Termination of residential rental agreements.

• Author: Grossman, Alan Bryce
• Position: Florida

A tenant's possession of a landlord's residential property in Florida begins with an agreement, oral or written. Typically, of course, that agreement will require the periodic payment of rent from the tenant to the landlord. If the tenant fails to pay the rent as agreed, the landlord has the right to evict the tenant and regain possession of the property.

Self-Help Evictions Abolished

Florida law has long abolished "self-help" evictions, that is, the forcible reentry by the landlord to remove the tenant outside of court procedure. (1) The process to properly remove a tenant from residential real property requires compliance with the Florida Residential Landlord and Tenant Act. (2) The starting gun for this process, and the key to whether an eviction can be successful, is the proper preparation and delivery of a three-day notice. (3) A proper three-day notice cannot be waived by the parties. (4)

Termination for Nonpayment of Rent

A landlord's action to remove a tenant from residential property for nonpayment of rent cannot begin until there is a proper termination of the tenancy. (5) Termination for nonpayment of rent is exclusively accomplished under the act by the service on all tenants of an accurate three-day notice. (6) "Termination of the tenancy is a prerequisite to an action for eviction and must be satisfied prior to filing the eviction action." (7) For a landlord who purchased the subject property at foreclosure, federal law (8) imposed an additional 90-day notice to all bona fide tenants, even if they were not named on the lease. (9) This was held as a condition precedent to eviction for such property. (10) However, as of this writing, the federal law was sunset on December 31, 2014, and further discussion regarding that law is beyond the scope of this article.

Form of Three-Day Notice

The content of a proper three-day notice is provided by the statute:

You are hereby notified that you are indebted to me in the sum of $__ dollars for the rent and use of the premises (address of leased premises, including county), Florida, now occupied by you and that I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the (date) day of (month), (year).

(landlord's name, address, and phone number)

For a three-day notice to terminate a residential tenancy, it must "substantially comply" with the above statutory form. This has been stated to provide to the tenant the "what, when, and to whom, and where" (11) of the payment requirements for the tenant to prevent an eviction action. Countless court opinions have settled the law in Florida that a three-day notice that fails to substantially comply with the statute is defective and, therefore, a complaint based on such defective notice cannot state a cause of action for eviction. (12)

Tenant's Challenge to Defective Three-Day Notice

A tenant's right to challenge a defective three-day notice is strictly dependent on the tenant's timely compliance with the statutory requirements either to pay to the court registry the amount due for rent as stated in the complaint or file a motion for determination of rent. (13) If the request to determine rent is timely, the tenant is entitled to a hearing. (14) The failure to timely pay the rent, whether as stated in the complaint, or as determined by the court, is deemed as an absolute waiver of the tenant's defenses other than payment, including all defects in the three-day notice, as to the landlord's claim for possession, and the landlord is entitled to the immediate entry of default judgment for possession (15) (but not for damages (16) nor for dismissal of any counterclaim (17)).

Subject Matter Jurisdiction

An improper, or even omitted, three-day notice had, for many years, been cause for a court to dismiss a case for lack of subject matter jurisdiction. However, by its opinion in Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998), rev. den., 717 So. 2d 528 (Fla. 1998), the Fourth District in 1998 held that a defective three-day notice, or even its entire omission, did not divest the court of subject matter jurisdiction. The Bell court analyzed the two-pronged requirements for the proper jurisdiction of a court. It held that a defective or missing three-day notice did not divest the court of the power to adjudicate the action. Since the Bell decision, the law has been clear in Florida that the requirement of a proper three-day notice is merely a condition precedent to an eviction action for which the court's jurisdiction has otherwise been effectively invoked. Such court can then proceed to hear and determine the action. (18)

Right to Amend

A monumental change governing eviction actions occurred in the legislature in 2013. Until then, for all residential eviction actions commenced prior to July 1, 2013, when an action was dismissed as a result of a defective three-day notice, the dismissal was with prejudice, as the landlord could not create a proper cause of action by serving a corrected three-day notice. The landlord had no right to amend its complaint with a corrected three-day notice. (19)

However, effective on and after July 1, 2013, the statute changed, giving the landlord the right to serve a new, accurate, three-day notice on the tenant. If nonpayment continued, then the landlord could amend the eviction complaint. (20) One Florida court characterized a dismissal with prejudice as a "harsh" result on appeal and reversed a decision adverse to the landlord at trial based on the statutory right to amend. (21)

With the new right to amend, a proper three-day notice still requires substantial compliance with the statute. A...