by Henry Cooper, Esq.
You have a home that you are leasing to a tenant. Your tenant fails to pay you rent and refuses to vacate the property. You may or may not be able to evict the tenant for non-payment or otherwise remove the tenant from the property. Your ability to do so greatly depends on the type of written agreement entered into by and between you and the tenant.
If you entered into a typical written lease agreement with your tenant, you would most likely be able to evict the tenant after giving the tenant the proper three-day notice to pay rent or vacate. You may thereafter file an action for possession with the county court to regain possession of the property. This eviction procedure is on an expedited docket and may be completed in less than 30 days.
If the lease agreement contains an option to purchase, however, you may find that you are prevented from filing an eviction due to the tenant's timely exercise of its option to purchase. A lease with an option to purchase is typically entered into when a buyer wanted to purchase the home but needs some time to acquire a downpayment or build up a credit score. The lease with an option to purchase gives the buyer the right to purchase the property from the owner within a certain period of time at a mutually accepted purchase price.
Under Florida law, once the tenant execises his option to purchase, the tenant is then considered an equitable owner of the property and cannot be evicted. The proper legal method for removing the tenant in this instance is ejectment. Ejectment is a statutory remedy found under Florida Statute Ch. 66 providing a person with a superior title interest in a property to request that the court order the current occupant to vacate the property restoring possession to the superior title owner. The occupant, however, may file a betterment petition with the court seeking reimbursement for the value of the improvements made by the occupant to the property while possessing the property. Ejectment actions are also under the jurisdiction of the circuit court and not the county court. Thus, these actions usually are more time consuming and expensive to prosecute.
If your written document is construed as an agreement for deed, the tenant may not be evicted under Florida law. In this instance, your only remedy is to file a foreclosure lawsuit foreclosing the tenant's rights in the written document. These actions are also very time consuming and expensive to prosecute (filing fees alone range from $400 - $1,905 depending on the amount of your claim).
It is imperative that a landlord/owner of a property consult with a competent real estate attorney to determine their rights, obligations, and remedies concerning rental property issues prior to entering into any agreement with a prospective tenant.
Henry Cooper, Esq. is a shareholder with Bogin, Munns & Munns, P.A. and is one of the real estate attorneys who Zana Holley Dupee worked with in the commercial transactional department of the firm. Henry contributed this article to Orlando Realtor magazine as a service to provide a general understanding of the law on various topics of interest, not as a substitute for individual legal consultation, and should not be relied on in specific situations without consulting a real estate attorney.
If you need assistance with real estate, probate or trust litigation, you can call Zana Holley Dupee to schedule a consultation at (352) 379-5900.
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