It’s the Law: My tenant does not want to pay — can I evict him?

Q: I have a tenant that stopped paying rent. He tells me I cannot just throw him out. Is he right?

A: The tenant is right. In what some call “the good old days,” landlords could just throw tenants and their possessions to the curb. That action was often accompanied by violence, personal injury and property damage.

In an effort to avoid violence and to provide a clear procedure for tenant evictions, Florida’s legislature has adopted the Florida Residential Landlord Tenant Act at Section 83.40, Florida Statutes. That act is a compromise between the landlord’s desire to get rid of a tenant immediately and the tenant’s property rights.

The first step to evicting a non-paying tenant under the Act is to provide a written demand that the tenant pay all delinquent rent within three business days or move out. The demand must calculate the amount due, calculate the date of the deadline and otherwise conform to the requirements of the statute. Demand may be mailed by mail, hand delivered to the tenant or even posted on the door if the tenant is not home when delivery is attempted. If the lease requires a different method of delivering notices, the lease requirements must be followed.

The statutory requirements are technical. Any mistake can invalidate the demand notice. A typical mistake is to include amounts due the landlord for items other than rent as part of the demand for rent (i.e. late fees or utility charges).

If the tenant does not pay the rent and does not vacate, the landlord still cannot throw the tenant out. The landlord must file an eviction suit, in which the landlord seeks possession of the property. The landlord is entitled to an expedited procedure for tenant evictions.

Instead of the usual 20 days to answer a summons, a tenant in an eviction case has only five business days. If the tenant files an answer, trial is also expedited and a trial is usually scheduled within two weeks of the tenant’s answer. Although this procedure is slower than allowing the landlord to toss the tenant to the street, it is much faster than a regular trial and it is intended to protect the tenant’s rights. After all, it is possible that the tenant has a good defense.

If the tenant raises any defense other than payment, the tenant must deposit all of the overdue rent and future rent as it comes due into the registry of the court. If the tenant does not deposit the rent, the tenant cannot raise any defense and the landlord will be entitled to a judgment for possession.

To ensure expedited proceeding in eviction cases, the tenant does not have to be personally served with the summons and complaint. If the Sheriff makes at least two attempts at personal service six hours apart, and the tenant is not home, the Sheriff can post the summons and complaint at a conspicuous place on the premises and that is sufficient service for an eviction action.

In contrast, the Sheriff must personally serve the tenant or someone residing at the tenant’s home that is fifteen years of age or old if money damages are sought. If money damages are sought, the tenant has twenty days to answer the complaint for money damages (i.e. unpaid rent, damage to the premises, late charges, utilities).

Once the landlord has a judgment, the tenant does not automatically move out. If the tenant does not vacate, the landlord must again resort to court. The landlord obtains a writ of possession from the Clerk of Court commanding the Sheriff to put the landlord in possession after 24 hours notice conspicuously posted on the leased premises. If the tenant still does not vacate, the Sheriff will generally accompany the landlord to the premises to forcefully evict the tenant.

Eviction does not release the landlord from requirements of the Act concerning disposition of deposit money and advance rent. The landlord must still provide the tenant with certified mail notice within 30 days of the date the tenant vacates if the landlord claims the deposit and the basis for the claim. Failure to timely serve this notice waives any claim to the deposit.

If the landlord wants to recover unpaid rent or damages to the property, a separate count must be included in the complaint and the damages claim is handled just like any other lawsuit. The tenant has twenty 20 days to serve an answer to the complaint and it is scheduled for trial just like any other trial. In this regard, damages include attorney fees. Attorney fees are not recoverable utilizing the five day summons and expedited eviction trial, but can be awarded as part of a separate claim for damages.

As you can see, the landlord tenant area is substantially a creature of statute. The applicable statutes are technical and must be followed in all respects. Even a minor violation of the technical requirements can result in a losing case. I recommend you consult with an experience attorney before proceeding against your tenant and that the attorney also review your lease document to be sure it complies with Florida law and protects you to the maximum possible extent so you can minimize problems with future tenants.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@embarqmail.com or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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