Holdover Tenant Eviction
Serving You and The State of Florida
Evicting a tenant can become an exhausting affair, especially if that tenant is a holdover from a previous lease. Tenants who wish to remain past their lease date may become hostile and refuse to vacate when given an eviction notice. Conversely, a landlord may have issued an unlawful eviction notice. In such cases, legal action is often necessary.
Luckily, our attorneys at the Lopez Law Group offer services to help landlords take preventative steps to avoid getting embroiled in a legal battle with an uncooperative tenant, including counsel on lease agreements and lawful terminations of a lease. And if things take a turn for the worse during an eviction, our attorneys are ready to step in and help landlords file suit to regain their property.
Similarly, if you are a tenant facing unfair eviction or wish to terminate a holdover lease yourself, our attorneys can assist you if your case becomes adversarial.
What is a Holdover Tenant?
A holdover tenant is a renter who continues to occupy a property even after their lease has expired. Florida leases do not automatically renew unless explicitly stated in a contract; the tenant and landlord must come to an agreement if the tenant wishes to occupy their lease after it has expired.
If the landlord agrees to receive continued rent payments from the tenant, the tenant may remain at the property as a holdover, and state law and court rulings will dictate the length of the new rental term.
To be considered a holdover tenant, the landlord must consent to continued rent payments. If the landlord refuses payment or the renter fails to make regular payments, they are considered trespassing, and an eviction may be in order.
Tenancy at Sufferance
In Florida, a tenancy can be “at sufferance” or “at will.” Sufferance describes a situation where there is no objection to the tenancy but also no explicit approval. The opposite of a tenancy at sufferance is a tenancy at will. If a tenancy is at will, the tenant has the landlord’s consent to be on the premises, generally without a written contract or lease.
Holdover tenants who have not been issued an eviction notice but do not have the landlord’s permission to occupy the rental property have a tenancy at sufferance.
Why Might a Landlord Wish to Evict a Tenant?
Landlords most frequently evict tenants due to poor behavior, which can include:
- Excessive noise complaints
- Property damage
- Unauthorized pets
- Subletting without the landlord’s consent
- Unreasonably denying the landlord access to the property
- Making permanent alterations to the property without permission
Landlords may also wish to evict tenants for reasons other than a failure to hold up the contract. A landlord may want to have a tenant vacate the property once their lease has expired for many reasons, including those outside of poor behavior on the tenant’s behalf. The landlord may have intentions of renovating a suite or may have already promised the lease to another renter.
Holdover Tenant Rights
All tenants have the right to receive notice from their landlord before the termination of a lease. Similarly, holdover tenants who have the landlord’s consent to occupy the property are entitled to the same notice of eviction.
States vary in their requirements, but in general, notices must be given in the following circumstances:
- The renter’s lease has expired, but the landlord has accepted rent payments since.
- There is no written lease agreement, but the renter makes monthly payments.
- The landlord intends to evict a tenant whose lease has yet to expire.
- The rental property is rent-regulated.
- The renter has a Section 8 subsidy.
- The lease agreement includes a clause requiring notice of termination.
If a landlord wants to evict a holdover tenant, the notice must include:
- The landlord’s reason for terminating the holdover lease
- The date by which the tenant must vacate the premises
- Notice of any intent to pursue legal action if the tenant fails to evacuate by the deadline
Holdover tenants who remain past their lease expiry but do not pay rent are considered trespassers and therefore are not entitled to an eviction notice.
Landlords’ Duties and Rights
To avoid confrontation with renters, landlords may want to include clauses in their rental contracts that stipulate what will happen at the end of a lease period. They should be as specific as possible with the lease conditions, as laws vary by state. In some cases, the landlord may reset the lease by continuing to accept payments. In other instances, receiving payment from a holdover tenant will kickstart a month-to-month lease.
In the above cases, the landlord has little power to evict the tenant for reasons other than missed rent or contract violations and may have to begin a holdover proceeding to evict the holdover tenant. Holdover proceedings usually take place in evictions or small claims courts.
If the landlord wishes to evict a holdover tenant, they must not continue to accept payments from the renter. They must behave as though the renter is trespassing.
In Florida, landlords have the right to charge double the price of rent for holdover tenants. Of course, they must make tenants aware of the price increase if they are to become holdover tenants.
Terminating a Lease Properly to Avoid Holdover Tenants
If the lease duration is unspecified, both the renter and landlord may issue a notice to terminate the lease.
If a landlord wishes to terminate a lease, they must issue the tenant a notice of termination. In Florida, the period to give notice is based on the frequency of rent payments and whether the lease agreement contains a notice clause.
Under section 83.57 of the Florida Statutes, if the renter pays monthly and there is no mention of a notice period in the lease agreement, the landlord must give the renter notice of eviction at least 15 days before the next rent payment is due. This type of lease agreement is one of the most commonplace.
Notices must be written. Landlords should hand-deliver a notice or send it via certified mail so that there can be no doubt as to whether the tenant received it. Sending an email or text to terminate a lease is risky. If the tenant fails to see the notice and remains past their lease expiration, they become a holdover tenant, and eviction proceedings can become complicated.
Evicting a Holdover Tenant
If a tenant is not holding up their end of the holdover agreement, the landlord may wish to evict them. They may also wish to evict any tenants overstaying their lease without permission.
Similar to normal lease termination, the landlord must provide the holdover tenant with a notice of eviction. In the case of a standard lease, landlords must provide tenants a 3-day notice of eviction for non-payment of rent and a 7-day notice of eviction for violating the lease agreement.
The same rules apply to holdover tenants. However, these rules do not apply to holdover tenants occupying a lease without their landlord’s consent.
Terminating the lease
Written leases can be terminated by giving the tenant a notice, as mentioned above. Before terminating the lease, landlords should review the terms of the written lease agreement and make a note of any expiration dates or notice clauses.
While 15 days’ notice is typical, some lease agreements may stipulate that the tenant receive 30 days’ notice before termination of the lease. Note that any notice period in the agreement does not apply if it is shorter than the Florida Statutes’ required notice.
Filing a Lawsuit
If the tenant refuses to vacate the property, the landlord may respond by filing a lawsuit. To file an eviction lawsuit, the landlord must draft a complaint and file it with the court detailing. They will also need a summons for each defendant included in their complaint. If possible, landlords should consult an experienced attorney to help them write a complaint.
Once the complaint has been filed, and a summons is issued, landlords must hire someone to serve the summons to the tenant; this is generally a sheriff or a private process server. Once the tenant has received the complaint and summons, they have five business days to respond to the complaint. The tenant will have 20 days to respond to any other complaint claims, such as damaged property.
If the tenant fails to file a response to the complaint with a clerk within five business days, the landlord may obtain a default judgment, such as a default for possession. Once the landlord has received a clerk’s default, the judge can move forward with a judgment granting possession.
If the tenant files a timely response, the landlord may have to attend a hearing, subject to the contents of the response and the judge’s will.
What Should a Complaint Include?
Complaints need to clearly outline the specifics of a case if the landlord wishes to recover the property. Complaints should detail the nature of the tenant/landlord relationship and whether the tenant has a written or oral lease agreement. Complaints should also document how the lease was terminated and prove that the tenant did not subsequently vacate the premises, making them an unwanted holdover tenant.
Landlords will need to state their desired outcomes as well. Some landlords may wish to recover the property, while some may be looking for financial compensation. Complaints should include as much information and evidence as possible. If a landlord has a hard copy of the lease agreement, they should attach it to the complaint, along with any other relevant documents.
How Can an Attorney Help in a Holdover Tenant Dispute?
Holdover evictions must follow precise steps. Failing to file a holdover eviction lawsuit correctly can lead to the case being dismissed before ever reaching trial. Hiring an attorney will ensure no steps are missed, and the lawsuit proceeds as smoothly as possible.
If a landlord fails to file an adequate complaint, the tenant may file a motion to dismiss the complaint as defective. They may argue that the landlord:
- Failed to join indispensable parties
- Failed to provide a copy of the lease on which the eviction is based
- Terminated the lease illegitimately
- Issued the eviction notice improperly
Any of these defenses can lead to adverse outcomes for a landlord, especially if the tenant has hired an attorney themselves. Not only may you lose your case as a landlord, but Florida Statutes allow for the winning party’s attorney fees to be covered by the other party.
Whether you are a landlord or a tenant facing unfair eviction, the best way to win an eviction case is to make sure everything is filed according to regulation. Failing to do so can lead to all efforts being made in vain and an ongoing debacle. If you have the means, you should always hire an attorney to handle an eviction lawsuit to err on the side of caution.
Let Us Handle Your Holdover Tenant Eviction Case
Months of back-and-forth arguments over a rental property can take a toll on both parties involved. If you are dealing with a holdover tenant who refuses to vacate, or are a tenant who is facing unlawful eviction, call the Lopez Law Group today at 727-933-0015 for a free case evaluation. Our attorneys are ready to step in and represent you to ensure the best outcome possible.
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