In order that landlords better understand their rights and obligations under Florida law and better understand the eviction process, I have listed some common questions asked by landlords and their answers:
Q:
What does the landlord do about a tenant that has not paid the rent?
A:
The tenant must be served with a three-day notice demanding that the rent be paid or the tenant surrender possession of the premises within three days (excluding the day of service, weekends and holidays).
Should there be a written lease that states that the notice period is longer than three days, then the notice period in the lease would govern rather than the statutory three-day notice.
Q:
How does the landlord terminate an undesirable tenant who is a month to month tenant?
A:
The tenant must be served with a notice stating that the month to month tenancy is terminated and demanding that the tenant surrender possession at the end of the a monthly period. The notice must be served at least fifteen (15) days prior to the expiration of the monthly period and the termination date on the notice must be the last day of a monthly period.
Q:
How does the landlord terminate an undesirable residential tenant who has not complied with the terms of the lease other than non-payment of rent?
A:
If the tenant has failed to comply with the material provisions of the lease, or reasonable rules and regulations or the Florida Statutes which state the tenants' obligations, then:
If the non-compliance is such that the tenant should be given an opportunity to cure the non-compliance, the landlord must serve the tenant with a seven day notice to cure or vacate, stating the non-compliance, and stating that the tenant has seven days to correct the non-compliance or else the lease is deemed terminated and the tenant shall vacate upon such termination. Examples of such non-compliance include but are not limited to, unauthorized guests, pets or vehicles; failing to keep the premises clean and sanitary; disturbance of other tenants by loud noises. In addition, the notice should state that if the tenant repeats the same conduct or conduct of a similar nature within twelve months, the tenancy is subject to termination without a further opportunity to cure.
Q:
Who should serve the notices mentioned in questions 1, 2 and 3 above?
A:
The landlord may serve the notice himself or herself or have it served by an independent agent hired by the landlord. It is recommended that the independent agent serve it since there is less likelihood of a mistake being made and the independent agent's testimony would probably be more believable in court should a question arise concerning the service of the notice. This is true because the independent agent is perceived by the court as not having a personal stake in the matter nor a motive for lying while the actual landlord is perceived by the court as having a stake in the matter and a possible motive for lying.
Q:
What happens when the notice period is up and the tenant has not paid nor vacated the premises (rent case) or if the tenant has not cured the non-compliance or vacated the premises (non-compliance other than non-payment of rent case)?
A:
The landlord's attorney prepares a Complaint for Removal of Tenant which is served with a Summons on the tenant by the Sheriff or by a certified process server. The tenant has five days, excluding the day of service, weekends and holidays, to file an answer. If an answer is filed by the tenant, a hearing or mediation may be scheduled.
If no answer is filed by the tenant, the landlord's attorney submits a Motion For Default; Non-Military Affidavit; Non-Payment Affidavit; Final Judgment and Writ of Possession. The Clerk enters a Default and sends the court file to the judge. The judge reviews the file and if everything is in order, the judge signs the Final Judgment. The file is sent back to the Clerk's office and the Clerk's office issues a Writ of Possession which is then sent to the Sheriff. The Sheriff then posts a twenty-four hour notice on the premises. The Sheriff will then call the landlord or the landlord's designated agent to inquire whether the tenant has vacated the premises. If the tenant has not vacated, the sheriff will instruct the landlord to meet him or her on a given date and time at which point the Sheriff will stand by to keep the peace as the landlord and the landlord's laborers remove the tenant and the tenant's personal belongings from the premises.
Q:
May the landlord use self-help to remove the tenant or deny services to the tenant?
A:
Absolutely not. The Florida Statutes strictly prohibit the landlord from directly or indirectly terminating or interrupting any utility service furnished the tenant, including but not limited to, water, heat, light, electricity, gas, elevator, garbage collection or refrigeration, whether or not the utility service is under the control of or payment is made by the landlord.
In addition, the landlord is prohibited from preventing the tenant from gaining reasonable access to the premises by any means such as changing the locks. The landlord is also prohibited from removing the outside door locks, roof, walls or windows of the premises except for maintenance, repair, or replacement. The landlord may not remove the tenant's personal belongings from the premises unless it is after the tenant surrendered possession of the premises; after the tenant has abandoned the premises; or after a lawful eviction.
A landlord who violates any of the above is liable to the tenant for actual and consequential damages or three months rent, whichever is greater, plus costs and attorney's fees.
Q:
What choices does a landlord have after an eviction lawsuit based on non-payment of rent has been filed but the tenant wants to pay and remain at the premises?
A:
The landlord has the following 3 options:
- The tenant pays the landlord, in one payment, all the money that is owed (including late charges, court costs and attorney fees concerning any 3 Day Notices and the eviction), and the landlord allows the tenant to stay and the landlord dismisses the eviction lawsuit.
- The tenant pays the landlord a partial payment of the monies owed (the total of which includes late charges, court costs and attorney fees concerning any notices served on the tenant and the eviction lawsuit), and the tenant is put on a Court ordered payment plan (called a Stipulation) for the balance and the Stipulation also includes payment arrangements for the future rent that becomes due until the arrearage balance is paid off or until the end of the lease. The eviction lawsuit is dismissed but the Court retains jurisdiction so that if the tenant misses a single payment under the Stipulation, the landlord has the right to file an Affidavit of Non-Payment in the eviction case and have the Clerk issue a Writ of Possession to the Sheriff and have the tenant removed. No further notice needs to be served on the tenant and no additional eviction lawsuit needs to be filed.
- The landlord refuses payment of any money from the tenant and continues on with the eviction lawsuit.