[RPPTL Leasing Committee] Unlawful Detainer Eviction - Issuing Summons to Unknown Occupant/John Doe

[RPPTL Real Estate Leasing Committee]

If the occupant is unknown, you may be able to provide an affidavit to the sheriff’s office under 82.035 to have them removed without a lawsuit being filed.

(3) Any law enforcement officer may, upon receipt of a sworn affidavit of the party entitled to possession that a person who is a transient occupant is unlawfully detaining residential property, direct a transient occupant to surrender possession of residential property. The sworn affidavit must set forth the facts, including the applicable factors listed in paragraph (1)(a), which establish that a transient occupant is unlawfully detaining residential property.

I was able to draft an affidavit and have law enforcement remove the occupant without the necessity of an unlawful detainer, because the Landlord never gave permission for the occupant to move in.

(1) As used in this section, the term “transient occupant” means a person whose residency in real property intended for residential use has occurred for a brief length of time, is not pursuant to a lease, and whose occupancy was intended as transient in nature.
(a) Factors that establish that a person is a transient occupant include, but are not limited to:
1. The person does not have an ownership interest, financial interest, or leasehold interest in the property entitling him or her to occupancy of the property.
2. The person does not have any property utility subscriptions.
3. The person cannot produce documentation, correspondence, or identification cards sent or issued by a government agency, including, but not limited to, the Department of Highway Safety and Motor Vehicles or the supervisor of elections, which show that the person used the property address as an address of record with the agency within the previous 12 months.
4. The person pays minimal or no rent for his or her stay at the property.
5. The person does not have a designated space of his or her own, such as a room, at the property.
6. The person has minimal, if any, personal belongings at the property.
7. The person has an apparent permanent residence elsewhere.


Jennifer A. Garner, Esq.
2224 Ashley Oaks Circle, Suite 101
Wesley Chapel, FL 33544
Phone: (727) 386-9654 Fax: (813) 482-9492
www.JenniferAGarner.com<http://www.jenniferagarner.com/>
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From: landten-bounces at lists.flabarrpptl.org <landten-bounces at lists.flabarrpptl.org> On Behalf Of RPPTL Real Estate Leasing Committee
Sent: Thursday, January 7, 2021 2:56 PM
To: landten at lists.flabarrpptl.org
Cc: Ryan Purvis <Ryan at kfernandezlaw.com>
Subject: Re: [RPPTL Leasing Committee] Unlawful Detainer Eviction - Issuing Summons to Unknown Occupant/John Doe

We ran into a the same issue last week with a property in Okaloosa County.  The Clerk of Court told us we can file a Motion with the judge to order the Summons to John Doe/Unknown Occupant, but that the sheriff would not execute the Writ of Possession.  We then called the Civil Process department at the sheriff’s and the representative told us that the sheriff will not serve a Writ of Possession on John Doe/Unknown Occupant.



Kristopher E. Fernandez, Esquire
Florida Bar Board Certified Real Estate Attorney
114 S. Fremont Avenue
Tampa, FL  33606
(813) 832-6340
(813) 601-3257 (after hours)
(813) 251-0438 (fax)


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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> <landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org>> On Behalf Of RPPTL Real Estate Leasing Committee
Sent: Thursday, January 7, 2021 2:41 PM
To: landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>
Subject: [RPPTL Leasing Committee] Unlawful Detainer Eviction - Issuing Summons to Unknown Occupant/John Doe

Hello all,

Does anyone know of any quick case law to support issuing a summons to an Unknown Occupant/John Doe in an eviction context?  I.e., something in the case law or Rules to support not naming a Defendant, when their name isn’t known?

A client in Alachua is dealing with a squatter, and sent it to our firm as an unlawful detainer eviction.  As we do in all other counties, we filed naming the Defendant as “Unknown Occupant” since the property doesn’t know who is inside.

While all other counties have processed our past cases against “Unknown Occupant” without issue, the Alachua clerk refused to issue a summons.  They stated that they could only issue a summons against a named person.  I talked to the clerk, then the clerk’s supervisor, and then the General Counsel for the Clerk.  All gave me the same answer, that it was against the law to issue a summons against an unnamed party.

When I said that every other county issued eviction summons against “Unknown Occupant” without any pushback, the General Counsel said that every other county was in violation of the law and civil procedure.  When I asked how my client is supposed to file against a squatter they don’t know the General Counsel said that all other unlawful detainers they filed listed a named person, and I was the first person to ever bring this issue up to them.

The General Counsel also sent me their memo on Unknown Persons summonses, which is below.  It cites one case.  I Shephardized their case and it is still good law, however it was a case for money damages.  My first thought was that the eviction for possession only is technically just against the premises, not the actual person, so that could be a way to distinguish.  I haven’t been able to find anything exactly on point.

SUMMONSES ON UNKNOWN PERSONS PROCEDURE

Effective January 15, 2009. the Clerk’s Office established its policy of not issuing summonses on and unknown persons. This is based on research determining the Clerk’s Office has no authority to issue a summons on an unknown person or a John/Jane Doe as a John Doe complaint does not commence an action against the real party. See Grantham v. Blount, Inc., 683 So.2d 538 (2d DCA 1996), (“we choose to treat a John Doe complaint in the same manner we treat a complaint that contains a substantially incorrect identification of the defendant and hold that it does not commence an action against the real party”).

Thanks in advance for the help,

Matt

Matthew Siegel, Esq.
Countryside Colonial Center
2753 SR 580, Suite 209
Clearwater, FL 33761-3351
P 727-726-1900
F 727-726-7440
matt at mgfdlaw.com<mailto:matt at mgfdlaw.com>
Primary Eservice: eservice at mgfdlaw.com<mailto:eservice at mgfdlaw.com>

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