c. Late fees, utility charges, and attorneys fees should not be included in the Three-day Notice unless specifically designated as rent in the written lease. A Three day Notice demanding payment of such charges may be deemed invalid and thereby tainting the entire eviction process.

2. Complaint for Removal of Tenant

The Complaint must describe the premises in question and the alleged facts authorizing recovery of possession, such as service of the Three-day Notice, and the Tenant's failure to comply with said Notice. A copy of the Notice should be attached as an Exhibit to the Complaint, together with a copy of the lease agreement.

3. Summons

A Summons is used in eviction actions which requires the Tenant to file an Answer to the Complaint within five (5) business days of service of the Complaint. This five-day period for answering is computed excluding Saturday, Sunday, and legal holidays. This is for possession only. If a money judgment for unpaid rent is requested, 20 days (from date of service and including weekends) is given for response to the money claim.

4. Default Judgment

If the Tenant fails to file any response to the Complaint within the time permitted, the Landlord is entitled to apply for entry of a default by the Clerk. The following will be submitted to the Clerk:

a Motion for Default and Judgment

b. Affidavit as to Tenant's Nonmilitary Status

c. Affidavit of Nonpayment of Rent and Retention of Possession

d. Proposed Default Final Judgment for Removal of Tenant

e. Copies of the Judgment to be conformed and returned to Landlord and the defaulting Tenant

f. A Writ of Possession should be submitted contemporaneously with the Default, (which will be issued and transmitted to the Sheriff), together with a check payable to the Sheriff for $70.00 for service fees.

5. Final Judgment

If the Landlord prevails in the eviction, the Court will enter a judgment awarding possession of the premises to the Landlord and will direct the Clerk to issue the Writ of Possession, and the sheriff to serve the same. The Sheriff is required to give the residential Tenant a minimum of 24 hours' notice, posted conspicuously on the premises, prior to removing the Tenant. The Sheriff is not required to remove the Tenant's property in order to give the Landlord possession. The Writ of Possession should list the Landlord's name and phone number as contact person for the Sheriff.

B. Responsive Pleadings by Tenant/Defendant

1. Answer

Defendant's (Tenant's) Answer shall be filed within five (5) days after service of process and should include all their defenses. When the Defendant answers, a hearing must then be scheduled.

2. Notice of Hearing

Notice of Hearing is mailed to Defendant by U.S. mail, stating date and time of the hearing. Time set aside is generally 30 minutes, and the hearing is generally set for within 10 to 20 days.

3. Rent Deposit (Florida Statute 83.60(2)

a. If the Tenant proposes any defense other than payment, the Tenant must pay into the Registry of the Court the accrued rent as alleged in the Complaint and the rent which accrues during the pendency of the proceedings when due.

b. Failure of the Tenant to deposit the rent into the Court Registry constitutes an absolute waiver of the Tenant's defenses and the Landlord is entitled to immediate default without further notice of the hearing thereon. Not all judges, however, will grant the default.

c. The Statute is silent as to exactly when the deposit must be made, and logically, should be made no later than by the filing of the Answer. However, many judges permit deposit up to the time of the hearing.

d. The Tenant's payment of rent into the Court Registry does not cure the Tenant's default of nonpayment nor deprive the Landlord's right to terminate the lease for nonpay­ment after the Three-day Notice was served. It does, however, protect the Landlord's right to recover the unpaid rents.

4. Judgment

If the Landlord prevails in the eviction action, a Final Judgment will be entered by the Court awarding possession of the premises to the Landlord and directing the Clerk to issue the Writ of Possession, and the Sheriff to serve the same.

C. Attorney's Fees

A Court may award attorney's fees to the Landlord who obtains a judgment for possession. The judgment will be for possession, court costs and attorneys fees, but not unpaid rent.

D. Time

Florida Landlord/Tenant eviction procedures can be expected to take approximately 30 days from beginning to end.

II. TERMINATING THE TENANCY FOR NONCOMPLIANCE OTHER THAN NONPAYMENT OF RENT (Florida Statute 83.56)

A. Procedure for effecting the Landlord's rights to terminate the residential tenancy depends upon the nature of the noncompliance. But each begins with service of a Seven-day Notice.

1. Noncompliance of a Nature That the Tenant Shall Be Given an Opportunity to Cure

The Landlord can deliver a written notice to the Tenant specifying the noncompliance, including a notice that if the noncompliance is not corrected within seven days from the date of the delivery of the written notice, the Landlord shall terminate the rental agreement, and, even if cured, if the same violation occurs again within 12 months of the first notice, the lease will be terminated.

2. Noncompliance of a Nature That the Tenant Should Not Be Given an Opportunity to Cure, or, If the Noncompliance Constitutes a Subsequent or Continuing Noncompliance Within Twelve Months of the First Written Warning of a Similar Violation

Landlord can deliver a seven-day written notice to the Tenant terminating the rental agreement, specifying the noncompliance and providing the Tenant with seven days from the date the notice is delivered to vacate the premises.

B. The Seven-day Notice

1. The Notice shall be served in the same manner as the Three-day Notice, except that the Seven-day Notice period does not exclude Saturdays, Sundays and legal holidays.

2. Seven-day Notice should inform the Tenant of the facts upon which the Landlord relies to support the alleged noncompliance.

3. If notice of noncompliance is based on more than one violation, the notice should so state.

4. Florida Statute 83.56(2) provides that the Seven day Notice shall be adequate if it is substantially in the form set forth in that statute.

5. A notice with opportunity to cure should always contain the statutory language that if the same conduct or conduct of a similar nature is repeated within 12 months, the tenancy is subject to termination without opportunity to cure the noncompliance.

III. ABANDONMENT OF PERSONAL PROPERTY - AFTER TENANCY HAS BEEN TERMINATED (Florida Statute 715.104)

A. Notification of Former Tenant

1. Landlord shall give written notice to the Tenant and to any other person the Landlord reasonably believes to be the owner of the property.

2. Notice Form Requirements (Florida Statute 715.105)

a. Notice shall include:

(1) Name and last known address of former tenant;

(2) Address of premises, including apartment number;

(3) Description of the property in a manner reasonably adequate to permit the owner to identify it;

(4) Address where property may be claimed;

(5) The date before which the claim must be made (date specified shall be a date not fewer than 10 days after the notice is personally delivered or, if mailed, not fewer than 15 days after the notice is deposited in the mail);

(6) Advice to the person to be notified that reasonable costs of storage may be charged before the property is returned;

(7) One of the following statements, depending on the value of the property:

(a) Over $250.00. "If you fail to reclaim the property, it will be sold at a public sale after notice of the sale has been published. You have the right to bid on the property at this sale. After the property is sold, and the cost of storage, advertising, and sale are deducted, the remaining money will be paid over to the County. You may claim the remaining money at any time within one year after the County receives the money." OR

(b) Under $250.00. "Because the property is believed to be worth less than $250.00, it may be kept, sold, or destroyed without further notice if you fail to reclaim it within the time indicated above."

3. If the notice goes to an owner other than the former Tenant, see Florida Statute 715.106.

B. Storage of Abandoned Property

The personal property described in the notice either shall be left on the vacated premises or stored by the Landlord in a place of safekeeping until the Landlord either releases the property or disposes of the property. The Landlord shall exercise reasonable care in storing the property but he is not liable to the Tenant or any other owner for any loss unless caused by the Landlord's deliberate or negligent act.

C. Release of Personal Property

Personal property shall be released by the Landlord to the former Tenant, or, at the Landlord's option, to any person reasonably believed by the Landlord to be its owner, if such Tenant or other person pays the reasonable cost of storage and advertising and takes possession of the property not later than the date specified in the notice.

D. Personal Property Which Will be Sold at a Public Sale

The Landlord must give notice of the time and place of the public sale by an advertisement of the sale published once a week for two consecutive weeks in a newspaper of general circulation where the sale is to be held.

a. Sale must be held at nearest suitable place where the property is held or stored.

b. Advertisement must include a description of the goods, the name of the former Tenant, and the time and place of the sale.

c. Sale must take place at least ten days after the first publication.

d. The last publication shall be at least five days before the sale is to be held.

IV. TERMINATING THE PERIODIC TENANCY

A. Residential Rental Agreement Which Does Not Provide For Duration of Tenancy

1. The duration is determined by the periods for which the rent is payable. (Week to week, month to month, quarter to quarter, year to year, etc.)

2. Terminating the Residential Tenancy Without Specific Duration May be Terminated by Giving the Following Notice

a. Not less than 60 days prior to the end of the annual period if the tenancy is from year to year.

b. Not less than 30 days prior to the end of any quarterly period where the tenancy is from quarter to quarter.

c. Not less than 15 days prior to the end of any monthly period where the tenancy is from month to month.

d. Not less than 7 days prior to the end of any weekly period where the tenancy is from week to week.

NOTE: In all cases, the notice is not sufficient if it just states 7, 15, 30, or 60 days (whichever is appropriate) without that period ending at the end of a periodic term. A month to month lease which is usually paid on the 1st of each month cannot be terminated by giving 15 days notice on the 20th of the month to be out by the 5th of the next month.

3. Service of Notice of Termination

Shall be the same as for delivery of the Three-day Notice.

V. DEPOSIT MONEY - CLAIM FOR SECURITY DEPOSIT

A. Under Florida Statute 83.49(3)(a), upon vacating of the premises upon termination of the lease, the Landlord shall have 15 days to return the security deposit, together with interest if otherwise required, or in which to give Tenant written notice by Certified Mail to the Tenant's last known mailing address, of his intention to impose a claim on the deposit and the reason for imposing the claim.

1. If the Landlord fails to give the required notice within the 15-day period, he forfeits his right to impose a claim upon the security deposit, even if there is damage.

2. Unless the Tenant objects to the imposition of the Landlord's claim or the amount thereof within 15 days after receipt of the Landlord's notice of intention to impose a claim, the Landlord may then deduct the amount of his claim and shall remit the balance of the deposit to the Tenant within 30 days after the date of the notice of intention to impose a claim for damages.

3. Except when otherwise provided by the terms of a written lease, any Tenant who vacates or abandons the premises prior to expiration of the term specified in the written lease, or any Tenant who vacates or abandons a premises which are the subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least seven days' written notice by Certified Mail or personal delivery to the Landlord prior to vacating or abandoning the premises, which notice shall include the address where the Tenant may be reached. Failure to give such notice shall relieve the Landlord of the notice requirement described above in Paragraph A, but shall not waive any right the Tenant may have to his security deposit or any part of it.

VI. FEE RETAINERS

A. Consultation (per 30-minute block) $ 50.00