Orlando Eviction

An Orlando eviction attorney helps landlords get their property back through the eviction and unlawful detainer processes. Our clients typically face tenants that stop paying rent, and we help our clients get their property back as soon as possible. Evictions in Orlando are governed by Chapter 83 of the Florida statutes. Understanding the eviction law is important to avoid taking unnecessary steps that lead to additional costs, delays, and an ultimately a failure to secure the rental property from the non-paying tenant. Although the City of Orlando is located in Orange County, an “Orlando eviction” generally refers to evictions anywhere in Orange County, Seminole County, or Osceola County.

The overall eviction will take 4-5 weeks. Longer if the tenant is able to contest the eviction (though this is rare). Most attorneys charge a flat fee for an uncontested eviction, but hourly for a contested eviction. You can evict with or without a written lease. If you are trying to evict a guest in your property that doesn’t pay rent, you will go through a similar process called an unlawful detainer.

There are four basic steps to an eviction in Orlando:

  1. Three Day Notice. The owner or management company delivers a notice to the tenant stating that they have three days to pay rent or vacate the premises. Sometimes different notice periods are needed based on the circumstances. We can prepare the notice for you as part of the overall process.
  2. Filing a Complaint. We file a complaint, the Court issues a summons, and we serve the complaint on the tenant. The tenant has five days to respond.
  3. Judgment. You should then seek a judgment for possession, either because of a default (tenant doesn’t’ respond to the eviction) or after a hearing.
  4. Writ of Possession. After obtaining a judgment for possession, a writ of possession is issued to the sheriff to remove the tenant from the property.

Three Day Notice

Orlando eviction attorney helping landlordLandlords typically want to work with tenants who are not paying rent. Be careful when you do this. Sometimes when discussing ways to help the tenant get current, you might be orally modifying the terms of your lease. This can be true even when your lease says that no oral modifications are effective, especially if you end up causing a new course of dealing changing the payment terms and amounts under the lease.

Therefore, even when trying to work something out with the tenant, the better practice is usually to deliver a three day notice under the provisions of section 83.56 of the Florida eviction statute. Make sure you review your lease agreement first–some leases provide for additional days such that a longer notice period must be given.

Because Orlando evictions are conducted as a statutory proceeding, the landlord must strictly comply with all requirements of a three day notice. Failure to adhere to the requirements may ultimately result in dismissal of the eviction lawsuit. A proper three day notice includes the following information:

  • The total amount of rent that is owed.
  • The failure to pay the rent.
  • The county where the property is located.
  • The date the tenant must pay the rent or vacate.
  • The address at which the rental payment is demanded.

In addition, the three day notice should not include late fees in its total. For residential evictions, the three day notice must substantially adhere to the form given by statute. In addition, be careful about the mail rule: depending on which county the property is located in and the address at which the rent is demanded, you may need to add an additional five business days to the notice period.

The easiest way to serve a three day notice is to hire a process server to do it. The process server will sign an affidavit of service indicating the date and time and method of service. This significantly impairs the ability of a tenant to contest delivery of a three day notice later on. However, the cheapest way to serve a three day notice is to do it yourself. Make sure the notice includes a Certificate of Service indicating the date and method of service.

Finally, some tenants will want to pay the rent after the notice period expires in an effort to delay or avoid the eviction. If you still want to proceed with the eviction despite the offered rent, make sure you are able to reject the rent or immediately deposit it into the Court registry.

Eviction Complaint

After the three day notice period expires, the landlord can proceed with filing the eviction complaint in Orlando. Evictions should be filed in County Court as opposed to Circuit Court. County court judges often handle eviction cases and will be able to rule on your case more quickly. In addition, Florida provides County Court with original jurisdiction regarding landlord-tenant actions. The lawsuit must be filed in the county where the property is located.

After filing the Complaint, a service processor is hired to serve the Complaint and Summons onto the tenant. You should serve all adults living in the property that you want evicted. Failure to serve any of the adults may result in the eventual writ of possession not being enforceable against the non-included adults.

Evictions and unlawful detainers (eviction of guests) operate under an expedited timeline compared to other legal cases. This timeline is called summary procedure. Summary procedure means that the tenant will have five business days to respond to the eviction lawsuit or else will be in default. Court holidays do not count as business days. Without summary procedure, the tenant would otherwise normally have twenty days to respond. In addition, Florida law requires judges to expedite cases under summary procedure. That means the judge will more quickly set a hearing on the eviction if one needs to be set.

The same summary procedure aspect of Florida law allows for a special method of serving evictions. If the service processor cannot locate the tenant at the rental property, then the service processor can still serve the tenant by posting a copy of the Complaint and Summons on the door of the property. This is a benefit to a landlord and makes service of the eviction lawsuit much quicker. When serving via posting, the Clerk of the Court must follow by mailing a copy of the Complaint and Summons to the tenant. The clerk will file a Certificate of Mailing which indicated the date the Complaint and Summons were mailed to the tenant. In this situation, the date of mailing—not the date of posting—starts the five business day clock.

Judgment

If the tenant does not contest the eviction, you will be able to get a default judgment. Florida law makes it very hard for a tenant to contest an eviction. In fact, Florida is one of the most landlord-friendly states in the country due to the speed of evictions and financial barrier of a tenant to fighting an eviction. A tenant that wants to contest an eviction for non-payment of rent generally must first deliver the unpaid rent to the Court. The only exceptions are when the tenant claims he has already paid the demanded amount or if the tenant disputes the amount of rent that is owed. Even if the tenant disputes the amount of rent owed, the tenant generally must still pay into the Court registry the amount he thinks is owed.

Failure to pay the rent into the Court registry acts as a waiver of all defenses and results in an immediate default judgment for the landlord without any further notice or hearing.

Recent changes to Florida’ eviction law now require the tenant to pay the missing rent into the Court registry even if the tenant alleges that the three day notice was defective.

However, if the tenant does pay the demanded rent into the Court registry, you will likely need to get a hearing before the judge. The primary issues usually will be whether the rent was owed at the time of the hearing and whether the tenant lawfully withheld the rent.

The judgment resulting from the eviction is for possession. It is not a monetary judgment for back rent. To get that kind of judgment, you must also sue for “damages,” which is a legal term including all of your monetary loss (rent, property damages, attorney fee’s, late fees, etc.) Getting a monetary judgment requires extra time and expense. For residential property, it is usually not worth it unless you know the tenant has non-exempt money to collect.

Writ of Possession

After the Court issues a final judgment for possession, the Clerk of the Court will issue a Writ of Possession. The writ is the formal direction to the county sheriff’s office to remove the eviction defendants from the property. A sheriff’s deputy will give you a call to arrange a time to meet you (or someone on your behalf) at the property. You will have to show up with a working key or a locksmith.

After the writ of possession is executed, you can remove all of the tenant’s personal possessions to the property line. The tenant can pick up his property–if not, it can be disposed of. You are not required to store the property after the writ of possession has been executed.

Sometimes the tenant will file an Emergency Motion to Stay the Writ of Possession. This is often the tenant’s last effort to get the eviction delayed and remain on the property. Usually the judge will deny this motion unless the tenant raises a compelling argument as to why the eviction procedure was not properly followed.

Possibly, but not automatically. You must file a separate notice that you are keeping the security deposit. If you don’t follow the statutory provisions on this notice exactly, the tenant can sue you for the deposit even after being evicted. This is something we can help you with separately.

After retaking the property, you may make a claim on the security deposit if there is one. You must file a separate notice that you are keeping the security deposit according to the provisions of section 83.49 of the Florida Statutes. If you don’t follow the statutory provisions on this notice exactly, the tenant can sue you for the deposit even after being evicted. This is something your attorney can help you with separately.

You are generally not required by law to hire an attorney for an eviction in Orlando. However, keep in mind that Courts will not give self-represented landlords any slack in following the eviction process. If you mess up, you may have to start from scratch and that may enable the tenant to escape or delay eviction.

Eviction Problems

Regardless of the requirement to deposit rent, a tenant may be able to throw procedural barriers in the landlord’s way to delay the entire process. The biggest one is bankruptcy–the filing of bankruptcy by the tenant acts as a complete halt to the eviction process, and you will have to seek permission from the bankruptcy court to continue the eviction. That could take 2-3 months.

In addition, a tenant’s affirmative defenses could cause additional delay. As an example, the tenant could raise the defense of discrimination, retaliation, or implied warranty of habitability. All of these could delay the entire process, whether or not the court ultimately finds them to be valid. Generally a tenant must still deposit the missing rent to raise these defenses.

Evictions are also dismissed, for example, for the landlords’ failure to serve the right people, failure to include the proper summons, or failure to file the right kind of Complaint. Evictions are not rocket science—but there are lots of small rules to follow, any one of which a Court can use to dismiss your eviction.

There is ultimately no way to guarantee a process where a landlord can protect its interest in rental property. However, proper filing of the three day notice and the eviction summons and complaint is essential. The goal is to minimize the timeline of the eviction process so that you can recover possession of the property back as soon as possible and rent it out to another tenant. If you want help with the process, call us at (407) 444-0404 or contact us here. We can represent you from the beginning 3-day notice through the end of the eviction.

 

Learn More About:

Commercial Eviction: Answers to common questions about commercial evictions in the greater Orlando area.

Residential Eviction: An overview of the Orlando residential eviction process and potential risks.

Lease Review: How to make leases more friendly for landlords.

What to Do Next

We represent landlords through the entire eviction court process, from the initial notice through the final writ of possession.
Contact us to get started through our contact page or by calling our office at (407) 444-0404.
Alper Law
Orlando Eviction
September 4, 2015