[RPPTL LandTen] Girlfriend refuses to leave, now what?

Fri Apr 3 09:47:34 PDT 2015

It never leaves unlawful detainer only.
Always do an alternative count for eviction.  You don’t know what she is going to say and you don’t know the comfort level of the judge with unlawful detainer.  You also have to think of the clerk and JA—they know eviction but not unlawful detainer.  There is theory and reality.  Reality holds that you always include a count for eviction.

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On Apr 3, 2015, at 10:53 AM, Anthony J. Horky <ahorky at horkylaw.com> wrote:

Thank you everyone for your excellent input. 

Based on the opposing views this seems to be a grey area.  I’m inclined to try unlawful detainer first but have recommended that the tenant attempt to pay the ex-girlfriend to leave.  There are several incidents of prior police calls so the references to a restraining order was well taken.  So was the comment that the landlord may find the tenant in breach and have them both removed.  I do not believe that ejectment is correct as there is no issue of who has better title to the residence, and eviction is not applicable because there is no rental agreement, oral or written, between the tenant and his girlfriend.  That leaves unlawful detainer only. 

82.04 Remedy for unlawful detention.—
(1) If any person enters or has entered in a peaceable manner into any lands or tenements when the entry is lawful and after the expiration of the person’s right continues to hold them against the consent of the party entitled to possession, the party so entitled to possession is entitled to the summary procedure under s. 51.011 <http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0051/Sections/0051.011.html>, at any time within 3 years after the possession has been withheld from the party against his or her consent.
(2) This section shall not apply with regard to residential tenancies.

This is a case of two persons living in a residence, but for the girlfriend it is not a “residential tenancy.”  Although Chapter 82 does not apply to “residential tenancies” there is no such defined term under Chapters 82 or 83.  As I wrote in ActionLine last year, without a definition we should look to the terms under 83 that together can be used to define such a tenancy.  There is no indicia of such tenancy here. The girlfriend did not enter into a “rental agreement,” she is not a “tenant,” the tenant is not a “landlord,” and the girlfriend is not paying “rent.”  At the same time, the tenant is entitled to possession.

Regards,

<image002.png>
Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Thursday, April 02, 2015 3:38 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

Same here.  I've filed many unlawful detainer cases under Chapter 82 for various reasons, including facts similar to the case in discussion.  I would recommend Chapter 83, not Ejectment.

Cary 
Law Offices of Cary P. Sabol
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From: Joseph Alexander <jalexander at lieserskaff.com <mailto:jalexander at lieserskaff.com>>
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org <mailto:landten at lists.flabarrpptl.org>> 
Sent: Thursday, April 2, 2015 3:22 PM
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I agree with Daniel and the others...unlawful detainer.
Please excuse any typos, as this email was sent from my mobile device.
Thank you,
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On Apr 2, 2015 3:08 PM, "Dariel Abrahamy" <Dariel.Abrahamy at gmlaw.com <mailto:Dariel.Abrahamy at gmlaw.com>> wrote:
I don’t necessarily agree that unlawful detention only applies to non-residential tenancies.  I think 82.02(2) and 82.02(4) simply mean that you can’t file an unlawful detention action if you have a residential landlord-tenant relationship.  Here, there is no landlord-tenant relationship between the tenant and his girlfriend. The landlord-tenant relationship exists between the tenant and his landlord.  To file an ejectment, you need to have a valid claim to legal title. The tenant doesn’t have legal title.

Unlawful detainer would be my recommendation. Richards v. Finley, 259 So.2d 167.

<image003.jpg>
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From: landten-bounces at lists.flabarrpptl.org <mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org <mailto:landten-bounces at lists.flabarrpptl.org>] On Behalf Of Conrad Kahn
Sent: Thursday, April 02, 2015 2:03 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Girlfriend refuses to leave, now what?

I believe unlawful detainee only applies to nonresidential tenancy.  See Fla. Stat. 82.02.  And eviction would be inappropriate too because there's no landlord-tenant relationship. Therefore, the proper cause of action is ejectment under chapter 66.  This must be filed in circuit court unfortunately.
On Apr 2, 2015 11:53 AM, "Anthony J. Horky" <ahorky at horkylaw.com <mailto:ahorky at horkylaw.com>> wrote:
Members: 
I received a call from a tenant who signed a residential lease.  After taking possession, he allowed his girlfriend to move in who does not pay rent and did not sign the lease.  The relationship soured and now girlfriend refuses to leave.  I am of the opinion that although the tenant  is still in possession and entry by the girlfriend was lawful, her permission to remain in possession has been withdrawn and the tenant’s remedy is unlawful detainer.  Any feedback would be greatly appreciated.  Thank you.

Regards,

<image004.png>
Anthony J. Horky, Esquire
Anthony J. Horky, P.A.
2255 Glades Road, Suite 324A
Boca Raton, Florida 33431
T: 561.989.3206
F: 561.952.0096                   
www.horkylaw.com <http://www.horkylaw.com/>

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky at horkylaw.com <mailto:ahorky at horkylaw.com>.
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