Florida property owners frequently use the term unlawful detainer to describe the process of removing a person who occupies property without a continuing legal right to possession. However, Florida law provides several different procedures depending on how the person entered the property, whether permission was originally given, and whether a landlord-tenant relationship exists.
Two statutes commonly considered in these situations are Florida Statutes sections 82.035 and 82.036. Section 82.035 generally addresses a transient occupant who was initially allowed to stay temporarily but later refuses to leave. Section 82.036 generally addresses a squatter or other unauthorized occupant who unlawfully entered or occupies residential property without the owner’s permission.
Although both statutes may provide alternatives to a conventional eviction, they apply to materially different circumstances. In other cases, a formal unlawful detainer action under Chapter 82 remains the appropriate procedure.
Selecting the wrong remedy can delay recovery of possession and potentially expose the property owner to a wrongful-removal claim. Property owners should therefore determine the legal nature of the occupancy before changing locks, removing belongings, or requesting assistance from law enforcement.
What Is the Difference Between Unlawful Detainer and Sections 82.035 and 82.036?
The practical distinction is:
Florida Statutes section 82.035 generally applies to an invited temporary occupant who refuses to leave.
Florida Statutes section 82.036 generally applies to a squatter or unauthorized occupant who unlawfully entered or remains in residential property without the owner’s permission.
An unlawful detainer action generally applies when a person originally entered with permission but no longer has a legal right to possession and no landlord-tenant relationship exists.
In practical terms:
- Invited temporarily but now refusing to leave: section 82.035 or an unlawful detainer action may apply.
- Never authorized to occupy the property: section 82.036 may apply.
- Originally permitted to occupy but permission has been revoked: unlawful detainer may apply.
- Occupying under an oral or written rental agreement: a conventional eviction under Chapter 83 may be required.
The absence of a written lease does not automatically establish that a person is a transient occupant, squatter, or proper defendant in an unlawful detainer action. Florida recognizes oral rental agreements, and the conduct of the parties may establish a tenancy even when no written lease exists.
Florida Unlawful Detainer and Unauthorized Occupant Removal Comparison Chart
The correct procedure depends primarily on how the occupant entered the property, whether the owner originally gave permission, and whether a landlord-tenant relationship exists.
| Distinguishing Feature | Unlawful Detainer Under Chapter 82 | Transient Occupant Under § 82.035 | Unauthorized Occupant Under § 82.036 | Eviction Under Chapter 83 |
|---|---|---|---|---|
| Typical occupant | Former guest, friend, romantic partner, relative, or other person whose permission to remain has been revoked | Temporary houseguest or short-term occupant who refuses to leave | Squatter, intruder, or other person occupying residential property without authorization | Current or former tenant |
| Was initial entry authorized? | Yes | Yes, but only temporarily | Generally no | Yes |
| Was occupancy intended to be temporary? | Not necessarily, although there is no continuing right to possession | Yes | No permission was given | Occupancy was based on a rental arrangement |
| Can an oral lease exist? | No landlord-tenant relationship should exist | No lease should exist | No owner-authorized oral or written rental agreement may exist | Yes |
| Can rent have been paid? | Regular rent may indicate that eviction, rather than unlawful detainer, is required | Little or no rent is generally expected; minor household contributions may not create a tenancy | The occupant cannot be a current or former tenant under an authorized rental agreement | Yes |
| Who may seek possession? | A person entitled to possession | A person entitled to possession | The record owner or the owner’s authorized agent | A landlord or other person legally entitled to enforce the tenancy |
| Court action required? | Yes, unless another statutory removal procedure applies | Not always; law-enforcement assistance may be requested, or an unlawful detainer action may be filed | Not initially, if all statutory requirements for sheriff removal are satisfied | Yes |
| Law-enforcement procedure | Possession is ordinarily enforced after entry of a judgment and issuance of a writ of possession | A law-enforcement officer may direct a qualifying transient occupant to surrender possession after receiving the required affidavit | The county sheriff removes qualifying unauthorized occupants after verifying the statutory complaint | The sheriff executes a writ of possession issued after judgment |
| Presuit notice required? | Section 82.035 expressly states that no presuit notice is required for an unlawful detainer action against a transient occupant; other cases should be evaluated individually | No presuit notice is required before filing the statutory unlawful detainer action | The owner must first direct the unauthorized occupants to leave and then submit the verified statutory complaint | Usually yes, depending on the reason for eviction and the type of tenancy |
| Immediate family member of owner | May potentially be subject to unlawful detainer depending on the facts and absence of an ownership or tenancy interest | Not automatically excluded, although the family relationship may affect the transient-occupancy analysis | Expressly excluded from the expedited procedure | May be evicted if a landlord-tenant relationship exists |
| Pending litigation concerning the property | The court action itself determines possession | An unlawful detainer action may be filed when judicial determination is required | The expedited sheriff procedure is unavailable if qualifying litigation is already pending between the owner and known occupant | Eviction proceeds through a pending court case |
| Ownership claim by occupant | A genuine title or ownership dispute may require ejectment rather than unlawful detainer | A financial, ownership, or leasehold interest weighs against transient status | The occupant must not be an owner or co-owner, subject to the statute’s provisions concerning title fraud | A tenant ordinarily claims a leasehold interest, not ownership |
| Primary factual issue | Whether permission to occupy was revoked and the occupant has no continuing legal right to possession | Whether the person is truly a temporary or transient occupant rather than a tenant or permanent resident | Whether the person entered or remains without authorization and satisfies every statutory condition for expedited removal | Whether a tenancy existed and was properly terminated or breached |
| Primary remedy | Judgment for possession followed by a writ of possession | Law-enforcement direction to leave or an unlawful detainer judgment | Expedited removal by the sheriff and restoration of possession to the owner | Judgment for possession and, when properly claimed, rent or other damages |
| Wrongful-removal risk | The plaintiff may lose or face claims if the occupant is actually a tenant or has another legal right to possession | The occupant may seek injunctive relief or damages if improperly characterized and removed | A wrongfully removed occupant may seek restoration, actual damages, three times fair-market rent, costs, and attorney’s fees | Self-help removal can expose the landlord to statutory and other damages |
The chart is a general comparison. The correct procedure depends on the specific facts, including the parties’ communications, payment history, duration of occupancy, use of the property, and any claimed tenancy or ownership interest.
Florida Statutes Section 82.035: Transient Occupants and Unlawful Detainer
Section 82.035 applies to the unlawful detention of residential property by a “transient occupant.”
A transient occupant is generally someone whose residence at the property:
- lasted for a relatively brief period;
- was not pursuant to a lease; and
- was intended to be temporary.
The statute identifies several factors that may demonstrate transient occupancy, including whether the person:
- has no ownership, financial, or leasehold interest in the property;
- has no utility accounts associated with the property;
- does not use the property as an address of record with government agencies;
- pays little or no rent;
- has no designated bedroom or private space;
- keeps few personal belongings at the property; and
- has another apparent permanent residence.
Minor contributions toward groceries, household supplies, or other household expenses do not, by themselves, establish residency under the statute.
Common Examples of a Transient Occupant
Section 82.035 may apply when a property owner or lawful occupant permits someone to stay temporarily, such as:
- a friend allowed to stay for several weeks;
- a boyfriend or girlfriend who moves in temporarily;
- an adult relative staying until other housing becomes available;
- a houseguest who remains after being told to leave; or
- a short-term guest who overstays the agreed period.
The critical question is whether the person was intended to become a resident or tenant, or whether the arrangement was temporary.
When Does a Transient Occupant Unlawfully Detain the Property?
A transient occupant unlawfully detains residential property when the occupant remains after the party entitled to possession directs the occupant to leave.
A transient occupancy may terminate when the occupant:
- begins living elsewhere;
- surrenders the key;
- leaves after being directed to do so by the party entitled to possession;
- leaves when directed by a law-enforcement officer acting under section 82.035; or
- leaves pursuant to a court order.
The continued presence of personal belongings does not necessarily extend a former transient occupant’s right to remain at the property.
How Can a Transient Occupant Be Removed?
The party entitled to possession may provide a sworn affidavit to a law-enforcement officer describing the facts establishing transient occupancy.
The affidavit should identify the applicable statutory factors and explain why the person’s occupancy was temporary and why the person no longer has permission to remain.
Upon receiving a sufficient affidavit, a law-enforcement officer may direct the transient occupant to surrender possession. A person who refuses to comply with the officer’s direction may be subject to Florida’s trespass laws.
Law enforcement is not required to resolve a genuine civil dispute over whether the person is a tenant, resident, or transient occupant. If the status of the occupant is disputed, a court action may be necessary.
Can an Unlawful Detainer Action Be Filed Against a Transient Occupant?
Yes. The person entitled to possession may file an unlawful detainer action under Chapter 82 to remove a transient occupant.
Section 82.035 provides that no presuit notice is required before filing an unlawful detainer action against a transient occupant. If the court determines that the person is actually a tenant governed by Chapter 83, the court may permit the plaintiff to serve the appropriate landlord-tenant notice and amend the pleadings rather than requiring an entirely new lawsuit.
An unlawful detainer action may be particularly appropriate when law enforcement declines to remove the occupant because the parties dispute whether the person is a temporary guest, permanent resident, or tenant.
When Section 82.035 May Not Apply
Section 82.035 becomes more difficult to use when the occupant can present facts supporting permanent residency or a landlord-tenant relationship.
Potential warning signs include:
- payment of regular monthly rent;
- an agreement permitting the person to remain indefinitely;
- exclusive use of a designated bedroom or separate unit;
- utility accounts in the occupant’s name;
- a driver’s license, voter registration, or other official record using the property address;
- substantial personal belongings maintained at the property;
- regular receipt of mail at the property;
- responsibility for household expenses consistent with rent; or
- written communications referring to the person as a tenant.
No single fact necessarily controls. The court or law-enforcement officer may consider the entire relationship between the parties.
Florida Statutes Section 82.036: Unauthorized Occupants and Squatters
Section 82.036 provides a separate, limited procedure for removing unauthorized occupants from residential real property.
Unlike traditional unlawful detainer, section 82.036 is principally directed toward people who unlawfully entered or occupied the property without the owner’s authorization. It allows the record owner or the owner’s authorized agent to submit a verified complaint directly to the sheriff.
This procedure is generally intended for situations involving squatters or strangers occupying a vacant house, investment property, second home, property under renovation, or other residential dwelling without permission.
Requirements for Removal Under Section 82.036
The property owner or the owner’s authorized agent may request immediate removal through the sheriff only when all statutory conditions are satisfied.
Those conditions include:
- the requesting person is the property owner or the owner’s authorized agent;
- the property includes a residential dwelling;
- the unauthorized person unlawfully entered and remains or continues to reside on the property;
- the property was not open to the public when the person entered;
- the owner directed the unauthorized person to leave;
- the person is not a current or former tenant under a written or oral rental agreement authorized by the owner;
- the person is not an immediate family member of the owner; and
- there is no pending litigation concerning the property between the owner and the known unauthorized occupant.
The owner must be able to truthfully satisfy every statutory requirement. The procedure should not be used merely because the occupant lacks a written lease.
The Verified Complaint to the Sheriff
To request removal, the owner or authorized agent must present a completed and verified statutory complaint to the sheriff of the county where the property is located.
The complaint requires sworn representations regarding:
- ownership of the property;
- the unauthorized entry and continued occupancy;
- the owner’s direction that the occupants leave;
- the absence of an owner-authorized oral or written tenancy;
- the absence of an ownership or co-ownership interest;
- the absence of an immediate-family relationship; and
- the absence of pending litigation involving the property and known occupant.
The statutory complaint also requires the owner to address any purported lease claimed by the occupant.
What Does the Sheriff Do?
The sheriff must verify the requesting party’s ownership or authority to act for the owner.
If the sheriff verifies that the owner is eligible for relief under the statute, the sheriff proceeds with the statutory removal process. That process includes serving or posting a notice to immediately vacate, removing the unauthorized occupants, and restoring possession to the owner.
The sheriff may also attempt to identify the occupants and may stand by while the owner changes the locks and removes the occupants’ personal property in accordance with the statute.
Common Examples Under Section 82.036
Section 82.036 may apply when:
- strangers move into a vacant house without permission;
- squatters enter an investment property while it is being renovated;
- unauthorized occupants take possession of a seasonal or second home;
- individuals break into or occupy a property listed for sale;
- an occupant produces an allegedly fraudulent lease that the owner never authorized; or
- unauthorized persons remain in a residential dwelling after the owner directs them to leave.
Section 82.036 generally should not be used merely because the occupant does not have a written lease. If the owner authorized an oral rental arrangement, accepted rent under a rental agreement, or previously treated the person as a tenant, the statutory conditions may not be satisfied.
When Is a Florida Unlawful Detainer Action Appropriate?
A Florida unlawful detainer action may be appropriate when:
- the occupant originally entered the property with permission;
- the owner or person entitled to possession later revoked that permission;
- the occupant refuses to leave;
- no landlord-tenant relationship exists;
- no valid oral or written lease exists; and
- the dispute concerns the right to immediate possession rather than ownership of the property.
Common unlawful detainer situations include:
- a former boyfriend or girlfriend who refuses to move out;
- a friend allowed to stay temporarily;
- an adult family member permitted to live in the home without paying rent;
- a houseguest who remains after permission is withdrawn;
- a caretaker whose authority to remain has ended; or
- another occupant who initially entered lawfully but now unlawfully withholds possession.
Unlawful detainer is different from eviction. Eviction requires a landlord-tenant relationship. Unlawful detainer generally concerns an occupant whose original possession was permissive but who has no leasehold interest or continuing right to remain.
When Is an Eviction Required Instead of Unlawful Detainer?
A conventional residential eviction under Chapter 83 is generally required when a landlord-tenant relationship exists.
An eviction may be appropriate when:
- the occupant signed a lease;
- the parties entered an oral rental agreement;
- the owner accepted recurring rent;
- the occupant received possession in exchange for payment;
- the dispute concerns nonpayment of rent;
- the tenant violated a lease obligation;
- a fixed-term lease expired;
- a month-to-month tenancy was terminated; or
- the occupant is a former tenant holding over after termination.
Calling a person a guest, squatter, or unlawful detainer defendant does not determine the proper legal procedure. Courts generally examine the substance of the arrangement, including payments, communications, duration of occupancy, use of the property, and the parties’ intent.
When Is Ejectment Required?
Unlawful detainer should also be distinguished from ejectment.
An unlawful detainer action generally determines the immediate right to possession when the occupant does not have a landlord-tenant relationship and does not assert a legitimate ownership interest.
An ejectment action may be required when the occupant asserts:
- legal title;
- co-ownership;
- a life estate;
- an equitable interest;
- a resulting or constructive trust;
- an ownership interest arising from contributions toward the property; or
- another title-based right to possession.
When title or ownership is genuinely disputed, an unlawful detainer proceeding may not be sufficient to resolve the parties’ competing claims.
Risks of Using the Wrong Procedure
Owners should use caution before changing locks, removing belongings, shutting off utilities, or physically excluding an occupant.
An occupant who is actually a tenant may assert claims based on unlawful eviction, prohibited practices, property damage, injunctive relief, or other damages.
Section 82.036 also creates a specific remedy for wrongful removal. A person wrongfully removed through the statute may seek:
- restoration of possession;
- actual costs and damages;
- statutory damages equal to three times the fair-market rent of the dwelling;
- court costs; and
- reasonable attorney’s fees.
Because of these potential consequences, section 82.036 should not be treated as a general substitute for eviction whenever an occupant lacks a written lease.
Practical Questions to Ask Before Proceeding
Before selecting a removal procedure, the property owner should determine:
- How did the occupant originally enter the property?
- Did the owner expressly or impliedly give permission?
- Was the arrangement intended to be temporary?
- Did the occupant pay rent or make regular payments?
- Was there an oral or written agreement?
- Did the occupant have a designated room or separate unit?
- Did the occupant place utilities in the occupant’s name?
- Did the occupant use the address for identification or government records?
- Does the occupant have another permanent residence?
- Is the occupant related to the property owner?
- Does the occupant claim an ownership interest?
- Is any lawsuit already pending concerning possession or ownership?
- Has the owner clearly directed the occupant to leave?
- Are there emails, text messages, payment records, or witnesses documenting the arrangement?
These facts may determine whether the appropriate procedure is transient-occupant removal, sheriff removal of unauthorized occupants, unlawful detainer, ejectment, or eviction.
Simplified Decision Guide
The following general distinctions may help identify the potentially applicable procedure:
- The person was invited to stay temporarily and now refuses to leave: Section 82.035 or an unlawful detainer action may apply.
- The person originally had permission, but permission was revoked and no tenancy exists: An unlawful detainer action may apply.
- The person entered or occupied residential property without the owner’s permission: Section 82.036 may apply.
- The person paid rent or occupied under an oral or written rental agreement: An eviction under Chapter 83 is generally the appropriate procedure.
- The person claims an ownership or title interest: An ejectment or other title-based action may be required.
Conclusion
Florida Statutes sections 82.035 and 82.036 provide important but narrowly defined remedies for recovering possession of residential property.
Section 82.035 generally applies when a temporary guest or transient occupant was invited to stay and later refuses to leave. Section 82.036 generally applies when a squatter or unauthorized person unlawfully enters or occupies residential property without the owner’s permission.
A Florida unlawful detainer action is often appropriate when the occupant originally entered with permission, that permission has been revoked, and no landlord-tenant relationship exists.
None of these procedures should be selected solely because the occupant lacks a written lease. An oral rental agreement, payment history, long-term occupancy, family relationship, or ownership claim may substantially change the proper remedy.
Property owners should document how the occupancy began, whether rent was paid, what permission was given, whether that permission was revoked, and whether the occupant claims any tenancy or ownership interest before initiating removal proceedings.
Speak With a Florida Unlawful Detainer Attorney
Andrew Douglas, P.A. assists Florida property owners with unlawful detainer actions, residential evictions, transient-occupant disputes, and the removal of squatters and unauthorized occupants.
Before changing locks or requesting removal by law enforcement, property owners should obtain legal advice concerning the appropriate statutory procedure and the potential risks of wrongful removal.
This article is for general informational purposes only and does not constitute legal advice. The appropriate legal procedure depends on the specific facts of each matter. Florida statutes and court procedures may change and should be reviewed before action is taken.