Today I am going to discuss how to evict a holdover tenant in the state of Florida. Specifically, I am going to talk about performing holdover tenant evictions in Sarasota County. These types of evictions can be somewhat confusing because the relevant Florida Statutes aren’t entirely clear on the process and requirements. That said, evicting on basis of being a holdover is a powerful means of removing a tenant, and is one of my preferred strategies in instances where you have an at will (month-to-month) tenancy. A properly set up holdover case affords the tenant no way out of the lawsuit. When I take on a new holdover tenant eviction the question is never if the tenant will be removed, but when.
So you understand where I am coming from when I write this article, I am a landlord tenant lawyer in Venice, Florida. I represent clients throughout Sarasota, Manatee, and Charlotte counties in all manner of commercial and residential landlord / tenant matters. It is my hope that this article helps you understand how to approach a holdover tenant eviction.
For more general information on evictions, I invite you to check out my evictions article.
What is a Holdover Tenant?
It’s important to first understand what a holdover tenant actually is. This is important because if you try to follow the eviction process for a holdover tenant, but the tenant isn’t actually a holdover, then you will run into problems. This could include not getting double damages if you are pursuing double rent, or that the court could refuse to rule in your favor in the eviction proceeding and your case gets thrown out.
A holdover tenant is a tenant who occupies the leased premises without the landlord’s permission after the lease has expired. If the term of the tenancy is not specified in a written agreement or lease, either party may terminate the lease by giving written notice. The amount of notice you need to provide depends on how often the tenant pays rent. If the tenant pays rent on a monthly basis, then the landlord needs to provide at least 15 days notice.
Keep in mind that this has to be written notice. A phone call or conversation with your tenant will not suffice. To be on the safe side, send a the tenant a regular or certified letter. Don’t rely on email or text messages for your notice. If the lease expires or is terminated, and tenant remains beyond the term of tenancy, then the tenant is considered a holdover.
The Landlord’s Rights When a Tenant is a Holdover
Florida Statute 83.58 allows the landlord to recover possession of the premises and also recover double the rent due for the period the tenant wrongfully refuses to vacate.
Notice Requirements for a Holdover Tenant Eviction
Most landlords are aware of the 3 and 7 day notice requirements for a failure to pay rent eviction. There are no such requirements for an eviction where the tenant is a holdover.
However, if you are a landlord potentially seeking double rent, you should provide the holdover tenant with a 3 Day Notice To Holdover Tenant demanding double rent or possession of the premises within 3 days. Please keep in mind that this is different from a 3-Day Notice For Nonpayment of Rent, and that this 3 Day Notice to Holdover Tenant is not required if you are only suing for possession in your eviction.
What this notice does is provide the tenant some incentive to leave. That is the theory at least.
Also, please keep in mind that if you also have a claim for nonpayment of rent, you would still be required to fulfill those notice requirements.
Suing For Eviction
Assuming we have a vanilla eviction of a holdover tenant (without any past due rent or other money damages) you would at this point be filing a complaint with the county court of the county where the premises are situated. This process is outlined in Florida Statute 83.59.
Basically, you are drafting a complaint where you are stating the facts of the case that authorize the recovery. You want to allege the existence of a landlord/tenant relationship, discuss how the lease was terminated on X date, that the tenant did not vacate the premises upon termination, and is a holdover tenant. You also have to tell the court what you want it to do: in this case, it’s to recover the possession of the premises. Also, make sure you attach to the complaint a copy of the lease (if it’s a written lease) along with any relevant notices or documentation.
You would need to ensure that this complaint is properly served on your tenant. If we are talking about Sarasota County, this would need to be done by a sheriff or through a private process server. Certified mail or some other form of service would be insufficient, and could be a defense to the eviction action.
Your tenant would then have 5 days (excluding weekends and legal holidays) to file an answer for the possession aspect of your eviction. If you included other claims in your complaint (such as money damages) then the tenant would have 20 days to respond to these other claims. If the tenant fails to respond, then the landlord may obtain a default for possession after the 5 day notice period, and a default money judgment for any other claims after 20 days.
Defenses to a Holdover Tenant Eviction
As I said before, the tenant has 5 days after being properly served by a complaint for possession to answer or file a motion to dismiss for a defective complaint (or a defective notice, depending on the specific circumstances of your case). The tenant may have one or several defenses. Examples can include:
- Improper Service
- Failure to join indispensable parties
- Failure to attach a copy of the lease or other documentation on which evidence of eviction is based
- Unregistered fictitious name of the landlord on the pleadings
- Improper termination of the tenancy
That is why it’s important to get your ducks in a row from the very start. If you fail to serve your tenant properly, or don’t have an actual holdover tenant, then the time, effort, and money invested in an eviction action could all be for nothing.
If you are a landlord and the court decides in your favor, then the next step would be to apply for a final judgment, and then obtain a writ of possession. Like any other eviction proceeding, the writ of possession is what gets your tenant out of the property. The writ describes the premises and commands the sheriff to put the landlord in possession after giving the tenant 24 hours to vacate.
Holdover Evictions – Final Thoughts
Holdover evictions can be tricky – especially if you have other claims in addition to the holdover eviction. That said, they certainly aren’t impossible and I hope this article provided some guidance on how to approach these kinds of actions.
If you have any questions or would like to discuss your case with me I can be reached at (941) 882-4367 or firstname.lastname@example.org.