 Evictions of non-residential tenants for non-payment of rent commences with the serving of a Three Day Notice required by statute (Section 83.20(2)). The Three Day Notice is a legal prerequisite for an eviction suit, consequently, if improperly drafted or served, will form the basis for the dismissal of the eviction suit, sometimes as late as at the end of the trial. If the Three Day Notice is found to be invalidly drafted or served, a new Three Day Notice is required.
Although the Three Day Notice has been hotly litigated by tenants who seek to delay the tenant's eviction, preparing and serving a proper Notice is not difficult. Here are the rules to follow:
- The statutory Three Day Notice can only be given after the curative period or grace period and notice, if any, required by the lease has been served, and the time for cure has elapsed. The default notice required by the lease, if any, must be served pursuant to the "notice" provision of the lease. The statutory Three Day Notice should be hand delivered, irrespective of the notice language in the lease unless the notice provision specifically provides for service of the statutory Three Day Notice.
- Use the same form as provided in the statute for residential tenants. Some trial judges have ruled that if the Notice does not exactly compare to the residential Three Day Notice, the Notice is defective. This is the case even though the residential statute only requires that the Notice "substantially" comport to the statutory example.
- Address the Notice to the tenant or tenants named in the lease, and any other occupant in possession from whom you have accepted rent in the past. Use the complete formal legal name of the tenant or other occupant. Serve a separate copy of the Notice on each such party. Do not use trade names alone, as trade names are not legal entities. Use the complete address of the demised premises, such as "Suite 101".
- You do not have to compute the "third day" if you modify the Notice form to eliminate the actual date, but if you do compute it, you must compute it correctly. In counting the "three days", exclude the date of hand delivery, weekends and legal holidays. Legal holidays must be reviewed in each case as days such as Pascua Florida Day, April 2nd of each year, must be excluded.
- Only a demand for "rent" can be included in the Notice. The lease can define late charges, impounds, pass-throughs or any other monetary payments due from the tenant to the landlord as "rent" and then these sums may be included in the demand. If the lease does not deem such amounts as "rent", then such charges may not be demanded in the Notice.
- In the Notice, cash can be demanded. Whether cashier's checks can be demanded has not yet been decided. I would not recommend demanding a cashier's check, even if the first check was dishonored, unless the lease gives the landlord the right to do so.
- Do not include any other language in the Notice than is set forth in the form suggested. Use a separate letter to make other demands or to communicate with the tenant.
- Serve the Three Day Notice by hand delivery, even if the lease requires Notices to be served in another manner. If you are able to talk to someone at the premises, ask them for the person in charge. Hand the Notice to the tenant or the person in charge. If you are unable to do this, hand the Notice to anyone employed at the premises. If possible, note the person's name and the time of service on your copy for future reference. Post (tape) the Notice on the front door if no one is present to receive it. Do not mail the Notice (even if the lease provides how notices should be delivered, as such provisions to not generally apply to the statutory Three Day Notice), unless you add five days to the three days (again excluding Saturdays, Sundays and legal holidays). Do not hand deliver the Notice and mail it at the same time unless you provide in a cover letter that the mailed Notice is not the operative Notice but merely a courtesy copy. Otherwise, the mailed Notice will be inconsistent with the hand delivered Notice and may void the hand delivered Notice altogether.
- You may accept a partial rent payment but you must then give a new Three Day Notice for the balance.
- If your lease does not give you the right to demand a cashier's check during the three day curative period, take the tenant's check to the tenant's bank and exchange it for a cashier's check made payable to the same payee. You will not have to wait for it to clear. If the check is not honored, you should get a bank officer to note it on the reverse side of the check or on letterhead, as branch banks no longer stamp checks "NSF" if you present the check at the window. The bank officer merely has to note that the check is not being honored at the time of presentment.
- You may not give the tenant any Notices or demands if the tenant has filed bankruptcy, unless and until the automatic stay is lifted.
- Always give a Three Day Notice if the tenant is delinquent in rent, even if the tenant seems to have abandoned the demised premises. Unless the tenant surrenders the premises by some act such as giving over the keys, the fact that the tenant no longer seems to be occupying the premises may not be enough to justify changing the locks. Florida Statutes establishes a presumption that the premises may be deemed abandoned, in the absence of actual knowledge to the contrary, if (a) the tenant has not been at the premises for thirty consecutive days; and (b) the rent is not current; and (c) ten days have elapsed since the serving of the Three Day Notice.
- Do not give a Three Day Notice if you are not seeking the payment of rent. For example, if the tenant is holding over beyond the term, the Three Day Notice invites the payment of rent and hence the establishment of a new month-to-month tenancy. On the first day of the holdover month, file the eviction. No prior Notice is necessary.
- One Three Day Notice is a sufficient legal prerequisite to an eviction action even though subsequent rent payments have come due since the giving of the first Notice and the filing of the eviction suit. However, if rent is accepted or a check is held and not promptly returned to the Tenant, which may be tantamount to acceptance, a new Three Day Notice for the balance due must be given before filing suit.
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