Florida law has various tools to remove folks improperly in possession of Property. The basic tools include the following options under Florida Law: (1) Ejectment (2) Wrongful Detainer (3) Eviction. We will go over the basics of these and some differences:
What is an Eviction under Florida Law?
An eviction is a legal proceeding to remove a tenant that is governed by Chapter 83 Florida Statutes. You will use this remedy when the person occupying your property had the legal right to reside in the Property via a lease (written or oral).
-
Notices for Eviction
To actually remove a tenant you must provide notice under Florida law.
Common reasons for evictions would be nonpayment of rent or the tenant’s time period may have expired. To begin the eviction process, the landlord must also serve the tenant with a written notice to vacate. The type of notice required depends on the reason for the eviction. For example, if the tenant has failed to pay rent, the landlord can serve a “Three-Day Notice to Pay Rent or Vacate,” which gives the tenant three days to pay the rent or vacate the property. If the tenant has violated the terms of the lease agreement, the landlord can serve a “Seven-Day Notice to Cure or Vacate,” which gives the tenant seven days to fix the violation or vacate the property.
These rules are embedded in Fla. Stat. 83.56 which provides that a Landlord can send a 7 day notice specifying the non-compliance and either terminating if the non-compliance cannot be corrected and giving 7 days to vacate or if the issue can be remedied then a notice specifying the corrective action or that the rental agreement will be terminated. These are found in Fla. Stat. 83.56 which provides:
(2) If the tenant materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the landlord may:
(a) If such noncompliance is of a nature that the tenant should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the landlord of a similar violation, deliver a written notice to the tenant specifying the noncompliance and the landlord’s intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the tenant should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord’s or other tenants’ property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the landlord may terminate the rental agreement, and the tenant shall have 7 days from the date that the notice is delivered to vacate the premises. The notice shall be adequate if it is in substantially the following form:
You are advised that your lease is terminated effective immediately. You shall have 7 days from the delivery of this letter to vacate the premises. This action is taken because (cite the noncompliance) .
(b) 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 the written notice is delivered, the landlord shall terminate the rental agreement by reason thereof. Examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this act such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary. The notice shall be adequate if it is in substantially the following form:
You are hereby notified that (cite the noncompliance) . Demand is hereby made that you remedy the noncompliance within 7 days of receipt of this notice or your lease 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 12 months,
The most common reason for eviction is non-payment of rent. That has a 3 day notice provision as follows Fla. Stat. 83.56:
3) If the tenant fails to pay rent when due and the default continues for 3 days, excluding Saturday, Sunday, and legal holidays, after delivery of written demand by the landlord for payment of the rent or possession of the premises, the landlord may terminate the rental agreement. Legal holidays for the purpose of this section shall be court-observed holidays only. The 3-day notice shall contain a statement in substantially the following form:
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) .
So the failure to pay rent has a shorter notice period than non-compliance with a lease term (3 day v. 7 day notice).
The notice also must be served properly pursuant to Florida law to be valid.
When a tenant holds over, pursuant to Fla. Stat 83.06 a landlord may ask for double rent.
83.06 Right to demand double rent upon refusal to deliver possession.—
(1) When any tenant refuses to give up possession of the premises at the end of the tenant’s lease, the landlord, the landlord’s agent, attorney, or legal representatives, may demand of such tenant double the monthly rent, and may recover the same at the expiration of every month, or in the same proportion for a longer or shorter time by distress, in the manner pointed out hereinafter.
(2) All contracts for rent, verbal or in writing, shall bear interest from the time the rent becomes due, any law, usage or custom to the contrary notwithstanding.
- Evictions – Tenants are Required to Pay Rent into Court Registry or Motion Court to Obtain Relief from that Obligation.
One major area that trips up tenants in a Florida eviction is the failure to pay rent into the registry of the Court. The failure to do so can lead to a quick summary judgment. See Fla. Stat. 83.232
83.232 Rent paid into registry of court.—
(1) In an action by the landlord which includes a claim for possession of real property, the tenant shall pay into the court registry the amount alleged in the complaint as unpaid, or if such amount is contested, such amount as is determined by the court, and any rent accruing during the pendency of the action, when due, unless the tenant has interposed the defense of payment or satisfaction of the rent in the amount the complaint alleges as unpaid. Unless the tenant disputes the amount of accrued rent, the tenant must pay the amount alleged in the complaint into the court registry on or before the date on which his or her answer to the claim for possession is due. If the tenant contests the amount of accrued rent, the tenant must pay the amount determined by the court into the court registry on the day that the court makes its determination. The court may, however, extend these time periods to allow for later payment, upon good cause shown. Even though the defense of payment or satisfaction has been asserted, the court, in its discretion, may order the tenant to pay into the court registry the rent that accrues during the pendency of the action, the time of accrual being as set forth in the lease. If the landlord is in actual danger of loss of the premises or other hardship resulting from the loss of rental income from the premises, the landlord may apply to the court for disbursement of all or part of the funds so held in the court registry.
(2) If the tenant contests the amount of money to be placed into the court registry, any hearing regarding such dispute shall be limited to only the factual or legal issues concerning:
(a) Whether the tenant has been properly credited by the landlord with any and all rental payments made; and
(b) What properly constitutes rent under the provisions of the lease.
(3) The court, on its own motion, shall notify the tenant of the requirement that rent be paid into the court registry by order, which shall be issued immediately upon filing of the tenant’s initial pleading, motion, or other paper.
(4) The filing of a counterclaim for money damages does not relieve the tenant from depositing rent due into the registry of the court.
(5) Failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.
Plaintiffs (landlords) must provide a notice and then file an lawsuit to actually get the remedy of removal which is accomplished via removal by the sheriff after the entry of a final judgment through a document called a writ of possession.
83.241 Removal of tenant; process.—After entry of judgment in favor of plaintiff the clerk shall issue a writ to the sheriff describing the premises and commanding the sheriff to put plaintiff in possession.
What is an unlawful detainer in Florida Law?
An unlawful detainer action is a legal process that is similar to an eviction and allows for summary procedure. It is used in situations where someone who was allowed to stay on a property without a formal agreement or obligation to pay rent or utilities refuses to leave after the agreed upon time or after violating a condition. This can occur when friends, family members, or significant others are allowed to stay on a property and then refuse to leave after a break-up or when a child who is of majority age lives with their parents, does not pay rent or bills, and refuses to leave after engaging in behavior that angers the parents.
An unlawful detainer action is governed by Chapter 82 of the Florida Statutes and can be used when there is no rental agreement or landlord-tenant relationship, but the issue is solely possession of the property. These types of actions are common after a Probate proceeding where for example the person who owned the Property and gave permission/consent to stay passes away and the new owners withdraw that consent.
Unlawful detainers are used unlike an Eviction where there is no legal right to be in the Property in the first place. Plaintiff’s must establish that they own the Property and that the Defendants are in possession of the Property without the consent of the owner(s).
What is an Ejectment under Florida Law?
An ejectment on the other hand is brought when there is a dispute as to ownership regarding the property and you anticipate that the Defendant will claim some right to title or possession of the Property. Ejectment is a legal action that can be taken by a person with a superior right to possession of real property to recover possession of the property. It is governed by Fla. Stat. 66.021 which provides:
(1) Right of action.–A person with a superior right to possession of real property may maintain an action of ejectment to recover possession of the property.
(2) Jurisdiction.–Circuit courts have exclusive jurisdiction in an action of ejectment.
(3) Notice.–A plaintiff may not be required to provide any presuit notice or presuit demand to a defendant as a condition to maintaining an action under this section.
(4) Landlord not a defendant.–When it appears before trial that a defendant in an action of ejectment is in possession as a tenant and that his or her landlord is not a party, the landlord must be made a party before further proceeding unless otherwise ordered by the court.
(5) Defense may be limited.–A defendant in an action of ejectment may limit his or her defense to a part of the property mentioned in the complaint, describing such part with reasonable certainty.
(6) Writ of possession; execution to be joint or several.–When plaintiff recovers in an action of ejectment, he or she may have one writ for possession and for damages and costs or, at his or her election, may have separate writs for possession and for damages and costs.
(7) Chain of title.–The complaint and the answer must include a statement setting forth, chronologically, the chain of title upon which the party will rely at trial. Copies of each instrument identified in the statement must be attached to the complaint or answer. The statement must include the names of the grantors and the grantees, the date that each instrument was recorded, and the book and page or the instrument number for each recorded instrument. If a party relies on a claim or right without color of title, the statement must specify how and when the claim originated and the facts on which the claim is based. If defendant and plaintiff claim under a common source, the statement need not deraign title before the common source.
(8) Testing sufficiency.–If either party seeks to test the legal sufficiency of any instrument or court proceeding in the chain of title of the opposite party, the party must do so before trial by motion setting up his or her objections with a copy of the instrument or court proceedings attached. The motion must be disposed of before trial. If either party determines that he or she will be unable to maintain his or her claim by reason of the order, that party may so state in the record and final judgment shall be entered for the opposing party.
(9) Operation.–This section is cumulative to other existing remedies and may not be construed to limit other remedies that are available under the laws of this state.
What is the difference between unlawful detainer, ejectment and eviction under Florida Law?
Eviction is used for when there is a Landlord tenant relationship, while ejectments and wrongful detainers under Florida law are where no such relationship exists. A wrongful detainer should be used when the person in possession has no legal claim to ownership interest of the property. Conversely if there is to be some claim or right to the Property and ejectment action is the Proper remedy.
How Long Does it Take to Remove Someone from my Property Under Florida Law?
That depends on the nature of the case. Florida law allows for a quick summary procedure for both evictions and unlawful detainers but they are fact specific and a good Defense counsel or savvy tenant can plead defenses to extend the time. So anywhere from several weeks to months depending on the pleadings and the procedure followed in the case.
Ejectments on the other hand are about title/ownership and are brough in circuit civil court so typically take longer. (months to a year in some litigated cases).
If you are facing an unlawful detainer action or any other legal issues related to possession of a property, we encourage you to call our office for help. Our experienced attorneys can provide you with the guidance and representation you need to navigate the legal process and protect your rights. We offer free no obligation consultations and we litigate real property actions, including the ones addressed in this article throughout the State.
