3 Day Eviction Notice

 

3 Day Notice

If you are like most Florida landlords contemplating filing an eviction action against your tenant for unpaid rent, you probably think nothing of drafting the 3 Day Notice yourself, serving it on the your tenant, and, then, politely arguing with the Judge when he or she dismisses your eviction action as a result of some highly technical deficiency found therein. In other words, it is not as easy as it may seem.

If you have watched your local news or pick up your town or city’s newspaper, you are no doubt aware of the financial crisis currently being experienced by virtually every town or city across the United States of America. From the foreclosure crisis, to the Madoff scandal, to the almost collapse of Bank of America (luckily it was “too big to fail”), the downturn in the economy has negatively affected everyone.

Unfortunately, tenants have been no exception and many, many homeowners find themselves with tenants who refused to pay the rent and who will not vacate the rental property without a Court order compelling them to do so. Of course, the landlord could always sue the defaulting tenant for breach of the lease and ask the Judge to grant a final judgment in their favor for all of the rent the tenant failed to pay. However, because many defaulting tenants simply do not have the money to pay the rent and, as such, a final judgment against them would simply be a piece of paper that caused the landlord to expend additional money to obtain (i.e., through the attorneys’ fees associated with pursing the breach of contract action). As a result, most landlords have elected not to sue for money but, instead, to evict the tenant from their rental property.

With that said, eviction proceedings are extraordinarily complex and the legal technicalities associated therewith are rampant. This first step in the eviction process is for the landlord to make a formal demand upon the tenant for payment of the past due rent or for possession of the rental property. This formal demand is known by many names such as an eviction letter, an eviction notice, a 3 day eviction notice, or simply, a 3 day notice. Whatever is the preferred name for this formal demand, it is crystal clear that Florida law requires that it be properly prepared and served as a precondition to being permitted to initiate an eviction against a defaulting tenant who has failed to pay his or her rent. Florida Statute § 83.56(3) is the governing statute and dictates that the form set forth therein must be complied with in substantial form. While the requirements are plentiful, some of the most important are set forth below.

First and foremost, the 3 day eviction notice has to be a written document and must contain a demand for the exact amount of rent that has not been paid by the tenant despite being due. It may not include any other charges other than those expressly defined in the written residential lease agreement as “rent” or “additional rent.” Accordingly, unless the written lease provides that interest, attorneys’ fees and late fees are defined as “rent” or “additional rent,” such charges are prohibited from being included in the notice of eviction. Although this may seem fair to landlords who have reviewed their leases and determined that the lease says they are entitled to recover such claims, the law is well settled. Fortunately, just because the landlord cannot demand such amounts in the 3 day eviction notice, the landlord is not precluded from recovering such additional charges in the event he or she is required to file an eviction action (i.e., the tenant does not timely pay the rent or move out).

Please note that if there is no written lease agreement (i.e., an oral lease agreement), no charges other than the rental amount agreed upon can be demanded in the eviction notice. Moreover, Florida law provides that an agreement to pay attorneys’ fees, interest and late fees must be in writing to be enforceable so without a written lease agreement, the landlord will not recover those charges in a subsequent eviction action.

The 3 day eviction notice has some additional requirements as well. This eviction notice must specifically demand payment of the past due rent stating the exact amount owed. The notice of eviction must also demand, in the alternative, that the tenant surrender possession of the property in the event the rent is not timely paid. If the landlord only makes one of these two demands in the eviction letter, it will be deemed defective and any lawsuit filed predicated upon it will be dismissed for failing to state a cause of action.

Next, the 3 day notice must expressly provide the date on which the tenant must comply with the demands set forth therein. After all, the tenant must know what date he or she is expected to pay the rent or move out. As the name “3 day notice” implies, the tenant is typically afforded three business days to pay or move out (i.e., the tenant’s “three day grace period”). This is the aspect that most landlords and their agents fail -- proper calculation of the three day grace period. Any such miscalculation results in the eviction notice being considered a nullity.

As a threshold matter, Saturdays, Sundays and legal holidays officially observed by the Clerk of Court are not included in the three day grace period. Accordingly, to make sure the landlord has properly calculated this period, he or she should either call the Clerk of Court (and not the Court -- the Judges and their staff -- who may observe different “holidays”) or verify what dates the Florida legislature have declared are official holidays for the Clerk of Court (this information is found in Florida Statute § 683.01).

Next, the landlord must consider the method in which he or she serves the three day notice upon the tenant. If the service is accomplished through the mail, the Florida Rules of Procedure mandate that the tenant receive an extra five days to respond. As a result, many landlords choose to personally deliver the eviction notice to the default tenant. If the tenant is not present at the premises when service is attempted, the landlord is allowed to leave a copy at the rental property in a location that is likely to be found when the tenant returns. Taping a copy to the front door typically qualifies as such a conspicuous place to post the 3 day notice.

LEGAL DISCLAIMER: This article is written based on the current status of Florida’s landlord and tenant laws, particularly the Florida 3 Day Eviction Notice. However, this article is for general knowledge only and is not intended, in any way whatever, to constitute legal advice. Prior to following any recommendations listed in this article, please consult an attorney duly licensed in your state.