Commercial Eviction (FL)

Lexis Practice Advisor

A Lexis Practice Advisor® Practice Note by Meghan O. Serrano, Shumaker, Loop & Kendrick, LLP

Meghan O. Serrano

Shumaker, Loop & Kendrick, LLP

This practice note outlines the requirements for bringing a

commercial eviction action under Florida law and explains

how to ensure compliance with all pre-suit requirements.

Although the note is written from the landlord’s perspective,

the information provided is also relevant to the tenant and

tenant’s counsel.

For guidance on residential evictions in Florida, see

Residential Eviction (FL). For a compilation of Florida eviction

resources, see Eviction Resource Kit (FL).

Pre-suit Requirements

Part I of Chapter 83 of the Florida Statutes (ss. 83.001–

83.251) governs nonresidential tenancies, and outlines the

notice required prior to filing an action to evict a commercial

tenant from the landlord’s property. However, if the tenancy

is governed by a written lease, it is imperative to review the

lease and abide by any specific or additional notice provisions

included in that contract to ensure compliance with all

conditions precedent to filing an action for possession.

Notice of Default Due to Failure to Pay Rent

Prior to filing any action to evict a tenant for failure to pay

rent, the landlord must serve the statutorily required three-

day notice demanding payment of rent or possession of the

premises within three days from the date of delivery of the

notice. Fla. Stat. Ann. § 83.20(2). For an annotated version of

this form, see 3-Day Notice (Commercial Eviction) (FL).

The notice may be mailed to the tenant, personally served,

or, if the tenant is absent from the premises, a copy may

be left at the leased property. Fla. Stat. Ann. § 83.20(2).

Because compliance with the statutory notice requirements

is a precondition to obtaining a judgment for possession, it

is advisable to send the notice in a manner that will confirm

delivery and receipt by the tenant, such as by sending via

Federal Express, certified mail, or through a process server

who can prepare an affidavit attesting to service if necessary.

If the tenant cures the default by paying the past due rent,

the landlord cannot bring an action for possession based on

the prior default. Fla. Stat. Ann. § 83.202.

Notice of Default for Any Reason Other Than

Failure to Pay Rent

If a tenant is in default of any lease obligation other than

the payment of rent, Florida law provides that if the lease is

silent on the issue or if the lease is oral, the tenant should

be given at least 15 days’ written notice requiring the

cure of the breach or possession of the premises. Fla. Stat.

Ann. § 83.20(3). If the lease includes a provision regarding

the manner in which such notices must be provided, that

provision controls, otherwise, the notice must be by mail,

hand delivery, or, if the tenant is absent from the premises, by

posting the notice at the premises. Fla. Stat. Ann. § 83.20(3).

Here, too, because notice is a precondition to obtaining a

judgment for possession in the event that the default is not

cured, it is advisable to send the notice in a manner that will

confirm delivery and receipt by the tenant, such as by sending

via Federal Express, certified mail, or through a process

server who can prepare an affidavit of service if the tenant

later claims that service was defective or no notice was

received.

For a form, see 15-Day Notice (Commercial Eviction) (FL).

Actions for Possession

Jurisdiction

If the landlord seeks only to recover possession of the

property, the action must be filed in the county court. Fla.

Stat. Ann. § 83.21. Until December 31, 2019, if the landlord

seeks to recover possession of the property and damages

that exceed $15,000, the action must be filed in circuit court.

Effective January 1, 2020, the circuit court has jurisdiction of

matters where the amount in controversy exceeds $30,000,

and for matters in which the amount in controversy is less

than $30,000, the county court has jurisdiction. Effective

January 1, 2023, the circuit court has jurisdiction of matters

where the amount in controversy exceeds $50,000, and

for matters in which the amount in controversy is less than

$50,000, the county court has jurisdiction. See Fla. Stat. §

26.012, as amended in 2019.

Complaint for Possession

If the tenant fails to cure a default for the nonpayment of

rent after notice, the lease is terminated and the landlord

may file an action seeking possession of the property

(eviction). Fla. Stat. Ann. §§ 83.21, 83.231. See Fla. R. Civ. P.

Form 1.947 for the statutory form. For an annotated version

of this form, see Complaint for Eviction (Failure to Pay Rent)

(FL). (For a form complaint based on a default other than

the nonpayment of rent, see Complaint for Eviction (Default

other than Failure to Pay Rent) (FL).) Attorney’s fees and

court costs are recoverable under Florida law in an action to

enforce the terms of the lease. Fla. Stat. Ann. § 83.231.

The court is required by statute to “advance the cause on the

calendar” and the landlord is entitled to summary procedure

provided for in Section 51.011, Florida Statutes, which means

that at least five days (excluding Saturdays, Sundays, and legal

holidays) from the date of service must have elapsed before a

judgment for final removal of the tenant may be entered. Fla.

Stat. Ann. §§ 83.22 (2), 51.011; Fla. R. Jud. Admin. 2.514(a)

(3).

As discussed below, Florida law provides that a tenant must

deposit all past due rent into the court registry in order to

defend the eviction action. Because this procedure provides

a prompt and effective mechanism to obtain a judgment for

possession quickly, the practitioner should avoid any issues or

delay and confirm prior to filing that the complaint accurately

summarizes all rent due.

Complaint for Possession and Damages

The landlord can include a claim for damages for breach of

the lease in the same lawsuit as the eviction claim, but this

claim is not governed by summary process and the tenant

will have the standard 20 days to file and serve a response

to a damages claim. Fla. R. Civ. P. 1.140(a)(1). For a form, see

Complaint for Eviction and Damages (FL).

Service of Complaint

Because the landlord is entitled to summary process under

Chapter 51, the summons served on the tenant, along with

the complaint seeking possession of the property, notifies

the tenant that to defend an eviction proceeding on any

basis other than payment, the tenant must (1) file a motion

to determine rent, or (2) deposit all past due rent described

in the complaint with the registry of the court and serve an

answer stating the legal basis for the defense within five

days of being served (excluding Saturdays, Sundays, and

legal holidays). Fla. Stat. Ann. § 83.232(1), Fla. R. Jud. Admin.

2.514(a)(3). Although the requirements vary by county,

typically, funds deposited to the court registry must be in

cash, cashier’s check, or money order, and clerk fees apply.

The landlord can include a claim for damages for breach of

the lease in the same lawsuit as the eviction claim, but this

claim is not governed by summary process and the tenant

will have the standard 20 days to file and serve a response

to a damages claim. Fla. R. Civ. P. 1.140(a)(1). The landlord

need only serve the tenant with one summons for the lawsuit

provided that the summons specifies that the tenant has

five days to answer the claim for possession and 20 days to

respond to the money damage claim. Stein v. Hubbs, 439

So. 2d 1005 (Fla. Dist. Ct. App. 1983) (noting that it “would

be duplicative of court time and costs to require service of

both a five-day and a 20-day summons in such cases [where a

complaint seeks remedies of possession and damages]”). For a

sample summons that specifies the different time periods for

a response to claim for eviction and damages, see Summons

(Eviction and Damages) (FL). For a summons for use when

the landlord only seeks eviction, see Summons (Eviction) (FL).

Tenant’s Failure to Respond to Complaint

If the tenant fails to answer the complaint for possession

after the expiration of five business days after personal

service on the tenant or, if service is by posting, five business

days after service is effective (the date of posting or mailing,

whichever occurs later), the landlord may file a motion for

entry of a default. In order to obtain entry of a default, the

landlord must file the return of service with the clerk of court

and for any party who is an individual, confirm that he or

she is not in the military. Upon the entry of the default, the

landlord may file a motion for final judgment for possession.

Fla. Stat. Ann. §§ 51.011, 48.031(1)(a). See Fla. R. Civ. P.

1.500.

For forms, see Motion for Clerk’s Default (Possession)

(Eviction) (FL), Motion for Clerk’s Default (Damages)

(Eviction) (FL), and Non-Military Affidavit (Eviction) (FL).

Tenant’s Obligation to Deposit Past Due Rent to

Defend Eviction

After the complaint is filed, the clerk of court will issue a

summons that notifies the tenant that to defend an eviction

proceeding on any basis other than payment, the tenant

must (1) file a motion to determine rent, or (2) deposit all

past due rent described in the complaint with the registry

of the court and serve an answer stating the legal basis

for the defense within five days of being served (excluding

Saturdays, Sundays, and legal holidays). Fla. Stat. Ann. §§

83.232, 51.011(1); Fla. R. Jud. Admin. 2.514(a)(3). For forms,

see Summons (Eviction) (FL) and Summons (Eviction and

Damages) (FL). Although the requirements vary by county,

typically, funds deposited to the court registry must be in

cash, cashier’s check, or money order, and clerk fees apply.

Although the clerk’s summons issued in an eviction action

will include notice to the tenant regarding its obligation to

deposit all past due rent into the court registry in order to

defend the eviction action, note also that Section 83.232(3),

Florida Statutes states that “[t]he court, on its own motion,

shall notify the tenant of the requirement that rent be paid

into the court registry by order, which shall be immediately

issued upon filing of the tenant’s initial pleading, motion,

or other paper.” Thus, there is a discrepancy between the

tenant’s obligation to deposit the past due rent into the

registry of the court “on or before the date on which his

or her answer is due”—that is, within five days of being

served (excluding Saturdays, Sundays, and legal holidays) as

outlined in Section 83.232(1), Florida Statutes—and Section

83.232(3), Florida Statutes, which states that the court is

to notify the tenant of the obligation to deposit the rent by

order “upon filing of the tenant’s initial pleading, motion, or

other paper.” In some jurisdictions in Florida, the courts will

require that the tenant be served with the order directing

the payment of past due rent into the court registry, and

therefore, the practitioner is well served to seek entry of

such an order as early as possible in the case.

If the tenant fails to file a motion to determine rent or

deposit the past due rent into the court registry within

five days of service or entry of an order (Fla. Stat. Ann. §

83.232(3)), the tenant has absolutely waived his or her

defenses other than payment, and the landlord is entitled

to an immediate default judgment for removal of the tenant

with a writ of possession to issue without further notice or

hearing. Fla. Stat. Ann. § 83.232(5). If the tenant contests

the amount of money required to be placed into the court

registry, the court must hold an evidentiary hearing to

determine “(a) [w]hether the tenant has been properly

credited by the landlord with any and all rental payments

made and (b) [w]hat properly constitutes rent under the

provisions of the lease.” Fla. Stat. Ann. § 83.232(2). The

tenant’s filing of a counterclaim for money damages does

not relieve the tenant of its statutory obligation to deposit

the rent due into the registry of the court. Fla. Stat. Ann. §

83.232(4).

If the tenant deposits the past due rent into the court

registry, and the landlord is in actual danger of losing the

property or other personal hardship due to the loss of rent,

the landlord may apply to the court for the disbursement

of all or part of the funds deposited and for a prompt final

hearing. Fla. Stat. Ann. § 83.232(1).

Tenant’s Defenses

The tenant may raise any legal or equitable defense that he

or she has to the action for possession. Possible defenses

include the landlord’s failure to comply with the notice

provisions under the lease, or that there is no default in

payment because the tenant has properly withheld rent due

to the landlord’s failure to keep the premises in tenantable

condition. See Fla. Stat. Ann. § 83.201.

If a tenant asserts a defense to an eviction claim alleging that

the landlord has failed to maintain the premises as required

under Fla. Stat. Ann. § 83.201, the tenant must demonstrate

that at least 20 days have elapsed after the delivery of

written notice by the tenant to the landlord, specifying the

noncompliance and indicating the intention of the tenant

not to pay rent by reason of the condition. Fla. Stat. Ann.

§ 83.201. After consideration of all other relevant issues,

the court shall enter appropriate judgment. Fla. Stat. Ann. §

83.231. For a form of notice, see Tenant’s Notice of Intention

to Withhold Rent (FL).

Final Judgment and Writ of

Possession

Judgment for Possession

As explained above, if the tenant has failed to respond to the

complaint for possession, the landlord should file a motion for

entry of a default by the clerk. Upon entry of the default, the

landlord can file a motion for final judgment of possession.

The form judgment for possession states that the landlord

is entitled to possession of the property and must include a

description of the property. It is imperative that the property

description is accurate because any writ of possession issued

will be based on the final judgment.

For forms, see Motion for Clerk’s Default (Possession)

(Eviction) (FL), Motion for Default Final Judgment

(Possession) (Eviction) (FL), and Final Judgment (Possession)

(Eviction) (FL).

Judgment for Damages

If the tenant has failed to respond to the complaint for

damages, the landlord should file a motion for entry of a

default by the clerk. Upon entry of the default, the landlord

can file a motion for final judgment awarding damages. If the

amount of damages has changed since the complaint was

filed, the landlord can prepare an affidavit outlining damages.

For forms, see Motion for Clerk’s Default (Damages)

(Eviction) (FL), Motion for Default Final Judgment (Damages)

(Eviction) (FL), Affidavit of Damages (Eviction) (FL), and Final

Judgment (Damages) (Eviction) (FL).

The landlord is entitled to pursue the tenant for any damages

owed as a result of the breach of the terms of the lease. If

the lease includes an acceleration clause, the landlord can

also seek to recover future rent from the tenant. Jimmy

Hall’s Morningside, Inc. v. Blackburn & Peck Enterprises,

Inc., 235 So. 2d 344 (Fla. Dist. Ct. App. 1970) (holding that

acceleration clauses in leases are valid and enforceable). The

landlord “has a duty to mitigate the tenant’s damages by

making a good faith effort to release the property at a fair

rental. And, the landlord must credit the tenant for any rents

obtained from another tenant, during the lease term.” Hudson

Pest Control, Inc. v. Westford Asset Mgmt., Inc., 622 So. 2d

546, 549 (Fla. Dist. Ct. App. 1993). It is reversible error for

a court to enter a judgment that includes accelerated rent

without a reservation of jurisdiction to consider a motion for

an accounting should the landlord relet the premises during

the remainder of the lease term. Horizon Med. Group v. City

Center of Charlotte Cty., 779 So. 2d 545 (Fla. Dist. Ct. App.

2001).

Writ of Possession, Removal of the Tenant, and

the Tenant’s Personal Property

Upon the entry of the judgment for possession, the clerk

may issue a writ of possession. Fla. R. Civ. P. 1.580. The writ

of possession directs the sheriff of the county where the

property is located to put the landlord in possession of the

property after service of the writ. Fla. Stat. Ann. § 83.241.

Because the writ issued will be based on the description of

the property included in the complaint, it is imperative that

this description is accurate to avoid delays. The writ must be

served by the sheriff, who charges a fee, typically about $100.

For the statutory form, see Fla. R. Civ. P. Form 1.915. For an

annotated form, see Writ of Possession (Eviction) (FL).

Disposal of Personal Property

Left after Conclusion of

Tenancy

If the tenant leaves personal property at the premises

following the expiration of the lease or his or her

abandonment of or eviction from the premises, the landlord

must give notice to the tenant or presumed owner of its

intent to dispose of the personal property. The notice must

describe the personal property sufficiently to allow the owner

of the property to identify it. The notice must also advise the

owner that the reasonable costs of storage may be charged

before the property is returned and state where the property

may be claimed and the date before which the claim must be

made, which shall be a date not fewer than 10 days after the

notice is personally delivered or, if mailed, not fewer than 15

days after the notice is deposited in the mail. The notice must

be personally delivered or sent first class mail to the owner’s

last known address or any other address where the owner

can reasonably be expected to receive it. Fla. Stat. Ann. §

715.104(2), (3).

The statute provides the form of the notice notifies the

owner where the property can be claimed and if it is not

claimed, it can be disposed of. Fla. Stat. Ann. § 715.105.

For an annotated version of the form, see Notice to Tenant

Regarding Abandoned Property (Residential Lease) (FL). The

notice must also specify what will happen to the personal

property if it is not claimed, which depends on the value of

the property. Fla. Stat. Ann. § 715.105(1), (2).

If the owner fails to claim the personal property after notice,

the landlord can sell it at a properly noticed public sale, and

the owner may claim and proceeds of the sale from the

county after the costs of storage, advertising, and sale are

deducted. Fla. Stat. Ann. §§ 715.109, 111, 105(2)(a). If the

owner pays all costs associated with the storage, advertising,

etc., of the property before the date specified in the notice,

the property can be released to him or her and the sale

canceled. Fla. Stat. Ann. § 715.108. If the owner fails to

claim the personal property after notice and the landlord

reasonably believes that the personal property is worth less

than $500, it can be kept, sold or destroyed. Fla. Stat. Ann.

§ 715.105(2)(b). The landlord must exercise “reasonable

care” in storing the personal property but “is not liable to

the tenant or any other owner for any loss unless caused by

the landlord’s deliberate or negligent act.” Fla. Stat. Ann. §§

715.107, 715.11.

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Meghan O. Serrano, Partner, Shumaker, Loop & Kendrick, LLP

Meghan Serrano is a Florida Bar board certified business litigation attorney who specializes in real estate disputes. She has achieved distinction

as a Florida Rising Star by Super Lawyers magazine every year since 2012 and is AV® Peer Review Rated by Martindale-Hubbell. She is a

partner at Shumaker, Loop & Kendrick, LLP in Sarasota, Florida.

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