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Unlawful Detainer

Law BooksAn unlawful detainer action is controlled by Chapter 82 of the Florida Statutes. An unlawful detainer action can provide the benefit of a summary procedure. A summary procedure sets the case on an expedited track typically resulting in a quick resolution. This means that the Defendant has to respond to the complaint within 5 days (rather than the typical 20 days in other kinds of actions). If the Defendant fails to respond, the Plaintiff will be entitled to a default judgment and a Writ of Possession so that the Sheriff can remove the occupant. A positive with the unlawful detainer action is that there are no requirements to send a 3-day or 7-day notice like with an eviction.

An unlawful detainer is appropriate against individual(s) that have no formal obligation to pay utilities or rent and are not an owner to the property. These individual(s) may include a former boyfriend/girlfriend, child, family members, or friends that may have been allowed to stay at the property for a certain period of time, and have now refused to leave after the agreed upon time. An unlawful detainer does not apply to individuals that have a contractual agreement to rent a room(s). Once a judgment has been signed by the judge, a writ of possession will be issued to the Sheriff to remove the individual(s) from the property.

Unlawful detainers are filed in County Court. The timeframe for a resolution of an unlawful detainer action can vary from case to case. However, the typical timeframe is around 3-5 weeks, similar to an eviction action. The length of time of the case, of course, depends on whether or not Defendant asserts defenses.

Transient Occupant

Recently, the Florida legislature has adopted a new law as a legal basis to remove a “transient occupant” from residential property. A “transient occupant” is defined as an occupation of a residential property for a brief length of time, not pursuant to a lease. Effective July 1, 2015, the Florida legislature adopted Florida Statute §82.045. This statute is inapplicable to a landlord-tenant relationship.

The statute sets forth a remedy to any person entitled to possession of a residential dwelling unit. Thus, this is applicable to owners as well as lessees. The purported party entitled to possession may provide a sworn affidavit to a law enforcement office, requesting the removal of a transient occupant. After the transient occupant has been asked to leave and refusing to do so, they are unlawfully detaining the property.

The affidavit must establish the following factors to prove the occupant is transient:

  • No ownership, financial, or leasehold interest in the subject premises.
  • No utility bills in the transients’ name.
  • No government ID with the subject property address.
  • No mail with the subject property address.
  • Pays nothing, or little, in exchange for occupancy.
  • Does not have their own room.
  • Has minimal personal possessions at the subject premises.
  • Has a residence elsewhere.

Upon receipt of a sworn affidavit, any law enforcement officer may act accordingly and request that a transient occupant leave the premises. A person refusing to leave the property upon demand of a law enforcement officer is deemed to have committed a misdemeanor trespass pursuant to Florida Statute §810.08. There is no defense to a trespass charge that the person is not a transient occupant. An occupant who is improperly removed has no recourse against the law enforcement officer or agency, unless they can show bad faith. However, they may have a cause of action for damages against the person who signed the affidavit.

Further, the statute also states that if the person in possession files an unlawful detainer action in court, and the court determines that the person is a tenant, the case shall not be dismissed, but may be amended to proceed as an eviction action pursuant to Florida Statute, Chapter 83.

*Note: As the transient occupant statute is relatively new law, there is not currently any uniformity amongst law enforcement agencies as it applies to the statute. Some counties have created procedures for enforcement, while other have summarily refused to acknowledge or enforce it.

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When you call Legal Advocates, PLLC we will immediately schedule a consultation to personally meet with one of our attorneys to review your case and discuss the options you may have.

At Legal Advocates, PLLC we keep our clients abreast of every step of the foreclosure process.

If you are in need of filing an unlawful detainer action, the transient occupant statute or have been served with documentation on either, contact Legal Advocates, PLLC today at (561) 666-3443 for a free consultation to find out how we can help. You can also email us at: info@inyourinterest.net and member of our staff will contact you promptly. Our office is conveniently located just minutes from I-95 on Yamato Road in Boca Raton. Upon request, we also have alternative satellite office locations throughout Palm Beach and Broward County where our attorneys can arrange to meet you and discuss your case.