How can a Landlord recover possession of a unit
Florida law generally contemplates four
scenarios that allows a landlord to regain possession of rented property they are: 1)
Eviction case filed in Court (typically for non-payment of rent or other breach of lease); 2) Surrender of the property by
the tenant; 3) Abandonment of the property by the tenant; and 4) Death of the tenant.
1) EVICTION CASE FILED IN COURT
A landlord may recover possession
of rented property by filing an eviction case against a tenant typically in the County Court where the rented property is
located. Before filing the eviction case the landlord must terminate the landlord
/ tenant agreement. In other words the landlord must legally bring the tenant’s
rental agreement to an end.
The landlord must terminate the tenancy
by delivering the appropriate notice to the tenant as the circumstances warrant. The
landlord can typically terminate the rental agreement because 1) the tenant has not paid rent and the landlord serves the
tenant with a 3-day notice; 2) the tenant has breached the lease in some other fashion and the landlord has delivered the
required 7-day notice or notices depending on the type of breach; and 3) the tenant’s month-to-month tenancy or written
lease has expired and the landlord has delivered 15-day notice. The notices mentioned
here a discussed in more detail on other pages of this site.
Once the landlord has served the required
notice, the notice has expired and the tenant has does not vacate the rented property the landlord may file an eviction case. The eviction case should result in the landlord obtaining a Court Order restoring
possession of the rented property to the landlord and directing the county sheriff to remove the tenant from the rented property
and deliver possession to the landlord.
2) SURRENDER OF THE PROPERTY BY THE TENANT
Surrender is probably the most simple and
straight forward of the scenarios, however, both landlord and tenant should take steps to protect their future interests. Surrender can occur whether or not there is a written lease in effect
and the landlord or the tenant can cause the circumstances leading to it. The
landlord or tenant may want to terminate the tenancy for any number of personal or business reasons: the landlord may want to sell the property, build or remodel it, etc. and the tenant may want to relocate
due to employment, marriage or family reasons or loss of the ability to pay, etc. The
landlord and tenant may agree on a date when the tenant will surrender the rented property back to the landlord, the tenant
moves out and delivers all keys to the landlord.
Depending on the circumstances, at this
point it may be in the best interest of both the landlord and tenant to sign a Release as to their future rights and obligations. A Release is especially important if a written lease will be broken as a result. Forwarding addresses should also be exchanged for the timely return or notices regarding
any security deposit.
3) ABANDONMENT OF THE PROPERTY BY THE TENANT
Abandonment may be one of the more difficult
scenarios, as it may not always be 100% clear that the tenant has abandoned the property.
The landlord may never know the reasons for a tenant abandoning a property as the true motive behind a tenant abandoning
rented property can range from the tenant simply wanting to move out to legal problems.
Of course, there may also be very real possibility of the landlord having 100% knowledge that the tenant has abandoned
the property. For example the tenant lets the landlord know they are having trouble
coming up with rent money and the landlord then sees the tenant moving out of the property.
Every situation is unique and some common sense and caution should be taken before the landlord re-enters the property.
Florida law states that if the landlord
does not have actual knowledge that the tenant has abandoned the property the landlord can assume in the typical landlord/tenant
setting that the tenant has abandoned if: 1) the tenant has not been in the property for 15 days and 2) the rent is not current. Again, because this is an assumption on behalf of the landlord allowed by law
and every situation is unique, common sense and caution should be taken. If the
tenant has advised the landlord or the landlord knows that the tenant is away (vacation, business trip, etc.) the assumption will not apply.
A landlord must also consider how to show
that the property was deemed abandoned should the tenant suddenly reappear or wants to make a claim against the landlord. Item 2 above, the rent not being current, is probably easy to prove using the landlord’s
business records of payments received from tenants. Also, was a 3-day notice
for non-payment ever posted on the tenant’s door and did anyone take it down or did it just remain on the door. Item 1 above, absence from the property, is more difficult. However, the landlord may consider in some case looking for security logs, does the property have a security
devise like a garage door opener that records every time a tenant comes in or out or is their a concierge or valet on the
property that would know. In every case the landlord should consider are the
utilities, electricity, water, cable and telephone still connected, is the mailbox empty and most importantly is the unit
vacant? Again, this is because it is an assumption that the landlord should use
commonsense and caution before deeming a property abandoned even if at first glance it appears the tenant has been gone for
15 days and the rent has not been paid. After all, the tenant may simply be away
due to unexpected family circumstances, an accident or other delay.
4) DEATH OF THE TENANT
The law assumes the landlord will have
knowledge that the tenant has passed away and has the following requirements: 1) the tenant has passed away; 2) the rent has
not been paid; and 3) at least 60 days have passed since the tenant passed away and the landlord has not been informed of
Probate proceedings or who the personal representative of the tenant’s estate is.
Again, this is also contain some assumptions so the landlord should use caution and commonsense. If the landlord knows the tenant has passed away, has the landlord contacted family to remove the tenant’s
personal belongings, has family picked up mail, are the utilities still connected, etc.