Guide To The Perfect Eviction
By Cody McCaughan, Esq.
No one likes evictions. The tenant is likely dealing with financial troubles and cannot pay the landlord what is owed, and the landlord has to pay an attorney to get his property back, which is essentially held hostage until the tenant vacates. Ideally, a resolution can be reached, and I work with both landlords and tenants to make this happen. However, at the end of the day, the tenant has to pay rent, or they have to go. Here is how to get a tenant out quickly and without incurring excessive liability or costs.
Step 1: Hire An Attorney
Do not try to evict a tenant without an attorney. Period. It usually does not go well, even when attempted by experienced property managers. You might get lucky and it works out, but more often than not, you will get yourself into trouble, at which point you will have to hire an attorney anyways. The attorney will charge you 2-3 times what the eviction would have cost upfront, and the tenant will be in the property a lot longer without paying rent, which costs you money. Do not make this mistake. Hiring an attorney will give you peace of mind, and the upfront costs are recouped by the increased speed of the eviction, higher likelihood of a favorable result, and much lower likelihood of the eviction getting derailed completely.
Step 2: Three Day Notice
The first step of the eviction process is to draft and serve the Three Day Notice. The Notice essentially gives the tenant three days to pay rent or vacate the property, and it is required before an eviction action can be filed. Your attorney should handle drafting and serving the Three Day Notice, as there are a multitude of minor mistakes that will render a Notice completely defective. If you want to draft and serve your own Three Day Notice, there is no harm, but understand that if you ultimately need to evict the tenant your attorney will likely have to draft and serve a second Notice to cure defects in the original. Three Day Notices are usually served by posting on the property, and it is advisable to use a licensed process server to ensure service if performed properly.
Step 3: Filing the Eviction and Defaulting the Tenant
After waiting three days, excluding weekends and holidays, if the tenant has not vacated the property or paid rent, an eviction action should be filed. The tenant can be served by posting the summons and eviction complaint on the property, or by personal service. Personal service is preferred as there is less chance of the tenant exploiting defects in service to delay the eviction and, often more importantly, because you cannot obtain a money judgment against the tenant without personal service. Within five days of being served, the tenant has to both respond to the complaint and deposit the rent owed into the court registry. This is crucial because if the tenant fails to do either his/her defenses are waived, and the landlord’s attorney can proceed with applying to the court for a default and Final Judgment of Eviction.
The tenant can also contest the amount of rent due, in which case the court will hold a hearing, usually within a month, to determine how much rent the tenant must deposit into the court registry. After this hearing the tenant generally must deposit the rent within one day, or face a default judgment.
Step 4: Working Out A Resolution
At this point, the eviction generally follows one of two paths depending on if the tenant has been defaulted. However, whether you have been able to obtain a default against the tenant or not, an effort should be made at resolution. If the tenant has been defaulted, you can use this as leverage to reach an agreement where the tenant vacates immediately, pays past due rent, or agrees to waive certain claims that may exists against the landlord.
If the tenant has not been defaulted an even greater effort should be made at resolving the dispute, as the lawsuit can go on for many months as long as the tenant keeps paying rent into the court every month. If the parties end up litigating the case it will cost tens of thousands in attorney’s fees, hence the importance of making a strong effort at settlement in this early stage. If the parties cannot reach a resolution on their own, the judge will often order mediation in the hopes that the case can be resolved.
Work with your attorney and be flexible in order to find a way to resolve your case. Litigating the dispute and going to trial only make sense in very rare circumstances, usually in commercial lease cases, where the dollar amount at stake is in the tens of thousands or hundreds of thousands.
Step 5: Getting the Final Judgment of Eviction and Executing the Writ of Possession
Assuming the tenant has been defaulted, the landlord’s attorney can now apply to the court for a Final Judgment of Eviction, submit a Writ of Possession to the Clerk of the Court for issuance, and then arrange for the Sheriff to execute the Writ. The Sheriff will setup a day to meet the landlord at the Property, remove the tenant and his/her belongings, and place the landlord back in possession. It is a good idea to have a locksmith scheduled to immediately change the locks on this day as well.
If the tenant has not been defaulted, you should have reached a settlement at this point which requires the tenant to either resume paying rent or vacate the property by a certain date. The settlement should always provide that if the tenant fails to vacate on time, the landlord is immediately entitled to a Final Judgment of Eviction, plus attorney’s fees.
It is important to note that the only way for a landlord to retake possession of a property is if the tenant vacates on his/her own, or the Sheriff executes a Writ of Possession. Do not ever attempt to take back possession by any other means, including prematurely changing the locks or cutting off the tenant’s water or electricity. These “self-help” remedies are illegal and can result in the tenant suing you for punitive damages and attorney’s fees, both of which they are entitled to by Florida law.
Step 6: Recovering Past Due Rent, Attorney's Fees, and Costs
Now that possession of the property has been returned to the landlord, the decision has to be made as to whether to pursue past due rent, attorney’s fees, costs, and other charges due under the lease. This is perhaps the most misunderstood aspect of having to evict a tenant. The reality is that in most situations it does not make financial sense pursue recovery of money from the tenant. To begin, if the tenant was evicted for nonpayment of rent, it is highly unlikely that they have any money or assets from which to collect. Even assuming the tenant has assets from which to collect, it can be a long and expense path to obtaining a money judgment against the tenant. While the law somewhat favors landlord’s in the eviction process, once possession of the property is returned, any claims for unpaid rent, damages, or attorney’s fees are the same as in any other lawsuit, meaning that the plaintiff, which is the landlord, has the burden of proof for every single dollar which they claim to be owed. The attorney’s fees associated with meeting this burden of proof usually makes this course of action cost prohibitive unless there is an exceptionally large sum of money due to the landlord.
Most experienced landlords, particularly in the residential context, just keep the tenant’s deposit, cut their losses, and move on. This is usually the right decision, but you will need to consult with your attorney on the specifics of your case.
We specialize in representing both commercial and residential landlords, and know the tactics and strategies that result in quick and efficient resolutions of eviction actions. If you are dealing with a problem tenant, contact us at (305) 928-4190 for a no-charge consultation.