| Feb 04, 2017
1. Breach of lease by the tenant
A landlord must have cause before they are able to terminate a lease agreement and evict the tenant. The “cause” usually comes in the form of some sort of breach of the lease agreement and/or violation of state law. Some common ways in which tenants breach their lease agreements and/or state law are provided for below. Each of these actions by the tenant may create the “cause” needed for a landlord to begin the eviction process. However, it is always best to consult with one of our Orlando eviction attorneys to see if your tenant’s actions rise to the level of being able to provide them with an eviction notice.
- Tenant’s failure to pay rent when it is due
- Tenant’s failure to pay late fees on past due rent
- Tenant’s failure to vacate the property at the end of the lease
- Tenant’s failure to maintain the property in a clean habitable condition
- Tenant’s failure to comply with local code enforcement authorities
- Tenant’s failure to allow reasonable access to landlord
- Tenant allowing additional people to reside in the property
- Tenant having pets that are not permitted per the lease
2. Provide tenant with a default notice
Once the landlord has identified that the tenant has committed a breach of the lease agreement, which justifies eviction, they must then provide a notice of default. The type of default notice that must be provided to the tenant depends on the default itself. For example, a tenant who fails to pay rent when it is do must be provided with a minimum of 3 days’ notice within which to pay rent or vacate. Evictions for non-payment of rent as synonymous with a 3-day notice. If the tenant fails to pay rent or vacate within the 3-day period, the landlord is then able to file for an eviction to have the tenant removed.
Evictions based upon reasons other than non-payment of rent usually require that the landlord provide the tenant with at least 7-days’ notice to correct the issues or vacate the property. A 7-day notice, with an opportunity to cure, is usually provided to a tenant in the event of a minor default, such as not maintaining the yard or disturbing others around them. In more severe situations a landlord may provide the tenant with 7-days’ notice to vacate the property, without an opportunity to cure the default. This means that the tenant has committed such a serious breach of the lease agreement that their lease will be terminated and they must vacate within 7-days’ time.
Regardless of the type of default notice provided to the tenant, if the tenant does not comply with the notice’s instructions by the deadline provided the landlord is then able to file for eviction. We always suggest speaking with an eviction lawyer prior to even providing the tenant with a default notice to ensure that the notice you provide is not defective. Providing a tenant with a defective default notice can result in wasted time and may prevent the landlord from filing for eviction until the errors in the notice are corrected. Our Orlando eviction attorneys are usually willing to review your default notice free of charge so as to avoid any delay in the eviction process.
3. File the eviction
Once a landlord has provided their tenant with a default notice and the tenant has failed to either pay rent, correct the default, or vacate the property by the deadline, the landlord may proceed with filing for eviction. An eviction is considered a civil lawsuit where the plaintiff (usually the property owner) is asking the Court to enter an order awarding them possession of a rental property. Prior to filing the eviction the plaintiff must draft the eviction complaint, which provides the reasons why they are asking a court to evict the defendants. The eviction complaint usually has copies of the lease agreement, if there is one, and default notice attached to it in order to provide evidence of the reason that the eviction in necessary.
Once the eviction complaint is drafted the next step is to file the complaint and summonses with the clerk of court. Most counties charge a filing fee of $185.00 to file the eviction lawsuit plus a cost of $10.00 per summons, per defendant. Upon filing the lawsuit the clerk’s office will provide you with a case number and issue summonses for the Defendants. The documents must then be provided to either the sheriff’s office or a private process server to be served at the rental property.
4. Serve the tenant with eviction paperwork
Most counties allow Plaintiffs to use a private process server to serve the tenants with the eviction instead of having a sheriff serve the paperwork. Evictions are one of the few types of lawsuits where the paperwork itself can be posted to the property instead of having to personally serve the Defendants themselves. In order for the process server or sheriff to be able to post the lawsuit to the property, they must first make two attempts to serve the Defendants personally. The second attempt to serve the eviction must be at least 6 hours after the first attempt is made. If after the second attempt the server is still not able to personally serve the tenants they are then allowed to post the lawsuit to the property—this usually entails taping the paperwork to the front door. Once the tenants are served with the lawsuit, they will have five days to file their response with the Court.
5. Provide tenant with five business days to respond
The five days following the date that the tenants are served with the lawsuit can be the most critical in any eviction action. The tenants will have five days, not including weekends or legal holidays, from the date of service to file a response with the Court. Generally speaking, in addition to their answer to the eviction, the tenants must also deposit the rents alleged as due with the Court’s registry or file a motion to determine rent.
6. Apply to the Clerk of Court for a default
As stated above, the tenants generally have five days to file an answer to the eviction lawsuit and deposit rent or file a motion to determine rent. If the tenants fail to file any paperwork whatsoever, the landlord is then able to apply to the clerk of the court for a clerk’s default. This is a document issued by the clerk’s office that certifies that the tenants failed to file a response to the eviction within the five days provided. In situations where the tenants do not respond, the eviction is considered to be uncontested. Once the clerk of the court has issued the default, the landlord may then proceed with applying to the Judge to have a final eviction judgment issued.
7. Obtain final judgment of eviction
Once the clerk of the court has issued the clerk’s the default, the plaintiff is now able to apply to the court for a final eviction judgment. Each county has own procedures regarding how a landlord must go about filing the motion and having the Judge issue the final judgment. Some counties require the plaintiff is appear in-person and present the paperwork to the judge for signature, while other counties allow the plaintiff to submit their proposed judgment electronically. Either way, once the judgment is signed the homeowner is now able to apply for a writ of possession to remove the tenants from the rental property.
8. Provide sheriff with writ of possession
The writ of possession is a document that will be issued by the clerk of the court once the Judge has signed the final eviction judgment. A writ of possession is a “24-hour notice” that will be posted to the rental property by the sheriff’s office. The sheriff’s office usually charge $90.00 to provide the tenants with the writ of possession and to remove them from the property. It is only once the writ of possession has been executed that the property owner can proceed with having the locks changed, if need be.
While an uncontested eviction may seem simplistic in theory, the process can often times be difficult and cumbersome. One of the biggest risks that a landlord faces when trying to file an eviction on their own is the possibility of having attorney’s fees assessed against them. While the majority of our landlord-tenant practice is geared towards assisting landlords to evict their tenants, our Orlando eviction attorneys also represent tenants in defending against evictions. If an eviction is dismissed because a landlord’s mistake, the prevailing attorney is able to request that the Court enter an order requiring the landlord to pay for the tenant’s attorney’s fees. Before you try to file an eviction on your own call us to today to speak with an experienced eviction lawyer who can help you through the process.