By Michael J. Gelfand, Esq. / Published April 2021
Late for dinner. Late for an appointment. Late for a meeting. Does being “a little bit” late create cause for despair or a penalty? In this day of COVID-19 and all, are there margins of error?
Sending a firm reminder of the importance of payment deadlines, which are germane to Florida community associations, a Florida court recently ruled that the mailing of a payment before the due date is not sufficient to avoid a default and eviction if payment is received after the due date! The facts in The Cove & Deerfield Beach v. R Fast, Inc., 45 Fla. L. Weekly D 2640 (Fla. 4th DCA, November 25, 2020), reflect that the landlord filed an action to evict a tenant in a commercial building. The trial court ordered the tenant to pay the rent into the court registry on the first day of each month. Apparently, for one month, the tenant did not pay on the first day of the month. That was seemingly excused because the courthouse was closed due to the COVID-19 pandemic.
A second time the payment was not received by the court registry on the first day of the month, the tenant mailed the check two days before payment was due. The clerk deposited the payment one day after the due date. The trial court denied the landlord’s motion for default, finding that the tenant mailed the rent payment in a timely fashion, allowing the late payment.
The Florida appellate court granted the landlord’s petition and required the trial court to enter a default and issue a writ of possession to allow the eviction of the tenant. The court noted that although the landlord granted an earlier extension when the courthouse was closed due to COVID-19, the clerk’s office was open on the due date.
The court explained that although the result is harsh, the reason for making a late payment is not relevant. The 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. The court must issue a default for possession. In holding, the court relied at least in part on Florida’s law addressing nonresidential tenants who fail to make a payment into the court registry on time, §83.232(5), Fla. Stat. (2020).
Although the pandemic was raised by the tenant as an excuse for late payment, apparently there was no proof of delay by the pandemic. The tenant failed to introduce evidence that the clerk received the payment on time in the mail but failed to deposit the payment.
Many contracts have strict waiver of rights provisions in the case of late payment. Creating a diary or reminder system setting deadlines in advance of a due date can be helpful to keep your community out of trouble. This is especially true for recreation lease situations and may be helpful for commercial condominiums and commercial property associations.
The lesson to be learned: Even a single day late can make all the difference!
Do you have a remedy when an occupant creates continuing and significant problems in your community? Can the occupant be evicted or removed if he or she has not broken any rules or laws?
Maybe so, especially if the occupant is a lessee, and the lessee’s lease contains a “bad boy” clause allowing for termination of the lease if the lessee operates in a manner that reflects unfavorably upon the lessor. Can your association require bad boy clauses to be inserted into unit or parcel leases?
In another recent case dealing with eviction, a Florida appellate court addressed whether a lessor had sufficient evidence to prevent the dismissal of the claim. The claim was that the lessee operated its rented facility in a manner that reflected unfavorably upon the lessor. In the end, whether the allegations of improper behavior were true was not important. What mattered was that others believed the allegations were true.
The facts were recounted in Dolphin Aviation, Inc. v. Heli Aviation Florida, LLC, 45 Fla. L. Weekly D 2627 (Fla. 2nd DCA, November 25, 2020). Heli Aviation, founded by Niclas Herle, entered into a lease agreement with Dolphin Aviation to lease a hangar at an airport. The lease provided
Should the Lessee break any of the terms and conditions of this lease or should the Lessee operate its facility in a manner that reflects unfavorably upon Lessor or its operation, then the Lessor shall have the right to terminate this lease upon 30 days written notice and Lessee agrees to promptly and peacefully surrender possession of the premises to Lessor in a neat and reasonable condition.
The Airport Authority notified Dolphin that due to Herle’s conduct, Dolphin itself was in violation of its own lease with the Airport Authority. The Airport Authority directed Dolphin to terminate Heli’s lease, or its own lease would be terminated.
Dolphin sued Heli and its principal, Niclas Herle, for eviction and damages to the premises. Dolphin sought to use Herle’s arrest information against Herle. The criminal docket revealed Herle had been charged with aggravated assault, his bond had been revoked, and a bench warrant was still outstanding.
Nevertheless, the trial court dismissed the eviction claim, ruling that Dolphin failed to introduce any evidence to show that Heli violated any rules, regulations, or laws or that it had breached the lease.
The Florida Appellate Court reversed the trial court’s dismissal. The case would go forward under the standard the parties agreed to in the termination clause of the lease. As the court stated, “that clause does not require any actual violation of a rule, regulation, or law in order for Dolphin to exercise its discretion to terminate.” The court noted that the question of whether Dolphin could prove its case was something yet to be decided.
If a lessor can include bad boy wording in a lease, perhaps a declaration of condominium or covenants can require leases in community associations to incorporate bad boy prohibitions, including terminating a lease for violating a “bad boy” provision! Nuisance provisions may be available but are rarely helpful because of their high barrier to meet. Having a provision in a lease which allows for termination when the lessee’s conduct reflects unfavorably upon the lessor may be more helpful.
Michael J. Gelfand, Esq.
Senior Partner, Gelfand & Arpe, P.A.
Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar Board Certified lawyer in Condominium and Planned Development Law and in Real Estate Law, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is a past Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at email@example.com or (561) 655-6224.