What’s the Difference Between An Unlawful Detainer and An Eviction in Florida?
The eviction and unlawful detainer processes are both remedies to force someone out of your home. While the remedies are comparable, there are major differences. Skilled Indian River County lawyers can explain the requirements for each remedy, when you can assert these remedies, and the benefits of each remedy. Your Florida real estate lawyer will also explain what possible defenses a tenant, an uninvited guest, a squatter, or anyone living in your property may assert.
Generally, the eviction process is used if the property owner has a lease with a tenant. Unlawful detainers are used when there is no lease.
What is an unlawful detainer?
An unlawful detainer is a legal remedy that can be used by both owners of residential and commercial properties. The remedy is used when someone on your property who is not a “tenant” refuses to leave the property. Unlawful detainers are normally used when:
- Someone who was invited onto the property stays longer that the owner wants or the occupant is a squatter. A squatter is someone who takes possession of the owner’s property without the consent of the owner.
- The occupant is not a tenant. Generally, tenants have a written agreement to stay on the property in return for paying rent.
- The owner of the property asks the occupant to leave the property.
- The occupant refuses to leave/vacate the property.
According to the statute:
- Anyone who is entitled to possession of the real property (usually by virtue of having a deed to the property or constructive possession) can file a claim against someone who obtained possession of the property by:
- Forcible entry
- Unlawful entry
- Unlawful detention
The property owner in an unlawful detainer action can claim possession of the property and damages. The owner is not required to give the occupant advance notice of his/her claim but must notify the defendant after the claim is filed.
- If the court finds that the entry or detention was willful and knowingly wrong, the court should award damages in an amount “double” to the rental value of the property - from the time of possession until the time the defendant vacates the property. If the occupant damages the property, the owner can also seek damages for the cost to repair the damages.
- The action for possession and the action for damages can be “bifurcated.”
When is the Florida Eviction process used?
The Florida eviction process is governed by Florida Statutes, Chapter 83 Part II. The eviction process is used when there is a landlord-tenant agreement. The eviction process is generally used when a tenant refuses to leave the owner’s property after the term of the lease has expired or because the tenant fails to pay the rent. Evictions may also be used for other violations of a lease agreement such as damaging the property, having a pet when the lease says there should not be any pets, and affecting the right of neighbors to quiet enjoyment of their property. Tenants can also be evicted if they engage in illegal activities such as selling drugs.
While leases should be in writing, property owners can file an eviction action based on an oral lease.
Can property owners use Florida’s summary procedure for unlawful detainer and eviction complaints?
The general answer is yes. Both actions can be brought using Florida’s summary procedure set forth in Section 51.011. Summary procedure is a way to expedite the need to remove an occupant.
Normally, when a complaint is filed, the defendant has 20 days to file a reply. The time frame is reduced in a summary procedure:
The plaintiff (the property owners) shall set forth the cause of action and any other information required by the appropriate unlawful detainer or eviction statute. The defendant is then given just 5 days to file an answer – once the defendant is served the complaint. The answer can include a counterclaim. The plaintiff then has 5 days to respond. There are no other pleadings. Any motions are heard by the court prior to trial.
At Lulich & Attorneys, our Indian River County lawyers understand what information to set forth in the complaint depending on the type of action and the type of property.
Generally, we do provide advance notice to the defendant for each type of action as a matter of courtesy and to avoid any complaint by the defendant that he/she could not respond in a timely manner.
Generally, unlawful detainers and eviction actions are filed in the county court where the property is located.
A few caveats for unlawful detainer and eviction actions in Florida
Landlords generally cannot use self-help methods such as changing the locks, turning off the utilities, or purposely making the occupancy unbearable.
The unlawful detainer notice can also include a notice to pay rent in addition or alternative to the notice to quit.
In eviction actions, landlords should anticipate the defenses the tenants may assert. Possible defenses by the occupant or tenant include:
- The failure of the owner or landlord to make the proper repairs to the property.
- Improper service of the complaint or notice.
- A defective notice. For example, using the defendant’s wrong name.
- Not complying with the requirements of the unlawful detainer or eviction statutes.
- Actual payment of the rent that is due.
If the court rules in the property owner’s favor, the judge enters a judgment against the defendant. Normally, the landlord/owner or the judge completes a writ of possession which is then given to the local sheriff or marshal. The writ is then posted on the property giving the tenant just a short time to vacate the property. The court can also award damages.
Speak with an experienced Indian River County real estate lawyer today
At Lulich & Attorneys, our Vero Beach and Sebastian real estate lawyers represent owners, landlords, and tenants in unlawful detainer and eviction proceedings. We explain your rights, file the correct papers on your behalf, and argue your case before the judge. To learn when and how to use unlawful detainers or eviction actions and how to defend these actions, call us at 772-580-5500 or use our contact form to schedule an appointment.