Florida Senate - 2018                                     SB 566
       
       
        
       By Senator Young
       
       
       
       
       
       18-00472B-18                                           2018566__
    1                        A bill to be entitled                      
    2         An act relating to unlawful detention by a transient
    3         occupant; amending s. 82.045, F.S.; revising factors
    4         that establish a person as a transient occupant of
    5         residential property; specifying circumstances when a
    6         transient occupancy terminates; providing that a
    7         transient occupancy is not extended by the presence of
    8         personal belongings of a former transient occupant;
    9         requiring the party entitled to possession of a
   10         dwelling to allow a former transient occupant to
   11         recover personal belongings at certain reasonable
   12         times and under reasonable conditions; authorizing a
   13         party entitled to possession of the dwelling, under
   14         certain circumstances, to impose additional conditions
   15         on access to the dwelling or personal belongings;
   16         providing a presumption of when a former transient
   17         occupant has abandoned his or her personal belongings;
   18         specifying a reasonable time to recover personal
   19         belongings and circumstances that may extend or
   20         shorten the time; authorizing a former transient
   21         occupant, under certain circumstances, to bring a
   22         civil action for damages or recovery of personal
   23         belongings; requiring a court to award the prevailing
   24         party reasonable attorney fees and costs; providing
   25         construction; providing an effective date.
   26          
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Section 82.045, Florida Statutes, is amended to
   30  read:
   31         82.045 Remedy for unlawful detention by a transient
   32  occupant of residential property.—
   33         (1) As used in this section, the term “transient occupant”
   34  means a person whose residency in a dwelling intended for
   35  residential use has occurred for a brief length of time, is not
   36  pursuant to a lease, and whose occupancy was intended as
   37  transient in nature.
   38         (a) Factors that establish that a person is a transient
   39  occupant include, but are not limited to:
   40         1. The person does not have an ownership interest,
   41  financial interest, or leasehold interest in the property
   42  entitling him or her to occupancy of the property.
   43         2. The person does not have any property utility
   44  subscriptions.
   45         3. Within the previous 12 months, the person did does not
   46  use the property address as an address of record with any
   47  governmental agency, including, but not limited to, the
   48  Department of Highway Safety and Motor Vehicles or the
   49  supervisor of elections.
   50         4. The person does not receive mail at the property.
   51         4.5. The person pays minimal or no rent for his or her stay
   52  at the property.
   53         5.6. The person does not have a designated space of his or
   54  her own, such as a room, at the property.
   55         6.7. The person has minimal, if any, personal belongings at
   56  the property.
   57         7.8. The person has an apparent permanent residence
   58  elsewhere.
   59         (b) Minor contributions made for the purchase of household
   60  goods, or minor contributions towards other household expenses,
   61  do not establish residency.
   62         (2) A transient occupant unlawfully detains a residential
   63  property if the transient occupant remains in occupancy of the
   64  residential property after the party entitled to possession of
   65  the property has directed the transient occupant to leave. A
   66  transient occupancy terminates when a transient occupant begins
   67  to reside elsewhere, surrenders the key to the dwelling, or
   68  agrees to leave the dwelling when directed by a law enforcement
   69  officer, the party entitled to possession, or a court. A
   70  transient occupancy is not extended by the presence of personal
   71  belongings of a former transient occupant.
   72         (3) Any law enforcement officer may, upon receipt of a
   73  sworn affidavit of the party entitled to possession that a
   74  person who is a transient occupant is unlawfully detaining
   75  residential property, direct a transient occupant to surrender
   76  possession of residential property. The sworn affidavit must set
   77  forth the facts, including the applicable factors listed in
   78  paragraph (1)(a), which establish that a transient occupant is
   79  unlawfully detaining residential property.
   80         (a) A person who fails to comply with the direction of the
   81  law enforcement officer to surrender possession or occupancy
   82  violates s. 810.08. In any prosecution of a violation of s.
   83  810.08 related to this section, whether the defendant was
   84  properly classified as a transient occupant is not an element of
   85  the offense, the state is not required to prove that the
   86  defendant was in fact a transient occupant, and the defendant’s
   87  status as a permanent resident is not an affirmative defense.
   88         (b) A person wrongfully removed pursuant to this subsection
   89  has a cause of action for wrongful removal against the person
   90  who requested the removal, and may recover injunctive relief and
   91  compensatory damages. However, a wrongfully removed person does
   92  not have a cause of action against the law enforcement officer
   93  or the agency employing the law enforcement officer absent a
   94  showing of bad faith by the law enforcement officer.
   95         (4) A party entitled to possession of a dwelling has a
   96  cause of action for unlawful detainer against a transient
   97  occupant pursuant to s. 82.04. The party entitled to possession
   98  is not required to notify the transient occupant before filing
   99  the action. If the court finds that the defendant is not a
  100  transient occupant but is instead a tenant of residential
  101  property governed by part II of chapter 83, the court may not
  102  dismiss the action without first allowing the plaintiff to give
  103  the transient occupant the notice required by that part and to
  104  thereafter amend the complaint to pursue eviction under that
  105  part.
  106         (5) The party entitled to possession of a dwelling shall
  107  allow a former transient occupant to recover his or her personal
  108  belongings at reasonable times and under reasonable conditions.
  109         (a) A reasonable time for the recovery of the former
  110  transient occupant’s personal belongings includes a convenient
  111  time when the party entitled to possession of the dwelling or a
  112  trusted third party can be present at the dwelling to supervise
  113  the recovery of the belongings.
  114         (b) If the party entitled to possession of the dwelling
  115  reasonably believes that the former transient occupant has
  116  engaged in misconduct or has a history of violence or drug or
  117  alcohol abuse, it is reasonable for the party entitled to
  118  possession of the dwelling to impose additional conditions on
  119  access to the dwelling or the personal belongings. These
  120  conditions may include, but are not limited to, the presence of
  121  a law enforcement officer, the use of a mover registered with
  122  the Department of Agriculture and Consumer Services, or the use
  123  of a trusted third party to recover the personal belongings. For
  124  purposes of this paragraph, misconduct includes, but is not
  125  limited to:
  126         1. Intentional damage to the dwelling, to property owned by
  127  the party entitled to possession of the dwelling, or to property
  128  owned by another occupant of the dwelling;
  129         2. Physical or verbal abuse directed at the party entitled
  130  to possession of the dwelling or another occupant of the
  131  dwelling; or
  132         3. Theft of property belonging to the party entitled to
  133  possession of the dwelling or property of another occupant of
  134  the dwelling.
  135         (c) The person entitled to possession of a dwelling may
  136  presume that the former transient occupant has abandoned
  137  personal belongings left at the dwelling if the former transient
  138  occupant does not seek to recover them within a reasonable time
  139  after the transient occupant surrenders occupancy of the
  140  dwelling. A reasonable time to recover personal belongings is
  141  deemed to be 5 days after the termination of the transient
  142  occupancy, but may be longer or shorter depending on the
  143  specific circumstances. Circumstances that may extend the time
  144  include an agreement to hold the property for longer than 5 days
  145  or the unavailability of the party entitled to possession of the
  146  dwelling to supervise the recovery of the personal belongings.
  147  Circumstances that may shorten the time include, but are not
  148  limited to, the poor condition of or the perishable or hazardous
  149  nature of the personal belongings, the intent of the former
  150  transient occupant to abandon or discard the belongings, or the
  151  significant impairment of the use of the dwelling by the storage
  152  of the former transient occupant’s personal belongings.
  153         (d) If the person entitled to possession of the dwelling
  154  unreasonably withholds access to a former transient occupant’s
  155  personal belongings, the former transient occupant may bring a
  156  civil action for damages or the recovery of the property. The
  157  court shall award the prevailing party reasonable attorney fees
  158  and costs.
  159         (6) This section is construed in recognition of the right
  160  to exclude others as one of the most essential components of
  161  property rights.
  162         Section 2. This act shall take effect July 1, 2018.