Family Member Won’t Move Out

What is an Unlawful Detainer?

An unlawful detainer action is a way of asking the court to remove your unwanted houseguest, whether it be an ex or a family member who was supposed to stay with you for a short time but now refuses to leave.

Florida Law on Unlawful Detainer

In Florida, unlawful detainer actions are governed by Chapter 82 of the Florida Statutes. An unlawful detainer action may be appropriate when an individual occupies a property without the legal right to do so and without any lease or rental agreement. For an unlawful detainer claim to be valid, the occupant must have initially entered the property lawfully, such as by invitation or permission, but subsequently refused to leave after the permission was revoked. To initiate an unlawful detainer lawsuit, the property owner must demonstrate a superior right to possession compared to the occupant, often by providing evidence of ownership, such as a deed or title. The occupant must have no legal right to occupy the property.

Is an Unlawful Detainer Action the Appropriate Action for My Situation?

If a person is occupying your property without the right to do so, several different actions may be appropriate for your situation. For an unlawful detainer action, the owner must not have accepted any rent or payment from the occupant, as doing so could imply a landlord-tenant relationship. In this instance, an eviction proceeding may be needed instead.

In an unlawful detainer action, the party that sought to be removed must not have any interest in the property. Florida caselaw holds that when a party claims an equitable interest in a property, the proper action is ejectment rather than unlawful detainer. Thompson v. Thompson, 342 So. 3d 818, 820 (Fla. 3d DCA 2022). An equitable interest in a property may stem from the party making mortgage payments or paying for costs associated with the property, an agreement that they were to obtain a legal right to the property, or a promise that they may reside there for the entirety of their life; however, there is no clear standard as to whether a person has an equitable interest in a property. The determination of an equitable interest in a property is case-specific. Estevill v. Estevill, 49 Fla. L. Weekly 2322 (Dist. Ct. App. 2024).

One of our Unlawful Detainer Attorneys at Pinellas Family Lawyer can help you ascertain whether an unlawful detainer action is right for you. Because the determination of equitable interest in a property is so case specific, actions may be initiated as unlawful detainers, and then based on the occupant’s claim of equitable interest and the court’s interpretation of such, may develop into an ejectment case. This possibility is important to be aware of because while unlawful detainer actions take place in county court, ejectment cases take place in circuit court, and whereas unlawful detainer cases are entitled to summary procedure, ejectment cases are not. Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So. 2d 1244, 1251 (Fla. 2008).

The summary procedure is a legal concept governed by Chapter 51 of the Florida Statutes, which grants specific causes of action, such as unlawful detainer actions, the right to be expedited by the courts to provide the owner relief as quickly as possible. The change from unlawful detainer to ejectment will, therefore, mean the case must be transferred from county court to circuit court and heard in front of a different judge, as well as lose the right to summary procedure. This means the process may take a bit longer; however, Pinellas Family Lawyer can help you every step of the way.

Legal Process in Florida

The legal process for pursuing an unlawful detainer action in Florida involves several steps:

1. File a Complaint: The property owner can file a complaint in the county court where the property is located to remove the party in possession of the property. A written demand for the party to vacate the property is not required prior to filing the complaint because the occupant in an unlawful detainer action does not have a legal right to be there. However, the party in possession of the property must know that they have the property without the owner’s consent for a property owner to prevail. The complaint must include specific details, such as the legal description of the property and the facts supporting the owner’s claim to possession.
2. Court Summons: Once the complaint is filed, the court will issue a summons, which must be served to the occupant, granting them the opportunity to respond. The occupant is granted five (5) days to respond to the complaint once it has been served on them.
3. Court Hearing: Both parties will present their case in court. If the court rules in favor of the property owner, an order will be entered for the occupant to vacate the property.
4. Enforcement: A writ of possession will be awarded within the court order, which is a document to enforce the removal of the party from the property. Law enforcement will post the writ of possession on the property, thereby informing the party that they are to remove themselves from the property within 24 hours. If the party does not remove themselves from the property within 24 hours, law enforcement will formally escort them and their belongings.

Contact a Pinellas Family Lawyer

Pinellas Family Lawyer’s unlawful detainer attorneys can represent you in your unlawful detainer action, including filing all necessary paperwork, guiding you through the process, and ensuring a court order is entered ordering your unwanted houseguest to leave the premises. Do not try to self-evict your unwanted houseguest. This may lead to bigger problems for you down the road. Hiring an experienced unlawful detainer attorney can help you remove your ex-boyfriend, ex-girlfriend, or family member without the need for more drastic measures. Once the order has been entered commanding your unwanted houseguest to leave your home, if they still refuse to leave, the police will formally escort them out of your home along with their belongings. If they come back uninvited again, a restraining order or injunction may be sought to offer you additional protection.