
    BARCELONA WEST v. ELLIS
    Case No. CO83-1291
    County Court, Orange County
    April 21, 1983
    Frederick and Beverly Ellis, pro se.
    
    Edmund T. Woolf oik, for plaintiff.
    Jay Rose, Greater Orlando Area Legal Services, amicus curiae.
   JAMES C. HAUSER, County Judge

This cause came this Court on April 18, 1983. On April 5, 1983, this Court granted the Plaintiff a Writ of Possession, but stayed the Writ after the Defendant persuaded this Court he never received notice of the hearing. The Defendant has placed all rent alleged due and owing into the registry of the Court. This rent does not include late charges.

The Defendant claims the Plaintiff’s three day notice to evict him is defective because it requires the Defendant not only to pay rent, but late charges. See Appendix 1.

The notice requirements to evict for non-payment of rent are set forth at Florida Statutes 83.56(3).

If the tenant fails to pay rent when due and default continues for three days, excluding Saturday, Sunday and legal holidays, after delivery of a written demand for payment of rent or possession of the premises, the landlord may terminate the rental agreement.

Two Orange County courts have previously ruled that if a three day notice requires late charges, that said notice is defective. Hoche v. Berry, CO80-441 (Orange County, Judge Sprinkel); Gray v. Pittman, C082-1469 (Orange County, Judge Cycmanick).

Plaintiff correctly points out that pursuant to Florida Statute 83.43(6), late charges could be considered a part of rent. Florida Statute 83.43(6):

“rent” means the periodic payments due the landlord from the tenant for occupancy under a rental agreement and any other payments due the landlord from the tenant as may be designated as rent in a written agreement.

Plaintiff’s lease, attached as Exhibit 2, states:

“rent” 3. Lessee covenants and agrees to pay to lessor during the term of this lease when due and without notice . . . Tenant also agrees to pay a late charge of $10.00 for any monthly payment due to the lessor on the 5th day of each month in which the rental payment is due and an additional late charge of $1.00 per day thereafter. . .

Without deciding whether the late charge is unconscionable, see Spring Valley Gardens Associates v. Earle, 447 NYS2d 629 (Rockland County Court, 1982), suffice it to say that “late charges” are not specifically designated as “rent”. That being the case, the eviction notice is fatally defective. It is therefore

ORDERED AND ADJUDGED that the Plaintiff’s Complaint for Writ of Possession is denied. The Judgment of April 5, 1983 is quashed. 
      
       The failure to pay “late charges” may, under certain circumstances, be considered a violation of the lease. The landlord’s remedy for eviction would thus fall under Florida Statute 83.56(2) not 83.56(3).
     