Removing a Tenant

Removing a Tenant

In Florida, a landlord may remove a tenant from a residential rental property only as allowed by the Florida Residential Landlord Tenant Act (Florida Statute, ch. 83, pt. 2). Specifically, under FS 83.56 and 83.59, a landlord my repossess a residential rental unit from a tenant upon the following events: (1) tenant surrender, (2) tenant abandonment, (3) tenant death, and (4) eviction.

Surrender

A landlord may repossess the property from the tenant if the tenant surrenders his lease interest in the property back to the landlord. The tenant’s intention to surrender, meaning, the intentional and voluntary relinquishment of the tenant’s rights to possession, must be clear.

The best practice is for the landlord to get the tenant to sign an agreement or notice in writing stating that he is surrendering the premises to the landlord by a certain date and time. But the facts and circumstances may be sufficient enough to prove surrender. For example, surrender may be clear when the tenant has expressed his intent to surrender this lease interest, has returned the keys to the landlord, and vacated the premises and removed all of his belongings.

There may be contradicting facts that would raise doubts as to the tenant’s intent to surrender. For example, the tenant may not have removed his personal property from the premises or not returned the keys to the landlord. These facts may undermine a conclusion that the tenant has surrendered. Other factors to consider are, whether the utilities are still being used by the tenant; whether the neighbors have seen the tenant at the property recently; or whether the tenant still receives mail at the rental property.

Despite a verbal indication that the tenant is or will be surrendering the property, some facts may contradict that stated intent, and the landlord may subject himself to liability if he repossesses the property without clear and convincing evidence to support surrender. Thus, the landlord must be very cautious about repossessing the property under these circumstances.

The landlord should consult an attorney regarding the issue of surrender to avoid liability and wasted time, money and energy on removing the tenant and repossessing the property.

Abandonment

Abandonment happens when the tenant has relinquished his right to possess the property through the abandonment of the property. Taking possession based on abandonment is riskier to the landlord because the tenant’s intent may not be expressly communicated to the landlord and the landlord must make a decision based on the circumstances alone.

FS 83.59(3)(c) states this regarding abandonment,

In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence.

Like surrender, the landlord must have clear and convincing facts and evidence to conclude that the tenant has abandoned the property before repossessing the property. In any case, the landlord cannot retake possession for abandonment where rent is current and the tenant has notified landlord of his absence.

The landlord should consult an attorney regarding the issue of abandonment to avoid wasted time, money and energy on removing the tenant and repossessing the property.

Death

A landlord can repossess a rental property upon the death of the last remaining tenant, but with the recent inclusion of FS 83.59(3)(d), it is questionable whether a landlord can repossess the property by any means other than eviction pursuant to this statute.

FS 83.59(3)(d) states that the landlord can file a complaint for eviction when “the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been notified in writing of the existence of a probate estate or of the name and address of a personal representative.”

Based on FS 83.59(3)(d), the landlord may file a legal action for possession after a tenant has died when the following four conditions have been satisfied:

  1. personal property remains on the premises;
  2. rent is unpaid;
  3. at least 60 days expired since date of death; and
  4. landlord has not received notification of a probate estate for the tenant.

As landlords can see, if the last remaining tenant has died and rent is unpaid, waiting 60 days before filing an eviction can be financially straining, if not catastrophic. Is there an alternative, such as filing a eviction based on a 3 day notice to pay or abandonment? Perhaps, but it is unclear; as such, the landlord needs to consult with an attorney to get specific legal advice.

Eviction

The last way a landlord can repossess rental property from the tenant is through eviction, meaning a legal action filed against the tenant to remove the tenant through legal process.

An eviction must be based on a legitimate legal basis, such as the tenant’s default of the lease or FS ch. 83, pt 2. The most common type of eviction is based on non-payment of rent. But there are others, such as failing to cure a default within 7 days of notice or committing a non-curable violation of the lease or statute.

In every case concerning an eviction, the landlord must deliver proper notice to the tenant to terminate the lease pursuant to FS 83.56, and the landlord must file a legally-sufficient complaint. If the landlord fails to follow the proper procedure and files an eviction anyway, the tenant may have a valid defense to the eviction. Additionally, the landlord must file the appropriate pleadings to move the court to proceed in the landlord's favor. 

Once the eviction is filed, the landlord must wait until the writ of possession is served and executed by the sheriff’s deputy before repossessing the property. If the landlord takes possession before the writ of possession is executed, the court may dismiss the eviction action, and the landlord may be in a messy situation to remove the tenant.

However, there is an exception to this rule; namely, if the defendant-tenant signs a settlement agreement with the plaintiff-landlord, the landlord can file a motion with the court to ratify the settlement agreement and enforce the agreement at a time when the tenant breaches the settlement agreement. Through the settlement agreement, if the tenant breaches the settlement agreement during the jurisdictional time period (i.e. 6 months from the date of ratification), the landlord can seek an eviction without having to file a new eviction against. This saves the landlord time and money.

In any case involving the removal of a tenant, the landlord should consult an attorney to avoid wasted time, money and energy and to equip the landlord with the best way of success possible.

If you are a landlord or tenant in Pensacola, Ft. Walton Beach, Destin, Panama City, Tallahassee, Jacksonville, or Orlando, Florida and need a landlord-tenant attorney, contact The Virga Law Firm today for a consultation.