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Evictions

Frequently asked landlord questions

      1.      What is an eviction for possession only?

       

      An eviction for possession only is the legal means by which a property owner takes back possession of rented property from a tenant, without asking the Court for anything further.

       

      2.      What is an eviction for possession and damages?

       

      Aside from obtaining possession, the property owner obtains a Judgment from the Court that in effect recognizes and orders the tenant to pay money damages or the losses suffered by the property owner.

       

      3.      What damages may a property owner seek from a tenant?

       

      Generally, a property owner is entitled to recover the amount of rent lost and attorneys’ fees and costs associated with the eviction lawsuit. 

       

      4.      Why would a property owner choose not to sue for possession and damages?

       

      A property owner may seek possession and damages in eviction proceedings.  However, there are 2 legal, and in our opinion practical hurdles, to obtaining damages. 

       

      The first has to do with “Service of Process”, the means by which the tenant is given notice that legal proceedings have begun.  In order to obtain a damages judgment the “Service of Process” must be personally served on the tenant.  In other words, the tenant must be personally handed the eviction complaint requesting the damages by a process server.  The tenant is not required to open his door or otherwise cooperate with the process server in his attempt to deliver the eviction complaint to the tenant.  A tenant who evades being served with the eviction complaint will delay the eviction proceedings and add costs to the proceedings.

       

      The second has to do with collecting the damages.  It is unlikely that the tenant will simply pay the judgment amount.  Especially since most evictions are started due to non-payment.  As such, the property owner must locate and petition the Court to garnish an asset of the tenant to satisfy the money damages.  This will cause the property owner to incur additional fees and costs that may not produce any result. 

       

      5.      Why is seeking possession through eviction proceedings easier than damages?

       

      By enacting Landlord – Tenant laws The Florida Legislature has established the rights of landlords and tenants and the procedures for enforcing those rights.  Current law allows a property owner to obtain possession through “Summary Procedure”.  This dramatically shortens the time periods required for Answers and Motions and requires that the Court advance eviction cases on the docket.  Also, because an eviction for possession is considered by the Court as a lawsuit involving rights over a piece of property, personal service is not required, as it is for damages.  The eviction complaint can be “posted” on the premises to grant the Court jurisdiction to make determinations over the property.  The option of “posting” the complaint on the premises usually makes obtaining “Service of Process” easier and less costly.

       

      6.      Why and when can a property owner evict a tenant?

       

      A tenant may be evicted for breaching the terms of his rental agreement or failing to leave the rented property once the rental agreement has ended.  The tenant can then be evicted as soon as the landlord provides notice to the tenant that his rental agreement has been terminated due to the breach or passage of time and the tenant refuses to leave the property.

       

      7.      What constitutes a breach of the terms of the rental agreement?

       

      The most common breach for which eviction proceedings are started is non-payment of rent.  Other breaches may include but are not limited to violations by the tenant of community association rules for those rental properties located in community associations, illegal activities of the tenant conducted on or affecting the rented property or violating pet restrictions set by the property owner.  (Illegal activities can be criminal or civil, such as violating zoning laws by operating a business in a residential area.)

       

      8.      What notice must be given to a tenant for not paying rent.  (Non-Payment of Rent Breach)

       

      It is of the utmost importance for a property owner or his agent to strictly adhere to the requirements established by law as to the notice that must be provided to the tenant.  What follows below is a brief introduction of some, but not all, notice requirements and should not replace the advice of an attorney.  You should consult with an attorney prior to taking any action regarding tenant notices.  It is noteworthy that most landlord – tenant cases are decided based on notice requirements.

       

      This is the most common breach (non-payment of rent) for which eviction cases as begun.  It requires a 3-day notice to pay or vacate.  The notice basically informs the tenant that they have failed to pay the rent as required and provides the tenant 3 business days to either pay the rent due or move out.  This notice also serves as a notice of termination should the tenant refuse or fail to either pay the rent due or move out upon the expiration of the 3 days.

       

      9.      What notice must be given to tenant for breaching the terms of the rental agreement not related to payment of rent.

       

      It is of the utmost importance for a property owner or his agent to strictly adhere to the requirements established by law as to the notice that must be provided to the tenant.  What follows below is a brief introduction of some, but not all, notice requirements and should not replace the advice of an attorney.  You should consult with an attorney prior to taking any action regarding tenant notices.  It is noteworthy that most landlord – tenant cases are decided based on notice requirements.

       

      This depends on whether the breach is something the tenant can correct or not.  A “curable” versus a “non-curable” breach.

       

      If the tenant’s breach is curable, such as parking in the wrong space, it requires a 7-day notice to fix the breach or move out.  This notice must explain to the tenant what the violation of the rental agreement is, what must be done to correct it and provide the tenant 7 days to correct it or move out.

       

      If the tenant’s breach is non-curable, such as intentional destruction of the property or committing the same curable violation within a year, it requires a 7-day notice to vacate.  Again this notice must explain to the tenant what the violation of rental agreement is, that it is non-curable, that the rental agreement is ended and that the tenant must move out within 7 days.