NORTHEAST FLORIDA LANDLORD AND TENANT LAW FIRM SERVING, DUVAL, CLAY, NASSAU, ST. JOHNS, FLAGLER AND BAKER COUNTIES
Residential landlords in Florida are required to follow the processes for evictions set forth by Chapter 83, Part II of the Florida Statutes in order to legally evict a person or persons from the property that is being leased. For example, if a landlord tries to evict a tenant with threats, by turning off the utilities or changing the locks, this is considered illegal under §83.67, F.S. At this point, the tenant may file a lawsuit against the landlord and be awarded actual or consequential damages or three (3) months’ rent, whichever is greater. This is why it is so important to always follow the necessary laws and procedures. This is why landlords need to contact Daniel M. Copeland, Attorney at Law, P.A. before starting the process of eviction.
If the tenant has failed to pay rent as required by the lease, a Three (3) Day Notice is required as a condition precedent to an eviction action, pursuant to §83.56(3), F.S. The 3-Day Notice can be served as soon as the rent is past due. If you have a written lease, you should consult your lease to determine when the rent is due. For instance if your lease states that the rent is due on or before the first of the month and a late fee is charged after the fifth of the month, you do not necessarily need to wait until the fifth and can serve a 3-Day Notice on the second as the rent was due on the first.
WHAT AMOUNTS CAN BE CLAIMED ON A 3-DAY NOTICE
You can only claim rent amounts that are past due. Do not include any amounts that are not “rent”, such as utilities, security deposits, late fees or other costs. If you have a lease in effect with your tenant and any of the preceding items are defined as rent in the lease then you may include it in the amount due in the 3-Day Notice. If you claim items other than rent in your 3-Day Notice or rent that is not due (future rent), the eviction case can be dismissed. Example: If your lease contains language that states that as additional rent the tenant shall pay a late fee, if the rent is paid late then the late fee may be included in the 3-Day Notice.
- 3-DAY NOTICE FLAWS
Courts have struggled and differ on how to treat defects in 3-Day Notices. However, the end result is that many times cases are dismissed due to the defect. Among the consequences a dismissal has for the landlord is that a new 3-Day Notice must be served again and the case started from scratch. Another more bleak result is that the landlord may be liable to the tenant for legal fees and costs associated with defending the eviction case.
If an eviction is due to noncompliance by the tenant with the rental agreement, but there is a cure permissible or possible, then a Seven (7) Day Notice must be given pursuant to §83.56(2), F.S. This is also referred to as the Seven Day Notice to Cure or Notice of Noncompliance. It has to contain the omission or act that constitutes the noncompliance and that the lease is going to be terminated unless the tenant fixes the breach within a period of seven days. The tenant must to be advised that the same noncompliance or breach within the subsequent 12-months is going to result in the lease being terminated with no opportunity to cure the issue of noncompliance.
There is also a 7-day notice for termination in eviction cases where a cure for the breach or the violation is not permitted or possible. These types of Florida eviction notices apply in situations where the tenant has continued with an unreasonable amount of nuisance or disturbance, damaged or destroyed the premises, or committed some type of criminal act.
15 Day Notice to Vacate
This is a notice served to tenants who are on a month-by-month lease pursuant to §83.57, F.S. The first step is to determine when the notice must be delivered. Using the most common scenario of a month-to-month tenancy the law requires the notice to be delivered 15 days before the rent is due. If the rent is due on the first of the month the notice must be delivered by the 15th of the previous month. Example, rent is due on the first and you want to terminate a month-to-month tenancy before the May 1st rent is due. The notice must be delivered by April 15th, which is at least 15 days before the next rental installment is due, May 1.
On the issue of timing §83.57, F.S. provides the following guidance:
1) When the tenancy is from year to year, by giving not less than 60 days’ notice prior to the end of any annual period;
(2) When the tenancy is from quarter to quarter, by giving not less than 30 days’ notice prior to the end of any quarterly period;
(3) When the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period;
(4) When the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.”
The second step is how to deliver the notice. Florida law requires that the notice be either mailed or delivered personally. Although, not required by law, it may be a good idea to use certified mail, delivery confirmation or some other form of verifiable delivery service so that the first step of timing does not become an issue later.
Service of Notices
The service of a Florida eviction notice is able to be accomplished by taking it to the tenant, or by leaving it with an adult tenant at the location, by sending it certified mail or posting it on the door of the property. The person who is serving the notice has to indicate how it is served.
Eviction Complaint (Count I, Possession of Premises) and 5 Day Summons
If the tenant refuses to comply or leave the property voluntarily, the landlord will be required to file an eviction action and have a five (5) day eviction summons and complaint served. The complaint must to be served by a sheriff or a registered process server. The tenant will have five (5) days business days (weekends and holidays do not count) to submit an answer to the court and deposit money into the registry of the court. If no answer is timely received and no money deposited, the landlord can then file a Motion for a Default Judgment and submit a Final Judgment for Possession to the judge.
If you need more information about evictions in Florida, contact us today. We can ensure the process is handled properly. Call Daniel M. Copeland, Attorney at Law, P.A. today at 904-482-0616, or use the form below.
Please note, all information contained herein is provided for general informational purposes only. The information herein is not intended as legal advice and should not be relied upon as such. Different factual scenarios may yield different results. In addition, several other factors must be considered in each individual case, and those factors can only be ascertained by speaking directly with an attorney.
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