WILLARD VAN HOOSE, APPELLANT,
v.
ROBERT GLEN ROBBINS, APPELLEE
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A landlord (Robbins) sued to recover possession of household items from his former tenant (Van Hoose) in a replevin action. The tenant claimed a possessory lien for unpaid rent, but the court held that a landlord must use statutory distress proceedings to perfect such a lien and cannot simply retain possession without legal process.
A landlord cannot assert a possessory lien in a replevin action to justify unauthorized retention of a tenant's property. Florida Statute § 83.08 does not provide a self-executing possessory lien; instead, statutory distress procedures must be followed to perfect such a lien. The counterclaim was properly dismissed because it failed to allege facts that would offset the plaintiff's right to possession or assert a specific charge against the property sought to be replevied.
“Replevin is a possessory action at law in which the main issue is the right to possession. By statutory proscription it cannot be joined with other causes of action.”
Establishes the fundamental nature of replevin and the statutory prohibition on joining it with other claims.
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Join FLexlaw to unlock all legal intelligenceRobbins and Van Hoose had a landlord-tenant relationship. Van Hoose possessed household personalty (stove, refrigerator, washing machine, beds, and fu…
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We here review a final judgment entered for the plaintiff in a replevin action which arose from an apparent landlord and tenant relationship between the parties. The amended complaint alleged that the plaintiff was entitled to possession of certain personalty.1 The defendant answered stat*211ing that he had a legal right to a posses-sory lien against the described property for rent due him from the plaintiff.2 The answer did not allege the manner in which defendant obtained possession nor did it allege that the involved personalty was found on the premises let to plaintiff.3 The defendant counterclaimed for arrearage of rent and for damages to the realty. The latter claim for damages was dropped and is not asserted on appeal. On motion of plaintiff the counterclaim was dismissed without prejudice to defendant to pursue his claim by separate action, and summary judgment on the pleadings was entered for the plaintiff. We affirm.
Replevin is a possessory action at law in which the main issue is the right to possession. By statutory proscription it cannot be joined with other causes of action.4 Although a counterclaim may be allowed in some instances, the present "counterclaim” was properly dismissed because it did not plead anything to offset the right of the plaintiff to recover the described property nor did it assert a specific charge against the property sought to be replevied. See National Leasing Corp. v. Bombay Hotel, Inc., Fla.App.1964, 159 So.2d 111; Seven Seas Frozen Products, Inc. v. Fast Frozen Foods, Inc., Fla.1949, 43 So.2d 181; Sandy Isles of Miami, Inc. v. Futernick, Fla.App.1963, 154 So.2d 355; Huckleberry v. Davis Double Seal Jalousies, Inc., Fla.App.1960, 117 So.2d 519. Aside from the statutory policy against the joinder of other causes with replevin, we think that if the defendant were permitted to assert his claim of lien by counterclaim, under the facts as pleaded or implicitly admitted, it would lend unbecoming dignity to his transgression in assuming possession of the plaintiff’s property without formal process of law.
It is recognized that a landlord has a general statutory right of re-entry,5 and where the tenant has actually abandoned the premises the landlord is licensed to re-enter and take possession. See 52 C.J.S. Landlord and Tenant § 717. This general right of re-entry, however, is not unqualified and may not he asserted by trespass on the lessee’s unforeclosed right of possession, e. g. Baker v. Clifford-Mathew Inv. Co., 1930, 99 Fla. 1229, 128 So. 827; Waits v. Orange Creek Turpentine Co., 1936, 123 Fla. 31, 166 So. 449; Adelhelm v. Dougherty, 1937, 129 Fla. 680, 176 So. 775, 777. Absent abandonment or voluntary relinquishment of the leasehold, the landlord’s right to re-enter precedent to taking possession should appear as a matter of contract or be established by prescribed legal process. Neither the answer *212 nor the counterclaim in this case supplied the allegations necessary to effectively deny plaintiff’s alleged right to possession.
Personalty which is ostensibly owned by a tenant may be subject to bailments, conditional sales contracts or chattel mortgages, etc. This relatively fluid status of tangible personalty in today’s complex business world demands orderly method and specificity in the enforcement of claims of lien on personalty. Although the instant record is silent as to defendant’s precise method of obtaining possession, there was mutual assent on oral argument that the property was taken without actual or implied consent and without resort to statutory distress.6 Our conclusion • is that the defendant’s lien, which was procedurally unperfected, did not give him the right to assume and withhold possession of the plaintiff’s property in the manner indicated; that Fla.Stat. § 83.08, F.S.A. does not provide or confirm in the landlord a self-executing possessory lien; and that the promulgation of statutory distress under said Chapter 83, viewed in the light of Fla.Stat. § 2.01, F.S.A.,7 effectively superseded common law distress — at least in cases where abandonment by the tenant is not clearly evident.
Statutory distress was the method by which the defendant should have proceeded to perfect his claim of lien. The federal appellate court for this circuit has reached the same conclusion. See City Building Corporation v. Farish, 5 Cir., 1961, 292 F.2d 620, which held:
“Distress for rent is a common law remedy and one of the rare cases in which the law allowed ‘a man to be his own avenger, or to minister redress to himself.’ 3 Cooley’s Blaclcstone 3rd Ed. 5. This common law remedy of distress for rent, existing without statute and creating a lien upon seizure of the tenant’s property, has been superseded in most jurisdictions, as in Florida, by a statutory remedy. The common law remedy of’ distress for rent is still extant where not abolished or superseded by statute and is still being exercised.” (emphasis added)
Replevin is a possessory action and a lien or claim of lien, without more, does not necessarily denote right to possession. The defendant’s answer was a bare assertion of rightful possession incident to his claim of a landlord’s lien. This was ineffectual. It failed to deny plaintiff’s alleged right to possession and also failed to allege facts affirmatively showing that the defendant had rightfully come into possession of the subject personalty.
The defendant having failed to allege anything which went to the right of the plaintiff to recover the specific property and having failed to effectively plead a specific claim against the property sought to be replevied, his counterclaim was properly dismissed. In the circumstances defendant’s remedy with respect to his landlord’s lien was by separate action. This was recognized by the trial court’s order and judgment which dismissed the attempted counterclaim without prejudice to its adjudication in a separate proceeding.
Affirmed.
SMITH, C. J., and MELVIN, WOODROW, Associate Judge, concur.
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Morton L. Ginsberg & MLG Props., Inc. v. Lennar Fla. Holdings, 645 So. 2d 490 (Fla. 3d DCA 1994)…claim, under the statute, a right to possession of the rents. See and compare Seymour v. Adams, 638 So. 2d 1044 (Fla. 5th DCA 1994) (a lien or [*499] claim of lien without more does not necessarily denote a right of possession); Van Hoose v. Robins, 165 So. 2d 209 (Fla. 2d DCA 1964) (same). Lennar alleges that pursuant to the loan documents they had an immediate right to possession of the rents upon default by the borrowers. We disagree with Lennar’s interpretation. The pertinent loan documents all point to…
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Seymour v. Adams, 638 So. 2d 1044 (Fla. 5th DCA 1994)…the basis of the landlord’s lien for unpaid rent established by section 83.08, Florida Statutes (1991),5 since the establishment of such a lien against property does not confer a right to possess the property against the owner. Van Hoose v. Robbins, 165 So. 2d 209, 210 (Fla. 2d DCA 1964) (“a lien or claim of lien, without more, does not necessarily denote right to possession”). In Van Hoose, the court pointed out that: Distress for rent is a common law remedy and one of the rare cases in which the law allowe…
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Crudele v. M & M Sand & Fill Co., 194 So. 2d 16 (Fla. 3d DCA 1967)…PER CURIAM. Appellant claimed a landlord’s lien for rent which the trial court denied in a final decree determining priority of liens. We affirm upon authority of Van Hoose v. Robbins, Fla.App.1964, 165 So. 2d 209, 212.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mrs. August F. Adelhelm v. Jeanie W. Dougherty, 129 Fla. 680 (Fla. 1937)
- Baker v. Clifford-Mathew Inv. Co., 99 Fla. 1229 (Fla. 1930)
- Harper v. Green, 99 Fla. 1309 (Fla. 1930)
- Seven Seas Frozen Prods. v. Fast Frozen Foods, 43 So. 2d 181 (Fla. 1949)
- Waits v. Orange Creek Turpentine Corp., 123 Fla. 31 (Fla. 1936)
- Huckleberry v. Davis Double Seal Jalousies, Inc., 117 So. 2d 519 (Fla. 3d DCA 1960)
- Nat'l Leasing Corp. v. Bombay Hotel, Inc., 159 So. 2d 111 (Fla. 3d DCA 1963)
- City Bldg. Corp. v. Jos. D. Farish, Jr., 292 F.2d 620 (5th Cir. 1961)
- Sandy Isles OF Miami, Inc. v. Futernick, 154 So. 2d 355 (Fla. 3d DCA 1963)