The Eviction Process
Several landlords have called our office inquiring into what they need to do to remove a tenant who is not paying the rent. The following is the basic eviction process.
The first step in the process is serving the tenant with a three day notice. Florida Statutes provides a form for the notice for residential properties. The three day notice states that the tenant has three business days to leave the property or to pay the rent. The notice can be served by hand delivery or can be posted on the door if the tenant is not present. If the three day notice is mailed to the tenant, the landlord must allow five extra days in addition to the three business days for the tenant to pay or vacate. If the amount of the rent is incorrect, if the date calculation is incorrect, or if the notice varies substantially from the form provided by Florida Statute, the notice will in all likelihood be defective and the Court would dismiss the eviction action automatically. Most commercial landlords use a similar form in commercial evictions. Issues to note regarding the three day notice are that only items defined as rent can be included in the notice; and if any partial payment is accepted by the landlord, the landlord will have to serve another three day notice before the landlord can proceed with filing an eviction complaint.
If the tenant fails to leave the property or pay the rent demanded, the second step in the process is to file an eviction complaint and serve the tenant with the complaint. The complaint is filed in the courthouse in the county where the property is located. As for service, one attempt has to be made to personally serve the tenant and if personal service is unsuccessful a second time, the tenant may be served by posting the complaint on the property. The tenant has five business days to either make the defense of payment or pay the amount that the landlord is alleging is owed into the court registry in order to avoid a clerk’s default. A clerk’s default eliminates a tenant’s ability to file a response. From here, the landlord can file for a motion for final judgment requesting possession of the property. After the judgment is entered, the clerk issues a writ of possession which is posted on the property by the sheriff’s department. The purpose of the writ of possession is to notify the tenant that the landlord will be taking possession of the property. In addition to posting the writ of possession, the sheriff’s department is involved in order to keep the peace. At this point, the landlord is put back in possession of the property.
If the tenant claims that the tenant has paid or if the tenant pays the amount due into the court registry, the judge will in all likelihood schedule a pre-trial conference and may order mediation. If the landlord and tenant are unable to reach a successful resolution from mediation, a trial will be necessary. The vast majority of tenants vacate the property after the eviction complaint is filed and very few evictions ever go to trial.
This is a very basic structure of the eviction process. Lease provisions, tenants who mount a defense, tenants who pay the rent into the court registry, and other issues could possibly make the eviction process longer and more complicated.
This article is not intended to replace the advice of an attorney who has reviewed the lease agreement and knows the details of the particular case.
