Drafting the perfect Florida eviction
letter may be more difficult than most landlords think, leading to various surprises
when they appear at their eviction final hearing, only to have the Judge dismiss their case for failing to state a
cause of action as a result of a defective 3 day eviction notice.
A common failing of residential tenants is their non-payment of
rent. Although the landlord typically has the option of suing the defaulting tenant for the breach of lease and
seeking a final judgment for the amount of rent owed, in today’s economic environment, that lawsuit is generally an
exercise in futility and usually results in throwing good money after bad. In other words, it is highly unlikely
that the landlord, even if he or she obtains the money judgment, will recover any of the unpaid rent from that
tenant. As such, a general rule, most landlords’ remedy of choice is to evict the tenant and seek to place a paying
client in their rental property. Unfortunately, the eviction process is rife with exasperating technicalities,
beginning with the requirement of a formal demand for payment of the past due rent or possession of the property.
This demand is known as the 3 day eviction notice or, simply stated, the eviction letter.
Florida law is well settled that as a precondition to the
institution of an eviction action against a tenant for unpaid rent, the landlord must serve a proper eviction
notice upon the tenant. Florida Statute § 83.56(3) governs the residential eviction letter and mandates that the
form set forth therein must be substantially complied with. Some of the requirements are set forth
First, the Florida 3 day eviction
notice must be in writing and contain a demand specifying the exact amount of rent
remaining unpaid. Unless a charge is expressly defined as “rent” or “additional rent” under Florida law, such
charges cannot be added to the 3 day notice. For example, many landlords include interest, late fees and attorneys’
fees in their eviction letters to their tenants. These landlords typically do this because they are aware that
their residential lease agreement provides that they are entitled to such charges in the event there is a default
in payment of the rent by the tenant. However, unless the lease defines these charges as “rent,” inclusion of such
charges in the eviction letter causes the notice to be deemed legally insufficient. The landlord should note that
just because he or she is not permitted to include those charges in the eviction notice does not preclude recovery
of such amounts in the subsequent eviction proceeding.
Relatedly, the eviction
demand must also demand payment of the past due rent and, in the alternative, surrender
of possession of the rental property. If a landlord demands one or the other but not both, the eviction notice will
be deemed invalid as a matter of law and any eviction proceeding filed thereon will be dismissed for failing to
state a cause of action upon which relief can be granted.
The next item of the eviction letter is, by all accounts, one of
the most important as it is the thing that landlords and their agents fail to meet the most. The eviction letter
must specifically state the date upon which the tenant must comply (i.e., the date they need to pay the rent or
move out). This three day grace period for the tenant to pay the past due rent or move out of the rental premises
must be calculated with absolute accuracy. If there has been any miscalculation in the time in which the tenant is
required to act, the 3 day eviction notice is defective and the lease is not terminated.
As a preliminary matter, the landlord should know that the
weekends and legal holidays are never included in the calculation of the three day grace period. Importantly, legal
holidays are the holidays that are officially observed by the Clerk of Court and not necessarily the Court (i.e.,
the Judges and their staff). Accordingly, anyone preparing a Florida 3 day notice is advised to either call the
Clerk of Court to determine if there are any holidays during the relevant time frame, or consult the Florida
Statutes governing legal holidays (which is Florida Statute § 683.01).
Additionally, the landlord must consider how he or she intends to
serve the tenant with the eviction letter. If the notice of eviction is being served through the United States
postal service, the Florida Rules of Civil Procedure dictate that an additional five days be added to the tenant’s
three day grace period. If the landlord does not list a physical address on the eviction letter but instead uses a
P.O. Box, the tenant is permitted to respond to the eviction letter via the mail and, as such, an additional five
days is added to the response deadline.
If, on the other hand, the landlord does not want to afford the
tenant additional time to respond, the landlord should have the eviction letter personally delivered to the tenant.
If the tenant is not at the rental premises when that service is attempted, the landlord may leave a copy of the
notice of eviction for the tenant. However, it should be noted that the eviction
notice must be left in a conspicuous location so that the tenant is likely to see it
when he or she returns to the property.
As a general rule, the landlord considering initiating an eviction
action against a tenant that has failed to pay the rent as it becomes due should treat the eviction
letter as the first pleading in the lawsuit. That is because this document serves as the
basis for all things to come later in the eviction action. If this initial document is defective, the case will
probably not survive a motion to dismiss. Accordingly, it is extremely important to properly prepare and serve the
Florida eviction letter.
LEGAL DISCLAIMER: This article is written based on the current
status of Florida’s landlord and tenant laws. 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.