1. What is an unlawful detainer and which Florida Statute governs unlawful detainers?
Pursuant to Florida Statute Chapter 82, an unlawful detainer is a county court lawsuit to remove an individual from your property who does not have a lease or any other right to be on the property. It is similar to an eviction lawsuit except that there is no landlord/tenant relationship, agreement to pay rent, or rent paid.
2. Is there a difference between an unlawful detainer and an ejectment?
An ejectment arises when the individual on the property claims that they have a legal or equitable interest in or a right to the property.
3. For an unlawful detainer, does Florida Law require a notice to vacate or is the owner required to give the occupant advance notice?
Florida law does not require that a property owner provide the occupant with a notice to vacate before filing an unlawful detainer action. A notice to vacate is required in an eviction lawsuit. However, it would be wise to provide an occupant with notice before filing suit because it may convince them to leave without the time and expense involved in filing a lawsuit. There is no statutory period of advance notice for an unlawful detainer action.
4. If you decide to provide notice, how can you obtain proof that they actually received it?
The best way to do this is to post the letter on their door, take a photo of the posting, and record the date, time and specific location where the notice was posted.
5. What are the typical court fees involved with filing an Unlawful Detainer Complaint and the Unlawful Detainer Summons?
This will depend on the county and court you are in, but usually between $100-$400 dollars to file the complaint. In Hillsborough County, Florida, it is $400. Additionally, some courts charge a fee for each summons, typically being $10 per summons. Hillsborough county courts charge $10 per summons. There is also a fee for the use of a Sheriff or Certified Process Server, which is around $60.
6. How long does it take to file an Unlawful Detainer Complaint and Summons and can it be filed online?
It can take an experienced attorney up to 3 hours to file an Unlawful Detainer Complaint and Summons. Yes, an unlawful detainer lawsuit is electronically filed with the Clerk of Court. The Clerk of Court issues a summons for each of the Defendant(s)/occupant(s) named in the unlawful detainer suit.
7. How is the complaint served, are there any benefits to choosing a Certified Process Server over a Sheriff to serve the complaint, and what happens if the Defendant(s)/occupant(s) is unable to be served?
A complaint is served by either a Sheriff or Certified Process Server. Yes, a private process server can often have papers served much faster than the sheriff’s department. Quite often, the Certified Process Server is unable to personally serve the defendants/occupants and is allowed to post the Summons and Complaint on the property. If you expect the Certified Process Server will not be able to serve the Defendant(s) in person, you must provide the Clerk of Court with two additional copies each of the Summons and the Complaint per Defendant, and two pre-stamped envelopes per Defendant addressed to the Defendant’s residence and tie Defendants last known business address, if known.
8. What happens after the Defendant(s) is served?
After the Summons & Complaint is served to the Defendant(s), the Defendant(s) has five (5) working days to file a response regarding the case. (Saturdays, Sundays, or observed legal holidays are not counted.)
9. What happens after the Defendant(s) after the 5 working days have passed?
If the Defendant(s) files an answer, then a hearing will be requested. If the Defendant(s) do not file an answer, then a Motion and Order for Default, a Judgement for Possession, and a Writ of Possession will be filed with the Clerk of Courts.
10. Are there defenses against an unlawful detainer action and how long after your file a request for hearing do you typically get a hearing date?
If you are an occupant who pays rent, or have a property interest in the subject property, you may be able to contest an unlawful detainer action. It’s an average of 2-3 weeks to hold the final hearing.
11. If the Defendant(s) files an answer, what happens at the final hearing?
The Judge will discuss any issues raised in the Complaint and Answer. Each party will provide evidence. Evidence is proof presented at hearing in the form of witnesses (people), exhibits (documents), and objects (things). All evidence must conform to Chapter 90 of the Florida Statutes to be admissible in Court. Once each party has presented their evidence, the Judge will make a decision. If the Judge signs a Judgement for Possession, 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.
12. What is the typical fee to execute a Writ of Possession?
The Sheriff’s office typically charges a $90 fee to execute the Writ of Possession and remove the Defendant.
13. Can I file for an Unlawful Detainer action without an Attorney?
The short answer is yes, however the legal process that follows an Unlawful Detainer action can be complex and involves multiple steps, involving serving the defendant. It is often helpful to seek legal counsel when navigating this process.
