Ejectments vs Evictions under Florida Law

EJECTMENTS VS EVICTIONS UNDER FLORIDA LAW

Ejectment vs Eviction Under Florida Law.

In general, an eviction is a lawsuit filed by a landlord against a tenant to regain possession of the property. Evictions are filed under Chapter 83 of the Florida Statutes once proper notice of termination of tenancy has been delivered by the landlord or landlord’s agent to the tenant. For example, if a tenant fails to pay rent pursuant to the tenant’s lease, the landlord would deliver a 3 day notice to pay rent or vacate to the tenant. If the tenant fails to pay rent or vacate within 3 days of delivery of the notice, the tenancy is terminated and the landlord’s lawyer would then file an eviction lawsuit.Under Florida law, the landlord must file the eviction in the county court where the property is located. Evictions are summary procedure actions under Fla. Stat. § 51.011. Summary procedure actions are lawsuits which the Florida legislature has deemed worthy of being advanced on the court’s otherwise busy calendar, usually because of the time-sensitive nature of the lawsuit. To illustrate, if a tenant fails to pay rent, a landlord needs to regain possession of the rental as quickly as possible or the landlord might suffer irreparable harm or undue hardship in the form of lost rental income. This is likely why the Florida legislature has deemed evictions and other lawsuits involving possession of property as “summary procedure” actions. Because evictions are summary procedure lawsuits under Fla. Stat. §51.011, a tenant has 5 days from the date of service of process of an eviction summons to file a response. This 5 day response window is to be differentiated from a normal civil action that is not afforded “summary procedure.” With a non-summary procedure action, a Defendant would have 20 calendar days, not 5 days, to file a response in court.

Ejectment lawsuits, on the other hand, are governed by Chapter 66 of the Florida Statutes. Ejectment lawsuits, unlike evictions, normally involve questions of title to real property, and not merely issues of possession. Ejectment lawsuits are filed in the Circuit Court where the property is located, (See Fla. Stat. § 26.012(2)(f)) not the county court (as is the case with evictions or unlawful detainers, See Fla. Stat. § 34.011(1)). Also unlike evictions, ejectment lawsuits are not afforded the statutory summary procedure benefit. To file an ejectment lawsuit, the owner of real property is required prove up title to the property, usually by way of attaching a deed to the complaint for ejectment. Note, the Deed should be recorded in the official records of the county where the property is located. Note, proving title is not necessary to file an eviction. For evictions, the complainant need only prove a right of possession pursuant to some lease agreement or other arrangement; a complainant in an eviction or unlawful detainer case need not prove title/ownership in order to file suit, as is the case with an ejectment.

Consider the following example: A holds title to real property in Miami-Dade County. Let’s call the real property Shadyacres. A then executes a rental agreement with B for 2 years, pursuant to which B will pay rent to for the use and enjoyment of Shadyacres. B then decides to sublease Shadyacres because B must leave the country on emergency. So, B in turn executes a sublease with C. If C breaches the terms of the sublease arrangement, B may terminate the sublease with C and sue for eviction, even though B does not hold title to the property. B can evict C because B has a superior right of possession (assuming C violates some term of the sublease and B properly terminates the sublease).

Now, lets assume that B never subleases to C, but instead, that B allows a family member, D, to reside at the property for free, and for 1 month. 2 months go by and family member D refuses to leave. In order to remove D from the property, should B file an ejectment, eviction, or unlawful detainer lawsuit? B shouldn’t file an ejectment because B does not have title to the real property; only A can file the ejectment because only A has title to the real property. B also shouldn’t file an eviction because B and family member D do not have a lease or sub-lease agreement (D is living for free as a guest), and there is no landlord-tenant relationship. Here, B should file an unlawful detainer action to remove family member D. Under Florida law, D is said to be “unlawfully detaining” the property against B’s superior right of possession, and against B’s permission and consent.

To help us better understand ejectment, let us consider another example. Say for instance A desires to sell his real property to B under a land purchase installment contract. Note, a land purchase installment contract is not a lease; rather, the buyer is said to be purchasing the property in installments. Under the land purchase installment agreement, B will make periodic, monthly purchase payments to A in the amount of $5,000 per month for 12 months, for a total of $60,000. The contract states that at the end of the 12 months, assuming B makes all 12 payments, A will convey, by way of a Deed (quitclaim or warranty deed), the real property to B. Then, 4 months into the arrangement, B fails to make any further monthly purchase payments. A now wants to rescind the contract and regain possession of the real property. Does A file for eviction? The answer is no because B does not occupy the property pursuant to a lease (wherein filing an eviction would be appropriate); rather, B occupies the property pursuant to a real estate purchase contract. Again, A and B do not have a lease (they have a land purchase installment contract) and there is no landlord-tenant relationship. Here, if A wants to regain possession of the property, A will have to file an ejectment lawsuit in Circuit Court. If A wrongfully files an eviction (in county court), the lawsuit will be dismissed against B because of A’s failure to use the correct legal theory for the case. The court will usually give A the chance to amend its complaint and transfer venue from the county court to the higher circuit court. In sum, under Florida law, ejectment lawsuits can be filed by property owners only, e.g., title holders.

Ejectments are normally filed in the following situations. (1) A bank forecloses on its mortgage and the borrower/mortgagor refuses to vacate after the property is sold pursuant to a judgment of foreclosure, at the foreclosure auction. Here, the successful bidder at the foreclosure auction, who is now the new owner, would file an ejectment against the former owner/ foreclosed-borrower. Note, the successful bidder/new owner could also petition the foreclosure court for the issuance of a writ of possession. (2) A fraudulent deed is recorded in the county records. The fraudulent deed shows that A, who is currently in possession of the real property, is the owner of record.  B, the true owner, realizes that a fraudulent deed has been recorded in the county records. To remove A from the property, B must file an ejectment lawsuit proving that it has valid title. Un-relatedly,  in order to “set aside” A’s fraudulent deed, B must also file a quiet title action against A.

In sum, with ejectments, the Defendant(s) is claiming some interest, right, or title to real property above and beyond possession. Unlike evictions, ejectments do not involve a landlord-tenant relationship between the adverse parties. And unlike unlawful detainers, ejectments present a questions of competing title or interest in real property. If you need to file an ejectment in Florida, call an ejectment lawyer at EVICT FL today for a free consultation at (800) 531-4587.

Leave a Reply

Your email address will not be published. Required fields are marked *