Procedures Landlords Must Follow

Procedures Landlords Must Follow

Landlords must comply with specific procedures under Florida Statutes (FS), ch. 83, pt. 2 (Florida Residential Landlord Tenant Act) (“The Act”) to enforce remedies against a tenant who is in breach of the lease agreement or the tenant’s duties under the Act. Failure of the landlord to comply those procedures will cause problems for the landlord in his or her attempt to seek legal action against the tenant. Below is a brief discussion on those procedures.

Types of Tenant Breaches

There are three basic tenant breaches under the Act. The first is the tenant’s failure to pay rent or additional rent (which must be defined by the lease agreement). The second is a tenant’s non-compliance with his obligations that are curable. Th third is a tenant’s non-compliance with his obligations that are non-curable.

Failure to Pay Rent

F.S. 83.56(3) states that if a tenant fails to pay rent or additional rent when owed, the landlord must deliver a 3 day notice to pay or vacate (unless the lease provides for more than 3 days, in which case the landlord must comply with the lease). The notice must be in substantial compliance with the following language:

  • 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 ___ day of ____, (year).

The “pay or vacate” date cannot include the date of service of the notice, legal holidays and weekends. Additionally, the pay demand must only include rent and additional rent as defined by the lease. Demanding any money not defined as rent in the lease will render the notice defective. However, landlords should be cautious when demanding additional rent in the 3 day notice because not all courts see the inclusion of additional rent the same.

Additionally, some courts require that the notice itemize the rent and additional rent, such that the tenant has notice as to the specific reason for the demand for rent and additional rent. For example, such an itemized demand may state as follows: “$1,000 – May 2019 Rent”; “$150 – additional rent for late fees owed in May 2019”, so on and so forth.

The landlord may use the following means of delivering the notice: personal delivery, posting on the premises in a conspicuous place (if the tenant does not respond to the deliverer’s presence) and mailing. The server should attempt to serve the tenant in person, but if the tenant does not respond to the server’s presence, the server may post the notice.

Mailing notice should be avoided when possible because when notice is mailed, Florida’s Mailbox Rule applies, which would add 5 days to the notice period, making a 3 day notice an 8 day notice to pay. Additionally, if the lease agreement requires the tenant to make rent payment by mail, there would be an additional 5 days added to the notice for the time it takes the tenant to mail rent payment, making a 3 day notice a 13 day notice.

Next, if the tenant attempts to make full payment of the demanded rent within the 3 day notice period, the landlord MUST accept the rent. The landlord may not reject full payment when payment is timely made.

If the tenant attempts to pay either full or partial rent payment AFTER the 3 days, the landlord has no obligation to accept the rent and may proceed with eviction. If the landlord accepts full payment of rent after the 3 day notice period, the landlord may not file an eviction.

If the landlord accepts partial rent payment at any time, the landlord must choose one of the 3 options provided for by F.S. 83.56(5)(a), namely:

1. 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;

2. Place the amount of partial rent accepted from the tenant in the registry of the court upon filing the action for possession; or

3. Post a new 3-day notice reflecting the new amount due.

If eviction has already been filed, the tenant attempts to pay partial rent, and the landlord accepts partial rent, the landlord may serve a new 3 day notice with the new rent balance and file an Amended Complaint if the tenant fails to pay during the 3 day period. If the tenant pays full rent during the 3 day period, the eviction will be dismissed.

Of course, settlement agreements can be reached with the tenant after eviction has been filed as it relates to the tenant’s payment of rent, either in full or partial.

Curable Non-Compliance

F.S. 83.56(2)(b) states that if the tenant “materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than failure to pay rent, or reasonable rules or regulations, the landlord may” demand that the tenant cure the non-compliance when the violation is such that the tenant should be given an opportunity to cure. Examples of curable violations include, permitting unauthorized pets or persons, parking in unauthorized space, and failing to keep the property clean and sanitary. There are other curable violations, of course.

The 7 day notice to cure must be in substantial compliance with the following language:

  • You are hereby notified that (cite the noncompliance). Demand is hereby made that you remedy the noncompliance within 7 days of receipt of this notice or your lease shall be deemed terminated and you shall vacate the premises upon such termination. If this same conduct or conduct of a similar nature is repeated within 12 months, your tenancy is subject to termination without further warning and without your being given an opportunity to cure the noncompliance.

The 7 day notice period includes weekends and legal holidays, but not the date of delivery of the notice. Again, the landlord may use the following means of delivering the notice: personal delivery, posting on the premises in a conspicuous place and mailing. Mailing should be avoided as Florida’s Mailbox Rule applies, which would add 5 days to the notice period, making it a 12 day notice.

The notice must sufficiently notify the tenant of the violation, such as including dates, times, and events that sufficiently describe the tenants acts or omissions that caused the violation. Failure to state sufficient facts constituting the violation may be a defense to eviction.

FS 83.56(2)(b) provides that if the tenant commits the same or similar misconduct within 12 months of the first violation for which the notice is delivered, the landlord need not give the tenant an opportunity to cure, but rather can deliver a 7 day notice to terminate the lease. The landlord must ensure that the 7 day notice to cure has this “second or subsequent” language so that the tenant has sufficient notice that a second or subsequent violation of the same or similar conduct will result in lease termination.

Non-Curable Non-Compliance

F.S. 83.56(2)(a) states that if the tenant “materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than failure to pay rent, or reasonable rules or regulations, the landlord may” terminate the lease with a 7 day notice when the violation is such that the tenant should NOT be given an opportunity to cure. Examples of curable violations include destruction, damage, or misuse of the landlord’s or other tenants’ property by intentional act or a subsequent or continued unreasonable disturbance. There are other non-curable violations, of course.

This remedy is used less frequently than the 7 day notice to cure, and since it results in termination of the lease without opportunity to cure, it is more likely to result in tenant resistance and attempted defenses. Therefore, it is important that the landlord use this notice properly and with competent, substantive evidence, including credible witnesses with personal knowledge, photos and videos and other objective evidence.

The notice must state the following in substantial conformity:

  • You are advised that your lease is terminated effective immediately. You shall have 7 days from the delivery of this letter to vacate the premises. This action is taken because (cite the noncompliance).

The notice requirements stated in the previous section (Curable Non-Compliance) applies to the 7 day notice to terminate.

Seek Legal Advice

The procedures may appear simple, but in practice, landlords can get themselves into a legal and management mess by not taking proper steps and by responding improperly to a tenant non-compliance. The mess can compound with each action the landlord and tenant may take under the circumstances. Landlords must take all precautions to remove all of the clouds and gray areas that could arise in litigation.

Landlords must be aware that tenants can assert defenses, whether in law or equity, in any eviction action. Those defenses, when properly pled, may prevent a landlord from attaining the remedy sought, and could result in the landlord being held liable to the tenant, including paying the tenant’s attorney’s fees and costs.

Therefore, it is critically important that a landlord consult with a landlord-tenant attorney at the outset of any problems or questions that may arise during the tenancy. The attorney will be able to help the landlord navigate through the situation properly so that the tenant is less likely to successfully defend an eviction and/or damages action. This will save the landlord a lot of headache, money and time in the long run.

Contact Tim Baldwin at The Virga Law Firm, P.A. to establish a relationship and receive legal consultation on your landlord-tenant matter. If you are property or apartment manager, Tim Baldwin offers Legal Service Plans that are suited specifically for your business at a reasonable and fixed fee. Under these plans, you receive a scope of legal services that can be used when you need them without worrying about paying exorbitant legal fees.