Wednesday, September 12, 2012

Invalid 3-Day Notices Prove Costly for Florida Landlords

by David Hawthorne, Esq.

In Florida, a large percentage of the major issues that lead to landlord/tenant disputes are covered by Florida Statutes Chapter 83.

This Chapter is divided into three parts:

  • nonresidential tenancies;
  • residential tenancies; and
  • self-service storage space.

Not surprisingly, of all the reported landlord/tenant opinions, the part with the least amount is self-storage space. Because of the cost involved, the majority of the reported district court of appeal opinions relate to commercial tenancies. However, with respect to reported county court opinions and those reported from circuit courts sitting in their appellate capacity, most involve residential tenancies.

Of this last category, by far the majority relate to the issue of the validity of the Three Day Notice and/or compliance with same.

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Florida Statute §83.56(3) states, "[i]f the tenant fails to pay rent when due and the default continues for 3 days, excluding Saturday, Sunday, and legal holidays, after delivery of written demand by the landlord of payment of the rent or possession of the premises, the landlord may terminate the rental agreement." The statute goes on to define legal holidays as "court-observed holidays only."

More importantly, the statute states:

The 3-day notice shall contain a statement in substantially the following form:

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).

(landlord's name, address and phone number)

Florida Statute §83.56(4) requires delivery by mail or hand-delivery, or, if the tenant is absent from the premises, by leaving a copy thereof at the residence.

 

Despite the clarity of the statute, there are countless reported cases dismissing evictions because of either invalid 3-Day Notices or the failure of the landlord to comply with their terms.

These faux pas create a potential "double whammy" for the landlord not only because of the dismissal but also, the landlord will be required, under Florida Statute §83.48, to pay the tenant's attorneys' fees and costs as the prevailing party. Since 2010 there have been over 70 reported dismissals involving either defective 3–Day Notices and/or failure to comply with their terms. Some of these involve notices that are clearly defective based upon the plain language of the statute, some a defect(s) that is not blatantly obvious, and some involve dismissals because the 3–Day Notice was not complied with.

The following are examples of cases in which the eviction action was dismissed with prejudice because of the 3–Day Notice:

  • Taylor v. Joseph, 18 Fla. L. Weekly Supp. 902 (9th Jud. Cir. 2011); Three-day notice is fatally defective for giving zero days to pay or vacate.
  • Olivares v. Pugh, 18 Fla. L. Weekly Supp. 690 (9th Jud. Cir. 2011); Three-day notice is fatally defective for failing to include address where payment could be made.
  • Zambrano v. Bryant, 18 Fla. L. Weekly Supp. 622 (9th Jud. Cir. 2011); Three-day notice is fatally defective for giving less than three business days to pay or vacate.
  • Marrero v. Hooker, 18 Fla. L. Weekly Supp. 297 (9th Jud. Cir. 2010); Three-day notice is fatally defective for giving less than three business days to pay or vacate and for demanding payment on a Sunday.

 

The following cases involve dismissals with prejudice based upon defective 3–Day Notices that are not necessarily obvious:

  • Kirkland v. Hayward, 18 Fla. L. Weekly Supp. 909 (7th Jud. Cir. 2011); Three-day notice is fatally defective for demanding payment or return of keys at address outside state without providing additional five days to comply by mail.
  • Zuluaga v. Coleman, 18 Fla. L. Weekly Supp. 696 (9th Jud. Cir. 2011); Three-day notice is fatally defective for not giving additional five days to respond to mailed notice.  
  • Creative Homes & Loans LLC v. Stafford et al., 18 Fla. L. Weekly Supp. 612 (9th Jud. Cir. 2011); Three-day notice is fatally defective for demanding payment at post office box without giving additional five days to comply by mail.

 

In the following cases, dismissal was with prejudice because monies other than for rent were demanded:

  • Bhitar v. Risbrook, 18 Fla. L. Weekly Supp. 897 (9th Jud. Cir. 2011); Three-day notice is fatally defective for demanding monies other than rent as late fees.
  • Panagkos v. Mackall, 18 Fla. L. Weekly Supp. 595 (9th Jud. Cir. 2011); Three-day notice is fatally defective for demanding security deposit.
  • Aries v. Moore, 18 Fla. L. Weekly Supp. 297 (9th Jud. Cir. 2010); Three-day notice is fatally defective for including claim for utilities.

This last result can easily be remedied by drafting the lease such that certain charges (i.e., late fees, utilities, etc.) are defined as "rent" under its terms.

 

In conclusion, when drafting a 3–Day Notice and filing an eviction lawsuit based upon same, it is imperative to take extra care to make sure no errors are made because they are always dispositive and sometimes very costly, not only in terms of attorneys' fees and costs, but also in terms of a tenant not paying rent yet continuing to occupy the dwelling.


About the Author:

Attorney David HawthorneDavid M. Hawthorne is of counsel with Akerman Senterfitt (Twitter: @Akerman_Law) in Fort Lauderdale, FL. He has over twenty years of experience and focuses his practice in the areas of commercial landlord-tenant practices, products liability and mass torts, construction, and general commercial litigation matters.

He is a frequent lecturer on both commercial and residential landlord-tenant topics, including many of our Landlord-Tenant Law seminars in Miami, Ft. Lauderdale, and West Palm Beach.

Mr. Hawthorne represents commercial and residential landlords, commercial and residential tenants, owners, contractors, design professionals, subcontractors, and materialmen, as well as medical and pharmaceutical companies.

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Topics: Real Estate Law, Landlord-Tenant Law, Eviction