3 Day Eviction Notice

 

How To Evict A Tenant (Part 4) - Tenant Service of the 3 Day Eviction Notice

This is Part Four of the How To Evict A Tenant In Florida series.

Determining the Proper Method of Serving the Tenant With the 3 Day Eviction Notice

In order to be effective, the 3 day eviction notice must be actually delivered to the tenant. Florida Statute ยง 83.56(4) provides, in pertinent part, that delivery of the 3 day notice shall be by mailing or delivery of a true copy thereof of, if the tenant is absent from the premises, by leaving a copy thereof at the residence. Accordingly, in delivering the Florida 3 day eviction notice to the tenant, the landlord has two options.

First, the landlord can mail the eviction notice to the tenant. This method of service, however, has a unique set of problems that the landlord must be aware of. Rule 1.090(e) of the Florida Rules of Civil Procedure provides, in pertinent part, that “[w]hen a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon that party and the notice or paper is served upon that party by mail, 5 days shall be added to the prescribed period.” Florida case law has confirmed that this requirement is applicable to the service of the Florida eviction notice. Accordingly, if the landlord intends to mail the notice of eviction to the tenant defaulting in the payment of rent, five additional days must be added to the grace period in which the tenant must comply with the landlord’s demand to pay the rent or move out.

Moreover, if the landlord choose to deliver the notice of eviction through the mail, the tenant is likewise permitted to respond through the mail and the timeframe is adjusted accordingly. As a result, anytime a landlord serves the three day eviction notice through the mail, an additional ten days -- five days for the landlord’s letter plus five days for the tenant’s letter] will be tacked onto the original three day grace period.

Furthermore, if the landlord or the landlord’s agent serves an eviction letter and list only a post office box as the landlord’s address, the tenant is permitted to respond through the mail and obtains an additional five days to respond to the notice. As we saw earlier in Part 3 of this series of articles, the day the notice to vacate is received by the tenant is not included in the calculation of the tenant’s three day grace period. The landlord choosing to mail eviction notices must also keep in mind that Saturdays, Sundays, and legal holidays are not counted in the additional five or ten days.

Accordingly, as evident by these additions to the three day grace period, a tenant would be overjoyed to receive the 3 day notice to pay or quit through the mail as that method of service provides the defaulting tenant with additional time to respond to the notice, all the while residing at the landlord’s rental property without paying the rent.

As a result, the landlord’s preferred method of serving the notice to quit is by personal delivery. It is highly recommended that the landlord hire a licensed process server to serve the notice. While not required under Florida law, a licensed process server can provide the landlord with an Affidavit of Service of Process attesting to how and when the eviction notice was served on the tenant. This Affidavit of Service of Process is clothed with a presumption of validity so any tenant challenging service of process accomplished by a licensed process server has a high burden of establishing the service was not made or was not proper.

Whether or not the landlord elects to add the additional expense of a process server, the landlord is permitted to personally deliver the notice of eviction. In the event the tenant is absent from the premises when delivery is attempted, the tenant is permitted to leave a copy at the tenant’s residence. As such, case law has developed in such a manner that the notice should be posted in a conspicuous place to maximize the tenant’s opportunity to actually receive the posted eviction notice. For example, if the landlord posts the notice of eviction on the rear door of the rental property when he or she knows the tenant only enters the proper through the garage, that would not be considered a conspicuous place and would leave the landlord open to the tenant’s argument the service of the 3 day eviction notice was improper.

If a licensed process server is not utilized in the serving of the eviction notice, one method of avoiding arguments regarding how service was accomplished is to include a Certificate of Service at the bottom of the eviction notice. The following is an example of how a Certificate of Service can be incorporated into the eviction letter:

CERTIFICATE OF SERVICE

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

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

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

LEGAL DISCLAIMER: This article is written based on the current status of Florida’s landlord 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, preferably an eviction attorney who is well versed in the Florida eviction process.

Additional Articles In This Series Can Be Found As Follows:

How To Evict A Tenant in Florida (Part 1) can be reached by clicking this link: An Overview of Landlord Tenant Law;

How To Evict A Tenant in Florida (Part 2): 3 Day Eviction Notice;

How To Evict A Tenant in Florida (Part 3): Tenant's Rights And The 3 Day Eviction Notice;

How To Evict A Tenant in Florida (Part 4): Tenant Service of the 3 Day Eviction Notice; and

How To Evict A Tenant in Florida (Part 5): The Eviction Complaint.