Judge CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing order was furnished via U.S. mail on this ______13________ day of ___November___________, 2009, to the following: Michael L. Resnick, Esquire, Legal Aid Society, 100 E. Robinson St., Orlando, FL 32801 and Ghyandeo Narine, 431 Field Stream West Blvd., Orlando, FL 32825.
________/s/__________________________
Judicial Assistant