June 11, 2021

Navigating Eviction Moratoriums—Caution to Landlords and Investors

In March of 2020, it became clear among the masses (both private and public) that Covid-19 would be an undeniable hindrance to our ability to resume “normal” life as we know it (whatever “normal” means to each of us individually). Schools, businesses, parks, restaurants, etc. all began closing their doors both voluntarily and involuntarily based on local, state and Federal regulations demanding the same. Not surprisingly, certain sectors of the economy that require in-person contact or activities with close proximity to each other almost immediately began feeling the wrath of the economic outfalls from the pandemic.

Many local and state regulations curbed or even prohibited businesses from opening such as food and beverage, hospitality, fitness, entertainment, sports, etc. due to exponentially increasing infection rates of the virus. Multiple businesses (particularly small businesses) were forced to reduce salaries, furlough or layoff staff, max-out credit lines, take out loans or even close their doors entirely. Notwithstanding, one of the most hard-hit industries is the real estate market due to the ongoing eviction and foreclosure moratoriums. From small landlords to major real estate investment groups, everyone has been trying to navigate both the local and federal moratoriums with very little success.

Through Executive action, governmental agencies like the Centers for Disease Control and Prevention (“CDC”) and local regulations, the moratorium on evictions has made it increasingly difficult for landlords and investors to recoup their investments and sustain operations. To be sure, the moratorium generally forbids issuing Writs of Possession on residential tenants for failure to pay rent (with some requiring documentation of financial hardships caused by Covid specifically). However, it does prohibit evictions due other forms of lease violations such as waste, hazards, occupancy issues, etc. and certainly does not cover “squatters” residing in a home without permission from the landlord or a valid lease. Notwithstanding, even for evictions actions that are outside the moratoriums, defenses continue to be filed and landlords should be more diligent than ever to ensure their investments are secured during this landlord-hostile political environment.

Notice Requirements are Crucial for Landlords

In Florida, the eviction process for both residential and commercial properties require serving a notice to the tenant that varies in time requirements depending on the lease violation (i.e., three-day notice for failure to pay rent on both residential and commercial; seven-day notice for violation other than non-payment on residential leases and fifteen-day notice on commercial leases). Failure to properly give notice and allow the statutory timelines to expire before filing the eviction could have grave consequences for landlords and investors beyond a dismissal of the eviction action itself for failure to satisfy conditions precedent.

For example, most lease provisions allow for the landlord/owner to recoup attorney’s fees and costs for having to take action over an alleged violation of the lease (this is normal in both residential and commercial leases). However, Florida has a reciprocal prevailing-party fee statute (Fla. Stat. 57.105(7)) that essentially allows for either party (both the landlord or the tenant) to obtain attorney’s fees if a contract (such as a lease) allows for one party to obtain the same in the event they prevail. Therefore, it is very possible that a landlord could commence an eviction lawsuit on a tenant, accidently fail to serve proper notice or file the lawsuit before the statutory timelines, and ultimately have to pay for the tenant’s attorney’s fees when the case is dismissed (which could be well over the amount of the lease violation). Landlords should be very careful with complying with the notice requirements prior to filing an eviction action, as it could have grave financial consequences outside the lack of rent payments or other violations being alleged. Speaking with an experienced attorney about all possible factual situations, judicial interpretations and legal options should be considered prior to initiating any eviction action even for the most seasoned landlords.

Squatters— What Landlords Need to Know

Not surprisingly, many landlords do not understand how to deal with “squatters” on their properties. Understandably, when a person breaks into your home illegally and starts to reside in the property, most people will call the police and attempt to have them trespassed (or worse). However, savvy tenants have been breaking (or unlawfully entering) into recently-listed homes, setting up abodes and refusing to leave when the landlord tries to enter their property. Invariably, when the police are called, the tenant will make a bogus claim that they have a “lease” or other informal agreement with the prior owner or the current. If/when this occurs, most police departments consider this a “civil matter” and will not take action (despite whether the squatting tenant can provide a lease or not).

As ludicrous as this may sound, it is quite common (especially in South Florida) and frustrates many landlords who feel helpless and frustrated with the system. Even worse, when the landlords seek an attorney to start an eviction, they are surprised when their eviction is thrown out or dismissed as an eviction proceeding generally requires a lease or an agreement to be attached to the complaint. Inexperienced lawyers often find themselves just as frustrated with the legal process which is why “squatters” continue to be a hot topic on the news and local media outlets.

Fortunately, there is a solution for squatters of which experienced real estate attorneys should be recommending which is an entirely different cause of action from an eviction called an Unlawful Detainer, as codified under Chapter 82 of the Florida Statutes. This cause of action is specifically for most squatting situations and allows for an immediate lawsuit without any notice requirements or other delays. It also requires summary procedure (or expedited review from the Court) very similar to an eviction along with the ability to obtain a Writ of Possession to remove the squatter (also very similar to an eviction remedy). Additionally, although not required, the owner/landlord can seek damages for double the normal rent along with any possible waste or harms to the property caused by the squatter. Although there are nuances with this type of action that an attorney can explain, it is ultimately the best vehicle for squatting situations and should be a tool every landlord is familiar with to some degree.

Takeaway

Although the eviction process is generally benign and commonplace, it is important to understand your lease provisions and legal obligations as a landlord before initiating evictions. With moratoriums continuing, squatter scenarios increasing and eviction defense attorneys demand at an all-time high, it is important that landlords seek experienced real estate professionals to assist with navigating the eviction process. Failing to hire the right attorney or firm could be both costly and time-consuming—all at the benefit of the tenants.

Jason Vanslette is a Partner at Kelley Kronenberg focusing his practice on Real Property Litigation, Real Estate Commercial Transactions, and Residential Closings.

Contact Jason Vanslette at:
Phone: (800) 814-1736
Email: jvanslette@kklaw.com

DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.