Wednesday, August 10, 2011

Writ of Possession Statutes are Different for Residential & Commercial Evictions

Florida Statutes Effect on the Issuance and Execution of a Writ of Possession

Chapter 83 of the Florida Statutes covers the full spectrum of Landlord and Tenant laws; however, the Chapter is further broken down into the following three separate Parts:
Part I: Nonresidential Tenancies (Commercial Tenancies)
Part II:  Residential Tenancies
Part III: Self-Service Storage Space
While the Statutes covered within each Part may appear similar, there are slight variations within them that greatly alter the rules to be followed by both the Landlord and Tenant.  This series of articles will go over several major differences between Part I (Nonresidential) and Part II (Residential).
The first article was on how the Statutes within Part I and Part II are never to be combined.  This second article will go over how Florida has separate and distinct Statutes for the issuance of the Writ of Possession in Nonresidential (commercial) vs. Residential tenancies.

Writ of Possession

In Florida, if and when a Court issues a Final Judgment for Removal of Tenant, the landlord still does not have the right to kick a tenant out of the premises.  Once the Final Judgment is entered, (1) the Clerk of the Court needs to issue a Writ of Possession, and (2) the Sheriff needs to enforce the Writ by going over to the Premises to transfer possession back to the landlord.
Here are some tips and advice to follow in order for the Sheriff to follow through with the eviction:
  1. Make sure that the address within the Writ of Possession matches exactly with the address listed in the Final Judgment.  Because the Clerk may not issue the Writ if it is different, copy/paste the address in the Final Judgment directly into the Writ of Possession.
  2. If the Tenant occupies more than one premises (that are adjoining), you need to list all of the addresses within the Final Judgment and Writ of Possession, and make sure to additionally provide that one of the addresses is to be “used as the legal and mailing address”.  Otherwise, the Sheriff may charge a higher fee for conducting multiple evictions.
  3. Make sure that the addresses listed within the Final Judgment and Writ of Possession are clearly indicated on the actual premises.  If the Sheriff cannot find the address marked on the premises, they will cancel the eviction.  Therefore, if the address is not affixed the premises, carry a magic marker or paint and make sure to write the address somewhere for the Sheriff to see it.
  4. When delivering the Final Judgment and Writ of Possession to the Court, include payment to the Sheriff for their fee to execute on the Writ of Possession.

Residential vs. Commercial Evictions - Writ of Possession

Once the Sheriff obtains the Writ of Possession from the Clerk, the Sheriff is required to execute the Writ in accordance with the Florida Statutes.  I have listed below the relevant Statutes for the Sheriff to follow for residential and commercial evictions.

Statute for Residential Evictions:
§83.62 Restoration of possession to landlord.

(1)  In an action for possession, after entry of judgment in favor of the landlord, the clerk shall issue a writ to the sheriff describing the premises and commanding the sheriff to put the landlord in possession after 24 hours’ notice conspicuously posted on the premises.

Statute for Commercial Evictions:
§83.241 Removal of tenant; process.

After entry of judgment in favor of plaintiff the clerk shall issue a writ to the sheriff describing the premises and commanding the sheriff to put plaintiff in possession.


As you can notice above, because the Statutes were set up to favor residential tenants, the residential Statute requires that the Writ of Possession cannot occur until “after 24 hours’ notice conspicuously posted on the premises”.
Because the Sheriff’s Office may not be aware whether they are handling a residential or commercial eviction, they tend to always proceed under the residential Statute (providing 24 hour notice to the tenant).  Therefore, if you are handling a commercial eviction, make sure to advise the Sheriff’s Office by adding the following somewhere easily for them to notice within the Writ of Possession:

NOTE TO SHERIFF:
This is Commercial Property
DO NOT POST 24 HOUR NOTICE

When the Sheriff’s Office calls the landlord with the day and time they will execute on the eviction, make sure to do the following:
  1. Show up early.  If the Sheriff shows up without the landlord or its representative present, the Sheriff will leave, and the landlord will have to reschedule the eviction and may have to pay an additional fee to do so.
  2. Bring a magic marker to write the property address on the premises just in case the tenant removed it.
Bring a locksmith, and make sure they arrive before the Sheriff.  While you may think that you have a copy of the key, if the tenant changed the lock in the middle of the night, the Sheriff is not going to wait for you to then call a locksmith.  You will then be required to reschedule a Writ of Possession at the premises.

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