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3 Day Notice given by person other than the Landlord

In Smith vs. Hunt, the 3 Day Notice was given by a real estate agent and only listed the real estate agent’s name and address.

The court held that the 3 Day Notice was fatally defective because it was not given by the lessor to the tenant. Furthermore, the court held that according to the written rental agreement, the tenant was only obligated to pay rent to the lessor, not the real estate agent.  The court also stated that the real estate agent use of the phrase “indebted to me” in the 3 Day Notice was misleading because it implies that the tenant is indebted to the real estate agent, and not the lessor.  Consequently, the court dismissed the landlord’s complaint for eviction without leave to amend.

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

Demanding Filing Fees in the 3 Day Notice

Under Sec. 83.56(3) of the Florida Statutes, the 3 Day Notice can only demand “rent”.

Accordingly, the court in EMMER, vs. WALKER¹, held that the 3 Day Notice was fatally defective for including filing fees in the amount due. The court reasoned that filing fees are not rent and may not be included in a 3 Day Notice.

¹ RYAN EMMER, Plaintiff, vs. OLIVER WALKER & SHEILA WALKER, Defendants. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-07639.

Jaisen J. Stango, Esq.
Orlando Eviction Attorney

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

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.

Including a demand for late fees in the 3 Day Notice

A common question ask by Landlords is whether they can include “late fees” in the amount demanded from the Tenant in the 3 Day Notice. The answer depends on the terms of the written rental agreement.

Under Florida Law, “Rent” is defined as the periodic amount due for occupancy of the premises AND any other amount due to the Landlord designated as “Rent” under the terms of the written rental agreement.

Accordingly, a Landlord cannot include ‘late fees’ in the 3 Day Notice if the Tenant is occupying the premises under an oral rental agreement. If there is a written rental agreement, the issue is whether the agreement specifically identifies ‘late fees’ as “Rent” due to the Landlord.

Common language used to designate ‘late fees’ as “Rent” in a rental agreement is

If payment is not made by the 3rd of the month, then $100 shall be due as additional rent.

Unfortunately, some of the Landlords that I assist in the eviction process downloaded their lease off of the Internet. The requirement that ‘late fees’ be due as additional “Rent” is a Florida specific law that is unlikely to be found in a lease drafted to conform to the laws of another state. Had the Landlord retained a Landlord / Tenant attorney to draft the rental agreement, the Landlord could have included the ‘late fee’ in the the amount demanded from the Tenant in the 3 Day Notice.

If you have any questions about what can be included in the 3 Day Notice or would like a rental agreement drafted for your investment property, please call my office at (407) 835-8688 for more information.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

“Legal Holidays” for calculating 3-day period

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

Sample Florida 3 Day Notice to Pay Rent or Vacate the Premises

Sample “3-Day Notice” form to be used in a Florida Residential Tenant Eviction


(Date)

(Tenant’s Name)

(Tenant’s Address)

3-DAY NOTICE FOR NONPAYMENT OF RENT

You are hereby notified that you are indebted to me in the sum of ( _____ ) dollars for the rent and use of the premises located at (address of leased premises, including county), Florida (zip), now occupied by you. That rent was due on (date the rent was due) and 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)

(Landlord’s Address)

(Landlord’s Phone Number)

CERTIFICATE OF SERVICE

I certify that a true copy of this notice has been furnished to the above-named tenant on __________, at ________  a.m. / p.m. by:

  1. [ ] Delivery
  2. [ ] Posting in a conspicuous place on the premises

(Issuer’s Signature)

(Issuer’s Name)

(Issuer’s Address)


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.
Orlando Eviction Attorney