Do I Have To File A Lawsuit To Remove An Unauthorized Guest, Transient Occupant, In My Property? – Lulich & Attorneys

Do I Have To File A Lawsuit To Remove An Unauthorized Guest, Transient Occupant, In My Property? – Lulich & Attorneys

Landlords do have the right to be concerned that a tenant may allow a guest to stay in their apartment or unit without the landlord’s permission. Many tenants allow a relative or a friend to stay overnight for a few days. Landlords may require that tenants register all their guests. A seasoned Florida landlord/tenant lawyer can explain the legal rights and remedies that apply to landlords and tenants regarding a transient occupant.

Short-term concerns

The short-term stay is normally not a major concern for the landlord. What can concern the landlord is when a short-term stay evolves into a long-term stay or the tenant lets someone stay in their place for an extensive period of time. Just as landlords in Sebastian and Vero Beach have the right to vet their tenants for the ability to pay the rent and for an ability to be a quiet and considerate guest – they have the general right to vet any guests who don’t have the landlord’s permission to stay.

Leasing terms for guests who are not named as tenants

In most cases, the landlord requires, in the lease with the tenant, that:

  • The landlord has the right to approve any subleases
  • Landlords have the right to terminate a lease if the tenant has a guest without the landlord’s approval
  • The landlord can limit the amount of time a guest can stay in an apartment.

Landlords do need to balance their concerns about unauthorized guests and the right to privacy of their tenants.

Landlord remedies

Generally, landlords in Vero Beach and Sebastian may have the right to terminate a lease if the tenant violates the terms of the lease. If the lease requires that the tenant obtain the landlord’s permission for a guest to stay for more than a few days – and the tenant does not obtain that permission – then the landlord may proceed to end the lease. Proceeding means notifying the tenant that he/she is in breach and then filing a formal complaint to terminate the lease and evict the tenants.

The problem with filing a lawsuit against an unwelcome guest

The main reasons landlords would prefer not to have to file a lawsuit are:

  • Legal proceedings are costly. There are court costs and filing fees. Also, the landlord may be losing rent while the property is occupied by the unwelcome guest.
  • Legal proceedings are timely. It takes weeks or even months to obtain a court order and then more time to arrange for the sheriff’s office to remove the person in the property.

Florida’s statutory remedy for unwelcome guests and trespassers

2.035 Is titled – “Remedy for unlawful detention by a transient occupant of residential property; recovery of transient occupant’s personal belongings.

This statute provides a remedy for landlords to remove “Transient occupants” without having to file a formal lawsuit to remove the occupant.

What is a transient occupant?

The Florida statute defines a “transient occupant” as "a person whose residency in real property intended for residential use has occurred for a brief length of time, is not pursuant to a lease, and whose occupancy was intended as transient in nature.”

What factors does the Florida statute use to determine if someone is a “transient occupant”

Key factors include:

  • The person in the property does not have an interest in the property which entitles the person to occupancy such as:
    • An ownership interest in the property
    • A financial interest in the property
    • A leasehold interest in the property
  • There are no utility subscriptions in the occupant’s name
  • The occupant “cannot produce documentation, correspondence, or identification cards sent or issued by a government agency, including, but not limited to, the Department of Highway Safety and Motor Vehicles or the supervisor of elections, which show that the person used the property address as an address of record with the agency within the previous 12 months.”

Additional “transient occupant” status factors

Other factors, according to the statute are:

  • The failure of the person to pay any rent or minimal rent for his/her stay on the property
  • The failure of the person to have a “designated space,” such as a room, in the property
  • The lack of personal belongings at the property
  • The occupant does have a permeant residence at another location

The statute also provides that residency does not occur if the occupants make “minor contributions made for the purchase of household goods, or minor contributions towards other household expenses”

When does a transient occupancy end?

The Florida statute provides that a Sebastian or Vero Beach transient occupant is on the residential property unlawfully if he/she stays on the property – after the landlord directs the transient occupant to leave.

The transient occupancy can, therefore, also end if the transient tenant:

  • Moves elsewhere
  • Surrenders the keys to the residences
  • Leaves when the party entitled to possessions retakes possession
  • Exits due to a court order
  • Leaves “when directed by a law enforcement officer in receipt of an affidavit” under the statute

When can a law enforcement officer order a transient tenant to leave?

The Florida statute provides that a law enforcement officer can direct the transient occupant to leave the residential property:

"Upon receipt of an affidavit of the party entitled to possession that a person who is a transient occupant is unlawfully detaining residential property.” The affidavit “must set forth the facts, “including the factors discussed above” which establish the unlawful occupancy.

Consequences for transient occupants who fail to comply with a law enforcement officer’s directive to leave

If the tenant still stays on the property, he/she will violate Florida Statute - 810.08 Trespass in structure or conveyance.

“A party entitled to possession of a real property has a cause of action for unlawful detainer against a transient occupant according to 82.03.” This statute allows for damages “equal to double the reasonable rental value of the real property from the beginning of the forcible entry, unlawful entry, or unlawful detention until possession is delivered to the plaintiff. The plaintiff may also recover other damages, including, but not limited to, damages for waste.”

The landlord should give the former unwelcome guest time and condition(s) for recovering their personal belongings. This generally means – within 10 days of the removal. It also means giving the former transient occupant or a trusted third party the right to re-enter for the limited task of getting their personal belongings.

If the landlord has legitimate concerns about violence or drug use, the landlord can impose additional conditions. These remedies include having a law enforcement officer present. Also, they include using a properly registered mover. Additionally, they include using a third party the landlord trusts. Legitimate concerns include:

  • First, intentional damage to the dwelling or property
  • Second, physical or verbal abuse
  • Third, theft of property belonging to the landlord or another tenant

Consequences for improper removal

Also, landlords need to understand that the transient occupant may have a cause of action for wrongful removal. This includes compensatory damages and injunctive relief – if the removal does not comply with the Florida statutes.

Abandonment of property

If the former transient occupant does not seek the return or his/her property in a reasonable time frame, a Sebastian or Vero Beach landlord can consider that the personal belongings were abandoned. Alternatively, if the landlord denies the former tenant access to his/her personal belongings, the former transient tenant may file a civil action against the landlord for damages, legal fees, and costs

Additional considerations

The law permitting the removal of an unwelcome guest without filing a legal complaint applies to residential tenants. It does not apply to commercial tenants.

Also, there are additional tenant and landlord rights if the landlord charges rent for the stay of the unwelcome guest.

For help removing an unwelcome residential tenant, call the skilled Florida real estate lawyers at Lulich Attorneys & Consultants today. You can contact us at 772-589-5500 in Sebastian, at 772-7747-7771 in Vero Beach. You can also use our online contact form to schedule an appointment.