If a tenant has violated the lease agreement or the tenant's obligations under F.S. 83.52, the landlord must follow the notice requirements provided in F.S. 83.56(2)(b).
F.S. 83.56(2)(b) states,
If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, deliver a written notice to the tenant specifying the noncompliance, including a notice that, if the noncompliance is not corrected within 7 days from the date that the written notice is delivered, the landlord shall terminate the rental agreement by reason thereof… If such noncompliance recurs within 12 months after notice, an eviction action may commence without delivering a subsequent notice pursuant to paragraph (a) or this paragraph…
Examples of Curable Violations
Statutory examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this part such as:
having or permitting unauthorized pets, guests, or vehicles,
parking in an unauthorized manner or permitting such parking, and
failing to keep the premises clean and sanitary.
Other examples may include,
tenant violated an HOA rule, e.g. not maintaining the lawn.
tenant didn’t put utilities in his name upon move-in.
Elements of a Proper 7 Day Notice to Cure
-Specify the noncompliance to be cured.
Courts require specificity regarding the facts that form the basis of the non-compliance. This includes the statute or lease provision that the tenant violated, and the facts that constitute the violation. The lack of specificity may render the notice legally defective and serve as a legal defense to the eviction based on that notice.
-Demand that the tenant cure the stated noncompliance.
-State the landlord’s intent to terminate lease if tenant does not comply.
-State that if the tenant commits the same or similar violation within 12 months of the notice may result in termination of the lease without further warning or opportunity to cure.
Attorney Preparation
In MIAMI SOAR MANAGEMENT CORP v. LUIS VINDELL, 2019-010939-CC-05, County Court, 11th Judicial Circuit in and for Miami-Dade County (August 13, 2019), the court dismissed the plaintiff’s eviction that was based on a Notice to Cure, ruling that the notice was defective as it was not based on nonpayment of rent, and it was drafted and served by a property manager and not an attorney.
On this ruling, property managers must have an attorney draft a 7 day notice to cure, but individual landlords who own the rental property may prepare their own notices. However, if the landlord is a company that manages its own rental properties, a court may still require the company to have an attorney prepare the 7 day notice since companies cannot practice law without a license.
Waiver
F.S. 83.56(5)(a) provides,
“If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions,… the landlord [ ] waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance. However, a landlord does not waive the right to terminate the rental agreement or to bring a civil action for that noncompliance by accepting partial rent for the period."
The following landlord actions constitute a waiver to evict:
The landlord accepts full rent payment with actual knowledge of a noncompliance by the tenant, and
The landlord accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions.
Actions That Do Not Constitute Waiver
The following do not constitute a waiver to evict:
The tenant commits a subsequent non-compliance.
The tenant’s non-compliance is continuing in nature.
For example, the 3rd District Court of Appeals ruled that a landlord was permitted to accept rent during the notice to cure period. There, the landlord gave the tenant 60 days to pay for insurance. The tenant paid rent the next month prior to expiration of the 60 days. The court ruled that acceptance of the rent did not constitute a waiver. Cricket Club Mgt. Corp. v. Cricket Club Condo., Inc., 510 So. 2d 1162 (Fla. 3d DCA 1987).
The Landlord accepts partial rent for the period.
One Florida court held that a “no waiver” lease provision permitted the landlord to accept rent or a variance of the lease and not waive his right to evict. Eskridge v. Macklevy, Inc., 468 So. 2d 337 (Fla. 1st DCA 1985).
Tip: ensure that your lease agreement has a “no waiver” lease provision so that if a tenant defends on this ground, the landlord has a legal argument to overcome of the defense.
Example “No Waiver” lease provision: “The parties agree that the Landlord does not waive its right to institute an action for possession against the Tenant if the Tenant is in non-compliance with his or her tenancy obligations and the Landlord accepts rent after knowing of the non-compliance.”
Improper 7 Day Notice to Cure Language
To Tenant:
I am sick and tired of your annoying and bad behavior. Get out in 7 days.
Signed, Landlord
ANALYSIS: The notice fails to give tenant the opportunity to correct his alleged “annoying and bad” behavior and lack specificity. ____________________________________________________________________
To Tenant:
I have asked you several times not to have unauthorized occupants in the apartment. If you don’t correct this by the end of the month, I will terminate the rental agreement.
Signed, Landlord
ANALYSIS: The notice fails to give the tenant 7 days to correct the deficiency and lacks specificity.
____________________________________________________________________
To Tenant:
On July 4, (year), you fired a gun at one of the other tenants. You have violated your rental agreement, para. 15, and are required to vacate within 7 days of receipt of this notice.
Sincerely, Landlord
ANALYSIS: This notice likely comply with 83.56(2) in that it specifies the lease provision violated and conduct the tenant committed to violate the provision. The conduct was also of a nature that he should not be given an opportunity to cure.
____________________________________________________________________
To Tenant:
The lease agreement, para. 12, prohibits you from having pets. You have pets. You have 7 days from receipt of this notice to remove your pets, or else I will terminate your rental agreement.
Signed, Landlord
ANALYSIS: This notice may not comply with 83.56(2)(b) since it fails to notify the tenant that if this same conduct or conduct of a similar nature is repeated within 12 months, the tenancy is subject to termination without the tenant being given an opportunity to cure the noncompliance. If the statutory language is not required, then the notice would likely comply, but the language is required, then the notice is insufficient for lack of statutory language.
Example of Proper 7 Day Notice to Cure
Tenant: Tom Jones (hereinafter “you”, “your”)
From: ABC Property Management, Inc. (hereinafter “we”, “us”, “our”, “Landlord”)
Date: May 15, 2019
Premises: 123 Main St., Pensacola, FL 32501 (hereinafter “premises”)
You are notified that you have violated your lease agreement and/or Florida law as follows:
The lease agreement, para. 20(b), requires you to keep the premises in safe and sanitary condition and to behave and act in a manner that does not disturb the neighbors; para. 20(c) prohibits you from disturbing the quiet use and enjoyment of their property; para. 20(f) prohibits you from having any animals not permitted by the landlord; and Florida Statutes 83.52 requires you to keep the premises uses clean and sanitary, not to destroy, deface, damage, impair, or remove any part of the premises or property, and not to disturb the neighbors.
Since May 3, 2019, we and neighbors have observed that you are allowing animals on the premises that have not been authorized by us and are encouraging feral animals to frequent, including feeding them and allowing them to enter into the premises; and on or about May 14, 2019, the feral animals caused property damage to the premises, including defecating on the carpet.
This is a curable violation of your lease agreement and/or Florida Statutes ch. 83, pt. 2.
DEMAND IS HEREBY MADE THAT YOU REMEDY THE NON-COMPLIANCE(S) WITHIN SEVEN (7) DAYS OF RECEIPT OF THIS NOTICE OR YOUR RENTAL AGREEMENT SHALL BE DEEMED TERMINATED AND YOU SHALL VACATE THE PREMISES UPON SUCH TERMINATION. IF THIS SAME CONDUCT OR CONDUCT OF A SIMILAR NATURE IS REPEATED WITHIN TWELVE (12) MONTHS, YOUR TENANCY IS SUBJECT TO TERMINATION WITHOUT YOUR BEING GIVEN AN OPPORTUNITY TO CURE THE NON-COMPLIANCE(S).
Landlord Signature