Eviction
As any experienced landlord will attest, there are occasional tenants who do things that are so outrageous that the landlord is tempted to bypass normal legal protections and take direct and immediate action to protect the property. A landlord may often consider changing the locks, cutting off the utilities or putting the tenant's property out in the street. However, landlords who take matters into their own hands will not be excused by the tenant's egregious conduct. The fact that a tenant did not pay rent, damaged the property, verbally abused the manager, or otherwise acted outrageously is simply not a valid defense under Florida law. A landlord resorting to self help may well end up being held liable for trespass, assault, battery, slander or libel, intentional infliction of emotional distress, and wrongful eviction. Defending a lawsuit will cost far more than evicting the tenant using statutorily authorized mechanisms.
A landlord can legally terminate a lease and force the tenant out of the property for good cause. Good cause can be shown by nonpayment of rent, damage to the premises, or violation of the rules and regulations of the lease. The most common lease violations are disturbing the neighboring tenants with noise, possession of pets, and occupancy by persons not named on the lease. Often the landlord must give the tenant a short period in which to correct the problem before eviction action begins.
How Evictions Work: What Renters Need to Know
Landlords can't just lock you out, even if you are behind on rent. They must get a court judgment first.
Your landlord can't evict you without terminating the tenancy first. This usually means giving you adequate written notice, in a specified way and form. If you don't move after proper notice (or reform your ways for example, by paying the rent or finding a new home for the dog), the landlord can file a lawsuit to evict you. (This type of lawsuit is sometimes called an unlawful detainer, or UD lawsuit.) In order to win, the landlord must prove that you did something wrong that justifies ending the tenancy.
State laws have very detailed requirements for landlords who want to end a tenancy. Each state has its own procedures as to how termination notices and eviction papers must be written and delivered to you ("served"). Landlords must follow state rules and procedures exactly.
Notice of Termination for Cause
Although terminology varies somewhat from state to state, there are basically three types of termination notices that you might receive if you have violated the rental agreement or lease in some way:
Notice of Termination Without Cause
Even if you have not violated the rental agreement and have not been late paying rent, a landlord can usually ask you to move out at any time (assuming you don't have a fixed term lease) as long as the landlord gives you a longer notice period.
A 30 Day Notice to Vacate or a 60 Day Notice to Vacate to terminate a tenancy can be used in most states when the landlord does not have a reason to end the tenancy. (The length of the required notice can be slightly longer or shorter in some states.)
Rent Control Exceptions. Many rent control cities, however, go beyond state laws and require the landlord to prove a legally recognized reason for termination. These laws are known as "just cause eviction protection." (Tenants in only a couple of states New Jersey and New Hampshire also enjoy just cause eviction protection.)
Eviction Lawsuit
Following receipt of a termination notice, if you haven't moved out or fixed the lease or rental agreement violation, the landlord must properly serve you with a summons and complaint for eviction in order to proceed with the eviction.
Possible Defenses
If you do get hauled into court, you may be able to diminish the landlord's chances of victory. Perhaps you can point to shoddy paperwork in the preparation of the eviction lawsuit. Or maybe the landlord's illegal behavior, such as not maintaining the rental property in habitable condition, will serve as a good defense, as would a claim that the eviction lawsuit is in retaliation for your insistence on needed, major repairs.
Sheriff's Escort
Even if the landlord wins the eviction lawsuit, the landlord can't just move you and your things out onto the sidewalk. Landlords must give the court judgment to a local law enforcement office, along with a fee. A sheriff or marshal gives you a notice that the officer will be back within a few days to escort you off the property. At that point, it's best to acknowledge defeat and leave on your own steam.
Terminating a Lease or Rental Agreement FAQ
Learn how to give tenants proper notice to end a lease or rental agreement, or evict if necessary.
What are the rules for returning security deposits?
Landlords may make deductions from a tenant's security deposit, provided they do it correctly and for an allowable reason. Many states require landlords to provide a written itemized accounting of deductions for unpaid rent and for repairs for damages and necessary cleaning that exceed normal wear and tear, together with payment for any deposit balance.
The deadlines vary from state to state, but landlords usually have a set amount of time in which to return deposits, usually 14 to 30 days after the tenant moves out either voluntarily or by eviction. Florida 15 to 60 days depending on whether tenant disputes deductions.
What happens if a tenant breaks a lease?
As a general rule, a tenant is bound to the length of the lease unless the landlord significantly breaks the law or violates its terms for example, by failing to make necessary repairs, or by failing to comply with an important lease clause. A few states have laws that allow tenants to break a lease because of health problems or a job relocation that requires a permanent move. Federal law and many similar state laws allow tenants who enter active military service and related government positions to terminate a lease early.
A tenant who breaks a lease without good cause will be responsible for the remaining rent due under the lease term. In most states, however, a landlord has a legal duty to use reasonable efforts to try to find a new tenant no matter what the tenant's reason for leaving rather than charge the tenant for the total remaining rent due under the lease.
When can a landlord legally terminate a lease to end the tenancy?
A landlord may legally terminate a lease if a tenant significantly violates its terms or the law for example, by paying the rent late, keeping a dog in violation of a no pets clause in the lease, substantially damaging the property, or participating in illegal activities on or near the premises, such as selling drugs.
A landlord must first send the tenant a notice stating that the tenancy has been terminated. State laws set out very detailed requirements as to how a landlord must write and deliver (serve) a termination notice. Depending on what the tenant has done wrong, the termination notice may state that the tenancy is over and warn the tenant that he or she must vacate the premises or face an eviction lawsuit. Or, the notice may give the tenant a few days to clean up his or her act for example, to pay the rent, or to find a new home for the dog.
If the tenant fixes the problem or leaves as directed, no one goes to court. If a tenant doesn't comply with the termination notice, the landlord can file a lawsuit to evict the tenant.
The Eviction Process FAQ
Q: What can the landlord do if the tenant doesn't move after the lease is terminated?
A: The landlord has to take the tenant to eviction court. The landlord cannot evict the tenant; only a court can do that.
Q: How does the landlord terminate the lease at the expiration of the term?
A: It depends upon the type of lease.
If there is an oral lease with month to month tenancy, the landlord ends it by serving a written notice of the same length. For example, the notice must give the tenant thirty days to vacate if rent is paid monthly, and seven days if it is paid weekly, although some states have different rules. Most cities or states require that this notice be delivered personally to the tenant, although some permit delivery by mail.
If there is a written lease with a specific duration or term, the lease automatically ends on the last day of the term. However, some municipal ordinances require a 30 day written notice to the tenant before the end of the term. Without such a notice the tenant does not know whether the landlord wants to renew the lease or not. It is always a good idea for the landlord and tenant to discuss the matter well before the term ends.
Sidebar: Forcing a Tenant Out
Q: What does all this emphasis on written notices mean to the landlord?
A: In every jurisdiction the law imposes specific statutory obligations on the landlord as to the method of termination of leases. If the landlord fails to give the written notice where required or if the notice is not properly written or not properly served on the tenant, the landlord will not have the right to terminate the tenancy. When the landlord goes to court, it is already too late to correct any deficiencies in the written notice.
Q: How long does the eviction process take?
A: After the notice period expires, the landlord may file a lawsuit alleging forcible entry and unlawful detainer. The court will assign the case for trial as a "summary" or quick proceeding. Assuming proper service of the summons and complaint on the tenant, the court will render judgment after a default proceeding or trial. The trial may be scheduled as soon as two weeks after the suit is filed. In some states, the judge can order eviction immediately at the end of the trial.
But customarily the court gives the tenant time to move out, usually one to four weeks. If the tenant remains after that period, the landlord has to hire the sheriff or marshal to carry out a forcible eviction. That will take several weeks more. Further delays are possible if the tenant files a motion for more time or objects to the court determination.
Thus, the eviction process from the end of the notice period can take from five weeks to three months. And that assumes there are no delays.
Q: What happens if the tenant does not show up in court?
A: If the tenant does not respond properly to the lawsuit or show up in court, the judge will issue a default judgment in favor of the landlord. This is what happens in most eviction suits. It is obviously not in the tenant's interest to fail to appear.
Q: What kind of judgment may the court enter in an eviction case?
A: If the court rules in favor of the landlord, it may require the tenant simply to vacate the premises or to vacate and pay back rent, damages, court costs, and, in a few places, the landlord's attorney's fees.
Q: What can delay the judgment?
A: Many things. First, the landlord must hire the sheriff, a licensed process server or an attorney to serve the summons and the complaint on the tenant. If that agent is unable to serve the papers properly, the trial cannot go forward on the scheduled date and the landlord has to try again. In some jurisdictions the landlord's agent may "nail and mail" the summons and complaint (that is, post the papers on the tenant's front door and then mail copies to the tenant). In some other areas the landlord has to employ an agent to serve the papers the first time but may "nail and mail" the second time.
The trial may be delayed by procedural matters, such as problems with the landlord's termination notice or problems with the method of service of that notice or of the court summons and complaint. Or the tenant may request certain procedural rights, such as pretrial investigation of the facts or a jury trial.
Action may also be delayed if the tenant has substantive defenses against the eviction, such as the landlord's violation of the implied warranty of habitability, discrimination, or retaliation.
Q: Can the landlord take the tenant's possessions or physically throw the tenant out after the court allows eviction?
A: No. The landlord must have the sheriff or other proper authority carry out the physical eviction. Only the court can evict a tenant, and the purpose of the court proceedings is to prevent the landlord from "self help" evictions. If the court issues a judgment for unpaid rent, the landlord must use the normal debt collection procedures, which may include partial wage garnishment and attachment of bank accounts.
Q: Does the tenant owe rent after the termination of the lease and being evicted?
A: The landlord and the court may terminate the right of the tenant to occupy the premises. However, in many areas the tenant can still be held liable for the payment of rent if the lease provides for it. But it is unusual for the landlord to sue the tenant a second time if the reason for the first lawsuit was nonpayment of rent.
As any experienced landlord will attest, there are occasional tenants who do things that are so outrageous that the landlord is tempted to bypass normal legal protections and take direct and immediate action to protect the property. A landlord may often consider changing the locks, cutting off the utilities or putting the tenant's property out in the street. However, landlords who take matters into their own hands will not be excused by the tenant's egregious conduct. The fact that a tenant did not pay rent, damaged the property, verbally abused the manager, or otherwise acted outrageously is simply not a valid defense under Florida law. A landlord resorting to self help may well end up being held liable for trespass, assault, battery, slander or libel, intentional infliction of emotional distress, and wrongful eviction. Defending a lawsuit will cost far more than evicting the tenant using statutorily authorized mechanisms.
A landlord can legally terminate a lease and force the tenant out of the property for good cause. Good cause can be shown by nonpayment of rent, damage to the premises, or violation of the rules and regulations of the lease. The most common lease violations are disturbing the neighboring tenants with noise, possession of pets, and occupancy by persons not named on the lease. Often the landlord must give the tenant a short period in which to correct the problem before eviction action begins.
How Evictions Work: What Renters Need to Know
Landlords can't just lock you out, even if you are behind on rent. They must get a court judgment first.
Your landlord can't evict you without terminating the tenancy first. This usually means giving you adequate written notice, in a specified way and form. If you don't move after proper notice (or reform your ways for example, by paying the rent or finding a new home for the dog), the landlord can file a lawsuit to evict you. (This type of lawsuit is sometimes called an unlawful detainer, or UD lawsuit.) In order to win, the landlord must prove that you did something wrong that justifies ending the tenancy.
State laws have very detailed requirements for landlords who want to end a tenancy. Each state has its own procedures as to how termination notices and eviction papers must be written and delivered to you ("served"). Landlords must follow state rules and procedures exactly.
Notice of Termination for Cause
Although terminology varies somewhat from state to state, there are basically three types of termination notices that you might receive if you have violated the rental agreement or lease in some way:
- Pay Rent or Quit Notices are typically given to you when you have not paid the rent. These notices give you a few days (three to five in most states) to pay the rent or move out ("quit").
- Cure or Quit Notices are typically given to you if you violate a term or condition of the lease or rental agreement, such as a no pets clause or the promise to refrain from making excessive noise. Usually, you have a set amount of time in which to correct, or "cure," the violation.
- Unconditional Quit Notices are the harshest of all. They order you to vacate the premises with no chance to pay the rent or correct a lease or rental agreement violation. In most states, unconditional quit notices are allowed only if you have:
- repeatedly violated a significant lease or rental agreement clause
- been late with the rent on more than one occasion
- seriously damaged the premises
- engaged in serious illegal activity, such as drug dealing on the premises
Notice of Termination Without Cause
Even if you have not violated the rental agreement and have not been late paying rent, a landlord can usually ask you to move out at any time (assuming you don't have a fixed term lease) as long as the landlord gives you a longer notice period.
A 30 Day Notice to Vacate or a 60 Day Notice to Vacate to terminate a tenancy can be used in most states when the landlord does not have a reason to end the tenancy. (The length of the required notice can be slightly longer or shorter in some states.)
Rent Control Exceptions. Many rent control cities, however, go beyond state laws and require the landlord to prove a legally recognized reason for termination. These laws are known as "just cause eviction protection." (Tenants in only a couple of states New Jersey and New Hampshire also enjoy just cause eviction protection.)
Eviction Lawsuit
Following receipt of a termination notice, if you haven't moved out or fixed the lease or rental agreement violation, the landlord must properly serve you with a summons and complaint for eviction in order to proceed with the eviction.
Possible Defenses
If you do get hauled into court, you may be able to diminish the landlord's chances of victory. Perhaps you can point to shoddy paperwork in the preparation of the eviction lawsuit. Or maybe the landlord's illegal behavior, such as not maintaining the rental property in habitable condition, will serve as a good defense, as would a claim that the eviction lawsuit is in retaliation for your insistence on needed, major repairs.
Sheriff's Escort
Even if the landlord wins the eviction lawsuit, the landlord can't just move you and your things out onto the sidewalk. Landlords must give the court judgment to a local law enforcement office, along with a fee. A sheriff or marshal gives you a notice that the officer will be back within a few days to escort you off the property. At that point, it's best to acknowledge defeat and leave on your own steam.
Terminating a Lease or Rental Agreement FAQ
Learn how to give tenants proper notice to end a lease or rental agreement, or evict if necessary.
What are the rules for returning security deposits?
Landlords may make deductions from a tenant's security deposit, provided they do it correctly and for an allowable reason. Many states require landlords to provide a written itemized accounting of deductions for unpaid rent and for repairs for damages and necessary cleaning that exceed normal wear and tear, together with payment for any deposit balance.
The deadlines vary from state to state, but landlords usually have a set amount of time in which to return deposits, usually 14 to 30 days after the tenant moves out either voluntarily or by eviction. Florida 15 to 60 days depending on whether tenant disputes deductions.
What happens if a tenant breaks a lease?
As a general rule, a tenant is bound to the length of the lease unless the landlord significantly breaks the law or violates its terms for example, by failing to make necessary repairs, or by failing to comply with an important lease clause. A few states have laws that allow tenants to break a lease because of health problems or a job relocation that requires a permanent move. Federal law and many similar state laws allow tenants who enter active military service and related government positions to terminate a lease early.
A tenant who breaks a lease without good cause will be responsible for the remaining rent due under the lease term. In most states, however, a landlord has a legal duty to use reasonable efforts to try to find a new tenant no matter what the tenant's reason for leaving rather than charge the tenant for the total remaining rent due under the lease.
When can a landlord legally terminate a lease to end the tenancy?
A landlord may legally terminate a lease if a tenant significantly violates its terms or the law for example, by paying the rent late, keeping a dog in violation of a no pets clause in the lease, substantially damaging the property, or participating in illegal activities on or near the premises, such as selling drugs.
A landlord must first send the tenant a notice stating that the tenancy has been terminated. State laws set out very detailed requirements as to how a landlord must write and deliver (serve) a termination notice. Depending on what the tenant has done wrong, the termination notice may state that the tenancy is over and warn the tenant that he or she must vacate the premises or face an eviction lawsuit. Or, the notice may give the tenant a few days to clean up his or her act for example, to pay the rent, or to find a new home for the dog.
If the tenant fixes the problem or leaves as directed, no one goes to court. If a tenant doesn't comply with the termination notice, the landlord can file a lawsuit to evict the tenant.
The Eviction Process FAQ
Q: What can the landlord do if the tenant doesn't move after the lease is terminated?
A: The landlord has to take the tenant to eviction court. The landlord cannot evict the tenant; only a court can do that.
Q: How does the landlord terminate the lease at the expiration of the term?
A: It depends upon the type of lease.
If there is an oral lease with month to month tenancy, the landlord ends it by serving a written notice of the same length. For example, the notice must give the tenant thirty days to vacate if rent is paid monthly, and seven days if it is paid weekly, although some states have different rules. Most cities or states require that this notice be delivered personally to the tenant, although some permit delivery by mail.
If there is a written lease with a specific duration or term, the lease automatically ends on the last day of the term. However, some municipal ordinances require a 30 day written notice to the tenant before the end of the term. Without such a notice the tenant does not know whether the landlord wants to renew the lease or not. It is always a good idea for the landlord and tenant to discuss the matter well before the term ends.
Sidebar: Forcing a Tenant Out
Q: What does all this emphasis on written notices mean to the landlord?
A: In every jurisdiction the law imposes specific statutory obligations on the landlord as to the method of termination of leases. If the landlord fails to give the written notice where required or if the notice is not properly written or not properly served on the tenant, the landlord will not have the right to terminate the tenancy. When the landlord goes to court, it is already too late to correct any deficiencies in the written notice.
Q: How long does the eviction process take?
A: After the notice period expires, the landlord may file a lawsuit alleging forcible entry and unlawful detainer. The court will assign the case for trial as a "summary" or quick proceeding. Assuming proper service of the summons and complaint on the tenant, the court will render judgment after a default proceeding or trial. The trial may be scheduled as soon as two weeks after the suit is filed. In some states, the judge can order eviction immediately at the end of the trial.
But customarily the court gives the tenant time to move out, usually one to four weeks. If the tenant remains after that period, the landlord has to hire the sheriff or marshal to carry out a forcible eviction. That will take several weeks more. Further delays are possible if the tenant files a motion for more time or objects to the court determination.
Thus, the eviction process from the end of the notice period can take from five weeks to three months. And that assumes there are no delays.
Q: What happens if the tenant does not show up in court?
A: If the tenant does not respond properly to the lawsuit or show up in court, the judge will issue a default judgment in favor of the landlord. This is what happens in most eviction suits. It is obviously not in the tenant's interest to fail to appear.
Q: What kind of judgment may the court enter in an eviction case?
A: If the court rules in favor of the landlord, it may require the tenant simply to vacate the premises or to vacate and pay back rent, damages, court costs, and, in a few places, the landlord's attorney's fees.
Q: What can delay the judgment?
A: Many things. First, the landlord must hire the sheriff, a licensed process server or an attorney to serve the summons and the complaint on the tenant. If that agent is unable to serve the papers properly, the trial cannot go forward on the scheduled date and the landlord has to try again. In some jurisdictions the landlord's agent may "nail and mail" the summons and complaint (that is, post the papers on the tenant's front door and then mail copies to the tenant). In some other areas the landlord has to employ an agent to serve the papers the first time but may "nail and mail" the second time.
The trial may be delayed by procedural matters, such as problems with the landlord's termination notice or problems with the method of service of that notice or of the court summons and complaint. Or the tenant may request certain procedural rights, such as pretrial investigation of the facts or a jury trial.
Action may also be delayed if the tenant has substantive defenses against the eviction, such as the landlord's violation of the implied warranty of habitability, discrimination, or retaliation.
Q: Can the landlord take the tenant's possessions or physically throw the tenant out after the court allows eviction?
A: No. The landlord must have the sheriff or other proper authority carry out the physical eviction. Only the court can evict a tenant, and the purpose of the court proceedings is to prevent the landlord from "self help" evictions. If the court issues a judgment for unpaid rent, the landlord must use the normal debt collection procedures, which may include partial wage garnishment and attachment of bank accounts.
Q: Does the tenant owe rent after the termination of the lease and being evicted?
A: The landlord and the court may terminate the right of the tenant to occupy the premises. However, in many areas the tenant can still be held liable for the payment of rent if the lease provides for it. But it is unusual for the landlord to sue the tenant a second time if the reason for the first lawsuit was nonpayment of rent.