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The Florida Senate

2018 Florida Statutes

Title VI CIVIL PRACTICE AND PROCEDURE
Chapter 82
FORCIBLE ENTRY AND UNLAWFUL DETAINER
CHAPTER 82
CHAPTER 82
FORCIBLE ENTRY AND UNLAWFUL DETAINER
82.01 Definitions.
82.02 Applicability.
82.03 Remedies.
82.035 Remedy for unlawful detention by a transient occupant of residential property; recovery of transient occupant’s personal belongings.
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.
History.—s. 1, ch. 1630, 1868; RS 1687; GS 2152; RGS 3456; CGL 5309; s. 33, ch. 67-254; s. 2, ch. 2018-94.
82.02 Applicability.—
(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.
History.—s. 1, ch. 2015-89; s. 1, ch. 2018-83; s. 5, ch. 2018-94.
Note.—Former s. 82.045.
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.
History.—s. 20, ch. 1630, 1868; RS 1691; GS 2156; RGS 3460; CGL 5313; s. 33, ch. 67-254; s. 7, ch. 2018-94.
82.091 Judgment and execution.—
(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.
History.—s. 20, ch. 1630, 1868; RS 1703; GS 2168; RGS 3472; CGL 5325; s. 33, ch. 67-254; s. 9, ch. 2018-94.
Note.—Former s. 82.17.