IF A TENANT WON’T PAY RENT, WHAT CAN I DO TO GET HIM OR HER OUT?
ANSWER: A Three (3) Day Notice may be given stating the amount of rent owed and the time the Tenant has to pay it. The notice must give him or her three working days, excluding Saturdays, Sundays, public and statutory holidays, in which to pay the rent in full or vacate the premises. If he or she fails to pay rent or to vacate, a suit for eviction may be started. The suit may be a either a Count I or Count II eviction. For details, please feel free to contact us at 305-305-1514.
CAN A SECURITY DEPOSIT BE TREATED AS RENT?
ANSWER: No. A security deposit should only be used to protect and (if necessary) restore the subject property’s structural integrity to its original condition. This comes into play once the Tenant vacates the leased premises. If the Landlord (or the Tenant for that matter) attempts to use the security deposit for any other purpose, it must be in writing by BOTH the Landlord and Tenant.
CAN I EVICT A TENANT FOR REASONS OTHER THAN THE NON-PAYMENT OF RENT?
ANSWER: Yes. Whenever a Tenant breaches his or her rental agreement for any reason (other than the non-payment of rent), a Seven (7) Day Notice with an opportunity to cure can be given for non-compliance (i.e., unauthorized people or pets, piling up trash, loud noise, etc.). If the problems with the Tenant rise to the level that they may be criminal (prostitution or drugs) or even delinquent (fights or intentional destruction of property), then a Seven (7) Day Notice may be given without the opportunity to cure. Please note that these notices may differ for Section 8 Tenants.
WHAT IF I JUST WANT MY PROPERTY BACK?
ANSWER: That may or may not be so simple. It all depends on whether there is a written contract or not. If your Tenant is on a month to month verbal agreement, you may give a Fifteen (15) Day Notice at any point in time provided that it is at least fifteen days before the beginning of the next rental period. As such, you would be terminating the rental agreement and asking for possession of the property after the expiration of said Notice. Please note that if an eviction ends up being filed upon the expiration of the Notice referenced herein, you can also sue for twice the amount of the rent as a statutory penalty. However, if there is a contract in place, you may not use a Fifteen (15) Day Notice.
WHAT IS THE DIFFERENCE BETWEEN A THREE (3) DAY NOTICE AND A FIVE (5) DAY NOTICE?
ANSWER: Within the context of residential evictions, there is no such thing as a statutory Five (5) Day Notice. The problem is that Tenants often ignore the Three (3) Day Notice as if it has no legal bearing, and then, when they get served with an eviction complaint attached to a Five (5) Day Summons, they say that they just got a five day notice. Hence, the confusion. When you get any kind of notice within an eviction context, it is usually before an eviction has been filed and you can still work it out without appearing before a judge. However, a summons (be it five days or twenty days) is not a notice at all. It is an administrative order commanding you to respond to a lawsuit that was filed against you. If you are a Tenant who has received either a notice or a summons and are not sure as to what you should do, please contact an attorney immediately; time is of the essence.
WHAT ARE THE FILING FEES AND COURT COSTS FOR EVICTIONS?
ANSWER: The most common filing fees are as follows:
Filing Fee $185.00;
E-portal Convenience Fee – $003.00;
Process Server Fee – $040.00: *
Summons Issue Fee – $010.00: *
Sheriff’s Fee – $115.00. *
Generally speaking, these are the fees in South Florida. They DO NOT include the Attorney’s Fee. There are some minor differences as to the Sheriff’s Fee, the Process Server’s Fee, and the Summons Issue Fee in each county. If you would like to learn about the specific fees in YOUR PARTICULAR COUNTY, please contact us at 305-305-1514. Please note that the law office of Julio C. Cavero, P.A. does not collect the Sheriff’s Fee up front because it is never known whether it will actually be needed. That can only be known once the Final Judgment is secured in court.
IN WHICH COUNTIES CAN I FILE AN EVICTION IN FLORIDA?
ANSWER: You can file an eviction in any of the sixty seven (67) counties in Florida. However, you must file your eviction in the county within which the property is located.
The counties are as follows:
Alachua, Baker, Bay, Bradford, Brevard, Broward, Calhoun, Charlotte, Citrus, Clay, Collier, Columbia, Desoto, Dixie, Duval, Escambia, Flagler, Franklin, Gadsden, Gilchrist, Glades, Gulf, Hamilton, Hardee, Hendry, Hernando, Highlands, Hillsborough, Holmes, Indian River, Jackson, Jefferson, Lafayette, Lake, Lee, Leon, Levy, Liberty, Madison, Manatee, Marion, Martin, Miami-Dade, Monroe, Nassau, Okaloosa, Okeechobee, Orange, Osceola, Palm Beach, Pasco, Pinellas, Polk, Putnam, Santa Rosa, Sarasota, Seminole, St. Johns, St. Lucie, Sumter, Suwannee, Taylor, Union, Volusia, Wakulla, Walton and Washington.
CAN I FILE AN EVICTION IF MY PROPERTY IS UNDER A COMPANY NAME ?
ANSWER: No. If any individual owns a property, and that property has been placed under the name of any kind of company, then an attorney is going to be the only person legally authorized to handle an eviction that becomes contested. In fact, not even the owner of the company itself can handle that eviction on a pro se basis (unless the owner happens to be an attorney). If you have an eviction matter with a property that is in a company’s name, please consult a qualified attorney.
WHAT DO I NEED TO BRING TO FILE AN EVICTION?
ANSWER: When dealing with our firm, all that you need to do is to fill out our Tenant Information Sheet & Retainer Agreement and get it back to us either via facsimile, e-mail or even snail-mail. When that form is submitted to us, please make sure to include copies of any unexpired or expired leases or notices that may have been given to the Tenant. When dealing with Section 8 Tenants, please make sure to include not only the contract that the Landlord has with the Tenant, but also the one that he or she has with the specific housing authority in the pertinent county.
WHAT HAPPENS ONCE AN EVICTION IS FILED?
ANSWER: Once an eviction is filed in Court, the Clerk of Court provides a case number and issues a stamped summons which has to be used in order to formally present the Tenant with the lawsuit. That summons is a Five Day Summons that is issued for purposes of evictions. Once the Tenant gets served with an eviction complaint and the five day summons, he or she has five working days to respond to the complaint. Depending upon how the Defendant responds, a hearing may (or may not) be set before a presiding judge. If the Tenant fails to respond, then the Landlord must submit the proper paperwork in order to get a Final Judgment and to have the Clerk of Court issue a Writ of Possession. However, you should know that sometimes there is extensive litigation because the Tenant either hires a lawyer or deposits the money into the Registry of the Court. There are never any guarantees or pre-determined outcomes. It all depends on how the Tenant responds to the lawsuit.
HOW LONG DOES THE EVICTION PROCESS TAKE?
ANSWER: Typically, the eviction process takes anywhere from three (3) to five (5) weeks after the filing date of the eviction complaint. It depends on many factors such as the time of the year, whether there are attorneys involved, was a response filed, did the tenant put money into the registry of the court, etc. You should note that a simple uncontested eviction can take as little as three weeks, whereas a contested eviction may take months due to the sometimes lengthy litigation.
WHEN CAN YOU ACCEPT MONEY FROM YOUR TENANT?
ANSWER: Once the eviction process begins, there are going to be two situations where a landlord may have to decide whether to accept money from a Tenant. The first is after the Three Day Notice is posted, but before it expires. In this situation, a Landlord is legally obligated to accept the complete rent that is due and owing from the Tenant. However, once a Three Day Notice expires, a landlord is not required to accept the rent payment. The Tenant should be instructed to deposit the rent payment into the Registry of the Court. There are also times when a Tenant attempts to pay the Landlord either all or part of the rent that is due after an eviction complaint has been filed in court. Under these circumstances, a Landlord SHOULD NEVER accept money from a Tenant. In order to avoid complications, the Tenant should be instructed to deposit it into the Registry of the Court.
ARE SECTION 8 TENANTS ANY DIFFERENT?
ANSWER: YES. In fact, they are very different and have to be handled accordingly. When you do an eviction against a Section 8 Tenant, you need to deal with state law and federal law. Also, the notices have to be sent to the Tenant’s local housing authority and they all have to reflect that. These evictions are much more technical and they have to be dealt with carefully. Section 8 evictions usually take longer because the Judges handle them with a great deal of care, as the Tenants are usually indigent. As such, they may avail themselves of the resources of pro bono attorneys. Please be very careful, as mistakes are usually made by pro se litigants that can take a lot of time to fix and remedy once the case is in court.
WHAT IF THE TENANT MOVES AND LEAVES POSSESSIONS IN THE RENTAL UNIT?
ANSWER: Please refer to Section 715.109 of the Florida Statutes. In essence, you should know that unlike commercial evictions, the Landlord does not have a statutory lien on the residential tenant’s property. However, if the Landlord has a reasonable basis to believe that the property that was left behind is worth less than $500.00, then it may be disposed of as trash.
IS THE SHERIFF PAID SEPARATELY?
ANSWER: Yes. The Sheriff’s fee becomes due and owing once the Final Judgment is secured in an eviction procedure. Basically, what happens is that the presiding judge signs off on the Final Judgment and sends it to the Clerk of Court. The Clerk of Court then issues the Writ of Possession and sends it off to the Sheriff’s Office. Upon receipt, if the Sheriff’s Office does not have a check accompanying the Writ of Possession, then a clerk within the Sheriff’s Office contacts the Landlord and/or his attorney to inquire about payment.
Please note that once the Sheriff’s office receives a payment, they begin to process the paperwork and funds are rarely (if ever) returned. Thus, if a payment is made on Thursday, the tenant vacates by the following Tuesday, and the Sheriff posts the 24 Hour Notice on Wednesday, the landlord will not get its money back because it was processed. The fact that the tenant vacated before the Sheriff arrived would be irrelevant.
DOES THE SHERIFF HANDLE THE TENANT’S PERSONAL BELONGINGS?
ANSWER: No. If the Tenant were to leave any personal belongings, furniture or other personal effects behind, you, as the Landlord, are responsible for their removal. What that means is that you may dispose of EVERYTHING by putting it on the property line. That is, where the private property ends and the public sidewalk begins. Once 24 hours go by, then it can be further disposed of in any, which, way or form. The Sheriff’s Office typically sends two officers to assist with the put-out. However, all they are really there for is to keep the peace. In other words, to make sure that the public safety is not breached while the Landlord takes possession of his or her property. In the event that it is a condominium please check with the condominium association or homeowner’s association as their procedures may vary.
DOES THE SHERIFF CHANGE THE LOCKS FOR YOU?
ANSWER: No. You need to have your own locksmith. The Sheriff’s Office typically sends two officers to assist with the put-out. However, all they are really there for is to keep the peace. In other words, to make sure that the public safety is not breached while the Landlord takes possession of his or her property.
HOW LONG DOES THE SHERIFF TAKE TO DO THE PUT-OUT?
ANSWER: Technically, the officers that are sent from the Sheriff’s Office do not do the actual put-out, that would be the Landlord and/or his or her agents. Don’t forget that they are there for purposes of keeping the peace. In other words, to make sure that the public safety is not breached while the Landlord takes possession of his or her property.
The actual put-out is when the Landlord removes the Tenant, the Tenant’s personal possessions (including pets), all other persons that may be residing at the formerly leased premises, changes the locks and takes possession. All of the work associated with that is to be done by the Landlord pursuant to a court order. The Sheriff’s Officers are there to make sure that no one interferes with the Landlord’s right to take full possession of his or her property. However, the Sheriff’s Officers don’t have all day. You must be ready with everything and be quick about it, as they are only there for about 20 to 30 minutes.
WHEN SHOULD I CALL AN ATTORNEY?
ANSWER: An attorney can be called in at any phase of the eviction process. In fact, some Landlords even have an attorney handle the pre-eviction phase of the process to make sure that all of the pre-requisites are handled properly so that the eviction (if necessary) goes smoothly. If you ever find yourself in court and there is an attorney on the other side, YOU SHOULD DEFINITELY HAVE YOUR OWN LAWYER.
WHAT IF MY TENANT DECLARES BANKRUPTCY?
ANSWER: When a Tenant declares bankruptcy during the pendency of an eviction procedure (or any other underlying cause of action in any State court), everything is stayed. In other words, the lawsuit must be stopped and nothing could be done until permission is given by the pertinent Federal court. If you are a Landlord and find yourself in this situation, please contact an attorney immediately so that a motion can be filed in Federal court and the automatic stay can be lifted.
DO YOU HANDLE COMMERCIAL EVICTIONS?
ANSWER: Yes. Our office handles all forms of removal actions whether the Tenant is a commercial establishment (such as a restaurant, pharmacy or supermarket) or a generic residential Tenant.
HOW ARE COMMERCIAL AND RESIDENTIAL EVICTIONS DIFFERENT?
ANSWER: First and foremost, commercial evictions are handled pursuant to Part I of Chapter 83 of the Florida Statutes, whereas residential evictions are handled via Part II of Chapter 83 of the Florida Statutes. Residential evictions may or may not have written lease agreements, whereas commercial evictions almost always have a written contract. Unlike residential tenants, you can’t simply give a commercial tenant a Three (3) Day Notice and then go to court immediately upon its expiration. You MUST FIRST look to the written contract because there will often be clauses built into said lease that afford the commercial tenant an opportunity to cure prior to being sued in court. It is often said that residential tenancies are statutory creatures whereas commercial tenancies are contractual creatures. If you are in a commercial Landlord-Tenant relationship and are having difficulties, please contact an attorney. Please provide him or her with a copy of your lease, any notices and/or lawsuits that you have received and schedule an appointment. There are entire treatises dedicated to commercial evictions and litigation. Don’t go it alone.
WHAT IF THE LANDLORD WILL NOT REPAIR THE DWELLING?
ANSWER: You may give the Landlord a written Seven (7) Day Notice in order to request the repairs needed throughout the unit. The Notice will inform the Landlord that if the repairs are not done, you will be moving or withholding the rent. If the Landlord fails to make the repairs, you can either move or withhold the rent in order to make the necessary repairs yourself. What you cannot do is to withhold the rent, not make any repairs and continue to live rent-free. If you withhold the rent, the Landlord may give you (the Tenant) a Three (3) Day Notice for the non-payment of rent and initiate eviction proceedings. You have the right to post the rent with the Court and have a hearing before a judge if there is an open case in court.
IF I HAVE AN ISSUE WITH THE LANDLORD OVER THE DWELLING, CAN I POST THE RENT INTO THE REGISTRY OF THE COURT?
ANSWER: If a Tenant has a problem with a Landlord, and the Landlord refuses to remedy the situation, a Tenant can not simply stop paying rent and deposit it into the Registry of the Court. The only way that that can happen is if there is an open case in court with an actual case number assigned. Otherwise, the matter needs to be remedied outside of court. Please contact an attorney to determine the best course of action.
CAN THE LANDLORD JUST COME IN AND TAKE POSSESSION OR CHANGE THE LOCKS ON THE DWELLING WITHOUT A COURT ORDER?
ANSWER: Absolutely not. Self-help measures such as cutting the water, changing the locks or blocking access to the property are strictly prohibited in Florida.