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 clear on the process, and the local Clerk of Court typically lacks forms for these kinds of evictions.
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) tenant, or a written lease that is expiring soon. A properly set up holdover eviction affords the tenant few defenses.
So you understand where I am coming from when I write this article, I am a landlord tenant lawyer in Venice, Florida. I represent landlords 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 read my general how to evict a tenant article.
The following article is for educational purposes only, is designed to provide a brief overview of the process, and should not be relied upon as legal advice. If you have questions about how to perform an eviction or holdover eviction, then please ask a landlord tenant lawyer who practices in the County where your rental property is located.
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 lease, then 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 or whether there is a notice provision in a written lease.
If there is no notice provision in a written lease, and if the tenant pays rent on a monthly basis, then the landlord needs to provide at least 30 days’ notice prior to the day the rent is due in order to terminate the lease. This is pursuant to section 83.57 of the Florida Statutes.
Keep in mind that this 30 day notice must be in writing on a physical piece of paper. A phone call or conversation with your tenant will not suffice. Texting or emailing your tenant will not work either. Instead, you must serve a paper notice on your client. To be on the safe side, hand deliver or post the notice to a conspicuous part of the premises, hire a process server to hand deliver the notice for you. You can also send the tenant the notice via certified mail, but I prefer hand delivery or posting and typically advise against mailing notices. 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 tenant.
The Landlord’s Rights When a Tenant is a Holdover
Florida Statute 83.58 is the statute that governs holdover evictions. Section 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.
As an aside, I very rarely pursue back rent or double rent in residential evictions. Most of the time the tenants in these cases are uncollectable, and the cost of obtaining a money judgment against them is not worth the legal fees spent to pursue the judgment. Just because you obtain a money judgment does not guarantee that you will be able to recover the money. Usually it’s not worth it.
Pursing a tenant for back rent can be expensive – at a minimum it will add $1,000 to the legal fees. If a landlord is serious about collecting back rent from a residential tenant, then I typically suggest filing a separate action in small claims court, or to at least be very certain that the tenant has money and isn’t judgment-proof. Most of the time landlords realize that it is not worth it, and to hire a lawyer to pursue even a few thousand dollars in back rent can be throwing good money after bad.
Notice Requirements for a Holdover Tenant Eviction
Most landlords are aware of the 3 day notice requirements for a non-payment of rent eviction, and the 7 day notice requirements for a non-compliance with lease eviction. There are no such requirements for an eviction where the tenant is a holdover, assuming the lease has been properly terminated.
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.
Suing For Possession
Once the tenant has been provided with adequate notice it is time to file the eviction lawsuit.
The first step is to draft the holdover eviction lawsuit (this is called a “Complaint”).
In the Complaint you will need to state the elements of your case that authorize the recovery of the property. You want to allege the existence of a landlord/tenant relationship, allege whether the tenant had possession under an oral or written lease, allege how the lease was terminated, and allege that the tenant did not vacate the premises upon termination of the lease, and is therefore a holdover tenant. You also have to tell the Court what you want the Court 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 you served on the tenant.
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 Deputy Sheriff or by a licensed private process server.
Once the tenant has been served with the eviction Complaint and a summons, the tenant has 5 business days (excluding weekends and legal holidays) to file an answer to the lawsuit. 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; or
- Improper termination of the tenancy.
That is why it’s important to have everything perfectly in order from the very start. Winning eviction cases is all about following the rules and setting the case up properly. 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.
And if your tenant hires a lawyer, then there can be real problems as the landlord tenant statutes allow for the party that wins to collect their attorneys fees from the other side. Very often the landlord is highly collectible, as a lien can be placed against their rental property. In many instances it can be difficult to collect on a tenant, as they may not have much in the way of assets or income (generally speaking).
Final Steps
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 Final Judgment is a court order that entitles you to repossess your property, while the Writ of Possession is a document that generated by the Clerk that 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 Eviction Forms
I have had people call from all over the state of Florida who have read this article, and want to purchase holdover eviction forms. This is because you cannot find any holdover eviction forms on the internet or at the local Clerk of Court. In response I have created The Holdover Tenant Handbook, which includes a form notice, a form holdover eviction complaint, and a brief overview of the process.
These forms are not legal advice, do not create an attorney-client relationship, and are for educational purposes only. Use them to gain a better understanding for how a holdover eviction works. If you have any questions contact a landlord tenant lawyer in the county where your rental property is located.
Holdover Evictions – Final Thoughts
Holdover evictions can be tricky. The trick is to make sure that the lease is properly terminated. Typically the local Clerk of Court will not have forms for holdover evictions, and not many people use them. I think that is a shame as a properly set up holdover eviction lawsuit can be difficult to defend against. I hope this article provided some guidance on how to approach this particular type of eviction lawsuit.
If you are a landlord in Sarasota, Charlotte, or Manatee County, and would like to discuss your eviction case with me, then please feel free to contact my office at (941) 882-4367 or dan@danpolicastrolaw.com.
