Removal Actions, Rights and Remedies

Q: Does a tenant have recourse against a landlord that removes the tenant without legal process?

A: Possibly. If the landlord takes possession from the tenant without legal process, the tenant may bring an action for unlawful entry and detainer. It is irrelevant to such action that the tenant’s possession was wrongful. The action is designed to compel the party claiming rightful possession to use legal channels in lieu of self-help measures.

Source: Fla. Stat. § 82.01, et seq (2012).

Q: What type of written notice is required to be served by the landlord prior to bringing a removal action?

A: No notice is required where tenant holds over and continues in the possession of the demised premises, or any part thereof, after the expiration of the lease term, without the permission of the landlord. Three days’ notice is required for a tenant that defaults in the payment of rent. Fifteen days’ notice is required for a tenant that materially breaches the lease or oral agreement, other than nonpayment of rent.

Source: Fla. Stat. § 83.20 (2012).

Q: What is “summary procedure” in the context of a removal action?

A: A removal action is summary in nature. The purpose of a removal action is to give the landlord fast relief when the tenant is in default under the rent provisions of the contract. Florida landlord and tenant law entitles the landlord to summary procedure under Florida Statutes Chapter 51. A summary removal complaint must contain the matters required by the removal statute: Florida Statutes, Section 51.011(1). The summary removal complaint should be filed in the county court where the premises is located. The tenant must answer the complaint within five days after receiving service of process, excluding any intervening Saturdays or Sundays, or legal holidays. Generally, default is improper when a party has filed a responsive pleading or otherwise defended before entry of default. All defenses of law or fact must be contained in the tenant’s answer. The tenant may incorporate a counterclaim into his answer, thereby requiring the landlord to serve an answer to the counterclaim within five days of receiving service of the tenant’s answer. No other pleadings are permitted in summary procedure.

Source: Fla. Stat. § 83.21 (2012); Fla. Stat. § 51.011(1) (2012); Fla. R. Civ. P. 1.090(a).

Q: If a tenant is wrongfully evicted may he or she sue for damages, and, if so, how are they measured?

A: Yes, for general damages and sometimes for lost profits, relocation expenses, and punitive damages. General damages are usually determined by finding the difference, if any, between the market value of the remainder of the term and the rent value of the remainder of the term. The tenant may also be entitled to lost profits and relocation expenses if the tenant is unable to find a comparable location to rent within the immediate area for the same rental amount. When a landlord’s wrongful eviction ends a tenant’s business, the tenant may recover damages that include compensation for injury to business, including a loss of future profits if future profits can be ascertained within a reasonable degree of certainty. Punitive damages may be claimed if the landlord’s behavior that causes the eviction is malicious and wanton in nature, or constitutes fraud, gross negligence or oppression.

Source: Ardell v. Milner, 166 So. 2d 714, 716 (Fla. 3d DCA 1964); Young v. Cobbs, 83 So. 2d 417, 420 (Fla. 1955).

Q: Is the tenant required to pay rent into the court registry in a removal action?

A: Yes. Section 83.232, Florida Statutes, requires that in any removal action, the tenant must pay into the court registry the amount alleged in the complaint and any rent accrued during the pendency of the action, unless the tenant has interposed a defense of payment or satisfaction of the rent in the amount the complaint alleges as unpaid. The court, on its own motion, shall notify the tenant of the requirement that rent be paid into the court registry by order, which shall be issued immediately upon filing of the tenant’s initial pleading, motion, or other paper. The filing of a counterclaim for money damages does not relieve the tenant from depositing rent due into the registry of the court. If the landlord is in actual danger of loss of the premises or other hardship resulting from the loss of rental income from the premises, the landlord may apply to the court for disbursement of all or part of the funds so held in the court registry.

Source: Fla. Stat. § 83.232 (2012).

Q: What if the tenant contests the amount that is due to be paid into the court registry?

A: If the tenant contests the amount that is due to be paid into the court registry, the tenant must pay the amount determined by the court. Generally, the landlord must prove the amount the amount that is due. The court will issue an order for the defendant to pay a certain amount due.

Source: Fla. Stat. § 83.232 (2012).

Q: What if the tenant does not or cannot pay rent into the court registry in a removal action?

A: A tenant’s failure to pay rent into the court registry is cause for immediate default in favor of the landlord. Section 83.232, Florida Statutes, provides that “failure of the tenant to pay the rent into the court registry pursuant to court order shall be deemed an absolute waiver of the tenant’s defenses. In such case, the landlord is entitled to an immediate default for possession without further notice or hearing thereon.” The clear language of the statute precludes any procedure in which a trial court may excuse non-compliance with a prior order.

Source: Fla. Stat. § 83.232 (2012).

Q: What is waste?

A: Waste is the abusive or destructive use of property by someone who is in rightful possession of the property. Waste implies neglect or misconduct that results in material damage but does not include the ordinary depreciation of property from time and normal use. Implicit in the landlord-tenant relationship is the obligation on the part of the tenant not to commit waste to the leased premises.

Source: Black’s Law Dictionary 1425 (5th ed. 1979); Stegeman v. Burger Chef Sys., Inc., 374 So. 2d 1130, 1131 (Fla. 1st DCA 1979).

Q: What are the landlord’s remedies when a tenant has committed waste to the premises?

A: When a landlord is confronted with a tenant’s present act of waste, the landlord may seek an injunction to restrain the tenant from committing further waste. After waste has been committed by the tenant, a landlord may bring an action in damages for waste committed by the tenant that caused injury to the landlord’s future interest in the property.

Source: Rogers v. Martin, 87 Fla. 204, 208 (Fla. 1924); Stephenson v. National Bank of Winter Haven, 92 Fla. 347, 353 (Fla. 1926).

Q: What are the landlord’s remedies when the tenant has held over after the expiration of the term of the lease?

A: When a tenant holds over beyond the term of his tenancy, the landlord has the following legal remedies: (1) demanding double rent; (2) demanding a specific amount of continuing rent; or (3) initiating a removal action, i.e. suing for the possession of the property plus damages, including special damages for loss of the property’s use.

Source: Lincoln Oldsmobile v. Branch, 574 So. 2d 1111, 1113 (Fla. 2nd DCA 1990); Fla. Stat. §§ 83.20-83.251 (2012).

Q: May a landlord demand double rent from a tenant who holds over after the end of the term?

A: Yes. The landlord has the statutory right to demand double rent at the end of the month, or in the same proportion for a longer or shorter time by distress, from a tenant who holds over willfully and without title after the end of the term. However, a tenant is probably not liable for double rent if he holds over with a reasonable good faith claim of a right to possession. The statute should be construed in favor of tenant and against the landlord. For this reason, the obligation to pay double rent has been held to begin on the day of the demand and is not retroactive to the date of the holdover. In order for a landlord to collect double rent as authorized by Florida Statute Section 83.06, the landlord must first give notice to the tenant of his intention to demand double rent. For example, the term of a lease ended on March 31, but the tenant continued their possession of the property. The landlord demanded double rent on April 30. Assuming the landlord gave the tenant notice of his intention to demand double rent, the day that double rent is calculated is April 30, the day of the demand.

Source: Fla. Stat. § 83.06 (2012); Greentree Amusement Arcade v. Greenacres Dev. Corp., 401 So. 2d 915, 917 (Fla. 4th DCA 1981); Painter v. Groveland, 79 So. 2d 765, 768 (Fla. 1955); Lincoln Oldsmobile v. Branch, 574 So. 2d 1111, 1113 (Fla. 2nd DCA 1990).

Q: Is “self-help” entry allowed by the landlord in an eviction action?

A: No, in most circumstances. In 1983, the Florida Legislature made substantial changes to Florida Statutes Section 83.05, taking away the landlord’s right to immediate re-entry and possession, following a tenant’s rent default. Now, Section 83.05, Florida Statutes, only provides that the landlord shall recover possession of the rented premises only (1) under Section 83.20 (discussing holdover without permission; holdover after default, and; holdover after failing to cure a material breach) or other civil possessory action, (2) when the tenant surrenders possession of the rented premises to the landlord, or (3) when the tenant abandons the rented premises.

Source: Fla. Stat. §§ 83.05 and 83.20 (2012).

Q: When may a tenant bring an action for wrongful eviction?

A: An action for wrongful eviction is proper when a landlord’s wrongful act deprives a tenant of possession of the rented premises or disturbs a tenant’s beneficial enjoyment so as to cause the tenant to abandon the premises. A wrongful eviction may be either actual or constructive. Generally, the tenant must abandon the premises in order to sue the landlord for wrongful eviction.

Source: Richards v. Dodge, 150 So. 2d 477, 481 (Fla. 2nd DCA 1963).

Q: What is a constructive eviction?

A: A constructive eviction results from the intended disturbance by the landlord or his agent that interferes with the tenant’s possession and either renders the premises unfit for the purpose rented, or deprives the tenant of his beneficial enjoyment of the premises. Eviction may occur from a landlord’s direct act of interference, from an interference with the tenant’s access to the rented premises, or from a third party’s interference. A constructive eviction has the effect of essentially depriving the tenant of the beneficial enjoyment of the leased premises as where they are rendered unsafe, unfit, or unsuitable for occupancy in whole or in substantial part for the purposes for which leased.

Source: Ralston, Inc. v. Miller, 357 So. 2d 1066, 1069 (Fla. 3d DCA 1978).