While many blog writers, including myself, often focus on homeowners in financial distress, Tenants are often victims of either their own financial distress or the financial distress of their landlord. This article will examine the eviction process from a lawyer’s viewpoint for both the landlord and the tenant.
Since I am a Florida board certified real estate attorney, I will focus on the landlord tenant law in Florida. And because this article is written at the request of Laura Pearlman, who handles mostly residential transactions, I will focus on the residential part of the Florida Law.
The Rights and Obligations of Landlords and Tenants Regarding Eviction –
The laws governing residential landlord-tenant relationships is codified (it is written as law) in Florida Statutes at Section 83, Part II. There are a few exceptions as to what type of residencies do not fall within this law – the most notable for most discussions being when the tenant and the landlord are such because of a contract for the purchase or sale of the property. This exception is typically where there is a pre-closing occupancy agreement or a post-closing occupancy agreement incident to a purchase contract. This would not include an option contract, however (such as a lease with an option to buy), which tenancy is still governed by the statute.
Attorney Fees – Who Pays for the Eviction? -
The first thing to understand in a landlord – tenant eviction is that the winning party in the eviction or other enforcement proceeding will be entitled to attorney fees. I find that most people underestimate what total attorney fees will be for “something so simple”. The reality is “simple” is in the eyes of the beholder. Actually doing the work, dealing with the pleadings and the actions of the person being sued (or the work of defending the case) can be consuming, and what is thought of as 30 minutes of work can easily be several hours. Attorneys charge generally charge from $150 an hour for a budget attorney (usually very new with very little overhead and experience) to more than $400 an hour for an experience attorney. Don’t let the numbers fool you – paying for experience can often be the less expensive route.
The point being made with attorney fees is that any landlord-tenant dispute is going to be expensive for the one who loses, since the loser pays his own attorney fees and the prevailing party’s attorney fees.
Why Is There an Eviction?
Evictions are typically brought by landlords because the tenant either failed to do something, like pay the rent, or did something wrong like keeping 5 cousins living in the house, or violating the association rules too many times, or like getting arrested for growing marijuana in the rented property (just happened to my landlord client). Evictions are often brought because the lease term has matured and the tenant has refused to vacate.
If your lease term is finished and you stay in the property without the landlord’s WRITTEN consent, you are going to responsible to the landlord for TWICE the amount of your usual monthly rent. This is called “holdover rent” and it is governed by Section 83.58.
If the tenancy is month to month or quarter to quarter or year to year, without a specific end point, and the landlord or tenant wants to end the tenancy the party that wants to end the tenancy must give the other party advanced notice of 15 days prior to the end of the monthly period; or 30 days prior to the end of the quarterly period; or 60 days prior to the end of any annual period.
If the failure is paying the rent timely, only 3 days notice must be given but the 3 days notice must give the tenant the opportunity to pay the rent before the eviction becomes “ripe” for the court to accept the filing of the eviction complaint.
If the breach of the lease is because of some other matter that is curable – like having abandoned cars in the driveway, then the notice is 7 days to cure the beach. If the matter is incurable or the tenant should not be given the opportunity to cure the breach or the breach is the second breach within 12 months, then the notice is 7 days to vacate. See Section 83.56.
The Procedure In Court When Landlord Evicts -
After either the 7 day notice to vacate or cure (and not cure was done) or after 3 days for not paying the rent and the delinquent rent is not paid, the landlord will take a copy of the notice provided to the tenant and make it an exhibit to the complaint for eviction that is filed with the court. Usually the written lease will also be attached. The Clerk will receive the complaint, sometimes called an action for eviction or possession, and issue a summons. The summons will be served upon the tenant usually by a process server, but also by posting on the property. The tenant is given 5 days to answer the portion of the complaint regarding non-payment of the rent, and 20 days for other portions of the complaint, like other reasons for eviction or for money damages. For non-payment of the rent the only defense is that the has been paid. For any other reason the disputed rent has to be paid to the clerk of the court within the 5 days or a motion has been filed by the tenant for the court to determine how much the tenant must pay to the clerk of court as the disputed rent, or the court will automatically issue the eviction order. The eviction order is coupled with a writ of possession, which is an instruction to the Sheriff to dispossess the tenant from the property. See Section 83.60.
If the tenant has provided a written defense to the court in a timely manner, the court will likely have scheduled a hearing at which time the tenant can argue its case against eviction. Remember, if the tenant does not have a defense that would protect it from having to have first paid the rent to the clerk of the court, the court will grant the eviction. This does not mean that the tenant does not have some defenses for the damages that the landlord may also be seeking against the tenant. But these defenses are not a substitute for paying the rent, and therefore eviction will usually be granted.
What If the Landlord Breached the Lease?
Defense to a possession action by the landlord can be based upon a material non-compliance by the landlord of its responsibilities under Section 83.51 or retaliatory conduct under Section 83.64.
Landlords that do not pay their mortgage or association fees are particularly problematic for their tenants. See two articles on this issue at, TENANT PROTECTION LAW AND FORECLOSURE PROBLEMS and COMMUNITY ASSOCIATION AS LANDLORD - WHO GETS THE RENT?
Landlord responsibility includes complying with all building and health codes, maintaining the roof, windows, screen, doors, floors, porches, exterior walls, foundations, all in good repair, and the plumbing in working condition. There are other responsibilities depending on whether the property rented is a home or duplex, or a multifamily building.
To be able to raise a defense based upon the landlord’s failure to abide by its responsibilities, the tenant must have first provided 7 days advanced written notice to landlord of its breach of responsibility and the landlord must have failed to have corrected the breach. So bringing up a landlord breach for the first time at a trial on a tenant eviction is not going to work unless the landlord was given the statutory 7 day advance notice.
Don’t forget to see other responsibilities of the landlord and the tenant as may be contained in the written lease agreement.
Timing –
Landlord Tenant actions generally are in the County Court division of the court system. The County Court has a much faster schedule than the Circuit Courts and therefore you can expect cases to proceed quickly. In addition, the eviction process is governed by the “summary procedure” rules of the court and eviction cases are advanced to the front of the court’s calendar. Most response times are cut from the typical 20 and 10 days in circuit court, to just 5 days in the summary procedure rules. Essentially, a tenant eviction case can be resolved start to finish in just two weeks. Often times this theoretical timeline will be exceeded, but as you can see this is a fast procedure.
Other Ways to Evict -
Sometimes a special situation may result where eviction in the usual sense is not the proper way to proceed. If there was an installment sale contract the remedy may be foreclosure. If there was some dispute on ownership or claim to some special equity, the remedy may be Ejectment. The procedures for these other eviction remedies are substantially different than the procedures in a simple lease based landlord - tenant relationship eviction.
Summary –
Landlord Tenant issues can be complex or simple. The only true statement is that if the tenant does not pay the rent it will be evicted – barring some material misconduct by the landlord. Trying to provide a defense can be expensive, and if the eviction is for non-payment of rent, defenses may be barred if there is no payment of the past due rent to the clerk of the court.
If the landlord is a corporation or entity, they will generally need an attorney to represent them in court. Tenants that are natural persons can represent themselves, although they should consider getting an attorney especially if they believe they have a defense.
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Copyright 2012 by Richard P. Zaretsky, Esq.
Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make. This article is for information purposes and is not specific advice to any one reader. Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 RPZ99@Florida-Counsel.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide! Shortsales@Florida-Counsel.com New Website www.Florida-Counsel.com
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