The legislation allows law enforcement officers to exercise the immediate removal, even arrest, of unauthorized occupants, without a court process, pertaining that the property owner has filed a verified complaint.
Supporters of the measure said this enhances the most important concept behind property rights: the right to tell someone when to leave your home or keep them from entering your home. One of the most commonly proposed applications of this new law relates to properties that are lived in for just a part of the year, thus remaining empty for months at a time.
But it could have other consequences
But some attorneys have expressed concern over the potential application of the law to what are known under Florida law as “transient occupants.” These are defined as any individual whose residency was meant to be brief, or transient, and oftentimes doesn’t count on an official lease. Meaning, these are residents that have been making rent payments but may not have a lease agreement or receipts to show for it.
Morgan Cardinal is the director of advocacy with the local Community Legal Services organization. The firm states online they provide “no-cost legal services to the most vulnerable in Central Florida.”
She said there is a chance some landlords might use the law against paying tenants who may lack proper lease agreements.
“It would certainly take a certain kind of landlord to use this law in that way, but there are some gaps, some loopholes in this law that would potentially leave that opening for landlords to use that as a sort of remedy to avoid the eviction process,” Cardinal said.
Who counts as a transient occupant?
According to Cardinal, her office does encounter a lot of tenants who don't have formal leases. But there are also instances where tenants are lawfully in possession of a property without a lease.. For example, when a lease runs its course, and the landlord agrees to accept payments on a month-to-month basis.
Another common scenario is when individuals informally rent space from someone they know – either a small unit or maybe a bedroom inside a home – meant to serve as a temporary living arrangement that would eventually lead to more permanent housing.
However, Cardinal said, she believes that the current housing unaffordability crisis could be contributing to dilemmas in these cases – causing tenants to stay longer, unable to pay the costs of transition required for more formal, long term residency elsewhere.
“I certainly think that the affordability of housing plays a large part,” she said. “And so, you start renting from private individuals, but they don’t always document or include traditional lease agreements because these are things that the average layperson is working out because of the lack of affordability.”
Paying tenants have some protections
Cardinal said that while it’s possible that, in some cases, landlords could fall on the wrong end of tenant protections, if a paying tenant feels that using this law against them is a wrongful accusation, they can claim some protections under Florida law.
“If it is truly a transient unauthorized occupant, there are trespass and ejectment processes under the law to have that person removed. But if somebody is a tenant who is paying rent in a certain interval, then Chapter 83 protections provide for lawful eviction of that person – which requires the filing of a formal complaint, proving that this person has either overstayed the duration of their tenancy, or is in somehow violation or default under that contract, and then a court order removing them from the property,” Cardinal said.
The new law includes criminal penalties for unauthorized occupants, including misdemeanor charges for providing false documentation “purporting to be a valid lease agreement, deed, or other instrument conveying real property rights” and fines for damages caused.
Cardinal recommended that tenants in this position keep some sort of record – whether it be an informal agreement via email, some paper trail of payments made, and photos of the property’s condition upon move-in.
Individuals in need of legal counsel can find resources in their community, such as CLS, to explore their options.
