Whether law enforcement may properly remove a person from a residence depends on whether that person has a lawful right to be there. Whereas the right of a “guest” to occupy a premises may be freely revoked by the owner, the right of a “tenant,” or a person claiming an “ownership interest” can only be terminated by a court order, and is thus a “civil matter.”
CLAIM OF OWNERSHIP INTEREST CIVIL MATTER
If the occupant claims an ownership interest, has an agreement for deed, option, or contract to purchase, the appropriate remedy is for the competing owner to file an “ejectment” in circuit civil court.
TENANT CIVIL MATTER
A tenant is any person entitled to occupy a dwelling unit under a rental agreement. The Rental agreement does not have to be in writing. To remove the tenant, Florida law requires the landlord to file an “eviction” in civil court. If the eviction is granted by a judge, the Clerk of Court will issue a writ of possession directing the county sheriff to carry out the court’s order to remove the tenant. After the sheriff has executed the writ of possession, local law enforcement may treat the former tenant as a trespasser. The landlord should present a copy of the writ of possession or the sheriff’s return of service for the writ.
OCCUPANTS IN A PUBLIC ACCOMMODATION MAY BE REMOVED
Occupation of a private or public facility pursuant to medical, geriatric, educational, counseling, religious, or similar services is excluded from the landlord tenant act. §83.42(1) F.S. and persons may be removed by law enforcement pursuant to §810.08 after the property owner, or person in legal possession of the subject premises has notified the guest to depart from the establishment.
The definition of hotel/motel is rentals for a term of less than one calendar month or 30 days, whichever is less. §509.013(4)(a)F.S. and persons may be removed by law enforcement pursuant to §509.141 after the property owner, or person in legal possession of the subject premises has notified the guest to depart from the establishment.
Transient occupancy in a hotel, motel, rooming house, or similar public lodging or similar public lodging is excluded from the landlord tenant act. §83.42(3). F.S.
If the occupant has stayed in the public lodging long enough, he is no longer a “transient,” and will gain the status of “tenant” and be entitled to eviction proceedings in court.
THE TEST: How do you determine if the occupant is no longer a “transient?”
- Length of stay more than 30 days.
- Intention of the parties that the occupancy is for indefinite duration
- Subject premises is occupant’s primary residence.
- Occupant has government issued ID with the subject premises as the address.
RECREATIONAL VEHICLE PARKS
As with the Hotel/Motel, “transients” may be removed after the owner has notified them to depart pursuant to §513.13.
Transient occupancy in a mobile home park is excluded from the landlord tenant act. §83.42(3). F.S. If the occupant has stayed in the park long enough, he is no longer a “transient,” and will gain the status of “tenant” and be entitled to eviction proceedings in court. The test for transient status is the same as for Hotel/Motel.
TRANSIENT RESIDENTIAL OCCUPANTS MAY BE REMOVED
A guest staying in a residence is not entitled to a court proceeding to be removed by law enforcement pursuant to §82.035, Florida Statutes, upon provision of an affidavit by the property owner, or person in legal possession of the subject premises, stating the following:
- The transient occupant has 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
- 82.035(3)(a) F.S. ”A person who fails to comply with the direction of the law enforcement officer to surrender possession or occupancy violates s. 810.08.”
- 82.035(3) (b) A person wrongfully removed pursuant to this subsection has a cause of action for wrongful removal against the person who requested the removal, and may recover injunctive relief and compensatory damages. However, a wrongfully removed person does not have a cause of action against the law enforcement officer or the agency employing the law enforcement officer absent a showing of bad faith by the law enforcement officer.
If the officer is not satisfied that the person to be removed is actually a “transient,” the complainant will have to file an “unlawful detainer” case in the county court.
TRESSPASSERS MAY BE REMOVED
Law enforcement may also remove a “transient occupant” on the charge of trespass. Florida Statutes §810.08 (1) provides ”Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.”