Business Law 101 / Eviction Pleadings

By Albert L. Kelley, Esq.

Eviction matters are always County Court cases. They are covered by the Rules of Civil Procedure and are generally heard by a County Court Judge. There are also magistrates who are lawyers retained by the Court to hear the evidence and make a report and recommendation to the Judge who will issue a ruling based on the recommendation. Rarely will the Courts use magistrates for Eviction actions. The Legislature intended for evictions to occur quickly and passed statutes requiring eviction cases to be expedited. As the parties before a magistrate have 10 days to file oppositions to the Magistrate’s ruling, this would delay the eviction action for another week and a half.

After the Clerk issues the Summons mentioned in last week’s column, it must be delivered to the local Sheriff’s Office. In some Counties the Sheriff will also require the Landlord to provide a map showing where the property is located (In Monroe County, they ask for a copy of the Property Appraiser’s website showing the property to be served). Landlords should also provide a self-addressed stamped envelope so the Sheriff’s Office can send a copy of the proof of service to the Landlord.

The Sheriff’s Deputy will make three attempts to serve the Tenant. If on the third attempt the Tenant still does not answer the door, the Sheriff’s Deputy will post the Summons on the door. If it gets torn off or blown away, it doesn’t matter- the Tenant has still been served.

Once the Tenant has been served with the lawsuit, they have five business days to respond. Just as with the Notices, the day of service, Saturday, Sunday and legal holidays are not counted. To respond, the Tenant needs to address the Complaint directly and either admit or deny the Landlord’s allegations. The response to the Complaint is called the “Answer”. There is no specific form that the Answer must follow; any response will be accepted by the Court, so long as it is responsive to the allegations in the Complaint. If the Tenant has any defenses, this is the time to bring them up. The rules require defenses to be listed in the initial pleading; if the tenant fails to bring them up, they are waived. That being said, these proceedings are less formal than most court cases, so some Courts will allow defenses to be raised for the first time at trial.

If the reason the Tenant is being evicted is non-payment of rent the Tenant must also pay the rent alleged to be owed to the Clerk of the Court. There are only two exceptions: if the Tenant’s defense is that he already paid the rent, the rent does not need to be paid to the Clerk. Also, if the Tenant believes he should not have to pay the full rent, or disputes the amount the Landlord has alleged, the Tenant can ask the Court to determine how much rent should be paid. The Court will review the grounds the Tenant alleges and determine how much the tenant must pay to the Clerk of the Court. The tenant must pay this amount before the hearing on the eviction Complaint.

The Court expedites these cases. So the Court will schedule the eviction hearing as soon as possible. This should not be taken lightly. This is a trial. The parties should be prepared.

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.

[livemarket market_name="KONK Life LiveMarket" limit=3 category=“” show_signup=0 show_more=0]