Bill Text: FL S0566 | 2018 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Unlawful Detention by a Transient Occupant

Spectrum: Bipartisan Bill

Status: (Passed) 2018-03-26 - Chapter No. 2018-83 [S0566 Detail]

Download: Florida-2018-S0566-Comm_Sub.html

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       Florida Senate - 2018                              CS for SB 566
       
       
        
       By the Committee on Judiciary; and Senator Young
       
       
       
       
       
       590-01988-18                                           2018566c1
    1                        A bill to be entitled                      
    2         An act relating to unlawful detention by a transient
    3         occupant; amending s. 82.045, F.S.; revising factors
    4         that establish a person as a transient occupant of
    5         residential property; specifying circumstances when a
    6         transient occupancy terminates; providing that a
    7         transient occupancy is not extended by the presence of
    8         personal belongings of a former transient occupant;
    9         requiring the party entitled to possession of a
   10         dwelling to allow a former transient occupant to
   11         recover personal belongings at reasonable times and
   12         under reasonable conditions; specifying a reasonable
   13         time to recover personal belongings; authorizing a
   14         party entitled to possession of the dwelling, under
   15         certain circumstances, to impose additional conditions
   16         on access to the dwelling or personal belongings;
   17         providing a presumption of when a former transient
   18         occupant has abandoned his or her personal belongings;
   19         providing circumstances in which the period for
   20         recovering personal belongings may be extended or
   21         shortened; authorizing a former transient occupant,
   22         under certain circumstances, to bring a civil action
   23         for damages or recovery of personal belongings;
   24         requiring a court to award the prevailing party
   25         reasonable attorney fees and costs; providing
   26         construction; providing an effective date.
   27          
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Section 82.045, Florida Statutes, is amended to
   31  read:
   32         82.045 Remedy for unlawful detention by a transient
   33  occupant of residential property; recovery of transient
   34  occupant’s personal belongings.—
   35         (1) As used in this section, the term “transient occupant”
   36  means a person whose residency in a dwelling intended for
   37  residential use has occurred for a brief length of time, is not
   38  pursuant to a lease, and whose occupancy was intended as
   39  transient in nature.
   40         (a) Factors that establish that a person is a transient
   41  occupant include, but are not limited to:
   42         1. The person does not have an ownership interest,
   43  financial interest, or leasehold interest in the property
   44  entitling him or her to occupancy of the property.
   45         2. The person does not have any property utility
   46  subscriptions.
   47         3. The person cannot produce documentation, correspondence,
   48  or identification cards sent or issued by a government agency,
   49  including, but not limited to, the Department of Highway Safety
   50  and Motor Vehicles or the supervisor of elections, which show
   51  that the person used the property address as an address of
   52  record with the agency within the previous 12 months does not
   53  use the property address as an address of record with any
   54  governmental agency, including, but not limited to, the
   55  Department of Highway Safety and Motor Vehicles or the
   56  supervisor of elections.
   57         4. The person does not receive mail at the property.
   58         4.5. The person pays minimal or no rent for his or her stay
   59  at the property.
   60         5.6. The person does not have a designated space of his or
   61  her own, such as a room, at the property.
   62         6.7. The person has minimal, if any, personal belongings at
   63  the property.
   64         7.8. The person has an apparent permanent residence
   65  elsewhere.
   66         (b) Minor contributions made for the purchase of household
   67  goods, or minor contributions towards other household expenses,
   68  do not establish residency.
   69         (2) A transient occupant unlawfully detains a residential
   70  property if the transient occupant remains in occupancy of the
   71  residential property after the party entitled to possession of
   72  the property has directed the transient occupant to leave. A
   73  transient occupancy terminates when a transient occupant begins
   74  to reside elsewhere, surrenders the key to the dwelling, or
   75  agrees to leave the dwelling when directed by a law enforcement
   76  officer in receipt of an affidavit under subsection (3), the
   77  party entitled to possession, or a court. A transient occupancy
   78  is not extended by the presence of personal belongings of a
   79  former transient occupant.
   80         (3) Any law enforcement officer may, upon receipt of a
   81  sworn affidavit of the party entitled to possession that a
   82  person who is a transient occupant is unlawfully detaining
   83  residential property, direct a transient occupant to surrender
   84  possession of residential property. The sworn affidavit must set
   85  forth the facts, including the applicable factors listed in
   86  paragraph (1)(a), which establish that a transient occupant is
   87  unlawfully detaining residential property.
   88         (a) A person who fails to comply with the direction of the
   89  law enforcement officer to surrender possession or occupancy
   90  violates s. 810.08. In any prosecution of a violation of s.
   91  810.08 related to this section, whether the defendant was
   92  properly classified as a transient occupant is not an element of
   93  the offense, the state is not required to prove that the
   94  defendant was in fact a transient occupant, and the defendant’s
   95  status as a permanent resident is not an affirmative defense.
   96         (b) A person wrongfully removed pursuant to this subsection
   97  has a cause of action for wrongful removal against the person
   98  who requested the removal, and may recover injunctive relief and
   99  compensatory damages. However, a wrongfully removed person does
  100  not have a cause of action against the law enforcement officer
  101  or the agency employing the law enforcement officer absent a
  102  showing of bad faith by the law enforcement officer.
  103         (4) A party entitled to possession of a dwelling has a
  104  cause of action for unlawful detainer against a transient
  105  occupant pursuant to s. 82.04. The party entitled to possession
  106  is not required to notify the transient occupant before filing
  107  the action. If the court finds that the defendant is not a
  108  transient occupant but is instead a tenant of residential
  109  property governed by part II of chapter 83, the court may not
  110  dismiss the action without first allowing the plaintiff to give
  111  the transient occupant the notice required by that part and to
  112  thereafter amend the complaint to pursue eviction under that
  113  part.
  114         (5) The party entitled to possession of a dwelling shall
  115  allow a former transient occupant to recover his or her personal
  116  belongings at reasonable times and under reasonable conditions.
  117         (a) Unless otherwise agreed to, a reasonable time for the
  118  recovery of the former transient occupant’s personal belongings
  119  generally means a time period within 10 days after termination
  120  of the transient occupancy, when the party entitled to
  121  possession of the dwelling or a trusted third party can be
  122  present at the dwelling to supervise the recovery of the
  123  belongings.
  124         (b) If the party entitled to possession of the dwelling
  125  reasonably believes that the former transient occupant has
  126  engaged in misconduct or has a history of violence or drug or
  127  alcohol abuse, it is reasonable for the party entitled to
  128  possession of the dwelling to impose additional conditions on
  129  access to the dwelling or the personal belongings. These
  130  conditions may include, but are not limited to, the presence of
  131  a law enforcement officer, the use of a mover registered with
  132  the Department of Agriculture and Consumer Services, or the use
  133  of a trusted third party to recover the personal belongings. For
  134  purposes of this paragraph, misconduct includes, but is not
  135  limited to:
  136         1. Intentional damage to the dwelling, to property owned by
  137  the party entitled to possession of the dwelling, or to property
  138  owned by another occupant of the dwelling;
  139         2. Physical or verbal abuse directed at the party entitled
  140  to possession of the dwelling or another occupant of the
  141  dwelling; or
  142         3. Theft of property belonging to the party entitled to
  143  possession of the dwelling or property of another occupant of
  144  the dwelling.
  145         (c) The person entitled to possession of a dwelling may
  146  presume that the former transient occupant has abandoned
  147  personal belongings left at the dwelling if the former transient
  148  occupant does not seek to recover them within a reasonable time
  149  after the transient occupant surrenders occupancy of the
  150  dwelling. The time period to recover personal belongings may be
  151  extended due to the unavailability of the party entitled to
  152  possession of the dwelling to supervise the recovery of the
  153  personal belongings. Circumstances that may shorten the time
  154  include, but are not limited to, the poor condition of or the
  155  perishable or hazardous nature of the personal belongings, the
  156  intent of the former transient occupant to abandon or discard
  157  the belongings, or the significant impairment of the use of the
  158  dwelling by the storage of the former transient occupant’s
  159  personal belongings.
  160         (d) If the person entitled to possession of the dwelling
  161  unreasonably withholds access to a former transient occupant’s
  162  personal belongings, the former transient occupant may bring a
  163  civil action for damages or the recovery of the property. The
  164  court shall award the prevailing party reasonable attorney fees
  165  and costs.
  166         (6) This section shall be construed in recognition of the
  167  right to exclude others as one of the most essential components
  168  of property rights.
  169         Section 2. This act shall take effect July 1, 2018.