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|Vol. I, No. 1, March 1999
The 3-day Notice: The Landlord's Key to Eviction
Under Florida law, before you can file a lawsuit for eviction you must deliver a 3-day notice pursuant to Section 83.56, Florida Statutes. If you fail to deliver a properly completed 3-day notice, your lawsuit can be dismissed with unpleasant fallout as described below. The statute provides as follows:
"The 3-day notice shall contain a statement in substantially the following form:
You are 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, or legal holidays) from the date of delivery of this notice, to wit: on or
before the ____ day of ________, 19__.
(Landlord's name, address and phone number)"
Steps to Follow
1. Fill out the 3-day notice completely and accurately. Make sure that the landlord's address and telephone number are included.
2. Include only rent that is owed in the notice. One common mistake is to include late fees. If the lease does not deem late fees rent or additional rent, inclusion of them makes the notice defective. One speaker at a recent seminar I attended suggested to exclude them anyway since the benefit of the small late fee being recovered pales in comparison to the prospect of having
your complaint dismissed because of a bad notice. Note that in a commercial lease situation, if your lease deems late fees or any other charges the tenant is to pay as rent or additional rent, then you can properly include them in your notice.
3. If your lease calls for a longer period of time than 3 days, you must use the longer period called for in the lease. Never agree to give a tenant more than 3 days notice for failure to pay rent and your can avoid this snare.
4. Make sure you count the days properly and exclude intervening weekends and legal holidays. I have been caught by an obscure intervening legal holiday once myself, so keep a watch out for this.
5. You can deliver the 3 day notice by mailing or delivering it to the leased premises, or by leaving a copy at the leased premises in the tenant's absence. Mailing is least desired because you have no proof of delivery. You can send it certified mail, return receipt requested, but you run up against a tenant who is never home or refuses to pick up certified mail from the post
office. I have heard one suggestion that in addition to CMRRR, the notice is marked at the bottom that it is sent regular mail as well. Then you get a certificate of mailing from the post office which proves that it was sent to the right address. Next show that the letter was never returned which creates the inference that the notice was delivered. I do not use CMRRR. In my opinion, it is best to have it delivered to the leased premises and hand it to the tenant or post it on the door if they are not home. We have a process server deliver our notices. It costs a bit more, but it gets done properly and you can file the lawsuit quicker.
6. FDCPA. The Fair Debt Collections Practices Act applies to debt collectors and 3-day notices. If your attorney prepares and signs the notice for you, then the FDCPA must be complied with which results in a thirty day delay. Avoid this problem by having the Landlord sign all 3 days notices. Your lawyer can prepare it if desired, but the client/landlord should sign it.
Consequences of a Defective 3 Day Notice
A "bad" three day notice means your lawsuit will be dismissed. At best, you lose time, your filing fee and service of process costs, and you must file a new lawsuit. Worst case, your tenant has an attorney, in which event you will pay the tenant's attorney's fees since the tenant is deemed the prevailing party in this situation.
In short, it is not brain surgery, but preparing and delivering a proper 3-day notice is necessary and will cost you money and time if you don't do it right.
The information provided herein is not to be considered legal or financial advice of the author. Readers should rely on their own legal or financial counsel regarding any matters described above. No warranties, express or implied, are provided. The foregoing may not be reproduced in whole or in part without the express written consent of the author.
© Jeffrey A. Icardi 1999