Get Out and Stay Out

In Florida, many people own second homes or investment properties and use the same for vacation, seasonal residency or to generate rental income. In our practice, property owners often seek our assistance to regain possession of their property either from a delinquent tenant, a guest who has overstayed their welcome, a family member who "just needs a place to stay to get back on their feet", an estate beneficiary who has taken sole possession of an inherited property at the expense of the other beneficiaries or a live-in boyfriend/girlfriend after the termination of a romantic relationship. Under Florida law, there are various legal theories for the removal of each of these unwanted occupants.

In any case where the occupant pays rent to the property owner, an action for eviction of a residential tenant must be initiated under Chapter 83, part II, to have the occupant removed. Once the occupant pays rent to the property owner, a landlord-tenant relationship is formed. It is irrelevant whether there was an intent to establish a tenancy and is irrelevant whether there is or is not a written lease. If any type of periodic rent is collected, the property owner must file an eviction action in county court to have the occupant removed from the property.

If rent is not collected and a guest has been an occupant for a very short while (i.e, an overnight or weekend guest) and they have overstayed their welcome, the guest has committed an unlawful detainer. Since the overnight guest's occupancy is seen as being transient, a property owner looking to remove the now unwanted guest can simply execute an affidavit establishing 8 criteria relating to the lack of permanency of the unwanted guest's occupancy. Any law enforcement officer, when presented with the sworn affidavit, can be called to have the transient occupant removed from the property. If the transient occupant refuses to vacate, he or she can be charged with misdemenanor trespass, pursuant to Section 810.08, Florida Statutes.

If rent is not collected and a guest's occupancy has become more permanent in nature (i.e., family member who has stayed for a few weeks or months to "get back on their feet" or live-in boyfriend/girlfriend) and the occupant has established some semblance of permanent occupancy (i.e., receives mail at the property, pays utilities or other household expenses, has listed the property address on a driver's license), the property owner must file an unlawful detainer action in county court to have the occupant removed.

If a property owner seeks to have a person or persons removed from property where the occupant asserts that he or she has any type ownership claim to the property (i.e., claim as estate beneficiary, occupancy by one who has a contract right to purchase the property), the property owner must file an action for ejectment in circuit court to have the court eliminate the occupant's ownership claim and have the occupant removed from the property.

In any of these instances, a property owner should not simply change the locks or take any other self-help measures to remove the unwanted occupant. If the property owner does so, he or she will be faced with a claim for unlawful ouster or retaliatory eviction subjecting the property owner to a claim for damages by the unwanted occupant.

Retaking possession of a property can often be tricky and complicated. If you are looking to remove an unwanted guest or other occupant from your property, call us at the Edwards Law Firm for assistance.

Categories: