82.035 Remedy for unlawful detention by a transient occupant of residential property; recovery of transient occupant’s personal belongings.
82.036 Limited alternative remedy to remove unauthorized persons from residential real property.
82.04 Questions involved in this proceeding.
82.05 Service of process.
82.091 Judgment and execution.
82.101 Effect of judgment.
82.01 Definitions.—As used in this chapter, the term:
(1) “Forcible entry” means entering into and taking possession of real property with force, in a manner that is not peaceable, easy, or open, even if such entry is authorized by a person entitled to possession of the real property and the possession is only temporary or applies only to a portion of the real property.
(2) “Real property” means land or any existing permanent or temporary building or structure thereon, and any attachments generally held out for the use of persons in possession of the real property.
(3) “Record titleholder” means a person who holds title to real property as evidenced by an instrument recorded in the public records of the county in which the real property is located.
(4) “Unlawful detention” means possessing real property, even if the possession is temporary or applies only to a portion of the real property, without the consent of a person entitled to possession of the real property or after the withdrawal of consent by such person.
(5) “Unlawful entry” means the entry into and possessing of real property, even if the possession is temporary or for a portion of the real property, when such entry is not authorized by law or consented to by a person entitled to possession of the real property.
(1) This chapter does not apply to residential tenancies under part II of chapter 83.
(2) This chapter does not apply to the possession of real property under chapter 513 or chapter 723.
History.—s. 2, ch. 1630, 1868; RS 1688; GS 2153; RGS 3457; CGL 5310; s. 33, ch. 67-254; s. 13, ch. 73-330; s. 19, ch. 77-104; s. 3, ch. 2018-94.
82.03 Remedies.—
(1) A person entitled to possession of real property, including constructive possession by a record titleholder, has a cause of action against a person who obtained possession of that real property by forcible entry, unlawful entry, or unlawful detention and may recover possession and damages. The person entitled to possession is not required to notify the prospective defendant before filing the action.
(2) If the court finds that the entry or detention by the defendant is willful and knowingly wrongful, the court must award the plaintiff damages equal to double the reasonable rental value of the real property from the beginning of the forcible entry, unlawful entry, or unlawful detention until possession is delivered to the plaintiff. The plaintiff may also recover other damages, including, but not limited to, damages for waste.
(3) Actions for possession and damages may be bifurcated.
(4) All actions under this chapter must be brought by summary procedure as provided in s. 51.011, and the court shall advance the cause on the calendar.
History.—s. 3, ch. 1630, 1868; RS 1689; GS 2154; RGS 3458; CGL 5311; s. 33, ch. 67-254; s. 423, ch. 95-147; s. 4, ch. 2018-94.
82.035 Remedy for unlawful detention by a transient occupant of residential property; recovery of transient occupant’s personal belongings.—
(1) As used in this section, the term “transient occupant” means a person whose residency in real property intended for residential use has occurred for a brief length of time, is not pursuant to a lease, and whose occupancy was intended as transient in nature.
(a) Factors that establish that a person is a transient occupant include, but are not limited to:
1. The person does not have an ownership interest, financial interest, or leasehold interest in the property entitling him or her to occupancy of the property.
2. The person does not have any property utility subscriptions.
3. The person cannot produce documentation, correspondence, or identification cards sent or issued by a government agency, including, but not limited to, the Department of Highway Safety and Motor Vehicles or the supervisor of elections, which show that the person used the property address as an address of record with the agency within the previous 12 months.
4. The person pays minimal or no rent for his or her stay at the property.
5. The person does not have a designated space of his or her own, such as a room, at the property.
6. The person has minimal, if any, personal belongings at the property.
7. The person has an apparent permanent residence elsewhere.
(b) Minor contributions made for the purchase of household goods, or minor contributions towards other household expenses, do not establish residency.
(2) A transient occupant unlawfully detains a residential property if the transient occupant remains in occupancy of the residential property after the party entitled to possession of the property has directed the transient occupant to leave. A transient occupancy terminates when a transient occupant begins to reside elsewhere, surrenders the key to the dwelling, or leaves the dwelling when directed by a law enforcement officer in receipt of an affidavit under subsection (3), the party entitled to possession, or a court. A transient occupancy is not extended by the presence of personal belongings of a former transient occupant.
(3) Any law enforcement officer may, upon receipt of a sworn affidavit of the party entitled to possession that a person who is a transient occupant is unlawfully detaining residential property, direct a transient occupant to surrender possession of residential property. The sworn affidavit must set forth the facts, including the applicable factors listed in paragraph (1)(a), which establish that a transient occupant is unlawfully detaining residential property.
(a) A person who fails to comply with the direction of the law enforcement officer to surrender possession or occupancy violates s. 810.08. In any prosecution of a violation of s. 810.08 related to this section, whether the defendant was properly classified as a transient occupant is not an element of the offense, the state is not required to prove that the defendant was in fact a transient occupant, and the defendant’s status as a permanent resident is not an affirmative defense.
(b) A person wrongfully removed pursuant to this subsection has a cause of action for wrongful removal against the person who requested the removal, and may recover injunctive relief and compensatory damages. However, a wrongfully removed person does not have a cause of action against the law enforcement officer or the agency employing the law enforcement officer absent a showing of bad faith by the law enforcement officer.
(4) A party entitled to possession of real property has a cause of action for unlawful detainer against a transient occupant pursuant to s. 82.03. The party entitled to possession is not required to notify the transient occupant before filing the action. If the court finds that the defendant is not a transient occupant but is instead a tenant of residential property governed by part II of chapter 83, the court may not dismiss the action without first allowing the plaintiff to give the transient occupant the notice required by that part and to thereafter amend the complaint to pursue eviction under that part.
(5) The party entitled to possession of a dwelling shall allow a former transient occupant to recover his or her personal belongings at reasonable times and under reasonable conditions.
(a) Unless otherwise agreed to, a reasonable time for the recovery of the former transient occupant’s personal belongings generally means a time period within 10 days after termination of the transient occupancy, when the party entitled to possession of the dwelling or a trusted third party can be present at the dwelling to supervise the recovery of the belongings.
(b) If the party entitled to possession of the dwelling reasonably believes that the former transient occupant has engaged in misconduct or has a history of violence or drug or alcohol abuse, it is reasonable for the party entitled to possession of the dwelling to impose additional conditions on access to the dwelling or the personal belongings. These conditions may include, but are not limited to, the presence of a law enforcement officer, the use of a mover registered with the Department of Agriculture and Consumer Services, or the use of a trusted third party to recover the personal belongings. For purposes of this paragraph, misconduct includes, but is not limited to:
1. Intentional damage to the dwelling, to property owned by the party entitled to possession of the dwelling, or to property owned by another occupant of the dwelling;
2. Physical or verbal abuse directed at the party entitled to possession of the dwelling or another occupant of the dwelling; or
3. Theft of property belonging to the party entitled to possession of the dwelling or property of another occupant of the dwelling.
(c) The person entitled to possession of a dwelling may presume that the former transient occupant has abandoned personal belongings left at the dwelling if the former transient occupant does not seek to recover them within a reasonable time after the transient occupant surrenders occupancy of the dwelling. The time period to recover personal belongings may be extended due to the unavailability of the party entitled to possession of the dwelling to supervise the recovery of the personal belongings. Circumstances that may shorten the time include, but are not limited to, the poor condition of or the perishable or hazardous nature of the personal belongings, the intent of the former transient occupant to abandon or discard the belongings, or the significant impairment of the use of the dwelling by the storage of the former transient occupant’s personal belongings.
(d) If the person entitled to possession of the dwelling unreasonably withholds access to a former transient occupant’s personal belongings, the former transient occupant may bring a civil action for damages or the recovery of the property. The court shall award the prevailing party reasonable attorney fees and costs.
(6) This section shall be construed in recognition of the right to exclude others as one of the most essential components of property rights.
82.036 Limited alternative remedy to remove unauthorized persons from residential real property.—
(1) The Legislature finds that the right to exclude others from entering, and the right to direct others to immediately vacate, residential real property are the most important real property rights. The Legislature further finds that existing remedies regarding unauthorized persons who unlawfully remain on residential real property fail to adequately protect the rights of the property owner and fail to adequately discourage theft and vandalism. The intent of this section is to quickly restore possession of residential real property to the lawful owner of the property when the property is being unlawfully occupied and to thereby preserve property rights while limiting the opportunity for criminal activity.
(2) A property owner or his or her authorized agent may request from the sheriff of the county in which the property is located the immediate removal of a person or persons unlawfully occupying a residential dwelling pursuant to this section if all of the following conditions are met:
(a) The requesting person is the property owner or authorized agent of the property owner.
(b) The real property that is being occupied includes a residential dwelling.
(c) An unauthorized person or persons have unlawfully entered and remain or continue to reside on the property owner’s property.
(d) The real property was not open to members of the public at the time the unauthorized person or persons entered.
(e) The property owner has directed the unauthorized person to leave the property.
(f) The unauthorized person or persons are not current or former tenants pursuant to a written or oral rental agreement authorized by the property owner.
(g) The unauthorized person or persons are not immediate family members of the property owner.
(h) There is no pending litigation related to the real property between the property owner and any known unauthorized person.
(3) To request the immediate removal of an unlawful occupant of a residential dwelling, the property owner or his or her authorized agent must submit a complaint by presenting a completed and verified Complaint to Remove Persons Unlawfully Occupying Residential Real Property to the sheriff of the county in which the real property is located. The submitted complaint must be in substantially the following form:
COMPLAINT TO REMOVE PERSONS UNLAWFULLY OCCUPYING RESIDENTIAL REAL PROPERTY
I, the owner or authorized agent of the owner of the real property located at , declare under the penalty of perjury that (initial each box):
1. I am the owner of the real property or the authorized agent of the owner of the real property.
2. I purchased the property on .
3. The real property is a residential dwelling.
4. An unauthorized person or persons have unlawfully entered and are remaining or residing unlawfully on the real property.
5. The real property was not open to members of the public at the time the unauthorized person or persons entered.
6. I have directed the unauthorized person or persons to leave the real property, but they have not done so.
7. The person or persons are not current or former tenants pursuant to any valid lease authorized by the property owner, and any lease that may be produced by an occupant is fraudulent.
8. The unauthorized person or persons sought to be removed are not an owner or a co-owner of the property and have not been listed on the title to the property unless the person or persons have engaged in title fraud.
9. The unauthorized person or persons are not immediate family members of the property owner.
10. There is no litigation related to the real property pending between the property owner and any person sought to be removed.
11. I understand that a person or persons removed from the property pursuant to this procedure may bring a cause of action against me for any false statements made in this complaint, or for wrongfully using this procedure, and that as a result of such action I may be held liable for actual damages, penalties, costs, and reasonable attorney fees.
12. I am requesting the sheriff to immediately remove the unauthorized person or persons from the residential property.
13. A copy of my valid government-issued identification is attached, or I am an agent of the property owner, and documents evidencing my authority to act on the property owner’s behalf are attached.
I HAVE READ EVERY STATEMENT MADE IN THIS PETITION AND EACH STATEMENT IS TRUE AND CORRECT. I UNDERSTAND THAT THE STATEMENTS MADE IN THIS PETITION ARE BEING MADE UNDER PENALTY OF PERJURY, PUNISHABLE AS PROVIDED IN SECTION 837.02, FLORIDA STATUTES.
(Signature of Property Owner or Agent of Owner)
(4) Upon receipt of the complaint, the sheriff shall verify that the person submitting the complaint is the record owner of the real property or the authorized agent of the owner and appears otherwise entitled to relief under this section. If verified, the sheriff shall, without delay, serve a notice to immediately vacate on all the unlawful occupants and shall put the owner in possession of the real property. Service may be accomplished by hand delivery of the notice to an occupant or by posting the notice on the front door or entrance of the dwelling. The sheriff shall also attempt to verify the identities of all persons occupying the dwelling and note the identities on the return of service. If appropriate, the sheriff may arrest any person found in the dwelling for trespass, outstanding warrants, or any other legal cause.
(5) The sheriff is entitled to the same fee for service of the notice to immediately vacate as if the sheriff were serving a writ of possession under s. 30.231. After the sheriff serves the notice to immediately vacate, the property owner or authorized agent may request that the sheriff stand by to keep the peace while the property owner or agent of the owner changes the locks and removes the personal property of the unlawful occupants from the premises to or near the property line. When such a request is made, the sheriff may charge a reasonable hourly rate, and the person requesting the sheriff to stand by and keep the peace is responsible for paying the reasonable hourly rate set by the sheriff. The sheriff is not liable to the unlawful occupant or any other party for loss, destruction, or damage of property. The property owner or his or her authorized agent is not liable to an unlawful occupant or any other party for the loss, destruction, or damage to the personal property unless the removal was wrongful.
(6) A person may bring a civil cause of action for wrongful removal under this section. A person harmed by a wrongful removal under this section may be restored to possession of the real property and may recover actual costs and damages incurred, statutory damages equal to triple the fair market rent of the dwelling, court costs, and reasonable attorney fees. The court shall advance the cause on the calendar.
(7) This section does not limit the rights of a property owner or limit the authority of a law enforcement officer to arrest an unlawful occupant for trespassing, vandalism, theft, or other crimes.
82.04 Questions involved in this proceeding.—The court shall determine only the right of possession and any damages. Unless it is necessary to determine the right of possession or the record titleholder, the court may not determine the question of title.
History.—s. 4, ch. 1630, 1868; RS 1690; GS 2155; RGS 3459; CGL 5312; s. 33, ch. 67-254; s. 13, ch. 73-330; s. 19, ch. 77-104; s. 424, ch. 95-147; s. 6, ch. 2018-94.
82.05 Service of process.—
(1) After at least two attempts to obtain service as provided by law, if the defendant cannot be found in the county in which the action is pending and either the defendant does not have a usual place of abode in the county or there is no person 15 years of age or older residing at the defendant’s usual place of abode in the county, the sheriff must serve the summons and complaint by attaching them to some conspicuous part of the real property involved in the proceeding. The minimum amount of time allowed between the two attempts to obtain service is 6 hours.
(2) If a plaintiff causes, or anticipates causing, a defendant to be served with a summons and complaint solely by attaching them to some conspicuous part of real property involved in the proceeding, the plaintiff must provide the clerk of the court with two additional copies of the summons and the complaint and two prestamped envelopes addressed to the defendant. One envelope must be addressed to the defendant’s residence, if known. The second envelope must be addressed to the defendant’s last known business address, if known. The clerk of the court shall immediately mail the copies of the summons and complaint by first-class mail, note the fact of mailing in the docket, and file a certificate in the court file of the fact and date of mailing. Service is effective on the date of posting or mailing, whichever occurs later, and at least 5 days must have elapsed after the date of service before a final judgment for removal of the defendant may be entered.
(1) If the court enters a judgment for the plaintiff, the plaintiff shall recover possession of the real property that he or she is entitled to and damages and costs. The court shall award a writ of possession to be executed without delay and execution for the plaintiff’s damages and costs.
(2) If the court enters a judgment for the defendant, the court shall order that the defendant recover costs.
History.—s. 15, ch. 1630, 1868; RS 1702; GS 2167; RGS 3471; CGL 5324; s. 33, ch. 67-254; s. 426, ch. 95-147; s. 8, ch. 2018-94.
Note.—Former s. 82.16.
82.101 Effect of judgment.—No judgment rendered either for the plaintiff or the defendant bars any action of trespass for injury to the real property or ejectment between the same parties respecting the same real property. A judgment is not conclusive as to the facts therein in any future action for trespass, ejectment, or quiet title. A judgment rendered either for the plaintiff or the defendant pursuant to this chapter may be superseded, in whole or in part, by a subsequent judgment in an action for trespass for injury to the real property, ejectment, or quiet title involving the same parties with respect to the same real property.
