Law Offices of Heist, Weisse, and Wolk, P.A.
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You have not received rent for the month, go out to the property to serve your Three Day Notice, and the next door neighbor informs you that the resident is in county jail. The property is full of belongings, and the resident’s car is parked in the driveway. Can you evict? Should you post the Three Day Notice on the door? Do you want your resident to come out of jail and find he has been evicted and everything he owns is gone? This situation will occur if you manage property long enough and you need to know how to deal with it properly to avoid liability and/or a serious dispute.


Where Is the Resident?


You may or may not know if in fact the resident is incarcerated. If you were lucky enough to have your property on the news the night before when they did the grow house bust at your rental home, you can be fairly sure that the resident is in the county jail. In other situations, you were simply told the resident was in jail by a neighbor or someone you may have contacted on your emergency number list. To confirm the resident is in jail, you need to call the county jail system and ask for inmate information. This is public record in most cases, and you will be able to find out if the resident is in jail and where, as some counties have more than one location for their jails. If you are unsuccessful, look up the arrest report from the sheriff’s department website and give them a call if necessary.


Do You Need to Locate the Resident?


There is nothing in Florida law that provides you must hunt down a resident in order to serve a Three Day Notice. The law states that you can serve the resident in person or post the notice on the premises in the resident’s absence. In an incarceration situation, clearly the resident is absent; therefore, you could legally post the notice on the door and thus satisfy the requirements of Florida law as far as notice goes. The question then is, “should you locate the resident?” We feel that you should make an attempt.


Why Bother Locating the Resident?


If you post a Three day Notice on the door of the home, you will eventually file an eviction, and at the end of the eviction, you will remove all the resident‘s personal belongings to the street, where the neighbors and passerbys will rummage through everything and take anything of value. Personal items will be taken as well, some with sentimental value. Your resident may get out of jail only to find out that his key no longer works in the door. Your resident then contacts you, only to find out that he has been evicted and everything he owns is now gone. What can happen? The resident can go ballistic and cause you great harm, or decide to destroy or damage your property or the home. A surprised, evicted resident is an extremely dangerous and volatile person. While you may have done everything according to the law, this will not matter with the recently released resident.


You Have Tried to Locate the Resident But Cannot


At this point you need to jump into action, review the file, and begin calling your emergency numbers, contact numbers and employers. Do not give any information, other than you are the manager and just need to contact the resident. Do not tell anyone you know or heard the resident is in jail. Simply work hard to track the resident’s information down. If you cannot locate the resident or get any information that will help you, serve your notice to the property; knock first, and if there is no response, serve the Three Day Notice by posting on the premises. If you do not receive the rent, file an eviction as you would with any other resident.


You Locate the Resident


Now that you have located the resident and know what jail he is in, you can serve your Three Day Notice to him in jail or have a process server do this. Better yet, you can possibly avoid an eviction altogether! Many incarcerated residents do not want to deal with an eviction and would just rather surrender possession to you, if they feel they will be incarcerated for some time. If you are able to call the resident in jail or have the resident call you collect, the resident may tell you to give access to a friend or relative. While this is great, you must get something in writing from the resident under which he is giving possession to you, who is allowed access to the unit, and when you will have possession. We recommend getting the following form signed by the resident while he is in jail. You must be sure that the resident did in fact sign the form, and make sure that no other people are living in the rental unit. You can often make an appointment with the jail’s social worker and visit the resident directly in jail.




I _________________ hereby agree that I have completely vacated the premises located at___________________________________________. 


I agree that any personal property that is left behind in the unit or on the premises may be disposed of by Management and/or Owner without notice, and I agree to hold Management, the owners of the premises and any agents or employees harmless for such disposal of personal property.


I agree that this document and my vacating shall have no effect upon any financial obligations under the lease or Florida law unless otherwise agreed to in writing by Management. I agree that my Notice of Intention to Impose Claim on Security Deposit if any shall be sent to the address of my former unit, and I am responsible for putting a forwarding order in with the US Postal Service.




Can You Take Possession of the Unit by “Abandonment”?


Under Florida law, there is a presumption that a unit is considered “abandoned” if it is vacant for one half of the payment period (usually this is 15 days on a monthly payment period), the rent is unpaid, and, the resident has not given you anything in writing telling you that he would be back at some later time. While it may appear that an incommunicado, incarcerated resident would qualify as having abandoned the unit, we do not recommend that you take this route. If you are unable to get possession from the resident in writing by the above form or through an eviction, taking the “abandonment” route is just too dangerous.



It is not every day that you must deal with an incarcerated resident. While this is a good thing, it underscores that you most likely do not have much experience in handling such a situation. In these odd types of situations, we always recommend that you call your attorney for advice before you take any action. There is just no reason to go it alone.


  • The Curable Noncompliance Examined PART 1