The most used notice to tenants is a Notice to Pay pursuant to F.S. 83.56(3). While it may seem to be a simple task, the truth is, many landlords incorrectly prepare and deliver the Notice to Pay, which can cause problems with an eviction action filed based on that notice. The following is a list of helpful tips to avoid defense issues in a Notice to Pay eviction under Florida law.
1. Use Legally Approved Forms:
- Property managers must use the Notice to Pay form approved by the Florida Supreme Court (known as the FAR BAR form) or a notice that is prepared by an attorney.
- The substance of the form must substantially comply with the required language in F.S. 83.56(3).
2. Accurately Identify Tenants:
- List all tenants by their full names as specified in the lease agreement. Do not include occupants who are not listed as tenants.
- Ensure tenants’ names are spelled correctly to avoid disputes or defenses based on incorrect identification.
3. Provide Complete and Correct Property Descriptions:
- Include full and accurate property details such as street number, name, unit number, city, state, zip code, and county.
- Cross-check the address with legal records to prevent issues with writ executions by sheriffs.
4. Deliver the Notice Timely
- Do not deliver a notice to pay until rent is late as defined by the lease agreement. For example, if rent is deemed late on the fourth day of the month, do not deliver the notice to pay prior to the fourth.
5. Properly Calculate Rent Owed:
- Include only the items defined as “rent” or “additional rent” in the lease agreement.
- Do not include future charges, incorrect fees, or non-rent items like security deposits.
- If errors in rent calculation are found, promptly credit the tenant to ensure a proper accounting.
6. Attach a Payment Ledger:
- If the back rent owed is more than just a month’s base rent, attach an accurate and informative rent payment ledger to the notice to provide a clear breakdown of how the total amount owed is calculated. This avoids confusion and potential disputes over the rent due and meets the legal requirement of “specificity” as required by the courts.
7. Ensure Clear Conditional Termination Language:
- The notice should include a conditional termination clause stating that if the tenant fails to pay the required amount, the lease will terminate.
- Do not include language that states or implies immediate termination without giving the tenant an opportunity to pay within the notice period.
8. Comply with Notice Calculation Rules:
- When calculating the three-day notice period, do not count the day the notice is delivered, weekends, or legal holidays (check your local clerk of court website). This notice period rule applies for any notice period less than 7 days.
- If you mail the notice or the tenant is required to mail payment, add an additional five days to the period for each mailing requirement. If the last day in the notice period falls on a weekend or legal holiday, use the next business day. This is known as the Mailbox Rule.
- Ensure compliance with any additional notice requirements stated in the lease agreement. For example, if your lease requires 7 days’ notice to pay, use 7 days in the notice to pay period.
9. Complete the Landlord Signature Block
- The landlord or landlord agent must sign the notice and state the landlord or agent name (which could be a company), phone number and address.
10. Use a Single Method of Service:
- Choose one method of delivery to avoid complications with notice periods. For instance, if you mail and post the notice, the slower method (mail) will prevail, potentially invalidating the notice if not correctly accounted for.
- The only permitted methods of delivery are: 1) hand delivery, 2) posting in a conspicuous place on the premises in the tenant’s absence, 3) mailing to the rental address, or 4) email to the tenant’s email address (if the lease provides for such deliver or the parties have customarily used email for communications).
11. Be Cautious with Accepting Payments:
- If a tenant offers full payment within the notice period, you are required to accept it.
- However, for partial payments, the best of your statutory options is to either reject partial payment and require full payment; provide a payment plan in writing, outlining the remaining balance and the payment schedule; or deliver a new and updated Notice to Pay.
- Any attempt to pay rent after the expiration of the notice period may be rejected, but if any rent is accepted after the notice period has expired, the landlord must use one of the options in F.S. 83.56(5)(a).
12. Avoid Common Notice Mistakes:
- Do not add owed money that is not defined as rent or additional rent.
- Never include attorney fees or security deposits to the notice.
- Do not add confusing notes, additional comments, or extra demands that are not legally required.
13. Communicate Your Agency Authority with Tenants:
- If you take over management from another agent, provide written notice to the tenant immediately or at the latest, when you deliver the three-day notice. This ensures clarity on who is authorized to manage the property and act on behalf of the owner.
14. Properly Instruct the Tenant on Payment Method:
- Be cautious about requiring the tenant to make rent payment in any manner that conflicts with the lease agreement.
- However, if you want to require the tenant to make rent payment in a manner that is different from how the tenant normally pays rent, expressly instruct the tenant on how to make payment in the Notice to Pay.
15. Use Email Delivery with Caution:
- If using email to deliver the notice, ensure that your lease agreement explicitly allows this, or that email has been a customary mode of communication.
- Verify email addresses carefully to avoid delivery issues and consider attaching the notice as a PDF to match the format of a physical delivery.
Proactive Property Management: Best Practices
Effective property management requires a thorough understanding of the legal requirements and best practices for delivering a three-day notice to pay or vacate. By carefully following statutory guidelines, using approved forms, and ensuring accuracy in tenant information, property descriptions, and rent calculations, landlords can avoid common pitfalls that could lead to a defective notice and dismissal of an eviction case.
Adhering to these detailed steps not only helps to ensure compliance with Florida law but also fosters a fair and transparent relationship with tenants, ultimately enhancing the efficiency and success of property management operations. Remember, a proactive approach to property management helps prevent disputes and maintains the integrity of your rental business.
Property Management Law Solutions, LLC is a Florida law firm that specializes in landlord-tenant law and is a landlord-only law firm. We provide statewide services including evictions, consultation plans, education and training, membership plans, lease agreement plans and more. If you are a landlord or property manager, contact us today or subscribe to one of our online membership plans.