3-day notice to pay rent or vacate & what is the tenant eviction process in Florida for nonpayment

Attorney Tom Olsen: Chris, one of our areas of practice here at the Olson Law Group is landlord-tenant law. We have an attorney here that specializes in it, and for the most part, he represents landlords when they find that they need to evict a tenant. If you're a landlord, you know that there's really nothing simple about that process. It certainly is not automatic about that process. Over the years, we've certainly had people that say, "My tenant's not paying rent. I'm just going to call the police and have the police move him out."

No, the police is not going to do that for you. If you've got a tenant that's not paying rent or otherwise not complying with the terms of the lease, your only remedy is through a tenant eviction, and at the Olson Law Group, we can assist people with that.

Attorney Chris Merrill: Correct. Tom, am I also correct in this as well? If you are a landlord and you have even one or more properties in an LLC by Florida law or in a corporation, you must have an attorney represent you.

Tom: Chrissy, that's true across the board. Even in small claims court where it's meant to do without an attorney, the law says that no matter what, whenever you're a corporation or LLC, you cannot do it by yourself. You are required to do it represented by an attorney, even if you're in small claims court.

Chris: My understanding is many landlords do have properties in a corporate form. I'm sure that most of them are aware of this because of the fact that they do have, again, they're in LLCs or again, some type of a corporation, so they're aware. For those of you out there, listeners that do not know that because you're talking about evictions, of course, as a landlord, if the property is in your individual name, you can do the eviction on your own or you could use an attorney. The reason why many landlords use an attorney is why? Because there are a lot of very particular nuances that if you don't get it right, the judge kicks it back.

Tom: Exactly. Let's go ahead and talk about that as a landlord. If you've got a tenant who's not paying rent, what is step one? What do you do to start this process? That step number one always is what's called a three-day notice to pay rent or vacate. It is what it is. It's telling a tenant, "You've got three days to pay rent or otherwise move out." The Florida statute actually gives us a form of that three-day notice, but it is deceptively easy to fill out, but easy to make mistakes on.

Before we talk about some detail about the three-day notice to pay rent or vacate, I just want to say that if you get it wrong and if you file your eviction, the court is going to look at your three-day notice and if it's defective, they're going to throw you out of court. You've just wasted your time in court costs. We want to make sure on this three-day notice to pay rent or vacate that you get it exactly right.

If you're a landlord and say, "Look, I want to do my own three-day notices. I don't want to have to go to a lawyer every time I do a three-day notice," then meet with a lawyer at least once and figure out the tricks of the trade to doing these three-day notice to pay rent and then once there, you can start doing it yourself.

Chris: Exactly.

Tom: By the way, on that three-day notice, for example, it says three days not including weekends and legal holidays. Just one of the tricks of the trade that you've got to get that filled out.

Chris: You have to know how to do it. It has to be perfect.

Tom: Once you do this three-day notice to pay rent or vacate, if you do it properly, on day number four, if your tenant has not paid rent or not vacated, then it's time to start the next step number two, and that is a legal eviction action. When you do that legal eviction action, you're going to file the actual eviction with the court in the county where the property is located and then you're going to serve a summons on the tenant, and on there, there's actually two summonses.

There's a five-day summons and there's a 20-day summons. The five-day summons has to do with possession of the property. The 20-day summons has to do with damages. The five-day summons gives the tenant five days in which to file an answer. Failing to do so, the landlord can get a default judgment of possession against the tenant. The 20-day summons has to do with damages. That's where, in addition to the landlord trying to evict the tenant, the landlord's trying to get a money judgment, a piece of paper that says, "The tenant's now out of here, but the tenant owes me $3,000 in back rent and court costs and attorney's fees, for example.

Chris: Very important. Another area, am I correct too, that when you're talking about as well, like you're saying Tom, damages, and that leads me to think as well with regards to security deposits. Because it's very common that landlords, even with the eviction, when they're going through that eviction and putting that information and to the court to make it happen, they're incorrectly putting the numbers wrong.

Tom: I think what you might be referring to is late charges. On this three-day notice that we've been talking about, unless your lease is worded exactly correctly, if you put a late charge on that three-day notice, it is going to be defective and you're going to get thrown out of court. You've got to be very careful about putting late charges in your three-day notice to pay rent or vacate. The best way to handle it is make sure that your lease is properly worded so that when the time comes, you can put the late charge on there.

Chris: Correct. The lease must match what you're doing on your three-day notice and on your eviction. They all have to match.

Tom: We're talking about the steps that it takes to evict a tenant. We know that we now served a copy of the five-day notice and 20-day notice on the tenant. By the way, when we talk about serving it, traditionally that was done by the sheriff in whatever county you live in, but there's now private process servers. You as a landlord, you're filing the eviction, you're paying the court costs, and now you're paying somebody to serve a copy of those summonses, those complaints on your tenant. That's just step number one. It can't be avoided.

Chris: Correct.

Tom: That often we might find that tenants don't file an answer to your five-day summons complaint to evict a tenant because there's no defense. They know they didn't pay any rent. As a tenant, that means on day number six, if they've not filed their answer yet, you can go into court and get a default judgment against the tenant wherein the court will order that you are to be given possession of the property.

Then the next step after that, when you win your eviction lawsuit is what's called a 24-hour writ of possession. That is what it says. That is a writ of possession that once again, it gets served on a tenant. You got to pay somebody to go serve it, but you can tape it to the front door if you want to. It tells the tenant, you've got 24 hours to get out of here. If you're not, then we can forcibly move you out. 24 hours later, the sheriff or the police, they will stand by and keep the peace while you as a landlord have somebody change the locks on the property and put the tenant's stuff out on the curb.

Chris: That's when it's appropriate to have the police.

Tom: Exactly.

Chris: It's that part of the process.

Tom: You want them to keep the peace so there's no violence going on while you retake possession of your home.

Chris: This is where people they don't often understand that prior to that, the police aren't going to do anything. Once you have all the proper legal documentation signed by the judge, now the 24 hours and now being there with the police, you as the landlord and the legal documentation signed by the judge gives you the legal authority to have them out.

Tom: Exactly right. Hey folks, my name is Tom Olson. The name of the show is Olsen on Law. You're listening to WDBO. We're going to take a break. We'll be back in just a few minutes.

[00:08:40] [END OF AUDIO]