August 31, 2018
Author: Daniel G. Drake, Esq.
Organization: Daniel G. Drake, P.A.
I. 3-DAY NOTICES FOR NON-PAYMENT OF RENT
A. Statutory Basis.
The residential landlord-tenant relationship is addressed in Part II of Chapter 83, Florida Statutes, which is titled the “Florida Residential Landlord and Tenant Act.” Section 83.47, Florida Statutes, states in part that “[a] provision in a rental agreement is void and unenforceable to the extent that it … [p]urports to waive or preclude the rights, remedies, or requirements set forth in this part….” Therefore, any requirement contained in Part II of Chapter 83 that may protect a tenant’s rights generally cannot be waived by a tenant in a lease.
If a tenant fails to pay rent when due under a lease agreement, a 3-Day Notice is required by section 83.56(3), which must be 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)
Compliance with the above statutory notice requirement is a legal “condition precedent” to a residential eviction action. Investment and Income Realty, Inc. v. Bentley, 480 So.2d 219 (Fla. 5th DCA 1985). Because a 3-Day Notice is a statutory requirement, a mistake in the drafting of the notice can result in a landlord having a case dismissed in court and the possibility of having to pay a tenant's attorney's fees if the tenant is represented by counsel. Therefore, it is important to make sure that all notices are filled out accurately and that they are served upon tenants in the manner required by Florida law. Also, because the form of the 3-Day Notice is prescribed by statute, the above form should be closely followed.
It is important to note that prior to 2013, there were several conflicting Florida court decisions regarding whether a tenant had to deposit the overdue rent into the court’s registry per Section 83.60(2) of the Florida Statutes if the tenant raised the defense that the landlord’s 3-Day Notice was defective in some respect (i.e., wrong address, wrong dates, wrong amount owed, etc.). In 2013, Section 83.60(2) was as amended to clarify that issue. Added to that statute was the following bolded and underlined language, which is self-explanatory:
In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, including, but not limited to, the defense of a defective 3-day notice, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent that accrues during the pendency of the proceeding, when due.
Some judges are not yet aware of the statutory change, so the author has often relies on the Florida case titled Stanley v. Quest Intern. Inv., Inc., 50 So.3d 672 (Fla. 4th DCA 2010). In that case, the tenant argued that “a proper three-day notice is a statutory condition precedent to filing an action for removal of a tenant and a defective notice deprives the trial court of jurisdiction to remove the tenant.” Id. The landlord took the position that “the deposit of rent into the court registry is a prerequisite to any defense other than payment,” and that tenant must deposit rent pursuant to Section 83.60(2) to raise the defense of a defective 3-Day Notice. Id. (emphasis added). The Florida Fourth District Court of Appeal agreed with the landlord and held:
We have previously held the notice requirement unnecessary to establish subject matter jurisdiction. Bell v. Kornblatt, 705 So.2d 113, 114 (Fla. 4th DCA 1998). Nevertheless, the tenant suggests that giving the statute its plain meaning offends public policy because the landlord can obtain a default judgment regardless of whether proper notice is given. Despite any emotional appeal of the tenant’s policy argument, it is not our place to disregard plain statutory text. Policy decisions belong to the legislature. Barr v. State, 507 So.2d 175, 176 (Fla. 3d DCA 1987).
As Judge Lee wrote:
The Legislature has provided that failure to post unpaid rent is not merely a waiver; it is an absolute waiver. The landlord is not merely entitled to a judgment; the landlord is entitled to an immediate judgment. The use of such strong language indicates to this Court that the Legislature was comprehensive in its intentions as to the effect of the statute. Quest Int’l Inv., Inc. v. Stanley, 16 Fla. L. Weekly Supp. 586b (Fla. Broward Cty. Ct. Apr. 14, 2009) (alterations in original).
The tenant is required to deposit the disputed rent into the court registry to assert any defense other than payment. The plain language of the statute requires it. The court correctly entered the default judgment.
Stanley v. Quest, 50 So.3d at 673-674. Since Stanley vs. Quest is the only Florida District Court of Appeal case on the subject, it is controlling case law. Of course, the 2013 amendment to Section 83.60(2), mentioned above, is controlling as well. One might say that Stanley v. Quest backs up the clear language of Section 83.60(2), even though that case predates the 2013 amendment to that statute.
Many of the 3-Day Notice forms used today contain language at the bottom indicating how the 3-Day Notice was served, when, and by whom. Such language is provided merely for the landlord’s records and is not required by statute or other Florida law.
(NOTE: Many HUD and other government-sponsored rental assistance programs contain different or additional requirements regarding the content of a notice pertaining to overdue rent. Further discussion of the particular requirements for such programs is beyond the scope of this essay.)
B. Calculation of Rent and What May and May Not be Included.
According to section 83.56(3), the statutory 3-Day Notice should be used for unpaid rent only. The term “rent” is defined in 83.43(6) 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.” Therefore, recurring monthly charges such as late fees, water, sewer, etc. should not be included on a 3-Day Notice unless such charges are specifically delineated as “additional rent” under the applicable lease. See Goldberg v. Cochran and String, 10 Fla. L. Weekly Supp. 65b (Fla. 17th Cir. Ct. 2002) (holding that a 3-Day Notice was fatally defective for including electric, water, and sewer charges that were not designated as additional rent under the lease); Flor v. Mieklak, 10 Fla. L. Weekly Supp. 941a (Fla. 17th Cir. Ct. 2003) (holding that a 3-Day Notice was fatally defective for demanding a “late charge of $50.00” that was not defined as “rent” or “additional rent” in the lease).
C. Calculation of Time Periods.
It is important that the landlord properly calculate the 3-day time period for 3-Day Notices. According to the statutory form of the 3-Day Notice set forth in section 83.56(3), Saturdays, Sundays, and legal holidays must be excluded from the 3 days in which a tenant has to pay his or her rent. The date of service of the 3-Day Notice must also be excluded.
Therefore, if a 3-Day Notice is served on a Monday, the next day (Tuesday) is the first day, Wednesday is the second day, and Thursday is the third and final day. If a 3-Day Notice is served on a Wednesday, then the next day (Thursday) is the first day, Friday is the second day, Saturday and Sunday is excluded, and the following Monday is the third and final day. If a 3- Day Notice is served on a Friday, Saturday, or Sunday, then the landlord does not begin counting days until the following Monday, which is the first day, Tuesday would be the second day, and Wednesday would be the third and final day.
If any one of the three days is a legal holiday, do not count that day. If the third day is a legal holiday, then the tenant's three days does not expire until midnight of the next day that is not a holiday and is also not a Saturday or a Sunday. What constitutes a legal holiday is a matter of state law and, in some instances, a matter of the county or jurisdiction in which a rental unit is located.
Last, 3-Day Notices do not expire until midnight of the last day regardless of the time the landlord’s office closes. Therefore, if a landlord finds a tenant’s rent payment in the office drop box on the morning of the fourth day, the landlord should probably accept the rent unless he or she can prove in court that the tenant did not make the payment by midnight of the previous (third) day.
D. Methods of Service.
Section 83.56(4), Florida Statutes, states that all 3-Day Notices must be provided to tenants by either (i) mailing the notice to the tenant, (ii) personally delivering the notice to the tenant, or (iii) if the tenant is not at home or refuses to answer the door, by leaving the notice at the tenant's rented apartment or home (referred to as “posting” the notice). If the notice is served by posting, it should be affixed in some manner to the door (care should be taken so that the contents of the 3-Day Notice remains confidential), slid under the door, or otherwise delivered in manner calculated for the tenant to receive the notice.
If a 3-Day Notice is served by mail, five days must be added to the calculation of the due date. In other words, mailing a 3-Day Notice is like serving an \"8-day notice.\" Fla. R. Civ. P. 1.090(e); Investment and Income Realty, Inc. vs. Bently, 480 So.2d 219 (Fla. 5th DCA 1985). Since time is of the essence, personal delivery or posting of the 3-Day Notice are the preferred methods so that the three-day time period starts as soon as possible. Further, if the landlord lists a post office box on the 3-Day Notice or if the tenant otherwise must deliver the rent by mail (i.e., the landlord lives out of state), then again five days must be added to the calculation of the due date. Giles v. Brinson, 9 Fla. L. Weekly Supp. 66a (Fla. 17th Cir. Ct. Nov. 16, 2001).
When delivering a 3-Day Notice, the landlord should take an original and one copy of the notice with him or her. The notice should already be completely filled out, except for the method of delivery. The original 3-Day Notice should be handed to the tenant, or, if the tenant is not at home, posted at the tenant's apartment or home. The landlord should then immediately make note on his or her copy of the 3-Day Notice of how, when, and by whom the notice was delivered. If two people delivered the notice, both names should be noted on the landlord’s copy of the notice. The completed 3-Day Notice should then be placed in the tenant's file.
E. Waiver / Accepting Late Rent.
Once a 3-Day Notice has expired and payment has not been made, a landlord’s right to evict a delinquent tenant has \"fully matured\" and the landlord has the right to terminate the tenant's lease and proceed with an eviction action. §83.56(3), Fla. Stat.; Investment and Income Realty, Inc. vs. Bently, 480 So.2d 219 (Fla. 5th DCA 1985).
Prior to a 2013 amendment to Section 83.56(5) of the Florida Statutes, if a landlord planned to file an eviction action after the expiration of a 3-Day Notice, the landlord could not accept any rent from the delinquent tenant under any circumstances because section 83.56(5), Florida Statutes, stated that \"[i]f [a] landlord accepts rent with actual knowledge of a noncompliance by the tenant (i.e., non-payment of rent) … the landlord … waives his or her right to terminate the rental agreement or to bring a civil action\" for the non-payment of rent. Therefore, if a delinquent tenant tenders—and the landlord accepts—rent after the expiration of a 3-Day Notice, the landlord waived his or her right to proceed with the eviction based upon the prior 3-Day Notice. This is true regardless of whether the tenant tenders full or partial rent.
Generally, if a tenant tendered partial payment and the landlord wanted to accept that payment, all the landlord had to do to get around the “waiver” language mentioned above was to issue a new 3-Day Notice for the remaining unpaid amount due. That worked in most of the state; however, some jurisdictions is Florida held that the “waiver” language mentioned above meant that if a landlord accepted partial rent from a tenant, the landlord waived his/her right to evict the tenant for the remaining amount due for that particular month regardless of whether a new 3-Day Notice was served upon the tenant. In the author’s opinion, that interpretation did not serve the best interests of landlords or tenants because it had the effect of causing the landlords to not work with tenants by accepting partial payments, but instead, requiring full payment or suffer the consequences of an eviction.
However, in 2013, Section 83.56(5) was amended to include the following language: However, a landlord does not waive the right to terminate the rental agreement or to bring a civil action for that noncompliance by accepting partial rent for the period. If partial rent is accepted after posting the notice for nonpayment, the landlord must:
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.
So, based upon the above language, landlords throughout Florida can now accept partial rent payments from tenants so long as the follow the above guidelines. It is the author’s opinion that #3, above, is the procedure that should be followed regarding the remaining amount due, but there may be circumstances where #1 or #2 would be appropriate. If the landlord gives the tenant a new 3-Day Notice for the unpaid portion of the rent, he/she cannot move forward with an eviction suit until the new 3-Day Notice expires. See Moskos v. Hand, 247 So.2d 795 (Fla. 4th DCA 1971).
A landlord is never required to accept a partial payment or any payment after the 3-Day Notice expires. If a landlord receives a payment (full or partial) from the tenant after the expiration of a 3-Day Notice and the landlord wishes to proceed with an eviction suit, then the tenant's rent must be returned to the tenant unless the landlord wishes to waive his or her right to file or continue with an eviction suit based the 3-Day Notice that has already been issued. Any return of a tenant’s rent should be done either by two persons or by certified mail so that the return of the check/funds can be proven in court should the need arise.