PREPARING THE THREE DAY NOTICE

Many Three Day Notices are prepared improperly or incorrectly by the residential property manager. While seemingly simple and straightforward, there are many pitfalls along the way which can result in a notice being technically defective. Most if not all of the mistakes made in the preparation of the Three Day Notice are completely avoidable and unnecessary, but it takes some knowledge of the Three Day Notice and a respect for the legal importance in doing it right.

WHY IS A THREE DAY NOTICE NECESSARY?

Florida law states that a manager must serve a Three Day Notice when a resident is late with the rent, giving that resident three business days to pay the rent or vacate. Many managers have trouble accepting that a resident has the right to be given this notice when the resident is delinquent, often each month. Why can’t the manager just evict the resident if the resident fails to pay on time? The manager can, but only after allowing the resident a legal “grace period” of three business days after the date that the rent is due, according to the terms of the lease agreement. No matter how many times the resident has been late, the manager cannot attempt to terminate the tenancy if a valid lease is in place without first serving the Three Day Notice, waiting for payment, and then not receiving the payment within the three business day time period as the notice allows.

SUPPOSE A THREE DAY NOTICE IS PREPARED INCORRECTLY?

If the Three Day Notice is prepared incorrectly, and the manager files the eviction based upon the incorrect notice, there is a high probability that the eviction will be successful if the judge fails to look carefully at the notice, the resident fails to bring this up to the judge if the resident files an answer with the court, or the resident fails to hire an attorney who will most certainly bring this up to the court. Why take any chances? More and more residents are hiring attorneys, and many attorneys are targeting residents as potential clients and actually soliciting their business. A proper Three Day Notice is what is called a “jurisdictional requirement”, which means that the court does not have the jurisdiction or “power” to grant the manager a Final Judgment of Eviction if particular aspects of the Three Day Notice are incorrect. A properly prepared notice is a prerequisite to the filing of the eviction action. If the notice is prepared incorrectly, many courts, if it is brought to their attention, will dismiss the eviction action, causing the case to be considered dead and requiring the manager to start over again from scratch. Worse yet, if the resident hires an attorney, there is a high chance that the manager will be required to pay the resident’s attorney’s fees and costs. These amounts could easily exceed $1000.00 and often do. The key is to simply prepare the notice correctly.

THE MECHANICS OF THE NOTICE

FORM – The suggested form of the Three Day Notice is found in Florida Statutes, and a proper form can be found in this legal guide. Many managers get notices out of “do it yourself manager” books, which are general notices that do not substantially comply with the requirements of Florida Law. There are a number of computer programs that also provide Three Day Notice that are not in compliance. Some are called “Notice to Vacate”, “Notice to Quit”, “Notice to Pay and Vacate”, “Eviction Pending Warning” or some other variation. These notices should never be used. The first step is to be using the proper form of the Three Day Notice, and avoid writing any extraneous notes or messages anywhere on the notice.

ADDRESSING THE NOTICE-- The Three Day Notice should be addressed to all adult residents who are lease signers and any other adult occupants from whom you may have accepted rent. Full names should be used, and these names need to carefully match the spelling and form as the names appear on the lease agreement. If the spelling on the lease is incorrect or incomplete, make sure the Three Day Notice names reflect both the correct spelling and the spelling as it appears on the lease. For example, if the lease says John Smith and you are aware that the correct spelling is John Smythe, on the notice you would write John Smith a/k/a John Smythe. You should never give a judge a reason to question your notice. Too much information here is better than too little. Saying Mr. and Mrs. is also incorrect and unnecessary. The address listed on the notice must be the exact address where the resident resides. If the unit is the “left” side or the “upstairs” unit, this must be clear on the notice. Many apartment communities have internal codes that the computer prints out, and these should not appear in the address. If the address is Apartment 105 in Building 3, this needs to be spelled out. Simply saying 3-105 just might cause confusion and should not be done. Additionally, the exact street address of the unit must be in the address section, even if the apartment community or condo has one address, one street and only the unit or building numbers are different.

DATING THE NOTICE-- If you are hand delivering or posting the Three Day Notice on the premises, the notice needs to be dated on the date that it is served, and the expiration date of the notice must be no less than 3 business days in the future, not including Saturdays, Sundays or legal holidays. A notice can be served on a Friday, Saturday or Sunday and would still expire on the following Wednesday, as you never count the day of service of the notice, and assuming that Monday, Tuesday or Wednesday are not legal holidays. Always be sure that you know what the holidays are, as this is a huge source of incorrect notices. We strongly recommend against mailing a Three Day Notice, as there are dating and expiration considerations which can result in the notice being far longer than three business days. If you are going to mail a notice, please call your attorney first, as there are other technical requirements.

WHAT CAN YOU DEMAND ON THE THREE DAY NOTICE? -- RENT ONLY!! We cannot stress this more. The law only allows you to put rent on a Three day Notice and absolutely nothing else. What is rent? Rent is defined in Florida law FS 83.43(6) as “the periodic payments due the manager from the resident for occupancy under a rental agreement and any other payments due the manager from the resident as may be designated as rent in a written rental agreement”. This means rent is the usual monthly base rental payment, periodic items such as a washer and dryer fee if defined as additional rent, and other items which your lease deems to be additional rent, such as late charges, bad check charges, utility charges and any other charged deemed as “additional rent” in the lease. A word of warning here is necessary though; even if your lease defines these items as “additional rent”, a minority of judges still will not permit you to put anything other than the normal monthly recurring rent on the Three Day Notice. You always need to confirm with your attorney to see if a particular judge is doing this. We recommend that if you are putting late charges on your notice, and the lease properly defines late charges as “additional rent”, you write the amount out as follows: “November rent of $650.00 plus $25.00 late charge as additional rent, TOTAL $675.00”. Your lease may have per diem or daily late charges that accrue as the rent becomes more delinquent. We strongly urge that you NEVER say “plus $5.00 per day” on your notice, as it causes the notice to be confusing and ambiguous. The resident should be able to look at the notice and know exactly what is owed without having to do any math. If you feel the absolute need to try to demand anything else other than rent on a Three Day Notice, or have excessive accumulated late charges that you are trying to collect, you can go ahead and serve anything you want but it is risky. Just remember that is you intend to follow through with an eviction, you will have to serve a new Three Day Notice before any ethical and self respecting attorney will use your notice to file an eviction action.

WHERE DOES THE RESIDENT PAY THE RENT? -- Some managers like to have a post office address where the rent is to be paid. We strongly recommend against this, since if you allow a resident to pay by mail, the resident has five additional days to pay, mail gets lost, and all kinds of problems arise. You should have the resident pay at the office, and if you have a drop box or mail slot, be aware that many cases have been lost due to residents claiming that they have dropped the mail after hours and then blame you for the missing money.

FILLING OUT THE CERTIFICATE OF SERVICE-- Once you have prepared the notice carefully and used the Three Day Notice Checklist, you have thoroughly understood how to serve the notice and you have properly served the Three Day Notice, it is crucial that you fill out the Certificate of Service at the bottom of the notice stating how you served the notice, and if personally served, to whom the notice was served. The date on the Certificate of Service must correspond to the date at the top of the notice and should not be confused with the expiration date on the Three Day Notice that is within the body of the notice.

CAN YOU REFUSE CASH OR PERSONAL CHECKS? -- We urge all our clients to never accept cash. In order to successfully refuse cash, it is imperative that your lease states this rule, and that you stick by it. Accepting cash just one time can nullify your rule. If a resident comes in on the last day of the Three Day Notice with cash and you refuse it, demanding a cashier’s check or money order, we do not recommend charging any additional late charges to the resident for the day it may take to comply with your request, thus avoiding a potential conflict with the lease terms and Florida law. Often a manager will not want to accept a personal check on late rent or from a resident who has bounced a check in the past. Clearly, if your lease allows you to refuse a personal check at any time or for late rent, you are permitted to do this. It is crucial that you examine your lease and make sure that it gives you the latitude to refuse a personal check at any time. Again though, if you have accepted personal checks when the rent was late or after the resident had bounced a check, you may have a problem, as the courts consider this act of yours as creating a waiver or a modification of the terms of your lease.

THE RESIDENT OFFERS TO PAY THE RENT, NOW WHAT? If the resident attempts to pay the full rent as properly demanded prior to the expiration of the Three Day Notice, the manager must accept the rent. Often the manager is fed up with the resident not paying on time, tired of giving Three Day Notices or really wants the resident out for some other non-rent related reason. The manager must accept the rent. Failure to accept the rent and then attempting to file an eviction action will result in an unsuccessful eviction if the resident fights the case and especially if the resident deposits the rent into the court registry and receives a trial in court. Occasionally the resident will attempt to pay partial rent to the manager. The manager is permitted to take the rent that the resident offers, but should then immediately serve the resident a new Three Day notice with the balance owed. Continually accepting partial rent can establish a pattern and a potential waiver which could make it more difficult to evict the resident at a future time. If the resident attempts to pay the rent without the late charges, and your lease permits you to apply payments made to outstanding balances such as late charges first, a rent balance will remain for which you can serve a Three Day Notice. It is imperative that the resident knows exactly how you applied the payment so there is no confusion, with the resident thinking that the rent has been completely paid, rather than some of the payment having been allocated to late charges. If the resident attempts to pay the rent shortly after the Three Day Notice has expired but before you have filed an eviction, should you accept the rent? We say “YES” emphatically. The name of the game is rent collecting. Judges will question your motives as to why you did not accept the rent, and if the reason was non-rent related, you stand a higher chance of losing the eviction action.

SUPPOSE YOU ARE HOLDING A LAST MONTH’S RENT AND IT IS THE LAST MONTH OF THE LEASE? -- If you are holding a last month’s rent, you have no intention of renewing the tenancy, and it is the beginning of the last month of the lease, you would not want to prepare a Three Day Notice. If the resident paid, this would imply that you are extending the lease for another month and/or creating a month-to-month tenancy. If it is the last month of the lease, and you are not intending to renew or allow the resident to remain as a month-to-month resident, send the resident a Notice of Non-Renewal with a note stating that you are applying the last month’s rent at that time.

REFUSING AND/OR RETURNING THE RENT -- If the Three Day Notice has expired, and after careful consideration of the potential consequences, preferably after discussing this with your attorney, you decide that you are going to refuse the rent, we recommend that you have a witness with you. If the resident has paid the rent after the Three Day Notice has expired by giving it to a staff member or leaving it in a drop box, you must return the rent immediately to the resident, or it will be deemed accepted by you by the court. We recommend that you personally deliver the rent back to the resident, or in the resident’s absence, place a note on the door to the resident stating that the rent will not be accepted and notifying the resident that the rent is immediately being mailed back to him or her. Do your mailing by certified mail. While you can write “void” on a check, never take a money order and write “void” across the front, as this can create a serious problem for the resident attempting to cash this money order. Never place a money order or check in an envelope and tape it to the resident’s door. If you have accidentally deposited a resident’s funds, it is better to consider that you have accepted the rent money. You never want to deposit a resident’s check and then write a check from your account back to the resident, as the resident can stop payment on the check he gave you, and now you just paid the resident for giving you a bad check. THE THREE DAY NOTICE EXPIRED AND THE RESIDENT IS ASKING FOR A FEW DAYS TO MOVE-- If this occurs, we recommend that you get the resident to sign an AGREEMENT TO VACATE. This will memorialize the date that the resident is leaving, and if you end up having to file an eviction, the resident will be less apt to succeed in defending on a money issue, as the resident has signed an AGREEMENT TO VACATE for a date certain and has failed to vacate.