Unlawful Detainer in Florida: How to Remove Someone Who Is Not a Tenant
Quick Answers
- What it is: an unlawful detainer is a lawsuit under Chapter 82 of the Florida Statutes to recover possession from someone occupying your property without your consent who is not and never was a tenant.
- Not an eviction: Chapter 82 does not apply to residential tenancies under Part II of Chapter 83. If the person is a tenant, you must evict using Chapter 83 instead.
- No notice required. Section 82.03 states the person entitled to possession is not required to serve a notice before filing, though some judges like to see that written notice was provided. There is no three day notice equivalent.
- It moves fast. Actions under Chapter 82 proceed by summary procedure under Section 51.011, and the court is directed to advance the case on the calendar.
- Double damages are available. If the court finds the entry or detention was willful and knowingly wrongful, it may award double the reasonable rental value for the entire period of unlawful detention, though collecting on a damages judgment in Florida is difficult.
- Filing cost: $185 base filing fee plus $10 per summons, with process server fees of roughly $40.
Not Sure If You Have a Tenant or a Trespasser
That single question decides which case you file. We can answer it in one call.
Unlawful detainer is the case Florida owners file when someone is living in their property and no landlord-tenant relationship exists. A former owner who will not move out after a sale. An ex-partner who was never on the lease. A relative who was allowed to stay without paying rent and then refused to go. None of these are evictions, and filing them as evictions is how owners lose months and sometimes thousands of dollars in legal fees.
What Unlawful Detainer Actually Means
Chapter 82 defines unlawful detention as possessing real property, even temporarily or only in part, without the consent of a person entitled to possession, or after that consent has been withdrawn.
The second half of that definition is the part owners overlook. Consent that was freely given and later withdrawn produces an unlawful detention. You do not need to prove the person broke in. You need to prove you told them to go and they stayed.
The chapter also covers two related situations. Forcible entry means taking possession with force, in a way that is not peaceable, easy, or open. Unlawful entry means entering and possessing property when the entry was not authorized by law or consented to by the person entitled to possession.
Unlawful Detainer vs Eviction
These are separate proceedings under separate chapters, and the difference is not a technicality.
| Feature | Unlawful detainer | Residential eviction |
|---|---|---|
| Governing law | Chapter 82 | Chapter 83, Part II |
| Relationship required | None, and a tenancy disqualifies it | Landlord and tenant |
| Pre-suit notice | Not technically required | Required, 3 day or 7 day or 15 day |
| Rent deposit into court registry | Not applicable | Required under Section 83.60 |
| Damages | Double reasonable rental value if willful | Unpaid rent, and double rent for holdover under 83.58 |
| Procedure | Summary procedure, Section 51.011 | Summary procedure, Section 51.011 |
| Outcome | Writ of possession, 24 hours after posting | Writ of possession, 24 hours after posting |
The absence of a notice requirement is one of the largest practical differences. In an eviction, a defective notice restarts your case. In an unlawful detainer, there is no notice to get wrong.
Who You Can Remove This Way
Unlawful detainer fits a specific set of occupants.
- A former owner after a sale or tax foreclosure auction. Title transferred, occupancy did not.
- A guest or relative you allowed in. Consent was given, then withdrawn, and they stayed.
- A former romantic partner not on the lease or deed. Common, and frequently misfiled as an eviction.
- Someone who entered without permission, including cases where the sheriff declined the nonjudicial route.
- A transient occupant. Section 82.035 confirms the owner has a cause of action under Section 82.03 against a transient occupant.
It does not fit anyone who paid rent under a written or oral lease agreement you authorized, and it does not apply to possession under Chapter 513 or Chapter 723, which cover recreational vehicle parks and mobile home parks.
How the Case Proceeds
- File the complaint. No pre-suit notice is technically required even though we recommend providing one, and the case is brought by summary procedure under Section 51.011.
- Serve the defendant. Standard service is attempted first. Chapter 82 contains its own posting provision if that fails.
- Wait the statutory period. Where service was by posting, at least five days must elapse after the date of service before a final judgment for removal can be entered.
- The court rules on possession, and on damages if pled, although collecting damages against a defendant is very difficult.
- Obtain the writ. On a judgment for the plaintiff, the court awards a writ of possession to be executed without delay, plus execution for damages and costs.
The Service Rule That Catches People
Section 82.05 sets out a posting procedure specific to this chapter, which is the same as for an eviction in Florida. After at least two attempts at ordinary service, if the defendant cannot be found in the county and either has no usual place of abode there or no one aged fifteen or older resides there, the sheriff or process server must attach the summons and complaint to a conspicuous part of the property.
Two details govern the timing. The minimum gap between the two service attempts is six hours. And if the plaintiff causes or anticipates service by posting, the plaintiff must give the clerk two additional copies of the summons and complaint plus two prestamped addressed envelopes, one to the defendant’s residence if known and one to the last known business address if known. Service is effective on the date of posting or mailing, whichever is later.
Damages You Can Recover
Possession is usually the goal, but Chapter 82 carries a real damages provision that owners routinely leave on the table, for good reason. Under Section 82.03, if the court finds the entry or detention was willful and knowingly wrongful, it may award damages equal to double the reasonable rental value of the property from the beginning of the forcible entry, unlawful entry, or unlawful detention until possession is delivered. The plaintiff may also recover other damages, including damages for waste.
The issue is that collecting on a judgment for damages is very difficult to do. Additionally, you will need to get personal or substitute service on the defendant to qualify for a damages judgment, and pursuing it can cause delays and cost additional money on top of obtaining the judgment for possession.
An unlawful detainer judgment does not settle ownership. Section 82.101 states that no judgment for either side bars a later action for trespass, ejectment, or quiet title between the same parties over the same property, and that the judgment is not conclusive as to the facts in any such future action. A later judgment in one of those cases can supersede the unlawful detainer result in whole or in part.
That makes unlawful detainer the right tool when possession is the dispute and the wrong tool when title is. If the occupant is asserting an ownership interest, a deed, or an inheritance claim, you are likely heading for an ejectment action under Chapter 66 instead, which is slower but actually resolves who owns the property. Winning a fast possession case against someone with a colorable title claim can mean litigating the same property twice.
What It Costs
| Item | Cost |
|---|---|
| Court filing fee | $185 base |
| Summons issuance | $10 per summons |
| Process server | About $40 |
| Sheriff writ of possession | $90 most counties, $115 in Miami-Dade |
| Attorney fees | Quoted case by case for non-tenant removals |
Before filing, it is worth checking whether the nonjudicial sheriff process applies instead. If the occupant entered unlawfully, never had a lease with you, is not immediate family, and there is no pending litigation between you, Section 82.036 may let you skip the lawsuit entirely for the cost of the sheriff fee alone.
Filing the wrong case is the expensive mistake, not filing late.
Kelley, Grant & Tanis has handled more than 40,000 eviction cases across Florida. Call 1 (877) 871-8300 or contact the firm. Related reading: Florida squatter rights and how to remove a squatter and when a tenant will not leave after the lease ends.
Frequently Asked Questions
What is an unlawful detainer in Florida?
It is a lawsuit under Chapter 82 to recover possession of real property from someone who is occupying it without the consent of the person entitled to possession, or after that consent was withdrawn. It applies only where no landlord-tenant relationship exists.
What is the difference between unlawful detainer and eviction in Florida?
Eviction is for tenants under Chapter 83, Part II and requires a written notice before filing. Unlawful detainer is for non-tenants under Chapter 82 and requires no pre-suit notice at all. Chapter 82 expressly does not apply to residential tenancies governed by Part II of Chapter 83.
Do I have to give notice before filing an unlawful detainer?
No, technically you do not. Section 82.03 states that the person entitled to possession is not required to serve the prospective defendant with a notice to vacate before filing the action, but judges often like seeing that the plaintiff demanded the defendant vacate in writing, so serving a notice may still be advisable. Section 82.035 repeats this for transient occupants specifically.
How long does an unlawful detainer take in Florida?
It varies by county and by how service goes, but the statute pushes it along. Chapter 82 actions are brought by summary procedure under Section 51.011 and the court is directed to advance the cause on the calendar. Most unlawful detainer cases take between 4 and 8 weeks depending on whether they are uncontested or contested by the defendant.
Can I recover money in an unlawful detainer case?
Yes. If the court finds the entry or detention was willful and knowingly wrongful, it may award double the reasonable rental value of the property from the start of the unlawful detention until possession is delivered. Other damages, including damages for waste, may also be recovered. Collecting on a judgment for damages in Florida is difficult, however.
Does an unlawful detainer decide who owns the property?
No. The court determines only the right of possession and any damages, and may not determine title unless it is necessary to decide possession or identify the record titleholder. A judgment does not bar a later trespass, ejectment, or quiet title action between the same parties.
How much does it cost to file an unlawful detainer in Florida?
The court filing fee is $185 base plus $10 per summons, and a process server typically runs about $40. If a writ of possession is needed, the sheriff fee is $90 in most counties and $115 in Miami-Dade. Attorney fees are quoted case by case.
Can I file an unlawful detainer against a family member?
Often yes, if they never had a lease and you have withdrawn permission to stay. Note that the faster sheriff removal process under Section 82.036 specifically excludes immediate family members of the property owner, so a court action is generally the route in family situations.
What if the person claims they own part of the property?
Then unlawful detainer is likely the wrong case. Where the occupant asserts an ownership interest, an ejectment action under Chapter 66 is designed to resolve both title and possession. Winning a possession-only judgment against someone with a title claim can leave you litigating the same property a second time.
Confused about title insurance costs or who typically pays?
Call Kelley, Grant, & Tanis, P.A. at 1-877-871-8300 to make sure your contract protects your position.
How to Negotiate Title Insurance Costs in Competitive Markets
In a buyer’s market, sellers may agree to pay title insurance to encourage offers. In a seller’s market, buyers may offer to absorb the cost to strengthen their bid. The party with stronger leverage—based on supply, demand, or contingencies—usually dictates who pays. Your real estate attorney or agent can help structure the offer to reflect your goals. Clarity up front prevents issues later.
Strategies for negotiation:
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Use local custom as a starting point, not a rule
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Be flexible if other terms of the deal benefit you
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Ask for seller concessions if paying full price
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Consider title company fees as part of total cost
How Much Is Title Insurance in Florida?
Florida title insurance premiums follow a promulgated rate set by the state, meaning pricing is standardized across providers. The rate decreases as the property value increases, which helps buyers of higher-value homes manage costs. While the insurance premium itself is fixed, ancillary title fees are not. These include endorsements, title search charges, and document prep fees. Those can vary significantly between providers.
Typical rates:
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$5.75 per $1,000 up to $100,000
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$5.00 per $1,000 from $100,000 to $1 million
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Discounts may apply for simultaneous lender policies
Can the Buyer and Seller Split the Title Insurance Cost?
Yes, buyers and sellers can agree to share the title insurance cost if both parties are open to compromise. This is more likely when both sides are motivated to close quickly and reduce friction. In some cases, each party pays for a portion of the coverage or agrees to cover different aspects of the closing costs. Sharing expenses helps facilitate deals when neither party wants to shoulder the full burden. However, both sides must agree in writing.
Ways to split include:
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Buyer pays the premium, seller pays ancillary fees
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50/50 division of total cost
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Seller pays up to a set dollar amount
Should You Have a Real Estate Attorney Review the Title Insurance Clause?
Yes, a Florida real estate attorney can help ensure that the title insurance clause is written clearly and favors your interests. They can also identify risks in the contract that non-lawyers may overlook. This is especially helpful in transactions involving vacant land, probate property, or commercial real estate. Attorneys also coordinate with title companies and can spot fee inflation or inappropriate charges. Their involvement often helps prevent disputes and closing delays.
Legal review helps:
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Avoid payment confusion at closing
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Confirm your right to select a title provider
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Flag potential red flags early
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Protect your financial interests during negotiations
At Kelley, Grant, & Tanis, P.A., we help buyers and sellers navigate contract terms with confidence.
Call 1-877-871-8300 to discuss your transaction.
Buyer or Seller Paying for Title Insurance FAQs
Who usually pays for title insurance in Florida real estate deals?
It depends on the county and the terms negotiated in the purchase agreement. In some counties like Miami-Dade, buyers typically pay, while in others like Palm Beach, sellers often cover it. The FAR/BAR contract allows the parties to assign responsibility as they see fit.
Can title insurance costs be split between buyer and seller?
Yes, buyers and sellers can agree to divide the cost of title insurance or split different closing-related fees. This arrangement must be clearly stated in the contract. It’s more common when both parties are looking to close quickly or share expenses.
Why does the county affect who pays for title insurance?
Local customs influence expectations during contract negotiations. For example, sellers usually pay in Palm Beach County, while buyers are expected to pay in Miami-Dade. These norms simplify transactions but are always negotiable.
What if the contract doesn’t say who pays for title insurance?
If the contract doesn’t specify, it may lead to last-minute disputes or closing delays. That’s why agents and attorneys clarify this early in the process. The FAR/BAR contract includes checkboxes for assigning this responsibility.
Who picks the title company in a Florida home sale?
Typically, the party who pays for the title insurance chooses the title company. This decision affects both the cost and timing of the transaction. It’s important to consider both factors when negotiating.
Are there benefits to the buyer choosing the title company?
Yes, buyers can select a title company they trust and potentially reduce third-party fees. However, they must usually agree to cover the owner’s policy. This tradeoff is often worth it for buyers who want more control.
Is title insurance pricing the same everywhere in Florida?
Title insurance premiums are regulated by the state, so the base rate is consistent statewide. However, other fees—like title searches and endorsements—can vary by provider. Comparing quotes for total cost is still worthwhile.
Should sellers agree to pay title insurance in a hot market?
In a strong seller’s market, they may not need to offer that concession. But in a slower market, covering the title policy could help attract buyers. Sellers should weigh this against other financial terms.
Do you need a lawyer to negotiate title insurance terms?
While not required, having a Florida real estate attorney ensures the contract protects your interests. They review closing costs, clarify payment responsibilities, and flag unusual clauses. Legal support helps prevent surprises at the closing table.