3 Day Eviction Notice

 

Eviction Letter

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 below.

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.