Can you put late charges on three day notice to pay rent or vacate?

Attorney Tom Olsen: If you're a landlord and your tenant has not paid rent step number one is always a three-day notice to pay rent or vacate. That's in writing. The three-day notice says if the tenant pays the full rent within 3 days, the landlord is required to accept the rent and not evict the tenant.

Attorney Rob Solomon: It's a safe port that our legislature has put into place to give the tenant an opportunity to get caught up with the rent. So a lot of landlords don’t understand that a three day notice to  pay rent or vacate is a preliminary step. Before the landlord can ever think about doing a tenant eviction, they must first to do a proper three-day notice, which actually turns out to be pretty complicated. 

It looks so simple, it's one paragraph long. And yet this raises the issue of how do you find out what Florida law is on something like a three-day notice to pay rent? And you go, "Well I’ll look in the statute." That makes some sense. But that's not all there is to it, there is a combination of that and decided cases of Florida law and things that are on your lease impact on it. So we have a three-way coming together, three-way intersection of things that can influence a three-day notice. I can tell you when landlords come in and they tell me, "I've started the eviction process, here's my three-day notice that I served on them." I say, "Let me see the notice first of all." Because almost always 90% of the time those notices are invalid. The case cannot proceed on an improperly prepare three-day notice to pay rent or vacate.

Attorney Tom Olsen: If the landlord makes a mistake in preparing the 3 day notice to pay rent, the eviction action will be dismissed by the court. If you have a lease that provides for a late charge, can you put the late charge amount on that three-day notice?

Attorney Rob Solomon: Right, what a good question because that is typically issue and error number one. The landlord cannot put a late charge on the three day notice to pay rent. The courts have ruled that putting late charges on a 3-day notice to pay rent invalidates the three-day notice. 

Now two years ago that would mean the tenant eviction action would be dismissed, you'd have to start over again and you might even be required to pay the attorney’s fees of the tenant who hired an attorney to defend the tenant. Two years ago our legislature got into the fray here and said, "We're going to change that. These mistakes still invalidate the notice, but we're going to give you an opportunity to fix the notice. You won’t get kicked out of court, we don’t tell you exactly how we're going to let you fix it but in theory you could re-file that notice, still have a legal case pending and start all over within the confines of your legal case without getting your case dismissed." I often tell landlords at my workshop, "Your job as a landlord is to push push push. And you can expect you tenant to delay delay delay." That's kind of the roles that people are in. I'm not saying bad things about either of them, that's the role they find themselves in. So landlords need to get it right and keep moving forward.

Attorney Tom Olsen: So I’m curious then about these late charges on a residential lease in Florida. Let's say over the course of the lease the tenant has been late many times. The landlord has done many three-day notices, but the landlord's never managed to get his late charge paid. At the very end of the lease, can a landlord deduct lease late charges from the tenant's security deposit?

Attorney Rob Solomon: Well a landlord will try to do that but then we run into another complicated area of landlord tenant law which is the area of waivers. So if a landlord allows things to happen and then accepts rent after he allows things to happen there's a case to be made that he has waived that violation of the terms of the lease. And so you start to get into situations where the landlord for months and months and months continued to collect rent and didn’t pursue getting the late charges and many courts hold that that the landlord has waived his right to collect the late charges.