Contemporarily Delivering a Notice to Pay and Notice to Terminate Month-to-Month Tenancy 

In Florida, enforcement of landlord or tenant obligations is driven by proper notice to the other party. Not only is the substance and form of the notice crucially important to the success of enforcing the landlord’s rights and remedies under the lease agreement and law, but also, the delivery sequence of notices matters and may impact the landlord’s rights and remedies. Landlords should know these important rules governing the sequences of notices delivered.

The general rule is that the latest notice delivered prevails over the previous notice delivered to the tenant. For example, if a landlord delivers a 3 Day Notice to Pay or Vacate on, say, August 5, 2024 for unpaid rent, and then on August 10, 2024, the landlord delivers a second 3 Day Notice, the second 3 Day Notice (delivered on August 10) will void the first 3 Day Notice and prevail over the first notice (delivered on August 5).

There are other situations where the landlord may deliver more than one notice to the tenant, but the notices are different. There are several notices that could be delivered to a tenant. For example, the following are a sampling of notices to the tenant:

  • 7 Day Notice to Cure
  • 7 Day Notice to Terminate (non-curable violation)
  • 30 Day Notice to Terminate Month-to-Month Tenancy
  • Notice of Non-Renewal
  • Notice of Tenant’s Duty to Give Landlord Notice of Intent to Vacate at End of Tenancy

Issues may arise when the landlord delivers notices contemporaneously with each other–and especially notices that conflict with each. A common scenario in landlord-tenant situation is when the landlord delivers a 3 Day Notice to Pay and a Notice to Terminate Month-to-Month Tenancy. The reason to deliver these two notices at the same time should be noted. That is, if the landlord can terminate the tenancy for more than one reason, it may prove to be helpful for the landlord. 

The 3 Day Notice to Pay, while seemingly simple to enforce, proves to be wrought with potential defenses for the tenant. For example, if the amount of rent demanded is not correct, the tenant may raise that as a defense. The same is true for a host of reasons the notice could be deemed legally defective. As such, the landlord would do well to also terminate the month-to-month tenancy as a “firewall” to help ensure the success of the an eviction.

The Notice to Terminate Month-to-Month Tenancy has less potential defenses. As long as the notice itself is legally sufficient, the landlord can terminate the tenancy for any lawful reason. Given the few defenses there are to an eviction based on terminating the month-to-month tenancy, it is beneficial for the landlord to deliver this notice at the same time as a 3 Day Notice to Pay.

One Florida County Court ruled that a notice to terminate a month-to-month tenancy does not void a 3 day notice to pay that was delivered just prior to (or contemporaneously with) the month-to-month termination notice. The court in Keller v. Savage, 5 Fla. L. Weekly Supp. 703b (Broward County, May 29, 1998) ruled this way on the tenant’s motion to dismiss,

Defendants also moved to dismiss on the ground that Plaintiff had served a second statutory notice, rendering the first notice (upon which this action was brought) null and void. However the first notice was for nonpayment of rent, under Section 83.56(3), while the second notice was a termination of a month-to-month tenancy under Section 83.57(3). This Court does not find the notices to be inconsistent, nor that the second notice in any way invalidates the first. The first was to either pay rent or deliver possession, and the second was to unconditionally terminate the tenancy.

Based on this court’s decision, the 3 Day Notice to Pay and Notice to Terminate Month-to-Month Tenancy do not conflict with each other, and the landlord can deliver these notices to the tenant at the same time, which will help the landlord to ensure the success of the eviction. 

About other types of notices (e.g. 7 Day Notice to Cure, 7 Day Notice to Terminate, Notice of Non-Renewal), legal issues can arise regarding whether the notices conflict with each other and are legally defective. Therefore, you should consult with your landlord attorney to guide you on those issues and help you prepare notices to avoid legal defenses.

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.