When Someone Is Occupying Your Property but Is Not a Tenant
Not every person who refuses to leave residential property is legally a tenant. Sometimes a property owner allows a family member, friend, former boyfriend or girlfriend, houseguest, or other person to stay at the property without creating a landlord-tenant relationship. In other situations, a person may occupy property without the owner's permission at all.
When there is no residential landlord-tenant relationship, an unlawful detainer action may be the appropriate procedure for recovering possession of the property.
John B. Trawick, PLLC represents property owners in Escambia and Santa Rosa Counties in unlawful detainer matters.
What Is an Unlawful Detainer Action?
Florida law allows a person entitled to possession of real property to seek its return from someone who is occupying the property without consent or who remains after the owner has withdrawn consent.
Unlike a residential eviction, an unlawful detainer action generally does not involve a lease or the failure to pay rent. In fact, Florida's unlawful detainer statute does not apply to residential tenancies governed by the Florida Residential Landlord and Tenant Act.
For that reason, determining the nature of the relationship between the property owner and the occupant is an important first step.
Common Unlawful Detainer Situations
An unlawful detainer action may be appropriate when, for example:
- A family member was allowed to live in the property without a lease and refuses to leave.
- A boyfriend, girlfriend, or former partner remains in the property after permission to live there has been withdrawn.
- A friend or houseguest was temporarily allowed to stay and will not leave.
- Someone is occupying property without the owner's permission.
- An occupant claims a right to remain even though no landlord-tenant relationship exists.
Whether unlawful detainer is the correct procedure depends on the particular facts. If the occupant has been paying rent, has a lease, or otherwise qualifies as a residential tenant, an eviction action may instead be required.
Is a Notice Required Before Filing?
Florida's unlawful detainer statute does not require the property owner to provide the occupant with a statutory eviction notice before filing the action.
Depending on the circumstances, however, it may still be useful to clearly withdraw permission for the person to remain and document that request before filing suit.
We can review the facts and determine the appropriate procedure before an action is filed.
What Can the Court Decide?
An unlawful detainer proceeding primarily determines who has the present right to possession of the property. The court may also consider damages associated with the wrongful detention of the property.
If the dispute actually concerns ownership of the property or a claimed ownership interest, an unlawful detainer action may not be the appropriate proceeding. A different type of real-property action may be required.
Potential Damages for Wrongful Detention
Florida law permits a property owner to seek damages in an unlawful detainer action. If the court determines that the detention of the property was willful and knowingly wrongful, additional damages based upon the reasonable rental value of the property may also be available.
The availability and amount of any damages depend on the facts of the particular case.
Unlawful Detainer or Eviction?
The terminology can be confusing, but the distinction matters.
An eviction generally involves a landlord and tenant.
An unlawful detainer generally involves someone who is occupying the property without a residential tenancy and who no longer has the owner's permission to remain.
Using the wrong procedure can delay recovery of the property. Before filing, we can review how the occupant came into possession, whether rent has been paid, whether there is a written or oral agreement, and whether the occupant claims any ownership interest.
Need to Recover Possession of Your Property?
If someone is living in your property and refusing to leave, send us a short description of the circumstances, including how the person came to occupy the property, whether there is a lease, and whether the person has ever paid rent.
We can review the situation and determine whether an unlawful detainer action, residential eviction, or another procedure is appropriate.