Unlawful Detainer Action

I.  Overview of an Unlawful Detainer Action

Do you own property or are you the legal tenant of a property and have a relative, friend, girlfriend, boyfriend, an adult child, or someone else residing with you who is not paying rent and does not have a lease or rental agreement, but refuses to leave?  

 

Has the relationship between you and that individual ended and you now wish for that person to leave and they refuse to do so?

 

Or are you a property owner who has a squatter or an unknown person on the property who refuses to leave?

 

If you responded to these questions affirmatively, then you need to initiate an unlawful detainer action because neither an eviction or ejectment action apply.

 

Chapter 82 of the Florida Statutes governs unlawful detainer actions and sets out the requirements for property owners to protect their interest in the property. An unlawful detainer action is a lawsuit filed in County Court which does not involve landlords, tenants, or contracts like lease agreements.  It consists of an individual, squatter or an unknown person who is occupying your property without contributing toward rent or mortgage payments, and when asked to leave, refuses to go even though they have no legal claim or rights to the property.

II.  Important Caveats

As an owner or tenant in lawful possession of a property, you have every right to revoke the occupancy of your property by an unwelcome guest at any time. However, merely calling law enforcement officers to remove the unwanted guest from the premises will not resolve the matter. Unfortunately, law enforcement is not legally bound to remove them from the property because it’s considered a civil matter, which means you have to get a court order demanding the unwelcome person to vacate the premises. 

 

It is important to know that if a person occupying your property is subject to a lease, paid rent, made mortgage payments, contributed to the upkeep of the property, or paid utilities in exchange for the use of the property, the proper remedy for removal of that person is through an eviction, not an unlawful detainer action.

 

It is also significant to note that if a person occupying your property is not subject to a lease, did not pay rent, mortgage, utilities, or upkeep costs in exchange for the use of the property, but claims to have some right, interest, or title to the property, the proper remedy for removal of that person is through an ejectment action, not an unlawful detainer action.

 

If, however, a person occupying your property is not subject to a lease, did not pay rent, mortgage, utilities, or upkeep costs in exchange for the use of the property, and has no legal claim or rights to the property, the proper remedy for removal of that person is through an unlawful detainer action.

 

Similar to an eviction, at the end of an unlawful detainer action, the Court determines who is entitled to possession of the real property.  Therefore, the title to the property will not be an issue before the Court; only possession of the property will be addressed.

III.  The Unlawful Detainer Action Process

The timeline for an unlawful detainer action is typically shorter than an ejectment action because the court uses a faster process called a "summary procedure," which is found in Section 51.011 of the Florida Statutes.

Florida law does not require that a property owner provide the occupant with a notice to vacate before filing an unlawful detainer action. A notice to vacate is only needed in an eviction. Nevertheless, it may be worth providing the occupant with notice before filing suit because it may compel them to leave. If they do, then you save the time and money that would have been otherwise expended in filing the lawsuit. Additionally, serving the occupant with notice before filing the action shows your good-faith effort to resolve the matter before involving the court.

An unlawful detainer lawsuit is electronically filed with the Clerk of Court, who then issues a Summons for service of process of the Unlawful Detainer Complaint upon each defendant/occupant named in the lawsuit.

Once the Summons and Complaint are served upon the occupant, they have five (5) days (not including weekends or holidays), to file an answer with the court.

If the occupant fails to respond to the lawsuit within five (5) days, your lawyer will request the Clerk of Court issue a Notice of Default and will proceed with the remaining process until you gain full control of your property.

The law is specific regarding the proper steps one must take to remove a person from your property. Also, initiating the process is not as simple as it seems. Therefore, it is wise to seek advice from an experienced attorney who can help you navigate the Unlawful Detainer Action process.

 

If you need an unlawful detainer attorney to handle your real estate needs, call 321.972.2279 today for a telephone consultation with Real Estate Attorney Kimberly Soto. The Soto Law Office, P.A. is conveniently located in Altamonte Springs, Florida near I-4, and proudly serves the residents of Altamonte Springs, Apopka, Casselberry, Longwood, Ocoee, Orlando,Brevard, Lake, Orange, Osceola, Seminole, and Volusia Counties.

Serving Brevard, Lake, Orange, Osceola, Seminole, and Volusia Counties

Telephone: (321) 972-2279

Fax: (407) 386-7165

Wekiva Springs Office Park • 415 Montgomery Road, Suite 111 • Altamonte Springs, FL 32714

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