Third District Court of Appeal
State of Florida
Opinion filed July 14, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-265
Lower Tribunal Nos. 20-240 AP, 20-17880 CC
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Sze Lee,
Appellant,
vs.
1510 N.E. 109 St., LLC,
Appellee.
An Appeal from the County Court for Miami-Dade County, Ayana
Harris, Judge.
Sze Lee, in proper person.
No appearance, for appellee.
Before HENDON, LOBREE, and BOKOR, JJ.
HENDON, J.
Sze Lee appeals from a final judgment for eviction and removal of
tenant. We affirm.
On September 12, 2020,
1510 N.E. 109 ST, LLC (“Landlord”) gave Sze
Lee (“Lee”) the required 15-day notice that her month-to-month tenancy
would end on September 30, 2020 and requested that she vacate the
premises. The Landlord stated that the dwelling was not a “covered property”
under section 4024 of the Cares Act in residential evictions for non-payment
of rent and was therefore exempt.1 Lee unsuccessfully tried to negotiate her
1
See also 1560-1568 Drexel Ave., LLC v. Dalton, No. 3D21-1115,
2021 WL
2149752 (Fla. 3d DCA May 27, 2021) at footnote 5: Governor Ron DeSantis
issued the Executive Order on July 29, 2020. Section 2 of the Executive
Order provides, in relevant part:
A. I hereby suspend and toll any statute providing for final action at
the conclusion of an eviction proceeding under Florida law solely
when the proceeding arises from non-payment of rent by a
residential tenant adversely affected by the COVID-19 emergency.
B. For purposes of this section, adversely affected by the COVlD-
19 emergency means loss of employment, diminished wages or
business income, or other monetary loss realized during the Florida
State of Emergency directly impacting the ability of a residential
tenant to make rent payments.
C. Nothing in this Executive Order shall be construed to suspend or
otherwise affect eviction proceedings unrelated to nonpayment of
rent.
(Emphasis added).
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rental terms with the Landlord, citing COVID concerns and her risk of
becoming homeless.
On October 6, 2020, the Landlord filed a complaint for eviction, and
Lee answered the complaint. Lee asserted as an affirmative defense that the
Landlord breached the federal temporary halt in residential evictions as a
result of the quarantine, and the Landlord disregarded the Centers for
Disease Control and Prevention (“CDC”) order. She further argued that the
eviction would endanger her health by exposing her to COVID.
On October 8, 2020, Lee was served with the 5-day residential eviction
summons and complaint. That summons indicated that Lee “MUST”
respond according to the instructions provided in the summons. Lee did not.
The Landlord moved to strike Lee’s answer and enter a default, asserting
that Lee had not paid any rent into the court registry or filed a motion to
determine the amount to be paid into the court registry. Lee filed a motion
for summary judgment, again raising? the allegation that the Landlord was
in violation of the CDC moratorium on evictions. Lee additionally argued that
the Landlord’s motion for default for non-payment of rent failed because the
Landlord did not request rent in its complaint for eviction.
The court struck Lee’s pleading and entered a default, as it appeared
“to the Court that the monies requested in the Complaint have not been paid
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into the Registry of the Court and that no motion has been filed” by Lee
requesting a determination of the amount of rent to be paid into the court
registry. The court issued a final judgment of eviction and removal of tenant,
from which judgment Lee appeals. 2 Lee asserts on appeal that, as the
complaint for eviction did not request any rent to be paid into the court
registry or claim an amount of rent due, she was not required to file a motion
to determine an amount not demanded in the complaint. We disagree.
Discussion
A tenant's statutory obligation to place rent into the court registry arises
within the context of “an action by the landlord for possession of a dwelling
unit” where the “tenant interposes any defense other than payment.” §
83.60(2), Fla. Stat. (2021). That statute requires payment of rent into the
registry of the court in residential landlord tenant disputes and states, in
relevant part,
(2) In an action by the landlord for possession of a dwelling unit,
if the tenant interposes any defense other than payment,
including, but not limited to, the defense of a defective 3-day
notice, 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 that 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
2
The Appellee Landlord has been precluded from OA for failure to file an
Answer Brief.
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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.
If 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. . . .
(Emphasis added). As stated in 1560-1568 Drexel Ave., LLC v. Dalton, No.
3D21-1115,
2021 WL 2149752, at *3 (Fla. 3d DCA May 27, 2021):
Section 83.60(2) is not discretionary; it compels a tenant
defending against an eviction to pay into the court registry either
(i) the amount of rent alleged to be due, or (ii) the amount of rent
determined by the court, plus all rent that accrues during the
case's pendency. [citations omitted]. The only exception to this
express statutory requirement is if the tenant interposes a
defense of payment – which Tenant did not do in this case.
Lee was served with a complaint for eviction that did not specify an
amount of rent to be paid, and her defenses were unrelated to non-payment
of rent. She was thus obligated to pay the rent into the court registry or file a
motion to ask the court to determine the amount of rent to be paid into the
court registry. See id.; First Hanover v. Vazquez,
848 So. 2d 1188, 1191
(Fla. 1st DCA 2003) (holding, in accord with section 83.60, the landlord was
entitled to payment of rent either directly or into the court registry, and on the
tenants' failure to do so, the landlord was entitled to a default and a writ of
possession).
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She was also served with the summons that very clearly set forth everything
she needed to do to contest her eviction. The summons states, in pertinent
part:
You are entitled to a trial to determine whether you can be
required to move, but you MUST do ALL of the things listed
below. You must do them within five (5) days (not including
Saturday, Sunday, or any legal holiday) after the date these
papers were given to you or to a person who lives with you or
were posted at your home.
If Lee was unsure whether she had to pay rent, or was unsure of the amount,
Lee was required to file a motion to determine the amount of rent due or to
contest in writing whether rent was due at all. The summons concluded with
the final warning that:
4. IF YOU DO NOT DO ALL OF THE THINGS SPECIFIED
ABOVE WITHIN FIVE (5) WORKING DAYS AFTER THE DATE
THAT THESE PAPERS WERE GIVEN TP [sic] YOU OR A
PERSON WHO LIVES WITH YOU OR WERE POSTED AT
YOUR HOME, YOU MAY BE EVICTED WITHOUT A HEARING
OR FURTHER NOTICE.
Lee cannot claim that because the notice of eviction did not specify rent due,
the default final judgment should be vacated when Lee failed to take any of
the required and clearly stated steps necessary to protect her interests. Lee
has not argued any valid legal basis for reversal. Because Lee failed to follow
the court’s mandatory instructions provided to her in the eviction summons,
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the trial court’s order entering a default final judgment of eviction was not in
error.
Affirmed.
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