Eviction

The State of Florida has lifted it’s moratorium on evictions effective October 1, 2020.  In light of this, many Landlords have started evicted Tenants that have been effective by Covid-19.  However, the Center for Disease Control (CDC) has an administrative order protecting every Tenant that qualifies in Florida which takes precedence over all state orders on this issue.  The CDC order is broad and covers the vast majority of all Tenants in Florida!  As long as a Tenant can show she qualifies under the CDC order, a Landlord cannot evict a Tenant until the CDC order has expired.  Currently, the CDC order is effective until December 31, 2020.  Given the pandemic, the CDC may very well extent the order past that date.  Call today to see if you qualify and what can be done to prohibit your Landlord from evicting you!   
The process of eviction is complex, requiring landlords to follow specific guidelines when removing a tenant from a rental property. While the landlord may own the actual housing unit, the tenant has made it their home. Under specific state laws, the owner must adhere to certain procedures. Tenants should also become familiar with the eviction process as well.

Tenant Eviction: What You Should Know as a Renter

Under eviction law a landlord cannot remove a tenant without following certain protocol, regardless of whether the tenant is behind in rent. The landlord must first give the renter notification in writing that states the reason for the eviction. At this point the tenant has the opportunity to address and correct the issues in question, remain in the rental and wait to be removed, or move out as per the eviction notice. If the tenant chooses to simply ignore the eviction notice, the landlord will be forced to file what’s known as an “unlawful detainer suit” to proceed with the eviction process. In order to have the tenant removed from the property the landlord will need to prove that the tenant violated certain agreements or restrictions such as harboring a pet, smoking, causing major damage, disturbing the peace or failing to pay the rent. While each state has different tenant eviction laws the landlord must follow the guidelines set forth which may include serving several eviction notices in writing to the tenant. While state laws do vary, most do not make it very easy for landlords to evict tenants however. Tenant Eviction Notice for Cause The three main types of eviction notices that most states recognize are: 1. Pay Rent or Quit—This notifies the tenant that they have a specific time limit to pay the rent, or they must “quit” the lease and move from the premises. Most landlords will give tenants three to five days to pay. 2. Cure or Quit—This notifies the tenant that they have violated a condition of the lease such as harboring a pet in the unit when pets are not allowed, or smoking in a non-smoking unit. The tenant must correct the behavior or vacate the rental. 3. Unconditional Quit—These notices, while sent sparingly are serious in that they leave no recourse for the tenant to correct issues. State laws limit the use of these types of evictions because they are so harsh for tenants. Conditions under which an unconditional quit may be used include: • A tenant paying rent late several times. • A renter violating the lease conditions multiple times without correcting the problem. • A tenant conducting illegal activity on the premises or within the rental unit. • A tenant causing serious damage to the rental property. Tenant Eviction Notice without Cause The landlord may evict a tenant without cause even if they have always paid the rent on time and have never violated lease conditions. Because of this the landlord must give the tenant a longer time to vacate the property. In some cases this may be as long as 60 days. In some areas with rent control laws landlords may not evict tenants without cause. Statutes that allow for “just cause eviction protection” require legitimate reasons. Lawsuits for Eviction To pursue eviction action landlords must file the necessary paperwork to remove the tenant from the property. This includes serving the tenant with a copy of the complaint and summons.

Tenant Defenses

Tenants have several defenses in court when faced with an eviction. If they can prove that they have corrected the violations to the rental agreement, that the landlord failed to make necessary repairs (therefore justifying the rental deduction) or that the landlord did not follow proper protocol, the eviction may be nullified. Court Ordered Sheriff Escort If the landlord prevails in court they must present the sheriff with the court order and pay to have the tenant removed. At this time an officer will go to the home of the tenant and inform them they will return within a few days to escort them off the property. Most tenants will make arrangements to vacate the property before the sheriff’s return.

Defenses to Eviction

The following defenses may work for a tenant facing eviction. Improper Notice The landlord must properly notify the tenant with a formal “notice of eviction”. If this is not done within a sufficient amount of time or if it was not properly delivered, the tenant may have a legitimate defense. In this case, if the landlord wishes to pursue eviction further they must resubmit the necessary paperwork. Partial Rent Payment If the landlord agrees to accept partial rent payments from the tenant during the eviction period this generally nullifies the action. The landlord can however have the tenant sign a waiver stating that they will not use the “partial payment” defense in court. Failure To Maintain the Property If the landlord fails to maintain a clean and safe environment for the tenant, the tenant may use this as a valid defense against eviction. The tenant must however notify the landlord in writing of the repairs to be made and give the landlord a reasonable amount of time to correct any defects. If the landlord does not respond the tenant may hire a professional to make the repairs and deduct the amount from the rent. Some states limit the amount to no greater than one month’s rent. Retaliatory Eviction If the landlord evicts a tenant because they have requested necessary repairs to the property or have reported a violation of health and safety codes, this is considered retaliatory. Under these circumstances a tenant can use this as a defense against eviction in court. Constructive Eviction Under constructive eviction the tenant finds the rental property uninhabitable and cannot otherwise enjoy the property to the full extent. After the tenant provides the landlord with written notice of defects and no repairs are made, they may vacate the property without negative consequences involving the rent. Fair Housing If the landlord is in violation of the Fair Housing Act in any way, this will nullify an eviction action. The act, passed in 1968 prohibits discrimination based on race, color, sex, religion, national origin, disability or familial status (this refers to tenants or prospective tenants pregnant with a child). Landlords may not discriminate based on these factors when screening renters, or at any time during a tenancy.

Tenant Eviction in Foreclosure: What Are Your Rights?

When the Rental Property is in Foreclosure Once a rental is subject to foreclosure the landlord no longer owns the property or is in control of it. The bank that financed the mortgage loan for the rental property becomes the new landlord for tenants. Since banks are not in the business of acting as rental agents, circumstances for the tenants can quickly change. Landlord in Default Landlords default on mortgage payments for a number of reasons. In some cases they may have a second or third loan on the property they can’t afford to pay. In other situations they may own several properties where apartments or rental units become vacant without generating income. Major renovations or required repairs may be overwhelming financially, causing the landlord to fall behind in mortgage payments as well. Whatever the reason for the default, banks and mortgage lenders will likely seek to evict any tenants as the foreclosure process moves forward. The Bank as Landlord Once the bank takes back the rental property from the original owner they must make major decisions regarding the tenants of the building. They may decide to hire a company to manage the property, perform any maintenance and collect the rent. Some mortgage lenders may opt for this plan initially, but later sell the property when they get a qualified buyer. While a foreclosure notice on the property usually ends the lease for the tenant the bank can also choose to evict the occupants from the rental. Tenants may be offered, “cash for keys” in some instances to speed along the vacation of property. Protected tenants such as those in rent controlled areas or section 8 occupants may not benefit from such an option however. Losing The Lease Due to Foreclosure While new landlords have the right to evict tenants because of foreclosure they must give renters 90 days to vacate the premises. There are a few exceptions to this however. Under section 8 laws and rent control statutes tenants cannot be evicted from a rental property unless they violate the terms of the lease or fail to pay rent. This is also true for renters in some protected states including New Jersey, New Hampshire, Massachusetts and the District of Columbia. Rights Under the Law While foreclosure will nullify any lease agreement, the landlord is still responsible for the terms of the contract. Because the tenant was entitled to “quiet enjoyment” of the property, they can file a suit in small claims court against the landlord for any economic consequences that may’ve impacted them including: • Moving expenses • Costs to search for a new apartment • Rental application fees • The difference between the old and new rent • Other costs associated with relocation While the property owner may not be in a financial position to satisfy a judgment now, the statute of limitations may allow the tenant to collect later. Though a landlord owns the property to be rented to tenants, the process of eviction is complex and involves many areas of the law. Under state landlord/tenant statutes both parties to the rental contract are protected from certain actions from the other as well.