Can a Tenant Demand a Jury Trial?

Can a tenant request a jury trial in an eviction action? In short, yes, but there are limitations, three of which are discussed below.


In general, Florida courts recognize that a party has a right to a jury trial on triable issues of fact. An eviction trial is subject to the rules of evidence and either party may request a jury to decide issues of fact. See, Baldwin Sod Farms, Inc. v. Corrigan, 746 So.2d 1198 (4th DCA 1999); Cerrito v. Kovitch, 457 So. 2d 1021 (Fla. 1984); Jacques v. Wellington Crop, 183 So. 22 (Fla. 1938);  State ex rel. Jennings v. Peacock, 171 So. 821 (Fla. 1937); Fla. R. Civ. P., Rule 1.430(a).

Limitation 1: Waiver by Contract

One limitation is when the tenant waives his right to demand a jury trial in a contract with the landlord. See, Vista Centre Venture v. Unlike Anything, Inc., 603 So.2d 576 (Fla. App. 5 Dist., 1992). Where the court finds that the tenant has waived his jury trial right, the court may deny any demand for a jury trial and set all triable issues for a bench trial.

Limitation 2: Waiver by Untimely Demand

Another limitation is where the tenant fails to timely request a jury. C & C Wholesale, Inc. v. Fusco Management Corp., 564 So. 2d 1259 (Fla. 2d DCA 1990). Fla. R. Civ. P., Rule 1.430 states in relevant part,

Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other party a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.

If the tenant fails to demand a jury trial timely, Rule 1.430(d) provides that the party waives his right to a jury trial. The only way around this waiver is if the landlord consented to a jury trial.

Under Summary Procedures, FS 51.011 controls. It states concerning a demand for jury trial:

If a jury trial is authorized by law, any party may demand it in any pleading or by a separate paper served not later than 5 days after the action comes to issue. When a jury is in attendance at the close of pleading or the time of demand for jury trial, the action may be tried immediately; otherwise, the court shall order a special venire to be summoned immediately. If a special venire be summoned, the party demanding the jury shall deposit sufficient money with the clerk to pay the jury fees which shall be taxed as costs if he or she prevails.

Limitation 3: Failure to Post Rent

Another limitation is where the tenant fails to post rent into the court registry. Before a tenant can present any defenses to jury, the tenant must comply with the procedural requirements under Florida Statutes (FS), ch. 83, pt. 2. There are two statutory provisions on point: FS 83.56 and FS 83.60.

FS 83.56(5)(b) states,

Any tenant who wishes to defend against an action by the landlord for possession of the unit for noncompliance of the rental agreement or of relevant statutes must comply with s. 83.60(2). The court may not set a date for mediation or trial unless the provisions of s. 83.60(2) have been met, but must enter a default judgment for removal of the tenant with a writ of possession to issue immediately if the tenant fails to comply with s. 83.60(2).

This means, before a tenant can defend against an eviction based on the allegation that the landlord failed to comply with the landlord’s obligations, either under the lease agreement of relevant statutes, the tenant must comply with FS 83.60(2).

FS 83.60(2) states in relevant part,

In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, including, but not limited to, the defense of a defective 3-day notice, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent that accrues during the pendency of the proceeding, when due… Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon.

In short, if a tenant fails to post the disputed rent into the court registry, either within the 5 day period to answer the summons or as determined by the court upon the tenant’s filing a legally-sufficient motion to determine rent, the tenant waives his defenses (other than full payment of rent) and the landlord is entitled to immediate default judgment to remove the tenant.

So, assuming the tenant has not waived his jury trial right, he cannot bring his defenses to a jury until and unless he has complied with FS 83.56(5)(b) and 83.60(2).