The unlawful detainer process can be beneficial if you are a landlord, or property owner in the state of Florida, with a tenant overstaying their welcome. In short, an unlawful detainer is "a summary proceeding to determine the right to possession of the real property." By going through this process, you can get legal proof that you should be in possession of the property and begin the eviction process. This article will explain how that process works.
What is an Unlawful Detainer?
The unlawful detainer legal procedure in Florida is one of the more complex and rule-driven lawsuits you can file. It falls under the umbrellas of real estate and landlord-tenant law but it is different than an eviction. An unlawful detainer is a special court process a landlord takes before eviction. An eviction is a process where the landlord actually removes the tenant's rights to remain on the property. In short, you most likely need to go through the unlawful detainer process prior to evicting your tenant.
Landlords are not legally allowed in Florida to go about "self-help" evictions. These can be described as when the landlord makes the rental property unliveable or inaccessible or intimidates the other party into vacating the property. This is where the Unlawful detainer process becomes very helpful for Florida landlords. It is useful because with an unlawful detainer in your possession, you can compel law enforcement to get involved with the eviction process.
How Do you Obtain an Unlawful Detainer?
Step 1: Written Notice and Court Filing
A landlord must provide the tenant with a written notice stating the reason for eviction before they can file an unlawful detainer at a local court. The state of Florida's website provides a basic letter you can use. You will be the Plaintiff in this case and the person or persons you want removed from your home is/are the Defendant(s). It is up to you to decide how many days notice you want to give the persons you are trying to remove to leave the home. Three days is common.
Dispute can help you generate one of these letters for you in 5 minutes from your phone or computer.
Step 2: Deliver the Letter
Next, you are asked to deliver the letter to the defendant(s) after making a copy for your records. If you are unable to hand deliver the letter, post the letter or leave the letter somewhere that the defendant(s) will find it (some common examples include: their door, bed, or car window shield).
Step 3: Complete the Forms
Complete the "Unlawful Detainer Complaint" and the "Unlawful Detainer Summons" forms, and, prepare a check for the court's fees. Sign and notarize the documents as necessary.
Remember, on this paperwork you are the Plaintiff, and the person or persons you want to be removed from your property are the Defendants. You need to take the document down to your local court. There when you file the document you will be given a Case Number.
Step 4: Make Copies
Make the necessary number of copies of the signed Complaint and Summons (1 copy for you and 2 copies to be delivered to each Defendant).
Step 5: Filing
Take the original Complaint and Summons to the Clerk of Court's office. The Clerk will stamp the Summons (one needed for each Defendant) and give you the summons to take to the Sheriff's office.
Dispute can handle filing the paperwork on your behalf as well and you can do it from your phone or computer in 5 minutes.
Step 6: Notify the Defendant(s)
Next, you are required to notify the defendant. The Summons document must be served, either personally or posted by the Sheriff or a Certified Process Server.
To do so, take the Summons and copy of the Complaint to the Sheriff's office. There you'll pay a fee to have the Defendant served. You can also pay a fee to have a certified process server do the same.
Step 7: After the Defendant is Served
After the Summons & Complaint is served to the Defendant, the Defendant has five (5) working days to file a response regarding the case. (Saturdays, Sundays, or observed legal holidays do not count).
After 5 working days have passed, you will do one of the following:
- If the Defendant filed an answer, fill out a “Request for Hearing” with the Clerk of the Court. Make sure you complete the Certificate of Service on this document and indicate that you have sent a copy to the defendants by listing their names and addresses below the certificate of service. After you have filed this document with the Clerk of Court, the Court will send you a hearing date in the mail. Go to Step 8.
- If Defendant did not file an answer, complete the following forms and take them to the Clerk of Court’s office.
- Motion for Default & Default
- Judgement for Possession - complete the heading only (names and case number)
- Writ of Possession - complete the heading only (names and case number)
The Clerk will file your documents and take the Judgement for Possession to the Judge to be signed. Once the Judgement for Possession is signed by the Judge, the Clerk can issue the Writ of Possession. The Sheriff’s office charges a fee to execute the Writ of Possession and remove the Defendant.
Step 8: Attend your Hearing
Both parties are required to attend a hearing if the defendant files an answer. Your hearing will be presided over and decided upon by a judge - not a jury of your peers.
When you arrive for your hearing, let the bailiff know that you are present and ready. He or she will announce your case when it is time for your hearing and will tell you where to sit and where to place your belongings as you enter the hearing room.
At your hearing, be prepared to discuss any issues covered by the complaint and be able to provide proof of any disputed facts by presenting evidence. Remember, the duty of proving the facts that you want to present to the court is on you. You should provide the judge with evidence to support the claims in your Complaint and your statements in court.
Those are all the steps you need to do to complete the process. If you have any more questions about the unlawful detainer process or want assistance with generating one, please don't hesitate to contact us.