In most cases, agreements between landlord and tenant are memorialized in writing that provides a specific procedure for both landlord and tenant default. However, not everyone hires an attorney to draft a lease. So what happens when the tenant stops paying the landlord and there is no written lease? The following is a summary of the process for evicting a commercial tenant and recovering money damages for past due rent.
No Written Lease = Tenancy at Will
In Florida, an unwritten lease is considered a tenancy at will. If rent is paid monthly, then the tenancy at will is regarded as a monthly lease. Either party can terminate a monthly tenancy at will by giving 15 days’ notice before the end of any monthly period.
When a tenant fails to pay rent when it becomes due, the landlord may recover the premises in an action under Chapter 83 of the Florida Statutes. The landlord is required to serve a three days’ notice demanding payment of the rent and if the tenant is absent, then leaving a copy of the three days’ notice at the premises. If the tenant does not render payment by the date provided on the three days’ notice, then the landlord can file a complaint requesting removal of the tenant.
The court can award possession of the premises and money damages if landlord seeks money damages in the complaint. After entry of judgment in favor of the plaintiff, the clerk will issue a writ to the sheriff that commands the sheriff put the plaintiff in possession of the premises. Also, Florida Statutes provides that the prevailing party is entitled to their attorney’s fees and court costs.
Levy Against Tenant’s Property
In addition to recovering the premises, the landlord may levy against the property found on the premises to recover the value of any past due rent. Florida Statutes provides that no property of any tenant shall be exempt from distress or sale with few exceptions.
The landlord must include in a verified complaint (i.e., the plaintiff signs the complaint along with the attorney) how the obligation of rent arose, the amount of rent due, and how rent was payable (i.e., money, agricultural products or other items of value). However, if the landlord decides to pursue tenant’s property, then the landlord must file a bond to be payable to defendant in at least double the sum demanded, or if property, double the value of the property sought to be levied against. The bond is paid out to defendant/tenant if plaintiff/landlord improperly filed a distress writ against the property of the tenant.
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