Landlord and Tenant Information
Disclaimer
This information is meant to be a guide to Residential Eviction in Clay County. It is not legal advice, and should not be looked upon as such. This is compiled from a group of counties in Florida and the author expresses no opinion as to the validity of the contents and disclaims any liability based on the contents. Any person seeking legal advice should consult an attorney.
Residential Eviction for Failure to Pay Rent
The following information is designed for your
use in the event of a residential Landlord/Tenant dispute on the grounds of
failure to pay rent.
- If the property involved is commercial or agricultural, you should consult with an attorney.
- The residential Landlord/Tenant relationship is controlled by the terms of your lease and by Part II of Chapter 83 of Florida Statutes. The procedures for eviction are set forth in Chapter 83, Florida Statutes, and in Section 51.011, Florida Statutes. You are advised to carefully review these Statutes before beginning any legal procedures concerning a residential lease.
- Prior to filing an eviction case for failure to pay rent, a notice must be posted which requires the Tenant, within three (3) days, (excluding Saturday, Sunday, and Legal Holidays), to pay the past due rent in full or vacate the premises.
- If the three (3) day notice is not properly completed and served, the complaint seeking eviction may be dismissed by the Court for lack of Jurisdiction. The three (3) day notice must seek only rent that has already become due and should not include late charges, utility fees, or damages, unless such are clearly designated as “rent” in a written lease agreement. The three (3) day notice should be modified if the written lease requires a notice of more than three (3) days.
- The delivery of the three (3) day notice shall be by mailing or delivering a true copy thereof to the Tenant, or if the Tenant is absent from the premises, by posting a copy of the notice on the residence.
Since the Rules of Civil Procedure add an additional five days to the prescribed period when service is made by mail, it is the common practice in this county to personally serve the notice. The notice should indicate the date and manner of service.
- Once a three (3) day notice has been properly served upon the Tenant, you may proceed with the filing of your suit for eviction if the Tenant has not paid the rent and has not vacated the premises within the time set forth in the notice.
- At the time you file your suit with the Clerk of the Circuit Court, you must provide the Clerk with a copy of the served three (3) day notice and a copy of the written lease or rental agreement. You must also pay a filing fee of $185.00, plus $10.00 summons fee, along with the fee for Sheriff service. This fee is $40.00 per person served.
- The Plaintiff must be an individual or a business entity and must be the owner of the property or the Landlord with right of possession upon the Tenant’s default. Neither an attorney acting on behalf of an Owner/Landlord nor a property manager may be named as the Plaintiff in the Complaint. Although property managers may not be the named Plaintiff, those property managers with written authorization from the Landlord may handle uncontested residential evictions on behalf of both individual and corporate Landlords. However, designated property managers may not handle contested residential evictions, nor may they seek money damages on behalf of the Landlord.
- The Summons and the Complaint for Eviction will require the Defendant to file his answer within five (5) days (excluding Saturday, Sunday and legal holidays) after the date of service by the Sheriff’s Department. Furthermore, the Defendant is required to give the Court Clerk the rent due (cash or money order only) and pay the Clerk each time it becomes due until the lawsuit is over. If the parties do not agree upon the amount of rent owed, the Defendant is to give the Court Clerk the money he believes he owes and the Judge will then set a hearing to decide what amount should be given to the Clerk. All monies received by the Clerk shall be deposited into the Registry of the Court to be disbursed by Court Order. Failure to file an answer, failure to pay the amount of rent into the Registry of the Court on a timely basis, or failure to file a motion to determine the amount of rent to be paid into the Registry allows the Plaintiff the right to file a default resulting in a judgment for removal of the Tenant/Defendant.
- If the Tenant files an answer and deposits the rent into the Registry of the Court, a Final Hearing is set to determine whether or not the Plaintiff is entitled to possession of the premises. At this Hearing, the Judge will make a decision as to whether or not the Plaintiff is entitled to the possession of the premises and to whom the moneys in the Registry of the Court are to be dispersed.
- If a default judgment is entered, or if a judgment is entered after the trial, and the Tenant fails to leave the property, the Landlord should obtain a Writ of Possession from the Clerk’s office and take it to the Clay County Sheriff’s Department with a check for $90.00 for service on the Tenant. If the Tenant has not removed himself from the premises within 24 hours after service of the Writ, the Deputy will place the Landlord in possession of the property. It will be the responsibility of the Landlord to pay the Sheriff’s fee for this service.
- If you are seeking damages for unpaid rent or for damages to the premises, you will be required to add a second count to your lawsuit seeking these money damages and obtain physical service on the Tenant. If the damages do not exceed $5,000.00, the second count will be handled under the Small Claims rules and will require a pre-trial conference. If the defendant after being served fails to appear at the pre-trial conference, the Plaintiff will be entitled to a default judgment. If the Defendant appears, and the parties are unable to settle, the Judge will either send the parties to mediation or set a trial date to determine the amount of damages, if any, that are awarded to the Plaintiff.
- If a Landlord files an original lawsuit seeking eviction only and later determines that the property has been destroyed or damaged since the filing of the suit, he must file an amended Statement of Claim adding a second count seeking damages and mail a copy to the Defendant. Likewise, if a Landlord is originally seeking back rent in a second count, but later determines that there are damages to the premises, he must file an amended Statement of Claim seeking the additional damages in the second count and mail a copy to the Defendant. If the claim does not exceed $5,000.00, the Court will set a pre-trial conference on the Claim and if not settled, will determine all outstanding damages due to the Plaintiff.
- Any claims for damages exceeding $5,000.00 are not properly filed under Small Claims Rules and are subject to the provisions of the Florida Rules of Civil Procedure.
