Until recently, if you had a guest / boyfriend / girlfriend / relative /friend who you invited to live with you on a temporary basis, and refused to leave when you asked them to, your only legal remedy was to file a case against them in court. Law enforcement would refuse to make them leave, declaring it to be a “civil matter,” and (erroneously) telling you to evict them. The correct cause of action is unlawful detainer not eviction.
Effective July 1, 2015, Florida has a new legal remedy to remove a transient occupant from residential property.
“Transient occupant” is defined as an occupation of a residential property for a brief length of time, not pursuant to a lease. This statute does not apply to a landlord-tenant relationship.
The new statute, Section 82.045 , provides a remedy to any person entitled to possession of a residential dwelling unit. So this applies, not only to owner’s, but also lessees. Said party entitled to possession may present a sworn affidavit to a law enforcement officer, requesting said officer to remove a transient occupant.
Once the transient occupant has been asked to leave, they are unlawfully detaining the property.
The affidavit must set forth the factors establishing that the occupation is transient.
The factors include:
- No ownership, financial, or leasehold interest in the subject premises.
- No utility bills in the transients name
- No government ID with the subject property address
- No mail with the subject property address
- Pays nothing, or little, in exchange for the occupancy
- Does not have their own room
- Has minimal personal possessions at the subject premises
- Has a residence elsewhere
Any law enforcement officer, upon receipt of said sworn affidavit may direct a transient occupant to vacate. A transient refusing to vacate on the direction of a law enforcement officer is deemed to have committed misdemeanor trespass under §810.08, F.S. It is not a defense to the trespass charge that the occupant is not a transient. A person wrongly removed, has no cause of action against the law enforcement officer, absent a showing of bad faith, but may recover against the affiant.
The statute also provides that if the party in possession files an unlawful detainer action in court, and the court finds the occupant to be a tenant instead, the case shall not be dismissed, but may be amended to proceed as an eviction upon the provision of the appropriate notices under chapter 83.
Authors note: There is no uniformity amongst law enforcement agencies on the enforcement of this statute. While some have established procedures, others flatly refuse to enforce the statute. If you have had an experience attempting to remove a transient by affidavit, please post a comment to this article.