Untimely Tenant Answer to Eviction Now Permissible

In 2008, the Florida Supreme Court issued a decision that affect the way eviction cases are handled in county court, which of course affects your business.  In Pro-Art Dental Lab, Inc v. V-Stategic Group, LLC, 986 So. 2d 1244, 1245, 2008 Fla. LEXIS 1236, *1, 33 Fla. L. Weekly S 503 (Fla. 2008), the Florida Supreme Court issued this new ruling:

A COURT MAY NOT ENTER A DEFAULT ORDER IN FAVOR OF THE LANDLORD WHERE THE TENANT FILES ANY DEFENSIVE RESPONSE OUTSIDE OF THE 5 DAY PERIOD TO ANSWER WHEN SUCH RESPONSE IS FILED ANY TIME BEFORE THE TRIAL COURT ENTERS A DEFAULT ORDER FOR POSSESSION.

The end result of this decision was that the FS 51.011—the Summary Procedures—did not “provide for instantaneous defaults” and that “the entry of default is improper when a [tenant] has filed a responsive pleading or otherwise defended before an entry of default.”

Before this decision, where an eviction was filed and the tenant filed his response/defense outside of the 5 day summary procedure period, the Court could disregard it and not consider defenses raised because it was filed outside the prescribed 5 day period.  Now, the tenant can participate in “pleading practice.”

SO, WHAT DOES THIS MEAN FOR THE PROPERTY MANAGER?

It means that the Summary Procedures are not as beneficial to landlords before this decision. A tenant can file a response to  the eviction, and you are not entitled to a default order of possession, even if the response is outside the 5 day period required under the Summary Procedures.  More cases can go to hearings—meaning the property owner will either have to represent him in court or must have an attorney appear on his or her behalf.  The eviction process itself can be more easily delayed, which results in lost rent, inability to inspect premises for damages, not being able to prepare the house to be re-rented. In short, property managers and owners are at greater risk in eviction proceedings.

To understand more about the Pro-Art Dental Lab, Inc v. V-Stategic Group, LLC decision, consider the background of landlord-tenant law:

Landlord-tenant cases proceed under FS 83. Ordinarily, when a civil lawsuit is filed, a defendant has 20 days to file an answer under FRCP 1.140(a)(1) (note: rules of procedure are created by the Florida Supreme Court—not the legislators).  In those cases where the 20-day-timing to file an answer was applicable (under FRCP 1.140(a) and 1.500), a “party may plead or otherwise defend at any time before default is entered.”

The Florida legislators are able to create different procedures via passing Florida Statutes.  FS 51.011–the Summary Procedures–is such a creation.  The Summary Procedures apply only as allowed by statute, and eviction actions are so allowed under FS 83.59(2).  Thus, when we file evictions, the rules of procedure are governed by the Summary Procedures, FS 51.011, wherein tenant must file all defenses within 5 days after service of process.

FS 51.011 states as follows:

Summary procedure.–The procedure in this section applies only to those actions specified by statute or rule. Rules of procedure apply to this section except when this section or the statute or rule prescribing this section provides a different procedure. If there is a difference between the time period prescribed in a rule and in this section, this section governs. (1)  PLEADINGS.–Plaintiff’s initial pleading shall contain the matters required by the statute or rule prescribing this section or, if none is so required, shall state a cause of action. All defenses of law or fact shall be contained in defendant’s answer which shall be filed within 5 days after service of process. If the answer incorporates a counterclaim, plaintiff shall include all defenses of law or fact in his or her answer to the counterclaim and shall serve it within 5 days after service of the counterclaim. No other pleadings are permitted. All defensive motions, including motions to quash, shall be heard by the court prior to trial.

The issue that was in conflict in Pro-Art Dental Lab, Inc., which gave rise to this decision and which affects the property management business greatly:

whether or not the landlord is entitled to an immediate default order of possession where the tenant files an untimely response before the Court has entered a default.

There were 2 district courts of appeal cases that entered conflicting opinions.  One court said, “yes”; the other court said, “no.”  Thus, the Florida Supreme Court stepped in to clear up the issue. The result did not favor landlords.

Remember, many times, filing evictions are not a “simple-little thing” and are better left in the hands of an attorney who practices landlord-tenant law. Time is precious, and tenants can be savvy.  Evictions cost a lot of money and can take precious time if not handled properly.

Do it right and have your attorney be on your side all the time. It will improve your business, reduce wasting time, make property owners pleased and result in greater profits.