by Chris Cervellera, Esq.Six Things You Should Know About Florida’s New “Anti-Squatter” Law
The ink is barely dry on Florida’s new “Anti-Squatter” law, and misinformation about what this law does and doesn’t do is at a fever pitch. Having someone on your property without your permission, whether it is your home, an investment property, or other real estate, can be a stressful and dangerous situation. This new law is a step in the right direction to give property owners more effective and efficient remedies and rights in these situations. However, it is essential to fully understand the laws that impact your rights as a property owner, including this new law (FULL TEXT – HB 621 – “An act relating to property rights; creating s. 82.036,”).
Let’s take a few minutes to discuss some essential aspects of this new law and clear up some misconceptions.
1.) The word “Squatter” is not even used in the law.
It’s funny how the media uses terms like “Squatters,” and the public then takes the term and applies it to a broad range of situations. Similar to other real property laws, this new law refers to “unauthorized persons” and “unauthorized occupants” but does not actually use or define the word “squatter.”
2.) This new law is not an alternative to evicting a former or current rental tenant.
The text of the new law is clear, and its remedies are only available if “(f) The unauthorized person or persons are not current or former tenants pursuant to a written or oral rental agreement authorized by the property owner.”
In recent months, the media has shown dramatic stories about long-term or short-term rental tenants who do not leave at the expiration of their rental term. This law does not apply in these cases, and the property owner may need to go through a formal eviction to assert their property rights and lawfully remove the past/current tenant. In Florida, we “evict” current tenants who are in breach of their lease or tenants hold over at the expiration of their lease.
3.) Sorry, but you probably cannot use this new law to remove your ex-boyfriend, ex-girlfriend, or mother-in-law.
If you permitted someone to enter and stay on your property, it can be reasonably argued that they had a lawful invitation to be there (e.g., girlfriend, boyfriend, mother-in-law, father-in-law, etc.). Therefore, it can be argued that this new law does not apply to situations like this because the law says the unauthorized person must have “unlawfully entered”—”(c) An unauthorized person or persons have unlawfully entered and remain or continue to reside on the property owner’s property.”
In these situations, when the property owner wants to remove an unauthorized occupant who is not a rental tenant, but that person claims to have a right to be on the property (i.e., they were told by the property owner that they could enter and stay), an “ejectment” action may be the most appropriate remedy for the property owner to pursue.
4.) This law does not apply to vacant land or commercial property without a residential dwelling.
If the real property in question does not have a “residential dwelling,” then this specific law will not apply—“(b) The real property that is being occupied includes a residential dwelling.” In these situations, when there is not a residential dwelling on the property (e.g., vacant land or commercial property), a “trespassing” complaint or an “unlawful detainer” action may be the most appropriate remedy for the property owner.
5.) Eight elements must be met for this new law to apply.
Above, I have discussed some elements for this new law to apply. However, in total, eight elements must be present. Additionally, when you make your complaint to law enforcement, you must sign a sworn statement (under penalty of perjury) that all of the following elements are satisfied:
- (a) The requesting person is the property owner or authorized agent of the property owner.
- (b) The real property that is being occupied includes a residential dwelling.
- (c) An unauthorized person or persons have unlawfully entered and remain or continue to reside on the property owner’s property.
- (d) The real property was not open to members of the public at the time the unauthorized person or persons entered.
- (e) The property owner has directed the unauthorized person to leave the property.
- (f) The unauthorized person or persons are not current or former tenants pursuant to a written or oral rental agreement authorized by the property owner.
- (g) The unauthorized person or persons are not immediate family members of the property owner.
- (h) There is no pending litigation related to the real property between the property owner and any known unauthorized person.
If one of the above elements is not met, then this new law does not apply. If you sign the sworn statement that all of these elements apply, and it is later proven they do not, you may be prosecuted for perjury under F.S. 837.02 and/or be civilly liable by the person who was removed from the property (see #5 below).
6.) The removed person has the right to sue you.
Welcome to America… and Florida! Think of this as physics, where every action (even legal action) has an equal and opposite reaction. According to this new law, “(6) A person may bring a civil cause of action for wrongful removal under this section. A person harmed by a wrongful removal under this section may be restored to possession of the real property and may recover actual costs and damages incurred, statutory damages equal to triple the fair market rent of the dwelling, court costs, and reasonable attorney fees. The court shall advance the cause on the calendar.”
You may be certain that the person was lawfully removed, and all of the elements of this new law were satisfied. However, this does not stop unreasonable people from bringing unreasonable lawsuits when there is no basis in law or fact, especially pro se (self-represented). In a situation like this, you still must defend yourself and prove your case (and that the suit against you was frivolous) or risk a default judgment.
Conclusion
In conclusion, the specific facts of each case and situation will vary and determine whether this new law will apply to you and your property. This article is provided for informational purposes and should not be considered legal advice or the creation of an attorney-client relationship.
If you are in immediate danger due to an authorized person on your property, you should immediately contact law enforcement. In other situations, contacting an experienced attorney to advise you of your legal property rights is also a reasonable and wise choice.