County Civil Court: LANDLORD/TENANT – Court Registry – Where Appellee had requisite notice and failed to deposit any rent payment into the court registry, any defense other than payment was waived.  Appellant was entitled to immediate default judgment for possession in its eviction based on violation of lease agreement.  Trial court’s order denying Appellant’s motion for default judgment reversed.  Pasco County Housing Authority v. Dena Marie Spencer, No. 2010-AP-000003-ES (Fla. 6th Cir. App. Ct. November 1, 2010).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

PASCO COUNTY HOUSING

AUTHORITY,     

                        Appellant,

                                                                                    UCN:               512010AP000003XXXXES

v.                                                                                 Case No:        2010-AP-3-ES

                                                                                    Lower No:      2009-CC-4474-ES

 

DENA MARIE SPENCER,                                       

                        Appellee.                                                       

__________________________________/

 Appeal from Pasco County Court

County Judge Robert P. Cole

 

Shelley M. Johnson, Esq. 

for Appellant

 

Dena Marie Spencer, Pro Se 

for Appellee

 

ORDER AND OPINION

            Appellant argues that the trial court erred in denying Appellant’s motion for default judgment for possession.  The trial court improperly found Appellee only had to deposit accruing rental payments into the Court Registry during the pendency of an eviction proceeding when the eviction being sought is based on non-payment of rent and that Appellee did not have notice as to the amount she would need to deposit.  Florida Statute 83.60(2), however, requires a residential tenant to deposit rental payments that accrue during the pendency of an eviction proceeding into the Court Registry.  The failure to do so constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to immediate default judgment for possession.  Appellee’s obligation to deposit rent into the Court Registry began when she was served with the summons, which contained the requisite instructions.  The court’s findings were contrary to the evidence and law.  Thus, this Court reverses the trial court’s order as set forth below.

 

 

FACTUAL BACKGROUND

Appellant is the owner of Cypress Villas in Dade City, where Appellee had entered into a public housing lease agreement.  On September, 25, 2009, Appellee was given notice of termination and eviction, allowing her until October 7, 2009 to vacate.  The notice indicated that Appellee’s lease was being terminated for violating her lease agreement in that tenants, members of the tenants household, or guests cannot engage in criminal activity that threaten the health, safety, or right to peaceful enjoyment by the other residents under federal regulations.  Specifically, the notice referenced an incident on August 29, 2009 where an occupant of Appellee’s unit was arrested for criminal mischief against another resident. 

On October 14, 2009, Appellant filed an Eviction Complaint against Appellee to recover possession of its rental property and rent due on the unit for the period in which Appellee refused to surrender possession.  Appellant subsequently moved for entry of Default Judgment.  At the March 10, 2010 hearing, before the Honorable Judge Cole, Appellant argued that in a case for residential eviction, Florida Statute 83.60 required tenants to deposit money into the Court Registry during the pendency of the case unless the defense was payment.  Failure to do so would result in an immediate default for possession.  Appellant provided the summons that gave Appellee the required notice to pay into the Court Registry, pursuant to Florida Statute 83.60 and Florida Rule of Civil Procedure Form 1.923.  Appellant was not seeking overdue rent, instead eviction based solely on the violations to federal regulations and the lease agreement.  Appellant also provided the lease agreement that was attached to the Complaint where the amount of monthly rent Appellee had been paying was listed. 

The trial court denied Appellant’s motion.  It specifically found that Appellee was not properly noticed as to the amount that she was supposed to pay into the Court Registry.  The trial court also found that the complaint did not allege that Appellee has failed to pay rent, but that she violated the terms of her lease because of an alleged criminal activity by a resident in her unit.  Appellant filed a timely notice of appeal.

 

LAW AND ANALYSIS

Florida Statute section 83.60(2) governs actions by landlords for possession of property based upon any grounds other than nonpayment of rent: 

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…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.

Section 83.60(2) requires the payment of any unpaid rent as well as any rent accruing during the pendency of the action by a holdover tenant.  If a tenant asserts a right to retain possession of a rental unit based upon any defense other than payment, the tenant is required to deposit rent into the Court Registry pending resolution of the litigation.  The statute permits the tenant to either pay the rent when due while the case is pending or to file a motion to determine the amount of rent they will be required to pay within five days of service of the summons instructing them of this obligation.  A tenant’s failure to exercise one of the statutory options results in an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to immediate default judgment for removal of the tenant without further notice or hearing. 

            Before a default judgment for possession can be entered pursuant to section 83.60(2), the clerk must notify the tenant in the summons of the requirement to pay the rent into the Court Registry that the complaint claims to be due or file a motion to determine rent within five days of service of the summons and to pay into the Court Registry any rent that becomes due until the lawsuit is over.  The statute does not require a landlord to motion the court to determine rent or to provide additional notice to a tenant of the amount of monthly rent to be paid into the Court Registry when due while the case is pending.  The obligation to deposit rents into the Court Registry begins upon service of the summons and failure to comply entitles a landlord to immediate default judgment for possession without further notice or hearing. 

            In this case, Appellee was served with a summons which included the requisite language instructing her on what actions she needed to take to avoid immediate default judgment for possession.  Appellee was served a complaint requesting recovery of the rent due for the period in which Appellee refused to surrender possession.  In addition, her lease agreement setting forth the amount of monthly rent was attached and incorporated into the complaint for eviction.  Appellee’s obligation to deposit rent into the Court Registry began when she was served with the summons.  Appellee’s failure to comply entitled Appellant to immediate default judgment for possession along with a writ of possession without further notice or hearing. 

            Despite the clear language of the statute, and having the requisite notice, Appellee failed to deposit any rent payment into the Court Registry when it became due.  Appellant, however, complied with mandates of section 83.60(2).  Upon service of the summons, the burden shifted to Appellee to comply.  Appellee waived her right to interpose any defenses other than payment.  The order denying Appellant’s Motion for Entry of Default Judgment for Possession should be reversed.  Therefore, it is

ORDERED that the trial court’s order denying Appellant’s motion for default judgment for possession is hereby REVERSED and this case REMANDED for proceedings consistent with this opinion.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 1st day of November 2010.

            Original order entered on November 1, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.