Business Law 101 / How To Respond to an Eviction Complaint

By Albert L. Kelley, Esq.

Once an eviction action has been served on a tenant, the tenant has five business days to file a response. There is no special format this response must follow, however, it needs to state whether the allegations in the complaint are true or false, and it must specify any defense the tenant has. If a defense is not raised in this response, it is waived and cannot be raised later. Normally, certain defenses would be raised in a motion rather than an answer. In eviction cases, as there are only five days to respond, the answer and motion are often combined. The two main motions filed by Tenants are Motions to Dismiss and Motions to Set Rent Amount.

The Tenant should always consider whether there are grounds to dismiss a case. The following are the primary grounds:

  1. Failure to attach the Lease or Notices. If there is a written lease, the landlord is required to attach a copy of the lease to the Complaint. If it is not attached, the Complaint “fails to state a cause of action”. In addition, because the Landlord is required to provide a written notice to the Tenant prior to filing the eviction action (either a 3-day, 7-day, or 15-day), the Notice must also be attached to the Complaint.
  2. Mistakes in the Three Day Notice. There are two common mistakes you find in a three-day notice. The first is a miscalculation of dates. The Notice musty provide three days, not including weekends or holidays. If the notice does not provide the full time required, it is insufficient. The second mistake is putting down the wrong amount of rent due. Under the rules, the Landlord can only ask for unpaid rent. If the Notice includes a late fee or utility bills it is improper (unless there is a written lease where these items are defined as additional rent).
  3. Mistakes in the 15-day notice. The 15-day notice must be filed 15 days before the next rent payment is due. But many Landlords think it just means 15-days. The Notice must give the tenant at least until the next rent payment date.
  4. Improper venue. This is a rare Motion. The general rule is that an eviction case needs to be filed in the county where the property is.   Generally, the Court will dismiss these cases even if no Motion is filed.
  5. Improper Jurisdiction. The court does not have jurisdiction unless the Defendant has been served. Lack of service is rare in eviction cases as service can be made personally or by simply posting on the door if nobody answers.
  6. Improper party. It is important to know who you are suing.   It would be surprising how many Landlords do not know who their tenants are. Often people will bring in roommates and then move out. Even more interesting is when the wrong Landlord files the eviction action. This could be where the property is owned by a company, but the Landlord listed in the complaint is an individual or where a realtor or property manager files in their name rather than the owner’s name.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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