How to Evict a Tenant
Evictions: There is something that you must know up front; you cannot evict a tenant without a court order. Trying to evict a tenant by extralegal means such as changing locks, turning off utilities, threatening the tenant or engaging in any other act designed to force the tenant to leave, is illegal and may subject the landlord to civil damages to the tenant.
You need a reason to Evict a Tenant
You’ll need a proper reason to evict a tenant. Commonly, that reason is failure to pay rent. But evictions can also be caused by excessive lateness with rent, damage to property, or breaking the lease, perhaps by adopting a pet, having extra people stay in the property, making noise at all hours, or failing to maintain any other provision of your Rental Agreement. If you have a good tenant with a problem you can deal with, consider mediation. Eviction can be time consuming and costly and should be used as a last resort.
Serving an Eviction Notice
An Eviction Notice is generally the first step in the Florida eviction process is service of the appropriate written notice. For nonpayment of rent, the Florida eviction notice is a 3-Day Eviction Notice (see Florida Statutes 83.56(3) and 83.595 regarding nonpayment of rent). These notices must contain certain specific information to be effective. When counting the 3day notice period, do not include the first day of service, weekends or holidays.
Evicting someone who lives with you:
If you have a problem roommate or family member who won’t leave after you’ve asked, in most states, you’ll need to go through the eviction process. Typically, roommates are evicted because they’ve not paid rent, but if they’ve broken another part of the lease, you can ask they leave as well. Going through the eviction process with a roommate helps solidify that, even though the lease was perhaps broken, if wasn’t your fault.
Eviction Summons and Complaint
If the tenant fails to comply or to leave the property, the landlord needs to file and serve an Eviction Summons and Complaint. A copy of the notice and certificate of service must be produced at the clerk’s office and the completed complaint form notarized by the court clerk.
The summons and complaint must be served by either a registered process server or sheriff. The tenant has 5 days to file an answer with the court. If an answer is filed and served on the landlord within the 5 days, the landlord must contact the court clerk to schedule a hearing date.
Should no answer be filed, the landlord needs to file a Motion for a Default Judgment and request a Final Judgment for Possession, also called a Final Judgment for Removal of Tenant.
Defenses to Florida Eviction:
If the tenant is alleging a valid defense to the eviction, he or she must deposit the amount of the rent with the court during the pendency of the case. If tenant does not, then a default judgment will be issued.
Some common defenses to Florida eviction include the following:
- Defective notice
- Constructive eviction or case of material noncompliance by the landlord resulting an unsafe or unfit premises so long as the tenant has given 7 days written notice to the landlord specifying the noncompliance and intent to not pay the rent as a result.
- Retaliation by the landlord for the tenant complaining of the property’s condition, of the landlord’s noncompliance, for organizing or participating in a tenant’s union or for exercising any other right under Florida landlord tenant law unless the landlord can show that the primary reason for eviction was for a good cause.
- Discrimination. No landlord can evict a tenant based on the tenant’s race, creed, gender, sexual orientation, family status, religion, national origin or disability.
The importance of a Real Estate Attorney:
Eviction Notices and the eviction process can be tricky. They’re not only different in every state, but often in every county. If you’re thinking about evicting a tenant, it’s strongly recommended you consult with an attorney. Eviction takes time and it takes follow through. If it goes wrong, you can be stuck with a bad tenant for a long time. So talk with an experienced lawyer before you serve your notice.