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Understanding the Commercial Eviction Process in Florida
By: The health of the commercial real estate market in Southwest Florida is oftentimes linked with the overall state of the economy. Our little slice of paradise here in the Naples/Bonita Springs/Fort Myers areas oftentimes acts as a bellwether for the commercial real estate market in general and we see trends develop in our area before the rest of the country.
Whenever there is a larger downturn in the overall economy, there is almost certainly a corresponding rise in commercial delinquencies and evictions in our area. Oftentimes we see commercial property trends develop here before the rest of the country. I often get approached by commercial property managers and private landlords seeking guidance with respect to a tenant who is behind in their rent obligations and their first question is inevitably,
“How do I get rid of this problem tenant as quickly and cost efficiently as possible?”
Unfortunately, we have seen a rise in these types of inquiries lately and with the current state of the economy, and the uncertainly in the commercial market, we thought it would be a good time to review the commercial eviction process in Florida and provide some general guidance to our clients.
Of course, you should always consult an attorney before moving forward with an eviction. If you are a corporate entity, such as a limited liability company or an incorporated business, Florida law requires that you (the entity) be represented by an attorney. We have a number of attorneys at Henderson Franklin that can assist in that regard, and we encourage you to contact us for a review of your lease agreement before there is trouble.
Why Understanding the Eviction Process Matters
The commercial eviction process in Florida is a structured legal procedure that landlords must follow to remove a tenant from a commercial property. Governed by Chapter 83 of the Florida Statutes, this process involves several essential steps that must be adhered to avoid legal complications that will result in delay and extra expense if not followed exactly. One of the most frequent questions we get asked is,
“How quickly can I get the bad tenant out and a new tenant in?”
Landlords who fail to follow the correct eviction procedures risk delays, dismissed cases, or even potential legal liability. By understanding the process, commercial landlords can protect their property rights while ensuring compliance with Florida law. The good news, however, is that Florida law is on your side! Florida, unlike many states in the northeast, has very favorable landlord/tenant laws. In short, if you are a commercial landlord, Florida is a good place to own property.
The Lease, The Lease, The Lease!
Your commercial lease agreement controls! Plain and simple. Oftentimes commercial leases are fairly standard—this is especially true of the leases used by the large commercial property managers. Those leases often have standard “cut and paste” legalese that neither the tenant nor the landlord often understand fully.
In my practice, I have seen all manner of commercial leases from fifty (50) page specially crafted monstrosities to three (3) page agreements downloaded from some random website. The important thing to remember, however, is that no matter the length of the agreement, the terms of your lease are going to control so long as they are not in conflict with Chapter 83, Florida Statutes. So, if you have a bad lease agreement, you may be stuck with it. The terms of your lease and your options with respect to getting the tenant out (and pursuing them for the back rent and damages) may be thus limited.
It is important to remember that Chapter 83 is split into two (2) parts: Part 1 of the Statute which covers ss. 83.001 – 83.251 deals with “Nonresidential Tenancies” (i.e., commercial properties); the second part of the statute (ss. 83.40-83.683) deals with “Residential Tenancies.” Although the sections oftentimes have similar provisions, they are not identical and have some important differences, including notice provisions and deadlines which may be strictly interpreted. As such, a thorough understanding of the Statute and the applicability of each section matters.
Typically, I am first contacted by clients regarding “a delinquent tenant who is behind on their rent.” Oftentimes, I find that the tenant is several months behind, and the landlord or property manager have been going back and forth with the tenant for some time. The client may ask me to send a demand letter rather than proceed with statutory notices to begin the eviction process. This type of intermediary step is a business decision and not a legal one.
As the landlord, you and your property manager are going to have a feel for the tenant. For instance, how will they react to a lawyer becoming involved? Or what are the chances this particular tenant and their business can realistically cure the default? (This comes into play for restaurants for example and season vs. non-season). In such cases, we can attempt to work out a forbearance agreement in which the landlord agrees not to evict in exchange for certain written promises by the tenant to get current on their overdue rents. Typically, we also try to extract an additional written agreement from the tenant that involves a “Consent Judgment” so that if we are forced to later proceed with the eviction, the tenant cannot contest the eviction. That saves time and money down the road for the landlord if the tenant defaults again.
If an agreement to forbear a lawsuit is not warranted, the first step is always READ THE LEASE AGREEMENT! Your lease agreement may impose restrictions upon you that must be fulfilled as a condition precedent before you can file a lawsuit! You have to know what your lease requires you to do as landlord before you can get your troublesome tenant out. Assuming your lease does not require a Notice to Cure or some other notice condition precedent, we can then issue the statutory demand and start the process.
Key Legal Steps in the Commercial Eviction Process
Step 1: Issuing a Notice to the Tenant
A landlord must provide the tenant with proper notice before proceeding with an eviction. The type of notice required depends on the reason for eviction:
- For non-payment of rent. A three-day notice is required, demanding payment or vacating the premises.
- For lease violations other than non-payment of rent. A fifteen-day notice is required, giving the tenant time to cure the violation or vacate.
- For holdover tenants (staying beyond lease expiration). The length of notice depends on the lease agreement, but typically, a fifteen-day notice is issued for tenants that have stayed with the landlord consent on a month-to-month basis after the expiration of the lease.
It is critical that the notice is delivered properly—via certified mail, hand-delivery, or posted at the property if the tenant is unavailable. Absent a lease provision to the contrary, there is no specific requirement as to which method of notice is to be used. However, if notice is only provided by mail, Florida law may impose an additional five (5) day period for mailing before an eviction suit can be filed. Failure to properly follow the notice provisions can result in a dismissal of the case. I have found the best practice is to have a process server post the notice at the premises and start the clock ticking immediately.
Step 2: Filing an Eviction Complaint
If the tenant fails to comply with the notice, the landlord may file an action for eviction. A typical lawsuit will have a two (2) count complaint one count for eviction and possession and one for damages. Most commercial leases contain continuing unconditional personal guarantees which bind the guarantors (typically the individuals running the business) to the lease. The personal guarantees means that the individual guarantors are also included in the lawsuit and named individually. The complaint should include:
- A copy of the lease agreement;
- The served eviction notice; and,
- Evidence supporting the eviction claim.
Once filed, the tenant must be properly served with the complaint and has five business days to respond.
Step 3: Tenant Response and Court Proceedings
If the tenant responds with a defense or counterclaim, both parties will present their case before a judge. If the tenant does not respond within five business days, the landlord can request a default judgment.
Most commercial eviction cases in Florida are resolved by a judge rather than a jury. If the landlord prevails, the court will issue a judgment in favor of eviction.
Step 4: Writ of Possession
If the court rules in the landlord’s favor, the next step is obtaining a writ of possession. This document allows the sheriff to remove the tenant from the property. The sheriff typically provides 24 hours’ notice before executing the writ, ensuring the tenant vacates the premises.
Common Challenges in the Eviction Process
Landlords should be aware of potential challenges that could arise, including:
- Improperly served notices. If the notice is incorrect or improperly delivered, the case could be dismissed.
- Tenant defenses. Tenants may claim landlord negligence (e.g., failure to maintain the premises) as a defense.
- Delays in court. Eviction cases can be delayed if the tenant files counterclaims or requests hearings.
Bottom Line
Understanding Florida’s commercial eviction process is essential for landlords looking to remove problematic tenants efficiently. Ensuring that all notices are correctly served, documentation is in order, and legal steps are followed will help avoid unnecessary legal complications.
For landlords needing guidance on commercial evictions, please contact me at craig.goddy@henlaw.com to schedule a consultation.
Stay tuned for next month’s blog post on the specific notice requirements for commercial evictions in Florida!