15Feb 2023

An unlawful detainer lawsuit is a type of legal action that allows landlords in Florida to regain possession of their property from invited guest, relative, former significant other such as a ex-boy friend or ex-girl friend who have stayed past their welcome, despite being told by the property owner that it’s time for them to leave. This type of lawsuit is often initiated when a tenant remains living at the property or premises even after they’ve been asked to leave. Normally in unlawful detainer actions there was never a written Lease Agreement or other written instrument commemorating any agreement whereby the guest/tenant was given authority to move into the property.  Unlawful detainer lawsuits are common in Florida and are governed by Florida Statute § 82.

In Florida, an unlawful detainer lawsuit is also often incorrectly referred to as an eviction lawsuit, because many of the procedures are similar and both by law are supposed to be handled by the courts in expedited manner provided for by special summary administration rules.  The landlord must first provide the tenant with a very specific notice to vacate the property as provided for by Florida Statute.  [If you need help preparing one of these Notice, please contact our office at: (678) 596-4529, for help].  This notice must be in writing and specifically notify the tenant that the property owner is requesting that they leave/vacate the property.  If the tenant refuses or fails to vacate the property within the time frame specified in the notice, the landlord can file an unlawful detainer lawsuit with the courts ultimately seeking a Final Judgment directing the Clerk of Courts to issue a Writ of Possession, forthwith.  The Landlord/Property Owner wants to always make sure, that your Final Judgment includes the language “forthwith” or the Clerk of Courts may delay issuing the Writ of Possession.

Once the Unlawful Detainer lawsuit has been filed, the court will set a date for a hearing. The hearing will allow the landlord and the tenant to present their case before a judge. The judge will then make a determination based on the evidence presented at the hearing.

If the judge rules in favor of the landlord, the tenant will be given a specific amount of time to vacate the property. If the tenant fails to vacate the property within the allotted time, the landlord can then request a Writ of Possession.  A Writ of Possession is a document issued by the Clerk of Courts and directs the Sheriff of the County to remove the tenant and their personal property from the premises.

It is VERY important to note that in Florida, a landlord cannot use self-help to remove a tenant from the property.  This means that the landlord cannot change the locks, turn off the utilities, or take any other actions to force the tenant to leave the property.  If the landlord engages in these types of actions, they may be subject to legal action and may be required to pay damages to the tenant.

Unlawful detainer lawsuits can be complex and can involve a significant amount of time and resources. Landlords who are considering filing an eviction lawsuit should consult with an experienced attorney who can guide them through the process and ensure that their legal rights are protected.  Additionally, tenants who are facing an unlawful detainer lawsuit should also seek legal advice to ensure that their rights are protected.

In conclusion, unlawful detainer lawsuits are a common legal action in Florida that allows landlords to regain possession of their property from invited guest who remain in the property after the property owner/landlord ask that they leave.  The process involves providing the tenant with a notice to vacate, filing an unlawful detainer lawsuit in court, and presenting evidence at a hearing.  If the judge rules in favor of the landlord, the tenant will be given a specific amount of time to vacate the property. Unlawful detainer lawsuits can be complex and should be handled by experienced attorneys to ensure that the legal rights of all parties are protected.   If you need help removing a person from your property whom has out stayed their welcome, please call our firm at: (678) 596-4529.

15Aug 2019

An old friend of yours recently lost their home and needs a place to stay. Feeling sympathetic, you generously invite them to stay with you at home or property rent free or with a small/de minimis contribution towards monthly expenses.  Everything goes smoothly for a couple weeks or months, but you eventually realize they’ve become a problem guest or simply worn out their welcome.  For example, they’ve begun leaving the house a mess, running up your utility bills, arguing with you, and disturbing your neighbors. Alternatively, maybe you’re no longer significant others/lovers, and having your ex-boyfriend or ex-girlfriend live with you is awkward.   You’ve asked them to leave, and they’ve made little or no effort to find their own place.  Finally, you demand that they leave, but they refuse.   What now?

Although this scenario may sound unusual, it is more common than you think and does not only involve guests or friends. Seniors sometimes find themselves in these situations when they invite or allow an adult child who has fallen on hard times into their home or property.

Typically, the police are unwilling to intervene once a guest has been living at your home or property for an extended period and established signs of residency–such as having all his possessions in the home or having his mail delivered to your address. The police will advise you it’s a “civil matter” and you’re going to have to file a civil lawsuit. 

What kind of lawsuit do you file? 

If your guest has been staying at your home or property and there is no lease/rental agreement, and have not been paying rent or only paying a small/de minimis amount, then an Eviction Action is not the proper form of lawsuit. Evictions are to remove tenants, and a guest is not a tenant as long as they have not paid rent or any other regular amounts for the right to stay in your home.

Assuming your guest has been staying for free, some people may advise you that an ejectment is the proper lawsuit. However, ejectment is ordinarily used to resolve disputes over title to property, and clearly, your guest has no claim of title. Not to mention, ejectments can take months to resolve. There is a better and quicker way to address your problem.

Florida Statute Chapter 82, provides for an action called, “unlawful detainer.” [See link attached for pdf copy of 2019 version of Florida Statute Chapter 82]  A person is unlawfully detaining property if they were invited in by a legal possessor but refused to leave once the invitation was withdrawn. Although unlawful detainer is not the same as eviction, it is governed by the same special rules of procedure and moves through the courts quickly on an expedited basis.

To win the unlawful detainer, you will have to prove the following:

  • that you had the legal right to occupy the property;
  • that you invited the guest in;
  • that you later asked the guest to leave; and
  • that the guest refused to do so.

It is important to remember that if a guest has regularly made payments to you–such as rent or sharing the electric bill–they may be able to legally establish a tenancy and defeat your unlawful detainer, forcing you to re-file your lawsuit as an eviction.

01Mar 2019

What do I do if my tenant is not paying rent? Post a three (3) day notice!

Presuming that tenant is under a traditional lease and pays rent on a monthly basis, the first thing to do is post a three (3) day notice!  This is how to official inform the tenant that they must pay rent, or you’re going to take legal action to evict them.  Florida law states that right to notice, cannot be waived in the lease, and this three (3) day notice period, also known legally as a “right to cure” period needs to be handled properly, or it can cause you a world of problems down the road if you wind up needing to file an eviction action.     

One of the specific and most important elements of a proper and effective three (3) day notice, is making sure that it contains very specific statutory required language.   If you’d like assistance preparing a three day notice, that contains the required language, simply contact this office and we’d be happy to help. If you decide to do it your self, make sure to be careful, there is a mine field of potential pitfalls that can cause problems down the road.  

A common pitfall is failing to properly calculate the correct three (3) day notice time period.  Make sure to give the tenant three (3) full business days to pay/cure their default, and the date that the notice is posted does not count.  Business days means that holidays and weekends do not count in the calculation either.  If you have specific questions, please feel free to call and we’d be happy to walk you through the eviction process.       

The information above is for general information purposes only, and shall not be construed to create an attorney client relationship.  It is highly recommended that you retain an attorney to assist with your specific situation, so that they can tailor a strategy to properly deal with your specific case.