They've got to go: A landlord evicting a tenant
October 22, 2021 - Categories: Legal Articles
Bad news, you’re living the landlord’s nightmare! You have a tenant that has got to go! In order to evict a tenant in Florida though, you need to ensure that you follow the correct steps.
What do I do first?
The first step to evicting a tenant is to put your tenant on notice. Depending on the kind of eviction that you’re in need of though the required notice will change. If you’re attempting to evict your tenant for non-payment of rent then, It is required that a tenant be notified in writing and that three (3) days are given to correct the problem. For example, if your tenant has failed to pay rent then the landlord is required to give the tenant three (3) days to catch up the past due rent before an eviction can be pursued. As many other legal proceedings the three days that begin to tick are not inclusive of weekends or holidays.
If your tenant is being evicted for breaking the terms of the lease, for example having a pet when pets are not permitted or property damage, then the landlord must allot seven (7) days for the tenant to correct the issue. Just like for not paying rent, the landlord must give notice of what the tenant has done wrong and allow them seven (7) days to “cure” the issue or to fix it. If the tenant corrects the issue then the eviction is over and does not proceed to the next step.
What if the tenant continues to break the lease?
If a tenant continues to not comply with the lease terms, then the landlord must again serve notice on the tenant with their reason for evicting the tenant. To avoid continually having to deal with a tenant breaking the lease though, the second time a tenant breaks a lease for the same reason, then the tenant if not given time to correct the issue. For example, if the tenant receives a notice of eviction for excessive noise but they correct the problem, if the tenant breaks the lease again for excessive noise then they will not be allowed the seven (7) days to fix the noise issue.
What if you give the tenant notice to leave the property and they don’t?
Assuming you already gave your tenant notice but they will have not left the property after the time to cure or eviction period, then now you must file a summons and complaint. The landlord must go to the courthouse closest to the rental property and file a complaint with the court as well as a summons. Once the clerk reviews the summons and complaint, then they will issue a summons. The summons as well as the complaint and any other related paperwork must then be served upon the tenant. Evictions are a bit different from other lawsuits in the sense that the legal papers can be left on the tenant’s door and another copy can be sent via certified mail with a return receipt. Some landlords also choose to utilize the services of a process server who will ensure you’re in compliance with the service statutes in Florida.
What if once the tenant is served, they still don’t answer? What happens if the tenant does answer?
The tenant in an eviction has five (5) days to answer the complaint once they’re served. If the tenant is properly served and still doesn’t answer, then the landlord can obtain a “default judgment.” This means that the case is won by the landlord as the tenant has waived their right to defend the case. Once you have a default judgment, then you can get a money judgment against the tenant. So, if the tenant owed you $1,000.00 in past due rent and they get a default judgment, then often the court will obtain a money judgment for the $1,000.00 and sometimes the court fees you had to spend to obtain this judgment. Such amount of past due rent is often determined by the filing of a Motion to Determine the Amount of Rent to be paid. This motion explains the amount of money due to the landlord and why.
Sometimes a tenant will answer with defenses to your complaint. For example, if you claim the tenant didn’t pay their rent but they said that they did, this is a defense. Obviously, they will need to provide evidence of their payment but this is an initial defense at least. Other times, a tenant will pay the past due money directly to the Clerk of Court. The court will then disperse the rent monies to the landlord upon order from the court.
Do I have to go to Court?
Unfortunately, yes. If you file a complaint and serve it upon the tenant then you will likely have to go in front of a judge. Depending on how the tenant responds depends on the kind of hearing you will have. Some judges will require a hearing for your default judgment and money judgment. If the tenant answers then you will have to go to the court and defend your complaint to the court. When you go to court, you should bring an evidence that you have of the tenant’s breach of the lease. Assuming the tenant does not have a defense to the case, then the judge will issue a Judgment for Possession. This basically means that that the judge awards you physical possession of the property. The Sheriff will post the notice of the Judgment of Possession and the tenant now has 24 hours to move out of the property. If the tenant still doesn’t move out, then the sheriff will forcibly remove the tenant and padlock the door, change the locks etc.
Do I need an attorney to evict a tenant?
Like many things in the legal system, you could definitively evict a tenant without the help of an attorney. Is it a good idea though? Also like most thing legal, there are numerous details that if overlooked can cause your case to be delayed or even dismissed eventually. You may not recover the full amount you’re entitled to as well if you’re not aware of the laws in Florida. Hiring an experienced attorney that aware of the law and what needs to be done to expedite your process is often worth the money. Access Legal Care is equipped and experienced in the law of evicting a tenant, let us make your life easier and get a bad tenant out of your life!
Key Questions to Answer:
Question: When did you receive summons and complaint?
Importance: Need to know when served, so we can determine when an Answer must be filed and served by.
Question: How did you receive the summons and complaint? (1st class mail, certified mail, in-person, etc?)
Importance: This will also determine the deadline for filing an answer. If served by certified mail, the person may have more time to file an answer.
Question: Do you live in the state in which the lawsuit was filed, i.e. were you served in another state?
Importance: If served in another state than the original, you may have more time to file an answer.
Question: Do you have a written lease?
Importance: This makes things easier, we now have definite terms in which the tenant was supposed to be abiding by. If there is no lease, then the lease is month to month.
Question: Is this a month to month, quarterly, annual lease?
Importance: some states, this will change the dates in which notice is served, the right to cure time, etc.
Question: What is the tenant doing that is currently breaking the lease?
Importance: This is the basis of the claim. We need to know if the tenant is truly breaking turns and what kind of terms of the lease are they breaking.
Question: Have you filed anything, given notice?
Importance: We need to know this so we know where we are in the lawsuit. Based on this we know if we’re going to be filing a suit or if we need to start from the beginning and first serve notice on the tenant.
Question: is this the first time that you have had to take actions against this tenant?
Importance: This may chance the time for the tenant to cure the fault. For example, if this is the second time for the same offense, then there usually isn’t a right to cure for the tenant.
Do you or a loved one need to speak with an attorney for free legal advice? Do you need affordable legal services to help you with the above topic, or with any other legal service? Access Legal Care Law Firm can help.
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