The most common residential lease enforcement notice used in Florida by landlords and property managers is the 3 Day Notice to Pay or Vacate, which is used when a tenant fails to pay owed rent. Another common lease enforcement notice is the 7 Day Notice to Cure (herein “7 Day Notice”), which is governed by F.S. 83.56(2)(b) and controlling case law in Florida. The 7 Day Notice is used when the tenant has violated the lease or F.S. 83.52, and the violation is curable.
Here are some basic requirements that landlords need to understand and comply with to deliver a legally sufficient 7 Day Notice.
CURABLE VIOLATION
Landlords must first understand that if the violation is curable, the landlord must give the tenant an opportunity to cure the violation before terminating the lease. It is not uncommon to see landlords file eviction against tenants for violations that are curable. For example, being “too noisy”, “disturbing the peace”, “not cleaning the unit,” or “having unauthorized animals.”
F.S. 83.56(2)(b) provides a few examples of curable violations:
Examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this part such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary.
Non-curable violations are much rarer, so before proceeding under the assumption that the violation is curable, you should seek legal advice to ensure you proceeding correctly.
TENANT NAMES
The notice must name all of the tenants subject to the lease. Failure to name all of the tenants on the notice will render the notice legally defective. Essentially, if a tenant is not named on the notice, the eviction cannot name that tenant in the lawsuit, and the named tenants can move to dismiss the eviction for failing to name all indispensable parties.
Also, the names need to be spelled correctly. If names are spelled incorrectly, it can cause problems in the eviction, such as, for example, defective service of process. While the lawsuit can correct the misspelling of the tenant’s name, it is better practice to avoid the problem altogether by spelling the names correctly on the notice.
PREMISES ADDRESS
The notice must contain the complete property address of the rental unit. It is not uncommon for landlords to include only a partial address (e.g. leaving out the city, state and county) or to describe the property address that is something other than legal address. Not including the correct and complete property address can cause problems in the eviction and give the tenant an opportunity to raise the defense of defective notice.
LEASE OR STATUTE PROVISION VIOLATED
The notice must cite the lease or statutory provision that was violated. By citing the lease or statutory provision that is violated, it gives the tenant notice of the legal basis of the notice to cure. Courts have ruled that the absence of the lease or statutory provision or mis-citing the provision renders the notice defective.
FACTUAL BASIS
The notice must satisfy the “specificity” requirement. That is, the landlord must state the “who, what, when, and where” of the violation. This is perhaps the most common reason that 7 Day Notices are rendered legally defective. Essentially, landlords tend to be vague about the violation and over-generalize the alleged violation. If the landlord does not include sufficient and specific facts that warrant the 7 Day Notice, the court will find that the notice is legally defective and dismiss the eviction.
CURE DATE
Some Florida courts have ruled that the 7 Day Notice must contain the “cure or terminate” date. That is, the notice must give the tenant date by which he must cure the violation. Even though F.S. 83.56(2)(b) does not expressly provide for the landlord to include a cure date, Florida courts have determined that the landlord must do so. Since some Florida courts have ruled in this manner, landlords should do so to avoid any tenant defense on this issue.
TERMINATION LANGUAGE
The notice must contain language that notifies the tenant that if they do not cure the violation, the lease will be terminated. Failure to include termination language may provide the tenant with a defense, effectively stating that even though they did not cure, the landlord did not notify the tenant that the lease would be terminated.
SECOND OR SUBSEQUENT LANGUAGE
The notice must contain language that if the same or similar violation occurs within 12 months from delivery of the 7 Day Notice, the landlord may terminate the lease without having to provide the tenant with an opportunity to cure the second or subsequent violation. This language is very important if the tenant were to commit the same or similar violation within the next 12 months, because without this language, the landlord would not be able to terminate the lease without having to give an opportunity to cure the second or subsequent violation.
LANDLORD NAME AND SIGNATURE
The landlord must include his or its name on the notice, along with his or its physical address and phone number and must sign the notice. The landlord’s name should be either the property owner or the property owner’s agent if there is one. If there is an agent managing the property, the agent or property owner must give the tenant notice of its agency authority for the property owner. This is especially pertinent when the property owner hires a new agent, in which case, the new agent needs to give the tenant notice of the agency as soon as possible.
CERTIFICATE OF SERVICE
The notice must have a Certificate of Service, stating when the notice was delivered and by what method. Also, delivery of the notice must comport F.S. 83.56(4), which provides for notice deliver requirements. That is, notice must be delivered in-person to the tenant, posting on the premises in a conspicuous place in the tenant’s absence, or by mail to the tenant’s address. Also, according to Harari v. Whitford, 14 Fla. L. Weekly. Supp. 701a (15th Cir. App. 2007), email may constitute delivery of the notice, but there are certain conditions that need to be met, such as the lease agreement providing for email as delivery of notice or the landlord establishing that email was a customary method of communication between the parties.
ATTORNEY PREPARED
Property managers who manage property for a property owner are limited in their ability to prepare lease termination notices. This is because when a person who is not an attorney prepares legal documents that affect the legal rights and obligations of another party, such action is practicing law without a license and is a crime under Florida law. The Florida Supreme Court emphasized,
This Court has repeatedly held that the preparation of legal documents by a nonlawyer for another person to a greater extent than typing or writing information provided by the customer on a [Florida Supreme Court approved] form constitutes the unlicensed practice of law
THE FLORIDA BAR, Complainant, v. CANDICE L. MIRAVALLE, etc., et al.. 25 Fla. L. Weekly S404b, Case No. SC93101 (FL S CT, May 18, 2000)
However, In Florida Bar re Advisory Opinion, 627 So. 2d 485 (Fla. 1993), the Florida Supreme Court carved out an exception to the law prohibiting unlicensed practice of law, whereby they authorized property managers to prepare a 3 Day Notice to Pay or Vacate pursuant to F.S. 83.56(3) for the property owner, but only if they use a Florida Supreme Court approved 3 day notice to pay form and they meet the definition of “property manager”.
Notably, the Florida Supreme Court did not state in that decision that the property manager can prepare a 7 Day Notice. Thus, the question is, can a property manager prepare a 7 Day Notice for the property owner, or is that the unlicensed practice of law?
In Florida, this issue has come before several courts. For example, in Miami Soar Management Corp. v. Vindell, 2019-010939-CC-05 (Miami-Dade County, August 13, 2019), the court dismissed the plaintiff’s eviction that was based on a 7 Day Notice to Cure prepared by the property manger and not by an attorney. The court ruled,
Plaintiff’s Notice to Cure and Notice to Quit are defective as they are not based on nonpayment of rent, and they are drafted and served by a property manager and not an attorney. See Florida Bar Re Advisory Opinion — Nonlawyer Preparation of and Representation of Landlord in Uncontested Residential Evictions, 627 So. 2d 485 (1993). Because Plaintiff’s notices are defective, Plaintiff has failed to comply with all conditions precedent before filing the Complaint.
Therefore, if you are a property manager and not an attorney, you should have an attorney prepare the 7 Day Notice to avoid risks of civil and criminal liability and to preserve the integrity of the eviction case based on the 7 Day Notice.
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