In 901 Pompano LLC vs. Person¹ the landlord was a corporation and filed the eviction without being represented by an attorney.

The court dismissed the landlord’s complaint without leave to amend because the complaint was filed by an employee of the corporation. The court reasoned that the corporation, as a fictitious entity, cannot represent itself in an eviction. The court held that corporations must be represented by legal counsel in eviction actions.

¹ 901 Pompano LLC vs. Person, 16 Fla. L. Weekly Supp. 268a (Fla. 17th Cty. Ct. Dec. 9, 2008).

In SMITH vs. HUNT¹, the complaint failed to include the lessor / co-owner of the property as a plaintiff. The complaint appears to have only included one owner of the property, however the owner that was included in the complaint was not listed in the rental agreement.

The court held that the complaint should be dismissed because it failed to state in indispensable party, specifically the lessor as listed in the rental agreement.

¹ SHARON SMITH, Plaintiff, vs. VERONICA HUNT, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-02057.

In 901 POMPANO, LLC, vs. PERSON¹, the Landlord was a corporation. The court dismissed the complaint because the Landlord was not represented by an attorney. The court held that a corporation may not proceed “pro se” (that is without an attorney) in an eviction. Consequently, because corporations may not prosecute an eviction except through legal counsel, the court granted the Tenant’s motion to dismiss.

¹ 901 POMPANO, LLC, Plaintiff, vs. BRENDA PERSON, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-08891.

Jaisen J. Stango, Esq.
Commercial Evictions Attorney

Under Sec. 83.56(3) of the Florida Statutes, the 3 Day Notice must contain the address where the rent can be paid.

However, the court in 901 POMPANO, LLC, vs. PERSON¹, held that the 3 Day Notice was fatally defective because is listed the place for payment of the rent as being in a different county than the rental property,  yet it did not include an additional 5 days in the notice for the Tenant to mail the rent payment.

¹ 901 POMPANO, LLC, Plaintiff, vs. BRENDA PERSON, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-08891.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

Question: How many days late does the rent have to be before a Landlord can issue a 3-Day Notice ?

Answer: A 3-Day Notice can be issued 1 day after the “due date.”

Explaination: Most Landlords and Tenants mistakenly believe that the Landlord must wait until the “grace period” regarding the application of late fees is over before they can issue a 3-Day Notice. Fortunately, this is not the case.  Landlords must first read the Rental Agreement.  So long as rent is “due” on the first of the month under the terms of the Rental Agreement, the Landlord can issue a 3-Day Notice on the 2nd of the month, even though rent is not “late” until the 5th of the month (i.e., “late fees” are not imposed until the 5th of the month).

Commentary: In my opinion, this problem is a result of the bad drafting of the rental agreement.  For reasons unknown, drafters of rental agreements typically include a 3 or 5 day “grace period” before “late fees” are applied.  It is most likely that these drafters never owned a piece of rental property.  In my experience as a Landlord, if you give Tenants until the 5th of the month before “late fees” become due, they usually will not pay until the 5th of the month.   In addition to giving the Tenant 4 days of free rent (should you have to eventualy file an eviction), this creates confusion between Landlords and Tenants.  Some Tenants sincerely believe that the Landlord can not issue a 3-Day Notice until the rent is “late” (i.e., paid after the 3rd or 5th on the month depending on the Rental Agreement).  Consequently, these Tenants will not promptly respond to a 3-Day Notice issued on the 2nd of the month.

Remedial Action: I counsel my clients to not allow any “grace period” before “late fees” become due and payable to the Landlord as additional rent.  In other words, rent should be “due” on the 1st and “late” on the 2nd.

A fatal error that I see many Landlords make in drafting the 3-Day Notice is in calculating the 3-day period in which the Tenant in residential property has to pay rent or vacate the premises before the Landlord can legally file an eviction action.

A common oversight is the omission of “legal holidays” in determining the 3-day period. Landlords should check with the Clerk of the Court in the county in which the investment property is located for a list of the legal holidays observed by the Court sitting in that jurisdiction.

The drafting of 3-Day Notices can be done by Landlords without the assistance of legal counsel, however it is advisable that Landlords seek the advice of a Landlord / Tenant Attorney before issuing the notice.

If you have any questions about drafting a 3-Day Notice for your Florida rental property, please call my law office at (407) 835-8688. I offer free 3-Day Notices for Landlords with investment property in Orange & Osceola Counties.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney