REAL ESTATE LAW
Evicting Tenants Yourself in Florida
You have had it with your tenants. The homeowner’s association is really angry with you about your tenants and is about to assess fines against your property. You have tried talking to your tenants but it has not been productive. You say to yourself, “I want to evict my tenant.” This article will discuss evicting tenants yourself in Florida.
As a rule, there are three reasons for which you would file an eviction action against a tenant. These most common reasons for eviction are the non-payment of rent, termination of tenancy also known as the end of the lease, or a nuisance action. While there are other reasons which may warrant the filing of an action for eviction, these three reasons make up the majority of evictions in Florida.
Evicting Non-Paying Tenants
The typical reason for landlord evictions is evicting for non-paying tenants. Non-paying tenants include past due rents as well as tenants who refuse to pay rent. Often times a tenant who refuses to pay rent is triggered by a dispute between a tenant and landlord over something that needs to be fixed in the rental. Tenants get angered and think that by not paying the rent that the landlord will complete the repair quicker. This is a poor strategy on the tenant’s part, since one of the basic duties of a tenant is the duty to pay rent. If the rental is habitable than the tenant must pay rent. One option for the tenant is if a significant time has gone by and the landlord has still not corrected the problem, the tenant can pay to have it fixed, save the receipt and deduct it from the rent on the following month. Tenants need to be aware that they must give the landlord a reasonable time to correct the problem.
Eviction Notice of Default
The eviction process starts with the landlord giving the tenant a notice of default, also known as a 3-day notice. This notice gives the tenant two options, to pay the rent or vacate the premises. In calculating time correctly, never count the day of delivery of the notice, holidays, or weekends. Ideally, it is best to hand deliver the notice to the tenant or a resident who is at least 16 years of age. Make sure to make a copy of the notice because this copy will be needed along with the copy of the lease agreement when you file the eviction action. According to Florida Statute §83.56 (3), when a tenant has still failed to pay rent three days after the date the landlord has given tenant a written demand for the payment of rent, the landlord may terminate the rental agreement. The 3-day notice needs to have a statement largely similar to the language of Florida Statute §83.56 (3).
Additionally, certain lease agreements may provide more time for a tenant to remedy non-payment, but once that time has been reached the landlord can file the eviction. In the event that the tenant does not comply with the notice, you must file the eviction action in the county where the property is located at the Clerk of Court. The uncontested eviction is the simplest type and usually takes 3-6 weeks from filing to conclusion.
Eviction for Lease Termination
An eviction for lease termination is brought on by the expiration of the lease or tenancy and can evolve from a few different situations. The most likely situation that triggers an eviction for lease termination is when the tenant declines to vacate the property after the lease has expired. In cases where the lease has expired, and there is not a requirement for a renewal to be written in the lease agreement, the tenancy is renewed and a new tenancy is created. Typically, the tenancy renews for the same term as the previous tenancy. If the landlord does not want to automatically have the lease renew, he must provide the tenant with a minimum of at least a 15-day notice subsequent to the next rental period informing the tenant that the lease will not renew. If the notice was properly given to tenant and tenant declines to vacate, the landlord can file for eviction for lease termination.
Eviction for Private Nuisance
Although there may be supplementary provisions in the lease, generally a tenant is expected to keep the rented property in clean and safe condition, avoid damaging or ruining the property, and not create any kind of unreasonable disturbance to the surrounding neighbors. The additional provisions in a lease agreement can include things such as maintaining the landscaping, no pets, or any other provision which would further put more responsibility on the tenant. The general tenant obligations aforementioned above are required by Florida Statue. In the event that a tenant breaches either the general obligations or the supplementary provisions in the lease agreement, the landlord can issue a notice of non-compliance to the tenant, giving him 7 days to comply to the notice. If the tenant doesn’t cure the non-compliance, then the landlord can proceed with an eviction action against the tenant.
Eviction for Possession of Property
Subsequent to giving your tenant notice, and waiting the proper amount of time, you are no ready to go to the County Clerk’s office to file your action for eviction. An eviction for possession means that you are seeking the court’s help to get your tenant out and take back exclusive possession of your rental property.
Once you have given your tenant a proper 3-day notice, and filed a complaint for eviction with the County Clerk’s office in the county where the property is located, you are ready to serve the tenant with the eviction action. In order to serve the tenant, you can choose from one of two options, either you can serve the tenant by a private process server or a sheriff. Let the clerk know if you plan on using a private process server. If you elect to use the sheriff for your service you will need to forward copies of the complaint and summons to the sheriff’s office with a fee for the service of process. Be sure to check with the county sheriff’s office about the cost of the fee as fees may vary slightly from county to county. The tenant, once served will have 5 days to answer the complaint.
If your complaint alleged that the tenant owed rent, there is a requirement that the tenant make a deposit with the clerk’s office for rent due during the pendency of the case. If the tenant does not make the deposit, the landlord can request that the court enter a default against the tenant.
In the event that you are seeking an eviction action for possession and damages, the tenant will have 20 days to file answer to the damages you are pursuing. The clerk is the one who issues the default. However, you will have to fill out a final judgment for possession and provide it with your default to the clerk. Additionally, for a nominal fee, the clerk will prepare a writ of possession.
In the event that your tenant responds to the complaint with an answer, a default will not be issued by the clerk and will have to be heard by a judge. Generally, when a tenant answers the complaint, the action becomes a contested eviction. After the judge rules on the motion for default, the writ of possession can be issued. The writ of possession which is served by the sheriff gives the tenant notice that they have 24 hours to vacate the property.
Problems Doing Evictions Without a Lawyer
Notwithstanding the cautious and thorough screening that you performed on your last tenant, problems do arise. You bought the “Landlord’s Self-Help Guide to Evictions” but were not successful with your eviction due to your inexperience with the process. You checked the tenant’s references, credit and criminal check never thinking that an eviction could be such a nightmare.
Don’t be too hard on yourself, but learn from your mistakes. If you screw up the eviction process (which is easy to do when you are doing it yourself) your tenant gets more time to stay in your rental and you have to pay additional costs to refile your eviction action. Having competent counsel can help alleviate these headaches and help get that tenant out quick so that you can re-rent your property.
BEWARE WHAT CAN HAPPEN TO YOUR PROPERTY!
If you should fail in your attempt to evict your tenant on your own and have to go through the whole process again which your tenant will now expect and may even retaliate. The following images were taken from one such case where we are now representing the landlord.
The eviction process is not just one or two steps simple steps. There are multiple things that a landlord must do in order to ensure that the eviction will be a success. If you should make one small error in any steps, you have to start over again and your tenant remains in the property until your eviction is successful. An experienced real estate law firm will make the eviction process easier on you!
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