3 Day Eviction Notice

 

3 Day Eviction Notice

The Florida 3 day eviction notice, and the law governing its use, has evolved dramatically over the past few decades. However, because the law has never favored the forfeiture of estate in land, the eviction process is generally considered to be a penal remedy. Accordingly, despite the changes in the case law regarding the mechanics of service of the eviction notice, the law has always mandated that a landlord serve a tenant with a formal demand for payment of delinquent rent prior to commencing an eviction action.

Prior to the enactment of the residential landlord tenant act, Florida common law governed the landlord’s service upon the tenant of the Florida eviction notice. Unfortunately, this body of law was tedious and rife with extreme technicalities. If the landlord botched any of those strict procedures, the notice of eviction was declare void and the eviction action would be declared a nullity. As such, the Florida legislature has made numerous unsuccessful attempts to circumvent these issues, the key word being “unsuccessful.” Accordingly, the modern Florida 3 day eviction notice is still a trap for the weary as it is rife with unnecessary technicalities.

As a threshold matter, a Florida landlord cannot obtain relief in an eviction action unless he or she has properly served the Florida tenant with a three-day eviction notice which demands payment of the rent or return of possession of the rental property. Florida Statute § 83.56(3) is the governing statutory provision and sets forth a legislatively drafted eviction form that must be substantially complied with in order to be proper.

The eviction notice must be in writing, as oral demands for rent are insufficient to entitle the landlord to file an eviction action. The notice must demand the exact amount of rent currently outstanding, and may not include late fees, attorney’s fees, interest or any additional charges unless each are expressly defined as “rent” or “additional rent” in a written lease. Please note, however, that just because the landlord cannot add those charges to the notice to quit does not mean that the landlord cannot add those changes in the amounts demanded in the eviction complaint.

While rather obvious, the eviction letter must also specifically demand that the tenant pay the overdue rent or restore possession of the rental property to the landlord. Additionally, all Florida eviction notices must provide the date upon which the rent or possession of the property must be accomplished. This three day grace period must be precisely calculated and any mistakes will render the eviction notice invalid.

One common mistake made by landlord in serving the tenant with an eviction demand comes when they mail the eviction notice to the tenant. Although service of process through the mail is acceptable, the Florida Rules of Civil Procedure require that mail serves results in an additional five days being added to the grace period. As such, because the Florida eviction statute permits the eviction notices to be delivered to the tenant, or if the tenant is absent to leave a copy at the premises, the preferred method of service of process is personal delivery.

Additionally, many landlords make the mistake of improperly including Saturdays, Sundays, and legal holidays within the three day grace period. Doing so will, unfortunately, make the 3 day notice defective. The Florida Rules of Civil Procedure provide that legal holidays are those holidays that are officially observed by the Clerk of Court. These “official holidays” are expressly set forth in Florida Statute § 683.01 and provide many holidays that continually surprise both the parties to the eviction action, as well as the judges and lawyers charged with handling the eviction action. As a result, prior to serving the tenant with a Florida eviction notice, it is imperative that this statutory provision be reviewed.

Although many landlords and their agents (including those real estate brokers that “manage” their clients rental properties) believe that preparing and serving the Florida 3 day notice is something they can do without the assistance of an eviction attorney, that believe typically spells doom for their eviction prospects. The three day eviction notice in Florida is considered a jurisdiction requirement. Accordingly, if a proper eviction notice is not prepared and served upon the tenant according to the strict requirements of Florida law, the trial court is not vested with jurisdiction to conduct the trial on the landlord tenant dispute and the eviction will be dismissed for failing to state a cause of action upon which relief can be based, especially if the tenant is smart enough to hire an eviction lawyer with experience defeating defective eviction notices. Sometimes, however, the case will not even proceed that far as many circuit and county court judges around Florida will dismiss the action without request from the tenant if the judge notes that the case is based upon a defective Florida 3 day eviction notice.

While there are many different eviction forms available, the following is recommended to be utilized by Florida landlords.

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. 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.