by Brian P. Wolk Attorney at Law
As a property manager, it is critical that you carefully follow proper procedures. Why, you ask? First, by failing to give your best efforts, you are telling your management company and your supervisors what you think of them. Even worse, it is telling your supervisors what you think of yourself. It is especially important that the property manager take all necessary steps when dealing with delinquent rent payers, so that the ability to evict these nonpaying residents is preserved. More than likely, if an eviction is unsuccessful, it will be due to sloppiness on the part of the property manager in preparing the Three Day Notice, or accepting rent prior to or during an eviction.
Why the Three Day Notice must be served
Under Section 83.56 of the Florida Statutes, a Three Day Notice must be served to a resident who is delinquent in paying rent before your attorney is able to file an eviction lawsuit. If the resident is late paying the rent, then the resident must receive notice providing three business days to pay the rent or vacate. It is irrelevant how many prior Three Day Notices have been received by the resident. Before you can evict for nonpayment of the rent, the resident must be served with the Three Day Notice, which essentially creates a grace period in which the resident has extra time to become current with the rent obligations. Section 83.56 contains the suggested form to be used.
Consequences if the Three Day Notice is prepared incorrectly
Beyond the fact that Three Day Notice errors may cause embarrassment and increase your accounts receivable balance, these mistakes open up the door for eviction defense attorneys to enter your eviction case and represent the resident you are trying to evict. The Florida Fourth District Court of Appeals in December of 2010 ruled that undisputed rent must be deposited into the court registry in accordance with Section 83.60 (2) of the Florida Statutes before a resident is entitled to an eviction hearing on the merits. The good news for property managers is that all lower courts, including county courts not part of the Fourth District Court of Appeals, are arguably bound to follow the above decision, due to a separate Florida Supreme Court case which sets forth the proper hierarchy for decisional holdings. While most judges strictly follow the language in Section 83.60 (2) of the Florida Statutes and will require the resident to deposit the undisputed rent into the Court Registry, you should not assume that the judge in your case will rule that way. In any event, if the Three Day Notice contains incorrect information or in some other way is flawed, and the undisputed rent is deposited, then you will likely lose the eviction case. Many unseasoned property managers mistakenly believe that residents without money will have no luck in obtaining an attorney. That idea could not be further from the truth. Eviction defense attorneys will represent the resident effectively for free, with the hope that the landlord will be the party paying their bill. This is referred to a contingent fee arrangement. The successful property manager must always keep in mind that under Section 83.48 of the Florida Statutes, the prevailing party in an eviction action is entitled to reasonable attorney’s fees. That amount can be significant.
Proper amount to list as rent on the Three Day Notice
The balance owed listed on the resident’s ledger will not necessarily be the same amount that is listed on the Three Day Notice. This is because only rent or charges defined by the lease as additional rent can be listed on the notice, while other owing amounts may be showing up on the account ledger. Rent is defined under Section 83.43 (6) as the periodic payments due the landlord under a rental agreement and other payments designated as rent in a written rental agreement. The rent amount listed on the notice must be presently owed at the time the notice was prepared. The amount should not contain a breakdown and must be a firm number. The amount cannot expand over time. Most judges will allow you to list utility amounts, bad check charges, washer and dryer fees, pet fees and reasonable late charges if the lease defines those amounts as additional rent. You should check with your eviction attorney to make sure your late charges would pass the scrutiny of judges in your county. Many judges take a dim view if daily late fees or other additional rent charges from prior months are listed on the notice.
The proper way to list the resident’s name
Your first step here is to retrieve the lease from the resident’s file. That should be done so that you can make sure that all lease signers are listed on the notice. The key here is to list all current residents. If management has allowed a lease signer to vacate by way of a written release, then that former resident should not be listed on the notice. If that former resident did not obtain permission from management to vacate, then that resident’s name should be listed on the notice. Also, make sure the name in your computer matches the name on the lease. The correct name must be listed in full, as one letter misspelled could possibly render the Three Day Notice null and void, although recent case law suggests that to raise the defective notice defense, the resident will be required to deposit owing rent into the Court Registry. Minors who did not sign the lease should not be listed on the notice. If you accepted rent from occupants that are not lease signers, then you must consult with your eviction attorney in order to decide if those occupants should be listed on the notice.
The Correct date
This is very simple. It is the actual date that you are serving the resident with the Three Day Notice. Here is where things can get tricky: many property managers use a mail merge program to generate the Three Day Notice and forget to change either the date of the notice or the date of the certificate of service, which is usually listed on the bottom of the notice. In any event, the date of the Three Day Notice must match the date of the certificate of service, or the notice will be defective. Three Day Notices may be served on weekends or holidays, so a weekend or holiday date on the notice is allowed; however, the expiration date should never be a weekend or holiday.
The Proper Address
The address listed on the notice must be the true address where the resident is living. You must always keep in mind that the address should match the official address that the United States Post office has on file. The address on the Three Day Notice should also match the address listed on the lease, and the signage on the apartment home. Keep in mind, even if the process server, clerk of the court and judge do not pick up on the mistake, the sheriff’s department will not be fooled, and they will refuse to execute the writ of possession, which will cause the eviction to be significantly delayed or eventually denied.
Location where the resident pays the rent
The notice must list the physical address where payment by the resident is to be made. The notice must also list the name of the landlord and the landlord’s phone number. If your lease allows you to require that payment be made in certified funds or money orders, and you wish to invoke that during the Three Day Notice period, then some judges require that the notice reflect that form of payment demand.
The Certificate of Service
After you have served the Three Day Notice, you must complete the certificate of service section, usually listed on the bottom of the Three Day Notice. The date on the certificate of service should match the date of the Three Day Notice, which is usually on the top of the notice. The certificate of service should specify how the resident was served. Was the notice posted on the premises, mailed to the resident or hand delivered to the resident? Remember, it is not required that you fill out the certificate of service section on the resident’s copy. The certificate of service should be filled out on the original notice that will remain in the resident’s file. It is recommended that when the property manager is headed over to the resident’s apartment home, the manager should bring the original notice and a copy. The copy is delivered to the resident or posted, and then the property manager immediately fills out the certificate of service on the original and then places it in the file. If many notices are being served, another technique is to bring a pad and write down all those notices which were personally delivered and the identity of the individual actually receiving the notice; when getting back to the office, fill out all the certificate sections on the original notices, noting personal delivery when applicable, with all other notices being posted.
Proper expiration date of the notice
The Three Day Notice expires three business days after the date of service, unless the notice was mailed to the resident. The date of posting along with weekends and legal holidays are excluded. Some holidays are obvious, while others are not. Make sure that you obtain the list of court holidays from your eviction attorney. The expiration time should be extended if there is service by mailing as discussed later in this article.
The manner of service authorized by statute
Section 83.56 of the Florida Statutes authorizes the service of the Three Day Notice by hand delivery to the resident, by posting on the premises in the absence of the resident, and by mail. Confusion will occur if the lease sets forth the manner of service for notices which conflicts with the statute. If the lease requires that all notices be mailed, for example, then the Three Day Notice must be mailed. It may not be posted on the premises or hand delivered to the resident. The terms of the lease will override the statutory options for service of the notice.
Posting the Three Day Notice on the premises
Section 83.56 authorizes the property manager to post the notice on the premises in the absence of the resident. First, you must knock with force or ring the doorbell before posting, as you should honor the possibility that the resident may be home. If the resident is absent, then you should post the notice on the door used for exit and entry by the resident, and place the notice in an unmarked envelope. The notice should be firmly taped to the door. It is not advisable to place the notice inside the door, as that may anger the resident and could leave the landlord vulnerable to claims related to theft if there is an unauthorized entry into the apartment home.
Service by hand delivery
Service by hand delivery to the resident is the best method for serving the Three Day Notice. If the resident is home, then this method of service must be selected. If the door is opened and you are not sure who is standing in front of you, then try to determine that person’s identity. There is no need for the resident to sign anything. The property manager may just hand the notice to the resident. If you believe that the resident may become angry, then in an abundance of caution, you can retain a process server to serve the Three Day Notice. It is very important that the process server serve the Three Day Notice on the day the Three Day Notice is dated, or the notice may be defective. If the resident asserts that the notice was not received, then the process server may be required to testify at an eviction hearing.
Service by hand delivery to a non-resident
The property manager may serve the notice by hand delivery to an occupant who is 15 years or older. If the person who opens the door is just a guest or visitor, then the best approach is to post the Three Day Notice on the premises.
Witnesses are not required
The statute does not require that the property manager have witnesses when serving a Three Day Notice. If you believe that the resident may try to play games and deny that the notice was received, it may be a good idea to have a witness when the notice is served. Most judges are not impressed when a resident claims that the notice was not received if owing rent is not deposited into the Court Registry. However, if all the owing rent is deposited into the Court Registry, whether and how the notice was delivered can become a very important factual determination.
Service by mailing the Three Day Notice
The eviction process becomes even more complicated if the Three Day Notice is mailed. The law requires you to add more days for the resident to pay. Therefore, the expiration date of the Three Day Notice is extended, which delays the whole eviction process. The resident also may end up denying that the notice was received after you have mailed it.
Reasons for mailing a Notice to Pay Rent
Many attorneys who do not have much experience in the area of residential property management law will draft lease requiring that all notices be mailed. That is due to the fact that landlords often prefer that legal notices from residents to the landlord be received by mail. Those same attorneys then insert a reciprocal provision in the lease, requiring the landlord to mail written notices to the resident. Thus, if the lease requires the landlord to serve all legal notices by mail, then that must be done, even though Florida law allows the notice to be served upon the resident or posted on the premises. The apartment manager must review the lease in detail in order to determine if serving a notice to pay rent is required under the lease. The landlord may also decide to mail the Notice to Pay Rent if the property is an excessive distance from where the landlord is located, as the landlord may not wish to drive to the property to serve the notice.
The Three Day Notice can become a Thirteen Day Notice
If the landlord is mailing the Notice to Pay Rent to the resident, then some Florida cases indicate that five business days must be added to both ends of the process: five days for the notice to be delivered to the resident, three business days for the resident to make payment, and five more days for the payment to be mailed back to the landlord. If the address for payment is a local address, some judges would allow the landlord to require payment within eight business days of mailing the Notice to Pay Rent, but the uncertainty in knowing how a particular judge will rule should make the landlord take a conservative, approach, if the notice is originally mailed. However, thirteen business days compared to three business days is a big difference; this significant delay before the commencement of eviction proceedings may result in a bigger accounts receivable balance and monies that may never be collected by the landlord. If the Notice to Pay Rent is hand-delivered or posted, but the address listed for payment on the notice is a P.O. Box, the resident would have eight business days to pay the delinquent rent, excluding holidays and weekends, and the landlord is precluded from evicting the resident until the notice has expired. Some judges have ruled that if the physical address listed for payment is outside the county in which the rental premises are located, five more days must be added to the expiration date of the notice, to allow the tenant to mail the payment to a location deemed to be a significant distance away.
Mailing the Notice to Pay Rent and hand delivering or posting the Notice to Pay Rent
Often, a landlord will wish to make sure the resident actually receives the Three Day Notice, so the landlord will serve the notice using more than one method of service. Unless the landlord is required to do so under federal law or regulations, or less common, under the lease, it is a very bad idea for the landlord to post the Three Day Notice and additionally mail the notice, because massive confusion can be created. The resident may argue that the mailed notice cancels out the posted notice. The resident conceivably would receive the mailed Three Day Notice a few days after receiving the posted or hand delivered notice. A judge may believe that enough confusion has been created so that the resident would not fully understand the true expiration date of the notice, or the judge may simply enforce a later expiration date under the above-described mailing rules, invalidating the hand delivered or posted notice, and potentially denying the eviction in the process.
Partial payment prior to and after notice expiration
The legal concept of waiver will apply if the landlord accepts partial payment of the amount listed on the Three Day Notice. The acceptance of partial payment towards the notice amount will render the Three Day Notice null and void in the view of many judges. The landlord has no obligation to accept the partial payment.
Proper way to return partial payment
If the landlord intends to continue with the eviction process, then partial rent payment should be hand delivered to the resident, or returned via certified mail at once, if hand delivery is not possible. All too often, a property manager will hold the payment and not deposit it, in the hope of obtaining payment in full at some later date. If the property manager holds the payment for too long, the judge may rule that the rent was accepted, even though it was not ultimately deposited, and deny the eviction request in the process. When returning a personal check, the word void should be written over it. If the payment being returned is money orders, then the word void should not be written on them, as it may prevent the resident from being reimbursed from the money order company. If the partial payment is accepted after the expiration of the Three Day Notice, then the same rules apply as accepting partial payment prior to the expiration of the Three Day Notice. In both scenarios the eviction effort is seriously jeopardized once the landlord accepts partial payment. Some judges will rule that undisputed rent still owing needs to be deposited into the Court Registry before the resident can raise the partial payment defense, but the landlord should not count on this type of ruling. Issuing a payment receipt prior to returning money can also seriously jeopardize the eviction effort.
Refusing cash or personal checks prior to the expiration of the Three Day Notice
Payment by cash should be prohibited by your lease, as accepting cash creates unwanted confusion during the eviction process. Assuming your lease prohibits cash as a manner of payment, if the resident attempts to pay with cash and the payment is refused, then extra late fees should not be charged if the resident subsequently pays with certified funds within a day or so, to avoid any potential conflict with Florida law. If your lease does not prohibit late payments by personal check, then you must accept full payment by personal check from the resident prior to the expiration of the Three Day Notice. If your lease gives you the option to determine the manner of payment, then the resident should have prior written warning that personal checks will not be accepted if they have been accepted in the past. If not, then a judge may find that prior acceptance of the personal checks created waiver or modified the terms of the existing lease.
Refusal of rent after expiration of the notice
After the expiration of the Three Day Notice, the landlord may refuse to accept the rent. However, if the eviction attorney has not filed the action in court yet, it may make sense to avoid the conflict and accept the payment as long as it is payment in full. Judges may become leery of your actions if you do not, possibly believing that the eviction is not really even about nonpayment. Also, if your Three Day Notice contains excessive late fees or late fees from prior months, it may then also make sense to accept the payment, since those charges may cause you to lose your eviction action, especially if the resident were to subsequently deposit owing rent into the Court Registry. Apartment communities that allow on-line rent payment must have proper controls, so that those residents who have been served with Three Day Notices are blocked from making payments on-line.
Written contact with the resident after service of the Three Day Notice
Once a Three Day Notice has been served, it is dangerous to post any other written notices, as there is case law which indicates that such communications render a Three Day Notice null and void. Warning letters of an impending eviction, particularly when monetary demands conflicting with the Three Day Notice are made in those letters, have been known to derail evictions.
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