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It's The Law: Glitches In Evictions

Question: I have problems with my tenant and want to kick him out. Is there anything in particular that I need to be worried about?

Answer: Florida evictions are known as actions for possession. Residential tenancies are governed by the Florida Residential Landlord and Tenant Act which is found at Sections 83.40-83.682 of Florida Statutes. The Act has specific provisions addressing termination of leases. It prohibits forcible removal by the landlord and, in its place, provides an expedited procedure under which actions for possession usually reach trial in less than 30 days.

A lease for a specific term cannot be terminated without cause, unless both parties agree. But, the lease can include a requirement that the tenant notify the landlord before vacating the premises at the end of the lease. The lease may not require more than 60 days notice. The clause can also provide for additional payment to the landlord in the event the notice is not given.

If a tenancy is without a specific term, it may be terminated by either party giving written notice to the other based upon the time frame in which rental installments are paid. At least 15 days notice before the end of any monthly period is required to terminate a month to month lease. A week to week lease may be terminated by giving not less than 7 days notice prior to the end of any weekly period. Even if proper notice is given or the lease has expired, if the tenant does not move out, the landlord must file a court action for possession. If the tenant holds over without permission, the tenant is liable for double rent for the hold over period.

Most early termination cases involve breach of lease by the tenant. If the breach is for failure to pay rent, the landlord must give the tenant 3 day notice that the rent is unpaid, the amount of rent due and that if not paid within 3 days (excluding Saturday, Sunday and legal holidays), from delivery of the notice the lease is terminated. Apparently, the legislature did not think that tenants could count, so the notice must specify the exact date when the 3 days expires. The notice may be mailed, but 5 additional days are added if mailed. The notice may be hand delivered to the tenant or, if the tenant is not in the residence, left at the residence.

The most common mistake made by landlords preparing a 3 day notice is to include amounts due other than rent. The statute only allows termination for failure to pay rent. Many landlords include late fees, interest and other charges in their 3 day notice, which makes the notice invalid. If the notice is invalid, the landlord stands a good chance of losing the court case.

If the lease is terminated for reason other than non-payment of rent, the tenant must be given 7 days notice. Unlike the 3 day notice, if the breach is not particularly egregious, the tenant has an opportunity to cure. If the tenant cures, the tenant gets to stay. By statute, these violations include unauthorized pets, guests, vehicles, or failure to keep the premises clean. If the tenant commits the same breach within 12 months, the tenancy may be terminated without an opportunity to cure non-compliance.

The statute also provides that some violations are so bad the tenant should not be given an opportunity to cure. Those violations include damage to the landlord's or other tenant's property by intentional act or a subsequent or continued unreasonable disturbance. The 7 day notice does not have to calculate the end day for compliance.

The tenant also faces possible problems in defense. In an action for possession based upon nonpayment of rent, the tenant may only defend if the tenant deposits the rent claimed due and later rent as it accrues, into the court registry. Most tenants do not pay that rent to the registry, which ends their defense. If the tenant wants to defend on ground that the tenant failed to pay because the landlord failed to maintain the premises, the tenant must show that the tenant gave the landlord 7 days notice of the tenant's intent to stop paying rent because the landlord did not maintain or repair.

Some landlords attempt to add pressure to force the tenant out by turning off utilities or even changing the locks. Those actions expose the landlord to the tenant's actual or consequential damages or three (3) month's rent, whichever is greater, plus court costs and attorney's fees incurred by the tenant.

The Florida Residential Landlord and Tenant Act attempts to reach a compromise of the interest of all parties. It prohibits landlords from forcibly evicting tenants, to avoid property damage and personal injury. It requires trial if the case is contested, so the tenant has a chance to defend. It provides a fast track to trial, to minimize delay. The statute is full of technical requirements that must be met by both landlord and tenant. For that reason, you should consult with an experienced attorney before proceeding further.

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