The following is a fairly comprehensive guide to evicting a residential tenant in Sarasota County, Florida. I am a landlord tenant lawyer in Sarasota County, and I wanted to create this resource for individuals who would like to learn more about how to evict a tenant.
It is important to stress that this article is for information purposes only, and is not legal advice. What I’m doing here is providing a general overview of the process. The reality is that filing an eviction is filing a lawsuit, and each step in the process could easily merit it’s own article describing the details. Your best bet is to consult with a lawyer. Failing to follow all of the steps correctly could result in your eviction getting stalled or thrown out.
With that out of the way…
There are Two Major Types of Evictions
As a preliminary matter, you should know that there are two major types of evictions: simple evictions, and hybrid evictions.
Simple evictions are when you are suing for possession only (e.g., you want the tenant to leave and you don’t care about back rent).
Hybrid evictions are when you are suing for possession and also for back rent and other damages. Hybrid evictions are multi-count lawsuits. In the first count you will be suing for possession. In the subsequent count(s) you will be suing for breach of contract, breach of guaranty, etc.
A concern a lot of Landlords have is that the tenant is not paying rent, not letting them onto the premises, and are presumably holed up destroying the property. They want to evict the tenant, and they also want to recover for any physical damage to the premises. In that case you will want to sue for eviction, evict the tenant, and then examine the premises for damage. Once you know what your actual damages are you can sue the tenant for damage to the property (assuming of course that your security deposit doesn’t cover all of the damage).
Make Sure You Have Authority to File a Complaint
It is also important to make sure that whoever files the notice and complaint has the authority to do so. A property manager may draft and serve the 3 day notice and they can also file suit for a simple eviction (an eviction for possession only). However, if the eviction becomes contested, then the property manager needs to be represented by a lawyer.
Draft and Serve a 3-Day Notice
The first thing you will want to do is put together a 3-day notice for the tenant. This is a prerequisite to filing an eviction suit. Depending on the type of eviction (eg, holdover, failure to pay rent, non-compliance with lease, etc) the contents of the notice will be slightly different, but basically the idea is to notify the tenant that you are seeking to evict them and that they have 3 days to comply with the notice or a suit for eviction will be filed. Sign the notice, include the date, and also include your mailing address so the tenant can send a response.
You can serve the 3-day notice through a sheriff or private process server, but the more cost effective way is to deliver the notice by mail, by hand delivery, or by posting it on a prominent place on the premises. If you post the notice on the premises, it’s not a bad idea to take a picture of it after posting. Keep a second copy of the notice for yourself. You will need it when you draft the complaint.
Draft the Complaint
The 3-day notice gives the tenant 3 business days from the day after the notice is given to make payment or deliver possession of the premises to the landlord. If the tenant doesn’t comply with the notice then the next step is to draft and file a complaint.
If this is a simple eviction then your complaint should only have one count and it should be filed in county court. In the complaint you will allege that you have title to the property, and that there is a landlord tenant relationship through either an oral or written lease. If you have a written lease agreement with your tenant, then you will want to attach it to your complaint. You will then allege whatever it is the tenant has failed to do (pay the rent, vacate the premises after termination of the lease, etc). You will then want to allege that you have served the tenant with a 3-day notice, and that the tenant failed to comply with the notice. You will want to attach the 3-day notice to your complaint. You will then demand judgment for possession of the property from the court.
If you are suing for back rent or other money damages, then filing a hybrid eviction, and you will have to include a second count in your complaint. Depending on the amount of money you are alleging the tenant owes you, this eviction will be filed in county or circuit court. In the second count you will be making the allegations necessary to support a claim for damages (eg, that the rent was $1000 a month, that the tenant didn’t pay 3 months of rent, therefore the tenant owes you $3000).
File the Complaint with a Summons and Serve the Tenant
Once you have your complaint and supporting documents in order, you will need to prepare a summons. These are available at the Sarasota Clerk of Court. Fill out the the summons and file it with the Clerk of Court along with the complaint and pay the filing fee. At the time of this article, the filing fee for an eviction in Sarasota County is $185, and it’s $10 per summons.
You will need one summons per tenant. It is important to name all of the tenants in the notice, complaint, and summons. If the premises has been rented to multiple tenants and you are evicting them all, then each individual tenant all needs to be included on all the paperwork and served.
Once the court issues the summons, have a Sheriff or private process server serve the tenant. Expect to pay around $40 per serve.
Wait for the Tenant to Respond
Once the tenant has been served, they have 5 days to file an answer to the first count (the count concerning possession). The 5 day answer period excludes weekends and legal holidays. If it’s a 2 count complaint then they have 20 days to respond to the second count (the money damages count).
If the tenant fails to respond to a properly served hybrid complaint then the landlord may obtain a default for possession (in Count I) after 5 days, and then obtain a default money judgment on Count II of the complaint after 20 days.
In the Count I default, the landlord may obtain an immediate default judgment for removal of the tenant as well as a writ of possession. The way the writ of possession works is you take it to the Sheriff’s office and pay them a $90 fee. The Sheriff will then post the writ on the premises. 24 hours later the Sheriff will return to the property and evict the tenant.
In the Count II default, the landlord may obtain a money judgment. This can than be levied against the tenant subject to the collections laws of the state of Florida.
Attend the Hearing(s)
If the tenant does respond then it is very likely that you will have to attend a hearing. This is where it can get a little complicated.
In most cases if the tenant is going to contest the eviction they will have to pay the rent due to the Clerk of Court, which act as an escrow agent of sorts until the case is sorted out. The Judge may require the parties to have a hearing to determine the amount of rent the tenant owes, or there may simply be a final hearing on the case. It depends on the specific facts and circumstances of each individual case.
With careful planning you can successfully litigate these to conclusion and get a judgment for possession. That judgment allows you to obtain a writ of possession that you take to the Sheriff. For a fee (usually $90 these days) the Sheriff will post the writ on the tenant’s door giving them 24 hours to clear out. The Sheriff will return the next day and remove the tenant if the tenant hasn’t already packed up and left. At that point you will want to carefully inspect the property and change the locks so that the tenant can’t regain entry to your house.
Recovering Attorneys Fees and Court Costs
I always ask the Court for costs and attorneys fees in all my evictions – whether it’s a simple or hybrid eviction. Ultimately, whether you will be able to collect those fees depends on how collectible your tenant is.
Sarasota Residential Evictions – Final Thoughts
With any luck I just provided you with a decent basic overview of how residential tenant evictions work here in Sarasota County. It’s not rocket science, but, like with all lawsuits, there are plenty of potential pitfalls if you aren’t careful.
As I mentioned before, this article was just for information purposes – consult with a lawyer if you are thinking about evicting a tenant. That lawyer doesn’t have to be me, but of course I would greatly appreciate the opportunity to speak with you. I am always more than happy to help you weigh your options and discuss your case.
The best way to reach me is to call my office at (941)-882-4367 or send me an email at dan@danpolicastrolaw.com.
