3 Day Eviction Notice

 

Eviction Notice Forms

Any landlord searching for eviction notice forms has, no doubt, run across numerous examples from which to choose. Unfortunately, many landlord and their agents simply use the first one that they run across, leaving them exposed to any tenant who bothers to hire an eviction attorney to represent them, or who does some basic research to determine what the landlord is required to do under the law. In Florida, the 3 day eviction notice is a serious trap for anyone who does not take it seriously. In fact, the 3 day notice is often called the first pleading in an eviction action, even though it is prepared and served upon the tenant prior to the eviction action even being filed.

Eviction notice forms, as a result, must be carefully scrutinized before using them. A eviction notice (sometimes called a 3 day notice, a notice to quit, or a notice to vacate), in order to be deemed valid must, as a threshold matter, be properly served by the landlord upon the tenant owing the rent. This notice of eviction must specifically demand the unpaid rent be paid by the tenant or, alternatively, that the tenant surrender possession of the rental property back to the landlord.

Please note that this alternative form of demand (i.e., to pay or to get out) is mandatory, even if the landlord would prefer that the tenant do one or the other. Accordingly, a landlord is not permitted to choose between these options and demand only that tenant pay the rent or only that the tenant surrender the rental unit. Doing so would result in the three day notice being deemed invalid. Because these eviction notices are a considered a statutory precondition to filing an eviction lawsuit against a tenant for failing to pay rent, any subsequent eviction lawsuit filed based upon a defective 3 day eviction notice will be dismissed as a matter of law due to the landlord's inability to state a cause of action upon which relief can be granted.

There are many additional requirements of a three day eviction notice in order to pass statutory muster. First, the eviction letter must be in writing. While this seems like common sense, Florida case law has always required a written demand due, in large part, to the law's desire to avoid a battle of "he said, she said" between the tenant and the landlord. A written demand makes it relatively simple -- either the notice of eviction is legally sufficient or it is not. There is no need for a court to determine what was demanded of the tenant by the landlord.

The 3 day eviction notice must also specifically set forth the exact amount of outstanding rent claimed by the landlord. If the residential lease agreement is an oral agreement, only the rental amount may be included in the notice of eviction. On the other hand, if the landlord tenant lease is based upon a written agreement, Florida law provides that only charges specifically designated as "rent" or "additional rent" may be included in the eviction notice. This is true even if the lease agreement provides that a landlord is entitled to recover additional charges if they are forced to file an eviction action. These charges usually include charges such as interest, late fees and attorney's fees. However, unless interest, late fees and attorney's fees as "rent" or "additional rent," they are not to be included in the amount demanded in the notice to quit. Of course, the landlord should note that they are entitled to seek these fees from the tenant in the even they have to file an eviction action against the tenant because the tenant failed to comply with the landlord's formal demand.

The 3 day eviction notice must also expressly state the date upon which the tenant must comply. If this date is calculated improperly, the notice will be considered invalid and the tenant can simply ignore the notice.

Florida law provides that "official holidays" cannot be included in the time in which the tenant must comply -- the tenant's three day grace period. Only those dates that are officially observed by the Clerk of the Court are considered official holidays. The "official holidays" observed in Florida are (a) Sunday, the first day of each week; (b) New Year's Day, January 1; (c) Birthday of Martin Luther King, Jr., January 15; (d) Birthday of Robert E. Lee, January 19; (e) Lincoln's Birthday, February 12; (f) Susan B. Anthony's Birthday, February 15; (g) Washington's Birthday, the third Monday in February; (h) Good Friday; (i) Pascua Florida Day, April 2; (j) Confederate Memorial Day, April 26; (k) Memorial Day, the last Monday in May; (l) Birthday of Jefferson Davis, June 3; (m) Flag Day, June 14; (n) Independence Day, July 4; (o) Labor Day, the first Monday in September; (p) Columbus Day and Farmers' Day, the second Monday in October; (q) Veterans' Day, November 11; (r) General Election Day; (s) Thanksgiving Day, the fourth Thursday in November; (t) Christmas Day, December 25; (u) Shrove Tuesday, sometimes also known as "Mardi Gras," in counties where carnival associations are organized for the purpose of celebrating the same. Additionally, whenever any legal holiday shall fall upon a Sunday, the Monday next following is be deemed, under Florida law, to be a public holiday. Florida Statute 683.01 governs whether or not a holiday is considered an official holiday.

One of the best Florida eviction notice forms is found in the Florida Statutes and is set forth below:

Date: [Insert Date Notice Is Prepared - preferably it is also the date the eviction notice will be served on the tenant]
To: [Insert the Name of the Tenant - this needs to be the name of the tenant as it appears in the residential lease agreement]

You are notified that you are indebted to me in the sum of $________________ [Insert Amount of Rent and Additional Rent Overdue] for the rent and use of the premises located at___________________________ [Insert Address of Rental Property], _____________________ [Insert City of Rental Property], ________________________ [Insert County of Rental Property], now occupied by you. That rent was due on _______________ [Insert Day Rent Was Due] and I demand payment of the rent or possession of the premises within three days (excluding Saturdays, Sundays, and legal holidays) from the date of delivery of this notice, specifically, on or before ___________________ [Insert Date Calculated In Accordance With Florida Statute].

CERTIFICATE OF SERVICE

I certify that a copy of this notice has been furnished to the above named tenant on ________________ [Insert Date of Service of Process], at ______________a.m. / p.m., by:

1. ( ) Delivery
2. ( ) Posting in a conspicuous place on the premises.

_________________________________________________
[Insert Name of Landlord or Property Manager]
[Insert Address of Landlord or Property Manager]
[Insert Telephone Number of Landlord or Property Manager]

LEGAL DISCLAIMER: This article is written based on the current status of Florida’s landlord and tenant laws, including the Florida eviction notice forms. 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.