Bill Text: FL S0804 | 2018 | Regular Session | Introduced

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

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Bill Title: Possession of Real Property

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2018-03-05 - Laid on Table, refer to CS/HB 631 [S0804 Detail]

Download: Florida-2018-S0804-Introduced.html

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       Florida Senate - 2018                                     SB 804
       
       
        
       By Senator Passidomo
       
       
       
       
       
       28-00413A-18                                           2018804__
    1                        A bill to be entitled                      
    2         An act relating to the possession of real property;
    3         amending s. 66.021. F.S.; authorizing a person with a
    4         superior right to possession of real property to
    5         recover possession by ejectment; declaring that
    6         circuit courts have exclusive jurisdiction; providing
    7         that a plaintiff is not required to provide any
    8         presuit notice or demand to a defendant; requiring
    9         that copies of instruments be attached to a complaint
   10         or answer under certain circumstances; requiring a
   11         statement to list certain details; providing for
   12         construction; amending s. 82.01, F.S.; redefining the
   13         terms “unlawful entry” and “forcible entry”; defining
   14         the terms “real property,” “record titleholder,” and
   15         “unlawful detention”; amending s. 82.02, F.S.;
   16         exempting possession of real property under part II of
   17         ch. 83, F.S., and under chs. 513 and 723, F.S.;
   18         amending s. 82.03, F.S.; providing that a person
   19         entitled to possession of real property has a cause of
   20         action to regain possession from another person who
   21         obtained possession of real property by forcible
   22         entry, unlawful entry, or unlawful detainer; providing
   23         that a person entitled to possession is not required
   24         to give a defendant presuit notice; requiring the
   25         court to award plaintiff extra damages if a defendant
   26         acted in a willful and knowingly wrongful manner;
   27         authorizing bifurcation of actions for possession and
   28         damages; requiring that an action be brought by
   29         summary procedure; requiring the court to advance the
   30         cause on the calendar; renumbering and amending s.
   31         82.045, F.S.; conforming provisions to changes made by
   32         the act; amending s. 82.04, F.S.; requiring that the
   33         court determine the right of possession and damages;
   34         prohibiting the court from determining question of
   35         title unless necessary; amending s. 82.05, F.S.;
   36         requiring that the summons and complaint be attached
   37         to the real property after two unsuccessful attempts
   38         to serve a defendant; requiring a plaintiff to provide
   39         the clerk of the court with prestamped envelopes and
   40         additional copies of the summons and complaint if the
   41         defendant is served by attaching the summons and
   42         complaint to the real property; requiring the clerk to
   43         immediately mail copies of the summons and complaint
   44         and note the fact of mailing in the docket; specifying
   45         that service is effective on the date of posting or
   46         mailing; requiring that 5 days elapse from the date of
   47         service before the entry of a judgment; amending s.
   48         82.091, F.S.; providing requirements after a judgment
   49         is entered for the plaintiff or the defendant;
   50         amending s. 82.101, F.S.; adding quiet title to the
   51         types of future actions for which a judgment is not
   52         conclusive as to certain facts; providing that the
   53         judgment may be superseded by a subsequent judgment;
   54         creating s. 704.09, F.S.; requiring that a claim of
   55         customary use for the public use of private property
   56         be applied to a particular parcel; providing for
   57         judicial determination of claims; repealing s. 82.061,
   58         F.S., relating to service of process; repealing s.
   59         82.071, F.S., relating to evidence at trial as to
   60         damages; repealing s. 82.081, F.S., relating to trial
   61         verdict forms; providing an effective date.
   62          
   63  Be It Enacted by the Legislature of the State of Florida:
   64  
   65         Section 1. Section 66.021, Florida Statutes, is amended to
   66  read:
   67         66.021 Ejectment Procedure.—
   68         (1) RIGHT OF ACTION.—A person with a superior right to
   69  possession of real property may maintain an action of ejectment
   70  to recover possession of the property.
   71         (2) JURISDICTION.—Circuit courts have exclusive
   72  jurisdiction in an action of ejectment.
   73         (3) NOTICE.—A plaintiff may not be required to provide any
   74  presuit notice or presuit demand to a defendant as a condition
   75  to maintaining an action under this section.
   76         (4)(1) LANDLORD NOT A DEFENDANT.—When it appears before
   77  trial that a defendant in an action of ejectment is in
   78  possession as a tenant and that his or her landlord is not a
   79  party, the landlord must shall be made a party before further
   80  proceeding unless otherwise ordered by the court.
   81         (5)(2) DEFENSE MAY BE LIMITED.—A defendant in an action of
   82  ejectment may limit his or her defense to a part of the property
   83  mentioned in the complaint, describing such part with reasonable
   84  certainty.
   85         (6)(3) WRIT OF POSSESSION; EXECUTION TO BE JOINT OR
   86  SEVERAL.—When plaintiff recovers in an action of ejectment, he
   87  or she may have one writ for possession and for, damages and
   88  costs or, at his or her election if the plaintiff elects, may
   89  have separate writs for possession and for damages and costs.
   90         (7)(4) CHAIN OF TITLE.—The Plaintiff with his or her
   91  complaint and the defendant with his or her answer must include
   92  shall serve a statement setting forth, chronologically, the
   93  chain of title upon which the party on which he or she will rely
   94  at trial. Copies of each instrument identified in the statement
   95  must be attached to the complaint or answer. If any part of the
   96  chain of title is recorded, The statement must include shall set
   97  forth the names of the grantors and the grantees, the date that
   98  each instrument was recorded, and the book and page or the
   99  instrument number for each recorded instrument of the record
  100  thereof; if an unrecorded instrument is relied on, a copy shall
  101  be attached. The court may require the original to be submitted
  102  to the opposite party for inspection. If a the party relies on a
  103  claim or right without color of title, the statement must shall
  104  specify how and when the claim originated and the facts on which
  105  the claim is based. If defendant and plaintiff claim under a
  106  common source, the statement need not deraign title before the
  107  common source.
  108         (8)(5) TESTING SUFFICIENCY.—If either party seeks wants to
  109  test the legal sufficiency of any instrument or court proceeding
  110  in the chain of title of the opposite party, the party must
  111  shall do so before trial by motion setting up his or her
  112  objections with a copy of the instrument or court proceedings
  113  attached. The motion must shall be disposed of before trial. If
  114  either party determines that he or she will be unable to
  115  maintain his or her claim by reason of the order, that party may
  116  so state in the record and final judgment shall be entered for
  117  the opposing opposite party.
  118         (9) OPERATION.—This section is cumulative to other existing
  119  remedies and may not be construed to limit other remedies that
  120  are available under the laws of this state.
  121         Section 2. Section 82.01, Florida Statutes, is amended to
  122  read:
  123         82.01 Definitions “Unlawful entry and forcible entry”
  124  defined.—As used in this chapter, the term:
  125         (1) “Forcible entry” means entering into and taking
  126  possession of real property with force, in a manner that is not
  127  peaceable, easy, or open, even if such entry is authorized by a
  128  person entitled to possession of the real property and the
  129  possession is only temporary or applies only to a portion of the
  130  real property.
  131         (2) “Real property” means land or any existing permanent or
  132  temporary building or structure thereon, and any attachments
  133  generally held out for the use of persons in possession of the
  134  real property.
  135         (3) “Record titleholder” means a person who holds title to
  136  real property as evidenced by an instrument recorded in the
  137  public records of the county in which the real property is
  138  located.
  139         (4) “Unlawful detention” means possessing real property,
  140  even if the possession is temporary or applies only to a portion
  141  of the real property, without the consent of a person entitled
  142  to possession of the real property or after the withdrawal of
  143  consent by such person.
  144         (5) “Unlawful entry” means the entry into and possessing of
  145  real property, even if the possession is temporary or for a
  146  portion of the real property, when such entry is not authorized
  147  by law or consented to by a person entitled to possession of the
  148  real property No person shall enter into any lands or tenements
  149  except when entry is given by law, nor shall any person, when
  150  entry is given by law, enter with strong hand or with multitude
  151  of people, but only in a peaceable, easy and open manner.
  152         Section 3. Section 82.02, Florida Statutes, is amended to
  153  read:
  154         82.02 Applicability “Unlawful entry and unlawful detention”
  155  defined.—
  156         (1) This chapter does not apply to residential tenancies
  157  under part II of chapter 83 No person who enters without consent
  158  in a peaceable, easy and open manner into any lands or tenements
  159  shall hold them afterwards against the consent of the party
  160  entitled to possession.
  161         (2) This chapter does not apply to the possession of real
  162  property under chapter 513 or chapter 723 This section shall not
  163  apply with regard to residential tenancies.
  164         Section 4. Section 82.03, Florida Statutes, is amended to
  165  read:
  166         82.03 Remedies Remedy for unlawful entry and forcible
  167  entry.—
  168         (1) A person entitled to possession of real property,
  169  including constructive possession by a record titleholder, has a
  170  cause of action against a person who obtained possession of that
  171  real property by forcible entry, unlawful entry, or unlawful
  172  detention and may recover possession and damages. The person
  173  entitled to possession is not required to notify the prospective
  174  defendant before filing the action.
  175         (2) If the court finds that the entry or detention by the
  176  defendant is willful and knowingly wrongful, the court must
  177  award the plaintiff damages equal to double the reasonable
  178  rental value of the real property from the beginning of the
  179  forcible entry, unlawful entry, or unlawful detention until
  180  possession is delivered to the plaintiff. The plaintiff may also
  181  recover other damages, including, but not limited to, damages
  182  for waste.
  183         (3) Actions for possession and damages may be bifurcated.
  184         (4) All actions under this chapter must be brought by
  185  summary procedure as provided in s. 51.011, and the court shall
  186  advance the cause on the calendar If any person enters or has
  187  entered into lands or tenements when entry is not given by law,
  188  or if any person enters or has entered into any lands or
  189  tenements with strong hand or with multitude of people, even
  190  when entry is given by law, the party turned out or deprived of
  191  possession by the unlawful or forcible entry, by whatever right
  192  or title the party held possession, or whatever estate the party
  193  held or claimed in the lands or tenements of which he or she was
  194  so dispossessed, is entitled to the summary procedure under s.
  195  51.011 within 3 years thereafter.
  196         Section 5. Section 82.045, Florida Statutes, is
  197  redesignated as section 82.035, Florida Statutes, and amended to
  198  read:
  199         82.035 82.045 Remedy for unlawful detention by a transient
  200  occupant of residential property.—
  201         (1) As used in this section, the term “transient occupant”
  202  means a person whose residency in real property a dwelling
  203  intended for residential use has occurred for a brief length of
  204  time, is not pursuant to a lease, and whose occupancy was
  205  intended as transient in nature.
  206         (a) Factors that establish that a person is a transient
  207  occupant include, but are not limited to:
  208         1. The person does not have an ownership interest,
  209  financial interest, or leasehold interest in the property
  210  entitling him or her to occupancy of the property.
  211         2. The person does not have any property utility
  212  subscriptions.
  213         3. The person does not use the property address as an
  214  address of record with any governmental agency, including, but
  215  not limited to, the Department of Highway Safety and Motor
  216  Vehicles or the supervisor of elections.
  217         4. The person does not receive mail at the property.
  218         5. The person pays minimal or no rent for his or her stay
  219  at the property.
  220         6. The person does not have a designated space of his or
  221  her own, such as a room, at the property.
  222         7. The person has minimal, if any, personal belongings at
  223  the property.
  224         8. The person has an apparent permanent residence
  225  elsewhere.
  226         (b) Minor contributions made for the purchase of household
  227  goods, or minor contributions towards other household expenses,
  228  do not establish residency.
  229         (2) A transient occupant unlawfully detains a residential
  230  property if the transient occupant remains in occupancy of the
  231  residential property after the party entitled to possession of
  232  the property has directed the transient occupant to leave.
  233         (3) Any law enforcement officer may, upon receipt of a
  234  sworn affidavit of the party entitled to possession that a
  235  person who is a transient occupant is unlawfully detaining
  236  residential property, direct a transient occupant to surrender
  237  possession of residential property. The sworn affidavit must set
  238  forth the facts, including the applicable factors listed in
  239  paragraph (1)(a), which establish that a transient occupant is
  240  unlawfully detaining residential property.
  241         (a) A person who fails to comply with the direction of the
  242  law enforcement officer to surrender possession or occupancy
  243  violates s. 810.08. In any prosecution of a violation of s.
  244  810.08 related to this section, whether the defendant was
  245  properly classified as a transient occupant is not an element of
  246  the offense, the state is not required to prove that the
  247  defendant was in fact a transient occupant, and the defendant’s
  248  status as a permanent resident is not an affirmative defense.
  249         (b) A person wrongfully removed pursuant to this subsection
  250  has a cause of action for wrongful removal against the person
  251  who requested the removal, and may recover injunctive relief and
  252  compensatory damages. However, a wrongfully removed person does
  253  not have a cause of action against the law enforcement officer
  254  or the agency employing the law enforcement officer absent a
  255  showing of bad faith by the law enforcement officer.
  256         (4) A party entitled to possession of real property a
  257  dwelling has a cause of action for unlawful detainer against a
  258  transient occupant pursuant to s. 82.03 s. 82.04. The party
  259  entitled to possession is not required to notify the transient
  260  occupant before filing the action. If the court finds that the
  261  defendant is not a transient occupant but is instead a tenant of
  262  residential property governed by part II of chapter 83, the
  263  court may not dismiss the action without first allowing the
  264  plaintiff to give the transient occupant the notice required by
  265  that part and to thereafter amend the complaint to pursue
  266  eviction under that part.
  267         Section 6. Section 82.04, Florida Statutes, is amended to
  268  read:
  269         82.04 Questions involved in this proceeding Remedy for
  270  unlawful detention.—The court shall determine only the right of
  271  possession and any damages. Unless it is necessary to determine
  272  the right of possession or the record titleholder, the court may
  273  not determine the question of title.
  274         (1) If any person enters or has entered in a peaceable
  275  manner into any lands or tenements when the entry is lawful and
  276  after the expiration of the person’s right continues to hold
  277  them against the consent of the party entitled to possession,
  278  the party so entitled to possession is entitled to the summary
  279  procedure under s. 51.011, at any time within 3 years after the
  280  possession has been withheld from the party against his or her
  281  consent.
  282         (2) This section shall not apply with regard to residential
  283  tenancies.
  284         Section 7. Section 82.05, Florida Statutes, is amended to
  285  read:
  286         82.05 Service of process Questions involved in this
  287  proceeding.—
  288         (1) After at least two attempts to obtain service as
  289  provided by law, if the defendant cannot be found in the county
  290  in which the action is pending and either the defendant does not
  291  have a usual place of abode in the county or there is no person
  292  15 years of age or older residing at the defendant’s usual place
  293  of abode in the county, the sheriff must serve the summons and
  294  complaint by attaching it to some conspicuous part of the real
  295  property involved in the proceeding. The minimum amount of time
  296  allowed between the two attempts to obtain service is 6 hours.
  297         (2) If a plaintiff causes, or anticipates causing, a
  298  defendant to be served with a summons and complaint solely by
  299  attaching them to some conspicuous part of real property
  300  involved in the proceeding, the plaintiff must provide the clerk
  301  of the court with two additional copies of the summons and the
  302  complaint and two prestamped envelopes addressed to the
  303  defendant. One envelope must be addressed to the defendant’s
  304  residence, if known. The second envelope must be addressed to
  305  the defendant’s last known business address, if known. The clerk
  306  of the court shall immediately mail the copies of the summons
  307  and complaint by first-class mail, note the fact of mailing in
  308  the docket, and file a certificate in the court file of the fact
  309  and date of mailing. Service is effective on the date of posting
  310  or mailing, whichever occurs later, and at least 5 days must
  311  have elapsed after the date of service before a final judgment
  312  for removal of the defendant may be entered No question of
  313  title, but only right of possession and damages, is involved in
  314  the action.
  315         Section 8. Section 82.091, Florida Statutes, is amended to
  316  read:
  317         82.091 Judgment and execution.—
  318         (1) If the court enters a judgment for the plaintiff, the
  319  verdict is in favor of plaintiff, the court shall enter judgment
  320  that plaintiff shall recover possession of the real property
  321  that he or she is entitled to and described in the complaint
  322  with his or her damages and costs. The court, and shall award a
  323  writ of possession to be executed without delay and execution
  324  for the plaintiff’s damages and costs.
  325         (2) If the court enters a judgment for the defendant, the
  326  court shall verdict is for defendant, the court shall enter
  327  judgment against plaintiff dismissing the complaint and order
  328  that the defendant recover costs.
  329         Section 9. Section 82.101, Florida Statutes, is amended to
  330  read:
  331         82.101 Effect of judgment.—No judgment rendered either for
  332  the plaintiff or the defendant bars any action of trespass for
  333  injury to the real property or ejectment between the same
  334  parties respecting the same real property. A judgment is not
  335  conclusive as to No verdict is conclusive of the facts therein
  336  found in any future action for of trespass, ejectment, or quiet
  337  title. A judgment rendered either for the plaintiff or the
  338  defendant pursuant to this chapter may be superseded, in whole
  339  or in part, by a subsequent judgment in an action for trespass
  340  for injury to the real property, ejectment, or quiet title
  341  involving the same parties with respect to the same real
  342  property or ejectment.
  343         Section 10. Section 704.09, Florida Statutes, is created to
  344  read:
  345         704.09 Judicial determination; customary use.—A common law
  346  claim of customary use for the public use of private property
  347  must apply to a particular parcel and must be determined by the
  348  court.
  349         Section 11. Section 82.061, Florida Statutes, is repealed.
  350         Section 12. Section 82.071, Florida Statutes, is repealed.
  351         Section 13. Section 82.081, Florida Statutes, is repealed.
  352         Section 14. This act shall take effect July 1, 2018.