Florida Statutes

Fla. Stat. § 78.10 (2025)

Writ; execution on property in buildings or enclosures.

✓ 2025 Florida Statutes — current through the 2025 Regular Session

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78.10 Writ; execution on property in buildings or enclosures.—In executing the writ of replevin, if the sheriff has reasonable grounds to believe that the property or any part thereof is secreted or concealed in any dwelling house or other building or enclosure, the sheriff shall publicly demand delivery thereof; and, if it is not delivered by the defendant or some other person, the sheriff shall cause such house, building, or enclosure to be broken open and shall make replevin according to the writ; and, if necessary, the sheriff shall take to his or her assistance the power of the county. However, if the sheriff does not have reasonable grounds to believe that the property to be replevied is secreted or concealed in any dwelling house or other building or enclosure, the plaintiff may petition the court for a “break order” directing the sheriff to enter physically any dwelling house or other building or enclosure. Upon a showing of probable cause by the plaintiff, the court shall enter such “break order.”

History.—s. 7, Mar. 11, 1845; RS 1716; GS 2180; RGS 3485; CGL 5338; s. 28, ch. 67-254; s. 1, ch. 73-20; s. 7, ch. 83-255; s. 407, ch. 95-147.

Notes of Decisions

Cited in 7 cases, 1961–1987 · leading case: Fuentes v. Shevin, 407 U.S. 67 (1972).

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Fuentes v. Shevin, 407 U.S. 67 (1972). · cites it 4× “" Fla. Stat. Ann. § 78.10 (Supp. 1972-1973).”

Fuentes v. Faircloth, 317 F. Supp. 954 (S.D. Fla. 1970). · cites it 8× “It may be that a forcible entry under these circumstances, pursuant to F.S. § 78.10, F.S.A., would not be legal or constitutional.”

McCormick v. First Nat'l Bank of Miami, 322 F. Supp. 604 (S.D. Fla. 1971). · cites it 2× “It may be that a forcible entry under these circumstances, pur- suant to F.S. § 78.10, would not be legal or constitutional.”

Terry L. Arcoren v. Wenton Peters & John Schooler, 829 F.2d 671 (8th Cir. 1987). “The Florida replevin statute provided that if the goods were inside some enclosure and were not delivered upon demand, the officer "shall cause such house, building or enclosure to be broken open * * Fla.Stat.Ann. § 78.10 (Supp.1972-73). . See Burke, More Decisions on the…”

I.A. Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541 (11th Cir. 1986). · cites it 2× “The bankruptcy court also discussed whether the defendants had failed to comply with Fla.Stat.Ann. § 78.10 (West Supp. 1986), which governs the execution of a writ of replevin on property in buildings or enclosures.”

Sears, Roebuck & Co. v. McGuire, 22 Fla. Supp. 203 (Broward Cty. Sm. Cl. Ct. 1964). · cites it 3× “The defendant Neckles, as stated above, then filed his motion to quash the writ of replevin and return thereon, contending, inter alia, that the writ and return were void because of non-compliance by the plaintiff and the sheriff with the provisions of §78.10, Florida Statutes.…”

Jacksonville Expressway Auth. v. Hill, 18 Fla. Supp. 133 (Fla. Cir. Ct., Duval Cty. 1961). “effective not later than November 8, 1960, and that as a matter of fact and law there was an acceptance of such cancellation and termination of said lease on the part of the lessor by the failure of the lessor to reply to or otherwise protest the position taken by the lessee in…”

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