Business Law 101 / Lease Termination for Non-payment of Rent

By Albert L. Kelley, Esq.

Leases can be terminated during their term if there is a breach of the lease agreement. The most common breach is the nonpayment of rent. If a tenant fails to pay rent, the day after the rent is due the Landlord can start the eviction process. Some leases contain a grace period clause. If so, the Landlord needs to wait until the end of the grace period. If the rent still has not been paid, on the next day after the conclusion of the grace period, or on the first day after the rent is due if there is no grace period, the Landlord may deliver to the tenant what is termed a Three-Day Notice To Pay Rent or Vacate. The three-day notice is a specific form dictated by the statutes. The wording is: You are hereby notified that you are indebted to me in the sum of   dollars for the rent and use of the premises (address of leased premises, including county), Florida, now occupied by you and that I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the   day of ,   (year) . This exact wording is not required, but the language has to be in substantially the same form as written above.   This 3-day notice is mandatory to the filing of an eviction action. If it is not served on the tenant, the Landlord cannot proceed with an eviction action.   The notice must be signed by the Landlord and his name and address must be at the bottom. The Notice must be served on the Tenant either by personal delivery, or if the Tenant is not home, by posting the notice on the front door of the rental unit. At the bottom of the Notice, the Landlord should certify what day and time the tenant was served, and whether the service was by personal delivery or posting. This certificate needs to be signed. While the landlord may choose to have witnesses confirm the service, there is no statutory requirement to do so. If the service is by posting, it may be beneficial to take a picture of the Notice after posting in case the Tenant claims they were not served, but again, there is no requirement to do so.

After the Three Day Notice has been served on the Tenant, the Tenant can cure the breach by paying the rent to the Landlord. During the three-day period (again, excluding the day of service, weekends and legal holidays), if the Tenant attempts to pay the rent to the Landlord, the Landlord MUST accept it. Refusal to accept the rent gives the Tenant an absolute defense to an eviction action. However, the Landlord does not have to accept anything less than full rent. In other words, if the Tenant offers to pay a portion of the rent within the three days and the remainder afterwards, the Landlord may lawfully refuse to accept it. The Landlord also does not have to accept rent in any manner other than what is required in the lease. If the lease requires the rent to be paid by certified check, the landlord does not have to accept a personal check. However, if the manner of payment is not addressed in writing, the Landlord must accept any tender of rent, regardless of the form. After the end of the three days, if the Tenant attempts to pay the rent, the Landlord may lawfully refuse to accept the rent and proceed with eviction.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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