HOUSING PROTOCOL
by the Housing Workgroup of
Florida Legal Services, Inc.

The Housing Workgroup commends you on representing low income tenants. Their needs are tremendous and yet their rights are tenuous. The issues, to some, have an appearance of simplicity. However, landlord tenant practice presents complexities and challenges that can raise the practice to an art form. This Protocol is designed to suggest ways in which you can develop that practice.

The Housing Protocol was developed by the Housing Workgroup of Florida Legal Services, Inc. It is designed to assist attorneys in preparing pleadings for Florida tenant defendants. It is the intent of the Housing Workgroup to periodically update the Protocol and to expand its areas of coverage. If you have any ideas or input, please direct your comments to:

The Housing Workgroup Florida Legal Services, Inc. 2121 Delta Boulevard Tallahassee, FL 32303 (850) 385-7900 (850) 385-9998 FAX

The protocol is not meant to take the place of attorney judgment or professional responsibility. Users of the protocol are encouraged to research all law and issues and not rely solely on the forms, citations, and theories presented herein.

Date last revised: October 18, 1999

 

LANDLORD TENANT ANSWERS AND DEFENSES

LANDLORD TENANT MOTIONS TO DISMISS

 

 

 

LANDLORD TENANT ANSWERS AND DEFENSES

 

IN THE COUNTY COURT OF THE _______ JUDICIAL CIRCUIT
IN AND FOR_________ COUNTY, FLORIDA

_________________________,

PLAINTIFF(S), CASE NO.:

vs.

_________________________,

DEFENDANT(S).

________________________________________/

ANSWER AND AFFIRMATIVE DEFENSES

ANSWER

Defendants ________ and ______________ (hereinafter "Defendants") answer the Complaint for eviction as follows: [choose all that are applicable]

1. The allegations made in paragraphs ___, ____, _____ and ___ of the complaint are admitted.

2. The allegations made in paragraphs ___, ____, _____ and ___ of the complaint are denied.

3. Defendants are without knowledge as to the allegations contained in paragraphs __ and __ of the complaint and on that basis deny the same.

4. [Choose one] Defendants deny receiving a copy of the notice attached to the complaint OR Defendants admit receiving a copy of the notice attached to the complaint but deny that said notice is legally sufficient to terminate the tenancy.

5. Defendants this day have deposited rent into the registry of the Court.

AFFIRMATIVE DEFENSES

Defendants assert the following affirmative defenses: [choose all that are applicable]

[PAYMENT]

Affirmative Defense: Payment

#. Defendants have paid all rent legally due and owing to the Plaintiff. [DEFECTIVE NOTICE: NO THREE DAYS GIVEN TO CURE - SEE ALSO MOTION TO DISMISS BASED ON DEFECTIVE NOTICE] Affirmative Defense: Defective Notice: Failure to Comply with Section 83.56(3)

#. Section 83.56(3), Fla. Stats., provides for termination of a tenancy if the tenant fails to pay rent due and owing within three days, excluding Saturdays, Sundays, and legal holidays, after the delivery of a written demand that meets the statutory requirements.

#. Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew Inv. Co. 128 So. 827(Fla. 1930)

#. Proper notice of termination of tenancy is a statutory prerequisite to an action for possession.

#. The notice sent by the Plaintiff fails because it did not allow the three days for compliance, as required by law. #. Because Plaintiff failed to satisfy a necessary element of its cause of action, it failed to state a claim upon which relief can be granted. Because the Defendants' tenancy was never properly terminated, Plaintiff cannot obtain eviction.

[DEFECTIVE NOTICE: 7 DAY RIGHT TO CURE

- SEE ALSO MOTIONS TO DISMISS]

Affirmative Defense: Failure to Comply with Section 83.56(2)(a)

#. Plaintiff fails to state a claim for eviction of the Defendants because Plaintiff's notice of termination to the Defendants lists no good cause for eviction.

#. Section 83.56(2)(a) Fla. Stats. allows a landlord to terminate a tenancy for noncompliance with the rental agreement by sending a single, seven day notice if the noncompliance is of a nature that a tenant should not be given an opportunity to cure.

# Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew lnv. Co.. 128 So. 827 (Fla. 1930) #. Proper notice of termination of tenancy is a statutory prerequisite to an action for possession.

#. The alleged violations stated in Plaintiffs notice are of a nature that the tenant should be given an opportunity to cure, if the items were true and attributable to the Plaintiff, which Defendants deny.

#. Plaintiff therefore is required to comply with Section 83.56(2)(a), Fla. Stats.

#. Because Plaintiff failed to satisfy a necessary element of its cause of action, it failed to state a claim upon which relief can be granted and cannot proceed with an eviction action.

[DEFECTIVE NOTICE: CONCURRENT AND CONFUSING
(DOES THE SECOND NOTICE SUPERSEDE THE FIRST?)]
Affirmative Defense: Defective Notice: Conflicting Demands

#. The sending of a proper three day notice is a condition precedent to an action to evict a tenant. #. The Plaintiff sent two concurrent notices to the Defendant purporting to terminate the tenancy. The two notices presented conflicting demands upon the tenant.

#. The conflict in the notices renders the notice defective. #. Because Plaintiff failed to satisfy a necessary element of its cause of action, it failed to state a claim upon which relief can be granted. Plaintiff is not entitled to eviction.

[PREMATURE FILING OF COMPLAINT -
SEE ALSO MOTIONS T0 DISMISS]

Affirmative Defense: Failure of Compliance with 83.56(3) #. Section83.56(3), Fla. Stats. allows a landlord to terminate a tenancy for nonpayment of rent upon delivery of a three day notice.

#. Plaintiffs delivered a notice to the Defendant on ________(date) giving the tenant until _________(date) in which to comply with its demand. #. The eviction action was filed on _________(date) prior to the running of the time required by statute and the time stated in the notice for Defendants to cure the alleged breach.

#. By filing prematurely, Plaintiff failed to satisfy a condition precedent to the action and Plaintiff is not entitled to eviction.

[DEFECTIVE NOTICE: PREMATURE DELIVERY OF NOTICE -
SEE ALSO MOTIONS TO DISMISS]
Affirmative Defense: Defective Notice Failure to Comply with 83.56(3)

#. Section 83.56(3), Fla. Stats. allows a landlord to terminate a tenancy for non-payment of rent upon delivery of a three day notice which meets the statutory requirements.

#. The notice sent by the Plaintiff fails because it was sent prior to the rent becoming due.

#. The lease agreement attached to Plaintiffs complaint as Exhibit #______, states that the rent may be paid on any of the three days following the stated due date.

#. The lease states that the rent is due on the ______ day of each month. Thus, the rent is not due and owing until the ______ day of the month.

#. The notice attached to the Plaintiff's complaint alleges that it was served on ____________(date), _____ day(s) before the lease states rent will be due and owing or considered late.

#. Plaintiff's notice is defective because it was served prematurely -- before Defendant's rent was legally due and owing. #. Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew Inv. Co. 128 So. 827 (Fla. 1930)

#. Proper notice of termination of tenancy is a statutory prerequisite to an action for possession.

#. Because the Defendant's tenancy was never properly terminated, Plaintiff cannot obtain eviction against the Defendants.

[NOTICE: FAILURE TO SERVE NOTICE ATTACHED TO COMPLAINT]
Affirmative Defense: Lack of Service of Notice

#. The notice relied upon by Plaintiff for eviction was never served upon the Defendants.

#. The notice attached to Plaintiff's complaint is not a true copy of the notice served on the Defendants. A copy of the true notice served on the Defendants is attached hereto as Exhibit #______ and incorporated by this reference as if fully set forth herein.

#. The amount of rent alleged to be due on the notice actually served on the Defendants is not the same as the amount alleged to be due on the notice attached to Plaintiff's complaint.

#. Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew Inv. Co. 128 So. 827 (Fla. 1930)

#. Proper notice of termination of tenancy is a statutory prerequisite to an action for possession.

#. Because the notice to pay rent upon which Plaintiff relies in this action was never served on Defendants, the tenancy was never properly terminated by said notice and Plaintiff cannot obtain eviction based on said notice.

[DEFECTIVE NOTICE: DEMAND DATE NOT SPECIFIED -
SEE ALSO MOTIONS T0 DISMISS]
Affirmative Defense: Defective Notice Due to Lack of Specified Date to Perform

#. Section 83.56(3), Fla. Stats. allows a landlord to terminate a tenancy for nonpayment of rent upon delivery of a three day notice that meets the statutory requirements.

#. Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew Inv. Co. 128 So. 827 (Fla. 1930) #. Proper notice of termination of tenancy is a statutory prerequisite to an action for possession. #. The notice sent by the Plaintiff fails because it did not contain the information required by law. More specifically, it did not state the specified date by which the rent had to be paid.

#. Because the Defendants' tenancy was never properly terminated, Plaintiff cannot obtain eviction.

[DEFECTIVE NOTICE: AMOUNTS OTHER THAN RENT -
SEE MOTIONS T0 DISMISS]
Affirmative Defense: Defective Notice Due to Inclusion of Amounts Other than Rent

#. The sending of a proper three day notice that meets the statutory requirements is a condition precedent to filing a complaint for eviction.

#. Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew Inv. Co. 128 So. 827 (Fla. 1930)

#. Proper notice of termination of tenancy is a statutory prerequisite to an action for possession.

#. Here, the three day notice is defective because it demands an amount that includes sums other than "rent."

#. An erroneous statement in the notice as to the amount of rent due renders the notice defective. Baker v. Clifford-Mathew Inv. Co. 128 So. 827 (Fla. 1930)

#. Because the notice delivered to Defendants demands amounts other than "rent," it is defective and does not satisfy 83.56(3), Fla. Stats. #. Plaintiff has failed to terminate the tenancy by failing to state the precise amount of "rent" due and thus cannot obtain eviction.

[WAIVER: ACCEPTANCE OF RENT]
Affirmative Defense: Waiver

#. On ________________(date), Plaintiff served Defendants with a three-day notice in an attempt to terminate the tenancy.

#. Subsequent to the delivery of the above-described notice to the Defendants on ___________(date) the Defendants tendered the sum of $________ as a rent payment to the Plaintiff. (A copy of the receipt/money order is attached hereto as Exhibit # _____ which is incorporated by this reference.)

#. Plaintiff accepted said rent payment subsequent to the sending of a termination notice and therefore, pursuant to 83.56(5), Fla. Stats. waived his/her/its right, to evict the Defendants.

[DEFENSE: NO MONTH-TO-MONTH TENANCY]
Affirmative Defense: Existence of Valid Lease

#. On or about _____________(date), Plaintiff and Defendants entered into a rental agreement for the Defendants to lease property from the Plaintiff. A copy of the lease is attached hereto as Exhibit #____ and incorporated herein.

#. The term of the lease was from ______________(date) until _______________(date) .

#. Defendants signed the lease and paid the Plaintiff rent and a security deposit. Relying upon the lease, Defendants moved into the premises described in the lease on or about _____________(date). #. Upon information and belief, Plaintiff retains control of the original of the lease.

#. Plaintiff accepted payments under the terms of the lease from __________ (date) until _____________________(date).

#. Plaintiff by his/her/its conduct affirmed the lease. #. Plaintiff is estopped from denying the existence of the written lease.

#. The existence of a valid written lease for a one year term precludes termination of the tenancy as if it were a month to month tenancy and thus precludes this eviction.

[TENDER AND REFUSAL OF CORRECT AMOUNT OF RENT]
Affirmative Defense: Refusal of Tender of Rent

#. Plaintiff sent a notice of termination of tenancy based on non-payment of rent demanding that tenant pay the sum of $_________ no later than ________________(date) or vacate the premises. 4. On ______________(date), Defendants tendered the exact amount of the rent demanded in the notice (in the sum of $_______) before the date stated in the notice, but Plaintiff refused to accept the rent money.

#. Because Plaintiff refused a tender of the rent as demanded in the notice of termination, the Plaintiff may not proceed with an eviction action based on said notice.

[TENDER. REFUSAL]
Affirmative Defense: Refusal of Tender of Rent

#. On _______________(date) and _____________(date), respectively, Plaintiff delivered a 3-day and 14-day notice to vacate to Defendants demanding payment of rent in the amount of $_______________.

#. Defendants responded timely on _______________(date) by presenting $_________ to the Plaintiff.

#. Plaintiff rejected the proffered rent because the amount tendered by the Defendants did not include $_______________ for late fees and maintenance charges.

[CONDITIONS: FOR RENT WITHHOLDING]
Affirmative Defense: Breach of Statutory Duty

#. Plaintiff, as Defendants' landlord, materially breached its duty to maintain the premises pursuant to 83.51 Fla. Stats. #. Pursuant to 83.56(4) Fla. Stats., Defendants sent a written notice to the Plaintiff demanding that the breach be cured.

#. More than seven days have passed since Defendants' written notice was sent and the breach has not been cured.

[JURISDICTION: NO LL/T RELATIONSHIP -
MORTGAGE TRANSACTION]
Affirmative Defense: No Landlord Tenant Relationship

#. Defendants claim an interest in the subject premises as homestead property pursuant to Article 10, Section 4 of the Florida constitution.

#. The Defendants have never been tenants of the Plaintiff and no landlord tenant relationship exists between those parties pursuant to 83.41 and 83.43(3) and (4), Fla. Stats.

#. Defendants have resided in the subject premises for ______________ years. #. Where no landlord tenant relationship exists between the parties, this Court is without jurisdiction over this cause of action and this cause must be dismissed.

[LEASE]
Affirmative Defense: Lease

#. On ______________(date), Plaintiff and Defendants entered into a written lease. This lease is attached as Exhibit ____.

#. Under the terms of the lease Defendants were to pay $__________ rent each month to Plaintiff for as long as they wished to occupy the premises.

#. Relying on the terms of this lease which contemplated an endless tenancy, Defendants made several repairs and improvements which included but were not limited to the purchase of materials and the installation of ___________________________. The money Defendants expended for these repairs and improvements was in addition to their rental payments.

#. Plaintiff knew or should have known that Defendants were making these repairs and improvements.

#. Plaintiff now claims that the tenancy was one without specific duration and seeks to evict Defendants.

#. By allowing Defendants to make these repairs and improvements, Plaintiff benefitted from Defendants' expectation that their tenancy would continue as long as they wished to live at the premises.

#. Plaintiff is estopped from utilizing the notice procedure specified in 83.57(3), Fla. Stats. to evict Defendants.

[UNCONSCIONABILTY]
Affirmative Defense: Unconscionability

#. Plaintiff should not recover possession of a public housing rental unit for nonpayment of rent if the reason for nonpayment is non-receipt of a government benefit check due to no fault on the part of the Defendants, and any provision of the rental agreement providing or appearing to provide for same should be found unconscionable and given no effect, pursuant to 83.45, Fla. Stats.

#. Plaintiff should not recover late fees of $20.00 in an instance such as this and for such an excessive amount, and any provision of the rental agreement providing or appearing to provide for same should be found unconscionable and given no effect, pursuant to 83.45, Fla. Stats.

#. Plaintiff should not recover $25.00 for a maintenance charge because the charge is actually an unlawful fine imposed for picking up trash, and any provision of the rental agreement providing or appearing to provide same should be found unconscionable and given no effect, pursuant to 83.45, Fla. Stats.

[RETALIATORY DEFENSE]
Affirmative Defense: Retaliatory Eviction

#. Plaintiff's refusal to renew Defendants' lease is retaliatory conduct in response to Defendants' complaints to the manager's office about conditions in the apartment complex which required the manager's attention.

#. Plaintiff's refusal to renew Defendants' lease is retaliatory conduct in response to Defendants' contacting governmental agencies charged with the responsibility of enforcing building, housing or health codes. #. Plaintiff's refusal to renew Defendants' lease amounts to retaliatory conduct in contravention to the provisions of 83.64, Fla. Stats. Plaintiff's conduct in evicting Defendant is illegal under Florida law.

[PRAYER]

WHEREFORE, Defendants respectfully pray the Court to: 1. Dismiss the Complaint (with/without prejudice). 2. Award Defendants their court costs. 3. Grant such other relief as the Court deems just and appropriate. Date______________________ Respectfully Submitted,

(Office) Attorneys for Defendant(s) (Address) (Telephone) By_______________________________ Attorney Fla. Bar No.____

CERTIFICATE CF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Answer and Affirmative Defenses has been sent by U.S. Mail this ____ day of ___________________ to __________________ at ________________________________________________(address)

By:___________________________ (Name of attorney)

 

 

LANDLORD TENANT MOTIONS TO DISMISS

 

IN THE COUNTY COURT OF THE ____________JUDICIAL CIRCUIT IN AND FOR ______________ COUNTY, FLORIDA

____________________________, PLAINTIFF(S), CASE NO.:

vs.

____________________________, DEFENDANT(S),

_____________________________________/

MOTION TO DISMISS

Defendants ________________ and ____________ (hereinafter "Defendants") move to dismiss the Complaint and in support state:

[DEFECTIVE NOTICE:
Insufficient time to cure/other defects]

#. The action should be dismissed pursuant to Rule 1.140(b) (6), Fla.R.Civ.P., because the Complaint fails to state a cause of action.

#. Section 83.56(3), Fla. Stats., provides for termination of a tenancy if the tenant fails to pay rent due and owing within three days, excluding Saturdays, Sundays, and legal holidays, after the delivery of a written demand that meets the statutory requirements.

#. Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew Inv. Co., 128 So. 827 (Fla. 1930)

#. The Three-day Notice of Termination of Tenancy attached to the Complaint is defective in that:(choose all applicable).

A. After excluding Saturdays, Sundays and legal holidays, it requires payment on the [same day it was served or first. second day after it was served]

B. The notice fails to state the address of the leased premises.

C. The notice fails to make a demand for payment or for possession in the alternative.

D. The notice fails to state a final date of compliance with the demands stated in the notice.

E. The notice demands an incorrect amount of rent.

F. The notice fails to state the landlord's or his/her agent's name, address and telephone number.

G. The notice fails to state "excluding Saturdays, Sunday and legal holidays."

#. Proper notice of termination of tenancy is a statutory prerequisite to an action for possession.

#. In the absence of showing strict compliance with statutory requirements and proper termination of the tenancy, the Complaint fails to state a claim for possession of premises.

[DEFECTIVE NOTICE:
Late fees/other fees included]

#. The action should be dismissed pursuant to Rule 1.140(b) (6), Fla.R.Civ.P., because the Complaint fails to state a cause of action.

#. Section 83.56(3), Fla. Stats., provides for termination of a tenancy if the tenant fails to pay rent due and owing within three days, excluding Saturdays, Sundays, and legal holidays, after the delivery of a written demand that meets the statutory requirements.

#. Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew Inv. Co., 128 So. 827 (Fla. 1930)

#. The notice of termination of tenancy upon which this action rests is defective in that it demands payment of sums other than rent. Baker v. Clifford Mathew Inv. Co. 128 So. 827 (Fla. 1930)

#. In the absence of showing compliance with statutory requirements and the proper termination of the tenancy, the Complaint fails to state a claim for possession of premises.

[DEFECTIVE NOTICE:
Sums demanded not due and owing]

#. The action should be dismissed pursuant to Rule1.140(b) (6), Fla.R.Civ.P., because the Complaint fails to state a cause of action.

#. Section 83.56(3), Fla. Stats., provides for termination of a tenancy if the tenant fails to pay rent due and owing within three days, excluding Saturdays, Sundays, and legal holidays, after the delivery of a written demand that meets the statutory requirements.

#. Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew Inv. Co., 128 So. 827 (Fla. 1930)

#. The three-day notice was allegedly served on the Defendant on _____________(date).

#. The notice demands payment of money which is not yet legally due and owing under the terms of the lease/rental agreement in that ________________________________(specify) .

#. Because the notice demands payment of money not yet due it violates the intent of the three-day notice and it fails to comply with the statutory requirements necessary to terminate the tenancy.

#. In the absence of showing compliance with statutory requirements and the proper termination of the tenancy, the Complaint fails to state a claim for possession of premises.

[DEFECTIVE NOTICE:
Mailing time not added]

#. The action should be dismissed pursuant to Rule1.140(b) (6), Fla.R.Civ.P., because the Complaint fails to state a cause of action.

#. Pursuant to Fla.R.Civ.P. 1.090(e), when a party in a civil action elects to deliver a notice by mail, the time period prescribed in the notice must be extended by five days.

#. Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew Inv. Co. 128 So. 827 Fla. 1930)

#. Pursuant to Fla.R.Civ.P. 1.090(a), when the prescribed period of time is less than 7 days, Saturdays, Sundays, and legal holidays are excluded from the computation.

#. Plaintiff served the notice to terminate tenancy by mail and failed to allow the additional time periods required by Rules1.090(a) and 1.090(e).

#. In the absence of showing strict compliance with legal requirements and proper termination of the tenancy, the Complaint fails to state a claim for possession of premises.

[DEFECTIVE NOTICE:
Performance demanded on Saturday, Sunday or Holiday]

#. The action should be dismissed pursuant to Rule1.140(b) (6), Fla.R.Civ.P., because the Complaint fails to state a cause of action.

#. Section 83.86(3), Fla.Stats., provides for termination of a tenancy if the tenant fails to pay rent within three days, excluding Saturdays, Sundays, and legal holidays, after the delivery of a written demand for payment or possession of the premises.

#. Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew Inv. Co. 128 So. 827 (Fla. 1930)

#. The three-day notice of termination of tenancy attached to the Complaint is defective in that it requires payment on ________________(date), which was a [Saturday, Sunday or legal holiday].

#. In the absence of showing strict compliance with legal requirements and proper termination of the tenancy, the Complaint fails to state a claim for possession of premises.

[PUBLIC OR SUBSIDIZED HOUSING] [DEFECTIVE NOTICE:
Failure to state grounds for termination of tenancy]

#. The action should be dismissed pursuant to Rule1.140(b) (6), Fla. R. Civ. P., because the Complaint fails to state a cause of action.

#. A landlord participating in a federal public or subsidized housing program must comply with the federal regulations governing said program in addition to the state law requirements for an eviction action. Holy Comforter Senior Housing V. Pope, 48 Fla.Supp.2d 129 (Dade Co. 1991); Seventh Housing Corporation v. Levinson 38 Fla.Supp.2d 196 (Palm Beach Co. 1989); Royal American Management Inc. v. Godfrey, 14 Fla.Supp.2d 56 (Orange Co. 1985)

#. Strict compliance with the statutory notice provisions is required. Baker v. Clifford-Mathew Inv. Co., 128 So. 827 (Fla. 1930)

#. The lease, state statute, and federal regulations require notices of termination of tenancy to state the grounds for termination with sufficient specificity to allow Defendants to prepare a defense.

#. A landlord may not evict a tenant on grounds not clearly specified on a notice of termination of tenancy. Royal American Management Inc v. Godfrey, 14 Fla. Supp. 2d 56 (Orange Co. 1985); Great Atlantic v. Hughes, 5 Fla. Supp. 2d 46 (Orange Co. 1983).

#. Plaintiff has failed to state any specific grounds for the termination of the tenancy in the notice.

#. In the absence of showing strict compliance with legal requirements and the proper termination of the tenancy, the Complaint fails to state a claim for possession of premises.

[DEFECTIVE NOTICE:
Failure to identify lease provision alleged to have been violated]

#. Plaintiff fails to state a claim for eviction of the Defendant because Plaintiff's notice of termination to the Defendant lists no specific conduct that would violate the lease.

#. Plaintiff fails to state a claim for eviction of the Defendant because Plaintiff does not describe what portion of the lease is alleged to have been violated.

#. The sending of a proper termination notice is a necessary element of a cause of action for eviction.

#. The allegation of a breach of the rental agreement is a necessary element of an action for eviction.

#. Because Plaintiff failed to satisfy necessary elements of its cause of action, it failed to state a claim upon which relief can be granted.

[DEFECTIVE NOTICE:
Failure to include language required by the lease]

#. The action should be dismissed pursuant to Rule 1.140(b)(6), Fla. R.Civ.P., because the Complaint fails to state a cause of action.

#. The lease agreement in effect between Plaintiff and Defendant mandates that the termination notice advise the tenant of a ten-day period in which to discuss the proposed termination with the landlord.

#. The lease also mandates the termination notice to advise the tenant of his/her right to defend the action in court.

#. The notice upon which this Complaint rests does not include the requisite language.

#. In the absence of showing strict compliance with legal requirements and the proper termination of the tenancy, the Complaint fails to state a claim for possession of premises.

[DEFECTIVE NOTICE:
Failure to comply with federal regulation] Subsidized Section 221(d) Program

#. The action should be dismissed pursuant to Rule 1.140(b)(6), Fla.R.Civ.P., because the Complaint fails to state a cause of action.

#. Plaintiff, _________________________, is subsidized by the Department of Housing & Urban Development (HUD). #. As such, it is subject to HUD regulations governing tenant evictions.

#. HUD regulations found at 24 C.F.R. 247.4(a) require the notice of termination of tenancy to: (choose all applicable items) A. State the reasons with sufficient specificity to enable the tenant to prepare a defense; B. "Advise the tenant that if he/she remains in the unit on the date specified for termination, the landlord may seek to enforce the termination only by bringing a judicial action, at which time the tenant may present a defense."

#. The notice upon which this Complaint rests fails to state this requisite language.

#. In the absence of showing strict compliance with legal requirements and the proper termination of the tenancy, the Complaint fails to state a claim for possession of premises.

PUBLIC HOUSING ONLY: [DEFECTIVE NOTICE: Failure to comply with federal regulation]

#. The action should be dismissed pursuant to Rule1.140(b) (6), Fla.R.Civ.P., because the Complaint fails to state a cause of action.

. A public housing authority is required to provide notice of termination of a tenancy complying with state law, federal law, and the lease.

#. Under federal law, 24 C.F.R. 966.4(l) (2) and (3), Plaintiff is required to serve the tenant with a notice of termination of tenancy stating/providing: (choose all applicable items]

A. Specific grounds for termination showing serious or repeated violation of material terms of the lease; B. Fourteen (14) days notice for alleged non-payment of rent;

C. Reasonable time (not to exceed 30 days) for alleged violations of the health and safety of others;

D. Thirty (30) days notice for all other alleged grounds;

E. The tenant's right to make a reply;

F. The tenant's right to examine Housing Authority documents concerning the eviction;

G. [If tenant has a right to a grievance hearing under 24 C.F.R. 966.51 and not excluded by eviction for criminal activity under 24 C.F.R. 966.51(a) (2)], the tenant's right to request a grievance hearing;

H. [If tenant has no right to a grievance hearing due to allegations of certain types of criminal activity or drug related eviction under 24 C.F.R. 966.4(l) (5)], that the tenant is not entitled to a grievance hearing, specify the judicial eviction procedure to be used for eviction, that HUD has made determination that this procedure meets due process elements as defined by HUD regulations, and specifying whether the eviction is for certain criminal activity that threatens the health, safety or right to peaceful enjoyment of others or for drug related criminal activity that on or near such premises.

#. Plaintiff failed to comply with said requirements by failing to __________________ _______________________________________(specify).

#. Accordingly, the notice of termination on which this Complaint rests failed to properly terminate Defendant's tenancy.

[DEFECTIVE NOTICE:
Grievance Procedures]

#. The action should be dismissed pursuant to Rule1.140(b) (6), Fla. R. Civ. P., because the Complaint fails to state a cause of action.

#. Federal law requires Plaintiff to provide Defendant with a notice of termination of tenancy which informs the tenant of her right to request a grievance hearing.

#. The termination notice attached to the Complaint does not inform the Defendant that she has a right to a grievance.

#. Such notice fails to properly terminate Defendant's tenancy.

[DEFECTIVE NOTICE:
Defective time Period in notice]

#. The action should be dismissed pursuant to Rule 1.140(b)(6), Fla. R. Civ. P., because the Complaint fails to state a cause of action.   Federal law requires Plaintiff to provide Defendant with a thirty (30) day notice of termination of tenancy.

#. The termination notice attached to the Complaint only allows Defendant fifteen (l5) days to correct the alleged violation.

#. Such notice fails to properly terminate Defendant's tenancy.

[DISMISS:

Failure to State a C/A: No lessor-lessee relationship -
defect must be evident from the complaint,
otherwise a motion for judgment on the pleadings or
motion for summary judgment may be the appropriate motion]

#. The action should be dismissed pursuant to Rule 1.140(b) (6), Fla.R.Civ.P., because the Complaint fails to state a cause of action.

#. The Defendants are not tenants of the Plaintiff and no landlord-tenant relationship exists between those parties pursuant to 83.41 and 83.43(3) and (4), Fla. Stats.

#. The Defendants claim a fee interest in the subject premises as homestead property pursuant to Article 10, Section 4 of the Florida constitution.

#. Section 83.42 expressly excludes: (choose applicable item)

A. occupancy under a contract of sale,

B. owner of a condominium unit,

C. occupancy by a certificate holder in a cooperative apartment.

#. Where no landlord-tenant relationship exists between the parties, no cause of action can be stated for eviction under Chapter 83, Fla. Stats. Accordingly, this action must be dismissed.

#. Under Florida law, a land sales contract is deemed to be a mortgage under the provisions of 697.01, Fla. Stats., and is subject to the same rules of foreclosure and to the same regulations, restraints and forums as are prescribed in relation to mortgages. Mid-State Investment Corporation v. O'Steen, 133 So.2d 455 (Fla.lst DCA 1961), Cook v. Merrvfield, 335 So.2d 297 (Fla. 1st DCA 1976). #. An action for foreclosure must be filed in circuit court. Accordingly, plaintiff may not proceed by eviction action in County Court.

[DISMISS.UPL.
Unauthorized agent filing]

#. The Complaint is void because it is not signed by an attorney or by an individual authorized to sign and file an eviction complaint for nonpayment of rent.

#. The Complaint is signed by _____________. Mr./Ms.___________ is not an attorney or an authorized agent by law or statute to prepare, sign, and file the complaint.

#. The Florida Supreme Court put forth the limits on which non-attorneys may file complaints for eviction for nonpayment in The Florida Bar Re Advisory Opinion -- Nonlawver Preparation of and Representation of Landlord in Uncontested Residential Evictions, F.L.W. 615 (Fla. Dec. 10, 1993) (hereafter referred to as "Advisory Opinion").

#. Property managers are allowed to file complaints only if they have express written authority from the landlord to do so. Id. Mr./Ms. _________ produced no such authority.

#. The Complaint is a nullity because it is neither signed by an attorney nor by one authorized by law to sign a complaint for eviction for nonpayment.

#. Accordingly, the complaint must be dismissed without prejudice.

[DISMISS:
Nonconformity with Supreme Court Advisory Opinion]

#. A property manager may file a complaint for eviction if he uses the form approved by the Supreme Court at 591 So.2d 594 (Fla. 1991). Advisory Opinion, 18 F.L.W. at 615. The Complaint used by the plaintiff is not the approved form. #. Property managers who file on behalf of the landlord may not seek money judgments. Id. The Plaintiff's complaint seeks a money judgment for past due rents and miscellaneous charges.

#. The Complaint is not in conformity with law and so it must be dismissed.

[DISMISS: FAILURE TO ATTACH DOCUMENTS - Lease]

#. Rule 1.130(a), Fla.R.Civ.P., requires a Plaintiff to attach documents upon which the action may be brought.

#. The Complaint served upon the Defendants did not include an attachment of the written lease agreement between the Plaintiff and Defendants.

#. The written lease agreement existing between the parties is an essential document defining the rights and liabilities of the parties and forming the basis upon which this action may be brought.

#. The Complaint should be dismissed because it fails to comply with the Florida Rules of Civil Procedure.

[DISMISS: FAILURE TO ATTACH DOCUMENTS - notice]

#. Rule 1.130(a), Fla. R. Civ. P., requires a Plaintiff to attach documents upon which the action may be brought.

#. The Complaint served upon the Defendants did not include an attachment of the notice of termination allegedly served upon the Defendants.

#. The notice of termination is an essential document forming the basis upon which this action may be brought.

#. The Complaint should be dismissed because it fails to comply the Florida Rules of Civil Procedure.

[ADD TO ALL MOTIONS] WHEREFORE, Defendants respectfully pray the Court to:

1 Dismiss the Complaint (with/without prejudice).

2. Award Defendants their court costs.

3. Grant such other relief as the Court deems just and appropriate. Date: _____________ Respectfully Submitted, (Office) Attorneys for Defendant(s) (Address) (Telephone) By:_______________________________ Attorney Fla. Bar No._____________

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Motion to Dismiss has been sent by U.S Mail this ____ (date) to ________________________________.

____________________________ (Attorney name)


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