Getting them out
Tenants vs Squatters
While Florida property ownership can be a ticket to a place in the sunshine, many folks still retain a northern business or summer home life. As a result, many Florida property owners choose to rent a property part-time or even allow people to reside part-time at the Florida property while the owner is living elsewhere.
Ideally, the tenant or house-sitters are good folks who can be relied on to comply with a lease or other agreement to leave a property when agreed to. Unfortunately, sometimes this is not the case. When someone is possessing your property in Florida, the law requires an “Order of Possession” as a prerequisite to having an unwanted possessor removed.
Unwanted possessors can come in two types. First, anyone who has taken possession of a property under a written or oral lease or under terms that the court may construe as being a lease agreement is considered a tenant under the law. To remove a tenant, an eviction proceeding is necessary. Most evictions arise from the failure of a tenant to make rental payments. In this situation, the law requires a three-day notice to the tenants advising them of the late payments and specifying the amount due. If the payment is not made, the owner can then file and serve a lawsuit for eviction.
Once filed and served, the possessor must present the full amount owed to the court, or the court will issue the Order of Possession, which in turn leads to the service of a Writ of Possession by the Sheriff, forcing the tenant to vacate the property. Evictions can also be pursued arising from any other material breach of the lease terms, such as destruction of property or illegal actions at the property. When there is a tenancy relationship, the law allows for the action also to see back rent and compensation for legal fees and costs incurred in the eviction action, but the harsh reality is that getting financial recompense from a nonpaying tenant is an expensive extra component of the litigation that often is not realistically recoverable.
The second type of unwanted possessor obtains status by being allowed to reside on the property without any lease or lease-like conditions or who has taken possession of the property by simply entering the property and using it as a residence, such as a squatter. In these situations, the people inhabiting the property are not considered tenants. For non-tenants, there are two types of legal actions that can be used to obtain the Order of Possession and subsequent Writ of Possession.
The first, an Unlawful Detainer action, is for squatters or people who were allowed to reside at the property but who refuse to leave. This cause of action is simpler and is effective to have the unwanted possessor removed once it is filed and served. Unless the possessor shows up to court and can provide legitimate evidence that they are permitted to stay, the court will generally issue the Order of Possession.
The other option is Ejectment, which is used when an unwanted possessor makes some type of claim of legal or equitable title interest on the property. This more formal Ejectment action involves showing the court proof that the unwanted possessor does not have any valid claim to the property. In the absence of any legitimate claim of title or other legal interest in the property, an Order of Possession is generally awarded.
For each of these non-tenant actions, a claim can be made for legal costs and fees. The practical downside remains that actually securing this compensation from a party that has taken it upon itself to inhabit a property without permission is extremely unlikely.
While a well drafted lease is very helpful and can ensure penalties are available against problem tenants, there is no substitute for the prompt and aggressive filing of legal action to remove an unwanted possessor. The sooner the case is filed, the sooner the court can act.