COMMON NOTICE MISTAKES
Most leases have various clauses designed to protect the manager when he contacts the resident. The clauses allow the manager multiple ways to contact the residents, indicate whom he can contact if there is more than one resident, etc. In any given notice required by Florida law, if the statute dictates the method to contact the resident, the statute is controlling over the lease. Further, since the purpose of some notices is to warn the resident that the failure to comply with the notice will result in the loss of her home, the judges often strictly interpret the statutes. Very little deviation, if any, is permitted. Finally, the court system’s resources –judges, staff, and equipment – are increasingly strained to cope with the growing case loads. The fact that you have successfully filed notices, which your attorney feels are marginal, may mean nothing more than your cases have been hidden in the volume of cases flowing through the system. It is risky to trust your eviction to luck.
Now we turn our attention to missing the obvious on Three Day, Seven Day and Nonrenewal Notices.
All Residents Should be Named
Names – all adult residents should be named. This is obvious, universal, fail-safe advice. Just as obvious is that the resident’s name is both his first and last names, not just his last name, i.e., “Mr. Last Name”. If you want to know who “all the residents” are, check to see who signed the lease. Two bad notices with one resident named on each are not a substitute for one good notice with all the names. Spell the names correctly on the notice.
There are a few counties that permit some notices to name only one resident in multiple resident leases. Some counties require that some notices add a catch-all phrase such as “and all other occupants” to the names, if only one resident is named in multiple resident leases. Before deviating from the safe harbor of naming all residents, you should consult with your eviction attorney. It is foolish for you to guess or base your notices on your experience in another county. Even if one name sufficed in the past in a county, there is the risk that a new judge or visiting judge may decide that strict statutory compliance requires all residents to be named.
Include the Full Address.
Address – include the full address under the resident name(s). The statutes require it. The full street name includes the right directional (north, south, east, west) and the right ending (court, road, lane, etc.). To miss this obvious point is to obtain a judgment and writ, only to find that the deputy will refuse to serve the writ because the address is wrong.
The statute provides that the county should be listed on the notice. While most judges will overlook omitting the county, do you want to be the manager who discovers the hard way that some judges are meticulous and require strict compliance?
Despite the obvious, managers will argue that it is unnecessary to include the complete address, because both the manager and the resident know where the rental is located, because the manager didn’t mail the notice so the address wasn’t needed, because the manager included only the apartment complex name under the resident name and there is only one “XYZ Apartments”, etc. All are fine arguments, but they are legally insufficient.
Date the Day That You Are Serving.
Date – date the notice the day that you are serving the notice. Watch out for the word processing software auto-entering the date. It can be confusing to both you and the resident to have different dates for preparation of the notice and for the delivery of the notice. Worse, since it is the delivery date that begins the time period for compliance, counting from a notice date which is different from the delivery date will often result in an invalid notice.
Include Your Name, Address and Telephone Number
Manager’s or agent’s name, address and telephone number – print these at the end of the body of the notice. Your firm belief that the resident already knows this information is not a good defense to failing to comply with the statute. If the manager’s or agent’s address has changed from the one listed on the lease, follow the notice of new address procedure in the lease. Although it is obvious that the new address is on the notice, there may not be a legally sufficient notification of a change of address.
Complete the Certificate of Service Completely
Certificate of service – complete it correctly and thoroughly. It is not obvious to a judge that the delivery date is a typo. If it’s wrong, it’s wrong. Just because the date is on the top of the notice does not mean the judge will assume that you served it the day it is dated. Your signature on the body of the notice does not substitute for your signature on the certificate. If the date or signature is missing, the notice is flawed.
Altering a Notice
Never alter a notice after you have delivered it, even if it is an obvious typo. If it is later used in an eviction, it is a misrepresentation to the judge that the notice submitted to the court is the same as the one given to the resident.
Three Day Notice Demand Date Counted Correctly
Three Day Notice demand date - the days are correctly counted. Do not include the day of delivery as one of the three days. Did you remember the holidays this month? If you were going to hand deliver the Three Day Notice, but mailed it instead, the demand day is wrong, unless five days were added for mailing. If you printed it out yesterday, but got busy and did not deliver it until today, the expiration date will often be short, making the notice invalid.
Three Day Notice Demand Amount is Only Rent
Three Day Notice demand amount – rent, rent and only rent. The Three Day Notice says “the sum of _____ FOR RENT”, so it’s obvious that you can include only rent and amounts that are defined as additional rent under the written lease. Before you complete the Three Day Notice check the file. Is there some justification to consider late charges, utility charges, pest control charges and anything else included in the Three Day Notice as “additional rent”? If the charge is created under the utility addendum, did the resident sign the addendum? Is it in the file?
This is so obvious that I almost did not include it. Did you add the amounts for the Three Day Notice correctly? Checking your addition will not hurt.
Three Day Notice Late Charges
Three Day Notice late charges – calculate as of the notice date. Assuming that late charges are “additional rent”, they cannot be included unless the rent is late as of the delivery date of the Notice (not as of the expiration date). If there are daily late charges, then calculate them through the delivery date of the Notice (not through the expiration date).
Non-renewal notice – adequate notice of non-renewal is required. If the lease requires X days’ notification to the resident of non-renewal, then “almost X” is not enough. If you mailed the Non-renewal Notice, then you were required to add five days to the notification time. The fact that the resident obviously already knew of the non-renewal does not relieve you of the obligation to comply with the lease and the statutes. If the date is an obvious typo, it is still wrong.
Missing the obvious can hurt you. Do not assume that everybody will know what you mean. Take time to think, and review your notice before you send it. There are enough factors that you cannot control in an eviction. Missing the obvious is something that you can control. Why make the process any harder than it has to be?
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW