A landlord and tenant entered a lease-option to pay rent and have some of that money applied to purchasing the property; but the landlord filed for eviction.
The trial court ruled that an eviction is not the appropriate remedy where the occupant of the property has equity in the property. See e.g., Ward v. Estate of Ward, 1 So. 3d 238 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D28f]; Toledo v. Escamilla, 962 So.2d 1028 (Fla. 3rd DCA 2007) [32 Fla. L. Weekly D1876a]. In amending s. 83.42 Fla. Stat. in 2013, the legislature set a bright line for distinguishing tenants from buyers. See McKinney v. Dickson, 21 Fla. L. Weekly Supp. 175a (Lake Co. 2013).
While the county court may determine whether a tenant/buyer has equity in the property, Section 26.012(g) Fla. Stat. grants exclusive jurisdiction to the Circuit Court in actions involving title to real property/ejectment. Thus, landlord’s proper cause of action was an ejectment in circuit court, not an eviction in county court, and the case was ordered transferred to circuit court for further proceedings.
Harner vs. Carter, County Court, 7th Judicial Circuit in and for Volusia County. October 6, 2014. 22 Fla. L. Weekly Supp. 462a.
Current the law requires that “[t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.” Fla. Stat. 83.60(1)(a).
This means that a defective complaint will be dismissed without prejudice and with leave to amend the complaint and continue the lawsuit.
DIANA MARVEZ, Appellant, v. STEVEN CANDELARIA , Appellees. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County . November 19, 2014. An Appeal from an order of dismissal in the County Court in and for Miami-Dade County. 22 Fla. L. Weekly Supp. 515b.
(PER CURIAM.) Diana Marvez filed suit to evict Steven Candelaria and Mayelin Candelaria. Subsequently, the Candelarias moved to dismiss the action. The motion to dismiss was granted with prejudice and Marvez appeals.
As a preliminary matter, this Court observes that a dismissal with prejudice is a harsh determination that ends an action without addressing the merits. Dismissal with prejudice is especially harsh where the failure of the complaint is amenable to amendment. Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 253 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1381a].
In the present instance, the motion to dismiss sought dismissal on the grounds that Marvez’s complaint for eviction rested upon a deficient three day notice. The motion further asserted that the wrong lease agreement had been attached to the complaint. This, contend the Candelarias, required dismissal with prejudice.
Effective July 1, 2013, Florida law changed to require that “[t]he landlord must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.” Fla. Stat. 83.60(1)(a).
Based upon the foregoing, the Trial Court’s Order of Dismissal REVERSED. The cause is REMANDED to the trial court for entry of an order of dismissal without prejudice and with leave to amend pursuant to section 83.60(1)(a). The Trial Court shall assess appellate fees and costs pursuant to section 83.48, Florida Statues, to the party ultimately prevailing below. (ZABEL, SHAPIRO, LINDSEY, JJ., Concurring).
On April 1, 2015, the Florida Supreme Court finally set a date to hear the Bartram case, where the Court will decide the fate of the statute of limitations in foreclosure cases.
In the past, sale date cancellation hearings were scheduled at will, even with 1-2 days notice. Now, the Court is requiring at least 5 business days notice to the Court itself via an email to set the date for a hearing to cancel a sale date. Any hearings not confirmed by the Court will NOT be heard as walk-ins as in the past.
ANNOUNCEMENT! From the 17th Judicial Court Broward
RE: ADD ONS
The following announcement was posted on the doors of the court rooms today:
Beginning Tuesday, March 17, 2015 all Add Ons will be handled in the following manner:
All Add Ons will be scheduled with prior email notification ONLY.
For Emergency Motion to Stop a Sale please email the Foreclosure Unit at least 5 working days prior to the hearing.
The email address is email@example.com. Cases will be considered schedule by way of an email confirmation.
For all other Add Ons please also email us at least10 days out. In all cases the name of your motion must be stated. Again your hearing will ONLY be considered confirmed by email from Division 11.