MAILING THE THREE DAY NOTICE

Mailing the Three Day Notice is fraught with problems The resident can deny receipt of the notice, extra days must be added to the expiration date of the notice due to mailing, potentially more days added if payment is to be by mail, and the notice should not be called a Three Day Notice at all, since it will be far more than three days. Since a mailed notice will not be a true Three Day Notice, we will refer to the notice in this article as a “Notice to Pay Rent or Vacate”

Why Mail a Notice?

1. The lease may require it. The lease agreement may actually require that a Notice to Pay Rent or Vacate be mailed. A property manager will often inherit leases from other states or those drafted by attorneys who are unfamiliar with the workings of Florida law. The property manager faced with an unfamiliar lease needs to carefully read the lease to see if there are any clauses pertaining to the mailing of notices. Many attorneys, feeling that mailing is a preferred way of the manager getting notice, draft a reciprocal clause in the lease requiring all parties to give notice by mail. If the lease requires notice by mail, this must be followed, even though Florida law does not require the mailing. While it may seem sensible to require a resident to give the manager notice by mail, unfortunately requiring the manager to do the same is unwise and can result in serious delays.

2. The manager chooses to mail the notice. Managers often choose to mail the Notice to Pay Rent or Vacate if the property is an excessive distance from their home or office. No manager wants to drive a long distance to serve a notice; thus, mailing is often the preferred choice. While we do not recommend it, we know that the realities of a long distance resident, where the manager may not have a local property manager, dictates this method of delivery.

How To Date the Notice to Pay Rent or Vacate if the Notice is Mailed

The expiration date of the Notice to Pay Rent or Vacate is dictated by the date of mailing of the notice and by how the resident is to pay the manager the rent.

Notice is Mailed and Resident is to pay rent by mail: 5 days must be given for mailing time, 5 days must be allowed for the resident to pay rent by mail and 3 business days must be given. The result? The notice has now become a Thirteen Day Notice to Pay Rent or Vacate which gives the resident 13 days excluding Saturdays, Sundays and Legal holidays from the date the manager mails the notice. Since weekends will always fall in the 13 business day period, we must allow at least 3 business days exclusive of the mailing times. As you can see this method of delivery and payment will result in a substantial amount of time for the resident to pay the rent, resulting in a large loss of income for the manager in the event of nonpayment, as no eviction can be filed until the notice expires.

Notice is mailed and Resident is to drop off rent: If the Notice to Pay Rent or Vacate is mailed and the resident is to drop off the rent, the manager must use an Eight Day Notice. 5 days are given for mailing plus the 3 business days as required by Florida Statutes, not including Saturdays, Sundays or legal holidays. Again, mailing a Notice to Pay Rent or Vacate is not the preferred method, as it results in delay.

Mailing AND Posting or Hand delivering the Notice to Pay Rent or Vacate

With the exception of certain properties governed by special federal regulations, a Notice to Pay Rent or Vacate should NEVER be mailed AND posted on the premises or hand delivered, or unless it is (strangely) required by the lease agreement. If the manager posts a Notice to Pay Rent and then mails one, presumably the resident will receive the Notice to Pay Rent by mail between 2 and 5 days after the notice is posted. This causes confusion. In one case you are telling the resident they have a certain number of days not including Saturdays, Sundays or legal holidays to pay the rent, but then the resident receive the notice by mail at a later date, which says the same thing. Which notice applies? The mailed one might not allow enough time, while the posted or hand-delivered one may. This conflict causes confusion and ambiguity. The second notice received may cancel out the first notice, the second notice is possibly short, and the bottom line is that the notice is just legally improper. Never serve a Notice to Pay Rent or Vacate by BOTH mail and posting on the premises or hand delivery. While it may seem logical that this will insure that the resident gets notice, the technicalities will render it invalid.

To Whom Must the Resident Pay Rent?

Typically, a resident pays rent to the same person at the same address throughout the tenancy. The problem arises when this address changes. How is the resident notified that the payment address has changed? Should the resident simply pay to whatever address is listed on the Notice to Pay Rent or Vacate? Due to the increasing numbers of out-of-state managers who are intent on managing their property from afar, situations will arise where the out-of-state manager decides to hire a property manager or designate someone his or her agent for the purposes of collecting delinquent rent. A new address on a Notice to Pay Rent or Vacate is not enough. The manager must notify the resident in writing of an address change or agent change, and often this is not done. Beware of the out-of-state manager who wishes that you “help” them with serving a notice or collecting rent. Proper authorization and direction by the manager is a must.