How To Evict A Tenant (Part 5) - The Eviction Complaint

This is Part Five of the How To Evict A Tenant In Florida series.

Understanding The Proper Jurisdiction In Which To File The Eviction Complaint

Simple Eviction Action

If the tenant fails to timely respond to the 3 day eviction notice (i.e., the tenant does not pay the past due rent nor does he or she vacate the premises), the landlord is entitled to sue the tenant. At that time, the landlord has the option of bringing one of two action. First, the landlord can sue the tenant solely for possession of the rental property. In that event, the County Court has exclusive jurisdiction over the case and the case must be filed therein.

Simple Eviction Summons

The civil action summons that is appropriate in this simple eviction action seeking only possession of the real property is found in Form 1.923. This form provides that the tenant has five days to respond to the eviction complaint:

EVICTION SUMMONS / RESIDENTIAL

TO: ______________ [Insert the Name and Address of the Defendant(s)]

PLEASE READ CAREFULLY

You are being sued by ______________________ [Insert the Name of the Plaintiff] to require you to move out of the place where you are living for the reasons given in the attached complaint.

You are entitled to a trial to determine whether you can be required to move, but you MUST do ALL of the things listed below. You must do them within 5 days (not including Saturday, Sunday, or any legal holiday) after the date these papers were given to you or to a person who lives with you or were posted at your home.

THE THINGS YOU MUST DO ARE AS FOLLOWS:

(1) Write down the reason(s) why you think you should not be forced to move. The written reason(s) must be given to the clerk of the court at _________________ [Insert the County] County Courthouse, ______________________ [Insert the City], Florida __________ [Insert the Zip Code].

(2) Mail or give a copy of your written reason(s) to:

__________________________ [Insert the Name and Address of the Plaintiff or Plaintiff’s Attorney].

(3) Pay to the clerk of the court the amount of rent that the attached complaint claims to be due and any rent that becomes due until the lawsuit is over. If you believe that the amount claimed in the complaint is incorrect, you should file with the clerk of the court a motion to have the court determine the amount to be paid. If you file a motion, you must attach to the motion any documents supporting your position and mail or give a copy of the motion to the plaintiff/plaintiff’s attorney.

(4) If you file a motion to have the court determine the amount of rent to be paid to the clerk of the court, you must immediately contact the office of the judge to whom the case is assigned to schedule a hearing to decide what amount should be paid to the clerk of the court while the lawsuit is pending.

IF YOU DO NOT DO ALL OF THE THINGS SPECIFIED ABOVE WITHIN 5 WORKING DAYS AFTER THE DATE THAT THESE PAPERS WERE GIVEN TO YOU OR TO A PERSON WHO LIVES WITH YOU OR WERE POSTED AT YOUR HOME, YOU MAY BE EVICTED WITHOUT A HEARING OR FURTHER NOTICE

THE STATE OF FLORIDA:

To Each Sheriff of the State: You are commanded to serve this summons and a copy of the complaint in this lawsuit on the above-named defendant.

DATED on ____________________ [Insert Date On Which the Summons Is Issued]

Clerk of the County Court

By: _____________________________________
As Deputy Clerk

Simple Eviction Service of Process

Where the landlord is suing the tenant for only possession the property, service of process can be accomplished by either personal delivery by the sheriff or a licensed process server, or by posting the summons and complaint at a conspicuous place on the premises. However, unlike service of the 3 day eviction notice, prior to being permitted to post the summons and complaint, the licensed process server must make at least two attempts to personally serve the tenant, with each attempt being at least six hours apart.

Moreover, when the lawsuit is filed with the Clerk of Court, the landlord must also give the Clerk a duplicate copy of the initial pleadings for each defendant being served. The landlord must also provide the Clerk with self-addressed, postage prepaid envelopes. Thereafter, the Clerk of Court must mail the pleadings (including the summons and the complaint) to each of the defendant and is further required make a note in the Court docket certifying that the documents were mailed as well as indicating the date of such mailing.

Hybrid Eviction Action

The landlord can also sue the tenant for both possession of the property as well as for monetary damages seeking to collect the outstanding rent. This type of eviction action is also commonly referred to as a “hybrid eviction action.” If the landlord elects to file a hybrid eviction action, the case must be initiated in the Court that has the appropriate monetary jurisdictional limits. As a result, if the hybrid action seeks monetary damages exceeding $15,000.00, the action must be filed in Circuit Court; if it seeks monetary damages not exceeding $15,000.00, the action is only appropriate in County Court.

Hybrid Eviction Summons

When the landlord is serving a hybrid complaint, the only real difference is the inclusion of the following paragraph in the summons.

(5) If the attached complaint also contains a claim for money damages (such as unpaid rent), you must respond to that claim separately. You must write down the reasons why you believe that you do not owe the money claimed. The written reasons must be given to the clerk of the court at the address specified in paragraph (1) above, and you must mail or give a copy of your written reasons to the plaintiff/plaintiff’s attorney at the address specified in paragraph (2) above. This must be done within 20 days after the date these papers were given to you or to a person who lives with you. This obligation is separate from the requirement of answering the claim for eviction within 5 working days after these papers were given to you or to a person who lives with you or were posted at your home.

Of course, this additional paragraph has the effect of affording the tenant twenty days to respond to the money damages part of the hybrid complaint.

Hybrid Eviction Service of Process

Like a simple eviction complaint, the hybrid complaint can be personally served or posted (assuming the process server or sheriff complies with the posting requirements set forth above). However, the big difference is that if the service of process is accomplished through posting, the landlord will not be entitled to an award of monetary damages. Accordingly, if the landlord is serious about collecting the past due rent, the landlord should never permit the service of process of a hybrid complaint to be made through posting.

Tenant Counterclaims

An interesting wrinkle also occurs when a landlord files an action in County Court and is faced with a counterclaim by the tenant claiming monetary damages in excess of the County Court’s jurisdiction (i.e., exceeding $15,000.00). In that case, the County Court, upon finding that the tenant’s counterclaim is filed in good faith and is not a sham, must transfer the whole case to the Circuit Court.

Landlord’s Use of the Expedited Summary Procedure

Florida Statute § 83.59(2) provides, in pertinent part, that the “landlord is entitled to the summary procedure provided in s. 51.011, and the court shall advance the cause on the calendar.” Generally speaking, Florida Statute § 51.011 provides that eviction matters are entitled to expedited treatment and, as a result, is a great benefit to the landlord seeking to evict their tenant.

LEGAL DISCLAIMER: This article is written based on the current status of Florida’s landlord tenant laws. However, this article is for general knowledge only and is not intended, in any way whatever, to constitute legal advice. Prior to following any recommendations listed in this article, please consult an attorney duly licensed in your state, preferably an eviction attorney who is well versed in the Florida eviction process.

Additional Articles In This Series Can Be Found As Follows:

How To Evict A Tenant in Florida (Part 1) can be reached by clicking this link: An Overview of Landlord Tenant Law;

How To Evict A Tenant in Florida (Part 2): 3 Day Eviction Notice;

How To Evict A Tenant in Florida (Part 3): Tenants Rights And The 3 Day Eviction Notice;

How To Evict A Tenant in Florida (Part 4): Tenant Service of the 3 Day Eviction Notice; and

How To Evict A Tenant in Florida (Part 5): The Eviction Complaint.