Serving a Three-day Notice

Is Your Florida Three-Day Notice Legally Sufficient?

by Edward J. Fucillo, J.D. on February 10, 2013[edit]

Some Florida landlords have learned the difficult way that Florida law does not allow them to engage in self-help to remove a tenant who has stopped paying the rent, or is an otherwise problem tenant. Landlords have been known to post notices that threaten the tenant to leave in 24 hours, and if they did not, the police would be called to remove them. On rare occasion, some landlords have even interrupted the utility service (water, heat, electricity, garbage, etc.) to their rental unit in an attempt to force the tenant out of the property. Doing any of these things is, however, a violation of Florida law and could result in the landlord owing damages to the tenant that are equal to three times the monthly rent, or the tenant’s consequential damages, whichever is greater.

A legal eviction can only result from filing a law suit to evict the tenant(s) that is preceded by serving the tenant(s) with a properly drafted 3-day notice demanding either payment of the rent that is due, or possession of the premises. Drafting a three-day notice is a relatively simple matter, but it may be surprising to learn how common errors can render the 3-day notice legally insufficient, resulting in dismissal of the eviction suit. What may be more surprising is that some of these defective notices are being prepared by attorneys.

Florida Statute §83.56, provides a format for what a legally sufficient three-day notice should state, but despite this statutory example, suits for eviction are routinely dismissed without leave to amend due to easily preventable errors. What a dismissal without leave to amend means to the landlord is that an entirely new case must be filed, with new filing fees being paid, new service of process fees, and an entirely new period of time for the tenant to respond.

The following cases illustrate the type of errors that have been found to cause your 3-day notice to be deemed legally insufficient.

A commercial landlord’s notice failed to provide the option of paying rent.

A commercial landlord served a three-day notice to its tenant demanding possession within three days of the notice, but failed to include the option of paying rent. The notice was deemed legally insufficient under F.S. 83.20(2), because it failed to provide the tenant the option of paying the past due rent. AZ3, Inc. v. Tampa Westshore Assoc. Limited Partnership, 869 So.2 42 (Fla. 2nd DCA 2004).

A residential landlord’s notice failed to include additional time for mailing.

A corporate landlord mailed the three-day notice to its tenant, but only provided four days from the date of mailing for the tenant to either pay rent or surrender possession of the premises. The appellate court affirmed the trial courts ruling that if a 3-day notice is mailed, an additional five days for mailing must be added to the three day period. Investment & Income Realty, Inc. v. Bentley, 480 So.2d 219 (Fla. 5th DCA 1985).

The notice failed to include the proper party entitled to file the suit for eviction

The landlord’s three-day notice was defective because it failed to make a demand on behalf of the actual party that is entitled to receive the rent payment. Lakeside, LLC v. Lamphey, 16 FLW Supp. 111

A notice from an attorney failed to comply with the Federal Debt Collection Act.

The attorney who served the notice failed to comply with the Federal Fair Debt Collection Practices Act which requires thirty (30) days to validate the alleged debt. Panigirakis v. Osborne, 15 FLW Supp. 740b (2008). (A three-day notice is defective when it is given by attorney who is not the creditor and who failed to give 30 days to validate the debt).

The Three-Day Notice was found defective because it demanded more than the actual rent due.

The landlord demanded more than possession, or the actual rent due in the notice by demanding late fees in excess of the rent. The notice was deemed defective because it failed to comply with §83.20(2), Florida Statutes. Heidkamp v. Cooper, 16 FLW Supp. 585 (2009)

Because service of a three-day notice is a statutory prerequisite to filing a law suit for eviction, the notice must be correctly drafted and served in order for the eviction suit to proceed. If a landlord fails to comply with all the required elements for the eviction suit prior to filing the complaint, the trial court must dismiss the eviction suit without leave to amend. Rolling Oaks Homeowner’s Association v. Dade Co., 492 So.2d 686 (3rd DCA 1986) (trial court must dismiss without leave to amend when the requisite elements for eviction did not exist at the time the complaint was filed).

In sum, the simple process of drafting and serving a three-day notice should not be taken lightly. Failing to do can easily prolong your tenant’s unwelcome stay in your property, reduce your rental income, and increase your expenses that can also include your tenant’s attorney’s fees. If in doubt, seek the advice of an attorney experienced in this area of law.

Fucillo Law Firm, P.L.
Edward J. Fucillo, J.D.
Attorney at Law
FucilloLaw.com
Email: EJF@FucilloLaw.com
(727) 945-2862