2010 Florida Statutes
Recreational vehicle parks; guests in transient occupancy; operator’s rights and remedies; writ of distress.
Recreational vehicle parks; guests in transient occupancy; operator’s rights and remedies; writ of distress.—
This section applies only to guests in transient occupancy in a recreational vehicle park.
OPERATOR’S RIGHT TO DISCONNECT UTILITIES.—
If an operator of a recreational vehicle park makes a reasonable determination that a guest has accumulated a large outstanding account at such park, the operator may disconnect all utilities of the recreational vehicle or tent, except that the operator must not by such actions create a sanitary nuisance. The operator may also take such other measures considered necessary for the purpose of requiring the guest to confront the operator and arrange for payment on the guest’s account. Such arrangement must be in writing, and a copy shall be furnished to the guest.
Once the guest has confronted the operator and made arrangement for payment on the guest’s account, the operator shall reconnect the utilities of the recreational vehicle or tent, or otherwise reverse the measures taken under paragraph (a).
OPERATOR’S RIGHT TO RECOVER PREMISES.—If the guest of a recreational vehicle park vacates the premises without notice to the operator and the operator reasonably believes the guest does not intend to satisfy the outstanding account, the operator may recover the premises by removing the recreational vehicle or tent from the site. The operator shall take all reasonable and proper means to care for the recreational vehicle or tent until a settlement or a final court judgment is obtained on the guest’s outstanding account. Upon recovery of the premises, the operator shall seal, or cause to be sealed, the recreational vehicle in the presence of at least one other person who is not an agent of the operator or shall make an itemized inventory of any property belonging to the guest and store such property until a settlement or a final court judgment is obtained on the guest’s outstanding account. Such inventory shall be conducted by the operator and at least one other person who is not an agent of the operator.
OPERATOR’S WRIT OF DISTRESS.—If, after there has been a disconnection of utilities pursuant to subsection (1), a guest fails to make the agreed-upon payments on the guest’s account, or, notwithstanding subsection (1), if a guest vacates the premises without making payment on the guest’s outstanding account, the operator may proceed to prosecute a writ of distress against the guest and the guest’s property. The writ of distress must be predicated on the lien created by s. 713.77.
An action under this subsection must be brought in a court of appropriate jurisdiction in the county where the property is located. If the property consists of separate articles, the value of any one of which articles is within the jurisdictional amount of a lower court but the total value of which articles, taken together, exceeds that jurisdictional amount, the plaintiff may not divide the property to give jurisdiction to the lower court so as to enable the plaintiff to bring separate actions for the property.
To obtain an order authorizing the issuance of a writ of distress upon final judgment, the plaintiff must first file with the clerk of the court a complaint reciting and showing the following information:
A statement of the amount of the guest’s account at the recreational vehicle park.
A statement that the plaintiff is the operator of the recreational vehicle park in which the guest has an outstanding account. If the plaintiff’s interest in such account is based on written documents, copies of such documents must be attached to the complaint.
A statement that the operator has made a reasonable attempt to obtain payment from the guest for an outstanding account, either by confronting the guest or by a disconnection of utilities pursuant to subsection (1), and a statement that the guest has failed to make any payment or that the guest has vacated the premises without paying the outstanding account.
A statement that the account is outstanding and unpaid by the guest; a statement of the services provided to the guest for which the outstanding account was accumulated; and a statement of the cause of such nonpayment according to the best knowledge, information, and belief of the plaintiff.
A general statement as to what property the plaintiff is requesting levy against, including the property included in the inventory conducted pursuant to subsection (2) if the operator has recovered the premises, and a statement of the authority under which the plaintiff has a lien against such property.
A statement, to the best of the plaintiff’s knowledge, that the claimed property has not been taken for a tax, assessment, or fine pursuant to law or taken under an execution or attachment by order of any court.
The officer of the court to whom a writ of distress is directed shall execute the writ of distress by serving it on the defendant and by levying on the property distrainable for services rendered, if such property is found within the area of the officer’s jurisdiction. If the property is not found in that jurisdiction but is in another jurisdiction, the officer shall deliver the writ to the proper authority in the other jurisdiction. The writ shall be executed by levying on such property and delivering it to the officer of the court in which the action is pending, and the property shall be disposed of according to law, unless the officer is ordered by such court to hold the property and dispose of it according to law. If the defendant cannot be found, the levy on the property suffices as service of the writ on the defendant if the plaintiff and the officer each file a sworn statement stating that the whereabouts of the defendant are unknown.
OPERATOR’S PREJUDGMENT WRIT OF DISTRESS.—
A prejudgment writ of distress may issue, and the property seized may be delivered forthwith to the plaintiff, if the nature of the claim, the amount of the claim, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the verified petition or by a separate affidavit of the plaintiff.
The prejudgment writ of distress may issue if the court finds, pursuant to paragraph (a), that the defendant has failed to make payment as agreed and that the defendant is engaging in, or is about to engage in, conduct that may place the claimed property in danger of being destroyed, being concealed, being removed from the state, being removed from the jurisdiction of the court, or being transferred to an innocent purchaser during the pendency of the action.
A prejudgment writ of distress may issue only upon a signed order of a circuit judge or a county court judge. The prejudgment writ of distress must include a notice of the defendant’s right to an immediate hearing before the court issuing the writ.
The plaintiff must post bond in the amount of twice the estimated value of the goods subject to the writ or twice the balance of the outstanding account, whichever is the lesser amount as determined by the court, as security for the payment of damages the defendant may sustain if the writ is wrongfully obtained.
The prejudgment writ issued under this subsection must command the officer to whom it may be directed to distrain the described personal property of the defendant and hold such property until final judgment is rendered.
The defendant may obtain release of the property seized under a prejudgment writ of distress by posting bond with a surety within 10 days after service of the writ, in the amount of 125 percent of the claimed outstanding account, for the satisfaction of any judgment that may be rendered against the defendant, conditioned upon delivery of the property if the judgment should require it.
As an alternative to the procedure prescribed in subparagraph 1., the defendant, by motion filed with the court within 10 days after service of the writ, may obtain the dissolution of a prejudgment writ of distress, unless the plaintiff proves the grounds upon which the writ was issued. The court shall set such motion for an immediate hearing.
INVENTORY OF DISTRAINED PROPERTY.—When the officer seizes distrainable property, either under paragraph (3)(c) or paragraph (4)(e), and such property is seized on the premises of a recreational vehicle park, the officer shall inventory the property; hold those items which, upon the officer’s appraisal, would satisfy the plaintiff’s claim; and return the remaining items to the defendant. If the defendant cannot be found, the officer shall hold all items of property seized. The officer may release the property only pursuant to law or a court order.
EXECUTION ON PROPERTY IN POSSESSION OF THIRD PERSON.—If the property to be distrained is in the possession of the defendant at the time of the issuance of a writ under subsection (3) or a prejudgment writ under subsection (4) and the property passes into the possession of a third person before the execution of the writ, the officer holding the writ shall execute it on the property in the possession of the third person and shall serve the writ on the defendant and the third person; and the action, with proper amendments, shall proceed against the third person.
CLAIM BY THIRD PERSON TO DISTRAINED PROPERTY.—A third person claiming any property distrained pursuant to this chapter may interpose and prosecute a claim for that property in the same manner as is provided for similar cases of claim to property levied on under execution.
If it appears that the account stated in the complaint is wrongfully unpaid, and the property described in such complaint is the defendant’s and was held by the officer executing the prejudgment writ, the plaintiff shall have judgment for the damages sustained by the plaintiff, which judgment may include reasonable attorney’s fees and costs, by taking title to the defendant’s property in the officer’s possession or by having the property sold as prescribed in subsection (9).
If it appears that the property was retained by, or redelivered to, the defendant on the defendant’s forthcoming bond, either under subparagraph (4)(f)1. or subparagraph (4)(f)2., the plaintiff shall take judgment for the property, which judgment may include reasonable attorney’s fees and costs, and against the defendant and the surety on the forthcoming bond for the value of the outstanding account; and the judgment, which may include reasonable attorney’s fees and costs, shall be satisfied by the recovery and sale of the property or the amount adjudged against the defendant and the defendant’s surety.
After the judgment is rendered, the plaintiff may seek a writ of possession for the property and execution for the plaintiff’s costs or may have execution against the defendant and the defendant’s surety for the amount recovered and costs. If the plaintiff elects to have a writ of possession for the property and the officer returns that the officer is unable to find the property or any part of it, the plaintiff may immediately have execution against the defendant and the defendant’s surety for the whole amount recovered less the value of any property found by the officer. If the plaintiff has execution for the whole amount, the officer shall release all property taken under the writ of possession.
In any proceeding to ascertain the value of the property so that judgment for the value may be entered, the value of each article must be found. When a lot of goods, wares, or merchandise has been distrained, it is sufficient to ascertain the total value of the entire lot found, and it is not necessary to ascertain the value of each article of the lot.
If property has been retained by, or redelivered to, the defendant on the defendant’s forthcoming bond or upon the dissolution of a prejudgment writ and the defendant prevails, the defendant shall have judgment against the plaintiff for any damages of the defendant for the taking of the property, which judgment may include reasonable attorney’s fees and costs.
If the property has not been retained by, or redelivered to, the defendant and the defendant prevails, judgment shall be entered against the plaintiff for possession of the property, which judgment may include reasonable attorney’s fees and costs.
The remedies provided in this paragraph do not preclude any other remedies available under the laws of this state.
SALE OF DISTRAINED PROPERTY.—
If the judgment is for the plaintiff, the property in whole or in part shall, at the plaintiff’s option pursuant to subparagraph (8)(a)1. or subparagraph (8)(a)2., be sold and the proceeds applied to the payment of the judgment.
Before any property levied on is sold, it must be advertised two times, the first advertisement being at least 10 days before the sale. All property so levied on may be sold on the premises of the recreational vehicle park or at the courthouse door.
If the defendant appeals and obtains a writ of supersedeas before sale of the property, the officer executing the writ shall hold the property, and there may not be any sale or disposition of the property until final judgment is had on appeal.
EXEMPTIONS FROM DISTRESS AND SALE.—The following property of a guest is exempt from distress and sale under this chapter:
From final distress and sale: clothing; and items essential to the health and safety of the guest.
From prejudgment writ of distress: clothing; items essential to the health and safety of the guest; and any tools of the guest’s trade or profession, business papers, or other items directly related to such trade or profession.
s. 13, ch. 84-182; s. 1, ch. 85-65; s. 94, ch. 85-81; s. 36, ch. 92-78; s. 25, ch. 93-150.