Tuesday, October 20, 2020

Anatomy of an Eviction

LAW MATTERS

Rental homes are in short supply in Southwest Florida but that does not mean they are filled with good tenants. Landlords still have to deal with problem tenants and even resort to court when things go awry. This column will provide an outline of a landlord-tenant eviction case.

Tenants cannot be evicted before the end of the lease. But, when a tenant violates the lease or law, the landlord can terminate the lease and evict the tenant.

Self help eviction is frowned upon. In fact, Florida’s legislature has adopted statutes to discourage landlords from taking matters into their own hands. Landlords cannot turn off utilities, change the locks or bar access until a court grants that authority. Each time a landlord violates the self help prohibition, the landlord is liable to the tenant for actual and consequential damages or three month’s rent, whichever is greater.

In exchange for barring self help, Florida Statutes provide an expedited proceeding for evictions. Instead of months or even years required for a typical lawsuit, that action to evict a tenant is entitled to expedited treatment and can usually be concluded in less than 45 days.

The first step in an eviction case is serving the tenant with notice that the tenant has breached the lease or otherwise failed to comply with Florida law. If the breach is failure to pay rent, landlord must give the tenant three days (not including Saturdays, Sundays or legal holidays) to pay the rent or move out. If notice is for breach of some other requirement, the notice must give the tenant seven days to correct. If the non-compliance is the same as one for which the tenant was previously given a seven day notice within 12 months, or of such a nature that the tenant should not be given an opportunity to cure (destruction of property, intentional unreasonable disturbance or violence) the landlord may terminate the rental agreement and the tenant must vacate within seven days.

The legislature wants to make sure the tenant knows how much rent is due and when it is due by prescribing the form and content of the three day notice. The landlord must actually count the three days in addition to stating the exact amount of unpaid rent. If the landlord accepts payment from the tenant after serving the notice, the landlord may no longer sue for eviction based on that notice unless the landlord provides the tenant with a receipt, stating the agreed upon date and balance of rent due or places the amount of partial payment in the registry of the court upon action for eviction. Alternatively, the landlord can serve a new three day notice. At end of the case, if the landlord wins, the landlord will also get the rent paid in the court registry.

The notice must be given to the tenant in manner required by the lease and also as required by Florida Statutes. The statutes require mailing or delivering a true copy to the tenant or if the tenant is absent from the premises by leaving a copy at the residence. That means the notice can be taped to the door.

If the tenant does not timely pay rent or otherwise comply with the landlord’s notice, the landlord cannot simply kick the tenant out. The landlord must file a lawsuit to evict. In most lawsuits, the defendant has 20 days within which to serve a response. In an eviction, the tenant must respond within five days of receiving service. That is part of the expedited proceeding for eviction cases. Another part is the summons may be posted on the property if nobody is home.

If the landlord also seeks damages for unpaid rent or damage to the property, the landlord must serve a 20 day summons and the tenant has 20 days to respond to that portion of the action, which is treated as any other lawsuit.

The tenant must raise any defenses and any claims against the landlord in response to the complaint. If no timely response is served, the landlord will be entitled to a default judgment of eviction. If a timely response is served, the case is slowed down, as a trial may be required. Because the statutes provide that eviction cases are expedited, a trial will usually be scheduled within three to four weeks after the tenant serves a response to the complaint.

Tenants often file claims against the landlord. In some cases, the filing is only intended to slow down the case. In others, the tenant truly believes that the landlord is liable to the tenant or failure to maintain the property or otherwise.

To prevent tenants from buying more time just by filing a response, the statutes mandate that any tenant wishing to defend an eviction (other than defense of payment) must pay rent into the court registry as alleged in the complaint and as it comes due during the proceeding. If the tenant fails to pay rent into the registry or file a motion to determine the amount of rent to pay into the registry, the tenant cannot pursue any defense and the landlord is entitled to a quick default judgment.

If the tenant wants to defend on ground that the landlord has failed to comply with the landlord’s maintenance requirements, the tenant must have sent the landlord seven days prior notice specifying the landlord’s failure to maintain and indicated the intention of the tenant not to pay rent due to the landlord’s failure.

Local judges generally schedule 20 minutes for an eviction trial. It is relatively simple and judges encourage the parties to get to the point. If the landlord wins, the judge enters a judgment for possession and, if requested by the landlord, a judgment for attorneys fees and costs.

Even after judgment the landlord is not entitled to kick the tenant to the curb. If the tenant does not move out after judgment, the landlord must obtain a writ of possession from the Clerk demanding the Sheriff to put the landlord in possession after 24 hours notice conspicuously posted on the premises. Saturdays, Sundays and legal holidays are included within the 24 hours.

If the tenant still does not move out, the landlord makes an appointment with the Sheriff to meet at the residence and the Sheriff will forcibly move the tenant out. The Sheriff does not move the tenant’s property out, but the landlord has the right to remove any personal property found on the premises to or near the property line. Landlords are encouraged to change the locks when the Sheriff has to forcibly remove a tenant. By statute, neither the Sheriff nor the landlord or landlord’s agent is liable to the tenant or any other party for loss, destruction or damage to property after it is removed. The landlord may request the Sheriff stand by to keep the peace while the landlord changes the locks and removes the personal property from the premises. When such request is made, the Sheriff may charge a reasonable hourly rate.

If the landlord does not take advantage of the opportunity to remove the tenant’s property while the Sheriff is on site, the landlord must follow a notice and disposition process under Chapter 715 Florida Statutes. That process requires notice to the former tenant, gives the landlord right to charge reasonable costs of storage. If the tenant does not pay the storage expense and retrieve the property within time in the notice (no less than 10 days) the property must be sold at public auction or, if worth less than $500, may be disposed by the landlord.

Although the eviction process may seem simple, the statutes require technical compliance by landlords and even the slightest mistake in notice or proceeding can turn into a win for the tenant. For the do-it-yourself landlord, Florida’s Landlord Tenant Laws are a minefield.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice

Leave a Reply

Your email address will not be published. Required fields are marked *