They say that all good things must end, and that includes sharing a dwelling unit. Whether the person is an invited guest but stays too long, is a roommate or someone who claims an ownership interest in the property, there is no shortcut to getting them out of the rental unit in Florida. The process is a legal one, and self-help "change the lock" measures are against the law.
Anyone in Florida facing a holdover roommate or an unwanted guest should become familiar with the state's laws and eviction process before making a move to get rid of a person who moved in with permission.
Three Legal Options for Tenant Eviction
The process of ridding someone from a property starts with figuring out which of the legal avenues is appropriate. There are three separate types of legal actions that may be used depending on the circumstances: eviction, unlawful detainer and ejectment. Each procedure is appropriate for a particular circumstance, and it is important to use the correct procedure to avoid wasting time and money.
If there is a landlord/tenant contract, oral or written, the proper legal course is an eviction proceeding. If there is no contract, and the guest has no legal claim to the property, the appropriate action is one of unlawful detainer. If the person who refuses to leave raises some claim of right to ownership or possession of the property, an action in ejectment is required.
Eviction: Getting a Tenant Out
There are several different scenarios under which a property owner or tenant decides to remove someone from the premises. This can happen if the individual with a primary right to the dwelling unit, like a landlord or a legal tenant, invites a friend, relative or significant other to live with them in exchange for a contribution to the rent or utilities. If they overstay their welcome and refuse to leave, the landlord or tenant can go to court.
A second scenario is a co-tenancy. When a property owner rents out part of the house to another person, or a primary tenant brings in a roommate as a subtenant to share the unit, sometimes things do not work out. A variation on this theme is when a landlord rents part of a dwelling unit to one tenant and another part to another tenant.
In all of these cases, where there is a written or oral agreement regarding the stay, the person refusing to leave will likely be considered a tenant under the Florida landlord-tenant laws. The individual wanting them to leave must follow the letter of the law in order to evict them. Self-help measures like tossing their things on the sidewalk and changing the locks are not permitted under Florida law.
Evicting a Tenant in Florida With a 15-Day Notice
The laws on Florida evictions are set out in the Florida Statutes at Part II, Chapter 83, the Florida Residential Landlord Tenant Act. Under that law, a tenant can be asked to leave the dwelling at the end of a tenancy period for any reason or none. They can be evicted during the tenancy term (in the middle of the lease term or partway through the month in a month-to-month tenancy) if they breach the terms of the rental agreement, like non-payment of rent.
If an individual wants to get rid of someone living in their house at the end of the tenancy period, they do not need to charge the renter with any wrongdoing. Rather, they simply must give notice that the tenancy will not be renewed when it comes to an end. In Florida, this written notice must be given 15 days before the end of a month in a month-to-month tenancy and 60 days before the end of a lease in a lease agreement.
For "cause" evictions based on wrongdoing, there are different notice periods required in different situations. For example, the amount of notice required for unpaid rent is three days, but seven days for most other breaches. If the person cures the defect within the notice period, they can usually continue the tenancy. A Notice for Failure to Pay Rent or a Notice of Noncompliance for other rental agreement breaches can be downloaded from the Florida Bar's website.
Starting an Eviction Complaint
If the tenant fails to comply with the terms of the notice, the landlord or master tenant must file a complaint for eviction with the county court clerk in the jurisdiction where the property is located and pay the filing fee. Form complaints are available from the court and also on the Florida Bar's website. When the complaint is filed, the clerk prepares a summons ordering the tenant to respond within the five-day time limit. These documents must be served on the tenant by a sheriff or private process server.
If the tenant answers the complaint, the court schedules an eviction hearing. Both parties present their arguments at the hearing, and a judge makes the ruling. If the tenant does not respond to the complaint, the landlord or master tenant can obtain a default judgment. In either case, if the court rules in the landlord's favor, it issues a Writ of Possession, which permits the sheriff to forcibly evict the tenant. An eviction proceeding in Florida usually takes some four to six weeks, but can take less time if the tenant doesn't answer the complaint.
Unlawful Detainer: Getting a Guest Out
When a property owner or a master tenant has a third party living on their property, and the person refuses to leave when asked, the person with the primary right to the property must figure out how to get rid of them. Holdover guests are often holdover boyfriends or girlfriends who move into their significant other's apartment when things are going well and refuse to leave when the relationship is over.
The proper remedy in Florida is an eviction if there is an agreement setting out the responsibilities of the subtenant or roommate. If there is no agreement between the guest and the owner/primary tenant, and the person does not pay rent or contribute to utilities or expenses, an eviction is not the proper remedy for removing them. Rather, Florida establishes an even quicker legal action, termed an unlawful detainer, to do this. Unlawful detainer is a summary procedure similar to an eviction, but no notice is required.
Unlawful Detainer Actions in Florida
When a guest is invited to stay for a time and then refuses to leave, Florida allows the occupant of the premises to use a summary procedure termed an unlawful detainer action to get them gone. It can be used only when all of these circumstances exist:
- The guest is not paying rent or contributing financially to the dwelling situation.
- There is no rental agreement between the parties.
- There is no claim on the part of the guest of a legal right to stay.
This type of action is governed by Chapter 82 of the Florida Statutes. An unlawful detainer action can only be used by the person with a legal right to the residence or property – the owner of the property or the legal tenant of the property. Unlawful detainer actions are used to get rid of guests who overstay their welcome, significant others who refuse to leave, and even squatters who enter without permission.
Eviction Court Hearings
No notice to the guest is required before the filing of an unlawful detainer action. The person with the right to the premises files the action in the Florida county court where the property is located and serves it, together with the summons, on the guest who must respond within five days. If they do not, the court can issue a default judgment; if they do, a court hearing is held.
After a judgment of unlawful detainer, the matter proceeds like an eviction. Although this is a quicker procedure, don't expect to get the unwanted person out overnight. The process can take four weeks or more.
Ejectment: Removing Those With Claims
An action in ejectment is a different animal than an eviction or unlawful detainer action. Like the other actions, ejectment is used to remove someone from a property, but can be used only to remove a person who claims a legal interest in the property. The top priority of the person bringing the suit must be to establish that they are the true and rightful owner of the property.
An ejectment action is governed by Chapter 66 of the Florida Statutes. These Florida actions are not summary proceedings. They must be filed in circuit court, not county court, and are intended to resolve a dispute over the right to possession of, or title to, real property. They must be brought by the person holding title to the property. If an ejectment action is filed by a tenant rather than by a landlord, the court will stay the action until the landlord is joined.
The Florida statutes require that both the complaint and the answer to the complaint include a chronological statement of the "chain of title" that the party is going to rely on at trial to establish their claim to a property interest. This statement should contain the names of the grantors and grantees, the dates of the instrument recordings, and the book and page or instrument number for each recorded instrument.
Responding to an Ejectment Action
Once served with a complaint in ejectment and a summons, the defendant has 20 days to respond. If they don't file an answer within this period, the owner can file a motion for a default judgment. The court can grant this judgment and issue a final order to the person to leave the home. If they refuse, the court issues a Writ of Possession to the sheriff who goes to the property to remove them physically.
If the person does file an answer to the ejectment complaint, the matter proceeds like any other civil litigation, with discovery, trial preparation and trial. The Florida court will rule for the plaintiff if they can show that they are the only owner and entitled to full possession of the property. A final judgment and order will be issued requiring the person to leave the premises and, if necessary, a sheriff will remove the person on a Writ of Possession.
This entire procedure can take three months or more. Actions in ejectment usually take longer to remove a person than an eviction or unlawful detainer action since the competing claims to possession and ownership must be adjudicated in a court proceeding. The party that wins the action also may be entitled to a money judgment for damages and costs.
- Florida Bar: Rights and Duties of Tenants and Landlords
- Law Association: Ejectment
- Landlake Law.com: Dealing With a Problem Tenant or Unwelcome House Guest
- Online Sunshine: 2021 Florida Statutes Title 83 Florida Residential Landlord Tenant Act
- Florida Statutes: Ejectment
- IProperty Management: Florida Eviction Process
- Pascale Law Offices: What an Ejectment Is (and What it Is Not)
- Brian Kowal Law: What Is the Difference Between an Eviction, Unlawful Detainer, and an Ejectment in Florida?
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.