Petrogram -Spring 2012 - (Page 11)
Won’t Pay, Won’t Go...
A Q&A on Florida’s Landlord and Tenant Statute
Geoff Schwartz, Guilday, Tucker, Schwartz & Simpson, P.A.
three-day notice is sent.) Although the notice of termination is not required by statute, it may be required by the lease. Second, the landlord should ﬁle an eviction action. Whether to include in the eviction action claims for damages (i.e., unpaid rent and double rent for holding over) and attorneys’ fees if the lease provides for their recovery is a strategic decision that is best discussed with legal counsel. The steps to take in the eviction action to avoid unnecessary delay in the landlord’s regaining possession of the property will be the subject of a future article, and it will also include additional rules to follow for leases covered by the PMPA. ❍ Geof f Schwartz is a partner with Guilday, Tucker, Schwartz and Simpson, P.A . You can reach Geof f on the Petroleum Hotline® at 800-226-7091 or firstname.lastname@example.org.
ne subject that comes up on the Petroleum Hotline® is what a landlord should do once it has made a decision that a tenant behind in rent must go. Florida’s Landlord and Tenant statute applicable to nonresidential leases provides a streamlined way to evict the tenant that won’t voluntarily leave. It is important, however, to take the proper steps before filing an eviction action.
The Three-Day Notice The statute requires that the landlord send the tenant a three-day notice of nonpayment of rent before ﬁling an eviction action. The three-day notice must state the amount of rent due the landlord and require either (1) payment of that amount within the three-day period or (2) possession of the premises. Q: How does the statutory three-day notice for nonpayment of rent have to be sent and how is the three-day period calculated? A: The statute provides for three methods: (1) mail, (2) hand delivery to the tenant, or (3) posting on the premises. If the three-day notice is sent by mail, an additional ﬁve days for mailing has to be added to the three days. We think the best way to deliver the three-day notice is by hand delivering it to the tenant or anyone working at the facility. Make sure the person delivering the notice states the date and time of delivery on the notice and signs it at the bottom of the notice
when leaving it. Also, make sure the person places the same information on a duplicate original of the notice and brings it back to the oﬃce. Try to get the tenant to sign an acknowledgment of receipt (also at the bottom of the notice) on the original and on the duplicate original. If the tenant refuses to sign, have the delivery person write that on both originals of the notice. The second best way is by posting the notice on the front door of the facility. The person posting the notice should state at the bottom of the two originals of the notice the date and time it was posted and that it was posted rather than hand delivered because no one was present on the premises. In calculating the three days covered by the notice, intervening Saturdays, Sundays and legal holidays, must be excluded. Although not required by the statute, we recommend that the three-day notice period be speciﬁcally stated in the notice. NOTE: Courts are sticklers when it comes to three-day notices, so landlords must make sure the contents, delivery method and time period calculated meet the statutory requirements. If not, your eviction case is likely to be tossed out of court and you’ll have to start over again.
Q: Assuming the tenant does not pay rent within the three-day period, what next? A: First, send a formal notice of termination of the lease for nonpayment of rent by the three-day notice deadline. (This can be done when the
Table of Contents for the Digital Edition of Petrogram -Spring 2012
Out and About the Industry
Won’t Pay, Won’t Go... What’s Next?
Advertisers’ Centerspread Marketplace
NACA Partnership with FPMA
Th e Power Within You
Meet the 2012 Sunshine Food and Fuel Expo Keynote Speaker
Index of Advertisers/Advertiser.com
Petrogram -Spring 2012
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