Law Offices of Heist, Weisse, and Wolk, P.A.
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It is inevitable that you will have a chronic late payer. Every excuse in the book is given by the resident for the tardy payment, but the payment always comes, sometimes with the late fees, sometimes without. You may inherit a later payer from a self-managed property or a prior management company. Is a resident always allowed to pay late? Can you evict a late payer? Is there any way to tell a resident to shape up or ship out, or will you be destined to always accept late payments?

Is a Resident Allowed To Pay Late?

The short answer is “yes”. There is nothing in Florida law that allows you to evict residents because they pay late. You can evict a resident if she does not pay at all, but paying late is not prohibited. Regardless of what your lease may provide, if a resident wishes to pay late, she may. There is a built in grace period under Florida law of three days, not including Saturdays, Sundays or legal holidays. If a resident fails to pay the rent according to the due date of your lease, you must serve the resident with a Three Day Notice which gives the resident the opportunity to pay you within that period of three days. This is in essence a “grace period”. Without serving the resident that Three Day Notice, there is nothing you can do to terminate the tenancy for nonpayment of rent. No provision in your lease can override the fact that a resident is entitled by law to receive a Three Day Notice from you, and is allowed by law to pay you the rent if the notice has not yet expired.

We Want To Get The Chronic Late Payer Out!

My usual response to this request is to tell the manager to be glad to have a resident who pays, albeit somewhat late. Times are tough right now, and anything a manager can do to keep a resident is advisable. However, there will be times when the manager does not want the uncertainty of getting the rent late, or is tired of having to serve a Three Day Notice on the resident every single month, and wants the resident out. If the resident pays the rent within the Three Day Notice timeframe, no matter how angry or frustrated the manager is, the resident can stay and pay as long as the notice has not expired. The manager’s only recourse is to non-renew the resident at the end of the lease, or if the lease is currently month to month, non-renew the month to month tenancy.

The Resident Does Not Pay Within The Three Day Notice Period

This is a different story. If the resident does not pay within the Three Day Notice time frame, Florida law allows the manager to terminate the tenancy. This sounds easy enough. The resident is given a Three Day Notice and fails to pay within the time frame allotted. The manager then files an eviction, and the resident is evicted from the premises. It would seem perfectly legal. The resident is chronically late, the manager has had it, the resident does not pay and therefore is evicted. If the resident is in “new territory” by finally failing to pay within the three-day notice period, the manager will have a strong case. However, it is often not that simple. The fact that the resident has paid rent late so many times actually put the resident in better standing in court, if the manager has accepted rent after the expiration date of prior Three Day Notices. The manager could also have problems in court if the Three Day Notice that finally “snares the resident” is delivered earlier in the month than normal.

The Resident Beats An Eviction Because He Has Always Paid Late?

While some judges are extremely strict and will evict a resident if the resident fails to pay within the Three Day Notice period no matter what the resident’s excuse may be or the resident’s past payment history, be it prompt or tardy, if a resident can prove to a judge that he has been paying the rent late, after the expiration of the Three Day Notice, and the manager has been accepting the rent late, the resident may be able to prevail in court. This seems to go against logic. A resident who pays the rent late is certainly not a good resident. That resident has blatantly violated the lease terms and caused extra work and worry for the manager. The issue here is waiver. The manager, by accepting the rent late time and time again has potentially waived his rights to enforce the terms of the lease. By his own actions, the manager has modified the terms of the lease.

What is Waiver?

If you know that a resident has a pet in violation of your no pet policy, but you do absolutely nothing about it for months, you will have possibly “waived” your rights. The same would apply if there were unauthorized occupants in the unit and the manager did nothing. Any noncompliance that the manager ignores or “tolerates” for some time can result in the manager waiving his rights. The exact same waiver can occur with late rent payment. The manager thinks his case is better because the resident looks “bad” in court, but actually it will be the manager who will be at a disadvantage in court.

Can “Waiver” Be Overcome?

If the resident has been chronically late, does this mean you can never evict or must tolerate this late payment forever? Probably not, but you must notify the resident that late payments, although accepted in the past, will not be tolerated in the future, and the resident can be subject to eviction if the payments are not made within the Three Day Notice time period. Essentially it is a “shape up or ship out” type of notification. We recommend this type of notification is done in writing, by regular mail and certified mail, and at least 30 days before the next monthly rent payment is due.

Sample Wording



DATE ________________

TO __________________________
ADDRESS ____________________

Dear Resident:

According to our records, you have not been paying your rent according to the due date which is ________________ (insert date).

While we may have accepted these late payments in the past, this letter shall serve as notification that in the event you do not pay according to the stated due date on your lease, you may be subject to receiving a Statutory Three Day Notice. If the rent is not paid within that notice period, we may opt to refuse your late rent and file for eviction ANY time thereafter. In the event we file an eviction, we may elect not to stop the eviction, or if we decide to do so, you will incur additional attorney’s fees, late fees and costs.

It is imperative that you pay your rent according to the lease terms from this point on.

Please feel free to contact us should you have any questions.

Very truly yours _______________________

Name of apartment community, management company etc.

Will This “Shape Up Or Ship Out” Letter Work?

There is a good chance that this type of letter can overcome a waiver defense by a resident. There is no solid guarantee, but it is better than nothing. Remember that in order for the resident to raise a defense of waiver, the resident first must know that he has this defense, and in most cases must place the rent into the court registry. This minimizes the risk you have, but if you are managing property for others, you will often be inheriting residents with inconsistent and late rent payments.

  • The Curable Noncompliance Examined PART 1