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

[RPPTL Real Estate Leasing Committee]

Dear Colleagues,

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

I’m sorry if my thoughts on this come as a shock to anyone – I would support an ‘unknown’ occupant clarification in Chapter 49.  That said, I am uncertain if any of the requirements of Chapter 49 can actually be removed and still comply with the requirements of due process.

I’ve addressed this issue as it pertains to the context of mortgage foreclosure cases and I’ve encountered this issue a fair amount concerning landlord/tenant cases – but not yet had to litigate it out on the landlord/tenant side.

As I’ve seen it, this issue mostly resolves itself only because the unknown occupant leaves either (a) once a judgment is issued against the tenant who had a rental agreement with the landlord or (b) once the writ of possession is issued which directs the sheriff to put the plaintiff in possession.

This isn’t to say that the foregoing is adequate to actually bind the unknown occupant – only to say that the Plaintiff usually manages to obtain actual possession at that point.

With a pure squatter (not a guest/invitee/sublessee/assignee of a prior tenant), the practical problem is that the question then arises as to whether it is actually permissible to bind a “john doe”.

As best I can tell from quite some history of looking into this issue over and over again, unless you have a particular statute, you cannot use “john doe” or “unknown party” joinder or service based thereon. For that general point, I’ve attached:

  1.  Grantham v. Blount, 683 So.2d 538 (Fla. 2nd DCA 1996);
  2.  Gilliam v. Smart, 809 So.2d 905 (Fla. 1st DCA 2002);

However, it is perhaps permissible to name an unknown party, later amend to correct the name, then serve (though at least one commentary suggests the Sheriff can add the name – but I don’t see how that complies with any statute or Grantham or Gilliam’s logic). Fla. Jur. Process s 11 (attached).

Whether found in the Florida Constitution or Federal Constitution, there are baseline obligations to provide adequate notice and opportunity.  Some discussion of federal or multistate rules indicates possible processes that could comply with the baseline constitutional requirements so long as a statute permits it. Am. Jur. Process s 68 (attached).

So, the question then is whether a Florida statute permits it.  Generally speaking, unless you are aware of another statute, I look to Chapter 49 (Constructive Service of Process) which permits, in certain types of cases, the use of unknown party practice but requires a process (including diligent search and inquiry and the filing of a (truthful) affidavit of diligent search and inquiry) and leaves the potential for collateral attack on the diligent search and inquiry. (however, again, once you practically obtain possession the likelihood of a squatter or successor-in-interest to the tenant is relatively unlikely). https://www.flsenate.gov/Laws/Statutes/2018/Chapter49/All

I will absolutely grant you, that people succeed at using ‘unknown party’ practice without fulfilling the requirements all the time.  That doesn’t make it legally sufficient – it just means they succeed as a matter of practicality.  Because the party dispossessed has so little ‘skin’ in the situation or so few resources to resist – it just practically rarely gets challenged by anyone prepared to spend the time and effort to bring the issue squarely before the Court so that the Court can address it on the merits of the arguments – and, perhaps, break the Court away from having just ‘seen it happen’ so often that they don’t want to consider the underlying merits.



Sincerely,
Jeremy T. Cranford


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Jeremy T. Cranford, Attorney, LL.M. (Real Estate)
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Ward & Ketchersid, P.A.
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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: Friday, January 8, 2021 9:05 AM
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

I also agree that there should be legislation to fix this issue because without it, people are essentially given free reign to just take over other's property.  And the reality is, if you leave people without a legal remedy, it's only a matter of time before they resort to self help.  I'm seeing more and more face to face physical confrontations between property owners/landlords and tenants/squatters and other self help actions because the court system is just not working.

On a similar note, PBC will issue Summons to Unknown but the Sheriff will not execute a Writ unless there is a name, so essentially the same problem.  I can't see how it's fair or in the public interest to allow squatters to take over.  And in reality, it's usually the smaller private property owners who suffer because it's pretty difficult to break into a big apartment community, so it's the mom and pops that are suffering from this.

Let's work together to get this fixed.

Cary
Cary P. Sabol, Esq. J.D. (2001), LLM (2009)
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-------- Original Message --------
Subject: Re: [RPPTL Leasing Committee] Unlawful Detainer Eviction -
Issuing Summons to Unknown Occupant/John Doe
From: RPPTL Real Estate Leasing Committee
<landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Date: Fri, January 08, 2021 9:55 am
To: <landten at lists.flabarrpptl.org<mailto:landten at lists.flabarrpptl.org>>
Cc: "'Ryan Purvis'" <Ryan at kfernandezlaw.com<mailto:Ryan at kfernandezlaw.com>>
It’s actually a big problem and may get worse soon.

We have people calling us a lot where they have no clue who the people are in the house. We refer them to another lawyer.

Harry Heist

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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
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Cc: Ryan Purvis <Ryan at kfernandezlaw.com<mailto:Ryan at kfernandezlaw.com>>
Subject: Re: [RPPTL Leasing Committee] Unlawful Detainer Eviction - Issuing Summons to Unknown Occupant/John Doe

Brenda

I suggest that you appoint a few good lawyers to draft  legislation. I would suggest Mark Brown to Chair the committee. He Chaired the legislation committee on Unlawful Detainer.  The other approach would be to ask for an attorney general’s opinion.



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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
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Cc: Ryan Purvis <Ryan at kfernandezlaw.com<mailto: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
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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

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