Author Archives: dpolicastro

Is a 3 Day Notice Required for FL Holdover Eviction?

One source of confusion among Florida Landlords is whether a 3-Day notice is required as a per-requisite for a holdover eviction. The short answer is “No.”

A 3-Day notice is typically not a prerequisite to filing a holdover eviction if you are seeking possession only (ie, not a money judgment for back rent, in addition to a judgment of possession removing the tenants from the property).

However, that does not mean that you can file a holdover eviction lawsuit without notice.

If the lease is a month-to-month or some other form of “at will” tenancy (such as a week to week lease), then the lease needs to be properly terminated with written notice. If there is a written lease, then any notice provisions in the lease need to be adhered to. However, if there are no notice provisions, or if this is an oral month-to-month lease, then 15-days written notice prior to the rent being due is adequate. The notice should be served by hand delivery or posting on the premises (ideally, by a process server). Florida Statute 83.57 is the statute that controls here.

If the lease is a written lease for a specific term, then it is still a good idea to provide plenty of notice to the tenant that the lease will not be renewed and that they have to leave at the end of the lease. There is no hard and fast rule as to when the notice needs to be provided, but a good rule of thumb is to provide notice at least 30 days prior to the end of the lease. If the landlord can provide more notice (45-60 days) then that is even better. The more notice you provide the tenant, the more likely it is that they will be able to make arrangements to leave at the end of their tenancy and avoid a holdover situation.

The idea is to provide your tenant with as much notice as practically possible that the lease will not be renewed. This makes the paper trail very clear to all the parties (and most importantly, the judge).

When it Makes Sense to File a Holdover 3-Day Notice

If you have a holdover situation, and want to sue for double rent, then a holdover 3-day notice is required. In most cases, chasing down residential tenants for back rent is more trouble than it is worth, but sometimes it makes sense to do so.

And sometimes it makes sense to serve a holdover 3-day notice even if you are not pursuing back rent. It can be one final “shot over the bow” to try to get the tenant to leave prior to filing the holdover eviction lawsuit. Whether it makes sense to do this depends on your timeline. Serving an otherwise unnecessary 3-day holdover eviction notice will add a minimum of 3 business days on to your eviction timeline. In the property rental business, time is money and it often doesn’t make sense to delay proceedings further by serving a 3-day. But if the landlord has the luxury of a little time, then it won’t otherwise hurt to serve these kinds of notices.

Florida Holdover Tenant Eviction Forms

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How to Evict a Holdover Tenant in Florida

A holdover eviction can be a powerful tool in the Landlord’s tool belt. Often in non-payment of rent and material violation of the lease besides non-payment of rent evictions (7 day notice evictions), the tenants have a wide range of defenses that they can try to raise. For example, in non-payment of rent cases they can argue that the rent alleged by the landlord isn’t correct, or that they have performed repairs that should entitle them to an offset. In seven day notice evictions it can be very difficult to prove the tenant’s breach. Enter the holdover eviction. A holdover eviction can be used when the lease either expires naturally, or is terminated by one of the parties, and the tenant refuses to vacate the premises and instead “holds over”. Although I have seem some creative arguments to fight a holdover eviction, the fact remains that it is much harder for a tenant to wiggle out of.

This article should provide a general overview of the holdover tenant process. Before moving any further through this article, please understand that your best bet when contemplating the eviction of a tenant, is to consult an experienced landlord tenant lawyer. You can read articles on the internet until you are blue in the face, but there is no replacement for competent legal advice from a lawyer who has been there and done that time and time again.

With that said, this article is designed to provide the reader with a brief overview and understanding of the process.

Step 1 – Terminate the Lease

If there is no written lease, then you have an oral lease. These are generally presumed to be “at will” tenancies, and they are terminable by providing notice under the Florida Statute.

If there is a written lease in place, you will want to see if you can use the lease to terminate the tenancy. If the lease has an expiration date and a notice clause, be sure to review the notice clause to see what kind of notice you need to give the tenant to let the tenant know that the lease will not be reviewed. If the written lease is a month to month lease, look for a specific termination clause. Florida Statue allows for a 15 day notice provision for a month-to-month lease, but if you have a written lease with a longer notice provision (eg, the lease says you need to provide 30 days notice prior to termination) then the lease will control. The lease will not control if the notice provision is less than the Florida statute.

Step 2 – File Suit

If the tenant remains on the premises after the notice period, then your next step is to file a lawsuit in County Court. To do that, you will need to draft a complaint telling the Court what happened (you had a lease with a tenant, you terminated the lease and asked the tenant to leave, and the tenant refuses to leave) and what you want the Court to do (kick the tenant out and give you possession). You will also need a summons for each defendant you have named in your complaint. You will want to speak with your local Clerk of Court to get the specifics for the summons, but the Clerk will tell you that you have to draft your own complaint.

Step 3 – Serve the Tenant

Once your complaint has been filed and your summons has been issued, you will want to have your summons and complaint served upon your tenant. You will need to either hire a private process server or the Sheriff to do that for you. Typically they will charge you $40 to serve the complaint and summons.

Step 4 – Wait for the Tenant to Respond to your Lawsuit

The tenant has 5 business days after he has been served to respond to your complaint. Sometimes the tenant will not respond, other times they will respond. After the 5 days have tolled, check in on the status of the case.

Move forward with a Default, or Deal with the Response

If after the 5 days tolls the tenant fails to respond to the complaint by filing papers with the Clerk, you can move forward with obtaining a default judgment. First you will need to obtain a default clerk, or clerk’s default as they are sometimes called. After you have obtained a clerk’s default you can motion the judge for a final judgment granting possession.

If the tenant does file a response, then you may have to attend a hearing. It will depend on what the response states and what the judge wants to do.

Final Thoughts

Evicting a holdover tenant, like any legal proceeding, can be a mixed bag. If the tenants don’t put up a fight then it’s possible to sail through the process. If the tenants put up a fight, then it will all come back to ensuring that the notice was properly served, the complaint properly drafted, and all the other rules of landlord tenant law were followed. It will depend much on the Judge the case is assigned to, as they vary wildly from pro-landlord to pro-tenant.

It’s recommended to hire an attorney from the start, but if you want to further understand the holdover tenant eviction process or even brave the challenge yourself, then forms can be purchased on this very website.

Florida Holdover Tenant Eviction Forms

Click here to purchase the Holdover Tenant Eviction Forms Pack.

How to Terminate an At Will Tenancy in Florida

They say that all good things must come to an end. This includes an at will tenancy. In this article, I will explain how to terminate a lease with an at will tenant in Florida. This will cover residential at will tenancies, although it’s basically the same for commercial leases as well.

What is an At Will Tenancy?

First of all, you may be wondering what an at will tenancy even is. The answer is simple: it’s a tenancy when there is no written lease in place. This may be referred to as a “month to month” tenant, week to week tenant, an oral lease ect. It’s when a written lease expires, or when parties lease property without a written agreement. Contrary to popular belief, Florida law does recognize oral leases. When there is no lease the tenant is considered an at will tenant.

If there is a Lease, look at the Lease

If there is (or was) any kind of lease in place, the first thing you want to do is look at the lease. Even in the case of the expired lease there may be language governing the termination of an at will tenant. If this kind of language exists then the lease usually controls.

For example, if the lease says that after it expires the tenant is a month to month tenant, and that the tenancy may be terminated with at least 30 days notice, then you need to give the tenant at least 30 days notice.

So always look at the lease and see if there is any specific language in the lease that may apply to your situation.

If there isn’t a Lease, or the Lease is Silent, Consult Florida Statute 83.57

If the lease is silent on termination for an at will tenant situation, or if there simply is no lease, then Florida Statute 83.57 controls. Conveniently, the statute is entitled “Termination of tenancy without specific term” and it allows for either party to terminate the lease by providing written notice (either mailed, hand delivered, or posted) that the lease is terminated.

The amount of notice you provide is determined as follows:

  1. When the tenancy is from year to year, by giving not less than 60 days’ notice prior to the end of any annual period;
  2.  When the tenancy is from quarter to quarter, by giving not less than 30 days’ notice prior to the end of any quarterly period;
  3.  When the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period; and
  4.  When the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.

At this point you may be wondering whether you have a year to year, quarter to quarter, month to month, or week to week lease. Good question. The way this is determined is based upon the frequency of payment of the rent per Florida Statute 83.46(2). So if rent is paid monthly, you have a month to month lease.

Therefore you need to give the tenant at least 15 days notice, in writing, prior to the day the rent is collected (typically the first).

Draft the Notice and Serve It

Once you determine the kind of notice you need, the next step is to draft the notice. That’s where having some good forms come in handy.

Once the notice is drafted it’s time to serve the notice on the tenant. I recommend hiring a process server to serve the notice. Usually this costs around $40. Process servers are professionals and I think it’s well worth it to have the notice professionally served. If the process server serves the notice while the tenant is home, the tenant will know you are serious. If the process server has to post it, I feel much more comfortable having the process server do that than the landlord. That way the tenant can’t argue that they didn’t “get” the notice. Worst case scenario, the process server could be called into a hearing or trial to testify that they properly served the notice. After all, that’s their job!

Don’t Collect any Rent After the Lease Has Been Terminated

Once your notice has been served it’s time to sit back and wait for the lease to be terminated and your tenant to leave. You can collect rent that’s already due, but if you want to kick out the tenant, you can’t collect rent for the rental period after the lease has been terminated. That would prevent you from evicting the tenants as holdovers.

Terminating At Will Tenancies – Final Thoughts

I hope that this article has shed some light on properly terminating at will tenancies. Please understand that this article is for educational purposes and is not intended to be used as legal advice.

Please click here for more information on form notices of termination, and other forms for holdover evictions, as well as form notices for purchase.

Florida Holdover Tenant Eviction Forms

Click here to purchase the Holdover Tenant Eviction Forms Pack.