At J & J Legal we, we assist owners, property managers, and condominium and homeowner’s associations with tenant evictions. Although most frequently, these evictions involve the failure to pay rent or condominium assessments, we also handle evictions based on violations of the lease or statutorily imposed duties and holding over after expiration of the lease term.
Because Florida’s Landlord Tenant Statute outlines various rules and procedures with respect to residential evictions, having an experienced real estate attorney handle these matters can make the difference between a quick, efficient, and cost-effective eviction as opposed to a prolonged, costly eviction. An overview of a typical residential eviction process highlights some of the key areas in which qualified representation matters.
Prior to filing an eviction complaint, the landlord or its agent must serve the tenant with written notice. For failure to pay rent, the tenant must be served with a written 3-day notice, which as the name implies, provides the tenant three (3) days to pay the alleged rent due or vacate the premises. The notice may also include taxes or late fees if characterized as additional rent in the lease and must include a description of the property—typically the address—and the address to which payment shall be made. Although a property manager can post the 3-day notice at the property, a property manager cannot represent a landlord/owner in court, particularly in a contested eviction proceeding.
If the eviction is predicated on a violation of the lease or other regulations, then a 7-day written notice is required, specifying the particular violation(s) at issue and providing the tenant seven (7) days to cure the same. The statute provides only two limited exceptions where the tenant is not given an opportunity to cure.
Serving or posting an improper notice that fails to contain all the statutorily required items will result in the eviction action being stayed.
The Eviction Complaint
Eviction Complaints typically include an action for possession (Count I) and may also include a second claim for damages (Count II). If there is a written lease, a copy must be attached to the Complaint as well as a copy of the notice to vacate—the 3-day or 7-day notice, as applicable. Evictions must be filed in the county where the rented property is located and are entitled to summary or expedited procedure. Depending on the county, the filing fee for an eviction is around $210.00, which includes issuance of a Summons to one defendant tenant.
After being properly served with the eviction Complaint, the tenant will have 5 days—excluding the date of service, weekends, and legal holidays—to respond to an eviction Complaint seeking possession and 20 days to respond to an action seeking possession and damages. Personal service on the defendant tenant is required for all actions seeking damages. Depending on the county, service of process for the Summons and Eviction Complaint by a private process server is $40.00 – $50.00. A tenant objecting to the amount of rent claimed in the Complaint must comply with certain procedures and deposit accrued rent into the Court Registry.
The landlord is entitled to a Clerk’s default if an answer to the eviction complaint is not timely filed and is obtained by filing a motion for default, proposed default, and affidavit of nonmilitary status as to the tenant. A motion for default judgment may also be filed if the accrued rent is not timely deposited into the Court Registry, however, the presiding county court judge will need to approve and sign a default based on this scenario. Once the default is entered, a motion for final judgment, proposed final judgment, and proposed writ of possession will need to be filed, reviewed, and approved. If the landlord is seeking damages in the eviction matter, an affidavit of damages is required and a copy of the motion and affidavit of damages must be served on the defendant tenant. While many eviction matters are uncontested, if the tenant files an answer and deposits accrued rent into the Court Registry, then the case will be set for trial and will take several additional weeks to finalize.
Writ of Possession
The motion for final judgment and proposed final judgment we file on behalf of our landlord/owner clients will direct the Clerk of Court to issue a writ of possession, which describes the property and instructs the Sheriff to take the property into his/her possession and put the landlord/owner in possession after 24 hours’ notice conspicuously posted on the property. After the Clerk executes the writ of possession, the county Sheriff’s Office will need to serve or execute the writ and charges $90.00 for this service. At any time after the writ of possession is executed, the landlord/owner may remove all personal property left by the tenant any secure the property by changing the locks. Because many tenants change the locks, we recommend having a locksmith present when the Sheriff executes the writ of possession in order to pick the lock or drill it and gain access with the Sheriff’s Deputy present. The locksmith can then change the locks and ensure the recalcitrant tenant no longer has access to your property.
If you are the owner or manager of residential property in Central Florida and have questions about your rights or the eviction process, please contact our office today. We charge a flat fee for residential evictions and look forward to assisting you with your real estate needs.