FLORIDA APPELLATE COURT DISMISSES COMPLAINT FINDING LITIGATION PRIVILEGE DEFEATED TENANT’S FCCPA CLAIM

Florida’s Second DCA dismissed KAC 2021-1, LLC’s (KAC) complaint filed against American Homes 4 Rent Properties One, LLC, (Landlord or American Homes) for alleged violations of the Florida Consumer Collection Practices Act (FCCPA) based on the Landlord’s disclosure of “information affecting the debtor’s reputation.” KAC 2021-1, LLC v. Am. Homes 4 Rent Properties One, LLC, No. 2D2023-1384, 2024 WL 4611118, at *1 (Fla. 4th DCA Oct. 30, 2024).

American Homes was the owner of property which it rented to KAC’s predecessor, Johnny Smithⁱ. Ostensibly, Smith stopped paying rent so American Homes sent a written request for payment and then posted a 3-day notice of nonpayment on his door. As a result, KAC filed suit against American Homes alleging that the posting of the 3-day notice violated the FCCPA.ⁱⁱ The tenant argued that the 3-day notice disclosed that the Tenant owed money, and this affected the tenant’s reputation when there was no “legitimate reason the world need[ed] to know that the Tenant owed money.”

American Homes moved to dismiss the complaint arguing that landlords are required to post the notice pursuant to § 83.56ⁱⁱⁱ, Fla. Stat, prior to evicting a tenant. Since the tenant failed to pay rent and failed to cure the non-payment for three days despite a written demand to do so, American Homes was statutorily required to post the notice before evicting. The Landlord argued that posting the notice was “protected activity,” so American Homes was immune from liability under the litigation privilege. The trial court agreed and dismissed KAC’s complaint. KAC appealed.

Florida’s Second DCA affirmed the dismissal noting that Florida courts have recognized the litigation privilege for “well over a century.”^iv The Court explained that the privilege provides absolute immunity from liability for conduct during judicial proceedings and “conduct that is ‘necessarily preliminary’ to judicial proceedings.” KAC rebutted it could have avoided violations of the FCCPA and could have complied with § 83.56 if the Landlord posted the noticed “facing inward” or if the landlord put the notice in “an envelope and slid it under the door.”^v

The Second DCA refused to read additional or different requirements into § 83.56 noting the statute specifically required the notice be “posted” which, by definition, means putting it or displaying it “where the public can see it.”^vi The Court also noted that plainly displaying the notice also fulfilled the purpose of the statute to ensure the Tenant sees the notice. The Court rejected KAC’s argument that posting the notice should be exempted from the litigation privilege distinguishing the case relied on by KAC and finding no basis to apply an exception to the privilege.