How To Remove An Unwanted Guest Who Refuses To Leave Your Florida Home
If an unwanted guest, former boyfriend or girlfriend, family member, or other occupant refuses to leave your Florida home, you may need to file an unlawful detainer action. Unlike an eviction, an unlawful detainer generally applies when there is no landlord-tenant relationship and the occupant has no legal right to remain at the property. The correct procedure depends on how the person entered the home, whether rent was paid, and whether the occupant claims any ownership interest. If you’ve reached your boiling point, call Law Office of Ryan S. Shipp, PLLC today @ 561.699.0399.
Navigating The Process
Unfortunately, many homeowners experience these situations and they occur more often than one would think. Our eviction lawyers are always asked:
1. Can I lock them out?
2. What are my options?
3. How long does the process take?
What first needs to be determined is if a landlord/tenant relationship exists. Was monies or rent exchanged in order to stay at the property? Was a duration of time placed in writing for the occupant to stay? If NO, depending on a few factors that experienced Unlawful Detainer Attorneys will analyze, you most likely will have an action for Unlawful Detainer in order to regain exclusive possession of the home.
Definitions Not Associated With Unlawful Detainers
- “Landlord” means the owner or lessor of a dwelling unit.
- “Tenant” means any person entitled to occupy a dwelling unit under a rental agreement.
- “Premises” means a dwelling unit and the structure of which it is a part and a mobile home lot and the appurtenant facilities and grounds, areas, facilities, and property held out for the use of tenants generally.
- “Rent” means the periodic payments due the landlord from the tenant for occupancy under a rental agreement and any other payments due the landlord from the tenant as may be designated as rent in a written rental agreement.
- “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.
The Low Down On Unlawful Detainers
An Unlawful Detainer is a Florida lawsuit where it is requested that the court order the removal of an unwanted occupant(s) from real property and for the rightful owner to be placed back in possession thereof. Although similar to an eviction proceeding, there is NO Landlord-Tenant relationship between the parties and NO formal written notice is required prior to filing a lawsuit. For example, there is no agreement to pay rent, either verbal or in writing. If there is an agreement to pay rent, an eviction lawsuit should be considered.
In Florida, an Unlawful Detainer is filed in the county court where the real property is located pursuant to Florida Statutes, Chapter 82. The owner of the property is entitled to a summary procedure which is a shortened time-frame for the lawsuit proceeding. Therefore, all defenses of law or fact shall be contained in the defendant’s answer, which shall be filed within 5 days after the defendant is served with the lawsuit.
Can you lock out the person to regain possession? The law says NO. We will address this issue and the consequences in an upcoming blog.
Service Of Process Of Florida Unlawful Detainers
A Florida unlawful detainer is an action in county court for possession of premises distinct from eviction and the landlord tenant law is inapplicable to them. Unlawful detainer actions brought under Chapter 82, Florida Statutes and applies where the party in possession does not have a legal or beneficial right to the property and there does not exist a landlord-tenant relationship.
In an action for unlawful detention posting and mailing service of process is authorized in an unlawful detention action, in a manner similar to that permitted in an eviction case under Chapter 83. §82.05(1), but with a twist if personal or substitute service cannot be obtained. According to §82.05(2), Florida Statutes: “[i]f a plaintiff causes, or anticipates causing, a defendant to be served with a summons and complaint solely by attaching them to some conspicuous part of real property involved in the proceeding, the plaintiff must provide the clerk of the court with two additional copies of the summons and the complaint and two prestamped envelopes addressed to the defendant. One envelope must be addressed to the defendant’s residence, if known. The second envelope must be addressed to the defendant’s last known business address, if known. The clerk of the court shall immediately mail the copies of the summons and complaint by first-class mail, note the fact of mailing in the docket, and file a certificate in the court file of the fact and date of mailing. Service is effective on the date of posting or mailing, whichever occurs later, and at least 5 days must have elapsed after the date of service before a final judgment for removal of the defendant may be entered.”
If the court finds that the unlawful 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, in addition to other damages that may be awarded for waste of the property. §82.03(2).
A judgment as to unlawful detainer is not conclusive as to future actions for of trespass, ejectment, or quiet title and may be superseded by subsequent actions with respect to ownership. §82.101.
Is This an Eviction, Unlawful Detainer, or Ejectment?
One of the first questions we ask is simple: How did the person come to live at the property?
The answer matters. A person may be called a “guest,” but that label does not necessarily determine which legal action should be filed. If the person agreed to pay rent in exchange for living at the property, an eviction may be required—even if nothing was ever put in writing. If the person was allowed to stay without paying rent and now refuses to leave after permission has been withdrawn, an unlawful detainer action may be the proper remedy.
The situation becomes more complicated if the occupant claims to own part of the property or asserts some other legal or equitable right to remain. In that situation, an ejectment action may be necessary.
Choosing the wrong procedure can cost a homeowner valuable time and money. That is why we look closely at text messages, emails, payment records, agreements, utility bills, and anything else showing how the arrangement began.
When a Family Member or Former Partner
Refuses to Leave
Many unlawful detainer cases do not involve strangers. They involve a former boyfriend or girlfriend, an adult child, a sibling, a friend, or another person who was welcomed into the home during a difficult time.
At first, the arrangement may have been informal and well-intentioned. Unfortunately, once the relationship changes, asking the person to leave may not be enough.
The absence of a written lease does not automatically mean that an unlawful detainer is the correct action. Florida courts may consider whether the occupant paid rent, contributed toward household expenses, had a room of his or her own, received mail at the property, or was otherwise treated as having the right to live there.
Homeowners should also be careful about accepting money after telling the occupant to leave. A payment described as “rent” could create confusion about whether a landlord-tenant relationship exists and which legal remedy applies.
What Is a Transient Occupant?
Florida law also recognizes what is known as a “transient occupant.” In everyday terms, this is usually someone who was allowed to stay for a relatively short period, did not have a lease, and was never intended to become a permanent resident.
Several facts may be considered. Does the person receive government mail at the property? Are any utilities in the person’s name? Does the person have a designated bedroom? Are most of the person’s belongings kept there? Does the person maintain another permanent residence?
Paying for groceries or occasionally helping with household expenses does not necessarily turn a temporary guest into a tenant. If a transient occupant refuses to leave after being told to do so, §82.035, Florida Statutes, may provide a remedy.
These situations are highly fact-specific. A homeowner should not assume that someone qualifies as a transient occupant simply because there is no written lease.
A New Option for Removing Certain Unauthorized Occupants
Florida law now gives property owners another possible remedy in limited situations involving unauthorized occupants. Under §82.036, Florida Statutes, a qualifying owner may request that the sheriff remove certain people who unlawfully entered and remain in a residential dwelling.
This procedure is aimed primarily at true unauthorized occupants or squatters. It does not apply to every unwanted guest.
For example, the person generally cannot be a current or former tenant under an authorized oral or written rental agreement. The person also cannot be an immediate family member of the property owner, and there cannot already be pending litigation between the owner and the known occupant concerning the property.
The owner must complete and submit a verified complaint to the sheriff under penalty of perjury. Because the law permits removal without first completing a traditional lawsuit, its requirements must be followed carefully. A property owner who knowingly makes false statements or wrongfully uses the procedure may be held responsible for damages, penalties, costs, and attorneys’ fees.
If the facts do not satisfy every statutory requirement, the owner may still be able to pursue an unlawful detainer, eviction, or ejectment action through the courts.
Why You Should Think Twice Before Changing the Locks
When someone refuses to leave your home, changing the locks may feel like the quickest and most reasonable solution. Unfortunately, taking matters into your own hands can create a much larger legal problem.
Homeowners should avoid shutting off utilities, removing the occupant’s belongings, physically forcing the person out, or using threats to make the person leave. Even if the homeowner owns the property, these actions could lead to competing claims, emergency court proceedings, or law-enforcement involvement.
The safer approach is to determine the occupant’s legal status and follow the process provided by Florida law. When court action is required, possession is generally restored through a judgment and the sheriff, not through a self-help lockout.
How Long Does an Unlawful Detainer Take?
This is one of the most common questions we receive, and the honest answer is that every case is different.
Florida unlawful detainer actions generally proceed under summary procedure, which is intended to move the case more quickly than an ordinary civil lawsuit. However, “summary” does not mean immediate or automatic.
The timing depends on several factors, including how quickly the occupant can be served, whether an answer is filed, what defenses are raised, the court’s calendar, and whether the case requires a hearing or trial. An uncontested case may move relatively quickly. A contested case involving claims of rent, ownership, or a right to possession may take longer.
What Should You Bring to Your Attorney?
The more information we have at the beginning, the easier it is to identify the correct legal remedy. Before speaking with an unlawful detainer attorney, try to gather:
- A copy of the deed or other evidence showing ownership of the property;
- The occupant’s full legal name, if known;
- Text messages, emails, letters, or other communications about the living arrangement;
- Records showing whether the occupant paid rent or contributed toward household expenses;
- Any written request or demand directing the occupant to leave;
- The occupant’s possible work address or another location where the occupant may be served;
- Photographs, police reports, or other evidence of threats or property damage; and
- Any lease, deed, agreement, or other document the occupant relies upon to claim a right to remain.
Every case has its own history. A short-term guest, a former romantic partner, a family member, a tenant, and a person claiming an ownership interest may each require a different approach. Taking the time to identify the correct remedy at the beginning can prevent unnecessary delay and expense.
The experienced and knowledgeable Unlawful Detainer Attorneys at Law Office of Ryan S. Shipp, PLLC are here to help with all of your unlawful detainer, eviction, and ejectment needs. Don’t go through this process alone. Call us today @ 561.699.0399 or set-up an appointment to visit our Lantana, Florida office location.
FAQ
Can I legally remove a guest from my house in Florida?
Possibly. If the person has no lease, does not pay rent, and has no ownership or other legal right to possess the property, an unlawful detainer action may be appropriate. The particular facts should be reviewed before a case is filed.
Can I change the locks if a guest refuses to leave?
A homeowner should not change the locks, shut off utilities, remove belongings, or physically force an occupant from the property without first determining the occupant’s legal status. Improper self-help can create additional legal claims and delay recovery of possession.
Do I need to give notice before filing an unlawful detainer in Florida?
Chapter 82 generally does not require the same statutory notice that must be served before many eviction actions. However, it is important to establish that the owner’s permission for the occupant to remain has been clearly withdrawn.
What if the unwanted occupant paid me money?
Payment of rent may indicate that a landlord-tenant relationship exists, in which case an eviction under Chapter 83 may be required. Occasional contributions toward groceries or household expenses do not necessarily create a tenancy.
Can I use unlawful detainer against a family member?
An unlawful detainer may be available against a family member who has no ownership interest, lease, or other legal right to remain. However, Florida’s separate sheriff-assisted removal procedure under section 82.036 generally does not apply to an owner’s immediate family member.
How long does an unlawful detainer case take in Florida?
The timeline depends on service of process, whether the occupant contests the lawsuit, the defenses raised, and the court’s availability. Although these cases receive summary procedure, a contested case may still require a hearing or trial.
Links To Unlawful Detainer Blogs
How Do I Legally Remove Someone From My House?
What Is The Difference Between Unlawful Detainers And Evictions In Florida?
West Palm Beach Guest Won’t Leave
Guest Won’t Leave House In Florida
Florida Unlawful Detainer Lawyers
Remove Girlfriend From Florida Home
Unlawful Detainer In Florida
Kick Out Ex-Girlfriend From House
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Unlawful Detention