Unlawful Detainer Instructions

Unlawful Detainer

(not Eviction)

Use This Packet if:

1. You are trying to remove someone from their home, and
2. You have a legal right to reside in your home (you are the owner or legal tenant), and
3. The person you are trying to remove does not have a legal right to reside in your home (they are not an owner or a legal tenant), and
4. There is no agreement for rent (verbal or written) between you and the person you are trying to remove.

Unlawful Detainer is a county court lawsuit, filed pursuant to Florida Statute Chapter 82, to request that another person be ordered to leave your property. It is similar to an eviction proceeding except that in an Unlawful Detainer case, there is no landlord/tenant relationship between parties, i.e., there is no agreement to pay rent, either verbal or in writing. If there is an agreement to pay rent, verbal or in writing, you should consider an eviction case. Consult with an attorney if you are not sure.

Step by Step Instructions

STEP 1 - Write a letter asking the person(s) you are trying to remove to leave the home and give it to the person(s)

There is an attached letter you can use. You will be the Plaintiff in this case and the person or persons you want removed from your home is/are the Defendant(s). It is up to you to decide how many days notice you want to give the persons you are trying to remove to leave the home. Three days is common. See the example letter for more details. Hand deliver the letter to the defendant(s) after making a copy for your records. If you are unable to hand deliver the letter, post the letter or leave the letter somewhere that the defendant(s) will find it (some common examples include: their door, bed, or car window shield).

STEP 2 - Complete the forms to start the case

Complete the "Unlawful Detainer Complaint" and the "Unlawful Detainer Summons" forms, and, if you cannot afford the court fees, the "Affidavit for Determination of Civil Indigent Status" (Indigency Affidavit). Again, on the paperwork you are the Plaintiff and the person or persons you want removed from your property is the Defendant. You will be given a Case Number when you file the case with the Clerk of Court's office. All completed forms are filed with the Clerk's office, County Civil Division.

STEP 3 - Complaint

Sign the “Unlawful Detainer Complaint”.

STEP 4 - Make copies

Make the necessary number of copies of the signed Complaint and Summons (1 copy for you and 2 copies to be delivered to each of the Defendants).

STEP 5 - Mailing

Quite often, the Sheriff is unable to personally serve the Defendant and is allowed to post the Summons and Complaint on the property. If you expect the sheriff will not be able to serve the Defendant in person, provide the Clerk of Court with two additional copies each of the Summons and the Complaint per Defendant, and two pre-stamped envelopes per Defendant addressed to the Defendant's residence and tie Defendants last known business address, if known.

STEP 6- Filing your case

Take the original Complaint and Summons to the Clerk of Court's office. The Clerk will stamp the Summons (one needed for each Defendant) and give you the summons to take to the Sheriff's office.

STEP 7 - Notifying the other party (Defendant)

The Summons must be served, either personally or by posting, by the Sheriff or a Certified Process Server. Take the Summons and copy of the Complaint to the Sheriffs office and pay the fee to have the Defendant served. If you have been granted an Indigency Waiver, the Sheriff will serve the Summons and Complaint at no charge. A Certified Process Server will not serve at no charge.

STEP 8 - After the Defendant is served

After the Summons & Complaint is served to the Defendant, the Defendant has five (5) working days to file a response regarding the case. (Do not count the day of service, Saturdays, Sundays, or observed legal holidays). After 5 working days have passed, you will do one of the following:

1. If the Defendant filed an answer, fill out the document entitled “Request for Hearing” with the Clerk of the Court. Make sure you fill out the Certificate of Service on this document and indicate that you have sent a copy to the defendants by listing their names and addresses below the certificate of service. After you have filed this document with the Clerk of Court, the Court will send you a hearing date in the mail. Go to Step 9.
2. If the Defendant did not file an answer, complete the following forms and take them to the Clerk of Court’s office.
   1. Motion for Default & Default
   2. Judgement for Possession (complete the heading only- names and case number)
   3. Writ of Possession (complete the heading only- names and case number)

   The Clerk will file your documents and take the Judgement for Possession to the

Judge to be signed. Once the Judgement for Possession is signed by the Judge, the Clerk can issue the Writ of Possession. The Sheriff’s office charges a fee to execute the Writ of Possession and remove the Defendant. The fee is not waived by the Indigency Affidavit.

STEP 9 - Attending a hearing? What to expect

If the Defendant filed an answer, both parties will be required to attend a hearing. You will not be in front of a jury, just the judge. Do not interrupt the judge when he or she speaks. When speaking to the judge, address him or her as "Your Honor" or "Judge."

Each court has at least one bailiff who is a deputy sheriff and is there to maintain order. When you arrive for your hearing, let the bailiff know that you are present and ready. He or she will announce your case when it is time for your hearing, and will tell you where to sit and where to place your belongings as you enter the hearing room. A bailiff will usually remain inside the room during your hearing. If witnesses are called, the bailiff will step out to bring the witness into the hearing room.

At your hearing, be prepared to discuss any issues covered the Complaint and be able to provide proof of any disputed facts by presenting evidence. Evidence is proof presented at hearing in the form of witnesses (people), exhibits (documents), and objects (things). Not all evidence can be considered by the judge, however. Evidence must conform to the Rules of Evidence in Chapter 90 of the Florida Statutes to be admissible in court. Remember, the duty of proving the facts that you want to present to the court is on YOU. You should provide the judge with admissible evidence to support the claims in your Complaint and your statements in court. Telling your story may not be enough to win your case.

Once both sides have presented their evidence, the judge will make a decision. If the Judge signs a Judgement for Possession, the Clerk can issue the Writ of Possession. The Sheriff’s office charges a fee to execute the Writ of Possession and remove the Defendant. The fee is not waived by the Indigency Affidavit.