An eviction in Florida is predicated on the concept that the occupant has a legal right to occupy the premises. In contrast, an ejectment is based on the reality that the occupant has no such legal right. Evictions and ejectments are similar in that both are controlled by specific statutes and both result in the removal of people from real property. But the procedures involved in each claim are very different.
Florida evictions are based on a legal right to occupy the property
Evictions in Florida are regulated by Chapter 83 of the Florida Statutes. Those statutes are also known and the Landlord Tenant Act. That Chapter separately provides for both residential and non-residential aka commercial evictions. The distinction is that there are stricter requirements for residential evictions in light of the reality that the process will displace the tenant from their home.
Evictions are based on the fact that the person or people occupying the real property have a legal right to do so based on a lease agreement. The lease may be written or oral but oral leases are rare given the difficulty of establishing the terms without any writing. Also with the ease of obtaining a written lease nowadays there are very few savvy property investors who would opt for an oral lease. Although the lease may be in breach the occupancy of the tenant is based on the lease so the forced removal must be done through an eviction in the courts. However the type of lease whether residential or commercial and the terms of the lease will influence the eviction lawsuit.
Residential leases versus commercial leases
Residential leases more than commercial leases adhere to a standardized format. This is because the residential eviction section of Florida’s Landlord Tenant Act provides for most of the necessary terms and few can be modified. In contrast the non-residential provisions of Chapter 83 leave many of the terms to the sophisticated businesspeople involved to negotiate. As a result business leases are very different from one another based on the unique requirements of the parties.
For example, residential leases more often are for either a year or a season and generally one of the biggest issues is who fixes what if something breaks. Commercial leases on the other hand are often for five or even ten year terms and address operational details like signage and parking. A triple net lease as it is called will also include additional amounts above the rent the business must pay such as insurance and a proportional share of the common area maintenance or CAM.
Evictions are caused by the tenant’s failure to perform
An eviction occurs where the tenant breaches the lease either by failure to pay the rent or by failure to perform some material provision of the lease. Because the tenant is occupying the property legally pursuant to a lease agreement the landlord must give notice to the tenant of the breach. The landlord must also afford the tenant a chance to remedy or cure the default before the tenant can lose the legal right to continue to occupy the property.
In Florida the law provides for a three-day notice for rent payment defaults and a seven-day notice for lease performance defaults. Those times are occasionally enlarged in commercial leases but may not be reduced to less than the time prescribed by the statutes. The statutes also define what must and what may be included in these notices.
Notice to the tenant is a prerequisite to any eviction
An eviction formally starts with the filing of an eviction lawsuit but that lawsuit must be preceded by and based on the proper notice. The notice itself whether a three-day notice for rent payment default or a seven-day notice for a material lease provision default does not equate to an eviction. If a tenant misses a rent payment and the landlord posts a three-day notice the tenant can avoid the eviction simply by paying the rent owed within the time allowed. So an eviction notice does not always result in an eviction but an eviction lawsuit cannot start without the notice.
The notice is the cornerstone of the eviction. If the notice is defective then the eviction lawsuit is permeated by that defect and it too fails. In that situation the suit gets dismissed and process must be restarted with a new notice. Therefore serving the proper notice is the key to any eviction.
Common mistakes landlords make in eviction notices
The mistakes that many property owners often make are not allowing sufficient time in the notice and demanding payment of money that is beyond what the lease defines as rent and additional rent.
With regard to the time in the notice it must provide for the full number of days. For example if a three-day notice is posted on a Monday too many landlords err in demanding the rent by Thursday. The day of posting does not count and weekends and holidays are excluded as well. So if a three-day eviction notice is posted on a Monday then the payment is actually due by Friday. The notice must provide three full days to the tenant the key being full days which days would then be Tuesday, Wednesday, and Thursday in that example.
Similarly landlords often add amounts to the unpaid rent in the notice such as late fees, interest, and fees paid to lawyers. Unless those are specifically identified and agreed in the lease to qualify as additional rent they may not be included in the three day notice. By demanding unauthorized amounts a landlord may render the notice and then the subsequent eviction lawsuit defective. That would necessitate restarting the entire eviction process from a new notice.
The takeaway for landlords and property owners on the proper application of an eviction notice is that you risk the entire eviction if you are too short in the days. Smart landlords even add a day to be safe so the notice withstands any later challenge in court.
The takeaway for tenants served with an eviction notice is to determine whether the notice is valid on its face as that may provide a legal defense to the subsequent eviction. However simply being served with an eviction notice does not prevent amicably resolving the situation with the landlord which should be the first effort undertaken.
Self-help evictions are not allowed in Florida
Florida does not allow landlords to engage in self-help. That means that in Florida property owners cannot forcibly evict their tenants without using the court system. But that does not mean that a landlord and tenant cannot work out the dispute between themselves whereby the tenant agrees to vacate the premises.
Changing locks, cutting off utility service, and other such measures to force a tenant out even where the tenant is in default of the lease as examples of self-help are not permissible. Those actions can result in claims against the landlord and liability to the tenant. Florida does however provide for summary or shortened procedures in evictions to expedite the removal of a tenant where such removal is warranted.
How do summary procedures work in Florida evictions
Summary procedures in Florida evictions are only applicable to the possession portion of an eviction. These expedited proceedings are established and defined by Florida Statutes Section 51.011. While landlords can use an eviction lawsuit to regain possession of their property and to remove the tenant they can also seek money damages for unpaid rent or other allowed damages. But only the possession portion is subject to summary procedures. The monetary claims in the eviction suit run on schedule like any other breach of contract lawsuit.
If a tenant fails to pay rent on time and the landlord posts a proper three day notice allowing the tenant to pay the correct amount of unpaid rent and additional rent as defined by the lease then the landlord may file and serve an eviction suit on the tenant. The summons for that eviction lawsuit will require that within five days of service on the tenant that the tenant must respond to it and pay rent into the court registry. Failure to do both can result in the landlord winning by a default. The tenant can dispute the amount of rent claimed in the lawsuit but must substantiate such claim to the court and must still pay the undisputed amount of rent into the court registry to avoid a default.
Evictions are not the only choice when tenants default
An eviction lawsuit is not the sole remedy for a landlord with a tenant in default. Nothing precludes the parties from resolving the situation directly between them. When the coronavirus pandemic started many businesses saw a tremendous fall off in revenue leaving them unable to pay their rent. In that situation a landlord could have evicted the tenant for failure to pay rent as long as there was no moratorium preventing such actions or the landlord could recognize that it may be better to get some rent as opposed to no rent.
The business decision of whether to accommodate a tenant is based on a variety of factors but nothing prevents the parties from coming up with solutions that fit their needs. The only caution is that any such accommodation should be in writing as an addendum to the parties lease possibly with a penalty for a performance default. For example the parties could agree that the tenant is in default and that the landlord is entitled to possession but in light of the situation the landlord will accept a reduced amount of rent without waiving the rest that will be made up in accordance with a defined payment schedule.
The agreement could also provide that if the tenant fails to comply with the accommodation and the parties do not further modify that agreement then the tenant will move out within a certain number of days or the landlord will then be entitled to possession. The landlord would still have to file an eviction lawsuit to remove the non-complying tenant but the written lease modification would likely preclude any defense and would accelerate the eviction.
Evictions can be easy or hard
An eviction can basically evolve in one of two ways. It can be easy or it can be hard. There are many advertisements now for flat rate evictions. Those may be designed to work best in easy evictions where the tenant does fight the eviction but the caution is that you get what you pay for. If the eviction is easy and the landlord obtains a default when the tenant fails to respond or pay the rent into the court registry then the process may actually be much less expensive than the flat rate amount. For the privilege of a definite sum the landlord may overpay for the service.
A hard or more contentious eviction would be one in which the tenant fights to stay in the property. While it may frustrate the landlord for the tenant to fight an eviction because the landlord believes it is right our legal system affords all litigants the same due process which ensures fairness for all and gives the tenant the right to litigate valid claims.
While a flat rate eviction may seem like a good option in the contentious or hard eviction scenario the landlord must ensure that the law firm is competent and will fully prosecute the matter. It is important to factor in that if the tenant wins and the lease provides for attorney’s fees or in the case of a residential eviction where the fees are in the statutes the landlord may owe money to the tenant. Thus before filing an eviction the landlord should make sure they can prove their claims or that the flat rate eviction is tailored to their situation and not a recycled claim from an unrelated matter.
A real world example of this is illustrated in a recent case. I was retained by property owners who previously hired a firm advertising to remove their non-paying tenant for a flat rate. As it turned out the person in the house was not a tenant but had merely been an authorized occupant on a lease that ended. The flat rate lawyer first filed the wrong claim and then amended that to an eviction but it was an eviction of someone who was not a tenant and during moratoriums on evictions due to Covid-19.
Although the property owners obtained a default in the eviction before they could have the sheriff execute on the writ of possession the occupant appealed the decision and obtained a stay of the execution of the writ from the trial court. At that point the flat rate lawyer gave up. That attorney caused the property owners to lose eight months of rent and they were facing a lengthy and expensive appeal proving that the savings of a flat rate may not always come with a benefit.
Because the occupant in that matter was not a tenant that case should not have been filed as an eviction. That case should have been filed as an ejectment which transitions us to our next topic of what is an ejectment and how does it differ from an eviction.
What is an ejectment
An ejectment is the removal of a person from real property who does not have the legal right to occupy the property. A person that is the subject of an ejectment can be more commonly called a squatter.
Florida Statutes Chapter 66 govern and control ejectments. Those statutes vest exclusive jurisdiction with the circuit court whereas most evictions are handled in county court. To prove an ejectment claim the proponent must prove that they hold legal title to the property and that they have been ousted or dispossessed from their property. They may also claim and obtain damages which commonly can be the reasonable rental value and damage to the property.
Difference between an ejectment and an eviction in Florida
Unlike an eviction there is no pre-suit notice required in an ejectment. But the property owner is not precluded from making such demand in an effort to amicably resolve the situation prior to filing suit.
An ejectment claim is also not subject to summary procedures. It proceeds like any other lawsuit. But at the end of April 2021 the Florida Supreme Court dictated that all twenty judicial circuits in the state adopt case management plans to both handle the backlog caused by the pandemic and to better manage cases going forward. Ejectments are subject to the expedited track of the case management procedures and optimally should be completed within eight months of filing. That does not mean that they take eight months as they can often be completed much quicker but equally so not all evictions can be completed within thirty days although that should be the goal of the owner of the property a property so as to restore the property to profitability and to fund the eviction with the deposit which often equals the rent for one month.
Similarities between an ejectment and an eviction in Florida
Like an eviction an ejectment also results in a writ of possession. That Writ commands the sheriff to put the owner back into possession and to remove the occupant. This can also be done by force if necessary with what is called a break order. That order allows the sheriff to break down the door to remove the occupant if they refuse to voluntarily leave.
Conclusion – which is better eviction or ejectment
An eviction is of a party that has a legal right to occupy property usually through a lease. An ejectment is against a person who has no legal right to occupy property. Evictions require a special pre-suit notice but the lawsuits move quickly under summary procedures. Ejectments do not require notice but proceed as any other lawsuit in terms of timing but can be placed on an expedited track under Florida’s new case management procedures.
Ejectments are not necessarily better than evictions and evictions are not necessarily faster or better than ejectments. There are situations in which an ejectment is the appropriate claim and other situations where an eviction is legally proper. Evaluating the situation and determining which claim fits the situation is the purpose of the attorney that you hire.
If you are seeking a real estate attorney to help answer questions on eviction or ejection, or if you are looking for representation, please give us a call at 561-838-9595 or email us at [email protected]. We are also happy to assist with drafting leases and addendums to leases, reviewing leases pre-signing, or evaluating rights under leases already signed.
Source: Law Office of David Steinfeld, PL, Florida