Unlawful Detainer vs Eviction Pursuant to Lease

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.

10 replies
    • Philippe Revah
      Philippe Revah says:

      Jennifer,

      The short answer to your question is yes. Depending on the facts of your case, however, if the writ of possession has been executed, that person cannot be invited back in as that would violate the terms of a final judgment of unlawful detainer which usually provides that the named defendant is dispossessed. If the named defendant returns after execution of the writ, that is a trespass and they can be removed by local law enforcement without resort to the courts again (since the writ of possession was presumably already executed and the judgment already entered). Every case is different. Feel free to call for a more detailed consult.

      Reply
  1. Rocco Sciascia
    Rocco Sciascia says:

    I filed and UD with Seminole County Court on 22 May and as of 4 June 2020 defendants have not been served. When I inquired with the clerk of Court, they couldn’t tell me the reason. I asked the Sheriff and was told that clarification was being sought on whether UD fall under the moratorium on evictions. My case does not involve leases or rents. I have squatters living on my property for free, using utilities that I pay and damaging my property and yet the Court is not acting as it should.

    Reply
  2. Danny Chastain
    Danny Chastain says:

    I invited a friend to stay in a spare room in my mobile home, which I own, but not the property it is on. (he became unable to pay his own rent due to a lack of work and needed a place to stay). I had expected him to find another job and move into his own place. He did not do this but did start drawing early social security retirement, which is less than SSI. After 6 months of being in my home I started having him pay part of the electricity and cable, but never any rent for the room. Could I use the Florida unlawful detainer or will I need to file an eviction?

    Reply
    • Philippe Revah
      Philippe Revah says:

      Hi Danny

      Attorney Phil Revah here. A lawsuit for eviction or a lawsuit for unlawful detainer can be filed, these overlapping remedies. However, I cannot give legal advise over this forum with the limited information provided. Please feel free to reach out to an attorney at our firm by calling the number at the top right hand corner of our main page.

      Thanks

      Reply
  3. Corrinne Smalley
    Corrinne Smalley says:

    Tenant of 15 years let his daughter move in temporarily to help him out. She refuses to leave with her husband and children. If he leaves the unit (because he is so miserable), would I do an Unlawful Detainer to get her out or an eviction? We never had an agreement with her directly. She was never our tenant.

    Reply
  4. JMCD
    JMCD says:

    Just read and realized UD is my likely course of action. My sister is still living for free in my mothers home. My mother hasn’t lived there for a year as she has been in nursing home and assisted living, and will remain there. As POA I have told my sister for a year she must move out, she never paid rent, or utilities or contributed. She doesn’t work, has no income and was allowed to transition there when her home was foreclosed 7 years ago. Is UD my course of action and do I need an attorney? In addition to POA I am the property owner at time of death. JMcD

    Reply
    • Philippe Revah
      Philippe Revah says:

      Good Afternoon,

      This is attorney Phil Revah. I have read your comment. The key question is whether a possible landlord-tenant relationship was formed. If so, then an eviction is correct cause of action. If not, then an unlawful detainer may be the correct cause of action. I provide free consultations over the phone, so please feel free to reach out at the number on our website for a free consult. We can flush out the specific facts of your case to determine which is the proper course of action, but just based on your submission, it sounds like an unlawful detainer action will be the correct course of action for you.

      Reply
  5. paul e colantonio
    paul e colantonio says:

    I have been renting for 2 years and the owner lived on the back of the property using my utilities and recently sold the house and now I have been served by new owner for unlawful detainer.
    I have kids here that been enrolled for the 2 years DL for this address power bill, cble, government assistance since day 1. how can this be an unlawful detainer?

    Reply

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