Volume XXX - November 2020

 Common Pitfalls to Avoid in Residential Evictions

By: Bart Valdes, Esq, and Christopher L. Hill, Esq.

As the COVID-19 pandemic continues with no end in sight, it is anticipated that many tenants will not be able to cure longstanding defaults. As a result, the court system is expecting a major uptick in eviction lawsuits. There are important things that landlords and property managers should know prior to filing any lawsuit for eviction. It is critically important that the landlord strictly comply with the requirements under Florida law and the applicable written lease agreement to avoid an eviction case being dismissed with an award of attorneys’ fees against the landlord.

A common pitfall is not properly preparing and serving a Three-Day Notice on the tenant. A defective Three-Day Notice will derail an eviction case. All Three-Day Notices must strictly comply with Florida law to be valid. For example, the Three-Day Notice must be delivered on the tenant as set forth in § 83.56(4), Fla. Stat. (2019). If the Three-Day Notice demands the return of possession or payment of overdue rent to a location other than the leased premises, or by mail to a management office, then the tenant must be provided with an additional five days for mailing. Bujalski v. Battle, 20 Fla. L. Weekly Supp. 449d (Fla. 18th Cir. Ct. 2013) (holding that a Three-Day Notice was fatally defective for demanding payment of rent to a post office box without giving an additional five days to mail rent). Additionally, if the written lease provides a specific address for notice then the landlord must send the Three-Day Notice to that address as well. The failure to comply with the lease agreement, or any statutory conditions precedent, could lead to the dismissal of an eviction lawsuit.

Another common pitfall is trying to collect something other than “rent” in the Three-Day Notice. Frequently, the lease agreement will specifically define what is considered “rent.” There may be other amounts that the tenant owes that are not “rent” (or “additional rent”), such as late charges, interest, and common area maintenance charges and utilities. If there are other amounts included in the Three-Day Notice that are not “rent” then the Three-Day Notice is defective. See Goldenberg v. Cochran & String, 10 Fla. L. Weekly Supp. 65b (Fla. 17th Cir. Ct. 2002) (holding that a Three-Day Notice was fatally defective for including electric, water, and sewer charges that were not designated as additional rent under the lease); see also Flor v. Mieklak, 10 Fla. L. Weekly Supp. 941a (Fla. 17th Cir. Ct. 2003) (holding that a Three-Day Notice was fatally defective for demanding a “late charge of $50.00” that was not defined as “rent” or “additional rent” in the lease).

Another potential pitfall is the acceptance of a payment after the default of the tenant. Some lease agreements have a “non-waiver” provision, which essentially states that the failure of either party to insist upon strict compliance with the lease is not a waiver of the landlord’s right to file an eviction. Even a “non-waiver” provision, however, can be waived. Protean Investors, Inc. v. Travel, Etc., Inc., 499 So. 2d 39 (Fla. 3d DCA 1986) (holding that notwithstanding the presence of an anti-waiver provision in the lease, the landlord was estopped to claim default where the landlord accepted late payments without protest). As such, if a landlord elects to accept partial, or late, rent payments from the tenant then it should only be done under written protest with a full reservation of rights. If the lease agreement does not have a non-waiver provision, the mere acceptance of a payment after default is a waiver of the landlord’s right to file an eviction lawsuit. § 83.56(5)(a), Fla. Stat. (2019). In summary, the law provides landlords significant rights to evict tenants who fail to pay rent. The power to remove someone from their dwelling comes with obligations to protect the basic rights of the tenants. Each case is unique and it is important to consult with a lawyer early in the process to avoid any pitfalls.

Bart R. Valdes is one of DSK Law’s managing partners. Mr. Valdes is a Florida Bar Board Certified Specialist in the area of Business Litigation. For almost 20 years Mr. Valdes has handled commercial and residential eviction cases across the State of Florida.

Christopher L. Hill is an Associate Attorney in the Firm’s Tampa office. Mr. Hill has experience handling eviction and debt collection cases.

This article is for informational purposes only and you should seek professional legal advice before taking any action based on this article. Further, this information is subject to change due to the rapidly changing legal, political and business environment.

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DSK Law has been awarded a Top Workplaces 2020 honor by The Orlando Sentinel. The list is based solely on employee feedback gathered through a third-party survey administered by employee engagement technology partner Energage, LLC. The anonymous survey uniquely measures 15 drivers of engaged cultures that are critical to the success of any organization including: alignment, execution, and connection, just to name a few. "Being named a Top Workplace is a big deal, as the award is based solely on the feedback of the staff." said Hugo de Beaubien, Founding Partner.

“In times of great change, it is more important than ever to maintain a connection among employees,” said Eric Rubino, Energage CEO. 

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