The Three Day Notice to Pay Rent or Vacate

The Three Day Notice to Pay Rent or Vacate

Florida Statutes (FS) 83.56(3) provides the procedure for a landlord to demand rent from a tenant who has defaulted on rent payment. The procedure is specific, and if not followed, may provide the tenant a defense to an eviction. In addition to the requirements under FS 83.56(3), Florida courts have applied rules regarding what landlords are required to do to deliver a legally sufficient 3 day notice.

Here are rules regarding preparing and delivering a 3 day Notice to Pay Rent or Vacate.

  1. Foreign Language. If the Tenant speaks only a foreign language to the landlord's knowledge, the landlord should make diligent effort to put the notice in that language. This likely requires the landlord to consult a competent interpreter. See e.g. Estevez v. Olarte, 47 Fla. Supp. 2d 86 (Fla. Dade County Ct. 1991); Florida RB Inc. v. Husted, 1 Fla. L. Weekly Supp. 157 (Fla. Sarasota County Ct. 1992).
  2. Tenant Identification. The notice should be addressed to each tenant on the lease. Failure to name each and every tenant may provide a defense to the unnamed tenants.
  3. Rental Property Address. The notice should describe the complete address (including unit number) and the County of the residence.
  4. Date of the Notice. The landlord should date the notice on the date the notice is delivered.
  5. Rent Amount. The notice must demand the exact amount of back rent owed. The landlord may include “added rent” only if the lease defines it as such. Itemize the rent amount and its category (e.g. "August 2018 base rent", "August 2018 Late Fee") to provide clarification of the rent owed. Note: some courts require itemization of rent and its category.
  6. Demand Elements. The notice must (a) demand that the tenant pay the full rent within 3 days of delivery, (b) specify the "pay or vacate" deadline date, and (c) exclude Saturday, Sunday and legal holidays.
  7. Date Calculation. The "pay or vacate" date must be a demand for the tenant to pay or vacate within 3 days of the date of delivery, excluding Saturday, Sunday, legal holidays and the date of delivery. (Note, if the lease agreement requires more than 3 days, the landlord must follow the lease agreement; and the lease agreement cannot require less than 3 days to pay rent upon demand.) For example, if you deliver 3 day notice on Monday, it expires on Thursday; if you deliver 3 day notice on Wednesday, it expires the following Monday. If the incorrect demand date is sooner than the three days, it is defective. If it is later than the three days, the notice is not defective, but the landlord cannot file an eviction until the demand deadline date has expired.
  8. Name of Landlord or Authorized Agent. Input the landlord’s or authorized agent’s name and address at the bottom of the notice under the signature line.
  9. Copies. Make 3 copies of the notice and put the original in your file.
  10. Delivery. Take a copy of the notice and have it served by (1) personal delivery to the tenant, or (2) posting on the residence door, but only if the tenant is not present after you have attempted to contact the tenant at the residence. CAUTION: If you mail the notice, Florida law adds five (5) days to the notice period under the "Mailbox Rule".
  11. Legal Service. Do not serve anyone except a person 15 or older and resides at the property (see Florida Statutes, section 48.183). Do not serve guests, children or babysitters.
  12. Certificate of Service. When the server completes service, have him complete the “Certificate of Service” portion on the notice describing how the notice was served and to whom it was served. Note: do not serve the notice in more than one manner, because the latest service is the effective service.

What to do if a tenant makes payment, either full or partial.

  1. FULL PAYMENT: as long as the 3 day notice period is pending, the tenant may pay the full amount owed stated in the 3 day notice. The landlord may not reject or interfere with the tenant's payment of the amount stated in the 3 day notice. If he does and proceeds to file an eviction, the tenant may have a defense to the eviction.
  2. PARTIAL PAYMENT. If the tenant attempts to make a partial payment during or after the 3 day notice is delivered, the landlord has three options under Florida Statutes, section 83.56(5)(a):
    • Provide the tenant with a receipt stating the date and amount received and the agreed upon date and balance of rent due before filing an action for possession;
    • Place the amount of partial rent accepted from the tenant in the registry of the court upon filing the action for possession; or
    • Post a new 3-day notice reflecting the new amount due.

After you complete the notice delivery process, contact your attorney to file the eviction. If you are a landlord and need a 3 Day Notice drafted or reviewed for legal sufficient, or if you are a tenant who has received a 3 day notice to pay or vacate and want to know your rights, contact The Virga Law Firm, PA and speak with our landlord-tenant attorney, Tim Baldwin.