Having been served with a notice of default (as discussed in the first post in this series), a tenant then has three days to cure a breach for failure to pay rent and fifteen days to cure a nonmonetary breach, unless the parties’ lease provides different time-frames. If the tenant subsequently fails to cure the breach, the landlord must then file suit for eviction. Eviction actions are summary in nature, meaning that deadlines are shortened and procedural formalities are loosened. This is so landlords may obtain quicker relief when they have tenants who are in breach of their leases, yet remain in possession of the leased premises.
Filing The Complaint
The complaint is filed in the county in which the premises is located. The summons and the complaint can be served in the usual manner. However, if a tenant is evading service, then the landlord can serve the tenant by posting the summons and complaint on the premises.
If the landlord opts for posted service, however, it must provide the clerk of court with two extra copies of the complaint and the summons as well as two envelopes. One envelope is addressed to:
- the tenant’s designated address for service pursuant to the lease; or
- if no address has been designated, to the residence of the tenant, if known.
The other envelope is addressed to the tenant’s last known business address. The tenant then has five days to answer the complaint, excluding weekends and legal holidays. The tenant’s answer must state every defense to the complaint. It may also contain a counterclaim, but no other pleadings are allowed under the summary procedure.
Failure To Make Payments
In an eviction for failure to make payments, the tenant must deposit into the court’s registry the amount of past-due rent alleged by the landlord in the complaint, and must continue to deposit the monthly rents as they accrue during the pendency of the case. As with the tenant’s answer, the deposit must be made within five days of being served with the complaint. Failure of the tenant to make the deposit entitles the landlord to an automatic default judgment of possession.
Exceptions To The Rule
However, there is a limited exception to the requirement to deposit the past-due rent. If the tenant pleads payment or satisfaction as a defense, it will be relieved of the requirement to make the deposit in full. However, the court will hold an immediate hearing on the amount to be deposited into the court’s registry. At the hearing, the landlord should demand evidence supporting the tenant’s claim. If none can be presented, the landlord should further demand that the tenant be required to deposit the full amount stated in the complaint. Further, the tenant is required to immediately make payment of the amount the court determines is appropriate; the deposit into the registry must be made on the same day as the court’s ruling on the rent amount due to be deposited.
The hearing on the amount to be deposited into the registry is limited. It’s focus is on whether all of the tenant’s rent payments have been credited by the landlord. It also determines what constitutes rent under the terms of the parties’ lease. This way, a tenant cannot derail the hearing by bringing up side issues. This is often a tenant strategy that has no bearing on the amount owed to the landlord. So even where a tenant alleges defenses of payment or satisfaction, the Court can still require that the tenant deposit into the court’s registry the monthly rents as they come due during the pendency of the case.
Landlord Considerations Before Filing Suit
Prior to filing suit, however, a landlord should consider its options for financially protecting itself with respect to a tenant. In all likelihood, a tenant may not have sufficient liquid assets to pay any judgment the landlord obtains in court. Pursuant to Florida Statute §83.08 a landlord has a statutory lien for rent, prohibiting the tenant from removing property from the leased premises, at the risk of criminal and civil liability.
However, the landlord is protected to a greater degree by filing for a distress writ. Such writs are especially valuable where the tenant stores significant inventory on the premises, or has industrial machinery or substantial fixtures installed. For obvious reasons, the security provided by such a writ is a valuable asset to a foreclosing landlord.
With the writ in place, the tenant is enjoined from:
- disposing of;
- secreting; or
- removing property that could be sold and used to pay the back rent and other damages.
Violation of the writ is punishable by contempt of court. If the tenant does not dissolve the writ as required by statute, there are consequences. The court will issue an order allowing the sheriff to seize the property subject to the writ in order to pay the landlord’s claim.
While the distress writ is obviously a very powerful tool for landlords, there are certain conditions for their issuance. First, the landlord has to file a surety bond. It should be at least double the amount demanded in the complaint. Or it can be double the amount of the estimated value of the property. Further, the bond must be conditioned to pay all costs and damages which the tenant suffers if the landlord’s suit is later found to be improper. Additionally, the complaint for the writ should be filed ex parte (i.e. without notice to the tenant) and must be verified by the landlord.
Having discussed the initial steps to an eviction and/or lease default lawsuit, the next post in this series will discuss:
- the specifics of the complaint;
- the landlord’s claim for damages; and
- other considerations landlords must take into account when evicting.