House Bill 621 – Squatters Law
By: Kendelle Knapp, Esq.
Governor Ron DeSantis signed a new bill on March 27, 2024, which went into effect on July 1, 2024. This new legislation will be known as Section 82.036, Florida Statutes, under Chapter 82, titled “Forcible Entry and Unlawful Detainer.” This new law is designed to help property owners remove squatters from their premises without needing to file a formal lawsuit. The goal is to make this process faster and less expensive for property owners by allowing them to contact a sheriff in the county where the property is located to remove the unlawful squatter.
However, as with any law, there are limitations. To use the procedure laid out in the new statute instead of filing a formal lawsuit for unlawful detainer, the following conditions must be met:
(a) The requesting person must be the property owner or authorized agent of the property owner;
(b) The real property must be a residential dwelling;
(c) An unauthorized person or persons must have unlawfully entered and continue to reside on the property;
(d) The property must not have been open to members of the public at the time the unauthorized person entered;
(e) The property owner must have directed the unauthorized person or persons to leave the property;
(f) The unauthorized person or persons must not be current or former tenants pursuant to a written or oral rental agreement;
(g) The unauthorized person or persons must not be immediate family members of the property owner;
(h) There must be no pending litigation related to the real property between the property owner and any known unauthorized person.
To request the immediate removal of an unlawful occupant who meets all the above criteria, the property owner or an authorized agent must submit a complaint. This involves presenting a completed and verified “Complaint to Remove Persons Unlawfully Occupying Residential Real Property” to the sheriff of the county where the real property is located.
The new statute also provides an example of the “Complaint to Remove Persons Unlawfully Occupying Residential Real Property” for property owners to utilize.
Some important tips to take into consideration when attempting to utilize the new bill:
- The unlawful occupant must have taken possession of the property unlawfully. For example, this would not apply if a close friend or family member suddenly becomes homeless or is in the midst of a divorce, and you invite them to stay in your property until they can get back on your feet. You will not be able to use this new bill as they did not come into the property in an unlawful manner.
- The unlawful occupant cannot be a current or former tenant. Therefore, this new bill cannot be used on tenants who hold over possession of the property after the lease has either ended or been terminated. This situation must still be handled through the court system.
- The unlawful occupant cannot be an immediate family member.
- There can be no pending litigation related to the real property between the unlawful occupant and the property owner. Therefore, if an eviction or unlawful detainer action has already been filed, you cannot utilize this new bill.
- Lastly, the complaint the property owner sends to the sheriff must be verified. This simply means that it must be signed by the property owner or an authorized agent of the property owner.
What happens once the sheriff receives the complaint?
The sheriff will verify that the person submitting the complaint is the owner of the real property or the authorized agent of the owner. Once verified, the sheriff will serve a notice to the unlawful occupant to vacate immediately. This notice will be delivered by hand or posted on the front door of the property.
Additionally, the law permits the sheriff to arrest any person found in the dwelling for trespass, outstanding warrants, or any other legal cause that is deemed appropriate.
Will this work?
Practically, this new law is a step in the right direction. If an unlawful occupant meets all of the criteria, they shall be immediately removed. This will allow property owners to have an unlawful occupant removed without the time and expense of litigation.
Realistically, many of the situations we deal with here at Martinez Law, P.A. involve close friends or immediate family members who our clients allowed to stay in the property and did not unlawfully enter.
If you have any questions or aren’t sure if your situation meets all of the requirements, feel free to reach out to our office at (813) 803-4887.
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Landlords, under Florida law, have many rights and duties. To begin, landlords have two main rights. The first right you have as a landlord is to receive rent from the tenants for their use and possession of the property. Additionally, you have the right to have your property returned to you with only reasonable wear and tear at the end of the lease agreement. Landlords have many duties under Florida law, many of which apply even if not written into the lease agreement. For example, landlords must provide a home that is safe and meets the applicable housing code requirements and make reasonable repairs to the property when necessary. In addition, landlords are required to give tenants peaceful possession of the property. This means not entering the home unannounced or at random times. Landlords who wish to sell their property do have the right to show the property to potential buyers, but not without prior notice to the tenants. Moreover, as a landlord, you may not base rental decisions or determine rent prices by any discriminatory manners. Terminating the lease agreement will depend on what type of lease agreement you have with your tenant. Under Florida law, if the lease is month-to-month, the landlord must give at least 15 days’ notice before the end of the month. If the lease is week-to-week, the notice must be at least 7 days’ prior to the end of any week. The notice must be in writing and delivered to the tenant. Landlords have the right to evict their tenant on a few bases, including: nonpayment of rent, the tenant not moving out after the expiration of the lease, and noncompliance with the lease. The landlord must give written notice to the tenant prior to filing for eviction as well. It is important to be aware of your rights and duties as a landlord in the state of Florida. If you have any questions about your rights and duties as a landlord, reach out to one of our attorneys at Martinez Law, P.A., (813) 803-4887, admin@martinezlawfla.com.
If you are a short-term rental host, you probably don’t see yourself as a landlord. Florida Law, in most instances, will not deem short-term rental hosts to be landlords who are subject to a specific set of rights and obligations. But importantly, when it comes to getting guests to vacate, you may be required to act like one. The first step in handling guests whose stay you have terminated or who are remaining past their check-out time is working with your host website. Your host website can take actions such as initiating communication with the guests, placing a hold or extra charges on their credit card, and suspend their account or ban them from booking other stays. These actions are likely to motivate the guests to voluntarily leave, but they won’t be an immediate aid. Unfortunately, if your guests are far past their check-out date, causing commotion, making excessive noise, committing crimes or property damage - it is time to involve law enforcement. Many short-term rental hosts presume that law enforcement will, or is required to, treat their guests like hotel guests or transients and order them to leave. The reality is the outcome of contacting law enforcement will vary by location and the circumstances on the scene. In locations where short-term rentals are less regulated by the county or local government, less prevalent, and where the guest has a longer stay, the chance is greater that law enforcement deems it a “civil matter” due to the potential of a landlord-tenant relationship. If this occurs, your only recourse is to file an eviction lawsuit in the local county court, a process which can take several weeks or months to complete. There are a few measures short-term rental hosts can take to prevent this issue. Ensure a responsible party is always available to physically visit the property if issues occur and speak to law enforcement on the scene. This could be yourself, a business partner, or a property manager. Always have guest rules posted on the host website and conspicuously in the property. And, talk to an experienced landlord-tenant attorney about the overall setup of your property, review compliance with local ordinances, and discuss whether it is appropriate to have guests sign a Lease Agreement. If you have questions about short-term rentals and how to protect yourself, reach out to one of our attorneys at Martinez Law, P.A., (813) 803-4887, admin@martinezlawfla.com.
Risk is everywhere and it is especially prevalent in investment decisions. Short-term rental hosts often feel they are taking on less risk than putting their hard-earned funds into the stock market or a startup company, but in some situations that may not be the case. As the owner of a property where people are being invited to stay as guests, the potential for liability exists if property damage or personal injury is suffered by those guests. Some common examples include: - Slip and falls - Furniture collapse - Electrocutions and burns - Swimming pool and watersport accidents Taking ordinary care in the maintenance of your property eliminates a substantial amount of risk that the above types of incidents may occur, but other areas of risk will be largely out of your control. Ultimately, if an incident occurs, the finding of liability and allocation of fault is a proc ess. First, you will find out from the guest what occurred and most likely, the expenses that resulted. Then, you have a decision to make, you will either compensate the guest, refer them to your or the host website’s insurance to process a claim, or deny compensation. The process of insurance claim handling can take months to years, especially for more severe injuries or losses. Whether you are personally handling the issue, or an insurance company is, the victim can decide to file a lawsuit at any time up to four years from the date of the incident. If you personally own the property, meaning your name is on the deed, you will be named as a defendant. If the victim wins the lawsuit, you are obligated to pay the resulting judgment and your personal assets such as money, investments, and properties can be seized to satisfy the judgment. This risk can actually be eliminated by not personally owning the property. Instead, seek the assistance of a real estate or property lawyer to change the way your property is held to a Limited Liability Company or a Florida Land Trust so that in a worst-case scenario situation your personal assets cannot be seized. Also, spend time reviewing your options for insurance coverage and discussing your short-term rental business with your insurers to make sure you are adequately covered.
Business interests are among the most commonly contested areas in probate litigation. Many business owners spend a significant amount of time considering what will happen when they die, instructing business partners on how to keep things running and sharing with spouses and children where important documents are kept. Unfortunately, verbal instructions are never enough to be legally effective and written instructions must take a specific form under Florida law. Ensuring the business ends up in the hands of the right people requires careful planning. Our approach is to work backwards – think of who you want to receive your business interest and explore the options from there. If you want your heirs, such as your spouse and children to receive the business interest, there are several options. First, you could declare that intent in your Last Will and Testament and upon your death, the probate court will enter an order allowing them to take your place. Second, you can have a separate contract, such as an Operating Agreement for your Limited Liability Company, or a Shareholders Agreement for your Corporation, which states who should receive your interest upon your death. Or third, you can create a Revocable Living Trust that gives your assets to your heirs at death, but transfer your business interest into the trust while you are still alive. If you do not want your heirs to receive the business interest, or you know they do not want to receive it – similar options are available. You could declare in your Last Will and Testament who should take your place in the business. Also, you could have a separate contract that designates who receives your interest or if other members of the business have a right to purchase your interest. Each of these options comes with practical considerations regarding who is best suited to take your place and how which are best reviewed before an Estate Planning Attorney. To discuss these and other option, contact one of our attorneys at Martinez Law, P.A., (813) 803-4887, admin@martinezlawfla.com
With the rise in popularity of the Florida Limited Liability Company or “LLC”, many people have become familiar with its separation from the Managers or Members, and specifically that it keeps living even if those managers or members are dead. The information gap is many people do not know exactly how this works. Your ownership of an LLC, whether it is 100% or 10% is an “interest”. Some people call this your “stake in the business”, “piece of the pie”, or other colloquialisms. Unless there is a properly drafted agreement to the contrary, when you die this ownership will go to whomever is listed in your Last Will and Testament, or according to the Florida Statutes if you do not have a will. It may go entirely to one person, such as your spouse, or may be divided among multiple persons. For example, if you die without a Will and have a spouse with children in common, the interest will go to your spouse. However, if you die without a will, with two children and no spouse, your children will each have a 50% interest in the LLC. Their ownership is formalized during the probate process and an update with the Division of State is completed to finalize the change of ownership. This is unlikely to be a desirable outcome, but thankfully with careful planning there are alternatives such as the following: 1) Creating or revising your operating agreement to state who receives your interest at death, if other members will automatically receive or purchase your interest; 2) Drafting a Last Will and Testament that specifically states which of your heirs should receive the ownership interest; and 3) Creating a Revocable Living Trust that will allocate assets to your heirs upon death and during your lifetime, transfer your ownership interest into the trust. To discuss these options in more detail, contact one of our attorneys at Martinez Law, P.A., (813)803-4887, admin@martinezlawfla.com.
The The excitement of being the successful bidder at a foreclosure auction or tax deed sale can quickly wear off once you learn that the property is encumbered by liens which pre-existed the sale. Not all liens will follow the prior owner or be “written off” after the auction sale is completed; in fact certain types of liens such as federal tax debts, are certain to remain on the property even once under new ownership. In addition, priority liens will remain on the property, such as IRS liens, primary mortgages, secondary mortgages and some homeowners association liens. Depending on the type of lienholder, they may be entitled to file their own foreclosure on the property at any time. Whether they have an interest in doing that or will follow through is a case-by-case determination. By consulting with an experienced real estate attorney you can receive advice on the lienholders options and level of risk. With a low risk lien, you may be able to rent out the property and sell it later without issue. If a risk of foreclosure is present or if you want peace of mind with your new investment, the best course of action is to resolve the liens. If you can make full payment to satisfy the lienholders and obtain a release, you may be free and clear in short order. However, for many new investors or small businesses, that is not possible or not the best financial decision. The next best option is to engage in negotiations with the lienholders for satisfaction and release by contacting them, notifying them that you are the new owner, and offering a percentage of the outstanding balance in exchange for release. Many lienholders, especially those who may have been waiting years for a chance of payment, will be willing to negotiate and accept less than their lien is worth. Taking this path to resolve the liens may take longer, but if successful, you will enjoy the asset as well as some savings. For more information, please contact one of our attorneys at Martinez Law, P.A., (813)803-4887, admin@martinezlawfla.com.
Real estate investors have made Florida a popular destination for their business endeavors. Before bidding at foreclosure auctions, read this article. A deal that seems too good to be true just might be!