SERVING NOTICES AND WITNESSES
Thousands of Three Day Notices, Seven Day Notices and Notices of Nonrenewal are served each week by managers. Most are served by posting on the premises or hand delivered to the resident if the resident is present. While most residents comply, there are many times when the manager files an eviction and the resident denies receiving the notice. Most likely an agent for the manager served the notice by himself or herself with no witnesses, so the judge will have to decide who to believe if this is brought up as a defense to the eviction. While witnesses are not necessary, they sometimes can be crucial to your case.
There is absolutely no requirement in Florida law that the manager must have a witness or witnesses present when serving a notice. This article simply deals with recommendations based on our experiences.
The Dangerous Resident
Serving notices can be dangerous. Here you have a situation where a manager is required to knock on a door, only to meet a less than friendly resident or other occupant of the premises, whether authorized or not. Each year, managers get assaulted while in the process of serving notices, and recently in Florida a manager was killed serving a Three Day Notice
The Mailing “back up” Mistake
A manager sometimes will want to insure that the resident receives a notice and sends this notice by mail, in addition to posting on the premises or hand delivery. This can be a serious mistake as the law extends the expiration time of a notice if it is mailed. If a Three Day Notice is mailed, the law allows 5 days for the resident to receive the notice and an additional 5 days for the resident to pay by mail even if you don’t want the resident to pay by mail. This can result in a Three Day Notice becoming a Thirteen Day Notice. On top of this, confusion can occur because the Three Day Notice was given one day but another Three Day Notice received a few days later by mail causing a conflict and possibly voiding out the first Three Day Notice. In the case of a Notice of Nonrenewal, the manager may be under a strict timeframe in which to give the resident notice. For instance a month to month tenancy needs to be terminated by the manager giving no less than 15 days notice prior to the beginning of the next monthly rental period. If the notice is mailed on say August 14, adding 5 days for mailing would make the notice short.
The Desperate Resident
There are no limits to the lies that residents will come up with if they do not have the rent. The most common one is that they did not receive the Three Day Notice. Judges hear this one all the time, and in most cases, as long as the manager or someone else testifies that they served the notice, this defense will not be successful. If this defense is raised in court, you better be certain that the person who served the notice is in court with you, and better yet, another witness.
The “I Paid the Manager by Cash” Defense
Occasionally a resident will raise the defense of payment. They will claim that they paid the manager when the manager met them at the door. Sometimes they will allege that they paid the manager in cash. In most cases this is not a very credible defense, but if the resident can show that the manager accepted cash in the past, the defense becomes stronger. Having a witness who can also testify that no payment was made by the resident could be crucial if this defense is raised.
Alternative Delivery Methods
Private process servers are available in most counties and are often certified to serve notices by the Circuit Court. The process server will prepare an affidavit of service which will be attached to your Three Day Notice that you file with the Court. Most judges will take this seriously, but still, if a process server is used, we would recommend that the process server comes to the eviction hearing or trial. A word of caution when using process servers: make sure the date on your notice and the expiration date are proper, and that the process server serves the notice immediately. We have seen cases in which the manager hired a process server, gave the process server the notice. but the Three Day Notice was not served until the next day, requiring the notice to be completely redone, and the manager had to start over again.
The Sympathetic Judge
Judges are human and in some cases feel sorry for the resident‘s plight. Some residents can weave a great story, and some residents indeed do have legitimate problems. While most judges will follow the law, giving the judge one little excuse to deny the eviction action might be enough for you to walk out of the courtroom with unexpected results. Never underestimate what a resident will do in Court. Our office handled a cut and dry non-payment of rent case, in which the resident denied receiving the Three Day Notice. The manager testified that he gave the notice. The resident had no other legal defense whatsoever, and the judge decided to dismiss the eviction action, stating he did not feel that the resident received the notice. If we had a witness to the notice serving, we doubt that the judge would have considered both the manager and the witness to be liars, and we feel that we would have prevailed in the eviction action.
If at all possible bring a witness with you when you are serving notices. If you feel that you have a dishonest or dangerous resident on your hands, or possibly you have accepted rent in cash in the past, it is the safer approach and can mean the difference in whether you win or lose the eviction action.
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