What if you need to evict someone who is not a tenant?
Do the current eviction moratoriums apply to unlawful detainers?
There are several sets of statutes that allow people to sue for possession of property, the most common are evictions, ejectments, and unlawful detainers. Everybody is familiar with the term “eviction”. But in Florida, an eviction applies to lawsuits governed by Chapter 83 of the Florida Statutes, also known as the Landlord and Tenant Act. This Act only applies to people who agree to an exchange of something of value for a home. If the person you are trying to evict has never paid you anything, you must “evict” them under a different set of laws.
Ejectment are another remedy for gaining possession of property. However, generally, an ejectment only applies to a residential property when there is a question of ownership. For example, an ejectment would apply to an action to recover possession from a renter who defaults on a rent-to-own agreement who may have equity in the real estate at issue. You should never enter into a rent-to-own agreement without consulting an attorney, but that’s a subject for another day. Ejectments are exclusively heard by the Circuit Court, can take several months to conclude, and are very expensive.
Unlawful Detainers apply to just about every other situation regarding possession of residential property. If you need to remove a person from your property who has either taken possession by unlawful force or was originally given permission to live there for free, but refused to leave when the permission was withdrawn, an Unlawful Detainer is probably the answer. It applies to many varied situations. Most commonly, people think of “squatters”, a stranger who has possibly broken into a vacant home and refuses to leave when the owner demands it. But it can also apply to a friend you let crash on your sofa, or a boyfriend who has lived with you for years, or a relative, adult child, or parent who you’ve had a falling out with. It often comes after a death in the family, when one person or a group of relatives has been living in the decedent’s house, which the heirs want to sell. It applies to just about every situation where you need to remove a person from a home who has never paid or given anything of value for the right to live there.
Unlawful detainer cases are usually straightforward, if ownership is clearly established and the occupant has given nothing of value in exchange for the right of possession; there really is not a valid defense to this type of lawsuit. But just like any lawsuit, if you sue someone under the Unlawful Detainer statutes, that person is entitled to respond to the lawsuit with a defense and have a court hear the case.
Many people find it unfair that someone can essentially “squat” in their property while the lawsuit is pending, sometimes for months. And it often is, but sometimes the occupants have been taken advantage of by con-artists and feel just as victimized, and sometimes there is a misunderstanding among multiple owners. That being said, there is a financial remedy offered by the Statutes, the Plaintiff (person seeking possession) is entitled to a judgment for two times the monthly rental value for the duration the Defendant (“squatter”) is in the property without permission. Therefore, it is important to demand possession in writing and keep records of your communication.
Unlawful Detainers are not covered under Florida’s Landlord and Tenant Act, which requires an oral or written lease; thus they are not evictions per the current eviction suspensions. The current Federal, State, and (most) Local COVID-19 Pandemic restrictions do not prevent a person from seeking relief for an unlawful detainer from the Courts. If you think your situation may require an unlawful detainer action, it can be filed today.
Also note, the unlawful detainer statutes are not specific to residential property. Though it is less common, and occurs more often in a rural setting, they can be used to remove persons or entities unlawfully occupying commercial property as well.
If you think an unlawful detainer may apply to your situation, give us a call to discuss your options, Warren & Skaggs, PLLC (407) 792-5659.