DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

IAN KAUFMAN,

Appellant,

v.

HIGH SEAS, LLC,

Appellee.

No. 4D2022-3023

[March 27, 2024]

Appeal from the County Court for the Seventeenth Judicial Circuit, 

Broward County; Kim Theresa Mollica, Judge; L.T. Case No. 22-007092 

CONO.

Ian H. Kaufman, Wilton Manors, pro se.

No brief filed on behalf of appellee.

CIKLIN, J.

This appeal arises out of a landlord’s suit seeking possession of a

residential apartment based on nonpayment of rent. We agree with the 

tenant that the trial court erred in entering a default judgment without 

first ruling on his timely-filed motion to determine rent. Consequently, we 

reverse and remand for further proceedings.

The parties to this appeal, Ian Kaufman (“tenant”) and High Seas, LLC 

(“landlord”), executed a residential lease. About three weeks before the 

lease was to expire, the landlord sued the tenant, seeking a judgment for 

possession based on the tenant’s failure to pay rent. The tenant filed an 

answer and raised affirmative defenses. He disputed the landlord’s 

contention that it had served the required three-day notice, and he alleged 

that he had served the landlord with a seven-day notice of noncompliance 

and a demand to cure, but that the landlord did not repair a defective air 

conditioner. Although he denied that he did not pay rent, he also alleged 

he paid reduced rent to make up for expenses which he had incurred in 

attempting to cool the apartment. The tenant also brought a counterclaim 

alleging, among other claims, breach of the lease agreement. 
2

Subsequently, on October 31, 2022, the tenant timely moved to determine 

rent. 

On November 2, the landlord moved for a default final judgment of 

eviction, citing section 83.60(2), Florida Statutes (2022), and asserting that 

the tenant had filed a responsive pleading but “failed to plead any legal 

defenses to the failure to timely pay rent.” Also that day, the tenant moved 

to strike the landlord’s motion for default judgment, pointing out that the 

tenant had raised affirmative defenses and had moved for a rent 

determination.

Later that day, the trial court entered a final judgment of eviction, 

finding that the tenant had “failed to assert any legal defense.” The trial 

court did not address the tenant’s pending motion to determine rent. 

Instead, the trial court awarded the landlord possession of the property, 

directed the clerk to immediately issue a writ of possession, and ordered 

the sheriff to execute the writ. The trial court also filed “Judge’s Review 

Notes Re: Defendant’s Answer,” wherein it again did not address the 

tenant’s motion to determine rent and instead found, “This is an action for 

a holdover tenant. Tenant did not deposit money into the depository as 

required. Defendant did not provide a valid legal defense to the action in 

their response.” (Emphasis omitted).

On appeal, the tenant argues that the trial court erred in entering a 

default judgment without holding an evidentiary hearing on his motion to 

determine rent. We agree.

The landlord brought a suit for possession, pursuant to section 83.59, 

Florida Statutes (2022). Section 83.60 provides that a defendant in a suit 

for possession for nonpayment of rent “may defend upon the ground of a 

material noncompliance with s. 83.51(1), or may raise any other defense, 

whether legal or equitable . . . including the defense of retaliatory conduct 

in accordance with 83.64.” § 83.60(1)(a), Fla. Stat. (2022). However:

[I]f the tenant interposes any defense other than payment, 

including, but not limited to, the defense of a defective 3-day 

notice, the tenant shall pay into the registry of the court the 

accrued rent as alleged in the complaint or as determined by 

the court and the rent that accrues during the pendency of 

the proceeding, when due. . . . Failure of the tenant to pay 

the rent into the registry of the court or to file a motion to 

determine the amount of rent to be paid into the registry 

within 5 days, excluding Saturdays, Sundays, and legal 

holidays, after the date of service of process constitutes an 
3

absolute waiver of the tenant’s defenses other than payment, 

and the landlord is entitled to an immediate default judgment 

for removal of the tenant with a writ of possession to issue 

without further notice or hearing thereon. If a motion to 

determine rent is filed, documentation in support of the 

allegation that the rent as alleged in the complaint is in error 

is required . . . .

§ 83.60(2), Fla. Stat. (2022).

“Section 83.60(2) is not discretionary; it compels a tenant defending 

against an eviction to pay into the court registry either (i) the amount of 

rent alleged to be due, or (ii) the amount of rent determined by the court, 

plus all rent that accrues during the case’s pendency.” 1560-1568 Drexel 

Ave., LLC v. Dalton, 320 So. 3d 965, 969 (Fla. 3d DCA 2021). This is so 

even if the tenant has counterclaims pending. First Hanover v. Vazquez, 

848 So. 2d 1188, 1190 (Fla. 3d DCA 2003). The only exception is if the 

tenant raises the defense of payment of rent. Dalton, 320 So. 3d at 969; 

see also Stanley v. Quest Int’l. Inv., Inc., 50 So. 3d 672, 674 (Fla. 4th DCA 

2010) (“The tenant is required to deposit the disputed rent into the court 

registry to assert any defense other than payment.”).

[T]o give effect to [section 83.60(2)], when a tenant facing 

eviction raises any defenses to an eviction (other than 

payment of rent), and files a motion seeking a determination 

of rent due, the trial court is required to make that rent 

determination as quickly as possible; any delay in making that 

rent determination thwarts the statute’s purpose of requiring 

a tenant to continue to pay rent while defending against an 

eviction action.

Dalton, 320 So. 3d at 969; see also Stanley, 50 So. 3d at 674 (Fla. 4th DCA 

2010) (agreeing with lower court’s observation that the statute’s provision 

of an “absolute” waiver entitling the landlord to an “immediate” judgment 

“indicates . . . the Legislature was comprehensive in its intentions as to 

the effect of the statute” (quoting Quest Int’l Inv., Inc. v. Stanley, 16 Fla. L. 

Weekly Supp. 586b (Fla. Broward Cty. Ct. Apr. 14, 2009))).

A trial court typically disposes of a motion to determine rent 

in one of two ways: (1) the court sets an expedited evidentiary 

hearing and issues an order setting the rent to be deposited; 

or (2) the court strikes the motion as procedurally barred 

(usually based on the motion of the landlord pointing out 

statutory or procedural infirmities).
4

Axen v. Poah Cutler Manor, LLC, 323 So. 3d 800, 801 n.1 (Fla. 3d DCA 

2021).1

Here, although the tenant denied the landlord’s allegation in its 

complaint for possession that he had failed to pay rent, his affirmative 

defenses indicate he had paid less than the rent amount required by the 

lease. His defenses were not based on payment of the rent provided for in 

the lease. Consequently, he was required to timely deposit the rent in the 

court registry or timely move to determine rent. He timely moved to 

determine rent, and the trial court did not strike the motion as 

procedurally barred. Thus, the trial court erred in entering an eviction 

judgment without first holding a hearing and ruling on the motion. See 

Jappa v. Master Lessee Mezzo, LLC, 346 So. 3d 222, 223-24 (Fla. 2d DCA 

2022) (“[B]ecause the record before this court indicates that Jappa filed 

her motion to determine the amount to be paid and request for hearing 

within five working days after she was served with the complaint, the trial 

court erred by entering a default final judgment without holding a hearing 

to resolve the disputed issues.”); Prince v. MCR Apts. 1, LLC, 326 So. 3d 

228, 228 (Fla. 3d DCA 2021) (holding tenant’s pending motion for 

determination of rent precluded entry of the default final judgment of 

removal); Axen, 323 So. 3d at 801 (holding that “the undisposed-of motion 

to determine rent precluded” judgment based on nonpayment).

The eviction judgment and the trial court’s “review notes” reflect that 

the trial court based the eviction judgment on the ground that the tenant 

failed to raise any “legal defense.”2 But section 83.60(2), on which the 

1 We recognize that form 1.923, governing eviction summonses, instructs a 

tenant to attach documentation to a motion to determine rent and thereafter 

contact the assigned judge for a hearing. But that requirement is not found in 

section 83.60(2) and we are without authority to expand the statutory 

requirement. The Florida Supreme Court has advised judges and practitioners 

that comments to rules as well as “standard” jury instructions are not necessarily 

a correct statement of the law. See, e.g., Standard Jury Instructions–Civil Cases,

777 So. 2d 378, 379 (Fla. 2000) (cautioning that the “instructions reflect only the 

opinion of the committee and are not necessarily indicative of the views of this 

Court as to their correctness or applicability”).

2 It is not clear why the trial court found that the tenant failed to raise legal 

defenses. It appears he did. For instance, he alleged that the eviction was 

retaliatory. See Jones v. Reid, 358 So. 3d 494, 494 (Fla. 3d DCA 2023) (observing 

that the tenant’s “affirmative defenses raised legal and equitable defenses, 

including a claim of retaliatory eviction”).
5

landlord’s motion for default judgment relied, does not require a tenant to 

assert meritorious defenses to avoid an immediate default judgment for 

possession. Instead, when a “tenant interposes any defense other than 

payment,” a tenant must either deposit rent into a court registry or timely 

move to determine rent. The tenant timely moved to determine rent. 

Consequently, the trial court erred in not holding a hearing on the tenant’s 

motion to determine rent.

Reversed and remanded for further proceedings.

WARNER and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.