Retaking Possession of Rental Property

FS 83.59 provides that the landlord has a right of possession upon the Tenant’s (1) surrender, (2) abandonment or (3) death.

Surrender

Evidence must prove that the Tenant has surrendered, which means to intentionally relinquish the tenant’s rights to possession, the property to the landlord. Evidence is based on facts and circumstances. Such facts may be that the tenant has verbally or in writing informed the landlord that he is vacating the property on a certain date. This may be coupled with facts revealing that the tenant has moved his property from the premises and turning in the house keys. These facts would seem to clearly prove surrender, and in this case, the landlord can retake possession.

However, even if the tenant says he is vacating and signs an agreement to do so, landlord may have to file an eviction action if the facts do not support surrender. Contradictory facts could include, much furniture left in the premises, utilities are still on, neighbors saw tenant there recently or children’s toys left in the yard. These facts undermine surrender, so the landlord cannot retake possession unless he obtains a writ of possession from the court.

Sometimes a tenant will sign an agreement to surrender. If the tenant does not vacate by the surrender date, the landlord may have a right to possession, but he would have to sue for eviction based upon the surrender agreement.

Abandonment

This is similar to surrender, except that you have not been able to communicate with the tenant concerning his intent to surrender. Taking possession based on abandonment can be more risky because of the tenant’s not expressing a clear intent.

FS 83.59(3)(c) states,

In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence.

Like the issue of surrender, the landlord must have clear and convincing facts that the tenant has abandoned the property before retaking for abandonment. In any case, the landlord cannot retake possession for abandonment where the rent is current and tenant notified landlord of his absence.

Death

FS 83.59(3)(d) states that the landlord can file a complaint for eviction when “the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been notified in writing of the existence of a probate estate or of the name and address of a personal representative.”

Based on the plan language of this statute, a right for eviction exists after a tenant has died on four conditions:

  1. personal property remains on the premises;
  2. rent is unpaid;
  3. at least 60 days expired since date of death; and
  4. landlord has not received notification of a probate estate for the tenant.

This author has not found that a Florida court has ruled on any specific issues arising out of this statute as of the date of this post. If the last remaining tenant has died and rent is unpaid, waiting 60 days before filing an eviction can be devastating. Is there an alternative? Perhaps, but the landlord needs to consult with his attorney to get specific legal advice.

Question 2: After an eviction is filed, when can I take possession?
Answer 2:

If the sheriff has executed a writ of possession, the landlord can retake possession.

If the writ has not been executed, the landlord should refrain from retaking possession. In most cases when an eviction has been filed, allowing the writ of possession to be executed before taking possession is the best option. If the landlord retakes possession before a writ of possession is executed, the landlord will have waived the formal eviction process and the court will be prevented from issuing a writ. The landlord would have to refile and re-serve the eviction action if the tenant raises some claim or defense to landlord’s retaking possession.

However, there is a clear exception to this general rule. If the tenant signs an agreement to settle the eviction action, the landlord can file that agreement with the court and a motion to stay the eviction proceedings as long as the tenant complies with the settlement agreement, but if the tenant does not, the court can proceed with issuing a writ of possession. This will be protect the owner on many fronts and gives the landlord and tenant flexibility to resolve the issues themselves, outside of court intervention.