The following is an overview of the eviction process in Florida.
I. LEASE TERMINATION
Before an eviction can be filed, the tenant must be terminated based on a terminable event, such as, the tenant’s failure to pay rent, cure a lease violation, committing a non-curable violation, or failure to vacate when the lease is terminated. If the tenant is in default of the tenancy obligations, the landlord must deliver proper notice to the tenant as required by F.S. ch. 83, pt. 2.
The lease may expire on its own terms or upon termination of the lease agreement pursuant to its terms and conditions. For example, the landlord or tenant may decide not to renew the tenancy and may deliver a notice of non-renewal to the other party. Another example is when the tenancy is month-to-month (at-will) and one party delivers notice of terminating the tenancy pursuant to F.S. 83.57.
Once the lease is terminated and the tenancy fails to vacate the premises, the landlord has an action for eviction.
II. EVICTION RIPE FOR FILING
Once the eviction is ripe for filing, the landlord may file the eviction. An eviction is ripe once the landlord has satisfied any conditions precedent required by law prior to filing the eviction. For example, if the tenant fails to pay rent within the Notice to Pay or Vacate Period, the eviction is ripe for filing (unless the lease agreement requires the landlord to comply with some other condition before being able to terminate the tenancy and file an eviction). Another example is if the landlord has delivered a proper notice to terminate a month-to-month tenancy and the tenant failed to timely vacate the premises, the landlord may then file an eviction.
III. FILING EVICTION
The eviction must be filed in the county court where the property is located, and the complaint must state a sufficient legal cause of action to remove the tenant from the premises.
The clerk of course has to “accept” the filing, and once accepted, issues a summons to the landlord (or landlord’s attorney) to have the tenant served with the lawsuit (summons and complaint). Note: the timing of “accepting” the filing and issuing the summons varies, depending on the county and their caseload. It could be done the same day or 2-3 days later.
IV. SERVICE OF PROCESS
Once the clerk of court issues the summons to the landlord, the landlord will have either a private licensed service processor or the county sheriff’s office attempt service on the tenant. The tenant can be served in person or by posting (certain civil procedures must be followed for posting).
For purposes of calculating the time deadline for the tenant to file an answer (5 days, not including weekends or legal holidays), day number one starts the day after personal service is made.
If the server posts the summons/complaint on the premises, the landlord must provide the clerk of court with a copy of the summons and complaint and pre-stamped and -addressed envelopes with the tenant’s address. The day that the clerk mails the summons/complaint is the day that the tenant is deemed served with process. Thus, day number one of the Answer period starts the day after the clerk mails the summons/complaint.
In personal-service situations, process is normally effected 1 – 3 days after the server receives the summons to serve.
Once the server serves the tenant, the server will sign a “return of service” document, which must be filed with the court as proof of service. The server will indicate how service made and on whom (if it was served in person), or if it was posted on the premises
V. ANSWER and RESPONSE
Once the tenant is properly served, the tenant has 5 days to file an answer or response, excluding legal holidays and weekends. If the tenant fails to file an answer, the landlord must move the clerk of court and court for a default and final judgment.
If the tenant files an answer, courts handle this differently, depending on the judge. Some judges will automatically set the matter for a Rent Determination Hearing. Other courts will wait for the plaintiff attorney to file a responsive pleading. Other courts will automatically set it for a Final Hearing. This is a critical stage of the process, because if the landlord does not handle the tenant’s answer properly and file appropriate motions, the court may give the tenant a defense opportunity even though Florida Statutes do not permit it.
The timing in which the court does one of these things varies, depending on the county and judge.
VI. RENT DETERMINATION HEARING
If the court sets the matter for a rent determination hearing, the hearing is normally set between 5 and 30 days after the tenant files his or her response. At the hearing, the court normally enters an order for the tenant to post the disputed rent into the court registry by a specific date and time in order for the tenant to have the right to contest the matter in a final hearing. This is also a critical stage of the eviction process, because if the court does not follow the statute regarding a tenant’s requirement to post rent into the court registry, the landlord’s rights may not be enforced and the tenant may be permitted to raise defenses that should not be permitted if the tenant fails to post the required back rent and accrued rent during the pendency of the action.
VII. RESPONSIVE PLEADINGS
If the court receives a responsive pleading from the landlord, the court will put the motion on his or her calendar to review for order, and may at times require a hearing on the motion. But most times, the court can enter an order on the motion in chambers, without need for a hearing. Courts across Florida handle this stage of the process differently, so it is very important for the landlord to know the law regarding how to handle a tenant answer or response.
VIII. FINAL HEARING
If the court sets the matter for a final hearing as soon as the court receives the tenant’s answer without regard to whether the tenant posted rent or filed a legally-sufficient motion to determine rent, this normally necessitates that the landlord file the necessary motion to object and prevent the hearing based on Florida law. For example, if the tenant did not file a legally-sufficient answer, didn’t post the back rent into the court registry timely, didn’t file a legally-sufficient motion to determine rent, or didn’t post the undisputed back rent or rent that accrued during the pendency of the case, the landlord should file the necessary motion.
It the tenant posts the back rent (and accrued rent) as alleged in the complaint or as determined by the court into the court registry, a Final Hearing will be set. At the Final Hearing, the parties and the witnesses must appear and present their case to the court. This is just like a trial and is subject to all of the Rules of Procedure and Evidence. Witnesses must appear and cannot normally appear by phone or Zoom, unless approved by the court. Signed statements by a witness are insufficient to prove an eviction. The Final Hearing date is set by the court, and it will depend on the court’s calendar.
IV. DISPOSITION
If the tenant does not file an answer, does not post the required rent into the court registry, or files a legally-insufficient answer, and the landlord obtains an order of Final Judgment against the tenant accordingly, the Court will enter a final judgment, ordering that the tenant be removed by writ of possession. How soon the court orders Final Judgment depends on the court and county.
If a Final Hearing is held, disposition will not be entered until the hearing is closed and the court renders an order based on the evidence presented at trial.
V. WRIT OF POSSESSION
Once the court enters a Final Judgment in favor of the landlord, the clerk of court must issue a writ of possession to the sheriff to remove the tenant. This process could take a day or more, depending on the clerk of court.
Once the sheriff’s office receives the writ of possession, they assign the writ to be served by a deputy. That deputy will serve the writ and notify the tenant that he will execute the writ (normally) 24 hours after the writ is posted on the door. If the tenant is still in possession of the premises at that time, the deputy will remove the tenant. If there is property remaining in the premises, the landlord may remove it according to Florida law and the lease agreement.
Many times, deputies require the landlord to have a locksmith present at the time that the deputy turns over possession to the landlord.
VI. TIME
Each county (and the various government entities) process evictions differently and timing of process varies. Non-contested evictions normally take about 3-5 weeks to complete, from the filing of the Eviction Complaint to the execution of the writ of possession.
Contested cases may take longer, and if the tenant is represented by an attorney, legal issues may arise that could delay a Final Judgment, but unrepresented tenants can also delay the process by filing either sham pleadings or pleadings that state a basis for relief under color of facts and law.