Unlawful Detainer vs Evictions Under Florida Law

Unlawful Detainer vs Eviction Under Florida Law

Differentiating between the different types of “occupants” of real property will enable us to better understand the difference between eviction actions and unlawful detainer actions. At base, eviction lawsuits always involve at least two kind of parties, a landlord and a tenant.

The landlord is the owner of the property, while the tenant has a leasehold interest in the property. The tenant’s leasehold interest in the property gives the tenant the right to possession for a given duration, and if the duration of the lease is not specified, the tenant is deemed a month to month tenant by operation of law. See Fla Stat § 83.46. Normally, in exchange for the Tenant’s possession, use, and enjoyment of the real property, the tenant will pay rent or provide some other good or service to the landlord. But let’s assume a tenant stops paying rent, or a tenant breaches their lease in some other material way. The non-paying/breaching tenant is now in breach of the lease contract with the landlord. Herein lies the difference between an eviction and an unlawful detainer. An eviction is a lawsuit in which a landlord sues to regain possession of the real property (and/or money damages) because the tenant has breached some material term of a lease. With evictions, there must be a landlord-tenant relationship between the owner of the property and the occupant. Some examples of a tenant breach that might result in a landlord filing an eviction is when the tenant does not pay the rent, or has unauthorized residents or pets, or fails to pay late fees. In sum, evictions are lawsuits landlords file once a tenancy, which is created pursuant to a lease agreement, is properly terminated. Again, with evictions there is always a landlord/tenant relationship. This is markedly different from an unlawful detainer action.

Unlawful detainer actions are governed by Chapter 82 of the Florida Statutes. With unlawful detainer actions, there is no landlord-tenant relationship between the owner of the real property and its occupant. Unlike evictions, unlawful detainer actions are filed when property owners want to remove occupants that previously had permission to reside at the property, but have now had their permission to reside revoked by the owner. Unlawful entry/detainer actions are also filed when a real property owner needs to remove squatters or unknown persons from the property. In every instance, an unlawful detainee is somebody who continues in possession of the real property against the consent of the property’s owner, and without a valid lease. Like evictions, however, unlawful detainer actions will ultimately determine which party is entitled to possession. Consider the following scenario: a boyfriend and girlfriend live together at the girlfriend’s house and they break up. The girlfriend then politely asks her ex-boyfriend to leave. The ex-boyfriend never paid any rent or contributed to any living expenses. In our example, if the boyfriend fails to leave, the girlfriend would not file an eviction action to remove the ex-boyfriend. Instead, the girlfriend would file an unlawful detainer action. Under Florida law, an unlawful detainer action is used is situations where there is no landlord tenant relationship between the plaintiff and the defendant. An unlawful detainer action strictly resolves the question of who is entitled to possession. Thus, title to the property does not matter for purposes of an unlawful detainer. The only thing that matters is who has the superior right to possession of the property. Unlawful detainer actions are normally used in the context of removing friends, family members, or guests who have overstayed their welcome. If you need help deciding whether you should file an eviction or unlawful detainer action against an occupant of real property, or if you believe you are being wrongfully removed from possession of real property, call a lawyer at EVICT FL today for a free consultation at (800) 531-4587.

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