Unlawful Detainers vs Evictions in Florida
Which one is it? Our office hears this question all too often. Do you have an invited guest staying in your home, but they are refusing to leave? Is this guest a family member or an ex boyfriend or girlfriend? Possible a Squatter? What are your options and would the process of having them removed from your home be considered an Unlawful Detainer action or an Eviction in Florida?
Florida Unlawful Detainers
Florida Statutes, Chapter 82 details what an unlawful detainer action is and the remedies for an unlawful detainer. This statute may be applied to commercial and residential properties. More specifically, an unlawful detainer action is used when an invited guest or squatter, in essence this means that no landlord/tenant relationship exists, refuses to vacate the property. Points to consider:
- the occupant was invited into the home and overstays their welcome or the occupant illegally took possession of the premises without consent (squatter);
- the occupant was not a tenant (did not pay any rents or contribute monies for bills and their was not a designated duration of stay in writing);
- the property owner had asked the occupant to vacate the property; and
- the occupant has refused to vacate.
Unlawful Detainer Remedies
According to §82.03, Florida Statutes:
- A person entitled to possession of real property, including constructive possession by a record titleholder, has a cause of action against a person who obtained possession of that real property by forcible entry, unlawful entry, or unlawful detention and may recover possession and damages. The person entitled to possession is not required to notify the prospective defendant before filing the action.
- If the court finds that the entry or detention by the defendant is willful and knowingly wrongful, the court must award the plaintiff damages equal to double the reasonable rental value of the real property from the beginning of the forcible entry, unlawful entry, or unlawful detention until possession is delivered to the plaintiff. The plaintiff may also recover other damages, including, but not limited to, damages for waste.
- Actions for possession and damages may be bifurcated.
- All actions under this chapter must be brought by summary procedure as provided in s. 51.011, and the court shall advance the cause on the calendar.
On the other hand, a Florida residential eviction, which is governed under Florida Statutes, Chapter 83 Part II, is utilized when there is a landlord-tenant relationship. We often see evictions when a tenant violates terms of a lease agreement. Evictions also arise when the tenant refuses to vacate the property after proper notice to vacate is given. This may occur when lease expires and the the tenant holdovers without the landlord’s consent or permission. A landlord/tenant relationship exists when there is either a written lease, verbal agreement, or an exchange of payment (rent) for use and enjoyment of the premises for a period of time.
According to §83.43(7), Florida Statutes:
“Rental agreement” means any written agreement, including amendments or addenda, or oral agreement for a duration of less than 1 year, providing for use and occupancy of premises.
Florida’s Summary Procedure
The beauty of both unlawful detainer actions and evictions for possession in Florida is that they may be brought under Summary Procedure, §51.011, Florida Statutes. This is an expedited procedure in Florida (if exercised) that can be a very beneficial tool for a property owner or landlord seeking back possession of their property. Essentially, it expedites the court proceeding making it a speedy process.
In Florida, the traditional time frame is 20-days that a plaintiff must wait for the defendant(s) to file a response to the lawsuit upon being served with the legal paperwork. However, with summary procedure, the time periods are reduced as follows:
- Plaintiff’s initial pleading (the “possession complaint”) shall contain the matters required by the statute or rule prescribing this section or, if none is so required, shall state a cause of action. All defenses of law or fact shall be contained in defendant’s answer which shall be filed within 5 days after service of process. If the answer incorporates a counterclaim, plaintiff shall include all defenses of law or fact in his or her answer to the counterclaim and shall serve it within 5 days after service of the counterclaim. No other pleadings are permitted. All defensive motions, including motions to quash, shall be heard by the court prior to trial.
- Please see below “sample language” (not to be construed as legal advice) we sometimes use in our complaints when seeking possession for our landlord and property owner clients depending on their particular situation. If you snooze, you may lose.
- Chapter 83 Part II (Residential Monetary Evictions for Possession)
The Plaintiff is entitled to summary procedure pursuant to §§ 51.011 and 83.59, Florida Statutes.
Chapter 83 Part II (Residential Hold-Over Tenant Evictions for Possession)
The Plaintiff is entitled to summary procedure pursuant to §§§ 51.011, 83.58, and 83.59, Florida Statutes.
Chapter 82 Unlawful Detainer (Possession no Landlord Tenant Relationship)
The Plaintiff is entitled to summary procedure pursuant to §§ 51.011 and 82.03, Florida Statutes.
- Chapter 723 Mobile Home Evictions (Monetary and Non-Monetary Evictions for Possession)
The Plaintiff is entitled to summary procedure pursuant to §§ 51.011 and 723.061, Florida Statutes.
- Chapter 83 Part I (Commercial Monetary and Non-Monetary Evictions for Possession)
The Plaintiff is entitled to summary procedure pursuant to §§ 51.011 and 83.21, Florida Statutes.
- Chapter 83 Part II (Residential Monetary Evictions for Possession)
*Summary procedure set forth by statute applies during an unlawful detainer or removal of tenant action, but does not apply during an ejectment action. Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So.2d 1244 (2008).
In conclusion, the procedures in the court system are very similar when initiating an eviction or an unlawful detainer action in Florida, except for unlawful detainer actions, no formal written Notice is required as a prerequisite before filing the possession lawsuit. However, we always recommend (if possible) providing notice, and as much notice as possible, as it is good practice and it paints a nice picture for the court.
Finally, matters pertaining to possession of real property may be filed in county court unless the matter is considered an Ejectment, in which case the circuit court has exclusive juridiction. If you’re dealing with this type of headache, let the experienced West Palm Beach Eviction Attorneys and West Palm Beach Unlawful Detainer Lawyers @ Law Office of Ryan S. Shipp, PLLC assist. Call us today @ 561.699.0399 to see how we can assist. Our Lantana office is located @ 814 W. Lantana Rd. Suite 1, Lantana, Florida 33462.