Florida Landlord Tenant Act
It is very common place to have a tenant that refuses to pay and then refuses to leave. Laws have been changed such that the person that is squatting in your home, and not paying a thing, is protected by the law. No, this does not include your kids. They are protected by a different law. In Florida, the law that protects the tenant is Florida Statutes 83, also known as the Florida Landlord Tenant Act.
Eviction Notice
To remove a tenant from the property, the first step is to cancel the lease. Even if there is no lease, the tenant could imply there was an “oral lease.” An oral lease does not have to be proven, it has to be disproven. All the tenant needs to claim is that there was an oral lease. The burden then shifts to the landlord to prove that no such lease was formed. This is just a time-delaying fight that gives the tenant more time on the property. Termination of an oral lease has to be written. Just to be safe, on the notice to evict, state that if a lease were inferred, that lease is also terminated.
Self Help
All too often, once the lease has been terminated or the tenant has not paid the rent, the landlord feels they can just turn off the power, change the locks or just through the household items to the curb. This is call “self help.” Self help is frowned on by the courts. Somewhere through the evolution of the state’s laws, the right for someone to have shelter outweighed the right of the shelter’s owner for possession. If someone refuses to move out, the only option is through the courts.
File lawsuit
After an eviction notice and if the tenant still refuses to leave, a lawsuit is filed in the local county court. The lawsuit must be served on the tenant. The best method is to have the Sheriff’s office serve the summons. Then the court is assured the tenant was served.
Summons on Tenant
Some tenants feel that if they do not get served, the lawsuit is stalled. For evictions, the process server or Sheriff can make two attempts at different times. After that, the eviction summons can be posted on the door.
Default
If the tenant desires to fight the eviction, and it is for a lack of payment of rent, the tenant needs to place a sufficient amount into the court’s registry. Without placing the money in the registry, they cannot fight the eviction. Even if the tenant claims they owe no money, they must still place funds into the registry. If the tenant does nothing, then in five days a Motion for Default, a Default Order, Motion for Final Judgment and Final Order should be filed.
Motion for Default
This is a motion that tells the court the other party, the tenant in this case, has not answered the complaint. The court cannot do anything without an Order. So providing an Order with the Motion for Default is prudent. Most county clerks have a default set of paperwork. Go to the county clerks’s website and search on eviction procedures and paperwork.
Motion for Final Judgment
The Motion for Default informs the court the other party has not answered. In order to get the remedy sought in the eviction, a Motion for Final judgment is submitted asking the court grant the eviction. The court can also grant possession be placed back in the hands of the landlord, the filing fees, summons costs and, sometimes, even attorneys’ fees. With the grant of possession, the clerk of the court is empowered to issue a Writ of Possession.
Writ of Possession
This is the golden ticket for getting the property back. The Writ of Possession is placed on the front door of the property. It instructs the tenant to vacate the property within 24 hours. After 24 hours, the landlord can enter the property, change the locks, and put everything on the curb. Be careful. The Writ of Possession does not give possession to personal items in the property. The personal items of the tenant still below to them. The Writ does give permission to place the items on the curb. However, it also gives permission to place the items in storage. And charge a nominal rate for storage.
Supplemental Pleadings
Once the tenant is out, its time to look the place over. Some tenants may feel like being a bit destructive before they leave. The lawsuit can still be used to help recover costs. A Supplemental Pleading, see Florida Rule of Civil Procedure 1.190, allows the landlord file a pleading for extra damages. These sort of damages are not the normal wear and tear found in leases. Normal wear and tear would be nail holes from pictures, dirt marks around lights switches and a little mold around the shower. These are normal wear and tear and are part of the rent that is paid. Holes punched in drywall, iron burns on the rug and missing faucets in the kitchen are not normal. These damages can be recovered by filing a supplemental pleading.
Conclusion
The smooth road of eviction has a few potholes. Be mindful that the tenant’s possession trumps the landlord’s rights until the courts become involved. Most tenants leave when their lease is up. Sometime there are tenants that are stubborn. They know how to play the system to get an extra few weeks of free rent. Follow the rules and get them out as soon as possible.