What is an unlawful detainer?
(And how does it help you get rid of a trespassing squatter?)
In this post:
In this post, we'll learn everything you'll need to know about what is an unlawful detainer in order to make a well-informed decision on if you can file one.
post category: unlawful detainer
How do you get someone out of your house who won't leave in Florida?
Have you ever had a tenant who just wouldn't leave, no matter what you did? It can be an immensely frustrating experience and one that puts a lot of stress on you as a property owner.
If you find yourself in this situation, you may be wondering if there is anything you can do to remove an unwanted guest and get your property back. The answer is yes – you can file an unlawful detainer against the squatter. If you find yourself in a situation where someone is occupying your property without your permission, you can file an unlawful detainer action against that person.
This blog post will outline the steps you need to take in order to file an unlawful detainer in Florida and how it can help you take back control of your property. Read on to learn more about this process.
How do I deal with squatters in Florida?
I know it may sound obvious but your first step is to actually talk to them. You’ve probably already tried the get-out or else approach. I’m not even going to mention that you should call the cops. That didn’t work. So you have nothing to lose by telling them if they move out voluntarily you’ll pay them. This is known as “cash for keys”. The amount you offer is up to you.
You’ll have to take into account how badly you want them to move, how long it will take, and how much it can potentially cost you to have them removed by the legal system. If they accept your verbal offer, don’t hesitate to present them with an agreement that’s state and county compliant. If they move out according to the agreement pay them and you’re done. One last thing. They should agree to move in days not weeks. Otherwise, they’re just stringing you along.
That’s the easy way. Now for the way you’re more than likely to travel…the hard way. This means you’ll have to immediately file an unlawful detainer because your unwanted guest is not going quietly.
What is the difference between squatting and breaking and entering?
What you’re really asking is when is squatting considered a criminal act. The difference between squatting being a civil matter as opposed to a criminal act is how your squatter entered the property.
Squatting
- If the squatter was invited as a guest and decided to stay
- You left a door or window “open” or “unlocked” and they just went in and made themselves at home
- Your squatter does not have a landlord-tenant relationship with you
- Money has never exchanged hands between yourself and the squatter for rent
Breaking and entering
- The squatter picked the locks (hard to prove)
- They broke the locks or windows to gain entry
- Has no rights and can be immediately removed by the police
The problem you may have is that breaking and entering may not be obvious and the police may tell you it’s a civil matter to be handled in the courts.
What is an unlawful detainer?
If you’re a landlord or property manager, it’s important to be familiar with the unlawful detainer process in case you ever need to use it. Our focus will be on what is the unlawful detainer process in Florida. In Florida, unlawful detainer is a county court lawsuit to request that another person be ordered to leave your property. It’s similar to an eviction proceeding except that in an unlawful detainer case, there is no landlord/tenant relationship between the parties, i.e. there is no agreement to pay rent, either verbal or in writing.
In Florida, an Unlawful Detainer is a county court lawsuit to request that another person be ordered to leave your property. It’s similar to an eviction proceeding except that in an Unlawful Detainer case, there is no landlord/tenant relationship between the parties, i.e. there is no agreement to pay rent, either verbal or in writing.
What kind of action is an unlawful detainer case?
While trespassing is technically a criminal offense an unlawful detainer is used in cases where it can’t be immediately determined by law enforcement as a crime. So if you called the cops and asked the cops to kick them out the officers probably told you they can’t do anything because it’s a civil matter. This is after they’ve heard your trespasser's convoluted side of the story about how you invited them to stay. So an Unlawful Detainer case is basically a civil action.
Can you remove someone by force that won't leave your property?
Do not use self-help methods to force an unwanted occupant out of your property. Examples of self-help evictions are changing the locks and any action that’s intended to make conditions reasonably unlivable for them.
Can you turn off utilities on a squatter?
Turning off the utilities is considered a constructive eviction and similar to removal by force.
So if you force someone out of your home you’ll cause yourself bigger problems.
Who can file an unlawful detainer?
- Owner of property
- Property management
- Anyone with the legal right to live on the property (homeowner or tenant)
What is the unlawful detainer process in Florida?
- You can use an unlawful detainer if a person who obtained possession of the property by the following
- Forcible entry
- Unlawful entry
- Unlawful detention
- A squatter or someone who never was a “tenant” and refuses to leave the property
Forcible Entry
“Forcible Entry” as defined by section 82.01(1) of the Florida Statutes means entering into and taking possession of real property with force, in a manner that is not peaceable, easy, or open, even if such entry is authorized by a person entitled to possession of the real property and the possession is only temporary or applies only to a portion of the real property.
Unlawful entry
“Unlawful entry” as defined by section 82.01(5) of the Florida Statutes means the entry into and possessing of real property, even if the possession is temporary or for a portion of the real property when such entry is not authorized by law or consented to by a person entitled to possession of the real property.
Unlawful Detention
“Unlawful detention” as defined by section 82.01(4) of the Florida Statutes means possessing real property, even if the possession is temporary or applies only to a portion of the real property, without the consent of a person entitled to possession of the real property or after the withdrawal of consent by such person.
Squatter
Florida doesn’t have a law that specifies how to get rid of a “squatter”. That’s ok because the rules under the unlawful detainer process apply. If however, you’re dealing with a more complex squatter situation such as someone who is paying property taxes or has been squatting on the property for an extended period of time it’s highly advisable that you consult an attorney on how to best handle your situation.
How do I file an unlawful detainer in Florida?
You’ll file an unlawful detainer in county court. The court's location will be in the county where the property the trespasser is squatting. The clerk will supply you with the necessary forms for you to fill out. Make a copy of your proof of ownership or any official document that shows your claim of “rightful possession of the property” to be included along with your complaint.
How much is it to file an unlawful detainer in Florida?
How much does it cost to evict a squatter in Florida? Depending if you plan on removing a trespasser yourself, your initial costs will be about $500. If you decide to hire an attorney expect to at least double that cost. Your decision on whether or not to hire an attorney to remove a squatter shouldn’t be based on cost.
Instead, base it on the complexity of your case. If your trespasser has been living on your property for an extended period or has made payments to you or has paid property taxes consult an attorney. If they’ve only been there a few days or a week without your permission and money has not changed hands then you should be fine doing it yourself.
Initial Unlawful Detainer Filing Fees |
|
Filing Type |
Costs |
| Unlawful Detainer | $300 (some Florida counties may be less) |
| Summons issuance fee | $10 per summons |
| Process server fee per defendant(each) | $85 |
| Sheriff fee for Writ of Possession | $90 - $115 |
| Attorney fees (additional fees if defendant contests) | $500 + |
What’s the difference between an unlawful detainer and an ejectment action?
In both an unlawful detainer and an ejectment action, you’re the property owner and you want to remove someone from your property who doesn’t have a lease and hasn’t paid you any rent.
The difference is an unlawful detainer is used to remove someone you’ve never given permission to live on your property, to begin with.
An ejectment action is basically when someone has overstayed their welcome. It could be a worker, girlfriend, boyfriend, family member, friend, or someone you just felt sorry for. If you allowed them to live on your property for any amount of time, regardless of how short a time period is, an ejectment action is what you’ll file.
Unlawful Detainer vs Eviction
What kind of notice do you have to serve a person in an unlawful detainer action?
The good news about filing an unlawful detainer is that unlike a regular eviction you don’t have to provide notice. This is because an unlawful detainer is not an eviction action.
What’s the Difference Between An Unlawful Detainer and An Eviction
Eviction is for someone who has a right to live on the property and you want to revoke that right. An unlawful detainer is for someone who never had the right to live on your property.
Since they’re living there illegally they have no rights. So you aren’t required to give them any notice. In fact, if you do give them a notice you are implying that you have a landlord-tenant relationship that doesn’t exist.
What kind of objections can a squatter make against an unlawful detainer
- Constructive eviction
- Improper service of the complaint.
- They’ve paid you the required rent or made property tax payments
Constructive Eviction
Anything that you proactively do in order to make the property unlivable is considered a constructive eviction. This could be shutting off utilities, harassment, or allowing an unsafe environment by not making necessary repairs. Even though a trespasser and squatter have no rights as a tenant they do have a certain amount of protection under Florida law. So stay away from constructive evictions because they can be a deep legal money pit.
Improper Service of the Complaint
They can claim that they never were served. However, the court will with few exceptions side with your processor and if you used a sheriff then it becomes a futile attempt for your squatter.
They’ve paid you the required rent or made property tax payments
Anyone who is willing to illegally live on your property without your consent has no problem lying to the court by saying they’ve paid you. If this is their claim then they’ll be required to show proof. Of course, they’ll say they lost the receipts or that you never gave them any. Either way, no proof means you get your property back. If they actually did make any payments in rent or property taxes and have proof you’ll need to hire an attorney.
What are the steps for unlawful detainer in Florida?
If the occupant does not leave when you ask, you will need to file a complaint with the clerk of the court in the county where the property is located. The complaint must contain certain information, including the date and time of occupancy, a description of the property, and a statement of your ownership of the property.
Once you’ve filed your complaint, a summons will be issued by the court and served on the occupant. The summons will contain information about the date and time of the hearing and what they need to do if they wish to contest the eviction. Your trespasser has 5 days to file a response with the court.
If no response is filed, you can then request a default judgment from the court and have a writ of possession issued. The writ of possession will be served on the tenants by law enforcement, who will then escort them off of the property.
If they respond before the court's 5-day deadline a hearing date will be set. At the hearing, both sides will have an opportunity to present their case and witnesses may be called to testify. After hearing all of the evidence, the judge will make a decision and issue an order for possession if they decide in your favor.
If you're successful in your unlawful detainer case and are awarded possession of your property, you may then request that law enforcement remove the occupants from your premises if they do not leave voluntarily.
- File complaint
- Wait 5 days for the defendant to respond to your complaint
- If they don’t respond
- A default will be entered by the clerk
- The final judgment will be granted by the court
- Clerk issues the Writ of possession
- The sheriff serves the Writ of possession to the defendant. The Writ gives them 24 hours willingly or they will be removed by force.
- If they do respond
- The case will be set for mediation
- If an agreement is reached in mediation the case will be dismissed
How long does an unlawful detainer take?
From the time you first file your complaint to the time, they’re removed expect it to at least take 45 days. Below is just a rough outline of the steps involved.
- 1 day to file your complaint
- 1-2 days for the sheriff or process server to serve your summons and complaint
- 5 days for them to respond to your summons from the date they were served
- 1 day for the clerk entered the default
- 1 day for the Judge to grant the Final Judgment
- 1-2 days for the sheriff to serve the Writ of Possession
- 24 hours after the Writ of Possession is served
Now the above looks like a couple of weeks but you have to take into account the speed at which the court system works. So 6 weeks would be a conservative estimate provided that the squatter doesn’t file an answer to your complaint. At that point, it’s recommended that you hire an attorney if you haven’t already.
Can you ask for damages in an unlawful detainer action?
As the property owner, you can claim damages in addition to possession of the property in your unlawful detainer action.
If you win your unlawful detainer action
You may be awarded double the amount of what you would normally charge for rent for the time period the defendant was in possession of the property
Damages may be requested for repairs as a result of the defendant's unlawful occupancy.
What happens if someone refuses to leave an Airbnb?
If an Airbnb renter refuses to leave to be on the safe side you may consider treating them as you would a month-to-month tenancy at will. The fact they have most likely already given you money to rent the place, regardless of how short, in the court's eyes they may have tenants' rights. Depending on your state even hotels may be required to treat a guest as a tenant and evict them if they won’t voluntarily leave.
How do I evict a guest on Airbnb?
Your first step is to contact Airbnb. They’ll try to mediate between you and the guest. But as big and powerful as Airbnb is, it can’t supersede government laws. On their very website, even Airbnb says you may have to evict a guest who refuses to leave.
So your next step is to consult an attorney to at least brief you on your legal options. You can then decide whether to use their services or if it’s something you feel you can do yourself. If you decide to evict an Airbnb squatter you’ll follow the same steps as you would if you were evicting a month-to-month tenant that doesn’t have a lease. Hopefully, you have vacation rental insurance which may or may not cover your expenses for removing a squatter from your Airbnb.
Unlawful detainer forms
The following are the forms you’ll need to file your unlawful detainer in Florida.
Unlawful Detainer Forms |
When to Use Form |
| Affidavit of Indigency | If you cannot afford fees. |
| Unlawful Detainer Complaint | Required to start the case. |
| Unlawful Detainer Summons | Required to start the case. |
| Certificate of Mailing | If Sheriff does not personally serve Defendant(s) |
| Request for Hearing | Use if an answer is filed. |
| Motion for Default & Default | Use if an answer is NOT filed. |
| Judgment for Possession | For the Judge to sign if you win the case. |
| Writ of Possession | For the Clerk of Court to sign after the Judge signs the Judgement for Possession. The Sheriff’s office will use this to remove the Defendant. |
Conclusion:
As a landlord, it's important to understand your rights and responsibilities when it comes to removing someone from your rental property. An unlawful detainer is a legal process that you can use to remove someone from your property if you’ve never had a landlord-tenant relationship and they have illegally entered or refused to leave.
Filing an unlawful detainer in Florida is a relatively straightforward process, but it's important to make sure that you follow all of the steps correctly in order to avoid any delays or complications. If you find yourself in this situation, consult with an experienced attorney who can guide you through the eviction process and help you protect your rights as a landlord.
If you would like to research further here’s a link to Chapter 82 of The Florida Statutes FORCIBLE ENTRY AND UNLAWFUL DETAINER.
Contact me with any questions and concerns about tenant evictions and eviction notices. I'd be happy to help you solve your tenant eviction problems.
tony@ustayupay.com