lt's The Law
Three-Day Notice Mistake Is Fatal to Eviction
I rent my condominium under an annual lease. My tenant stopped paying rent. I know I am supposed to give some type of formal notice before filing suit for eviction, but I am not sure how to do that. Can you help?
Florida's Residential Landlord and Tenant Act is contained in Chapter 83 of Florida Statutes. The Act details rights and obligations of both parties to a residential lease and contains specific requirements for notice of termination. Failure to comply with the statutory notice requirements can be fatal to an eviction case. Nevertheless, many cases are dismissed for just that reason.
Section 83.56 of the Act contains the requirements for notice terminating a residential lease for failure to pay rent. A landlord may only terminate the rental agreement for failure to pay rent if the failure continues for three days, excluding Saturday, Sunday and legal holidays, after delivery of written demand by the landlord for payment of the rent or possession of the premises. The three-day notice must contain a statement in substantially the following form:
"You are hereby notified that you are indebted to me in the sum of $_________ dollars for the rent and use of the premises (address of leased premises, including county), Florida, now occupied by you and that I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the ___ day of _____, 20 ___."
Where do landlords go wrong? Some do not count the days or forget to delete holidays. Others fail to properly serve the notice. In a few cases, the landlord is so anxious to get rid of the tenant that the notice is served before the rent is actually due. The most common defect is including amounts due other than rent such as utility payments, late fees or other charges.
The three-day notice must either be mailed to the tenant or hand-delivered. If hand-delivery is attempted and the tenant is absent from the premises, the notice can be left at the residence. The notice requirement cannot be waived in the lease. The notice is so crucial under the statute that virtually any defect will invalidate the notice and with it, a landlord's chances for success at trial.
Even if a landlord complies with the Act, the landlord may be foiled by his or her own lease. If the lease requires service of notice different than the statute, the lease must be followed. Many leases require all notices be sent by certified mail. If the landlord hand-delivers or leaves the notice on the premises, and the lease requires certified mail, the landlord will face dismissal of the case. And, some leases even require a longer notice than the three day minimum under Florida Statutes.
It is likely a trial judge somewhere in Florida is dismissing an eviction case for failure to comply with the notice requirements every day. One example is the case of Karfitsas v. Llanos. In that case, the court found the notice defective because it demanded the tenant "vacate, quit and deliver" possession of the leased premises, which the court ruled was not in substantial compliance with the statutory requirement. The notice was also defective because it was served on May 1 and demanded May rent. The court further ruled that because the notice demanded $100.00 in attorney's fees, it failed to meet the statutory requirements. Pouring salt into the landlord's wound, the court reserved jurisdiction to determine if the tenant was the prevailing party and therefore entitled to recover reasonable attorney's fees under the Act.
The case of Wilson v. Plummer involves a different defect. In
Wilson, the landlord served a three-day notice which apparently complied with all aspects of the statute, except one. The notice was served on May 23 and demanded compliance on May 23. The statute requires three days notice and the court found the notice fatally defective.
Florida's Residential Landlord and Tenant Act is a minefield for the inexperienced. I suggest you retain an attorney to pursue eviction, rather than risk losing your case because you have been tripped up by some technicality.
By: William G. Morris, Esquire
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, e-mail: email@example.com or by fax, (239) 642-0722 or
The Marco Island Eagle
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