THE WRIT OF POSSESSION – WHAT IT IS
What is a Writ of Possession? -- The Writ of Possession, hereinafter “Writ”, is an order by the court telling the sheriff to remove all persons from the premises. Once the judge signs the Final Judgment of Eviction, your attorney submits the Writ to the Clerk of Court and the clerk “issues” the Writ. Once issued, the Writ is taken to the Sheriff’s department civil division, a fee of $90.00 (most counties) is paid, and the sheriff’s clerk in the civil division processes the Writ into their computer system and it is given to a sheriff’s deputy to “serve”. The deputy then takes the Writ, along with many others he or she has to serve that day, and either hands it to the resident if the resident answers the door or tapes it to the door if no one is home or the resident fails to answer the door.
NOTE: This article assumes that you have been granted a Final Judgment of Eviction and have instructed your attorney to get a Writ
What it does-- The Writ will give the resident a date and time to get out of the premises, usually 24-48 hours from the day that the Writ is served. The Writ gives the deputy the authority to remove persons from a rental dwelling. The deputy will usually give the property manager a phone call advising the property manager that the Writ has been served and the date and time of execution.
Why does the deputy call the property manager? – The deputy calls the property manager for two reasons. One is to let the property manager know the date and time to meet the deputy and the other is to see if the property manager wants or “needs” the deputy to meet the property manager at the premises.
The big trick – While you may think that the deputy is just being helpful when he or she asks you if the resident is still there and if it is necessary to come back out to execute the Writ, be careful of the question, the deputy may really be trying to avoid having to execute the Writ. The deputy has a lot to do each day and a canceled writ means more time is freed up for those other tasks. Don’t be tempted to cancel the Writ! Once the sheriff’s department receives your Writ, the $90.00 check is processed. You have paid for the complete service so why not get the complete service? You should always follow through and have the deputy execute the Writ even if you think that the resident has vacated the premises.
Suppose the resident does not move after being served? – The sheriff comes out to the property at the designated date and time and “Executes” the Writ, at which time the resident is told (or forced, if necessary) to vacate the premises. If the resident refuses to vacate, the sheriff will physically remove the resident, and the resident may be subject to arrest if he or she fails to vacate.
Procedure when executing the Writ – When the Writ is executed, the property manager needs to be prepared to change the locks on the premises, secure the premises, and, remove all items left in the premises to the property line. The property manager needs to be ready to complete the job and have helpers if necessary to remove the items from the premises. Florida law states that the property can be removed at the time the Writ is executed or at any time thereafter. We highly recommend the former. Get EVERYTHING out of the unit immediately and to the property line. Holding the property until a later time is just asking for trouble.
What can happen if you do not immediately remove the property? The resident may attempt to break in later to get the property causing significant damage, or, the resident can allege you made some sort of deal with them to hold the property until they were able to retrieve the property.
The belligerent or threatening resident – Florida law allows you to DEMAND that the deputy stands by while you are removing the property or securing the premises. If you feel threatened in any way or think that the resident may suddenly appear while you are removing the items to the curb, ask the deputy to stay. By law, the sheriff’s department can charge you but your safety is worth it!
THE MOST COMMON WRIT MISTAKES–
Failure to have the deputy execute the Writ – When you tell the deputy that the resident has vacated, the deputy will write on the paperwork “unexecuted per manager”. This means that your eviction was never completed, you are in danger of the resident coming back and moving right back in, and you are in danger of being held responsible for the resident’s personal property, or, worse yet, what the resident “claims” was the personal property left in the rental unit.
Failure to meet the deputy when the Writ is executed – If you don’t show up to meet the deputy, the Writ is “unexecuted”. The deputy will not do anything without you being present. Your attorney will have to file a motion for an Alias Writ and this can cost you time.
Meeting the deputy and making an agreement with the resident – Property managers often feel sorry for the resident and agree with the resident and the deputy to hold off on the Writ for a day, or for a fixed number of hours. The deputy will usually go along with this and accommodate the wishes of the parties if the property manager agrees. The LAST thing you should be doing is trying to accommodate a resident at this stage of the eviction. We have seen the resident run out and file bankruptcy and derail the entire process. We have also seen cases where the property manager tells the resident that they can come back the next day to retrieve the personal belongings. The resident fails to show up and the property manager disposes of all the property. The resident then shows up and claims that an agreement or extension was made with someone in your office by phone. This can have disastrous and unintended consequences and now you can end up in court in a “he said” “she said” situation.
Failure to have sufficient staff to remove the property from the unit - There is really no good excuse for this. You know when the Writ will be executed and need to be prepared for dealing with a full unit or an empty unit.
Failure to remove the property from the premises - If the eviction is completed and the residents have been evicted from the premises, Florida law does not require you to treat the property left behind in any special way and you can and should dispose of all abandoned property when executing the Writ. You must complete the eviction and meet the deputy at the premises to be allowed to remove the items to the property line without any liability. Too many times, we see property managers shortchanging themselves by failing to completely execute the Writ when there is abandoned property. This is quite unfortunate as the execution process directly relates to the abandoned property. You will have no liability to the resident or any occupants, known or unknown, for the disposition of the abandoned property if you execute the Writ and the eviction was proper. It is rare that the resident will return and try to claim that they left items behind, but there always it this possibility. There is also the possibility that the unknown person appears, claiming items. Since the completion of the eviction relates directly to the disposition of the abandoned property, it is imperative that you execute the writ if you wish to be safe.
Now, some final words on the Writ
Do you always need to follow through and execute the Writ?
1. ALL residents have vacated, given you the keys and the premises are completely empty – Probably no Writ is necessary
2. ONE resident has given you the keys, the premises are completely empty – Executing the Writ may be a good idea
3. Property is left in the premises – Execute the Writ
4. You have had no contact with the resident – Execute the Writ
Conclusion: The money you spend on the Writ is nothing compared to the liability and problems you may have for not executing the Writ. If a WRIT OF POSSESSION HAS BEEN SERVED, EXECUTE IT.
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW