In Florida, eviction actions range in completion time depending on the County, and the specific judge assigned to your case. Typically, the tenant has not paid rent for a few months, and the landlord is ready to kick them out of the residence. The most frequent question we receive from Landlords is whether the tenant will be able to fight or delay the eviction process.
Chapter 83 Florida Statutes, and the lease agreement are the controlling documents between the landlord and the tenant. It is important to note that while your lease can not take away certain tenant rights provided under the statute, it can provide the tenant with additional protections beyond what is provided under Florida law. For example, the statutes say that if the tenant fails to pay rent, you can serve them with a three-day notice, and subsequently terminate the tenancy if they fail to remedy the non-payment. See 83.56(3). However, if your lease provides five (5) or seven (7) days instead of three (3), you are bound by the terms of your lease. Make sure your lease provides only the protections that you want and does not extend the statutes reach in favor of your tenant.
When you have properly terminated the tenancy (giving the proper notice as required under the Florida Statutes), you can file an eviction action. As an eviction is a legal action, the tenant will always have a right to respond to the case before they are kicked out. Possession of the property is governed by the summary procedure in Florida which gives the tenants the opportunity to respond within five (5) days of service of the complaint upon them. During this period, you cannot progress your eviction action. Upon the expiration of the five (5) days, your next move will be determined based on whether the tenant has filed a response to your complaint:
- If the tenant has not filed a response you can move for a clerk’s default against the tenant. Once the clerk’s default is issued, you can ask the Court to enter a Judicial Default and Final Judgment. This is the fastest route to remove a tenant.
- If the tenant does file a response (and likely a Motion to Determine Rent) you will need to determine whether the tenant has presented any legitimate defenses to your action for eviction. The next step is to set a hearing before the judge to determine whether the tenant’s arguments have any merit.
Evictions on average take about one (1) to three (3) months depending on the County and the specific judge. The Landlord is not receiving rent during this time, while also coming out of pocket to pay the expenses for filing the eviction. The landlord is typically paying a mortgage on the property as well, so financially, this does not put the landlord in a good place. Every Landlord wants to streamline the process and get the tenant out as fast as possible, and often as, “is there any way for the tenant to delay the eviction process.” Unfortunately, yes.
Ways Tenants Delay Evictions:
1. If the tenant is not financially able to pay the rent, or if they are materially violating the lease in a different way, the Tenant may tell the landlord what they want to hear to lengthen the amount of time before the landlord files the eviction. Oftentimes landlords try to be friends with their tenants, but this false idea harms the landlord because you may be a few months behind on rent before you file the eviction action. Now the one (1) to three (3) month eviction process begins and you have lost rent for almost half a year while carrying liability and responsibility for the property.
- Deficiencies in Landlord’s Notices: The statutes make it clear that there is very specific language that must be provided in the Notice that you provide. If you fail to adhere to the requirements and it is brought to the judge’s attention, they may reset your case and require you to give the proper notice.
- Motion to Determine the Amount of Rent to Place Into the Registry: 83.60(2) provides that the tenant can file a Motion to Determine the amount of rent owed if they believe the amount in the complaint is incorrect. If a tenant files this Motion, do not wait to set a hearing on the matter. The Court will not move forward with the case until one of the parties sets the Motion for hearing.
- Accepting Rent with Knowledge of a non-compliance 83.56(5)(a): If the Landlord is aware of a matter of noncompliance by the tenant, the Landlord must be careful when they accept rent from the tenant. By accepting rent, you may have waived your right to evict over certain action committed by the tenant.
- Unclean Hands: A Landlord cannot evict a tenant for something that has happened within the control of the Landlord. If the Landlord is the cause of the action creating the need for the eviction, the removal of the tenant is likely to be unsuccessful.
- Issues with Service: The tenants must be served in accordance with Florida Statutes. If the Landlord delivers the summons to the tenants themselves, or if there are any other deficiencies in service, the Court could force the action to restart, requiring the Landlord to properly serve the tenants.
- Retaliatory Evictions: The Landlord cannot evict the tenant as retaliation for the Tenant exercising a legally protected right. This will have your eviction action dismissed and you may face civil penalties.
- Self-Help: The landlord must go through the Court system to remove a tenant. The Landlord is not allowed to “Self-Help.” This means that the Landlord cannot change the locks, remove doors or windows, cut off utilities (even if they are in the landlord’s name) or removing the tenants belongings.
- Landlord Does Not Evict All Parties: Sometimes there are tenants, sometimes there are other occupants, and sometimes there are unknown parties in possession. This is crucial to identify at the time of filing the eviction because a judgment against one party does not operate as a judgment against all parties. You may be successful in getting your tenant out to find that a friend of theirs has been living in the house and now refuses to leave.
- Filing the Appropriate Action: There are three main ways to get people out of a house. Chapter 83 (Evictions), Chapter 82 (Unlawful Detainer) and Chapter 66 (Ejectment). If you file the wrong type of action, your court case will either be dismissed or transferred to the appropriate Court.
- Bankruptcy: The automatic stay of a bankruptcy may prevent you from removing your tenant from the property for a period of ninety (90) days unless you have received a final judgment prior to the bankruptcy filing.
If there is a way to delay the eviction action, the Tenant is going to try to do so. As a landlord, make sure that your lease is strong, and that you have conducted yourself in accordance with Florida Statutes. If the Tenant poses a defense, address it during the eviction but do not wait to file your action until you are financially strapped.
The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
Real estate is an essential part of the Florida economy. Whether you are a large developer or simply buying a home, you need real estate counsel. The Orlando Law Group’s attorneys handle virtually all aspects of real estate. We represent individuals by reviewing their leases as well as contracts. We also represent developers, contractors, lenders, and owners of commercial properties.
Why Hire a Florida Real Estate Attorney?
To start, why should you hire a real estate attorney? There are countless reasons why one might want to hire an attorney, but here are a few of the most common. First, hiring an attorney to handle your real estate matter will ultimately save you time and money. A real estate attorney will safeguard you, your clients and their investment by thoroughly reviewing all legal documentation, handling negotiations keeping you and your clients informed throughout the process and asking the questions you may not know to ask. Hiring a real estate attorney can also give you clarity and peace of mind throughout the transaction. Hiring an attorney to review all agreements and contracts and assist in negotiations will ensure the maximum level of transparency and comfort for your clients and can also grant you the peace of mind that your transaction is legally sound and has been reviewed thoroughly by a professional.
A real estate attorney also has valuable experience and knowledge from working in the field that simply cannot be recreated. Our attorneys have the institutional knowledge of working daily in the industry and have their fingers on the pulse of the local and state laws. Especially for those of you with unique real estate situations, it’s important to have the legal support to mitigate any risks that could delay, if not jeopardize, your real estate purchase. Lastly, hiring a real estate attorney can also expedite the process of your transaction significantly. Hiring a Florida real estate attorney not only serves to protect each party’s interests but also expedites the entire process and helps to streamline the contract negotiation, the closing process, securing title insurance and communicating with lenders.
The Importance of Prevention in Real Estate Law and for Real Estate Agents
Often, we turn to lawyers as a last resort – after the contract has been signed, or when a dispute is already out of control. However, good legal advice is one of the greatest preventative measures a lawyer can provide. Not only can it save you money in the long run, but it can also save you from unpleasant difficulties later.
At The Orlando Law Group, you can be sure that your attorney possesses both a sharp, experienced legal mind, and a friendly smile that will welcome and comfort you. What’s more, we are serious about preventative legal tactics, working to solve issues for our clients before they blow up into legal messes. Simply put, we are here for you, and we have your back at all times!
A successful Florida residential real estate transaction is more than mere document preparation. Buyers and sellers alike may encounter any number of hiccups including, but most definitely not limited to, disclosures, financing, findings as a result of property inspections, dealing with property owner association requirements and title insurance.
As a real estate agent, it is wise to have a go-to Florida real estate attorney to ensure that you and your clients are protected and are properly informed when making pertinent decisions. While conducting a residential real estate transaction in Florida, only an attorney can provide legal guidance and advice that is truly in your best interest.
Legal Connections in Real Estate – Why Hire a Full-Service Firm?
- Diverse Clientele: Our firm provides legal assistance to a wide variety of clients with different needs and preferences, meaning our team is well-equipped to handle the specificities of your situation.
- Multiple Perspectives: If your attorney needs an objective perspective from a different legal professional, they can get that from within the firm. You can’t get that kind of flexibility from a boutique lawyer, who would have to hire another attorney for a second opinion.
- One-Stop-Shop: At The Orlando Law Group, we work as a team in all endeavors. With each attorney having experience in a multitude of fields, we can provide a comprehensive solution for our clients.
- Flexibility and Creativity: As a full-service firm, each member of our team has a diverse skillset and base of knowledge. With these assets, we are able to navigate through each case with flexibility and provide creative solutions for our clients.
- Adaptability: Like many industries, the legal world is subject to change and improvement over time. New laws are created, and we are responsible for understanding the fine details on how they affect our clients. What makes us successful is our ability to learn these new laws and understand how they apply to current and future clients.
A legal challenge can easily stretch across multiple practice areas. Real Estate Law, for example, can stretch into business law, family law, and estate planning quite easily. As a full-service firm, we are well-equipped to tackle any legal challenge involving real estate, regardless of how many other disciplines the challenge involves. We offer a wide range of services to meet the needs of the Florida real estate community, whether it be for residential or commercial real estate. Here are a few examples of some connections real estate law can have with other areas of law:
- Family Law: A divorce or separation can often involve complex real estate transactions or the division of assets, including property.
- Probate Law: When a person passes away, you may find yourself in a situation where the deceased person owns a piece of property and the heirs of that person want to sell it, but probate must be administrated prior to this occurring.
- Business Law: Business law can easily relate to real estate law when commercial property transactions are involved, or a business is buying or selling a property.
- Civil Litigation: In some situations, disputes cannot be fully solved through negotiation and may require complex civil litigation to address.
The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.
If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
Last Updated on February 1, 2023 by The Orlando Law Group
