My Favorite Eviction Maneuver

Let's face it -- anyone that's had the pleasure (ha!) of being a landlord, has had to deal with pre-eviction notices to delinquent tenants.

In Florida, the notice that immediately precedes the filing of an eviction action is, in most instances, a three day notice. This notice gives the tenant three days from the day after posting (not including holidays and weekends) to vacate the subject property or the landlord is free to file an eviction action obligating the tenant to appear in front of the Judge and/or risk being forcibly removed by the sheriff.

Soup-to-nuts, a Florida eviction is relatively easy as long as the landlord has followed the law. The eviction can take anywhere from three weeks (for possession only) to three months (if you're looking for monetary damages) depending upon the skill of the tenant and/or their attorney.

Personally, my eviction actions are filed for possession only, the reason being, service is accomplished by merely posting the complaint on the front door of the subject property. Once the documents are posted the clock starts running towards the eventual (I hope) default of the tenant. If an eviction action seeks damages (money for back rent for example) the tenant would have to be personally served (which can sometimes resemble trying to tape jello to a moving car) and would also be given more time to file an answer.

Invariably, my delivery of the three day notice moves the delinquent tenant into action -- they decide it's time to call me. The reason for their call is to: a) explain the reason behind their delinquency (I swear there's a book of excuses that gets passed around from tenant to tenant); b) complain about the property being in disrepair (only to find out from the plumber that "someone" had flushed two McDonald's bags down the toilet); and c) ask me to allow them to catch up by paying, for example, an extra $150.00 a month in addition to their current rent until they are up-to-date once again.

After two months of having to make my mortgage payment without the benefit of collecting any rent; I drew up an agreement outlining our delinquent payment arrangement and accepted a token portion of what I was due (which will serve to essentially dismiss my eviction action). I wanted to accept their money, and I even wanted to believe their promise to make extra payments. Heck, I had a mortgage to pay

During the early years of my land-lording, I never even once, had a "payment plan" work out the way I intended. Instead, I learned that the payment plan only truly benefited the delinquent tenant. Why do I say this, you ask?

All the "payment plan" truly did was get me to accept less money than I was entitled to from the delinquent tenant and reduce the pressure on the tenant. Once I accepted any money after the delivery of the three day notice, I had to start the proceedings over again, thereby removing my hammer and eliminating the immediate threat of eviction.

Please sit down, for what I have to say next is going to change your land-lording life forever. You'll either love what I'm about to tell you or you'll think I'm a bozo and laugh yourself silly.

What I eventually came to realize was that my agreement allowing the tenant to remain in the property and make "extra payments" had no teeth; no enforceability, until...

... I came up with a way to put teeth into my agreement. I discovered a way to post only one three day notice (per occurrence) and a way to keep the pressure on the delinquent tenant until they were delinquent no more by including the power of the court in my agreement!

(Fast rewind back to right after the delivery of the three day notice and the delinquent tenant calling for a payment plan) Instead of merely collecting whatever I could and having only an empty promise to count on, I explain a potential payment plan in this fashion:

"Mr. Delinquent tenant, thank you for calling. Should I agree to accept any payment plan allowing you to catch up, this is the way we are going to structure the transaction."

"I must continue with the filing of the eviction action and, just after my filing the cause of action, you and I will sit down and execute a "Stipulation". (Because it will contain both our signatures, the court will most likely ratify it without the necessity of a hearing.) This document will serve to outline our payment plan to the court."

"Once the stipulation is completed and the eviction action is of record, we will submit it to the court for the Judge's approval. Once the court approves the payment plan, we can move forward to getting you current."

By presenting this option to the tenant, both of you will learn something very valuable about each other -- the tenant will learn that you are to be taken seriously, and you will learn if the tenant is hollow in his promise to catch up. You see, very rare is the delinquent tenant that is willing to enter into any sort of stipulation that legally allows you to bypass any additional notice requirements. If they sign it, you have your hammer in place, and if they don't, you can continue with the eviction action as was planned when the three day notice was first posted.

Essentially, what has happened is I now have the power of the court behind me, through my agreement; to continue my eviction action, without notice, upon any default (missed payments), there will be no need for additional time-killing and money wasting notices -- simply notify the court of the default under the agreement and ask for the immediate entry of a Final Judgment and the issuance of a Writ of Possession.

By using this technique or any version that brings the court into your agreements with delinquent tenants, you will save time and money and let your tenants know that you are not to be trifled with.

In light of the sometimes not-so-obvious land mines inherent to any landlord tenant event, please consult competent legal council prior to entering into or drafting any legally binding agreements.