The vast majority of eviction actions are based on non-payment of rent, but many times, the landlord has other grounds for terminating the tenancy. The question is, does it matter what the basis of the eviction is? The answer is yes.
Some evictions inherently have more issues of fact or law that the tenant can raise as a way of defending against the eviction. This is especially the case if the tenant has hired an experienced landlord-tenant attorney. For that reason, landlords should approach evictions with an understanding of which evictions are more likely to be successful, less costly, and expeditious.
The following lists evictions from “easiest” to “hardest.”
- Eviction based on terminating month-to-month tenancy
- Eviction based on the lease expiring naturally
- Evictions based on non-payment of rent
- Eviction based on non-payment of rent (where tenant qualifies for protection under COVID relief)
- Eviction based on failure to cure a clear violation of the lease or F.S. 83.52
- Eviction based on non-curable violation of the lease or F.S. 83.52
What makes evictions “easier” or “harder”?
Eviction based on terminating month-to-month tenancy
Month-to-month tenancies are at-will, and terminating a month-to-month tenancy is simple. F.S 83.57(3) requires that the landlord provide the tenant with at least 15 days written notice prior to the end of the monthly period to terminate wherein the notice terminates the tenancy by the date specified in the notice. The most common defenses to month-to-month termination are retaliation and unlawful discrimination. If you are a professional landlord who treats all tenants with decency and respect, these defenses should never be viable. Additionally, if the tenant owes back rent, the landlord can allege the back rent owed in the complaint, and the tenant should be required to post that back rent into the court registry pursuant to F.S. 83.60 to raise any such defenses, which helps the landlord to ensure a successful eviction (this same tactic applies to all evictions).
Eviction based on the lease expiring naturally
Similar to terminating a month-to-month tenancy, an eviction based on the lease term naturally expiring is simple, but there are some pitfalls to avoid. First, your lease agreement should never automatically renew on a new term. If your lease has this provision, you will run into problems in your eviction when the tenant alleges that the lease term has been renewed and in fact, may prevail if your lease provides for auto-renewal without any conditions. Next, make sure your lease agreement provides that there is no automatic creation of a month-to-month tenancy and that any such creation or extension of the lease term must be in writing and signed by the landlord and tenant. Next, if your lease agreement requires that you deliver notice to the tenant of non-renewal, be sure to deliver that notice timely so that the lease is not extended. Next, avoid communicating with the tenant that gives the tenant the impression or belief that you agree to their tenancy after the lease term has expired. If you set up your lease agreement properly and implement good management practices to avoid these issues, succeeding in an eviction based on the natural termination of the lease should be simple.
Eviction based on non-payment of rent
Evictions based on non-payment are more complex than one may think. The reason is that these evictions rest on the adequacy of the 3-day notice to pay or vacate. There are a variety of reasons why a court may deem the notice legally defective, and as soon as the court makes that finding, the eviction will be dismissed. If the tenancy is month-to-month, you should consider delivering a notice of termination in addition to the 3-day notice. You can wait until the expiration of the month-to-month termination notice to file a 2-count eviction based on both non-payment of rent and termination of month-to-month, but even if you do not, having terminated the month-to-month tenancy will provide you with leverage in the non-payment eviction case if the tenant were to raise defenses. For example, when the tenant sees that the month-to-month tenancy is lawfully terminated, he will have less incentive to fight the non-payment eviction and use his efforts and money to move out and find a new home.
Eviction based on non-payment of rent (where the property is a “covered property” under the CARES ACT)
Evictions that involve a “covered property” are similar to the normal non-payment of rent case, but the CARES ACT throws a wrench in the gears because of the requirement that the landlord give the tenant at least 30 days’ notice to vacate prior to filing the eviction. There is debate among lawyers as to the application of the statute, and as such, the eviction action could be subject to defenses under the CARES ACT.
Eviction based on failure to cure a violation of the lease or F.S. 83.52
Evictions based on a tenant violating the lease other than non-payment of rent necessarily involve more factual findings by the court or jury and sometimes will require that you bring witnesses at trial to prove the violation. This alone will subject these evictions to more potential defenses of fact and determinations by the fact-finder. While it is important to enforce the lease agreement against tenants who are not complying with the agreement, if there are other bases on which to file the eviction (e.g. non-payment of rent, termination of month-to-month), you will want to allege those causes of action in the eviction in addition to a violation of the lease agreement.
Eviction based on a non-curable violation of the lease or F.S. 83.52
Evictions based on a tenant committing a non-curable violation are extreme in that the tenant’s conduct must be extreme enough to warrant termination of the tenancy without being given an opportunity to cure. In some cases, it will require witnesses to appear at trial, including police officers, social workers, or vendors. Also, there could be “gray” areas of the tenant’s violation. For example, if you terminate the lease based on how the tenant is caring for the property, the fact-finder could find that the tenant should have been given an opportunity to cure the violation and thus deny the eviction.
Other Limitations To Be Aware Of
There are also other limitations landlords and property managers must be familiar with to avoid the dismissal of an eviction action. For example, in Florida, licensed real estate agents or brokers are not allowed to file an eviction complaint on behalf of the owner except for an eviction based on non-payment of rent that is non-contested and for a property that the property manager is actively managing. If the eviction is anything other than that, an attorney must file and handle the eviction. Also, if the owner of the property is a company or other fictitious entity, many courts strictly enforce the rule that requires evictions to be handled by an attorney on behalf of the company.
If you are a landlord, you need a landlord-tenant attorney to handle evictions for you, or at a minimum, have an attorney on retainer to advise you on how to create a successful action for eviction. As the Florida Bar published, “Because these [eviction] proceedings are so technical, it is wise to have them handled by an attorney. Even if you decide to file the claim yourself in county court, you should have an attorney review the notices you have given and the ways you have served them to make sure you have properly observed all of the necessary requirements of the timetable. A single mistake can result in serious delay in your regaining possession of the property.” The Florida Bar, “Consumer Pamphlet: Rights and Duties of Tenants and Landlords”, https://www.floridabar.org/public/consumer/tip014/ (last visited December 8, 2022).