Frequently Asked Questions
What reasons do I need to file an eviction?
You can file an eviction if a tenant refuses to vacate the premises after the service of a proper notice to the tenant. Whether or not a notice is “proper” is determined by law and by the lease. Different types of notices are required depending on the reason for the termination. For example, a notice that terminates due to the nonpayment of rent is a different notice than a notice based on criminal activity.
How do I begin an eviction?
All evictions begin with a proper notice that tells the tenant to vacate the premises. Once the notice expires, an eviction complaint is filed with the Clerk of the County Court.
Can I evict a tenant who has children?
You can evict any tenant who fails to comply with the lease.
What notices do I need to give?
It is critical that a proper notice be given. Different types of notices are required depending on the reason for the termination. For example, a notice that terminates due to the nonpayment of rent is a different notice than a notice based on criminal activity. The wording of the notice is important. You should get advice from an attorney before issuing a notice to the tenant.
How do I serve the notices?
Your lease may tell you how to serve the notice. Check its language. If your lease does not give you specific direction on how to serve the notice, then you can do one of the following: a.) hand it to an adult who lives at the property; or b.) post it on the door to the property.
The law permits you to mail the notice to the tenant. However, using the mail means special rules apply to the deadlines contained in the notice. Do not use the mail for the service of a notice without first getting legal advice.
If you are posting the notice on the door, be sure to fasten it securely to the door so that it does not blow away.
What is a Three Day Notice?
A three day notice is the most common type of notice. It is used only in situations where the tenant has failed to pay rent. The notice tells the tenant to either pay the rent within three days or vacate the premises within three days.
The language on the three day notice must be very precise. Not all forms that one finds on the internet are valid under Florida law!
What amounts can I put on the Three Day Notice?
The three day notice can demand only the rent that is due as of the date the notice is served. It cannot include amounts that are not rent. It cannot demand rent that will become due tomorrow or due any time in the future.
Suppose the tenant tries to pay me?
The tenant has the absolute right to pay you the full amount of rent due within the time frame of the three day notice. You must accept the rent if it is offered to you within the three day time period. If the three day time period has expired, you can refuse the rent.
Suppose the tenant only has partial rent?
You do not have to accept partial payment after you have served a three day notice. However, you do have to accept rent if the amount tendered is the full amount that was demanded on the notice.
Can I collect late fees?
You can collect late fees only if the lease says you can. If there is no written lease, then you cannot collect late fees.
How long does an eviction take?
It varies depending on the reason for the eviction, how busy the court is, and whether the tenant mounts a defense. Generally, an eviction for nonpayment of rent where the tenant does not file a defense to the case, takes about three weeks until judgment is entered. If a writ of possession must be issued and served to make the tenant move, then about another week is added to the time.
Can I refuse cash?
Your lease may say how payment is to be made. If your lease says you can refuse cash, then you can refuse cash. Otherwise, you must accept it.
Do I need an attorney to file the eviction?
The eviction is a lawsuit. It must be filed by an attorney or by the individual landlord who will then represent himself in court.
A property manager can file some evictions. The property manager can file an eviction based on nonpayment of rent, provided the lawsuit does not seek a money judgment and provided that there is something in writing showing that the property manager has the owner’s permission to file the eviction. Also, the property manager is only entitled to file the eviction and then submit paperwork for a default judgment to be entered. The property manager cannot act as the “lawyer” at a hearing or file any other papers.
If the landlord wishes to file his own eviction, the clerk of court may have forms available for a small fee.
There are advantages to having an attorney handle the eviction. The attorney is most familiar with the eviction process and can most ably handle the filing of the required papers. The attorney is on the frontline, able to handle any defense asserted by the tenant and any problems that may arise.
Can I hold off on a repair if I do not receive rent?
No. The obligation to repair and maintain property is totally independent of the tenant’s obligation to pay rent. If the tenant has not paid rent, then the remedy is to serve a three day notice.
Can the tenant fight the eviction?
The tenant has the opportunity to file an answer to the eviction complaint. In that answer, the tenant can list the reasons why the eviction should not occur. These “defenses” are then heard by the judge. However, the tenant is only entitled to have the judge consider the defenses if the tenant has deposited the rent that is owed into the court registry.
Suppose the tenant retains an attorney?
Just as the landlord is entitled to hire an attorney, so too is the tenant. If the landlord is representing himself in the eviction, and the tenant retains an attorney, then the landlord should seek the help of an attorney so that there would be an “even playing field” in court.
Do eviction cases go to court?
All lawsuits are filed with the “Clerk of Court”. All judgments are signed by a judge. However, not all cases go through a hearing or trial. In fact, most evictions do not require a hearing or trial. If the tenant fails to file an answer or fails to deposit the rent that is owed, a “default” will be entered and, following that, a “default judgment”. For those cases where a default is entered, there is usually no hearing or trial.
What happens if the tenant pays the rent to the court?
If the tenant deposits the rent that is owed into the Court Registry, then a “final hearing of eviction” or an “eviction trial” will be scheduled. At that final hearing, the judge will decide if the landlord is entitled to get back possession of the rental premises. The landlord must be prepared to prove his case at the final hearing with witnesses and exhibits. The tenant will have the chance at the final hearing to present proof why he should not be evicted.
Can the tenant file bankruptcy and stop the eviction?
The tenant can file a bankruptcy case at the bankruptcy court. Once the bankruptcy case is filed, all collection efforts must stop. That means that the eviction must stop until the bankruptcy judge gives permission for it to proceed. Getting that type of permission is not difficult but generally requires the assistance of an attorney who is admitted to practice in that court.
Will the tenant have to pay my attorney’s fees?
The Florida Landlord Tenant Act says that whoever wins a landlord tenant case can win attorney fees. Thus, if you are successful in evicting your tenant, you are entitled to a judgment that says the tenant must pay your attorney fees and court costs. Keep in mind that having a judgment for the attorney fees is not the same as having the money in your pocket! You would still need to collect the fees.
Can I file an eviction if I have no lease?
Yes. However, you will need to show what the oral agreement was about the tenancy. How much is the rent and how often was it to be paid? On what day was rent due? Those facts have to be alleged in the eviction complaint and then proven to a judge.
How do I non renew a tenant?
A notice of nonrenewal can be served to the tenant and will be valid if it gives the tenant a sufficient number of days “warning” that the lease will not renew and if it tells the tenant to vacate on the last day of a rental period.
How many days must the notice give? Look first at your lease. It may tell you how much notice must be given for a nonrenewal. If your lease does not contain such language, or if there is no lease, then the following rules apply:
— If the rent is paid on a monthly basis, then give not less than 15 days’ notice prior to the end of any monthly period
— If the rent is paid on a weekly basis, then give not less than 7 days’ notice prior to the end of any weekly period.
Do I need a reason to non renew a tenant?
No. You can nonrenew a tenant for any reason, as long as it is not retaliatory or discriminatory.
This answer may be different if the rental property receives the benefit of a rental assistance program or other government benefit. Consult with an attorney if you are not sure.
Information courtesy of the Law Offices of Heist, Weisse & Davis
Phone: 1-800-253-8428 Fax: 1-800-367-9038
Serving Florida’s Property Managers with offices in Orlando, Clearwater, and Fort Myers Beach, Principal Office