Evictions vs. Unlawful Detainers: Know Your Rights and Legal Options in Florida Real Estate
Property ownership in Florida can present challenges when occupants refuse to leave. Two legal processes frequently come into play are evictions and unlawful detainers. While both involve removing individuals from a property, they apply to distinct circumstances and follow different statutory procedures. At Smith Cors Law, we help landlords, property managers, and homeowners determine the best path for their specific situation. This post outlines the differences between evictions and unlawful detainers, key legal steps, and why selecting the right approach is essential to ensure compliance with Florida law.
1. Understanding Florida Evictions
An eviction is typically used to remove a tenant who fails to meet the terms of a valid landlord-tenant relationship, usually governed by a written or oral lease. Florida’s Landlord and Tenant Act (Chapter 83, Florida Statutes) provides the rules.
Common Grounds
- Non-Payment of Rent
- The landlord gives a three-day notice to pay or vacate. If the tenant does not comply, an eviction lawsuit may follow.
- Violation of Lease Terms
- Examples include unauthorized pets, illegal activities, or damaging the property. Florida law often mandates a seven-day notice with an opportunity to cure or vacate.
- Holdover Tenants
- When a lease expires and the tenant won’t leave. A typical notice length depends on the lease’s terms or the method of rent payment.
Eviction Process
- Written Notice: Landlords must issue a notice aligned with the violation (three-day notice for non-payment, seven-day notice for other breaches).
- Filing the Complaint: If the tenant doesn’t comply, the landlord files an eviction lawsuit in county court.
- Tenant’s Response: The tenant has a short window (usually five business days) to respond.
- Court Hearing/Judgment: If the tenant contests, the court may schedule a hearing. If the landlord wins, a Final Judgment for Eviction is issued.
- Writ of Possession: The court authorizes the sheriff to post a 24-hour notice of possession. If the tenant doesn’t leave, the sheriff may remove them.
2. Unlawful Detainer Basics
Unlawful detainer actions target individuals who occupy a property without any landlord-tenant agreement—often referred to as “guests” or “licensees.” Examples might include:
- Overstaying House Guests
- A friend or relative who was initially invited but now refuses to leave.
- Ex-Partners or Friends
- People who once had permission to stay but no formal lease or payment arrangement, and that permission has been revoked.
Key Differences from Eviction
- No rent obligation. If a person pays rent or exchanges services for occupancy, they may be classified as a tenant, which would require an eviction.
- Shorter timeframes in some cases. Unlawful detainer may proceed quickly if there’s no dispute about the absence of a lease.
Process
- Written Demand: Although not always legally required, property owners often request that occupants leave in writing to document their revocation of permission.
- Filing the Complaint: If they refuse, the owner files an unlawful detainer complaint in county court.
- Service & Response: The occupant must be served. They generally have five business days to respond.
- Hearing & Judgment: If the judge rules in favor of the owner, a Final Judgment is issued, followed by a Writ of Possession enforced by the sheriff.
3. Determining Which Action to Take
- Examine Payment History
- If the occupant paid rent or if the homeowner demanded payment at any point, they might be considered a tenant, necessitating an eviction.
- Look for a Lease
- A written or verbal agreement specifying rent, a set lease term, or landlord-tenant responsibilities indicates eviction is the right path.
- Permission vs. Tenancy
- If the occupant merely had “permission” to stay (like a guest), with no rent or lease, and that permission is now revoked, unlawful detainer applies.
Importance: Filing the wrong legal action can lead to delays, possible dismissal, or additional legal expenses.
4. Common Pitfalls
- Improper Notices
- Using an eviction notice for an unlawful detainer scenario (or vice versa) can derail your case.
- Self-Help Evictions
- It’s illegal in Florida for owners to lock out occupants, remove their belongings, or shut off utilities to force them out. Doing so risks legal repercussions.
- Partial Rent Acceptance
- If you accept partial rent after filing an eviction, it might reset the notice period or complicate the grounds for eviction.
5. Timing and Court Involvement
Both eviction and unlawful detainer cases are handled in county court, but the proceedings can vary based on local dockets and whether the occupant contests the complaint.
- Uncontested: Can finalize in a few weeks.
- Contested: If the occupant raises defenses—such as claiming a valid lease—the court may require a hearing or trial, thereby extending the timeline.
6. Avoiding Unnecessary Litigation
While formal legal action is sometimes inevitable, consider pre-litigation steps:
- Written Communication: Clarify the occupant’s status and request voluntary departure within a specific timeframe.
- Negotiation or Mediation: Offering a small sum, such as “cash for keys,” might incentivize a troublesome occupant to leave peacefully, saving time and litigation costs.
- Legal Counsel: An experienced attorney can draft legally sound letters, ensuring compliance with Florida statutes from the start.
7. Special Considerations
- Minors in the Property
- If children reside there, ensure all parties understand child welfare implications. Courts generally expect accommodations for families, but still uphold property owners’ rights.
- Domestic Situations
- Disputes involving ex-partners or relatives can be emotionally charged. A domestic violence injunction or restraining order might complicate or supersede standard eviction/unlawful detainer rules.
- Homestead Property
- If the property is your homestead, certain protections or unique strategies might apply.
8. Working with Smith Cors Law
Legal Representation: Our attorneys help clarify whether an eviction or unlawful detainer is the appropriate course of action, draft proper notices, file complaints, and represent you in court. We emphasize:
- Efficiency: Minimizing court delays by ensuring correct procedures.
- Compliance: Avoiding self-help tactics or defective notices that cost you time and money.
- Respectful Communication: Maintaining professional courtesy can sometimes lead to a quicker and less contentious resolution.
Whether you’re a landlord dealing with unpaid rent or a homeowner with an unwanted occupant, we guide you to the best legal remedy under Florida law.
Frequently Asked Questions
Q1: Can I file for both eviction and unlawful detainer at the same time?
Answer: Typically, no. You must choose the correct action. Filing both may confuse the court, potentially leading to dismissal. If you’re unsure, consult an attorney to determine whether a landlord-tenant relationship exists.
Q2: What if the occupant claims they have a lease but cannot produce it?
Answer: If you dispute the existence of a lease, the case may require a court hearing to determine the occupant’s status. Evidence of rent payments or email communications might influence the court’s decision.
Q3: How soon can the sheriff remove the occupant after the final judgment?
Answer: Once the court issues a Writ of Possession, the sheriff typically posts a 24-hour notice. After that time elapses, the sheriff can execute the writ and remove the occupant if they haven’t left voluntarily.
Conclusion
Evictions and unlawful detainers are powerful yet distinct legal tools in Florida’s real estate sector. Knowing which action applies to your situation—tenant vs. guest, rent vs. no rent—can save you from procedural errors and costly delays. While both processes end with the occupant’s removal, they require unique notices and compliance steps. At Smith Cors Law, our goal is to streamline the journey for property owners, safeguarding your rights while adhering to Florida’s detailed statutes.
If you’re uncertain about how to proceed, contact us. We’ll evaluate your circumstances, clarify the occupant’s legal status, and guide you toward the most efficient resolution to regain possession of your property.
Disclaimer: This content is provided for informational purposes and does not constitute legal advice. No attorney-client relationship is formed by reading this post. For counsel specific to your case, consult a licensed Florida attorney. No aspect of this advertisement has been approved by the Supreme Court of Florida.
Gary Cors, a Florida native educated at USF and Stetson Law, has practiced wills, trusts, estates, probate, and real estate since 1999 while also teaching in Pasco-Hernando State College’s Paralegal Program.
