Business Law 101 / THE EVICTION PROCESS

By Albert L. Kelley

An eviction lawsuit is the only lawful manner in which a Landlord can remove a tenant from property. Once an eviction action is filed, the Complaint and Summons must be served on the Tenant. Service must be made either by the Sheriff or a licensed process server. If the action is only to evict the Tenant and the Landlord is not seeking any monetary damages, the Complaint and 5-Day Summons may be either served on the Tenant directly, or if the Tenant is not at the property, by posting the Summons on the door of the property. If the Landlord is also seeking monetary damages, the Complaint and a 20-day summons must be served personally on the Tenant. For the eviction portion of the Complaint, the Tenant has five working days in which to file an answer with the Court. If the eviction is for non-payment of rent and the Tenant wishes to give any defense other than that the rent has already been paid, they must pay to the Court the amount of rent due under the lease. If there is a dispute as to how much rent is owed, they can ask the Court to determine the amount to be paid and upon the Court’s determination, that amount must immediately be deposited with the Clerk of Court. If the Tenant fails to pay the money into the Court, the Landlord is entitled to obtain a default judgment against the Tenant.

The Tenant must also file an Answer to the Complaint that sets forth the defenses the Tenant has for not leaving the property. Even if the Tenant pays the money into the Court’s registry, if there is not also an answer filed, the Landlord is still entitled to a Default. In our example from last week, if the Landlord filed for both back rent and eviction, he would serve two summonses on the Tenant, one is the five day notice and one is the 20 day notice. These are served personally on March 9. Smith now has until March 14 to file an Answer and pay the rent due to the registry. If Smith fails to answer, on March 15, Jones could obtain a default from the Clerk which would then be delivered to the Judge. The Judge would issue a default judgment usually that day that instructs the clerk to issue a writ of possession. The writ of possession is delivered to the Sheriff and usually posted the following day which gives the Tenant 24 hours leave the property with their belongings. 24 hours after the writ is posted, the Sheriff will return to make sure the tenant has left. If they haven’t, the Sheriff will remove them from the property and give the property back to the Landlord. Because the Sheriff will not enforce a Writ over the weekend, if the Writ is issued on a Thursday it would not be served until the following Monday.

If the tenant does file an Answer in time, the Court schedules a trial on the eviction matter. Eviction cases are given priority on the Court calendar and the trial is scheduled as quickly as possible-often in just a week. At the trial, the Landlord testifies why they filed the case against the Tenant. After the Landlord is finished, the Tenant testifies why they should be allowed to stay. Each side can present witnesses or other evidence as well. At the end of the trial, the Judge makes a ruling.

If the ruling is for the Tenant, the Landlord must allow the Tenant to stay. The Court then determines who is entitled to the money in the Court’s registry and issues an Order directing the Clerk to forward the money to the appropriate party. If the ruling is for the Landlord, the process set out above for the Writ is followed.

 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” and “Basics of Florida’s Small Claims Court” (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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