Eviction 101: What to Do When Enough is Enough

Mar 9, 2010

Whether you need to evict a residential tenant or a commercial tenant, the process is virtually the same, with one important distinction.

With residential tenancy, the first step is to provide the tenant with a three-day notice, pursuant to Fla. Stat. § 83.56(3). The 3-day notice is a condition precedent to an eviction action. Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998). The three-day notice is a writing that must be provided to the tenant to inform the tenant that you are demanding payment of rent or possession of the premises. This is an extremely specific notice, the form of which is mandated by statute. It is crucial that this notice be drafted with great detail. The three-day notice can only include terms that are defined as rent under the lease. Therefore, you cannot include late fees, interest, and services in the amount you refer to in your three-day notice, unless those terms are defined as rent in the lease. The notice can be hand delivered, posted, or mailed (five days need to be added for mailing).

For commercial tenancies, Fla. Stat. § 83.20 sets forth the three-day notice obligations. However, the notice does not necessarily need to be three days. The amount of time can be extended if a longer time frame is set forth in the lease.

If the tenant does not pay or deliver possession within the time period specified in the notice, the next step is to file a complaint for tenant removal. What is your ultimate goal? Do you want the tenant out? Do you want the money due and owing? Do you want the tenant out and the money in hand? If your main goal is to get the tenant out, you should file an eviction lawsuit. The eviction lawsuit is governed by the summary procedure set forth at Fla. Stat. 51.011. After you serve the tenant with the eviction complaint, the tenant has five days to file a written answer. If the tenant does not answer the complaint in the specified time period, you may then move for a default, and ultimately for a final judgment of eviction. The Clerk of Court will issue a writ of possession, which the Sheriff will post on the premises. The Sheriff will then schedule a time for the landlord and the landlord’s agent or attorney to be present for the removal of the tenant. Remember that the Sheriff is chasing bad guys too, so be patient with them.

If the tenant has any defense other than payment of rent, the court will require the tenant to pay rent into the court registry in order to defend the action. See Fla. Stat. §§ 83.60(2) and 83.232. Even if you think the tenant should be kicked out of your property for failing to pay the rent, you cannot change the locks on the door and engage in self-help. Fla. Stat. § 83.67(6) states that if you violate provisions of this section, such as self-help, the landlord shall be liable to the tenant for actual and consequential damages or three months’ rent, whichever is greater, plus costs, including attorney’s fees.
If you want to go after the tenant for the money owed, add a count for damages in the same complaint as the eviction, or file a separate complaint for damages. Regardless of which way you do it, the tenant will have 20 days to answer the count for damages in the eviction complaint or the complaint for damages.

Landlords often become frustrated that their tenants are living rent-free and may want to take matters into their own hands. However, problems often arise with respect to the 3-day notice, self-help, and other issues which, had the landlord consulted an attorney, could have been avoided. Florida is an extremely tenant-friendly state. I advise that you consult an attorney prior to signing a lease with a tenant, sending a three-day notice or filing an eviction.

Dariel J. Abrahamy, Esq. is a senior associate at Greenspoon Marder and focuses his practice in the areas of landlord/tenant litigation, real estate litigation, foreclosure litigation and commercial litigation.
888-491-1120 or [email protected]

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Eviction 101: What to Do When Enough is Enough

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