With increasing frequency, I am receiving calls from people who want to remove someone from possession of a residence owned by the caller. Invariably, the caller insists that the possessor should be evicted, but upon closer inspection, the claim really isn’t an eviction action. In this post, I will explore the three similar, but distinct, actions available for possession of real property in Florida.
Probably the most familiar claim for possession is one for eviction. In its most basic form, an action for eviction results when the occupant of the property has failed to pay rent to the property owner. Florida Statutes Chapter 83 governs actions for eviction. An action for eviction requires a landlord-tenant relationship. That relationship is typically established by showing that the property owner and occupant have signed a lease agreement for the property. Even in the absence of a written lease, a landlord-tenant relationship can be established by showing that the tenant made periodic rent payments (weekly, monthly, bi-monthly, etc.) for the privilege of occupancy. Keep in mind that rent need not be money, but in certain circumstances may be goods or services. If there is no landlord-tenant relationship, then there cannot be an eviction. An eviction action proceeds under an expedited (summary) procedure, so a plaintiff usually can obtain a judgment of possession within 60 days.
If there is no landlord-tenant relationship, an action for possession may proceed as an action for ejectment, which is governed by Florida Statutes Chapter 66. In a typical ejectment action, there is usually a dispute concerning a person’s possession that is based on a legal claim to the property itself. Most of the time, an action for ejectment arises when there are competing claims to the title and ownership of the real property. Expedited court procedures and timelines are not available in an ejectment lawsuit, and depending upon the legal claims to the property, these claims can be very lengthy to conclude. In addition, a defendant who is dispossessed in an ejectment action has a statutory right to a claim of betterment, wherein the defendant can actually recover compensation for the value of permanent improvements to the property; examples might include a new air conditioning or new roof.
A third action for possession is unlawful detainer, which is governed by Florida Statutes Chapter 82. Unlawful detainer does not apply to residential tenancies and does not apply if there is a legal dispute about title to the property. Unlawful detainer is specifically for the situation where a person initially occupies property with the permission of the owner, but then fails to leave when the owner revokes permission. There are a number of situations where this may apply. You may recall the news story that went viral last year when a California nanny refused to leave. However, the most common situation I have encounter deals with the possession of a boyfriend/girlfriend/companion of a property owner after the owner’s death. The decedent’s estate or trust typically wants to sell the property, needs the companion to leave and the companion refuses to vacate the property. Unlawful detainer proceeds under an expedited procedure like eviction, so judgments of possession may be obtained relatively quickly.
The three distinct claims for possession depend upon the relationship of the parties. Each claim has important prerequisites that must be complied with before filing a lawsuit. When in doubt, speak with a qualified attorney to ensure that you are proceeding under the correct legal theory.