Partner Jeff Garber’s One Word Suggestion on the Subject of Self-Help Evictions; Don’t(!)

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Partner Jeff Garber’s One Word Suggestion on the Subject of Self-Help Evictions; Don’t(!)

Florida law provides only three grounds for a landlord to retake possession of a residence from a tenant: (1) an action for possession or other civil action in which the issue of the right of possession is determined by a court; (2) when the tenant has surrendered possession of the dwelling unit to the landlord; or (3) when the tenant has abandoned the dwelling unit (“In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments.”).  § 83.59, Fla. Stat.

The Florida Residential Landlord and Tenant Act (§ 83.40 et seq, Fla. Stat.) provides that a landlord shall not engage in self-help measures to remove the tenant from the premises, or to coerce the tenant to leave.  Thus, a landlord is precluded from engaging in actions such as: (1) terminating or interrupting any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration; (2) preventing the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks or using any bootlock or similar device; or (3) removing outside doors, locks or windows.  § 83.67, Fla. Stat.

Landlords who disregard the Florida Residential Landlord and Tenant Act’s prohibition against engaging in self-help are subject to consequences such as:

A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees. Subsequent or repeated violations that are not contemporaneous with the initial violation shall be subject to separate awards of damages.

§ 83.67(6), Fla. Stat.

Landlords who believe that they can skirt the law by inserting self-help provisions into their lease agreement should think again as such provisions are unenforceable.  See Palm Beach Florida Hotel v. Nantucket Enterprises, Inc., 211 So. 3d 42 (Fla. 4th DCA 2016), review denied, SC17-491, 2017 WL 2774368 (Fla. June 27, 2017) (holding that a landlord could not engage in self-help by locking out tenant, even though it was authorized by terms of lease).

Evictions present a minefield of technicalities for the unwary.  A landlord who is seeking to oust a tenant from possession would do well to consult with an attorney before taking any action.

About Attorney Jeffrey M. Garber

Jeffrey Garber concentrates his practice in the areas of commercial, business, and real estate litigation in both state and federal courts.

Mr. Garber is admitted to practice law in both Florida and New York. He is also admitted in all Florida U.S. District Courts, the U.S. District Court for the Southern District of New York, the U.S. District Court for the Southern District of New Jersey, and the U.S. Court of International Trade. He is AV Preeminent Peer-Review Rated by Martindale-Hubbell, and earned his J.D. in 1992 from the Jacob D. Fuchsberg Law Center at Touro College in Central Islip, NY.

 

April 2018|News|