How to Evict A Tenant (Part 3) - Tenants' Rights and the 3 Day Eviction Notice

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

How To Determine If The 3 Day Notice Is Defective

The 3 day eviction notice is a precondition to the Florida landlord’s entitlement to commence an eviction action against his or her tenant for failing to meet the rental obligations under the lease agreement. In part two of this article series, a printable eviction notice was taken from the governing Florida Statute § 83.56(3) for use by the landlord in preparing the eviction notice. Despite the seeming ease of the eviction letter, it really is a trap for those landlords that do not understand just highly technical that eviction notice template truly is. Should the landlord fail to comply with any specific provision as mandated by Florida law, the notice of eviction will be deemed a nullity and any lawsuit brought by the landlord to evict the tenant based thereon will be dismissed by the trial court for failing to state a cause of action upon which relief can be granted. Accordingly, it is vital that the landlord fully understand the requirements associated with the Florida 3 day eviction notice so as to avoid having their eviction case dismissed.

First, the eviction notice form must advise the defaulting tenant the exact amount of his or her rental obligations remaining unpaid. The landlord can only include rent that has actually accrued, even if the next rent cycle will come due while the eviction notice is pending. This often occurs when the landlord and the tenant engaged in a protracted negotiation over past due rent. Before the landlord knows it, the end of the rental cycle is upon him or her and the next rent payment is only a few days away. Although the urge to capture the next rent payment is a strong one, the landlord must resist. Alternatively, if the soon-to-be-due rental payment is important to be added to the three day eviction notice, the landlord should simply wait until it is due prior to delivering the notice to the tenant. The landlord should, however, be aware that if the eviction notice is otherwise valid, the tenant will be responsible to pay any rent accruing during the pendency of the eviction case. In other words, it is rarely that important to wait to file the eviction proceeding simply to capture another month’s rent in the eviction letter.

Next, Florida eviction notices must only include “rent” in the 3 day eviction notice. “Rent” is defined under Florida law to mean the periodic payments due the landlord from the tenant for occupancy under a rental agreement and any other payments due the landlord from the tenant as may be designed as rent in a written rental agreement. Accordingly, unless a payment is expressly defined in the lease agreement as “rent” or “additional rent,” it is improper to include those charges in the eviction notice. For example, often times a residential lease agreement will provide that upon default in the payment of rent by a tenant, the landlord is entitled to recover damages for interest, late fees, and attorney’s fees. However, many residential leases, particularly form leases sold online, do not have a provision expressly designating those payments as “rent.” In that case, those payments, if included in the Florida eviction notice, will cause it to be declared a nullity and the landlord will be compelled to start the process over again. The landlord is much better off to simply not include those charges in the notice to vacate. This is particularly true because the landlord can still recover those payments in any subsequent eviction action provided, however, that the right is established in the residential lease agreement.

Third, the dictates of Florida landlord tenant law compel the landlord to also demand, in the alternative to the payment of the owed rent, possession of the rental property should such payment not be made. If the landlord fails to make both of these demands (i.e., to pay the rent or move out), the notice is defective.

Fourth, the purpose of the 3 day notice to pay or quit is to provide the tenant with the requisite opportunity to pay the rent or quit the premises. As a result, the tenant must be given the exact date by which they must comply. This compliance deadline is sometimes referred to as the “tenant’s grace period.” Many landlords and their agents also use the term “tenant’s three day grace period.” However, to the untrained property owner (or lessor), this term can be very misleading as the “three day notice” generally affords the tenant more than three days to comply. Any miscalculation in determining the deadline to comply will result in the notice of eviction being declared invalid.

These types of mistakes can be avoided by paying careful attention to what dates are counted in the statutory notice and which dates are not. Preliminarily, the landlord must understand that the date the eviction notice is delivered to the tenant is never included in the time frame. This highly technical trap is the result of Rule 1.090(a) of the Florida Rules of Civil Procedure which provides, in pertinent part, that in computing any period of time prescribed by any applicable statute, “the day of the act, event or default from which the designated period of time begins to run shall not be included.”

Additionally, Florida Statute § 83.56(3) expressly provides that Saturday, Sunday and legal holidays shall not be included in the 3 day eviction notice as well. Many lawyers and judges alike run afoul of this rule because they assume that “legal holidays” are the dates officially observed by the judges and their staff. However, legal holidays are defined, under Florida law, to mean holidays observed by the Clerk of the Court. Florida Statute § 683.01 provides that the “legal holidays,” which are also “public holidays,” are the following: (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.

Finally, Rule 1.090(a) of the Florida Rules of Civil Procedure further provides that the “last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday.”

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): Tenants 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.