RESIDENTIAL EVICTION QUICK GUIDE SUMMARY PROCEDURE: Evictions should be given priority over non-time/money sensitive cases. The following slides are a guide to our discussion as to the procedure of handling residential Evictions. This will cover the procedure for most all of the residential Eviction cases that you will handle. Starting point, summary procedure or devastating decision. Every day a Landlord is not collecting rent, a substantial amount of money could be lost.

ONCE JUDGE SEES FILE Judge should quickly review file to determine if: SIXTH / TENTH BUSINESS DAY after Tenant served, file should be brought to Judge. ONCE JUDGE SEES FILE Judge should quickly review file to determine if: DEFAULT is proper OR HEARING should be set AND ORDER should be entered ordering money should be placed into the Court Registry UNNECESSARY Trials may result if the judge does not review file prior to the case being set. 6th day (5 day summons) or 10th day (5 days plus + 5 days mailing)

COMMON DEFAULT SITUATIONS 1. Tenant residential, failure to pay rent, has Defaulted (no answer filed) - Final Judgment should be signed. 2. Tenant has Defaulted (answer filed) but has not posted rent into the court registry. Upon signing Final Judgment file should be returned to the Clerk for issuance of There are three exceptions to the deposit requirement rule, 1. The Tenant asserts the defense of payment and can produce evidence, the Tenant will not have to post rent; 2. If the Tenant has been called into state active duty, the Tenant is not required to post rent but only in the Tenant has notified the Landlord in writing, the rent is less than $1,200.00 per month and the unit is occupied primarily as a residential dwelling. F.S. 250.5202(1); and, 3. The Tenant may file a motion contending that the amount claimed in the complaint is in error and asking the court to determine the correct amount of rent to be posted. F.S. 83.60(2). The Tenant may assert that the amount alleged by the Landlord for rent is incorrect or that the Landlord's noncompliance is so severe that the rent should be reduced. The Tenant must be able to produece documentation supporting the Tenant's allegations before the court will entertain the motion.

A. If full amount of rent as alleged in complaint is posted into court registry, Tenant is entitled to a Trial. B. If Tenant alleges that they have paid the rent, they are entitled to a Trial. C. If partial amount of rent is posted into court registry, some judges will set case for Trial and order the balance to be placed into court registry by a fixed date or a Default Judgment will enter. If rent is posted into registry, Trial will proceed on date of ORDER. If not, a Default will enter. I enter order setting Trial, which will be held if deposit is made several days before the Trial date, including language that the Tenant will Default if deposit is not made.

Tenant has a right to challenge the amount of rent that is asked for in the complaint. Problem: Sometimes the Tenant will simply file a hollow Motion to Determine Rent saying “I disagree with the amount owed.” The motion is defective if it fails to allege that the rent asked for in the complaint in “in error” and to attach Documentation. Sometimes Clerks or paralegals will give them a hearing date and a fill-in-the blank MOTION TO DETERMINE RENT. THIS IS NOT PROPER A MOTION and may be stricken EXAMPLES OF DOCUMENTATION: Receipts, letters, out of pocket expenditures, conflicting demands or bills by the Landlord.

If Tenant admits owing an amount of rent but denies the amount claimed, the judge should ORDER the undisputed amount into the Court Registry. Motion to Determine Rent -- Judge determines how much if any rent is to be placed into the court registry. A MOTION TO DETERMINE RENT HEARING is not the place for the Trial to be held. It is strictly for

MOTIONS TO DISMISS Defective 3-Day Notice a. Failure to exclude holidays b. Amounts other than rent demanded c. Mailed notice omitted to add 5 days Improper parties a. Not all Tenants named on 3-Day Notice b. Improper owner as Landlord c. Fictitious name not filed for Landlord (Most Judges will consider amounts that are not the usual monthly rent if and only if the lease agreement defines these charges as “Additional Rent”) 3. Failure to give 7-Day Notice of Non Compliance with Opportunity to Cure for Curable offense 4. Notice of Non Renewal was short

2 VIEWS BY JUDGES: These are fatal defects so that case must be dismissed if deposit is not made; OR, These are not fatal and Tenant is still defaulted if rent money is not placed into the registry (View of Judge Hauser) Refer to the competing cases in the handout.

SCHEDULING EVICTION TRIALS Tenant has alleged all rent has been paid. Order accrued rent be placed into the Court Registry should be entered. The Tenant in possession would not typically be prejudiced by a delay in the Trial date. Continuance should be limited due to the potential waste and rent loss and the fact that it is under Summary Procedure. Even then, if Trial ends up being set for next month, an ORDER, ordering the accrued rent be placed into the Court Registry should be entered. COMMON PROBLEM: failing to recognize that another month’s rent will be owed by the date of the Trial and so that when the Trial is held, accrued rent has not been placed into the Court Registry. T or LL may request a jury to decide issues of facts. Cerrito v. Kovitch, 457 So.2d 1021 (Fla. 1984); Jacques v. Wellington Crop, 183 So. 22 (Fla. 1938); State ex rel, Jennings v. Peacock, 171 So. 821 (Fla. 1937). The parties may waive their right to a jury Trial. See, C & C Wholesale, Inc. v. Fusco Management Corp., 564 So. 2d 1259 (Fla. 2 DCA 1990) (commercial tenancy).

EVICTION TRIAL PROCEDURE If all parties are NOT present, wait at least 20 minutes then take uncontested Evictions first Ask parties if they have “had a chance to talk” If the answer is NO, give a 10 minute chance to send parties into the hall to discuss case. Before beginning Trial, ask Tenant if they wish to stay, have vacated, are on their way out or just need a little time. MANY cases are settled right then and there. Most parties have not discussed anything prior to court once the Eviction was filed. The Landlord or attorney will often agree to a week or so. If the Tenant fails to vacate, the attorney or Landlord can either file an AFFIDAVIT OF NON COMPLIANCE or often can call in, inform the judge and the judge will sign the final Judgment which may be in the file. Since this is often the case, the judge can order the Tenant to vacate on a fixed date and the judge can ORDER same with a deadline.

Once Trial begins, often the Judge will often ask the Tenant, “Have you paid the rent”. If the answer is NO and it is due to financial difficulties, job loss, etc, it may be appropriate to enter Final Judgment of Eviction. If the answer is NO and is due to habitability issues, Tenant must prove they gave the Landlord A Seven Day Notice of Withholding Rent. This is a strict and specific requirement in Florida Statutes

If the Tenant proves notice, the Tenant may be able to advance a valid defense if Tenant prove Landlord's material noncompliance. A. The judge can then DENY the Eviction at Trial B. Reduce the rent as the evidence presents itself at Trial

MEDIATION Rather than setting the case for Trial, Court may direct parties to Mediation upon deposit. PROBLEMS: Where settlement is not reached, there is sometimes a delay until the trial date Mediation order that fails to require the accrued rent to be deposited A few overburdened counties are setting Evictions for mediation rather than Trial. Mediation results in a stipulation in a majority of cases Mediation is appropriate where the Tenant has answered, deposited and continues to place the accrued rent into the Registry of the Court. Mediation order that fail to require the accrued rent to be deposited, it may leave Tenant in possession during while the case is reset without complying with Florida Statute. SOLUTIONS: If you decide to send a case to Mediation, make sure MEDIATION ORDER requires a rent deposit with a date a few days prior to the MEDIATION and REQUIRES accruing rent to be deposited or the Mediation is canceled.

SETTLING THE EVICTION CASE The 2 common types of STIPULATIONS are 1. THE PAY AND STAY STIPULATION whereby the Landlord AND Tenant work it all out. 2. THE TEMPORARY STIPULATION whereby the Tenant agrees to leave at a fixed date maybe paying a bit for the privilege or not. Many cases are settled by Stipulation often provided by the attorney, mediation departments and often the judges keep some on hand. 1. These usually stay open for 6 months and as long as the terms are complied with and the Tenant pays rent for the 6 months, everyone is pleased. If there is noncompliance, the Eviction will continue upon Affidavit by the attorney or Landlord and the judge will sign the Final Judgment 2. Again, if the Tenant fails to vacate per the agreement, the attorney or Landlord submits an Affidavit of Noncompliance and the Final Judgment is signed.

A NOTE ON STIPULATIONS: Some judges will: Refuse to sign stipulations that continue on once the Tenant gets caught up; or, Would require the Tenant to be served with a new 3 day notice and/or posting of the notice of Default. The alleged rationale behind this is that the Tenant has paid so why keep the case open. And where the law requires a 3 day notice and service by posting, the Tenant should receive that notice despite the stipulation. In actuality, this approach DISCOURAGES LandlordS to enter into Stipulations. Stipulations are very beneficial to the Tenant and the Landlord. If the Landlord cannot keep the Eviction open for a while, and might have to file another Eviction next month or the month after, the Landlord is more apt to just want the Tenant evicted. Usually judges allow Stipulations to remain open for 6 months.

STAYING THE WRIT OF POSSESSION MOTION TO STAY WRIT OF POSSESSION should immediately be looked at by the judge to determine if there is any merit. JUDGE CAN deny stay ex parte or set an emergency hearing. SOME MERITORIOUS REASONS Landlord has accepted rent OR Made a deal with the Tenant. The Tenant’S last resort other than filing bankruptcy is to file a MOTION TO STAY THE WRIT OF POSSESSION. Some judges stay writ upon full deposit. Emergency hearing. This should be done immediately and attorney should be allowed to appear by phone if appropriate. It is rare that a WRIT OF POSSESSION IS STAYED COMMON PROBLEM: The judge Stays the WRIT OF POSSESSION or decides to set another hearing and fails to tell the Landlord OR ATTORNEY right away. This causes a serious delay as the Landlord or ATTORNEY is expecting the Sheriff to come out to the property but no one shows up. It is highly recommended to notify the parties immediately in the event the judge grants a Stay. If the judge stays the writ, the sheriff is notified.

DISBURSING THE DEPOSIT The Tenant may deposit rent into the Court Registry, have a Trial etc. If there is an issue regarding entitlement to the Court Registry, the Judge may set this for a later Trial. Except where counterclaim or inhabitability claim pending, the Judge will disburse this money to the Landlord even if the Landlord loses the Eviction if the Tenant does not deny the money is owed or the Judge determines that the Landlord is entitled to the rent money. It is expedient to resolve the Court Registry Deposit at the time of the Trial if at all possible.