RESIDENT OR SQUATTER

 

Your resident moves out, and you decide to check out the condition of the property. “Robert” answers the door eating a ham sandwich and says he is living there with the permission of the former resident. Surprised and angry, you call the police, and they respond, “It is a civil matter, you will need to evict the person.” But wait! Isn’t this person a trespasser or squatter? A typical manager would make the assumption that this individual is not a resident but rather an illegal trespasser or squatter on the premises, and in many cases the manager would be correct. The problem is that law enforcement does not look at this the same way, as well as possibly Florida law.

Is this Person an Unauthorized Occupant?

Often the person who remains behind after the resident has vacated the premises will claim that she is there with the permission of the resident. This unsubstantiated claim alone transforms the individual into an unauthorized occupant (unauthorized by you), rather than a squatter or a trespasser, and this prevents law enforcement from using their powers to remove the individual. Law enforcement officers are often called upon by managers to assist in removing people from rental property, and they are extremely cautious that they are not being used by the manager to effectuate an “eviction” of a resident who has a right to be on the premises until legally evicted from the premises. In most cases, law enforcement will inform the manager that the problem is a “civil matter”, i.e. you need to call your attorney, serve the proper notices and begin the eviction process. While this may seem absurd to the manager who has never seen the individual occupying the premises, had no contact with this person and never received any rent from this person, unfortunately an eviction will be necessary.

Will Law Enforcement Ever Take Action?

If pressed hard enough, law enforcement may cooperate with the manager, if the manager is insistent that the person is in fact a trespasser or squatter, and the evidence does point to this fact. The manager needs to be clear with law enforcement that they have no idea who this person is, and they feel that this person has broken into the unit or entered the unit after the prior resident has vacated. Law enforcement may question the individual and sometimes get an admission from the individual that she indeed does not have a key to the premises and should not be in the unit. In limited situations, law enforcement will then trespass the person and assist you in removing this trespasser from the property. In some cases, people do enter vacant units and camp out until law enforcement involvement. A good relationship with law enforcement and a concerned officer will often aid in assisting the manager in removing a true trespasser who does not have any permission from the prior resident to be in the unit. When calling law enforcement, the manager needs to be clear that the person is a trespasser if they will get law enforcement to even remotely consider any involvement. Any statement by the individual that she is in there with permission will stop the process and force the manager to begin eviction. If a manager removes a person from the unit either by himself, uses law enforcement, changes the locks, removes the doors, shuts off utilities or does anything to make this person leave, and this person can then prove in court that she had possession with permission, the manager will be faced with being sued for an unlawful or wrongful eviction and/or prohibited practice(s).

The Individual Fails to Move and Law Enforcement Does Nothing

If the manager in unsuccessful with law enforcement, the manager now needs to serve a Seven Day Notice of Noncompliance With Opportunity to Cure to the prior resident by posting the notice on the door of the unit. The notice will state “You have an unauthorized occupant residing on the premises in violation of the terms of your lease agreement”. The manager needs to act as if the prior resident is still in the unit, even though most likely the prior resident will never get the notice. If the manager has any way to get in touch with the prior resident, all efforts should be made to do this, as it is possible that the prior resident does not even know that his friend or relative is still in the unit, and if faced with a legal action may get this person out for you. If after seven days the person or persons are still in the unit, a Seven Day Notice of Termination needs to be served. After seven days, an eviction can be filed.

Suppose the Manager Takes Rent From the Individual?

If the manager accepts any rent from the individual, they will have created an even greater problem, as they will have potentially established a manager/resident relationship with the person minus any written documents such as a lease. No matter how desperate a manager may be for the money, taking rent from the individual can be a fatal mistake.

Will the Manager Succeed in Eviction?

In most of these eviction cases, the “squatter” or “trespasser” will not fight the eviction. We have seen cases where the individual will fight the eviction, claiming that they paid rent to the prior resident, and that the prior resident failed to pay the manager. This is rare, and the manager can have a fair amount of certainty that they will prevail in the eviction action. The key is making sure that the manager resists all urges for self-help, as this can completely derail an eviction action and create a major legal problem.