Florida has introduced new measures to tackle unlawful detainer and squatting issues through Chapter 82 of the Florida Statutes, also known as the “Forcible Entry and Unlawful Detainer” law. This law outlines the legal framework for addressing situations where individuals occupy property without legal right. Here’s an in-depth look at the key elements of Chapter 82 and the process for removing unlawful occupants, including transient occupants.
Key Definitions
Understanding the terminology used in Chapter 82 is crucial for comprehending the law’s application:
- Forcible Entry: This involves entering and taking possession of real property by force, in a manner that is not peaceable or open, even if temporarily authorized by someone entitled to possession.
- Unlawful Detention: Possessing real property without the consent of the person entitled to possession, or continuing to possess the property after such consent has been withdrawn.
- Unlawful Entry: Entering and possessing real property without legal authorization or consent from the person entitled to possession.
- Real Property: Refers to land, buildings, structures, and any attachments used by persons in possession.
- Record Titleholder: A person who holds the title to real property, as recorded in the public records of the county where the property is located.
Applicability
Chapter 82 does not apply to:
- Residential tenancies governed by Chapter 83 (Part II).
- Possession of real property pursuant to Chapters 513 (MOBILE HOME AND RECREATIONAL VEHICLE PARKS) or 723 (MOBILE HOME PARK LOT TENANCIES).
Remedies
The law provides several remedies for those entitled to possession of real property:
- Individuals can take legal action against those who have taken possession through forcible entry, unlawful entry, or unlawful detention.
- If the court finds the defendant’s entry or detention willful and knowingly wrongful, the plaintiff may be awarded double the reasonable rental value of the property and other damages.
- Actions under this chapter must follow summary procedures as outlined in Section 51.011 and are prioritized on the court calendar.
Addressing Unlawful Detention by Transient Occupants
Definition of Transient Occupants
A transient occupant is someone who stays in a property for a brief period, not under a lease, and whose stay is intended to be temporary.
Factors establishing a transient occupant include:
- No ownership, financial, or leasehold interest in the property.
- No property utility subscriptions.
- Inability to produce documentation or identification cards issued by a government agency showing the property address as an address of record within the previous 12 months.
- Minimal or no rent payment for the stay.
- No designated space of their own at the property.
- Minimal personal belongings at the property.
- An apparent permanent residence elsewhere. Minor contributions towards household expenses or goods do not establish residency.
New Affidavit Procedure with Law Enforcement
One of the significant new mechanisms introduced in Chapter 82 is the affidavit procedure with law enforcement, aimed at swiftly removing transient occupants without requiring court involvement:
- Affidavit Submission: The party entitled to possession must submit a sworn affidavit to law enforcement, detailing the transient occupant’s status and supporting facts. The affidavit should include:
- No ownership or leasehold interest by the transient occupant.
- Lack of utility subscriptions in the occupant’s name.
- No recent official documentation listing the property address for the occupant.
- Minimal or no rent paid by the occupant.
- No designated space for the occupant at the property.
- Minimal personal belongings of the occupant at the property.
- Evidence of the occupant’s permanent residence elsewhere.
- Law Enforcement Action: Upon receiving the affidavit, a law enforcement officer can direct the transient occupant to surrender possession of the property.
- Non-compliance Consequences: Failure to comply with the law enforcement directive can result in prosecution under Section 810.08.
- Personal Belongings: The party entitled to possession must allow the former transient occupant to recover personal belongings within a reasonable time, typically within 10 days after termination of occupancy. Reasonable conditions for retrieval can be imposed, especially if the occupant has a history of misconduct or violence.
Judicial Review Option
While the new affidavit procedure provides a swift mechanism for removing unlawful occupants, plaintiffs can still utilize the court system to obtain an order of possession and damages if they prefer a judicial review for entitlement to possession. This can be a better option depending on the circumstances and the factors necessary for the required affidavit. Utilizing the court system to obtain a judicial determination for entitlement can also help avoid liability under Fla. Stat. 82.035(3)(b) if the Plaintiff is wrong, or there is a justiciable question of applicability of the unlawful detention statute.
Considerations for Court Determination
Certain situations, such as breakups between romantic or domestic partners, may be better suited for a court determination of removal rather than relying on law enforcement removal by affidavit. The court process allows for a more thorough review and consideration of all relevant factors, potentially reducing the risk of wrongful removal and subsequent liability.
Court Proceedings and Judgments
- The court determines only the right of possession and any damages, without addressing the title unless necessary for possession determination.
- Service of Process: If personal service is not possible after two attempts, service can be made by attaching the summons and complaint to the property and mailing copies to the defendant’s known addresses.
- Judgment and Execution: If judgment is for the plaintiff, they recover possession, damages, and costs. A writ of possession is issued without delay. If for the defendant, the defendant recovers costs.
- Effect of Judgment: A judgment under this chapter does not bar future actions for trespass or ejectment and is not conclusive on the facts in such actions.
Conclusion
Chapter 82 of the Florida Statutes provides a comprehensive legal framework to address issues related to unlawful entry and detainer, including specific provisions for transient occupants. It offers remedies for property owners and ensures a streamlined process for reclaiming possession and addressing damages caused by unauthorized occupants. By following the outlined procedures, property owners and law enforcement can effectively protect property rights and address unlawful detentions. However, property owners should carefully consider whether to use the new affidavit procedure or pursue a court determination, based on the specifics of their situation and potential risks involved.