The Florida Residential Landlord-Tenant Act (F.S. ch. 83, pt. 2) (“the Act”) governs the residential landlord-tenant relationship in Florida. For certain actions the landlord takes on a tenant, the Act requires the landlord deliver written notice to the tenant. Notice delivery is defined specifically in some instances. In recent years, with the advancement and common usage of email communication, the issue arose in a Florida district court of appeal of whether an email constitutes delivery of written notice to the tenant. Here’s what landlords need to know.
Statutory Requirement of Notice Delivery
F.S. 83.56 provides for the landlord to take certain corrective action against a tenant who is in default of the tenant’s obligation, e.g. for non-payment of rent and a violation other than non-payment of rent. The notices include a Notice to Pay, Notice to Cure, and Notice to Terminate for Non-Curable Violation.
F.S. 83.56(4) governs the delivery of those notices, stating,
“The delivery of the written notices required by subsections (1), (2), and (3) shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence. The notice requirements of subsections (1), (2), and (3) may not be waived in the lease.”
Mailing or Delivery of a True Copy Thereof
The question is, does an email of the notice constitute “mailing or delivery of a true copy thereof”? Well, there is a case in Florida that decided this issue. The case is Harari v. Whitford, 2006AP000054 (Palm Beach County, May 25, 2007) and was one of first impressions. The court framed the issue as follows.
“Whether a statute requiring the mailing of written notice is satisfied when notice is given by a letter or memo in e-mail format, electronically sent and not otherwise delivered.”
The court held, “e-mail transmission generally is adequate to satisfy a statutory requirement to give written notice by mail”, but the court imposed some conditions that must be satisfied for this to be the case.
First, the court recognized that as a matter of law, e-mail constitutes written notice and that “‘e-mail’ is now considered to be a form of ‘mail’”. The only question is whether an e-mail should constitute delivery of the notice. The court said that it does when:
“a contract or course of dealing between parties establishes email as a permissible means of notice, or whenever it is shown that the recipient received actual and timely notice through e-mail which is substantially the same notice as would have been provided in writing mailed through conventional means.”
Thus, the landlord must be able to show the following:
- the lease agreement provides for delivery of notices by e-mail, or
- the customary actions of the parties demonstrate that they used e-mail as an acceptable form of communication, or
- the tenant actually and timely received the notice, and
- the notice contained in the e-mail is substantially the same notice as would have been provided in writing mailed through conventional means.
When the landlord is able to demonstrate these facts, the Harari opined that e-mail delivery of a notice satisfies F.S. 83.56(4).
Note that the Harari decision does not involve delivery of a landlord’s claim on the security deposit. Pursuant to F.S. 83.49, the landlord must certify mail the notice of intent to impose a claim on the security deposit to the tenant’s last known address within 30 days of the tenant vacating the premises. See our article on Security Deposit Claims.
Conclusion
In conclusion, while traditional methods of delivery (i.e. hand-delivery, posting on the door, or mailing) remains the standard method of delivering legal notices to tenants under the Florida Residential Landlord-Tenant Act, the use of email is increasingly being recognized as a valid alternative.
The key is ensuring that the email delivery meets specific legal requirements: it must be supported by the lease agreement or a recognized pattern of communication between the landlord and tenant, or it must provide actual, timely notice that is equivalent to what would be delivered through conventional delivery methods. As technology continues to evolve, landlords must stay informed about these legal nuances to ensure compliance and protect their interests.
Tips for Landlords:
- Include Email Provisions in Lease Agreements: Clearly state in the lease agreement that email is an acceptable method for delivering legal notices. This will provide a solid legal foundation if a dispute arises.
- Establish a Pattern of Communication: Regularly communicate with your tenants via email for routine matters. This can help establish email as an accepted form of notice delivery in your dealings with the tenant.
- Ensure Timely and Clear Delivery: When sending a legal notice via email, ensure it is sent well in advance of any deadlines and that the content is clear, concise, and mirrors what would be sent through traditional mail.
- Keep Detailed Records: Maintain a detailed record of all emails sent to tenants, including timestamps and delivery confirmations. This documentation can be crucial if you need to prove that the tenant received the notice.
- Use Multiple Delivery Methods: To avoid potential disputes regarding delivery of an e-mail, the landlord can consider sending important legal notices via both email and traditional methods (hand-delivery, posting, mailing), especially if there is any uncertainty about the tenant’s email habits or reliability.
- But there is a catch: if you e-mail AND, say, mail, hand-deliver or post the notice on the door of the premises, the slowest method of delivery will prevail over the quicker method of delivery for purposes of calculating the notice period. If the landlord does not take this into account when calculating the notice period, the notice period may be incorrect, which will render the notice defective.
- Thus, it is better practice not to deliver multiple notices unless the landlord intends to e-mail the notice and hand-deliver to the tenant (or in the tenant’s absence, post on the door) the notice on the same day as the e-mail. But if the landlord intends to hand-deliver or post the notice on the door, the e-mail is merely superfluous anyway, since the notice delivery is effective by virtue of the hand-delivery or posting on the door anyway.
- Stay Informed About Legal Updates: Laws regarding notice delivery may change, so stay informed about any updates to the Florida Residential Landlord-Tenant Act and adjust your practices accordingly.