March 16, 2022

Why Florida Commercial Landlords Should Push for Rent Determination Hearings Under Section 83.232

Holland & Knight Retail and Commercial Development and Leasing Blog
Joshua R. Levenson | Benjamin A. Taormina | Suzanne M. Aldahan
Retail and Commercial Development and Leasing Blog

The Florida Legislature intended for commercial tenant evictions to proceed quickly under Florida's summary procedure statute. See §§ 51.011, 83.21, Fla. Stat. (2021). Nevertheless, securing a prompt hearing comes with many challenges: A court's calendar has a finite capacity, a tenant's defenses could prolong the action, and judges, as humans, have personal and professional obligations that further limit their availability. Luckily, Florida Statute Section 83.232 can help a landlord obtain a speedy resolution by requiring the tenant to pay rent into the court registry.

Under Section 83.232, if a tenant contests the amount of money to be placed into the court registry during the pendency of the action, regardless of what defenses the tenant raises (and these "defenses" can be creative), then a landlord is entitled to what is informally referred to as a "rent determination hearing" where the court determines how much rent should be paid into the court registry. After making its determination, the court usually orders the tenant to pay the decided-upon amount of rent into the court registry shortly after the order as well as ongoing rental payments as they become due during the pendency of the lawsuit. If the tenant fails to comply with the order — at any point — a landlord will be entitled to an immediate judgment of possession against the tenant — no exceptions.

The purpose of the rent determination hearing is to protect the landlord, not the tenant. As Florida's Fourth District Court of Appeals stated in Famsun Invest, LLC v. Therault, 95 So. 3d 961, 963 (Fla. 4th DCA 2012):

Section 83.232 is designed to protect a commercial landlord from irreparable harm where a tenant holds over during eviction proceedings without paying rent. If the tenant lacks the resources to pay rent, or from which the landlord may obtain damages, the landlord suffers irreparable harm in the loss of rental income and could even be in danger of losing the premises.

See also Palm Beach Marketplace, LLC v. Aleyda's Mexican Restaurante, Inc., 103 So. 3d 911, 912 (Fla. 4th DCA 2012); Premici v. United Growth Properties, L.P., 648 So. 2d 1241, 1243 (Fla. 5th DCA 1995) ("The statute is designed to remedy the problem of commercial tenants remaining on the premises for the duration of the litigation without paying the landlord rent."). The real power of Section 83.232 is that it has no exceptions to a tenant's failure to pay rent. Put succinctly, the tenant either complies or is evicted.

Implicit in the lack of flexibility with compliance is that a tenant must make arrangements to ensure that the rent is paid by the due date, regardless of whether the due date falls on a weekend or holiday. Meaning, if the court is closed on the due date, then a tenant needs to arrange to pay the rent early. The due date does not roll to the next business day because there are no exceptions to compliance.

And Florida courts have consistently held that Section 83.232 has no exceptions. If a tenant fails to timely pay rent per the Court's order, then the trial court has no discretion and is required to immediately enter a default judgment for possession against the tenant and all others in possession of the premises. See Bezl Ltd., LLC v. Raymond Office Plaza, LLC, 313 So. 3d 632, 633-34 (Fla. 4th DCA 2021); Ninter Grp. USA, Inc. v. Zenash LLC, 312 So. 3d 82, 82 (Mem) (Fla. 4th DCA 2021); Cove & Deerfield Beach, LLC v. R Fast, Inc., 310 So. 3d 413, 415 (Fla. 4th DCA 2020); Park Adult Residential Facility, Inc. v. Dan Designs, Inc., 36 So. 3d 811, 813 (Fla. 3d DCA 2010). While this may seem like a harsh result, there is no equitable exception to Section 83.232, and a court is precluded from considering any excuses or reason for a tenant's failure to timely comply. Bezl Ltd., LLC, 313 So. 3d at 633.

If a tenant needs to make alternative accommodations to get the rent paid early, then the tenant must make those accommodations. See, e.g., Evans Fin. Servs., Ltd. v. Diamond R Ranch, LLC, 2015 WL 802202, at *1 (Fla. Cir. Ct. Jan. 21, 2015) ("The fact that the Rent was due on the first (1st) of January, which is New Year's Day, a National holiday, is irrelevant. Rent payments subject to § 83.232. Fla. Stat., usually come due on the 1st of the month which may readily fall on a Saturday, Sunday or legal holiday. The time is not extended and it is the Tenant's responsibility to deliver the Rent in advance of the first.").

Clearly, Section 83.232 is a powerful tool for landlords because no matter when a court has availability for hearings and no matter what defenses remain pled by a tenant, if a tenant fails to timely pay rent pursuant to an order entered under Section 83.232, it's game over with respect to possession of the premises — no exceptions.

For more information on how you can use Section 83.232 in your commercial tenant evictions, please reach out to the authors.

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