Evictions: What Every Tenant Should Know
Authored By: Community Legal Services of Mid-Florida, Inc.
- Read this in:
- Spanish / Español
Florida law is strict about eviction. A landlord must follow all the steps of the law and go to court to properly evict a tenant. Before eviction, the following must take place:
- The tenant gets a written notice to vacate;
- The tenant is served a summons and complaint by a sheriff or authorized process server
- The tenant has an opportunity to respond (in some cases, this may include a court hearing);
- A Writ of Possession is posted.
If your landlord is trying to evict you without going through the procedures above, s/he is breaking the law.
To force a tenant to move, landlords sometimes shut off water, electricity or gas, or change the locks on the door. This is illegal. If your landlord tries to make you move by shutting off your utilities, changing or removing the locks on your home, removing doors or windows, or taking your property from your home you should call the police and a lawyer.
Florida law says that a landlord who tries these prohibited practices may have to pay the tenant for up to three months’ rent (or more if your landlord’s behavior has cost you more than three months’ rent). You will have to take the landlord to court to get this (known as "damages") but if you win the court can order your landlord to pay your attorney’s fees.
Steps in a Legal Eviction
Step 1 - Written Notice +
- Nonpayment of Rent. To evict a tenant for not paying their rent, the landlord must first give the tenant a written notice stating that the tenant has 3 days (not counting the day the notice is given, weekends, or holidays) to pay the rent or vacate (leave). If the tenant offers the full rent within 3 days, the landlord must take it. But, the landlord does not have to take the money if it is less than the total amount that is owed.
- Eviction for Cause. The landlord may evict a tenant for violations of a written lease agreement such as excessive noise, property damage, failure to keep the premises clean and sanitary, parking in unauthorized spots, or allowing unauthorized pets or guests. However, the landlord must first give the tenant a 7-day written notice listing the violation and warning the tenant of the intent to end the lease. The tenant must be allowed to fix or “cure” the problem one time. If they do so (by getting rid of the animal, no longer parking in the wrong spot, etc.), then nothing further should happen. If the same violation by the tenant happens again within 12 months, the tenant can then be given a 7-day notice with no chance to fix or “cure” the problem a second time. Similarly, if the violation of the lease is of a more serious nature the tenant can be given a notice of termination instructing them to leave the property in 7 days with no chance to fix the problem. Examples of violations that are “serious” and the tenant does not get a chance to fix the problem are destruction, damage, or misuse of the property.
- Termination of Rental Agreement. If the lease is not for a specific length of time or if there is no written lease, a landlord or tenant may end the lease without having any reason by giving proper notice. If rent is paid monthly, the notice must be given at least 15 days before rent is due. If rent is paid weekly, the notice must be given at least 7 days before rent is due. Termination notices must be in writing.
Does a Notice of Lease Termination Mean You Have to Move Right Away? No. You can stay in your home until an eviction case is filed against you and a judge decides your case. However, if you do not think that you are likely to win in court you may wish to move before a case is filed as it will be a public record and can be held against you by future landlords when considering whether to rent to you. Also, if you lose an eviction case the judge can order that you pay your landlord’s costs of taking you to court, including attorney’s fees.
Step 2 - Summons and Complaint +
If the tenant does not move out after receiving a Notice to Vacate or Notice of Lease Termination (or does not fix the problem in a 7-Day Notice and Opportunity to Cure, or pay rent when given a 3-Day Notice), the landlord may then begin a lawsuit by paying a fee and filing papers called a “complaint” with the Clerk of the Court. The tenant will get a copy of the summons and complaint for eviction (this is called “service of process”). These papers may be left on the tenant’s door and another copy sent in the mail.
Step 3 - Response by tenant +
- The tenant has 5 days to answer the complaint. The days are counted based on the date of service by the sheriff or the date of posting on the door, not by the mailing from the clerk. The 5 days begins on the day after the tenant was served and does not include weekends and legal holidays.
- A written answer with proper defenses to the eviction (the reasons the tenant should not be evicted) must be filed with the Clerk of Court and a copy must be mailed to the landlord within the same 5 days. The tenant must also deposit with the court the amount of rent the complaint says the tenant owes (unless the defense is that the tenant has paid the landlord).
- If the tenant does not answer, or if they answer but do not deposit rent, the landlord can get an immediate default judgment, which means the landlord wins and the tenant will be evicted.
- If the tenant disagrees with the amount of rent the landlord claims is owed, s/he must file a written Motion to Determine the Amount of Rent to Be Paid into the Registry along with the answer. It is a good idea to deposit with the court the amount of rent that you admit is owed in your motion at the time that you file it. The motion should state the reason why a different amount should be deposited and ask the judge to decide the correct amount. Any proof (such as receipts), must be attached to the motion. At that point, the judge may schedule a hearing to decide the correct amount. A tenant must deposit their monthly rent with the court as it comes due during the eviction proceeding.
- If you are served with a complaint, you should immediately contact a lawyer. You should not wait until the fourth or fifth day since that would not allow adequate time to prepare a defense.
The law allows a property manager to file a complaint, but once a tenant files an answer the eviction proceeding has to stop until either the actual property owner or their attorney takes over in court.
See Filing Your Answer to a Complaint, for more information about answers.
Step 4 - The Court Hearing +
- If the tenant files an answer and deposits rent with the court or files a motion to determine rent and no default judgment is issued, either the tenant or the landlord may set a date for a hearing before the judge. If neither party schedules a hearing, the judge will.
- The parties will be notified of the time and place of the hearing, and they will get to present their cases. Typically, this is the only court date that you will have so you must bring anything you want the court to consider with you to this hearing, including things like your lease, photographs, or receipts. If you want the judge to consider what another person has to say you must have them come with you to the hearing. Remember to dress as tidily and conservatively as you can, and always call the judge “sir,” “ma’am,” or “your honor.”
If the landlord wins, s/he will get a Judgment for Possession. If the tenant does not go to the hearing, the landlord wins automatically. At the end of the case the judge can also order that the person who loses pay the person who wins’ court costs and attorney’s fees.
Step 5 - Eviction +
- If the landlord wins (either by default or after a hearing) and gets a judgment for possession, the court will issue a final 24-hour notice called a "writ of possession" to the sheriff. The sheriff then posts this notice on the tenant's rental home. The tenant has 24 hours to move out, after which the sheriff or landlord may forcibly evict the tenant and padlock the door, with or without the tenant's belongings inside. The landlord may impose a lien on the belongings up to the amount of rent due.