POST THREE DAY NOTICE COMMUNICATIONS

A common practice among managers is to serve the Three-Day Notice, and if no payment has been made, serve the resident with an additional notice or letter to induce payment. This notice or letter is usually entitled “Final Warning”, “Eviction Notice”, “24 Hour Notice” or some kind of variation on this theme. The purpose obviously is to give the resident a final chance at paying the rent to avoid the necessity of an eviction filing by the property manager. Does it work? Yes, often the “post” Three-Day Notice letter or notice is highly effective, especially when a resident has received one before and has paid after the expiration of the Three-Day Notice. The problem is that the notice can cause serious problems with the procedure and prerequisites of filing an eviction action.

The Sacred Three-Day Notice

The Three-Day Notice is a condition precedent and jurisdictionally required notice which must be given in a non-payment of rent situation in order for the manager to proceed to filing an eviction action. It is a very specific notice, clearly spelled out in Florida Statutes, must be of a certain form, with specific rent items only allowed, and it must be prepared and served properly in order for it to be a valid Three-Day Notice. If there are any defects in the Three-Day Notice, it is quite possible that the eviction action will be dismissed, resulting in a further loss of rent by the manager, delays and potential liability for paying the resident’s attorneys fees.

The Effect the “Post” Three-Day Notice Communication Has on the Three-Day Notice

If a manager gives the resident any type of “post” Three-Day Notice letter or notice regarding the payment of rent or a last chance to pay, some case law has shown that the original Three-Day Notice is nullified or made void by the later notice or letter. While this doesn’t seem to make practical sense, the reasoning lies in the fact that Florida Statutes alone provides for and requires a specific notice prior to an eviction action. Any notices given after the Three-Day Notice can confuse the resident, and since not Florida Statute provided, will be made up by the manager and could create confusion on the part of the resident.

Should We Discontinue Using the “Post” Three-Day Notice Letter or Notice?

Our recommendation is that you cease using any notice after the service of the Three-Day Notice. As more and more cases are being contested at a higher rate, with more sophisticated and knowledgeable residents and attorneys, it is not advisable to do anything that can jeopardize the eviction action. If you have been using the “post” Three-Day Notice letter or notice in the past, a problem is created for future cases, as the resident who has received such a notice or letter before will be expecting this notice before you file an eviction. This detrimental reliance by the resident on your “post” Three-Day Notice letter or notice can actually now provide the resident with a defense when you did not use the notice or letter!

Practical Considerations

If you have been using a “post” Three-Day Notice letter or notice in the past, we recommend that you immediately cease this practice. It will be important though to notify the residents of this change in policy or procedure. You may want to use language such as the following:

Dear Resident,

In the past, our company has been sending out a “Last Chance Letter”, “24 hour Notice”, (insert name of your notice) after the expiration of the Three-Day Notice giving the residents a final chance to pay rent to avoid eviction.

From this point on, we will only be serving a Three-Day Notice as required by law. Any rent tendered after the expiration of the Three-Day Notice may be refused by us, and eviction proceedings may be commenced. 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 giving you three business days to pay the rent. No further notice or letter will be given.

Can We Continue Using the “Notice” or “Letter”?

Many managers will opt to continue using a “post” Three-Day Notice letter or notice, as it is without a doubt very effective in getting the resident to pay the rent. It is quite possible that the risks in giving the letter or notice are outweighed by the benefit of reducing evictions and receiving the rent. Each manager must decide the route to take. All we can say is, “You have been warned.”