Timeliness (The Cove & Deerfield Beach v. R Fast)

Michael Gelfand 12/7/2020

A single day can make all the difference! And if you believe the doctrine of substantial compliance applies to everyone equally, take note of the recent decision in The Cove & Deerfield Beach, LLC v. R Fast, Inc., 45 FLW D2640, Case No.: 4D20-1782, (Fla. 4th DCA, November 25, 2020).

Trial Court Proceedings.

The Cove, landlord of a commercial building, sought to evict the tenant. The county court vacated a default and transferred the case to the circuit court. The circuit court granted the tenants motion to determine rent and required the tenant to pay rent in the court registry on the first day of each month.

Apparently for one month the tenant did not pay on the first of the month; however, on that due date the court was closed due to the COVID-19 pandemic. A second time rent was not received by the court registry on the first day of the month the tenant had mailed the check two days before the due date. The clerk deposited the check into the court registry the day after the due date. The circuit court denied the landlord’s second motion for default.

The Appellate Decision.

The appellate court granted the landlord’s petition for a writ of mandamus requiring the circuit court to enter a default and issue a writ of possession. At least in the landlord-tenant environment, the trial court does not have discretion to deny a motion for default when rent has not been paid into the court registry pursuant to court order.

Though the appellate court recognized that “the result is harsh,” the court remarked there are no equitable exceptions and the tenant’s reasons for non payment including the Florida Supreme Court’s administrative order of an emergency health condition and that the court registry is not an essential and critical proceeding, do not provide a reason for failing to make payment. The courthouse was open on the date the payment was due. Therefore, on remand the landlord is entitled to a default and possession; however, the landlord was not entitled to disbursement of funds.

Kibbitizing.

This decision follows a line of decisions in the mortgage foreclosure context in which “substantial compliance” with notice prerequisites was allowed to shave a day or two, or more. Albeit this was usually when the borrower had not made payments, at all. In the landlord tenant context a stricter approach appears to prevail.

This decision is also notable because the mailbox rule apparently did not apply. A word to drafters of orders to perhaps distinguish between filing and otherwise. The exact language of the deposit order is not quoted; however, the decision alludes to a “pay” requirement for which the mailbox rule presumably would not apply.

Though the pandemic was raised by the defendant tenant as an excuse for late payment, apparently there was no proof of delay by the pandemic, the burden of proof being upon the tenant, including the burden of showing a delay on the part of the clerk to docket.

It was good seeing so many Committee members at last week’s meeting.

Best and good health to all.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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