SERVING THE THREE DAY NOTICE
Preparing, serving and acting on a Three Day Notice is a lot more complex than most property managers realize. A proper Three Day Notice is referred to as “jurisdictional”, which means that if it is not correct in any way, the court will lack jurisdiction to entertain an eviction action. This may result in the case being completely thrown out, and the property manager must start from scratch before filing a new eviction action. If there is an attorney representing the resident, the attorney in addition to getting the case dismissed can also ask the court to award attorney’s fees and costs, all because the Three Day Notice was prepared or served incorrectly. This article will only deal with one aspect of the Three Day Notice, and that is how it is served by the property manager.
THE LAW VERSUS THE LEASE Florida law states that a notice may be served by posting on the premises, hand-delivery to the resident or occupant, or by mail. The problem we run into sometimes are lease agreements which require a different or specific type of delivery. The lease may require that the notice be mailed to the resident. If this is the case, even though the law allows you to post the notice on the premises or hand-deliver the notice, you MUST mail the notice, because the lease says so. Clauses such as these are often found deep in the lease, requiring that all notices by either party to be in writing and by mail, sometimes even certified mail. “All notices” can be interpreted to include the Three Day Notice. Though the majority of leases do not have clauses which govern how the manager delivers notices, it is a good idea that you check the lease carefully to see if this is the case. Many managers have leases which were prepared by out of state attorneys, are store bought or purchased from the internet, so review of the lease is a must. If you are preparing a lease, it is best not to even mention how the manager is to give the Three Day Notice, as Florida law is completely clear.
SERVICE BY POSTING ON THE PREMISES The law allows the property manager to serve the notice by “posting on the premises” in the absence of the resident. We interpret this to mean posting on the door most commonly used by the resident for entry to and exit from the premises. The notice should be either folded over or placed in an unmarked envelope and securely taped to the door. You may ask why it should not be simply taped to the door, so it is immediately obvious that it is indeed a Three Day Notice. It can be. We do not advise this though, as the resident may have already paid the rent and you misplaced the payment, or the resident could be on the way to your office just as you are posting the notice. Human nature will make one look at a notice that is posted on someone’s door, so you could end up causing embarrassment to a resident who did indeed pay the rent. In these times of increasing consumer rights, the resident could actually sue you for attempting to collect a debt that was already paid. Note that the resident must be absent. If you do not make any attempt to bang loudly on the door and ring the doorbell (if applicable), but rather pre-tape the notice and quietly affix the notice to the door, you are not serving the notice properly.
SERVICE BY PLACING INSIDE THE DOOR While some attorneys feel this is a good way to serve notice, we are firmly against it. Entering a person’s unit unnecessarily will only enrage the resident and increase the risk of you being accused of stealing something out of the unit. Remember that a resident who has not paid rent is often in a desperate situation and will do anything to get out of paying the rent or turning the tables on you.
SERVICE BY HAND-DELIVERY TO SOMEONE OTHER THAN THE RESIDENT If someone other than the resident answers the door, and the resident is not home, you may serve the notice to an occupant who is 15 years of age or older. If you are uncertain about the age of the person who answers the door, it is best to deliver the notice to the person and also securely tape the notice to the door. If the person who answers the door is not an occupant but rather a visitor, babysitter or anyone other than persons who appear on the lease agreement, we recommend that you serve the notice by taping the notice to the door.
SERVICE BY HAND-DELIVERY TO THE RESIDENT This is by far the best way to serve a notice and is in fact required if the resident is present. There is no need for the resident to sign the notice acknowledging receipt. All you need to do is get the identity of the party and hand him the notice. If he rips the notice up and throws it on the ground, you have still done your job. After you have served the notice, fill out the certificate of service on your original, and keep it safely in the file. If you feel that the resident may be volatile or it could be a dangerous situation for you, you can have a process server serve the notice for you. Remember to make sure that the process server actually serves the notice on the day the notice is dated, or the notice will be incorrect. If the resident subsequently denies receiving the notice, the process server may be required to testify in court concerning the issue.
ARE WITNESSES NECESSARY? The law does not require that you have a witness or witnesses with you when you serve a notice. In tens of thousands of evictions we have filed, many where the resident denied receiving the notice, we have only had a few situations in which the judge believed the resident’s story that he did not receive the notice and denied the eviction. Witnesses are certainly great to have but not legally required. We recommend for safety purposes, or if you suspect the resident will pay games with you, the property manager consider bringing a witness along in appropriate circumstances.
SERVICE BY MAIL This is by far the worst way to serve a Three Day Notice and should only be done if the lease specifically requires you to do so. You may be thinking that this is the easiest way to serve the notice, or even the most certain way, especially if you use certified mail. Certified mail is either refused or unclaimed over 50% of the time by a resident. If the resident refuses or fails to claim the certified mail, the resident has not received notice. Stay far away from attempting to serve a Three Day Notice by certified mail. An interesting problem arises when you serve a notice by mail. The law required that when serving a notice by mail, you must add 5 business days to the notice for mailing time. This automatically makes your Three Day Notice, which is 3 business days, into an 8-business day notice. On top of that, the law also states that if you demand payment through the mail, you must add another 5 business days for the resident to mail you the payment. Now we have 13 business days? As you can see, mailing is the least preferred and least recommended way to ever serve a Three Day Notice.
THE ORIGINAL OR THE COPY? The most common mistake among property managers when serving the Three Day Notice is to give the resident the original of the notice and keep a copy in the file. The resident should not get the original, but rather get a copy of the notice. The property manager should retain the original of the notice, and on that original the property manager will fill out the certificate of service.
THE CERTIFICATE OF SERVICE The certificate of service is usually found on the bottom of the Three Day Notice. If it is not there, it should be. This section usually states “I hereby certify that a copy of this Three Day Notice has been served on…” and then has a spot to check off how it was served, to whom and the date of service. The certificate of service only has to be filled out on the original Three Day Notice that you are retaining for your file. The certificate of service is your way of keeping a record on how the notice was served, so the judge will know how, when and to whom it was served. It is not necessary to fill the certificate of service out on the resident’s copy. She knows how it was received, so it is unnecessary to complete this section on their copy. This actually makes notice serving easier. When going to the rental unit, you can have the original on one side of your folder, the copy on the other. Serve the copy, and immediately fill out the certificate of service on the original you are keeping for your file.
CONCLUSION As you can see, this article only addressed the issue of “serving” the Three Day Notice. Properly serving an incorrect Three Day Notice is just as bad as improperly serving a correct notice. Before you even attempt to serve a Three Day Notice, you must be well versed on how to prepare the notice and what you can demand from the resident on this notice.
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW