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Florida Statute Allows Removal of Certain Occupants of Real Property Without a Lawsuit

Jul 31, 2017 - Real Estate by

Florida’s landlord-tenant laws have long grappled with the competing goals of providing property owners with efficient means of removing non-paying tenants or trespassers while minimizing potential abuse of bona fide tenants. The Florida Legislature took a step toward modernizing the process of removing unwanted persons from real property in 2015 by enacting Section 82.045, Florida Statutes, which allows for the potential removal of persons who qualify as “transient occupants” of property without the need to file a legal proceeding. While this statute has not garnered widespread attention since its enactment, property owners should be aware of its potential impact on their ability to protect their property rights as well as its potential influence on the course of future developments in eviction and trespass laws.

As is discussed in the legislative history of Section 82.405, it is common knowledge that law enforcement officers often will decline to intervene in disputes regarding a person’s refusal to vacate a property –taking the position that the dispute is a “civil matter” — even where the person is not a tenant and does not claim to have a lease. Property owners therefore typically have no recourse to remove persons from their property other than to file a legal action for eviction, ejectment, or similar claims. While some of these proceedings can be hastened through the use of the summary procedures established through Section 51.011, they still typically require weeks to produce any results even if the tenant defaults for failure to respond to the lawsuit and substantially longer if the lawsuit is contested.

Section 82.045 provides a non-judicial procedure that authorizes law enforcement officers to demand that certain persons vacate a residential property based solely upon an affidavit from a property owner, lease-holder, or other person who has a right to use the property. If the person refuses to vacate the property, they will be deemed to have committed a violation of Florida’s trespass laws under Section 810.08. This process may be used to remove any person who qualifies as a “transient occupant,” which is generally defined as “a person whose residency in a dwelling intended for residential use has occurred for a brief length of time, is not pursuant to a lease, and whose occupancy was intended as transient in nature.” The statute provides a list of factors that may be considered in determining whether a person qualifies as a transient occupant, such as whether they pay rent, whether they hold any utility bills for the property in their name, and various other matters. However, if a person removed under Section 82.045 believes the removal was improper, they may bring a legal claim for wrongful removal against the person who requested the removal.

Property owners should note that each law enforcement agency may have its own procedures regarding enforcement of Section 82.045, such as requirements for the content of the affidavit and the process for submitting the affidavit. A qualified attorney will be able to help determine the proper procedures to follow in a particular jurisdiction, or the property owner may contact their local law enforcement agency for more information.

Section 82.045 also confirms the property owner’s right to file a legal action for “unlawful detainer” against the transient occupant. Unlawful detainer is a cause of action that arises when a person refuses to leave a property after their right to stay on the property has expired. See Section 82.04, Florida Statutes. An unlawful detainer proceeding therefore is similar to a proceeding to evict a tenant, except that it may be utilized to remove persons who might not be considered a “tenant” under the law. Like an eviction action, an unlawful detainer action can be filed in county court under the summary procedures set forth in Section 51.011, which are designed to provide a quicker and likely more cost-efficient proceeding than a typical court action. However, under Section 82.04, unlawful detainer claims generally cannot be raised in cases involving a “residential tenancy.” Under the provisions of Section 82.045, an action for unlawful detainer is now available to assist in the removal of persons from residential property, so long as the person qualifies as a transient occupant.