What Happens When a Tenant Doesn’t Pay

Most tenants pay their rent on time and take pretty good care of the landlord’s property. But as almost any landlord will confirm, some tenants don’t pay. What happens then?

When a tenant fails to pay rent, the landlord cannot simply change the locks and turn off the lights. In fact, Florida Statutes prohibits terminating or interrupting utility service, changing or removing the locks, removing outside doors, or even removing the tenant’s property under most circumstances. The statutes bar self-help eviction but, in exchange, provide that residential evictions for failure to pay rent are expedited on the court calendar.

The eviction process starts with a mandatory three-day notice from the landlord which notifies the tenant of the amount of unpaid rent, calculates three days for the due date (excluding weekends and legal holidays) and confirms that if the tenant does not pay within the three days the tenant must vacate. The three-day notice can be posted at the property. The tenant does not have to be personally handed the notice.

Sometimes landlords include everything the tenant owes in the three-day notice, such as late fees, interest, and attorney fees. That is not allowed and invalidates the three-day notice, possibly giving the tenant an opportunity to force the landlord to start eviction all over.

If the tenant does not pay the unpaid rent within three days and does not move out, the landlord must file a lawsuit with the court seeking possession. The landlord can include a claim for unpaid rent, but many landlords forego seeking unpaid rent because of the additional complexity and delay. Tenants not paying rent are also not often a source from which a landlord can actually collect money.

Statutes provide that for an eviction case, the summons and complaint served on the tenant mandate the tenant file a response within five days after service. Because simple eviction does not seek a money judgment against the tenant, the summons and complaint can be posted on the property after at least two attempts to personally serve the tenant as long as the landlord also arranges for the clerk to mail a copy of the summons and complaint to the tenant.

If the landlord also seeks unpaid rent in the lawsuit, that part of the case is like any other lawsuit seeking damages and the tenant has twenty days to serve a response. Since the claim for unpaid rent seeks money damages, the tenant must be personally served and the summons and complaint for unpaid rent cannot be posted at the property.

Including both of these claims in a landlord-tenant case adds complexity for service of process and ultimate disposition by the court, which can end up with the expedited tenant eviction getting delayed by the claim for damages. We usually recommend landlords file a separate lawsuit for unpaid rent and include in that case any damage to the property the landlord discovers when the tenant is finally out.

As part of the effort to speed up the eviction process in exchange for barring a landlord’s self-help eviction, statutes also require a tenant deposit the unpaid rent and rent as it accrues during the lawsuit into the court registry if the tenant does not claim the rent was already paid. If the tenant fails to make the rent deposit, the tenant is barred from raising any defense and the landlord is entitled to a quick judgment without a trial.

If the tenant claims the tenant does not really know how much rent is due and files a motion with the court to that effect, the tenant is excused from paying rent into the court registry until the judge issues an order confirming the amount to be paid. Hearing on motions to determine rent are also expedited but in many cases, they are put off until just prior to trial. That can mean instead of getting a judgment immediately after the tenant’s five day deadline to file a response and pay rent to the court registry, the landlord will not get a judgment for possession until date of the trial. That adds to the time the landlord is unable to re-rent the property.

Once the landlord gets a judgment for possession, there is likely still much work to be done. Tenants who do not pay rent don’t always move out right away. The landlord must get a writ of possession issued by the court. The writ of possession can be posted on the property and orders the tenant to vacate within twenty-four hours. If the tenant still does not move out, the landlord must arrange with the Sheriff to meet at the property and have the Sheriff forcibly evict the tenant.

The Sheriff does not give the tenant time to take anything but toothbrush and the clothes on the tenant’s back and escorts the tenant to the curb. If the landlord needs the Sheriff to evict the tenant, we always recommend the landlord meet the Sheriff at the property with a locksmith.

If the tenant leaves personal property inside the premises, the landlord cannot throw it away unless the lease provides that right. Many form leases do not include that right and that means the landlord may have to store the property and follow statutory procedures for notice and sale if it is worth more than $500. If worth less than $500, the landlord can throw it away.

Florida landlord and tenant law is not particularly complicated, but does include detailed requirements. When landlords make a mistake, they may be forced to start anew. For that reason, we always recommend landlords retain an experienced attorney to avoid technical mistakes.