Is Your Three-Day Notice Defective?
Many property owners fall into the mistaken belief that an eviction is a simple matter that can be handled informally by them or their agent. This belief is misplaced.
To evict a Tenant for non-payment of rent, the landlord must follow the strict three-day notice requirements under Florida law, amongst other things.
Let me start by drawing a distinction between a strictly monetary action and one for eviction under Ch. 83, F.S. Landlords always have the option to sue the tenant solely for back-rent, but it is a much slower process than an eviction and doesn’t sit well with property owners who aren’t presently getting paid by their Tenants. Since an eviction is treated as a severe civil remedy, there are technical hurdles the landlord must successfully navigate to win their eviction action.
The three-day notice is a condition precedent to an eviction. This means that if it isn’t handled properly before the eviction action is filed, the entire eviction can and should be dismissed.
Defective Three-day Notice
If the leasehold is held by husband and wife, special considerations must be taken with the three-day notice.
If the notice demands an incorrect amount of rent, it is defective.
If there are late fees included in the three-day notice, the lease must have the appropriate language to that effect.
A residential notice must properly calculate the grace period for the tenant. The grace period may not include legal holidays. Almost every month has a legal holiday of which the landlord may be unaware.
If the three-day notice is not hand-delivered or posted, but mailed, additional time must be given to the Tenants to cure the default.
Further, special attention should be given to the Florida Rules of Civil Procedure to prevent your case from being dismissed.
It is a mistake for the landlord to personally prepare the notice, yet this practice is all too common. All it takes is one savvy Tenant to get your “informal” eviction case thrown into dismay. All too often, by the time the landlord calls an attorney into the case, the defective three-day notice has already been served on the Tenant.
If you are a landlord faced with a Tenant who is refusing to pay their rent, you should speak with an attorney before you proceed on your own. The obstacles can be so technical that often only an attorney with eviction experience should be trusted to guide the eviction case through the court.
This is a generalized discussion and is not intended for any particular set of facts. By no means does this blog create an attorney-client relationship or attorney-client privilege. Anything relied upon in this or any blog, is done so at the readers own risk.
VERNON W. GUIRGUIS, ESQ.
The Guirguis Law Firm, PLLC
1423 S.E. 16th Place, STE 204
Cape Coral, Florida 33990
Posted on May 8, 2013, in Legal and tagged Attorney, Cape Coral Real Esta, Ch.83, Defective Three-day Notice, Eviction Notice, F.S., Florida Rules of Civil Procedure, Fort Myers, Fort Myers Real Estate Attorney, Landlord, Lawyer, Legal Schmegal, Property Guiding, SWFL Real Estate, Tenant, The Guirguis Law Firm, Vernon Guirguis. Bookmark the permalink. 1 Comment.