Termination of Residential Rental Agreements
A tenant’s possession of a landlord’s residential property in Florida begins with an agreement, oral or written. Typically, of course, that agreement will require the periodic payment of rent from the tenant to the landlord. If the tenant fails to pay the rent as agreed, the landlord has the right to evict the tenant and regain possession of the property.
Self-Help Evictions Abolished
Florida law has long abolished “self-help” evictions, that is, the forcible reentry by the landlord to remove the tenant outside of court procedure.1 The process to properly remove a tenant from residential real property requires compliance with the Florida Residential Landlord and Tenant Act.2 The starting gun for this process, and the key to whether an eviction can be successful, is the proper preparation and delivery of a three-day notice.3 A proper three-day notice cannot be waived by the parties.4
Termination for Nonpayment of Rent
A landlord’s action to remove a tenant from residential property for nonpayment of rent cannot begin until there is a proper termination of the tenancy.5 Termination for nonpayment of rent is exclusively accomplished under the act by the service on all tenants of an accurate three-day notice.6 “Termination of the tenancy is a prerequisite to an action for eviction and must be satisfied prior to filing the eviction action.”7 For a landlord who purchased the subject property at foreclosure, federal law8 imposed an additional 90-day notice to all bona fide tenants, even if they were not named on the lease.9 This was held as a condition precedent to eviction for such property.10 However, as of this writing, the federal law was sunset on December 31, 2014, and further discussion regarding that law is beyond the scope of this article.
Form of Three-Day Notice
The content of a proper three-day notice is provided by the statute:
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 (date) day of (month), (year).
(landlord’s name, address, and phone number)
For a three-day notice to terminate a residential tenancy, it must “substantially comply” with the above statutory form. This has been stated to provide to the tenant the “what, when, and to whom, and where”11 of the payment requirements for the tenant to prevent an eviction action. Countless court opinions have settled the law in Florida that a three-day notice that fails to substantially comply with the statute is defective and, therefore, a complaint based on such defective notice cannot state a cause of action for eviction.12
Tenant’s Challenge to Defective Three-Day Notice
A tenant’s right to challenge a defective three-day notice is strictly dependent on the tenant’s timely compliance with the statutory requirements either to pay to the court registry the amount due for rent as stated in the complaint or file a motion for determination of rent.13 If the request to determine rent is timely, the tenant is entitled to a hearing.14 The failure to timely pay the rent, whether as stated in the complaint, or as determined by the court, is deemed as an absolute waiver of the tenant’s defenses other than payment, including all defects in the three-day notice, as to the landlord’s claim for possession, and the landlord is entitled to the immediate entry of default judgment for possession15 (but not for damages16 nor for dismissal of any counterclaim17 ).
Subject Matter Jurisdiction
An improper, or even omitted, three-day notice had, for many years, been cause for a court to dismiss a case for lack of subject matter jurisdiction. However, by its opinion in Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998), rev. den., 717 So. 2d 528 (Fla. 1998), the Fourth District in 1998 held that a defective three-day notice, or even its entire omission, did not divest the court of subject matter jurisdiction. The Bell court analyzed the two-pronged requirements for the proper jurisdiction of a court. It held that a defective or missing three-day notice did not divest the court of the power to adjudicate the action. Since the Bell decision, the law has been clear in Florida that the requirement of a proper three-day notice is merely a condition precedent to an eviction action for which the court’s jurisdiction has otherwise been effectively invoked. Such court can then proceed to hear and determine the action.18
Right to Amend
A monumental change governing eviction actions occurred in the legislature in 2013. Until then, for all residential eviction actions commenced prior to July 1, 2013, when an action was dismissed as a result of a defective three-day notice, the dismissal was with prejudice, as the landlord could not create a proper cause of action by serving a corrected three-day notice. The landlord had no right to amend its complaint with a corrected three-day notice.19
However, effective on and after July 1, 2013, the statute changed, giving the landlord the right to serve a new, accurate, three-day notice on the tenant. If nonpayment continued, then the landlord could amend the eviction complaint.20 One Florida court characterized a dismissal with prejudice as a “harsh” result on appeal and reversed a decision adverse to the landlord at trial based on the statutory right to amend.21
With the new right to amend, a proper three-day notice still requires substantial compliance with the statute. A defective three-day notice remains as the proper basis for dismissal of an eviction for failure to state a cause of action. The difference, in view of the amendment to the statute enacted in 2013, is that the landlord is entitled to correct the defect in the same action and continue to prosecute its action in court. The statute doesn’t limit how many times the landlord can attempt to get it right. The number of amendments in any given case would then likely be governed by the court’s general ability to prevent abuse of amendments to pleadings under Fla. R. Civ. P. 1.190.22
Key language in the statute provides the wording of the notification from landlord to tenant that demands “payment of rent or possession of the premises.” The concept is simple. The statute requires that the notice must inform the tenant of the tenant’s right to pay the amount demanded, or to vacate the premises, to avoid an eviction. This language can properly terminate a lease (assuming, of course, that all of the other details are substantially accurate), and serves the purpose of the statute to “afford a tenant a final opportunity to either pay the rent due or surrender possession prior to the commencement of a summary proceeding in court.”23
Where a landlord’s, or his or her attorney’s, words are other than as permitted by the statute, there may not be the requisite substantial compliance with the statute that will terminate the tenancy. For example, in a case in which the landlord told the tenant in the served three-day notice to “vacate the premises or they will put you out,” that notice was deemed defective.24
Notice to the tenant to “vacate, quit, and deliver” the premises was similarly defective.25 In one case, the requirement to the tenant to “vacate, quit, and deliver up the premises” prompted the court to explain that a tenant need not “redeem, reestablish or reinstate” a tenancy by payment of the past-due rent where such language indicates that the tenancy has previously been terminated.26
Substantial compliance with the statute, then, requires that the tenant be given clear notice of his or her right to pay the stated amount of rent or leave the premises. A notice that does something else, such as providing notice of an apparent ability to reinstate a tenancy that the landlord believes may have been otherwise, and likely ineffectively, terminated is defective for an eviction action.27
Amount of Rent
The act defines “rent” as the “periodic payments due the landlord from the tenant for occupancy under a rental agreement and any other payments due the landlord from the tenant as may be designated as rent in a written rental agreement.”28 The statute requires that the landlord indicate the “sum” in dollars of the amount due for the “rent and use of the premises.” That amount must be accurate. However, a stated amount that is less than the amount due does not render the notice defective.29 Further, a landlord may demand that rent be paid in cash, which the Third District held to be a mere redundancy, stating that the obligation to pay rent may be discharged “in money” and that demanding payment in cash did not “impose a greater obligation” on the tenant.30
While the amount stated on the notice may be less than the actual amount due, it must not be greater than the rent that is due as of the time of service of the notice. In one case in which the lease stated rent of $1,050, but demanded rent of $1,320, the appellate court held that the difference rendered the notice defective.31 An extreme example forced the court to dismiss the eviction where the notice demanded rent only $10 greater than the amount stated in the lease.32
While a landlord may believe that the three-day notice should include amounts due for late fees, security deposits, increased rents, or penalties, such amounts are only proper when they are designated as rent in a written lease.33 Such amounts, if properly designated in the written lease as rent, must be accurate as well. A notice was deemed defective when the number of days that transpired from the date that rent was late to the date of the notice (nine days) was less than the number of days used to calculate the amount of late fees included in the notice (15 days).34 If rent is not yet late, such as is the case when the notice is dated the same date as that on which the monthly rent is due, a defect in the notice exists there as well.35
There is one last, but important, point to note about the amount of past due rent. If a landlord accepts any amount of rent after the three-day notice is served on the tenant, such acceptance will render the notice as defective.36 However, the landlord need not refuse the payment tendered by the tenant. The act provides the landlord with the option of either 1) providing a receipt to the tenant stating the amount received and the agreed date and amount of the balance of the rent due; 2) placing the partial rent in the court registry; or 3) posting a new three-day notice with the updated rent amount due.37
Three Days To Comply
The statute is clear regarding the right of the landlord to terminate the tenancy if the tenant has failed either to pay the rent amount stated in the three-day notice or deliver possession of the property to the landlord within three days after the notice was served on the tenant. The statute excludes Saturday, Sunday, and legal holidays in calculating the compliance date. Although not intuitive, statutory notices that provide for greater than three days have been deemed defective, even if the parties have agreed otherwise in the lease.38 If a lease provides for a termination notice of length different than three days, such notice would be required in addition to the statutory notice.39 Also, if the amount due is, in fact, deemed rent under the lease, then the use by the landlord of the seven-day statutory notice for defaults by the tenant other than the payment of rent40 will be cause for dismissal of an eviction based on nonpayment of rent.41
The failure to properly calculate and include the exact due date in the notice is proper cause for dismissal of the eviction action.42 The specific compliance date must be clear.43 W hen the compliance date is the date the payment is due,44 or only one45 or two46 days after the rent due date, or the date of the notice, then the notice is defective.
It should be a simple matter to calculate the compliance date, by adding three business days after the date of the notice.47 However, careful attention should be paid to the requirement to exclude “legal holidays.” Section 83.43(13) defines legal holidays as those holidays that are observed by the clerk of court.48 Thus, the calculation of the proper compliance date will necessarily require a review of the holidays as declared by the clerk of the county in which the property is located. Some of those may be more obscure and could render a notice defective to the uninformed. For instance, the clerk in Monroe County declared General Election Day (November 3, 2015) as a legal holiday. In contrast, none of the clerks of Miami-Dade, Broward, or Hillsborough counties included General Election Day in their list of holidays. Prudent landlords and tenants will check the clerk’s list of holidays before evaluating the effectiveness of the stated compliance date.
The courts have held that Rule 1.090(e) will apply to three specific situations, requiring that five days, excluding Saturday, Sunday, and legal holidays,49 be added to the compliance date. The first situation is where the landlord mails the three-day notice to the tenant.50 The second situation occurs when the place to pay the stated rent or deliver the keys to the landlord is stated in the three-day notice as a post office box instead of a physical address.51 In that situation, one court has observed that “it is impossible to deliver rent to a post office box, as it must be mailed.”52 The third situation occurs when the notice demands payment in a city in a different county than the one in which the rental property is located.53
It would be premature for a landlord to file an eviction complaint until after the compliance date, thereby requiring dismissal.54 If a written lease provides a time for notice to the tenant with the right to cure, then such notice must be provided to the tenant in addition to the statutory notice and included in the eviction complaint to avoid a dismissal.55
Address and Telephone Number
The statute requires in two places that the landlord include an address. In the body of the statute a statement appears that the address of the leased premises, including the county in which it is located, must be stated in the three-day notice. The statutory form also requires inclusion of the landlord’s name, address, and telephone number at the end of the notice.
The courts have held that the statute means what it says.56 If the county of the location of the property is not stated in the notice, the eviction will be dismissed.57 The same is true if the landlord’s telephone number is omitted.58 Also, even if the parties have agreed that the tenant must make payment of rent by direct deposit to the landlord’s bank, the notice must still include the landlord’s physical address.59
If an association has invoked its right to receive payment of rent from its owner’s tenant pursuant to §718.116(11), then the notice will be defective if it requires that the rent be paid to the landlord.60
Service on Tenants
A three-day notice may be mailed or delivered to the tenants and a copy posted on the property, pursuant to the statute.61
Although the statute does not expressly require that the method of delivery be indicated on the notice, at least one court dismissed an eviction action because the method of service was not stated. The court also noted the lack of signature of the landlord on the notice, although a signature is not required by statute.62
All tenants must be identified on the three-day notice.63 During the proper three-day period (as properly calculated) the tenants retain all rights to the property, including receiving their guests on the premises. Thus, as held by one court, when a guest was injured during the three-day period, the guest was not deemed as a trespasser at the time of the injury.64
Attorneys’ Fees and Appeal
Prior to the amendment to the statute giving the right of the landlord to amend the three-day notice and, in turn, the filed complaint, it was common for the courts to award attorneys’ fees to the tenant’s attorney when a dismissal occurred as a result of a defective three-day notice.65 Of course, with the addition of the right of the landlord to amend, such outright dismissals with prejudice should occur with less frequency. Nonetheless, the act will still require an award of attorneys’ fees to the tenant if dismissal becomes final based on a defective three-day notice.66
As to the time to challenge the effectiveness of a three-day notice, it may be that such challenge can occur at any time in the proceeding, including on appeal. As one court noted, “A fatal defect in a three-day notice may be raised by the [d]efendant at any point in the summary proceeding, even on appeal.”67
1 See generally Ardell v. Milner, 166 So. 2d 714 (Fla. 3d DCA 1964).
2 Fla. Stat. Ch. 83, Part II.
3 Fla. Stat. §83.56(3).
4 Fla. Stat. §83.47(1); see also Bell v. Kornblatt, 705 So. 2d 113, n. 2 (Fla. 4th DCA 1998); Coleman v. Cabino Rentals, 9 Fla. L. Weekly Supp. 134a (3d Cir. 2002).
5 Cabino Rentals, 9 Fla. L. Weekly Supp. 134a.
6 Fla. Stat. §83.59; Cabino Rentals, 9 Fla. L. Weekly Supp. 134a.
7 5800 SW 20th Avenue Holdings, LLC v. Walker, 20 Fla. L. Weekly Supp. 1076a (Fla. Alachua County Ct.); Oakridge Apartment Complex, Inc., v. Perry, 13 Fla. Weekly Supp. 839c (Fla. Alachua County Ct. 2006).
8 12 U.S.C. §5220, Protecting Tenants at Foreclosure Act of 2009.
9 Citimortgage, Inc., v. Lutz, 21 Fla. L. Weekly Supp. 403a (7th Cir. 2014).
10 Federal National Mortgage Association v. Jenkins, 21 Fla. L. Weekly Supp. 73b (5th Cir. 2013).
11 5800 SW 20th Avenue Holdings, LLC, 20 Fla. L. Weekly Supp. 1076a.
12 See, e.g. , Investment and Income Realty, Inc., v. Bentley, 480 So. 2d 219 (Fla. 5th DCA 1985); Carballosa v. Arias, 2010 WL 2649911 (11th Cir. 2010); Ruiz v. Thomas, 20 Fla. L. Weekly Supp. 885a (17th Cir. 2013); Cabino Rentals, 9 Fla. L. Weekly Supp. 134a.
13 Fla. Stat. §83.60(2).
14 Id. See Harvey v. Campton Assoc., 22 Fla. L. Weekly Supp. 48a (11th Cir. 2014). See also Frey v. Livecchi, 852 So. 2d 896 (Fla. 4th DCA 2003) (hearing required to determine if defendants are tenants or occupying the property under a contract for sale for which §83.60(2) would not apply).
15 Lehrer v. Cowen, 21 Fla. L. Weekly Supp. 137b (17th Cir. 2013).
16 Premici v. United Growth Properties, L.P., 648 So. 2d 1241 (Fla. 5th DCA 1995).
17 First Hanover v. Vazquez, 848 So. 2d 1188 (Fla. 3d DCA 2003); K.D. Lewis Enterprises Corp., Inc. v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984).
18 Cabino Rentals, 9 Fla. L. Weekly Supp. 134a.
19 Brooks v. Narine, 17 Fla. L. Weekly Supp. 72a (9th Cir. 2009); Copeland v. McCutchen, 20 Fla. L. Weekly 1080a (Fla. Orange County Ct. 2013).
20 Vo v. Hill, 20 Fla. L. Weekly Supp. 1081a (Fla. Orange County Ct. 2013).
21 Marvez v. Candelaria, 22 Fla. L. Weekly Supp. (11th Cir. 2014).
22 See, e.g., Krilich v. Thomas, 973 So. 2d 1244, 1245 (Fla. 4th DCA 2008) (reversing the denial of a second request to amend a complaint, where the Fourth District stated in dicta that “[g]enerally a trial court is within its discretion to dismiss a complaint with prejudice after three opportunities to amend,” quoting Horton v. Freeman, 917 So. 2d 1064, 1066 (Fla. 4th DCA 2006)).
23 Rhoades v. Moorland, 7 Fla. L. Weekly Supp. 67a (Fla. Broward County Ct. 1999).
24 Gallahan v. Mair, 2005 WL 2654291 (Fla. Volusia County Ct. 2005).
25 Prashad v. Graham, 18 Fla. L. Weekly Supp. 205c (Fla. Orange County Ct. 2010).
26 Spano v. Luton, 20 Fla. L. Weekly Supp. 670a (Fla. Orange County Ct. 2013); Ridore v. Stevens, 7 Fla. L. Weekly Supp. 147a (Fla. Broward County Ct. 1999); Calamaro v. Mitchell, 8 Fla. L. Weekly Supp. 467c (Fla. Broward County Ct. 2001).
27 Myers v. Hart, 7 Fla. L. Weekly Supp. 697a (Fla. Broward County Ct. 2000).
28 Fla. Stat. §84.43(6).
29 McCone v. The Grove At Orlando Holdings, Inc. 16 Fla. L. Weekly Supp 802a (9th Cir. 2009).
30 Moskowitz v. Aslam, 575 So. 2d 1367 (Fla. 3d DCA 1991); Brooks, 17 Fla. L. Weekly Supp. 72a.
32 Erickson v. Pealer, 18 Fla. L. Weekly Supp. 601a (Fla. Orange County Ct. 2010).
33 Hodgson v. Jones, 6 Fla. L. Weekly Supp. 758a, n. 5 (17th Cir. 1999); Ruiz, 20 Fla. L. Weekly Supp. 885a; Singh v. Rolle, 19 Fla. L. Weekly Supp. 655a (Fla. Orange County Ct. 2012); Cadet v. Toussaint, 7 Fla. L. Weekly Supp. 66b (Fla. Broward County Ct. 1999); Isidore v. Gordon, 8 Fla. L. Weekly Supp. 208a (Fla. Broward County Ct. 2000) (security deposit); Irvin v. Headley, 10 Fla. L. Weekly Supp. 218a (Fla. Broward County Ct. 2003); Loren v. Baker, 14 Fla. L. Weekly Supp. 783 (Fla. Broward County Ct. 2007) (as to late fees); Personnalite Investments & Business LLC v. Parks, 19 Fla. L. Weekly Supp. 1032a (Fla. Orange County Ct. 2012) (rent increase); Vo, 20 Fla. L. Weekly Supp. 1081a (10 percent penalty); Fyffe v. Parker, 9 Fla. L. Weekly Supp. 800a (Fla. Broward County Ct. 2002).
34 Devine v. Morales, 11 Fla. L. Weekly Supp. 356a (Fla. Broward County Ct. 2004).
35 Russell v. Thompson, 7 Fla. L. Weekly Supp. 554b (Fla. Broward County Ct. 2000); Persaud v. Mortimore, 19 Fla. L. Weekly Supp. 218a (Fla. Orange County Ct. 2011).
36 Hodgson, 6 Fla. L. Weekly Supp. 758a; Persaud, 19 Fla. L. Weekly Supp. 218a.
37 Fla. Stat. §83.56(5)(a).
38 Devine, 11 Fla. L. Weekly Supp. 356a (five or 11 days is ineffective); Oakridge Apartment Complex, Inc., 13 Fla. Weekly Supp. 839c (seven days).
39 Cabino Rentals, 9 Fla. L. Weekly Supp. 134a; Hodgson, 6 Fla. L. Weekly Supp. at n. 4.
40 F la. Stat. §83.56(2).
41 Diaz v. Rodriguez, 19 Fla. L. Weekly Supp. 1075a (Fla. Orange County Ct. 2012).
42 Stanley v. Quest International Investment, Inc., 50 So. 3d 672 (Fla. 4th DCA 2010).
43 Copeland, 20 Fla. L. Weekly 1080a; Personnalite Investments & Business LLC, 19 Fla. L. Weekly Supp. 1032a. If more than one notice is served with different due dates or amounts, such may render the notices as confusing, and, therefore, defective. Gallahan, 2005 WL 2654291; Diaz, 19 Fla. L. Weekly Supp. 1075a.
44 Brooks, 17 Fla. L. Weekly Supp. 72a; Singh, 19 Fla. L. Weekly Supp. 655a; Scott v. Ward, 7 Fla. L. Weekly Supp. 357a (Fla. Broward County Ct. 2000); Persaud, 19 Fla. L. Weekly Supp. 218a; Carcache v. Laguardia, 19 Fla. L. Weekly Supp. 484b (Fla. Palm Beach County Ct. 2011).
45 San Marco Partners, L.C., v. Wright, 5 Fla. L. Weekly Supp. 630b (Fla. Broward County Ct. 1998); Isidore, 8 Fla. L. Weekly Supp. 208a; Lin v. Jackson, 19 Fla. L. Weekly Supp. 847a (Fla. Orange County Ct. 2012).
46 Gonzalez v. Gonzalez, 19 Fla. L. Weekly Supp. 591a (Fla. Miami-Dade County Ct. 2012); Viewmax Corporation v. Brown, 5 Fla. L. Weekly Supp. 629c (Fla. Broward County Ct. 1998).
47 Gonzalez, 19 Fla. L. Weekly Supp. 591a.
48 Lin, 19 Fla. L. Weekly Supp. 847a.
49 Investment and Income Realty, 480 So. 2d 219.
50 Zikra v. Rogers, 21 Fla. L. Weekly Supp. 74a (Fla. Lake County Ct. 2013); Miller v. Doheny, 7 Fla. L. Weekly Supp. 412a (Fla. Broward County Ct. 2000).
51 Awad v. Dreggers, 18 Fla. L. Weekly Supp. 296b (Fla. Orange County Ct. 2010); Rhoades, 7 Fla. L. Weekly Supp. 67a; Pena v. Grinnage, 18 Fla. L. Weekly Supp. 104b (Fla. Broward County Ct. 2010).
52 Rambhacus v. Colon, 18 Fla. L. Weekly Supp. 205b (Fla. Osceola County Ct. 2010); Personnalite Investments & Business LLC, 19 Fla. L. Weekly Supp. 1032a.
53 Zikra, 21 Fla. L. Weekly Supp. 74a.
54 Cabino Rentals, 9 Fla. L. Weekly Supp. 134a.
55 Id.; Hodgson, 6 Fla. L. Weekly Supp. at n. 4.
56 Brooks, 17 Fla. L. Weekly Supp. 72a (dismissal affirmed on appeal when the city and state were omitted from the address of the leased premises).
57 Luise v. Flores, 18 Fla. L. Weekly Supp. 295b (Fla. Volusia County Ct. 2010); Prashad, 18 Fla. L. Weekly Supp. 205c.
58 Belhomme v. Mahan, 11 Fla. L. Weekly Supp. 731c (Fla. Alachua County Ct. 2004); Luise, 18 Fla. L. Weekly Supp. 295b; Prashad, 18 Fla. Law Weekly Supp. 205c.
59 Raro v. Clement, 20 Fla. L. Weekly Supp. 437d (Fla. Polk County Ct. 2012); Myers, 7 Fla. L. Weekly Supp. 697a.
60 Hurley v. Odum, 18 Fla. L. Weekly Supp. 697b (Fla. Orange County Ct. 2011).
61 Investment and Income Realty, Inv., 480 So. 2d 219.
62 Stanley, 50 So. 3d 672.
63 Pena, 18 Fla. L. Weekly Supp. 104b.
64 Brown v. Aswan Villas Apartments Ltd. Partnership, 705 So. 2d 1043 (Fla. 3d DCA 1998).
65 Lampkin v. Bridgnanan, 17 Fla. L. Weekly Supp. 325a (9th Cir. 2010); Gallahan, 2005 WL 2654291.
66 See Coffee v. Boyle, 22 Fla. L. Weekly Supp. 11a (5th Cir. 2014) (for example).
67 Rhoades, 7 Fla. L. Weekly Supp. 67a.
Alan Bryce Grossman is a sole practitioner in Cooper City, practicing in South Florida and around the state for 26 years. His areas of practice include litigation in commercial, property, and probate matters. He is a graduate of the University of Florida and the University of Baltimore School of Law.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Michael J. Gelfand, chair, and Kristen Lynch and David Brittain, editors.