I’ve written about the recent amendment to F.S. ch. 82 (Unlawful Detainer) here. The changes to the statute are very helpful to property owners who have unauthorized non-tenant occupants on their property, by enabling the owner to sign an affidavit with the sheriff’s office for expeditious removal of the “squatters” without having to file legal action, but there is a “trap” that owners of hotels and vacation rental properties should be aware of.
Navigating the Transient Guest Trap for Property Owners
There is a “trap” out there that can cause problems for property owners who have what should have been a “transient guest”, whether in a hotel room or vacation rental, but later turns out to apparently be a “nontransient occupant”. When it appears to the sheriff deputy that the occupant is nontransient and not a transient guest, the deputy will not remove the occupant under the expeditious process provided by the amended Unlawful Detainer statute.
The Unlawful Detainer statute, which as of July 1, 2024 permits a property owner to sign an affidavit with the sheriff’s office to remove a “squatter”, is designed to remove persons from a property when the occupant is not a tenant and does not have permission from the property to occupy the premises. The common scenario that property owners may see in this regard many times involves a friend taking occupancy of their property with permission but who later refuses to leave.
But there is another scenario involving owners of a hotel or vacation rental property. In those situations, when the owner rents his unit to a transient guest, but the guest fails to vacate the premises. The problem occurs when the transient guest does not fall within the legal definition of “transient” but over time looks more like a “nontransient occupant”.
Managing Transient Guest Issues Under Florida’s Amended Statutes
When the sheriff deputy believes that the occupant is a “nontransient occupant”, the deputy will not likely remove a nontransient occupant, as compared to a transient guest. So, let’s look at the definitions and how they may apply in a situation when the owner wants them to vacate the property, but they refuse.
F.S. 82.035(1) provides the property with a remedy against the unlawful detention of a transient occupant of residential property. It provides the definition of “transient occupant” as follows:
“As used in this section, the term “transient occupant” means a person whose residency in real property intended for residential use has occurred for a brief length of time, is not pursuant to a lease, and whose occupancy was intended as transient in nature.”
Notice that the requirement that the occupant’s stay be a “brief length of time”.
Next, subsection F.S. 82.035(1)(a) provides a list of factors that the sheriff’s office (and courts) will look at to determine whether an occupant is a “transient occupant”, stating:
“Factors that establish that a person is a transient occupant include, but are not limited to:
1. The person does not have an ownership interest, financial interest, or leasehold interest in the property entitling him or her to occupancy of the property.
2. The person does not have any property utility subscriptions.
3. The person cannot produce documentation, correspondence, or identification cards sent or issued by a government agency, including, but not limited to, the Department of Highway Safety and Motor Vehicles or the supervisor of elections, which show that the person used the property address as an address of record with the agency within the previous 12 months.
4. The person pays minimal or no rent for his or her stay at the property.
5. The person does not have a designated space of his or her own, such as a room, at the property.
6. The person has minimal, if any, personal belongings at the property.
7. The person has an apparent permanent residence elsewhere.”
Using F.S. 509.013(15) to Determine Occupant Status
Another Florida Statute provides additional guidance of what is considered a “nontransient” occupant. F.S. 509.013(15) states,
“‘Nontransient occupancy’ means occupancy when it is the intention of the parties that the occupancy will not be temporary. There is a rebuttable presumption that, when the dwelling unit occupied is the sole residence of the guest, the occupancy is nontransient.”
Note that this statute does emphasize the “intention of the parties” regarding whether the occupant is “transient” or “nontransient”. To help the property owners in this regard, it is very important that the property owner have the occupant sign an agreement that occupancy is temporary and that the property is not intended to be the occupant’s sole residence.
When the occupant is “transient”, F.S. 82.035(2) provides that the property owner can have the occupant removed by the sheriff’s office, as follows:
“A transient occupant unlawfully detains a residential property if the transient occupant remains in occupancy of the residential property after the party entitled to possession of the property has directed the transient occupant to leave. A transient occupancy terminates when a transient occupant begins to reside elsewhere, surrenders the key to the dwelling, or leaves the dwelling when directed by a law enforcement officer in receipt of an affidavit under subsection (3), the party entitled to possession, or a court. A transient occupancy is not extended by the presence of personal belongings of a former transient occupant.”
Transient or Nontransient?
So, the issue that hotel and vacation rental property owners may face is, is the occupant “transient” or “nontransient”. If the occupant is transient, the property owner can utilize the expeditious removal process with the sheriff’s office without having to file legal action, but if the occupant is believed (by the sheriff’s deputy or the court) to be “nontransient”, the property owner may not be able to utilize that summary process with the sheriff’s office and will have to file legal action to remove the occupant, whether under F.S. ch. 82 or 83.
The factor that can create the “nontransient occupant” trap regards the occupant’s “sole residence”; meaning, if the occupant intends that the hotel room or vacation rental property be his “sole residence”, and he treats the unit in that manner, the property owner may have difficulty to otherwise rebut that “sole residence” presumption when the occupant shows the sheriff deputy that he has been living there continually for an extended period of time (the longer the residency, the more difficult it may be for the owner to rebut the occupant’s claim of “sole residence”) and has treated the property as his sole residence. This is especially true if the property owner does not have a written agreement with the occupant stating that the stay is temporary, and the property is not the occupant’s sole residence.
Conclusion
While the property owner may not be able to always prevent an appearance that the occupant’s stay is not temporary and is not the occupant’s sole residence (because there are statutory definitions and factors that apply to this question), there is one thing that the property owner can do that should help in a big way: get the agreement with the occupant in writing! And in that agreement, the occupant should agree to the statements that the occupancy is temporary, that the property is not the occupant’s sole residence, and that the occupant is a transient guest.
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