by WuzLovesDubs 27 Replies latest watchtower bible
FL has great (for the owner) residency rules.
Since they have an interest in the property (their stuff), they may stay until evicted. Since any rental agreement would require both owners to sign, they are not renters so they can be evicted as "squatters". You do not need a Lawyer, just show up at the Clerk's office with about $50.
Dearest WuzDub... may you have peace!
I am not an attorney, so, unfortunately I cannot give you "legal" advice and must state to you that the following is NOT legal advice. If you need LEGAL ADVICE (as your title indicates) you should consult an attorney. However, how to get someone out of/off your property is readily available in a plethora of Landlord/Tenant-related self-help books... and on the Internet... so I am going to tell you below what such resources say you can do. What I tell you will be accurate, although NOT legal advice, however, based on my background and certifications, which are:
I have over 22-years as a housing administrator. I am a Certified Mediator, primarily in landlord/tenant issues, and more specifically Unlawful Detainer Court (as well as Small Claims court), and I am a Certified Manager of Housing (CMH), Certified Occupancy Specialist (COS), and Certified Tax Credit Specialist (TCS). I am also the Fair Housing Director for a regional agency... and I have a JD (but since I am not giving you legal advice (i.e., I am telling you what you CAN do, vs. what you SHOULD do), we'll leave the latter out).
Here is what any decent Landlord Rights book, website (just Google "How to Evict" and your state), or Superior/Small Claims/Unlawful Detainer court website will tell you:
1. Depending on your state, you MUST serve these folks with a Notice of Termination (usually 30-Day, unless you're in California and they have lived there more than 1 year, in which case, you must serve them with a 60-Day Notice). You can get a copy of a blank notice online (just type in "30- (or 60-) Day Notice" and your state). Make sure you count the days properly (weekends and holidays ARE included... but don't take for granted that the "30th" of month B is exactly 30 days from the 30th of Month A. COUNT it out. Trust me on this.
2. You MUST serve such Notice on each ADULT (anyone age 18 or over) SEPARATELY, so you'll need a notice for each one. (Note, someone might tell you that you can name them all in one notice - that's not really accurate. Since EACH person must BE served, if you only make out one notice and serve it on one person, the others can claim they were never served. To CYA, give them EACH their own notice).
3. You can serve the Notice yourself; however, it would be WISER to have someone NOT related to the matter do it (in case parties try to deny that they were properly served). That person MUST be at least 18 years old.
4. Regardless of whoever serves it, a Proof of Service form (which you can get online) MUST be completed... for EACH notice served.
5. To PROPERLY serve the Notice(s), you MUST:
a. Give it the person PERSONALLY... OR
b. Give it to someone in the household who is AT LEAST 18 years old... OR
c. Place it in/through the door (or, in some jurisdications, post it on the door) AND mail it (certified is best).
Note, you should read the Proof form FIRST... so that you know your options... and then once the notice(s) have been served, indicate on the form HOW it was done. Do NOT complete the Proof of Service until AFTER the notice(s) have been served, because you may have to testify in court as to HOW they were served... and if you serve them AFTER you complete them... it may not be what you indicated (i.e., you may check that you gave it to the person, but they actually weren't home and you posted and mailed it. The form is to say what you DID... not what you are going to do. And, yes, you will need a SEPARATE proof for EACH notice served.
6. If they are not out by the expiration date of the Notice, then you can file what's called an "Unlawful Detainer" action with the court (either UD Court or Small Claims) the very next day.
a. The EASIEST (because you do nothing but pay)... and most expensive... way to do this is to use an attorney.
b. The SECOND easist... but less expensive (because you do some of the work)... way is to use an online Eviction/Unlawful Detainer Service... or Unlawful Detainer Assistance (UDA), if your state has them. You can check the Yellow Pages for the latter. Note, some states require that UDA's be registered with the court and that's a good thing because you want someone to be accountable if mistakes are made (which could cost you your case). These are just like what the Self-Help Center will do for you (and what I am trying to do here), but charge a fee (which, depending on the situation, can run from nominal to "I-should-just-go-on-and-hire-an-attorney").
c. The THIRD easiest... but even less expensive (because there is no cost, but you do most of the work) way is to get assistance from your local Superior Court Self-Help Center. They have attorneys there who only job is to assist people with completing court forms. Like me, they can't advise you as to what you SHOULD do... but they help you do what YOU decide you should do (i.e. complete the forms, file with the proper court, etc.).
d. The least easiest... and least expensive (no cost, and you do ALL of the work) is to get the forms online (Google) or from the UD Self Help section of your local superior court website and fill them out yourself. Because of the change for errors that might cost you your case, I would stay away from this one; however, I am not "advising" YOU to do so. If you believe you can handle/do it, then by all means - you're the "boss."
7. Once the UD action is filed, the defendants/respondents will have anywhere from 5 to 30 days (depending on your state) to file a response stating THEIR side of the story. I am not sure what "story" they will have, however, as you're merely saying, "Hey, look, I want my house back... to live in... so I want/need you to get out." Which you can say and have absolutely NO other reason. A landlord (which is what you ARE, even if you didn't intend to be) can terminate a tenant (which is what they are, even if there's no written lease) residency with NO grounds IF they wish to occupy the premises themselves.
So, say:
8. They DON'T file a response within the 5-30 day timeframe (which is what usually happens). The court will consider this a "Default" and give you a Default Judgement. You must then take that document to the Sheriff so that the SHERIFF can EVICT them (NO ONE evicts except the Sheriff. An "eviction" is what occurs when the Sheriff literally comes out, tells them to get their stuff and get out, after which you change the locks - yes, you go with the Sheriff - and then the Sheriff posts a notice on the door telling them they can't go back in and if they do, they will be arrested. THAT... is an "eviction." They are "evicted" from the premises. Which is why they the process is called an "Unlawful Detainer" - they are "unlawfully detaining" the premises)... and the whole thing may actually go away/be resolved before the defendants are actually "evicted."
9. They DO file a Response (though, I don't know what their response would be; even if they say you "promised" they could live there, YOU now want to live there and so can "terminate" their leasehold. Some people file a Response, however, simply to buy some time, because):
a. In that case, the Court will set a hearing date. These dates are anywhere from 5 to 14 days out, depending on your state and the court calendar.
b. Both sides appear at the hearing* and present their arguments (cases), after which...
c. The judge issues a decision based on the cases presented by the parties. So say:
(i) Judge says they can stay (which is HIGHLY unlikely, but if so would be for a limited time)... then you have to wait until the period the judge gives them ends and if they don't move out by then, you have to file another UD action.
(ii) Judge says get out... then you receive a regular Judgment (not a "Default" Judgment) which, again, you must take to Sheriff so that he can evict them.
b. If a party does NOT appear, then:
(i) If YOU don't appear, your case will be dismissed;
(ii) If THEY don't appear, it will be as if they didn't file a Response and the judge will issue a Default Judgment will be entered which, again, you have to take to the Sheriff for eviction.
Of course, there's more if they leave, but leave their... ummmmm... "stuff." Which is highly likely, given what you say they brought with. But we can cross that "bridge" when we come to it, if you need to. In the meantime, that's it, in a nutshell.
I hope it helps and again I bid you peace!
Your servant and a slave of Christ,
SA
Dearest WuzDubs... peace to you... and I wish to clarify something that someone posted above:
Florida is a tenancy by the entirety (TBE) state and so you are right that your husband couldn't have legally entered into the rental agreement without your signature. Problem is he DID, and so your issue on that matter isn't actually with the tenants, but Husband. THEY have a written agreement with him, which the court could hold as valid, saying that you have to go after your husband for any "damages" done to you, not the tenants. So, don't assume that just because Husaband wasn't legally supposed to make the agreement that a court would automatically undo the agreement. It doesn't always work that way.
However, again, in almost every state, if a Landlord wishes to occupy the premises... or have an immediate relative occupy it... so long as proper notice is given, the court would approve termination of the tenancy on such grounds (i.e., that you want to live there, not because your husband wasn't supposed to let them without your permission).
Indeed, if your tenants had a lease that had, say, another 9 months on it... and you didn't want to live there but just wanted them out because your husband shouldn't have moved them in in the first place... the court could either:
1. Allow them to stay the full term of their lease (so long as their rent was current); or
2. Terminate the lease and direct them to move out within, say, 30 days... but order you and Hubbie to pay them "damages" (i.e., cost of moving, security deposit on new place, and full refund of deposit on your place, if any, as well as a couple/few months);
In either event, the court might then advise YOU... to sue Husband for the amount YOU have to pay (for rent elsewhere during the time, or the portion YOU have to pay toward such damages), because your case would be with HIM, not them.
This is because a contract is a contract, and a written agreement constitutes a contract. Even if the court determines that the "contract" is void because it is "illegal" (but it sounds more like a contract that is "voidable" - i.e., can be rendered void but does not HAVE to be... vs. one that is "void" - i.e., absolutely no legality whatsoever and so MUST be undone), the breaching party (your husband) would be liable to the other party. They would have to be made "whole" in some manner. The court would say that it was not their responsibility to know what the situation was between you and your husband and that if he told them it was "okay" then they were able to accept his word.
Also, I am not so sure that they are "not renters" but "squatters." Squatters are usually on the premises without permission... and pay no rent. If they PAY rent... they are "tenants" which are "renters." If they are on the property WITH PERMISSION... but DON'T PAY rent... they are guests/licensees. If they are there WITHOUT PERMISSION, then they are "squatters" or perhaps even "trespassers." Since they have your husband's permission, however... and thus "license" to be there... they are not trespassers... and possibly not "squatters," either. It may be true that he can't agree to formally RENT without your permission... but I am not sure that the laws of TBE preclude him from having GUESTS... and all their... ummmm, "stuff" without your permission.
Just some things to think about. Again, you should NOT consider this legal advice and should certainly seek counsel from an attorney if you need legal advice, direction, information, or assistance.
Again, peace to you!
A slave of Christ,
SA
Do you still own the house? If so, they are tenants and can be evicted upon proper notice. Generally, in a lease, the landlord can evict them for cause if they give the notice by the last day of the month preceding the eviction (that is, if you want them out by July 1, the notice would be sent by May 31). And, if there is no lease, you could insist on setting up one--giving you specific rights that are spelled out in the lease itself (such as payment of rent, and certain rules about damaging the place beyond normal wear and tear). If they violate this lease or do not sign it, they are out.
And, if they claim the right to occupy the place, going to court will force them out. If the court evicts them and they do not move out, they are trespassing. And, it will be in the public records--to which you might add that they are witlesses in "good standing" at the time they failed to vacate a place that was not theirs. This, despite "Thou shalt not steal"--their own Bible supposedly condemns stealing, which is what they are effectively trying to do with your home.
If you already have a legally signed agreement and they are breaking their part of the agreement, you can proceed with an eviction as if you were renting the place. For instance, you never agreed that they could claim the house as theirs--nor did you agree that you could not return to the house. Even a landlord has the right to enter a premise, with proper notification (or unannounced in the event of an emergency). This sure sounds like these witless cockroaches are trying to steal your house--and there was nothing in the agreement that stated that they had that right.
I need to make a correction, dear WuzDubs (peace to you!)...
The notice must be for the same amount of days as which they pay rent (if they pay rent). So, for example, if they pay monthly, you must give them one month's (30 days) notice (except in some states, if they've resided there more than a year, you must give 60 days' notice - check with your local court). If, however, they pay, for example, weekly, then you only need give them a WEEKS' notice (7 days, including weekends). If they pay every two weeks, then it's two weeks notice, and so on...
Dearest WTWiz... peace to you, as well! I'd like to clarify a couple things you said, if I may, and hope you take this in the spirit [of love] that I offer it. I am only doing this because giving someone the wrong advice in situations like this can prove harmful. First, if one wants someone out of their premises by July 1st, a notice served on June 1st would suffice because there are 30 days in June. So, if you COUNT, June 1 through June 30... you have 30 days. Serving on May 31 would give 31 days, which isn't necessary. Also, there really is no point in setting up a lease if she wants them out because if she sets one she will have to let the lease term run before she can get them out.
Also, based on what dear Wuz wrote, it appears like she wants them out and wants to move back in. Why, then, even give them lease TO break? If they claim a right to occupy but do not have a lease, the court will most probably grant a judgment IF they were properly served with Notice to Terminate/Vacate; however, if they have a lease, it may not be that simple. Depends on the terms struck with the husband. Again, while he may have had no right to enter into a lease on the premises, dear WuzDubs beef would be with him... for doing so... and not with them.
Also, if the court evicts them they don't really get to the "trespasser" stage because the Sheriff will come out and remove them. Toot-sweet. That is the purpose of the court order resulting from the Judgment.
Finally, you state:
If you already have a legally signed agreement and they are breaking their part of the agreement, you can proceed with an eviction... For instance, you never agreed that they could claim the house as theirs--nor did you agree that you could not return to the house. Even a landlord has the right to enter a premise, with proper notification (or unannounced in the event of an emergency).
This is a VERY misleading statement. If they have a "legally signed lease"... the landlord CANNOT just "return to the house." True, the landlord can ENTER ONTO/INTO THE PREMISES, but solely for the purpose of making repairs, doing an inspection, showing the property to prospective buyers/renters, or serving notice upon the tenants. The landlord can ONLY enter without notice...in the case of a bona fide emergency (i.e., something that would cause harm to person or the property). Otherwise, the landlord MUST give 24-hours' notice... which notice MUST include the date and time of entry (and is usually limited to normal business hours).
However, by means of that "legally signed agreement"... a landlord CANNOT just move back in (unless the Agreement SAYS they can). This is because the lease GRANTS to the tenant a legal right of possession. Thus, so long as they pay their rent and don't break any lease provisions... the tenant has legal possession of the premises (because a "lease" is a land/premises grant - it creates a "leasehold estate").
The problem here is that, per dear WuzDub, the husband states he DOES have a "written agreement" with them. And if that agreement DOESN'T say they CAN'T bring their... "stuff" (which most leases don't)... then... they can bring their stuff. They would not "breaking" any lease provision... because there ISN'T one... and the amount of stuff is irrelevant... so, as long as it does not create a health and/or safety hazard. And THAT must be determined by some City/County department such as fire, code, health, utilities, police, etc.
I understand your intentions are good, here. But my point is that, like religion, folks (1) not FULLY reading the facts and content, and/or (2) giving ANY kind of "counsel" related to the matter that is inaccurate... can be extremely harmful. Here, dear WuzDubs could go running over there, demanding to be let in and allowed to live there... occupy the premises... and then find herself being sued... for harassment... trespassing... even unlawful detainer herself! They may even be able to call law enforcement and have HER removed. They would only need show their lease - her deed or mortgage wouldn't necessarily protect her! Even if she won in court, she would STILL have to have the Sheriff come out, removed them, and turn possession BACK over to her, per the court ORDER. But she cannot... and so SHOULD not... take matters into her own hands... unless simply going over and asking them to move would do the trick. Doesn't sound like it to me though.
Again, I understand your good intentions; however, in certain situations (i.e., certainaly legal, but also religious, medical, etc.)... the information really needs to be accurate. Because inaccurate information is how and why people don't understand what their TRUE rights... and obligations... ARE... under such subjects... and are harmed. Many are often misled, taken advantage of, and lose... their rights... their property... even their lives.
And so, I personally think that is a VERY important thing and so people should MAKE SURE of what it is they are "counseling"... in both these and certain other subjects... before saying something that could result in such harm(s). Even if that wasn't their INTENTION.
Again, I bid you both the greatest of love... and peace!
A slave of Christ,
SA
Thank you ALL soooo much for the information! AG all that work! You are very sweet. Gosh Id say you were "qualified" to make recommendations from a "non lawyer spokesperson" POV on this. :D I am going to have a sit down with my quasi-ex and just tell it like it is with him and ask to see what it is he has "in writing" which I think is more of a financial agreement of some kind than a lease and it was drafted by the two MEN in this case so how much water will that puppy hold? Because the "guests" he invited in helped him put down the flooring and put in the bathroom fixtures and finish painting, he had some kind of "help in exchange for rent" thing going on with them. I think he said he "owes" them like $10,000 for money they added to the finishing of the house to make it occupiable for themselves. But since they have been there over a year, that amounts to what...like $800 a month?? When their own mortgage was well over $2000 before? I agree now that you put it that way, that I may have the problem with my husband saying that he invited them, and that they are his guests, but if said guests have everything they own WITH them, including literally their kitchen sink, and no longer have an address of their own, and have painted the walls of the "guest rooms" to match their own bed spreads, I think maybe it has surpassed "guests" somewhere along the way :D.
I have a lease where I live now until the end of March 2011 and so will be here til then. By that time they will have been in my house 2 years. I told ex I would be giving notice to my landlord December 1, 2010 that I would not be renewing the lease for the April 1, 2011 period and that he will have to tell them, or I would, by that date that they have to leave. It appears that I will have to put all that in careful written terms to assure it doesnt become some "illegal eviction" problem because I know they are NOT gonna like this. But just because someone helped make improvements on a place does not entitled them to some kind of ownership, except if they had an agreement to be paid either in time or money, in which case they could foreseeably place a lien on the property or something. (I put a new towel rack in here and planted some flowers but that didnt buy me part ownership of it. )
Im glad I asked you guys...its definitely given me a clearer perspective of what i am up against here.
hugs and peace back to you all! (BIG hugs SA
PS these people have two sons who are of adult age...they would get notice separately too then?
WuzLoves, I'd still check with an attorney to see if they can claim quiet title under adverse possession laws. If they were helping with the remodeling, they may have a claim.
http://www.jamesmaurer.com/adverse-possession.asp
gives some info on length of time for a squatter to claim property under adverse possession, and some legal remedies for removing unwanted 'guests'.
Good luck with your situation.
Steal - quiet title??..thats rediculous. Does my roofer have title because he put the roof on? Or the guy who ran the crane who helped us put the walls up on the second floor? Thats just crazy. They were in there AGAINST my will and as the owner of record if I didnt co-agree to anything they did to the house then what claim except for maybe reimbursement could they possibly have? I will go look at the web site you gave me.
Ah...the person has to have been on the property using it and paying taxes on it for a VERY long time neither of which is applicable here for adverse possession.
I didn't take the time to read all the replies to your question.
If this hasn't been mentioned you can see if the zoning laws for your subdivision only allow for single family homes. If that is the case you may be able to use that to your advantage.
The down side would be if your code enforcement people are morons and they use the law to fine you until the squatters leave.
Be careful ! some code enforcement people are people, some are serial killers (BTK)
