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

Mon Jul 6 06:41:39 PDT 2015

I use the unlawful detainer statue without any reference to the eviction
statute.  Unlawful detainer does not provide for attorneys fees, the
eviction statute does.  They both provide for summary procedure under
51.011.  In the central Florida area I have had only one county judge hold
up the process and after a hearing where I explained what was going on the
judge entered judgment for possession.

If the girlfriend raises some claim that she is a tenant, then just set it
for hearing and have her prove her case.  You can amend the complaint at
that point to include eviction.

Dennis A. Chen, Esq.
Chen Law Firm, PA
13360 W. Colonial Dr, Ste. 470
Winter Garden, Florida 34787
Tel:   (407) 392-1872
dennis at chenlaw.net

Bankruptcy * Civil Litigation * Landlord/Tenant * Personal Injury * Real
Estate Litigation

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On Fri, Apr 3, 2015 at 12:47 PM, Lainie Simon <ljsimon1 at comcast.net> wrote:

> 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.
>
>
> Lainie J. Simon, Esq.
> 185 NW Spanish River Boulevard
> Suite 220
> Boca Raton, FL  33431
> 561.445.1361
> 561.997.6224(fax)
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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.
>
> 2255 Glades Road, Suite 324A
>
> Boca Raton, Florida 33431
>
> T: 561.989.3206
>
> F: 561.952.0096
>
> www.horkylaw.com
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> *From:* landten-bounces at lists.flabarrpptl.org [
> mailto:landten-bounces at lists.flabarrpptl.org
> <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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> *P.O. Box 15981 | West Palm Beach | Florida | 33416 *
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> ------------------------------
>
> *From:* Joseph Alexander <jalexander at lieserskaff.com>
> *To:* RPPTL Landlord Tenant Committee <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,
>
> Joseph N. Alexander
> LIESER SKAFF ALEXANDER, PLLC
> 511 W. Bay Street
> Suite 350
> Tampa, Florida 33606
> Phone: (813) 280-1256
> Fax: (813) 251-8715
> Email: jalexander at lieserskaff.com
> Web: www.lieserskaff.com
>
>
>
>
> On Apr 2, 2015 3:08 PM, "Dariel Abrahamy" <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>
>
> Dariel Abrahamy, Esq.
>
> Shareholder
>
> 200 E. Broward Blvd, Suite 1800
>
> Fort Lauderdale, FL 33301
>
> P: 954-491-1120; F: 954-343-6972
>
> Dariel.Abrahamy at gmlaw.com
>
>
>
>
>
>
>
>
>
> *From:* 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> 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
>
>
> This message and the documents attached to it, if any, are intended only
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> notified that any dissemination of this communication is strictly
> prohibited. If you have received this communication in error, please delete
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