FOR NON PAYMENT OF RENT
The laws of Florida and most states are subject to change. Please see the current Florida Statutes, specifically Chapter 83 of Florida Statutes. This chapter is the definitive law in Florida on residential evictions.
Filing fees change, usually by increasing and rarely decreasing. The current filing fee in the State of Florida for a residential eviction in small claims court is $280.00 and is payable to the Clerk of Court in the form of cash or check at the time of filing of the complaint. An additional fee of $10.00 per party is charged for Summons. The Clerk may also require stamped envelopes for mailing of the complaint to the tenant. Bring one for each party. Fees are subject to change. Be prepared.
Florida evictions and the complaint employ a hybrid system, one for possession of the property and one for recovery of damages. You may file a complaint that includes a count for possession only or you may file a complaint that includes a count for possession as well as a count for damages (past due rent and other damages). A Summons for simple possession of the property requires one form and service of the Summons for damages requires a different form. The Summons may be served separately or together.
If you are filing for simple possession of the property then the Summons is known as a five day Summons—because the tenant has five days to respond to the complaint. If you are filing a complaint that includes a count for damages (past due rent or other damages) then the Summons is known as a twenty day Summons—because the tenant has twenty days to respond. Five day summons may be posted on the property on the third attempt at service, should the first two attempts at service fail. A twenty day Summons must be personally served upon the defendant.
Example: The tenant is not at home at the first attempt at service. The second attempt must be six hours after the first attempt. If the tenant is not home at the second attempt the third attempt can be ten minutes later and the Summons may then be posted conspicuously upon the property—generally affixed to the front door. At some time thereafter the tenant may be personally served with the twenty day Summons which includes the complaint for damages. In this example the complaint for possession of the property can move forward so that the landlord may regain possession of the property at the earliest possible time.
Step One: The Three-Day Notice.
Prior to filing a Complaint to recover possession, a landlord must serve a Three-Day Notice. The Three Day Notice is one that demands payment of rent or possession of the premises within three (3) days (excluding Saturday, Sunday, and legal holidays) after the date of delivery of notice. Only after the expiration of the time period on the Three-Day Notice may you proceed with filing the Complaint. You do not count the day that you post the Notice. Be careful as to the counting of the days. The Three Day Notice may be posted on the door or given to the tenant. The method of service must be noted on the Three Day Notice
Step Two: The Complaint and Summons
Prepare Complaint: You must prepare the Complaint according to the instructions given in this tutorial. The landlord shall file the original Complaint and enough copies of the Complaint for each tenant with the Clerk. You must attach a copy of the Three-Day Notice and a copy of the lease, if one exists. You must also attach a copy of the notice and lease to each copy of the Complaint. Some jurisdictions require that the complaint be signed in front of the clerk or be notarized. Upon filing ask the Clerk for the courtroom number and the phone number of the judge (and his or her assistant) assigned to your matter. You will need these numbers.
Issuance of Summons: After the Complaint is filed and the proper fee paid, the Clerk will issue an Eviction Summons/Residential. You may also prepare the Summons using the forms contained in this lesson. A copy of the Complaint, three-day notice, and lease (if one exists) will be attached for service on the tenant. The Sheriff or a private process server can serve the Summons. The clerk will ask you your preference as to Service. The Sheriff fee for service is generally $20.00--$40.00 but is subject to increase. A private process server may charge $30.00 more but could also be faster, which is a concern in any eviction. Some jurisdictions require that you personally deliver the Summons to the Sheriff’s Office, which can be an additional time consuming task. Most private process server’s have a drop box at the Clerk’s office. Inquire of the clerk as to who has a drop box and contact that private process server to inform him that you have placed a summons in his box for service and additionally, you may then negotiate a fee, rush service, and service of both the five day and twenty day summons, if so desired.
Certificate of Mailing: Most jurisdictions will require that you bring enough stamped envelopes for each tenant for mailing of the complaint by the Clerk to the tenant. This is to insure that the tenant receives the complaint regardless of service of process. Certificate of Mailing.
Step Three - Day in Court
Answer by Tenant to a Five Day Summons: The tenant has five days (exclusive of Saturdays, Sundays and holidays) after service of the Summons to file an answer. There are three or four usual scenarios:
1. DEFAULT--Tenant Does Not Respond. File a Motion For Default for issuance by the Clerk. The Clerk is authorized to enter a Default at the end of five days after service is obtained upon the tenant. After the Clerk’s Default is obtained file a Motion For Final Judgement of Possession accompanied by an Order for Final Judgement For Possession. None of this should require a hearing but you must continually check with the judge’s assistant or the Clerk to see if your matter has been concluded. The judge should sign the Order in chambers. Upon receipt of the Order for Final Judgement For Possession from the Judge the Clerk will prepare or you will give the clerk for preparation a Writ of Possession. That Writ of Possession must then be taken to the Sheriff for execution. The fee is currently $70.00 for execution of a Writ of Possession. Generally, the Sheriff takes two or three days to serve the Writ. The Writ must be posted to the door of the property and gives the tenant 24 hours to vacate. Some jurisdictions (notably Miami-Dade County) do not count the day of service and begin the 24 hours after midnight on the day of service thereby allowing the tenant more that 24 hours. Additionally, the Sheriff’s offices are swamped with evictions in the larger counties due to the foreclosure issues. You must be vigilant in contacting the sheriff and getting your Writ served timely. You must also furnish the Clerk with pre-addressed stamped envelopes to the tenant(s) and yourself for mailing of the conformed copy of the Final Judgment.
2. The tenant files an answer without any payment of rent. If the tenant does not deposit the amount of rent as stated in the complaint into the Court Registry or does not file a Motion for Determination of Rent then the Court is bound to issue a default against the tenant and in favor of the landlord. If the tenant does not deposit any rent some jurisdictions will require a Motion To Strike Defendant’s Answer prior to issuance of a default. File the Motion To Strike Defendant’s Answer accompanied by an Order Striking Defendant’s Answer and continually monitor the judge’s assistant to get the Order signed. After the Order Striking Defendant’s Answer is signed follow the steps above in #1.
3. The tenant files an Answer and pays some rent. You must then file a Motion To Determine Rent, set a hearing and prove to the judge that the tenant has failed to pay the rent as due. Step four then governs.
4. The tenant files an Answer and a Motion To Determine Rent. If the tenant does not deposit the amount of rent as stated in the complaint into the Court Registry or file a Motion for Determination of Rent then the Court is bound to issue a default against the tenant and in favor of the landlord. A Motion for Determination of Rent is a motion by the tenant that generally claims that some rent is due but not the amount that the landlord claims. A hearing must be set by contacting the judge’s assistant. It is in the best interests of the landlord to set that hearing as soon as possible as the landlord is trying to regain possession as quickly as possible. Be prepared at the hearing to document that the amount of rent as claimed in the complaint is proper. The judge will then decide the amount of rent due and will give the tenant a specific period in which to deposit the rent into the court registry. Make sure that you ask the judge to issue a default immediately upon expiration of the time period if the defendant does not deposit the full amount of the rent into the Court Registry. If the defendant pays the amount of rent as set by the judge then you have a battle on hand but at least you can collect the rent. If the tenant does not deposit the amount of rent as directed by the judge then the judge will issue a default and you must then file a Motion For Final Judgement of Possession accompanied by an Order for Final Judgement For Possession. After that Order is signed follow the steps in #1 for the Writ of Possession. Sometimes tenants file an answer without any payment of rent.
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