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Understanding the Residential Eviction Process in Florida
What Tenants and Landlords need to know-the basics
The most common type of residential eviction in Florida arises due to non-payment of rent. A tenant who is served with a summons seeking to force him/her and family members from their home, faces a very frightening and stressful experience. Likewise, for a property owner who perhaps holds multiple mortgages, having a tenant who is not paying rent creates an unanticipated financial strain.
This article seeks to provide a basic understanding to both landlords and tenants of the eviction process in Florida when a tenant fails to pay rent. While there are other reasons a landlord may seek an eviction, those situations will not be addressed here.
Rental Agreement: Chapter 83, Florida Statutes, governs the landlord/tenant relationship. Typically, the landlord and tenant will have a written lease agreement setting forth the terms under which the tenant will occupy the premises, including the amount of rent that will be paid. The terms of that contract will control the relationship of the parties, unless it violates Chapter 83. If the parties only have a verbal rental agreement, then the terms of the tenancy will be governed solely by Chapter 83. Under either a written or oral lease agreement, the tenant will be required to make periodic rental payments, the most common being monthly. If the tenant fails to make a rental payment by the date due (or the grace period provided by the lease), the landlord has the option of seeking a court order removing the tenant from the property and returning possession of the home to him/her.
The First Step: Three Day Notice: Before a landlord may seek an eviction, he/she must first give the tenant an opportunity to pay the outstanding rent. This is done through the delivery of a notice to the tenant (called a 3-day notice), which identifies the property, informs the tenant of the total amount owed to the landlord, and demands that the tenant either pay the full amount owed or move out within 3 days (excluding Saturday, Sunday and legal holidays).
Delivery of the notice to the tenant must be done either by hand-delivery, mail (it should be sent certified, return receipt requested, to have proof of delivery) or if the tenant is absent from the premises, by leaving a copy at the residence (ie. posting it to the door, put through mail slot, etc.). The landlord must keep a copy and should specify on his/her copy the date and manner in which the notice was provided to tenant.
If tenant pays the full amount due, he/she can continue the tenancy. If the tenant moves out, then the landlord regains possession of the property without having to go to court. The benefit to the tenant who does not intend to pay the rent to move out, is that the tenant avoids the court procedure as well as the landlord’s court costs (definitely) and attorneys fees (if provided by the lease) which the tenant may have to pay if he/she loses the eviction case. Be aware, if tenant elects to move out, this does not relieve the tenant from his/her obligation to pay the rent due. The landlord may still sue to recover the amount owed.
If tenant fails to do either by the date set in the 3-day notice, the landlord can file an eviction lawsuit.
Eviction Suit: An eviction lawsuit is one of the fastest procedures in Florida law. It is a summary procedure governed by Florida Statute 51.011. In most civil actions in Florida, a defendant has 20 days to answer a complaint after being served with a summons. In an eviction case, the tenant only has 5 days (excluding Saturday, Sunday and legal holidays) after he/she has been served with the complaint by the Sheriff or private process server, to file a response with the court, setting forth the tenant’s defenses to the eviction proceeding.
In addition to the response, the tenant must pay the amount of rent the eviction complaint states is due, into the registry of the court, within the 5 days (excluding Saturday, Sunday and legal holidays). Tenant is also required to make each future rental payment into the registry of the court when due, until the proceeding has been completed or the judge enters an order stating otherwise.
There are two (2) exceptions to this payment requirement: 1) If the tenant has paid the rent, he/she must state that defense in his/her response. It is suggested that tenant attach proof of payment to the response; or 2) If tenant believes the amount of the unpaid rent stated in the complaint is not accurate, tenant may file a motion, explaining why the amount of rent sought is incorrect and asking the court to determine the amount of rent that must be deposited with the court. Documentation which supports the claim that the amount of rent sought is in error, must be attached to the motion. This motion must also be filed within 5 days.
Failure to respond or deposit rent: If the tenant does not file a response and either deposit the unpaid rent or file a motion to determine the amount of rent to be deposited, within the 5 days (excluding Saturday, Sunday and legal holidays), the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing. It is therefore critical that the tenant properly respond to the eviction complaint within the specified time period after being served. If tenant fails to comply, he/she may find the Sheriff at his/her door shortly thereafter to remove the occupants from the home.
Defenses to eviction: Assuming landlord is in compliance with Florida Statutes and the terms of the lease agreement, few, if any defenses are available to the tenant, short of payment of rent. The tenant’s inability to pay rent due to hardship considerations, is not a defense to an eviction for non-payment of rent.
There are statutory defenses to eviction actions due to non-payment of rent where a landlord is not in compliance with Florida Statutes and appropriate notices were provided by the tenant prior to the eviction complaint being filed. Those situations include the landlord’s material non-compliance with his/her obligation to maintain premises (Florida Statute 83.51) and Landlord’s retaliatory conduct (Florida Statute 83.64). These potential defenses however are not covered by this article. For more information on these defenses and the procedures that must be followed before an eviction suit is filed to be able to assert these defenses, you should review those statutes. Even if tenant has these statutory defenses available, he/she will still need to deposit the unpaid rent into the registry of the Court or file a motion for the court to determine the amount that must be deposited, as explained above.
Defense to writ of possession when property is in foreclosure: It is quite often a concern of tenants when the home they are renting is in foreclosure. To assist tenants in this regard, congress passed the Protecting Tenants at Foreclosure Act of 2009. Essentially, this law requires banks which take title to a home through a foreclosure proceeding, to provide tenants who have a bone fide (good faith-legitimate) lease, at least 90 days notice before they must vacate a foreclosed property. The Act sets forth the criteria that is applied in determining whether the tenant’s lease qualifies as a bone fide lease under the law. Depending on the situation, the tenant with a bone fide lease may also be entitled to stay longer. If you are faced with this situation, you or your attorney should consult the Act to see if and how it applies to your situation.