Being a landlord is a tough business. Beyond the late payments and perhaps the constant maintenance, there are the problems when a tenant decides to stop paying rent and “squats” in the house until you do something.
I believe that the landlord/tenant laws for residential leases are pro-tenant. If the landlord’s “ducks” are all in a row, then the landlord can get the eviction. If a duck falls out of line, then the landlord may have to start over.
Before we get into the analysis of residential landlord/tenant laws and processes, I feel obligated to say roughly where the idea for this article started. A landlord recently gave a tenant a notice to leave the residence and the tenant refused. The landlord then came to the property, took off all the doors to the house, and placed all the tenant’s belongings in the street.
According to the tenant, the landlord also had someone present purporting to be a police officer. The tenant now may recover a significant amount of money from the landlord for not following the proper procedure. Some of the facts have been changed to protect confidentiality.
Landlord and Tenant issues are governed by Chapter 83 of the Florida Statutes. There are three sections: (1) non-residential; (2) residential; and (3) self-service storage space. I am concentrating on residential tenancies only. An eviction essentially has three stages that are the fundamental points of this story: (1) pre-eviction notice; (2) service of the eviction complaint; and (3) obtaining the writ of possession allowing you to lawfully remove the tenant.
THREE DAY NOTICE
First, you need deliver a notice to the tenant that you want the rent paid within three days or you are going to evict them. The Landlord/Tenant statute specifically requires the following:
The delivery of the written notices. . .shall be by mailing or delivery of a true copy thereof or, if the tenant is absent from the premises, by leaving a copy thereof at the residence.
If you are serious about evicting a tenant, I recommend the following to make sure you cover every base: (1) mail the three day notice; (2) mail a certified version with return-receipt; and (3) hire a process server ($40 to $60) to deliver the document to the tenants. The process server should try to deliver the documents personally twice and then post the document on the door.
The language required in a three-day notice is governed by statute. Rather than pay for the proper form or use a form on the internet, I recommend using the information found directly in the statute at section 83.56, Florida statutes.
A three-day notice will not result in an eviction. However, most tenants will leave after a three-day notice. In my new case above, the landlord thought a three-day notice would result in a legal eviction, and now the landlord may be on the hook for a lot of damages.
After the three-day notice expires, then you must file a formal complaint for eviction (a lawsuit). Let me be clear on this point. You cannot engage in “self-help” and go into the residence, throw out all their stuff, change the locks and cut off the electricity. In other words, you cannot take the law into your own hands. You must still be patient and go through the eviction process.
When you file an eviction complaint with the Court, you will have to pay a filing fee. You have the option of also suing for your past rent, which is beyond the scope of this article. The tenant has five business days to answer your complaint in one way or another. However, if the tenant does not dispute the rent owed or deposit the rent in the court, the tenant cannot defend the case. I wish it were always that easy, however.
The landlord must make at least two attempts to personally serve the tenant either by the sheriff or a process server. The landlord cannot deliver the summons directly. After two attempts to personally serve the tenant, the summons can then be “tacked” or posted at the residence and the clerk will mail a copy of the summons to the tenant’s last known address and business address. By way of practice tip, don’t forget to take the pre-addressed stamped envelopes with you when you file at the courthouse.
OBTAINING A WRIT OF POSSESSION
After five business days, you can file for a clerk’s default if the tenant does not position him or herself properly with the proper responsive papers. When the Clerk enters the default, you can then ask the Court for a final default judgment for eviction. When the final judgment is entered, you can then obtain a Writ of Possession. The Writ of Possession authorizes law enforcement to remove the tenant and the tenant’s belongings from the property. Your clerk of court or the sheriff’s office can quickly answer any questions on how to schedule removal of the tenant with the Writ of Possession.
Sometimes the tenant disputes the amount of rent owed or disputes whether rent is owed at all. Most of the time, this is simply a delay tactic by the tenant. If the tenant does actively participate in the court proceeding, then you will have to contact your courthouse and get a time for a final hearing. At an absolute minimum, make sure you have a copy of your lease and/or proof of any previous payments to establish how much rent is owed.
While it seems that there are a lot of steps a landlord must go through to properly evict a tenant, evictions are relatively quick compared to most other types of legal proceedings. Requiring landlords to go through the proper legal channels is also important to protect all parties involved.
I am certain that any landlord that has had to go through the eviction process immediately takes steps to prevent the likelihood of future tenants that will most likely squat. Some good ideas some landlords use are:
- Make sure you have a clear lease even if you only are renting month to month.
- Check your clerk of court websites for any previous evictions by your prospective tenant.Pasco County, Pinellas County, Hillsborough County, and Sarasota County have their dockets online and you can search by the tenant’s name to see past filings.
- Actually check the tenant’s references in the application you give them. Require a reference from a previous landlord.
- Google the tenant. If you are lucky, you might get some public information about the tenant on Facebook, too.
- Verify employment or get a letter of reference from the tenant’s employer.
- Don’t be an absentee landlord. Set up appointments every couple months to see how your property is doing. They will probably appreciate you making sure the major systems are still functioning and you can generally tell a tenant’s long-term intent on the condition of the living environment.
- Don’t fall for sympathy stories. I have litigated cases where the tenant’s defense was, “He cannot throw me out in the street because I have two children.” The defense did not work in court and shouldn’t work in your business transactions.