A tenant’s possession of a landlord’s residential property in Florida begins with an agreement. This agreement may be oral or written. Typically, that agreement will require the periodic payment of rent from the tenant to the landlord. If the tenant fails to pay the rent as agreed, the landlord has the right to evict the tenant and regain possession of the property.
Florida law used to allow the landlord to forcibly reenter the residential property and remove the tenant without any court procedure or legal intervention. The process to properly remove a tenant from residential real property now requires compliance with the Florida Residential Landlord and Tenant Act. The key to this legal process, and to whether an eviction will be successful, is the proper preparation and delivery of a “three-day notice”. The preparation and delivery of this document is mandatory and cannot be waived by either party for any reason.
A landlord can remove a tenant for several reasons. This article will discuss only the most common, which is due to non-payment of rent. The landlord’s action to remove a tenant for non-payment of rent cannot begin until there is a proper termination of the tenancy, which is exclusively accomplished by service on all tenants in possession of the property, whether or not they are on the lease, with an accurate “three-day notice”.
The language and content of a proper “three-day notice” is dictated by Florida Statutes, and must contain certain language to make it valid. It must contain a statement that the tenant is indebted to the landlord for a specific amount of money (usually the amount of the monthly rent and any late fees or penalties set forth in the contract/lease). It must include the physical address of the property, including the County. The notice must state that within three business days (not including weekends or legal holidays) that the tenant must either remit payment of said amount is being demanded or vacate the property and deliver possession of the premises back to the landlord. The Landlord must include the specific date by which the money or possession must be provided to the landlord (so there is no guessing on the part of the tenant), and include the landlord’s name, address and telephone number.
The tenant, once he/she is served with the “three-day notice”, has the right to challenge it if it is defective. This is strictly dependent on the tenant’s timely compliance with the statutory requirements to either pay the amount of rent in question to the Registry of the Clerk of the Court or file a motion for determination of rent and ask the Court to hold a hearing. If this motion and payment of the amount in question is done timely, the tenant is entitled to a hearing. However, if the tenant fails to pay the rent in the amount set forth in the contract/lease, or the amount imposed by the Court, it is deemed as an absolute waiver of the tenant’s defenses other than payment, including any and all defects in the three-day notice, as to the landlord’s claim for possession, and the landlord is entitled to the immediate entry of a default judgment for possession of the property. However, the landlord is NOT entitled to a default judgment for damages, or for the dismissal of any counterclaim. He is only entitled to possession of the property.
There is a very important point to note with respect to the three-day notice and the amount of past-due rent. If a landlord accepts any amount of rent after the three-day notice is served on the tenant, such acceptance will render the notice as defective. However, the landlord need not refuse the payment tendered by the tenant. The act provides the landlord with the options of either a.) providing a receipt to the tenant stating the amount received and the agreed date and amount of the balance of the rent due; or b.) placing the partial rent in the Court Registry; or c.) posting a new three-day notice with the updated rent amount due.
The statute is clear regarding the right of the landlord to terminate the tenancy if the tenant has failed to either pay the rent amount due, or deliver possession of the property to the landlord within three days of the date the notice was served on the tenant. As previously stated, the three-days do not include Saturdays, Sundays or legal holidays.
The three day notice may be served upon tenants either by US Mail or by posting it on the property. The statute does not expressly require the method of delivery be indicated on the notice; however, at least one court has dismissed an eviction action because the method of service was not stated. That court also noted the lack of signature of the landlord on the notice, although a signature is not required by statute. Accordingly, if you are the landlord it is prudent to ensure that the three-day notice is as complete and accurate as possible, which should include the method of service and the signature of the landlord.
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