Florida Senate - 2018 CS for SB 804
By the Committee on Rules; and Senator Passidomo
595-03999-18 2018804c1
1 A bill to be entitled
2 An act relating to the possession of real property;
3 amending s. 66.021, F.S.; authorizing a person with a
4 superior right to possession of real property to
5 recover possession by ejectment; declaring that
6 circuit courts have exclusive jurisdiction; providing
7 that a plaintiff is not required to provide any
8 presuit notice or demand to a defendant; requiring
9 that copies of instruments be attached to a complaint
10 or answer under certain circumstances; requiring a
11 statement to list certain details; providing for
12 construction; amending s. 82.01, F.S.; redefining the
13 terms “unlawful entry” and “forcible entry”; defining
14 the terms “real property,” “record titleholder,” and
15 “unlawful detention”; amending s. 82.02, F.S.;
16 exempting possession of real property under part II of
17 ch. 83, F.S., and under chs. 513 and 723, F.S.;
18 amending s. 82.03, F.S.; providing that a person
19 entitled to possession of real property has a cause of
20 action to regain possession from another person who
21 obtained possession of real property by forcible
22 entry, unlawful entry, or unlawful detainer; providing
23 that a person entitled to possession is not required
24 to give a defendant presuit notice; requiring the
25 court to award plaintiff extra damages if a defendant
26 acted in a willful and knowingly wrongful manner;
27 authorizing bifurcation of actions for possession and
28 damages; requiring that an action be brought by
29 summary procedure; requiring the court to advance the
30 cause on the calendar; transferring, renumbering, and
31 amending s. 82.045, F.S.; conforming provisions to
32 changes made by the act; amending s. 82.04, F.S.;
33 requiring that the court determine the right of
34 possession and damages; prohibiting the court from
35 determining question of title unless necessary;
36 amending s. 82.05, F.S.; requiring that the summons
37 and complaint be attached to the real property after
38 two unsuccessful attempts to serve a defendant;
39 requiring a plaintiff to provide the clerk of the
40 court with prestamped envelopes and additional copies
41 of the summons and complaint if the defendant is
42 served by attaching the summons and complaint to the
43 real property; requiring the clerk to immediately mail
44 copies of the summons and complaint and note the fact
45 of mailing in the docket; specifying that service is
46 effective on the date of posting or mailing; requiring
47 that 5 days elapse from the date of service before the
48 entry of a judgment; amending s. 82.091, F.S.;
49 providing requirements after a judgment is entered for
50 the plaintiff or the defendant; amending s. 82.101,
51 F.S.; adding quiet title to the types of future
52 actions for which a judgment is not conclusive as to
53 certain facts; providing that the judgment may be
54 superseded by a subsequent judgment; creating s.
55 163.035, F.S.; defining the term “governmental
56 entity”; prohibiting a governmental entity from
57 adopting or keeping in effect certain ordinances and
58 rules based upon customary use; providing an
59 exception; requiring a governmental entity seeking to
60 affirm the existence of a recreational customary use
61 on private property to follow certain procedures;
62 providing notice requirements for a governmental
63 entity seeking to affirm such recreational customary
64 use; requiring the governmental entity to file a
65 specified complaint with a certain circuit court
66 within a certain time; providing notice requirements
67 for the filing of such complaint; specifying that
68 proceedings resulting from such complaint are de novo;
69 requiring the court to consider specific factors when
70 determining whether a recreational customary use
71 exists; specifying that the governmental entity has
72 the burden of proof; specifying that an owner of a
73 parcel of property subject to the complaint has the
74 right to intervene in the proceeding; providing
75 applicability; repealing s. 82.061, F.S., relating to
76 service of process; repealing s. 82.071, F.S.,
77 relating to evidence at trial as to damages; repealing
78 s. 82.081, F.S., relating to trial verdict forms;
79 providing an effective date.
80
81 Be It Enacted by the Legislature of the State of Florida:
82
83 Section 1. Section 66.021, Florida Statutes, is amended to
84 read:
85 66.021 Ejectment Procedure.—
86 (1) RIGHT OF ACTION.—A person with a superior right to
87 possession of real property may maintain an action of ejectment
88 to recover possession of the property.
89 (2) JURISDICTION.—Circuit courts have exclusive
90 jurisdiction in an action of ejectment.
91 (3) NOTICE.—A plaintiff may not be required to provide any
92 presuit notice or presuit demand to a defendant as a condition
93 to maintaining an action under this section.
94 (4)(1) LANDLORD NOT A DEFENDANT.—When it appears before
95 trial that a defendant in an action of ejectment is in
96 possession as a tenant and that his or her landlord is not a
97 party, the landlord must shall be made a party before further
98 proceeding unless otherwise ordered by the court.
99 (5)(2) DEFENSE MAY BE LIMITED.—A defendant in an action of
100 ejectment may limit his or her defense to a part of the property
101 mentioned in the complaint, describing such part with reasonable
102 certainty.
103 (6)(3) WRIT OF POSSESSION; EXECUTION TO BE JOINT OR
104 SEVERAL.—When plaintiff recovers in an action of ejectment, he
105 or she may have one writ for possession and for, damages and
106 costs or, at his or her election if the plaintiff elects, may
107 have separate writs for possession and for damages and costs.
108 (7)(4) CHAIN OF TITLE.—The Plaintiff with his or her
109 complaint and the defendant with his or her answer must include
110 shall serve a statement setting forth, chronologically, the
111 chain of title upon which the party on which he or she will rely
112 at trial. Copies of each instrument identified in the statement
113 must be attached to the complaint or answer. If any part of the
114 chain of title is recorded, The statement must include shall set
115 forth the names of the grantors and the grantees, the date that
116 each instrument was recorded, and the book and page or the
117 instrument number for each recorded instrument of the record
118 thereof; if an unrecorded instrument is relied on, a copy shall
119 be attached. The court may require the original to be submitted
120 to the opposite party for inspection. If a the party relies on a
121 claim or right without color of title, the statement must shall
122 specify how and when the claim originated and the facts on which
123 the claim is based. If defendant and plaintiff claim under a
124 common source, the statement need not deraign title before the
125 common source.
126 (8)(5) TESTING SUFFICIENCY.—If either party seeks wants to
127 test the legal sufficiency of any instrument or court proceeding
128 in the chain of title of the opposite party, the party must
129 shall do so before trial by motion setting up his or her
130 objections with a copy of the instrument or court proceedings
131 attached. The motion must shall be disposed of before trial. If
132 either party determines that he or she will be unable to
133 maintain his or her claim by reason of the order, that party may
134 so state in the record and final judgment shall be entered for
135 the opposing opposite party.
136 (9) OPERATION.—This section is cumulative to other existing
137 remedies and may not be construed to limit other remedies that
138 are available under the laws of this state.
139 Section 2. Section 82.01, Florida Statutes, is amended to
140 read:
141 82.01 Definitions “Unlawful entry and forcible entry”
142 defined.—As used in this chapter, the term:
143 (1) “Forcible entry” means entering into and taking
144 possession of real property with force, in a manner that is not
145 peaceable, easy, or open, even if such entry is authorized by a
146 person entitled to possession of the real property and the
147 possession is only temporary or applies only to a portion of the
148 real property.
149 (2) “Real property” means land or any existing permanent or
150 temporary building or structure thereon, and any attachments
151 generally held out for the use of persons in possession of the
152 real property.
153 (3) “Record titleholder” means a person who holds title to
154 real property as evidenced by an instrument recorded in the
155 public records of the county in which the real property is
156 located.
157 (4) “Unlawful detention” means possessing real property,
158 even if the possession is temporary or applies only to a portion
159 of the real property, without the consent of a person entitled
160 to possession of the real property or after the withdrawal of
161 consent by such person.
162 (5) “Unlawful entry” means the entry into and possessing of
163 real property, even if the possession is temporary or for a
164 portion of the real property, when such entry is not authorized
165 by law or consented to by a person entitled to possession of the
166 real property No person shall enter into any lands or tenements
167 except when entry is given by law, nor shall any person, when
168 entry is given by law, enter with strong hand or with multitude
169 of people, but only in a peaceable, easy and open manner.
170 Section 3. Section 82.02, Florida Statutes, is amended to
171 read:
172 82.02 Applicability “Unlawful entry and unlawful detention”
173 defined.—
174 (1) This chapter does not apply to residential tenancies
175 under part II of chapter 83 No person who enters without consent
176 in a peaceable, easy and open manner into any lands or tenements
177 shall hold them afterwards against the consent of the party
178 entitled to possession.
179 (2) This chapter does not apply to the possession of real
180 property under chapter 513 or chapter 723 This section shall not
181 apply with regard to residential tenancies.
182 Section 4. Section 82.03, Florida Statutes, is amended to
183 read:
184 82.03 Remedies Remedy for unlawful entry and forcible
185 entry.—
186 (1) A person entitled to possession of real property,
187 including constructive possession by a record titleholder, has a
188 cause of action against a person who obtained possession of that
189 real property by forcible entry, unlawful entry, or unlawful
190 detention and may recover possession and damages. The person
191 entitled to possession is not required to notify the prospective
192 defendant before filing the action.
193 (2) If the court finds that the entry or detention by the
194 defendant is willful and knowingly wrongful, the court must
195 award the plaintiff damages equal to double the reasonable
196 rental value of the real property from the beginning of the
197 forcible entry, unlawful entry, or unlawful detention until
198 possession is delivered to the plaintiff. The plaintiff may also
199 recover other damages, including, but not limited to, damages
200 for waste.
201 (3) Actions for possession and damages may be bifurcated.
202 (4) All actions under this chapter must be brought by
203 summary procedure as provided in s. 51.011, and the court shall
204 advance the cause on the calendar If any person enters or has
205 entered into lands or tenements when entry is not given by law,
206 or if any person enters or has entered into any lands or
207 tenements with strong hand or with multitude of people, even
208 when entry is given by law, the party turned out or deprived of
209 possession by the unlawful or forcible entry, by whatever right
210 or title the party held possession, or whatever estate the party
211 held or claimed in the lands or tenements of which he or she was
212 so dispossessed, is entitled to the summary procedure under s.
213 51.011 within 3 years thereafter.
214 Section 5. Section 82.045, Florida Statutes, is
215 transferred, renumbered as section 82.035, Florida Statutes, and
216 amended to read:
217 82.035 82.045 Remedy for unlawful detention by a transient
218 occupant of residential property.—
219 (1) As used in this section, the term “transient occupant”
220 means a person whose residency in real property a dwelling
221 intended for residential use has occurred for a brief length of
222 time, is not pursuant to a lease, and whose occupancy was
223 intended as transient in nature.
224 (a) Factors that establish that a person is a transient
225 occupant include, but are not limited to:
226 1. The person does not have an ownership interest,
227 financial interest, or leasehold interest in the property
228 entitling him or her to occupancy of the property.
229 2. The person does not have any property utility
230 subscriptions.
231 3. The person does not use the property address as an
232 address of record with any governmental agency, including, but
233 not limited to, the Department of Highway Safety and Motor
234 Vehicles or the supervisor of elections.
235 4. The person does not receive mail at the property.
236 5. The person pays minimal or no rent for his or her stay
237 at the property.
238 6. The person does not have a designated space of his or
239 her own, such as a room, at the property.
240 7. The person has minimal, if any, personal belongings at
241 the property.
242 8. The person has an apparent permanent residence
243 elsewhere.
244 (b) Minor contributions made for the purchase of household
245 goods, or minor contributions towards other household expenses,
246 do not establish residency.
247 (2) A transient occupant unlawfully detains a residential
248 property if the transient occupant remains in occupancy of the
249 residential property after the party entitled to possession of
250 the property has directed the transient occupant to leave.
251 (3) Any law enforcement officer may, upon receipt of a
252 sworn affidavit of the party entitled to possession that a
253 person who is a transient occupant is unlawfully detaining
254 residential property, direct a transient occupant to surrender
255 possession of residential property. The sworn affidavit must set
256 forth the facts, including the applicable factors listed in
257 paragraph (1)(a), which establish that a transient occupant is
258 unlawfully detaining residential property.
259 (a) A person who fails to comply with the direction of the
260 law enforcement officer to surrender possession or occupancy
261 violates s. 810.08. In any prosecution of a violation of s.
262 810.08 related to this section, whether the defendant was
263 properly classified as a transient occupant is not an element of
264 the offense, the state is not required to prove that the
265 defendant was in fact a transient occupant, and the defendant’s
266 status as a permanent resident is not an affirmative defense.
267 (b) A person wrongfully removed pursuant to this subsection
268 has a cause of action for wrongful removal against the person
269 who requested the removal, and may recover injunctive relief and
270 compensatory damages. However, a wrongfully removed person does
271 not have a cause of action against the law enforcement officer
272 or the agency employing the law enforcement officer absent a
273 showing of bad faith by the law enforcement officer.
274 (4) A party entitled to possession of real property a
275 dwelling has a cause of action for unlawful detainer against a
276 transient occupant pursuant to s. 82.03 s. 82.04. The party
277 entitled to possession is not required to notify the transient
278 occupant before filing the action. If the court finds that the
279 defendant is not a transient occupant but is instead a tenant of
280 residential property governed by part II of chapter 83, the
281 court may not dismiss the action without first allowing the
282 plaintiff to give the transient occupant the notice required by
283 that part and to thereafter amend the complaint to pursue
284 eviction under that part.
285 Section 6. Section 82.04, Florida Statutes, is amended to
286 read:
287 82.04 Questions involved in this proceeding Remedy for
288 unlawful detention.—The court shall determine only the right of
289 possession and any damages. Unless it is necessary to determine
290 the right of possession or the record titleholder, the court may
291 not determine the question of title.
292 (1) If any person enters or has entered in a peaceable
293 manner into any lands or tenements when the entry is lawful and
294 after the expiration of the person’s right continues to hold
295 them against the consent of the party entitled to possession,
296 the party so entitled to possession is entitled to the summary
297 procedure under s. 51.011, at any time within 3 years after the
298 possession has been withheld from the party against his or her
299 consent.
300 (2) This section shall not apply with regard to residential
301 tenancies.
302 Section 7. Section 82.05, Florida Statutes, is amended to
303 read:
304 82.05 Service of process Questions involved in this
305 proceeding.—
306 (1) After at least two attempts to obtain service as
307 provided by law, if the defendant cannot be found in the county
308 in which the action is pending and either the defendant does not
309 have a usual place of abode in the county or there is no person
310 15 years of age or older residing at the defendant’s usual place
311 of abode in the county, the sheriff must serve the summons and
312 complaint by attaching it to some conspicuous part of the real
313 property involved in the proceeding. The minimum amount of time
314 allowed between the two attempts to obtain service is 6 hours.
315 (2) If a plaintiff causes, or anticipates causing, a
316 defendant to be served with a summons and complaint solely by
317 attaching them to some conspicuous part of real property
318 involved in the proceeding, the plaintiff must provide the clerk
319 of the court with two additional copies of the summons and the
320 complaint and two prestamped envelopes addressed to the
321 defendant. One envelope must be addressed to the defendant’s
322 residence, if known. The second envelope must be addressed to
323 the defendant’s last known business address, if known. The clerk
324 of the court shall immediately mail the copies of the summons
325 and complaint by first-class mail, note the fact of mailing in
326 the docket, and file a certificate in the court file of the fact
327 and date of mailing. Service is effective on the date of posting
328 or mailing, whichever occurs later, and at least 5 days must
329 have elapsed after the date of service before a final judgment
330 for removal of the defendant may be entered No question of
331 title, but only right of possession and damages, is involved in
332 the action.
333 Section 8. Section 82.091, Florida Statutes, is amended to
334 read:
335 82.091 Judgment and execution.—
336 (1) If the court enters a judgment for the plaintiff, the
337 verdict is in favor of plaintiff, the court shall enter judgment
338 that plaintiff shall recover possession of the real property
339 that he or she is entitled to and described in the complaint
340 with his or her damages and costs. The court, and shall award a
341 writ of possession to be executed without delay and execution
342 for the plaintiff’s damages and costs.
343 (2) If the court enters a judgment for the defendant, the
344 court shall verdict is for defendant, the court shall enter
345 judgment against plaintiff dismissing the complaint and order
346 that the defendant recover costs.
347 Section 9. Section 82.101, Florida Statutes, is amended to
348 read:
349 82.101 Effect of judgment.—No judgment rendered either for
350 the plaintiff or the defendant bars any action of trespass for
351 injury to the real property or ejectment between the same
352 parties respecting the same real property. A judgment is not
353 conclusive as to No verdict is conclusive of the facts therein
354 found in any future action for of trespass, ejectment, or quiet
355 title. A judgment rendered either for the plaintiff or the
356 defendant pursuant to this chapter may be superseded, in whole
357 or in part, by a subsequent judgment in an action for trespass
358 for injury to the real property, ejectment, or quiet title
359 involving the same parties with respect to the same real
360 property or ejectment.
361 Section 10. Section 163.035, Florida Statutes, is created
362 to read:
363 163.035 Establishment of recreational customary use.—
364 (1) DEFINITION.—The term “governmental entity” includes an
365 agency of the state, a regional or a local government created by
366 the State Constitution or by general or special act, any county
367 or municipality, or any other entity that independently
368 exercises governmental authority.
369 (2) ORDINANCES AND RULES RELATING TO CUSTOMARY USE.—A
370 governmental entity may not adopt or keep in effect an ordinance
371 or rule that finds, determines, relies on, or is based upon
372 customary use of any portion of a beach above the mean high
373 water line, as defined in s. 177.27, unless such ordinance or
374 rule is based on a judicial declaration affirming recreational
375 customary use on such beach.
376 (3) NOTICE OF INTENT TO AFFIRM RECREATION PUBLIC USE ON
377 PRIVATE PROPERTY; JUDICIAL DETERMINATION.—A governmental entity
378 that seeks to affirm the existence of a recreational customary
379 use on private property must follow the procedures set forth in
380 this subsection.
381 (a) Notice.—The governing board of a governmental entity
382 must, at a public hearing, adopt a formal notice of intent to
383 affirm the existence of a recreational customary use on private
384 property. The notice of intent must specifically identify the
385 following:
386 1. The specific parcels of property, or the specific
387 portions thereof, upon which a customary use affirmation is
388 sought;
389 2. The detailed, specific, and individual use or uses of
390 the parcels of property to which a customary use affirmation is
391 sought; and
392 3. Each source of evidence that the governmental entity
393 would rely upon to prove a recreational customary use has been
394 ancient, reasonable, without interruption, and free from
395 dispute.
396
397 The governmental entity must provide notice of the public
398 hearing to the owner of each parcel of property subject to the
399 notice of intent at the address reflected in the county property
400 appraiser’s records no later than 30 days before the public
401 meeting. Such notice must be provided by certified mail with
402 return receipt requested, publication in a newspaper of general
403 circulation in the area where the parcels of property are
404 located, and posting on the governmental entity’s website.
405 (b) Judicial determination.—
406 1. Within 60 days after the adoption of the notice of
407 intent at the public hearing, the governmental entity must file
408 a Complaint for Declaration of Recreational Customary Use with
409 the circuit court in the county in which the properties subject
410 to the notice of intent are located. The governmental entity
411 must provide notice of the filing of the complaint to the owner
412 of each parcel of property subject to the complaint in the same
413 manner as is required for the notice of intent in paragraph (a).
414 The notice must allow the owner receiving the notice to
415 intervene in the proceeding within 45 days after receiving the
416 notice. The governmental entity must provide verification of the
417 service of the notice to the property owners required in this
418 paragraph to the court so that the court may establish a
419 schedule for the judicial proceedings.
420 2. All proceedings under this paragraph shall be de novo.
421 The court must determine whether the evidence presented
422 demonstrates that the recreational customary use for the use or
423 uses identified in the notice of intent have been ancient,
424 reasonable, without interruption, and free from dispute. There
425 is no presumption regarding the existence of a recreational
426 customary use with respect to any parcel of property, and the
427 governmental entity has the burden of proof to show that a
428 recreational customary use exists. An owner of a parcel of
429 property that is subject to the complaint has the right to
430 intervene as a party defendant in such proceeding.
431 (4) APPLICABILITY.—This section does not apply to a
432 governmental entity with an ordinance or rule that was adopted
433 and in effect on or before January 1, 2016, and does not deprive
434 a governmental entity from raising customary use as an
435 affirmative defense in any proceeding challenging an ordinance
436 or rule adopted before July 1, 2018.
437 Section 11. Section 82.061, Florida Statutes, is repealed.
438 Section 12. Section 82.071, Florida Statutes, is repealed.
439 Section 13. Section 82.081, Florida Statutes, is repealed.
440 Section 14. This act shall take effect July 1, 2018.