This article discusses the termination of residential leases in Florida. 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. However, landlords cannot exercise that right anyway he or she pleases.
Florida law has long abolished “self-help” evictions, that is, the forcible reentry by the landlord to remove the tenant outside of court procedures. See Ardell v. Milner, 166 So. 2d 714, 716 (Fla. 3d DCA 1964). Instead, the process to legally remove a tenant from residential real property requires compliance with Florida’s Residential Landlord and Tenant Act.
The starting point for this process, and the key to whether an eviction can be successful, is the proper preparation and delivery of a three-day notice. See Fla. Stat. § 83.56(3). A proper three-day notice cannot be waived by the parties, whether orally or in the lease agreement itself. See Fla. Stat. § 83.47(1); Bell v. Kornblatt, 705 So. 2d 113, n. 2 (Fla. 4th DCA 1998); Coleman v. Cabino Rentals, 9 Fla. L. Weekly Supp. 134a (Fla. 3d Cir. Ct. 2002).
A landlord’s action to remove a tenant from residential property for nonpayment of rent cannot begin until there is a proper termination of the tenancy. See Cabino Rentals, 9 Fla. L. Weekly Supp. 134a. Under Florida’s Residential Landlord and Tenant Act, termination for nonpayment of rent is exclusively accomplished by the service on all tenants of a three-day notice that meets several requirements. See Fla. Stat. § 83.59; Cabino Rentals, 9 Fla. L. Weekly Supp. 134a.
In other words, termination of the tenancy is a prerequisite to an action for eviction and must be satisfied prior to filing the eviction action. See 5800 SW 20th Ave. Holdings, LLC v. Walker, 20 Fla. L. Weekly Supp. 1076a (Fla. 7th Cir. Cnty. Ct.); Oakridge Apt. Complex, Inc., v. Perry, 13 Fla. Weekly Supp. 839c (Fla. 7th Cir. Cnty. Ct. 2006). The three-day notice provides the tenant the “what, when, and to whom, and where” of the payment requirements for the tenant to prevent an eviction action. See 5800 SW 20th Ave. Holdings, LLC, 20 Fla. L. Weekly Supp. 1076a.
The content of a proper three-day notice is provided in Florida’s Residential Landlord and Tenant Act:
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 (date) day of (month), (year).
(landlord’s name, address, and phone number)
The purpose of the three-day notice is to “afford a tenant a final opportunity to either pay the rent due or surrender possession prior to the commencement of a summary proceeding in court.” Rhoades v. Moorland, 7 Fla. L. Weekly Supp. 67a (Fla. 17th Cir Cnty. Ct. 1999). To that end, Florida’s Residential Landlord and Tenant Act requires that the three-day notice must inform the tenant of the tenant’s right to pay the amount demanded, or to vacate the premises, to avoid an eviction.
However, a three-day notice does not have to copy the statutory form word for word. Rather, it must “substantially comply” with that language in order to legally terminate a residential tenancy in Florida. Fla. Stat. § 83.56(3). It is the well-established law that a three-day notice, which fails to substantially comply with the statute, is defective. See, e.g., Inv. and Income Realty, Inc., v. Bentley, 480 So. 2d 219 (Fla. 5th DCA 1985); Carballosa v. Arias, 2010 WL 2649911 (Fla. 11th Cir. Ct. 2010); Ruiz v. Thomas, 20 Fla. L. Weekly Supp. 885a (17th Cir. Ct. 2013); Cabino Rentals, 9 Fla. L. Weekly Supp. 134a. Moreover, any complaint based on a defective notice cannot state a cause of action for eviction and must be dismissed. Id.
Since using words or language other than what is permitted by the statute may lead to a finding of no “substantial compliance” it is undoubtedly best practice for landlords to nevertheless copy the statutory form word for word. For example, where a landlord’s three-day notice to “vacate the premises or they will put you out,” was deemed defective. Gallahan v. Mair, 2005 WL 2654291 (Fla. 7th Cir. Cnty. Ct. 2005). Similarly, notice to the tenant to “vacate, quit, and deliver” the premises was similarly found defective. Prashad v. Graham, 18 Fla. L. Weekly Supp. 205c (Fla. 9th Cnty. Ct. 2010).
In short, substantial compliance with the statute requires that the tenant be given clear notice of his or her right to pay the stated amount of rent or leave the premises. A notice that does something else is defective for an eviction action. See Myers v. Hart, 7 Fla. L. Weekly Supp. 697a (Fla. 17th Cnty. Ct. 2000).
Florida’s Residential Landlord and Tenant Act defines “rent” as 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 designated as rent in a written rental agreement.” Fla. Stat. § 84.43(6). The statute requires that the landlord indicate the “sum” in dollars of the amount due for the “rent and use of the premises.” Fla. Stat. § 83.56(3).
That amount must be accurate. A notice that states an amount that is less than the actual amount due does not render it defective. See McCone v. The Grove at Orlando Holdings, Inc., 16 Fla. L. Weekly Supp 802a (9th Cir. Ct. 2009). However a notice that states an amount greater than the amount of rent actually due is defective. See Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (Fla. 9th Cir. Ct. 2009) (notice found defective where lease stated rent of $1,050 but demanded rent of $1,320). In one case, the court dismissed an eviction action where the notice demanded rent only $10 greater than the amount stated in the lease. See Erickson v. Pealer, 18 Fla. L. Weekly Supp. 601a (Fla. 9th Cir. Cnty. Ct. 2010).
A three-day notice should only include amounts due for late fees, security deposits, increased rents, or penalties, when they are designated as rent in the written lease. See Hodgson v. Jones, 6 Fla. L. Weekly Supp. 758a, n. 5 (Fla. 17th Cir. Ct. 1999); Singh v. Rolle, 19 Fla. L. Weekly Supp. 655a (Fla. 9th Cir. Cnty. Ct. 2012); Cadet v. Toussaint, 7 Fla. L. Weekly Supp. 66b (Fla. 17th Cir. Cnty. Ct. 1999); Isidore v. Gordon, 8 Fla. L. Weekly Supp. 208a (Fla. 17th Cir. Cnty. Ct. 2000) (security deposit); Irvin v. Headley, 10 Fla. L. Weekly Supp. 218a (Fla. 17th Cir. Cnty. Ct. 2003); Loren v. Baker, 14 Fla. L. Weekly Supp. 783 (Fla. 17th Cir. Cnty. Ct. 2007) (as to late fees); Personnalite Invests. & Bus. LLC v. Parks, 19 Fla. L. Weekly Supp. 1032a (Fla. 9th Cir. Cnty. Ct. 2012) (rent increase).
A three-day notice is also defective if the rent is not yet late. For example, a three-day notice that is dated the same date as the date on which the monthly rent is due is defective. See Russell v. Thompson, 7 Fla. L. Weekly Supp. 554b (Fla. 17th Cir. Cnty. Ct. 2000); Persaud v. Mortimore, 19 Fla. L. Weekly Supp. 218a (Fla. 9th Cir. Cnty. Ct. 2011).
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. See Hodgson, 6 Fla. L. Weekly Supp. 758a; Persaud, 19 Fla. L. Weekly Supp. 218a. The landlord does not have to refuse the tenant’s payment in such case. The Act provides the landlord with the option of either 1) providing a receipt to the tenant stating the amount received and the agreed date and amount of the balance of the rent due; 2) placing the partial rent in the court registry; or 3) posting a new three-day notice with the updated rent amount due. See Fla. Stat. § 83.56(5)(a).
Florida’s Residential Landlord and Tenant Act is clear regarding the right of the landlord to terminate the tenancy if the tenant has failed either to pay the rent amount stated in the three-day notice or deliver possession of the property to the landlord within three days after the notice was served on the tenant.
The statute excludes Saturday, Sunday, and legal holidays in calculating the compliance date. Interestingly, three-day notices that provide for greater than three days have been deemed defective, even if the parties have agreed otherwise in the lease. Devine, 11 Fla. L. Weekly Supp. 356a (5 or 11 days is ineffective); Oakridge Apartment Complex, Inc., 13 Fla. Weekly Supp. 839c (7 days).
The failure to properly calculate and include the exact due date in the notice could be grounds for dismissal of the eviction action. Stanley v. Quest Int’l Invest., Inc., 50 So. 3d 672 (Fla. 4th DCA 2010). The specific compliance date must be clear. Copeland, 20 Fla. L. Weekly 1080a; Personnalite Invests. & Bus. LLC, 19 Fla. L. Weekly Supp. 1032a. If more than one notice is served with different due dates or amounts, such may render the notices as confusing, and, therefore, defective. Gallahan, 2005 WL 2654291; Diaz, 19 Fla. L. Weekly Supp. 1075a.
A three-day notice is defective if the compliance date is the same date the payment is due. See Brooks, 17 Fla. L. Weekly Supp. 72a; Singh, 19 Fla. L. Weekly Supp. 655a; Scott v. Ward, 7 Fla. L. Weekly Supp. 357a (Fla. 17th Cir. Cnty. Ct. 2000); Persaud, 19 Fla. L. Weekly Supp. 218a; Carcache v. Laguardia, 19 Fla. L. Weekly Supp. 484b (Fla. 15th Cir. Cnty. Ct. 2011).
A three-day notice is also defective even if the compliance date is only one or two days after the rent due date or the date of the notice. See San Marco Partners, L.C., v. Wright, 5 Fla. L. Weekly Supp. 630b (Fla. 17th Cir. Cnty. Ct. 1998); Isidore, 8 Fla. L. Weekly Supp. 208a; Lin v. Jackson, 19 Fla. L. Weekly Supp. 847a (Fla. 9th Cir. Cnty. Ct. 2012); Gonzalez v. Gonzalez, 19 Fla. L. Weekly Supp. 591a (Fla. 11th Cir. Cnty. Ct. 2012); Viewmax Corp. v. Brown, 5 Fla. L. Weekly Supp. 629c (Fla. 17th Cir. Cnty. Ct. 1998).
It should be a simple matter to calculate the compliance date, by adding three business days after the date of the notice. Gonzalez, 19 Fla. L. Weekly Supp. 591a. However, careful attention should be paid to the requirement to exclude “legal holidays.” Fla. Stat. § 83.43(13) defines legal holidays as those holidays that are observed by the clerk of court. Lin, 19 Fla. L. Weekly Supp. 847a. Thus, the calculation of the proper compliance date will necessarily require a review of the holidays as declared by the clerk of the county in which the property is located.
Florida’s Residential Landlord and Tenant Act requires that the landlord include an address in two places. First, the address of the leased premises, including the county in which it is located, must be stated in the three-day notice. See Brooks, 17 Fla. L. Weekly Supp. 72a (dismissal affirmed on appeal when the city and state were omitted from the address of the leased premises); Luise v. Flores, 18 Fla. L. Weekly Supp. 295b (Fla. 8th Cir. Cnty. Ct. 2010) (eviction dismissed where the county the property was located in was not stated in the three-day notice).
Second, the landlord’s name, address, and telephone number at the end of the notice. See Belhomme v. Mahan, 11 Fla. L. Weekly Supp. 731c (Fla. 7th Cir. Cnty. Ct. 2004); Luise, 18 Fla. L. Weekly Supp. 295b; Prashad, 18 Fla. Law Weekly Supp. 205c. The notice must include the landlord’s physical address even if the tenant agreed that rent payments would be by direct deposited to the landlord’s bank. Raro v. Clement, 20 Fla. L. Weekly Supp. 437d (Fla. 10th Cir. Cnty. Ct. 2012); Myers, 7 Fla. L. Weekly Supp. 697a.
Pursuant to Florida’s Residential Landlord and Tenant Act, the three-day notice must be mailed or hand delivered to the tenant. Fla. Stat. § 83.56(4). However, in the event “the tenant is absent from the premises,” the Act provides that the notice can be posted on the property. Id.
All tenants must be identified on the three-day notice. Pena, 18 Fla. L. Weekly Supp. 104b. During the proper three-day period (as properly calculated) the tenants retain all rights to the property, including receiving their guests on the premises. Thus, as held by one court, when a guest was injured during the three-day period, the guest was not deemed as a trespasser at the time of the injury. Brown v. Aswan Villas Apts. Ltd. P’ship, 705 So. 2d 1043 (Fla. 3d DCA 1998).
A tenant’s right to challenge a defective three-day notice is strictly dependent on his or her timely compliance with the requirements of the Florida’s Residential Landlord and Tenant Act. Specifically, the statute requires the tenant to either file a motion for determination of rent or pay the amount due for rent, as stated in the complaint, to the court registry. See Fla. Stat. § 83.60(2).
A tenant who timely files a motion to determine rent is entitled to a hearing. See Harvey v. Campton Assoc., 22 Fla. L. Weekly Supp. 48a (Fla. 11th Cir. Ct. 2014); Frey v. Livecchi, 852 So. 2d 896 (Fla. 4th DCA 2003) (hearing required to determine if defendants are tenants or occupying the property under a contract for sale, in which case, Fla. Stat. § 83.60(2) would not apply).
However, the failure to timely pay the rent, whether as stated in the complaint, or as determined by the court, is deemed as an absolute waiver of almost all of a tenant’s defenses to a landlord’s claim for possession, including defects in the three-day notice. See Lehrer v. Cowen, 21 Fla. L. Weekly Supp. 137b (17th Cir. Ct. 2013). In the event the tenant fails to do so, the landlord is entitled to the immediate entry of a default judgment for possession.
The failure to timely pay the rent does not entitle the landlord to monetary damages, only possession of the premises. See Premici v. United Growth Props., L.P., 648 So. 2d 1241 (Fla. 5th DCA 1995). It also will not be grounds for dismissal of any counterclaim asserted by the tenant. See First Hanover v. Vazquez, 848 So. 2d 1188 (Fla. 3d DCA 2003); K.D. Lewis Enters. Corp., Inc. v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984).
Florida’s Residential Landlord and Tenant Act provides that the prevailing party may recover their attorney fees and costs and a residential lease cannot provide otherwise. See Fla. Stat. § 83.48 (“In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover reasonable attorney fees and court costs from the nonprevailing party. The right to attorney fees in this section may not be waived in a lease agreement.”).
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