Business Law 101 / Starting an Eviction Lawsuit

By Albert L. Kelley, Esq.

Before filing an eviction lawsuit, the Landlord needs to determine if they want to just get rid of the Tenant or if they also want to sue for the unpaid back rent. This changes how the case is filed and how much it cost. We will start with just the eviction and address back rent later.

To file an eviction action, a Complaint needs to be filed with the Clerk of Court. The Complaint needs to allege the address of the property, state that the Landlord owns the property, advise if the lease is written or verbal, advise why the Tenant is being evicted and advise that the appropriate Notice was served. Florida law requires that if a lawsuit is based on a written document, a copy of the document must be attached to the Complaint. So if the lease is written, a copy of the lease must be attached as an exhibit to the Complaint. The Landlord must also attach a copy of the Notice of termination (3, 7 or 15 day) they provided to the Tenant. These attachments are crucial. If the Lease and Notice are not attached, the Complaint “fails to state a cause of action”. This is a legal phrase that essentially means that the landlord has not alleged all of the things necessary for the Court to rule on his case. If the Complaint fails to state a cause of action, the Court will dismiss it.

The Landlord can use the terms Plaintiff and Defendant rather than Landlord and Tenant, but most Courts will allow the less formal titles to be used (You can also use the terms Plaintiff/Landlord and Defendant/Tenant to identify the parties). Also, the Landlord should be the party filing the Complaint. This seems obvious, but often real estate agents will file an eviction action for their clients. While the statute allows the agent to file the Complaint, they cannot do anything more in the case unless they are also an attorney. The real estate agent is not the Landlord and has no standing to pursue the case on the Landlord’s behalf (“Standing” is a legal term meaning the right of a person to be before the Court. It is a question of whether the person is legally entitled to have the Court determine their case. The real estate agent is not the Landlord, but merely a third-party beneficiary of the Landlord’s lease. This is not a sufficient interest to let them pursue the action).

If the Landlord merely wants to evict the Tenant, all that is required is to file a Complaint, obtain a five-day Summons and pay the appropriate filing fee (In Monroe County, the filing fee is $185, plus $10 for each summons). If you also want to seek back rent, you have to add a separate count for Damages to the eviction Complaint, obtain a five-day Summons and a 20-day Summons and pay a higher filing fee (The filing fee in Monroe County for an eviction with back rent is $300 plus $10 for each summons). Later I will discuss the differences between these Summons.

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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