What is Unlawful Detainer and How is it Different From an Eviction?
After allowing a tenant to stay at your property, most property owners who then want to remove the tenant believe that they must file an eviction in order to get them out. However, that is not always the case. Florida allows a property owner to remove a tenant by means of unlawful detainer for certain situations. Below are some of the different scenarios where unlawful detainer would be sufficient instead of an eviction.
To start, what is the difference between an eviction and unlawful detainer? In an eviction the landlord is trying to remove the tenant for either possession of the property or both possession of the property and for damages, such as overdue rent, damages, attorneys’ fees, etc. In an eviction there is a lease between the landlord and the tenant which defines the tenancy. Unlike an eviction, unlawful detainer is commenced when a property owner wants to remove a person who has no legal or equitable title nor any interest or right to the property.
For example, Paul the property owner decided to allow Gina his girlfriend to move into his property shortly after they started dating. Paul did not require Gina to pay anything while living at the property. After a few months, Paul found out Gina was cheating on him with Paul’s friend, Frank. After this shocking news, Paul told Gina to take her things and leave and to never return. Gina did not cooperate and refused to leave. In this scenario, Paul would need to file for unlawful detainer against Gina in order to remove her from the property. Since Gina was never required to pay anything, she had no legal or equitable title nor any interest or right to the property upon Paul kicking her out. However, if Gina was paying rent to Paul or contributing to the mortgage payment each month, unlawful detainer may not be appropriate.
Unlawful detainer also apply to family members, friends, or anyone who the property owner allows to stay at the property at some point but now wants the person to vacate the property. For example, Paul heard his friend Larry was laid off. With nowhere else to go, Larry went to Paul and Paul let Larry stay at his house for a short time until Larry got back on his feet. After three months, it was clear to Paul that Larry was taking advantage of him and Larry never intended to look for a job, and Paul wants Larry gone. The appropriate action for Paul to take would be to file for unlawful detainer against Larry to remove him from the property.
Although individuals usually do not have any defenses in an unlawful detainer action, there are some rare defenses an individual may use to have the unlawful detainer dismissed. Some of these defenses include that the individual paid rent or they paid the mortgage. For example, Paul lets Frank stay at his house as long as Frank pays $500 a month. If Frank makes his monthly payment each month, then Paul may not be able to remove Frank via an unlawful detainer action because Frank is making the monthly payments to stay at Paul’s house. If a property owner does file an unlawful detainer action while the occupant is paying the property owner, then the Court will most likely dismiss the action.
Another difference between an eviction and an unlawful detainer is in an eviction, the landlord is required to provide the proper notice to the tenant whereas in an unlawful detainer the landlord is not required to provide notice to the tenant. The length of the tenancy will determine on how much notice a landlord must give to a tenant in order to start the eviction process. With unlawful detainer, a landlord simply needs to file the complaint to get the process started. Although the process for an eviction and unlawful detainer are similar, the general process for an unlawful detainer is:
1. The property owner files the complaint and summons in County Court.
2. The person the property owner wants to kick out has to respond to the complaint.
3. If the person does not respond to the property owner’s complaint, a default will be entered.
4. A judgment is issued if the Court rules in favor of the property owner.
5. The clerk will issue the Writ of Possession to be executed by the sheriff which removes the person from the property.
Since the property owner is not required to provide notice to the person he is trying to remove, then an unlawful detainer action would generally be quicker than an eviction since there are less steps to take.
Overall, it is important to know the differences between an eviction and unlawful detainer because depending on the situation one will be successful and the other wont and as a tenant your defenses may be different. Retaining an attorney will benefit a property owner by helping them save time and money to remove an individual from their property, whether it is an eviction or an unlawful detainer. Click here to contact an attorney.