Serving Evictions

Serving process in Landlord/Tenant actions, also known as Evictions, is a type of service that requires some special considerations and handling. In this article we discuss serving in Landlord/Tenant actions.

Rules vary from state to state, which may change the role you serve in the process. For this article will focus on serving in Florida. Many of the general guidelines and tips apply to serving evictions in general, but for details on the rules and forms for other states, here is a site that can provide you with the eviction rules by state.

Notices – Types and How to Deliver

In Florida, the process server may become involved prior to the case being filed, by delivering the initial notice, which is a written document that must be delivered before starting the eviction process.

A common example of a notice is the 3-Day Notice for nonpayment of rent. These notices may be delivered to a resident or posted on the door during a single attempt at the property. If a resident answers the door you deliver it after you write the date, time, and your initials on it. If no one answers, you complete the service section and post it on the door. If it is a different type of notice, confirm with your Client their preference on whether they want the notice delivered or posted. Other types of notices include:

• 30-Day Notice
• 15-Day Notice
• 7-Day Notice to Cure

If you are assisting your Client with notices, pay special attention to the date the tenant is required to respond. These are time specific and must be completed correctly to avoid jeopardizing when the case can be filed. If you serve a notice incorrectly, especially the longer notices, such as the 15-Day or 30-Day Notice, it could result in a significant delay for your Client.

Most Clients will ask you when you plan to deliver or post the notice and then calculate and enter the time to respond prior to signing the notice, and provide you with a fully completed notice based on your answer. This practice would be best for you, because as long as you deliver/post the notice when you said you would, any date error will not be yours.

However, some Clients will ask the person delivering the notice to enter the date required for the tenant to respond. In these situations, you must follow the rules of Computation of Time to enter the date prior to delivery. In Florida, you do not include the date of delivery and you would count forward excluding Saturdays, Sundays, and legal holidays. If the last day is a Saturday, Sunday, or Legal Holiday the date would be the next day that is not a Saturday, Sunday, or Legal Holiday. This would also include any day the court is closed or local legal holiday. If you are unfamiliar with Computation of Time procedures or are in doubt about the date to put on the notice, confirm your calculation with your Client. You can review the Florida Rules at https://www-media.floridabar.org/uploads/2020/09/Appellate-Court-Rules-07-31-20-2.pdf (search for Rule 2.514).

The Summons – Understanding and Confirming Prior to Executing Service

Once the notice has been properly delivered and the time for the tenant to respond has elapsed, the Plaintiff will file their case and the Eviction Summons will be issued.

Summons Type

When you receive the summons, determine the type of summons. You can identify this by reading the summons and identifying if Count I or Count II are completed.

• Count I is for possession only of the property in question and the Defendant has only 5 days to respond. In Florida, the 5-Day Eviction Summons for nonpayment of rent is one of the rare documents that may be posted if all statutory conditions are complied with and after proper attempts have been completed. The 5-Day Eviction Summons is time sensitive and your Clients will expect that you will move to complete your attempts as quickly as possible. They should be a top priority for you. 
• Count II is for back due rent and the Defendant has 20 days to respond. A 20-Day Eviction Summons cannot be enforced unless it is served to an individual. It cannot be posted.

If you are unsure or the service instructions from your Client do not match your understanding of how to server the 5-Day or 20-Day, confirm your service instructions with your Client.

Many Clients will combine the 5-Day and 20-Day into a single summons, by completing both Count I and Count II on the summons – sometimes called a hybrid summons – and request that you complete the required attempts pursuant to Florida Statute (FS) 183. This hybrid summons is issued in many instances, because the most important objective to the Client is to complete service quickly and get the case moving forward. In this situation,

• Quickly attempt to serve the 5-Day portion of the summons, and if you have not been able to get an answer at the door by your last attempt, you are permitted to post the process.
• If you posted the summons, the Client may decide to re-issue a 20-Day Summons for you to continue to attempt to serve the Defendant.

Some Clients may provide you with separate 5-Day and 20-Day Summons. In this case, enter each summons as an individual job and serve each according to its rules.

Mailings for 5-Day Summons

If you post the 5-Day Summons, the Clerk of the Court is required to mail a copy of the summons and complaint to the Defendant.

• Florida Statute 48.183 (2): If a landlord causes or anticipates causing a defendant to be served with a summons and complaint solely by attaching them to some conspicuous place on the property described in the complaint or summons, the landlord shall provide the clerk of the court with an additional copy of the complaint and a pre-stamped envelope addressed to the defendant at the premises involved in the proceeding. The clerk of the court shall immediately mail the copy of the summons and complaint by first-class mail, note the fact of mailing in the docket, and file a certificate in the court file of the fact and date of mailing. Service shall be effective on the date of posting or mailing, whichever occurs later, and at least 5 days must elapse from the date of service before a judgment for final removal of the defendant may be entered.

The underlined section means if you post the Summons and Complaint quickly but the mailing is not sent for a week after you post the documents, the 5 days begins from the date the clerk sends the mailing, as opposed to the date you posted. To help your Client avoid another potential big delay, you can offer printing the Summons and Complaint and delivering it, with the required addressed envelope and postage, to the Clerk of Court.

Confirming the Documents

Prior to serving confirm the documents. Look through them to ensure there are no errors or typos in the address of the property. This can be done by looking at the address on the summons, the address that is listed in the complaint, and comparing it to the address on the Notice. If you find any discrepancies, immediately stop and call your Client. They may have to amend the documents and furnish you with new ones. Although this confirmation should be completed by your Client prior to sending you the papers, errors do happen. Taking this step to confirm the documents shows you are experienced and dedicated to ensuring the documents are correct so that your service of process will be accurate.

This high level of observation should continue when you attempt service. Immediately report to your Client if you find a unit number is missing from the door of an apartment, the unit has been re-numbered, or any other potential error with the address. This is important, because the Sheriff cannot execute a Writ of Possession if the address is incorrect.

Executing Service of the Summons and Complaint

Now that you have your Client’s preferences, and have confirmed the papers, let’s discuss it’s time to perform the actual service.

5-Day Summons

A Florida 5-Day Summons for Eviction may be posted if you have complied with the requirements in FS 48.183.

• In an action for possession of any residential premises, including those under chapters 83, 723, and 513, or nonresidential premises, if the tenant cannot be found in the county or there is no person 15 years of age or older residing at the tenant's usual place of abode in the county after at least two attempts to obtain service as provided above in this subsection, summons may be served by attaching a copy to a conspicuous place on the property described in the complaint or summons. The minimum time delay between the two attempts to obtain service shall be 6 hours. Nothing herein shall be construed as prohibiting service of process on a tenant as is otherwise provided on defendants in civil cases.

You are required to perform a total of 3 actual attempts (with the final attempt being the posting) at the door but only 6 hours between two of your attempts. For example:

• Your first attempt to serve is Monday at 8:00 a.m. There is no answer.
• Your second attempt to serve is Monday at 2:00 p.m. (6 Hours later). There is no answer.
• Your final attempt and posting is Monday at 2:05 p.m. Attempt one last time and then post on a conspicuous place on the property (typically the front door).

When posting on a door it is recommended you use blue painter’s tape. Using any other kind of tape may cause damage. Ensure you have endorsed your Summons and Complaint and affix without covering any of the language on the document.

In some instances, you may not have access to the property, such as if the property is gated or other situations where you have no access to the main entrance of the residence. In that case you need to post the documents on the gate. Once you endorse the Summons and Complaint it may be best to put the papers in a clear zip lock bag (to protect them from the weather) and tape it to the gate.

There are a few other situations you may encounter:

• Property is found to be vacant. You are still required to complete all of your attempts prior to posting. You cannot post documents on your first attempt just because it is vacant, or a neighbor or property manager tells you they have moved out.
• You have two defendants and find that one has moved out. In this situation you will serve the defendant that still lives there and return to complete your attempts and post for the defendant who has moved. You cannot perform a substitute service because they are no longer a co-resident. It’s best to let the resident know that you will have to return later to do this because of state rules. You will be required to knock again and post the Summons and Complaint to the door – it might be helpful to apologize in advance for the disruption to avoid any possible confrontation when you return. In this case, don’t forget the Clerk of the Court will need to send a mailing for the defendant no longer in residence.

20-Day Summons

If your Client has provided a separate summons for Count II, you will continue to attempt to serve this Summons and Complaint either at the residence or any other address you are able to locate to serve them. Remember that a 20-Day Summons and Complaint must be served to an individual. It cannot be posted.

Commercial Evictions versus Residential Evictions

Commercial evictions are very similar to residential evictions – they use similar notices and summons with the similar time requirements. The only significant difference with a commercial eviction is that the mailing required if a 5-Day Summons is posted must include two complete copies of the Summons and Complaint package, including envelopes and postage for each copy.

Other Eviction Types

Other types of landlord/tenant cases are:

• Unlawful Detainer, where there is no lease or rental agreement but persons are allowed to stay on a property with no rent or payment and then refuse to leave. A common example is when a boyfriend and girlfriend live together in a house owned by one of them. After they break-up, the non-owner of the property refuses to leave the house.
• Ejectment, where the person the owner of the property wants to leave claims to have some sort of right to the property.

For these special cases, carefully review the summons to confirm if it requires a response within 20 days or 5 days and how you must proceed with service.

Safety Considerations

While serving these evictions may appear to be extremely simple to accomplish due to the minimum number of attempts, they involve dealing with individuals who are being notified a case has been filed for them to be evicted from their home or place of business. Having and reviewing your safety plan frequently is a good idea. Here are a few recommendations to consider:

• Exercise a heightened level of awareness of your surroundings.
• Ensure you have planned your exit from the property after you complete your service. It may be best to park at the road in a manner that you can quickly enter your vehicle and leave.
• If you are posting the document, have your endorsement completed and tape on the corners of the document so you can attempt and post quickly. It is easy to remove the tape if someone answers the door.
• Exhibit a compassionate approach and work to de-escalate any hostile behavior. You never want to offer any type of advice or make any comments regarding the service, but a simple kind word of understanding may keep the situation from becoming volatile.
• Do NOT turn your back on someone during or after service – keep your view of them until you are off the property and safely in your vehicle.

For more tips, check out our article on serving safely.

Know your State Rules

Serving process in landlord/tenant actions can be very simple once you are clear on the rules.

For Florida, you can read through the statutes regarding serving on the Florida Legislative website. Here are the Statutes pertaining to Landlord/Tenant actions:

• Florida Statute 48.183
• Chapter 83
• Chapter 723
• Chapter 513

For other states, here is a site that can provide you with the eviction rules by state.