3 Day Eviction Notice

 

Notice of Eviction

Drafting a notice of eviction may seem like an easy thing to do. After all, how hard can it really be when all a Florida landlord needs to do is to conduct a relatively simply internet search using his or her favorite search engine for terms like “3 day eviction notice,” “3 day notice,” “notice to quit,” “notice to vacate,” “eviction letter,” and even “eviction notice,” to reveal many free eviction notice forms where the only thing the landlord is required to do is fill out the forms properly. Unfortunately, this is where most problems encountered by landlords in the eviction process arise -- they improperly fill out the blanks in the eviction notice template, thereby all but eliminating their opportunity to evict their defaulting tenant without starting the process over and doing it correctly. In other words, even the slightest defect in the preparation of the 3 day eviction notice will result in the landlord losing the eviction action, even if the tenant has not, in fact, paid the rent as it became due.

Accordingly, it is extremely important that the Florida landlord avoid the pitfalls associated with the preparation and service of the notice of eviction.

The first step in the eviction process actually occurs before the eviction lawsuit is even filed. This is where the landlord makes a formal demand upon the defaulting tenant that he or she pay the past due rental obligations or surrender possession of the property to the landlord. This formal demand is a condition precedent to bringing an eviction action against a tenant for non-payment of rent. In other words, the landlord must properly prepare and serve the notice of eviction upon the tenant prior to being allowed to file an eviction action against that tenant.

The Florida 3 day eviction notice process is directed by Florida Statute § 83.56(3) and mandates that a certain eviction notice form be substantially complied with. While the requirements are numerous, a discussion of some of the most important are discussed below.

The first requirement is that the demand upon the tenant be in writing and specifically set forth the rental amount being claimed due by the landlord. Only rent that is currently due and owing can be included in the notice so it is important not to demand next month’s rent, even if the next month’s rent is going to be due shortly anyway. Also, the only sums that can be demanded in the Florida 3 day eviction notice is “rent” and “additional rent.” Generally speaking, this means that unless the written residential lease expressly defines late fees, interest, and attorney’s fees as “rent” or “additional rent,” such charges are improper to demand in the 3-day notice.

While this may initially appear unfair to the landlord, this requirement is designed to afford the tenant his or her due process rights to know the exact amount of the rent being charged by the landlord so a decision can be made as to whether to pay the past due rent or move out. Typically, rent is a fixed number expressed in a certain dollar figure due per month. Interest and late fees, however, are a result of a calculation done to that certain dollar figure due per month to arrive at additional charges. Because they require calculations to be certain, the law prefers to allow a judge or jury to make those calculations in the event an eviction action is required to evict the tenant. In any event, this ban on “charging” these costs is only temporary because the landlord is free to seek such charges in the event an eviction proceeding is initiated; assuming, of course, that the written residential lease agreement otherwise provides the landlord with the right of seeking same from the defaulting tenant.

Furthermore, the notice of eviction must demand, in the alternative to the payment of the rent, that the tenant surrender possession of the rental property. This requirement is not optional, even if the landlord would prefer to simply get the property back from the tenant. A 3 day eviction notice that does not provide these two options to the tenant is defective and any lawsuit filed thereon will be dismissed.

Another requirement mandated by Florida law in filling out the sample eviction notice is that the eviction notice specify the exact deadline for the tenant to meet the terms of the landlord’s demand. Generally speaking, the tenant is afforded three days to pay or quit. This three day period is usually referred to as the “tenant’s three day grace period.” However, in practice, the three day period can often be longer than three days. In any event, this deadline must be precisely calculated as any mistakes to this calculation will result in the notice of eviction being declared invalid.

One reason that “three days” sometimes does not literally mean “three days” is that certain days are automatically excluded from the calculation. For example, the date that the eviction notice is served is not included in the calculation. Nor are Saturdays, Sundays, and legal holidays. It is important to note, however, that “legal holidays” are prescribed by Florida Statute § 683.01 and may be different dates that what are celebrated by the general public. Instead, these dates are the dates officially observed by the Clerk of the Court so it is important to either review the applicable statute or to verify with the Clerk of the Court if there are any days which would affect a notice of eviction that the landlord was intending on serving upon the tenant.

Finally, the Florida Rules of Civil Procedure provide that if the 3 day eviction notice is mailed to the tenant, the landlord must add five days to the tenant’s three day grace period. Because this lengthens the time required to evict the tenant, most landlords choose to deliver the notice of eviction in person.

LEGAL DISCLAIMER: This article is written based on the current status of the Florida 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.