INTRODUCTION
Ejectments and evictions are legal actions for possession of property. In a typical landlord and tenant case there is a landlord and a tenant. In cases, however, where the owner is not the landlord, or the occupant is not a tenant, or both, the correct cause of action may be an ejectment. Ejectments are not landlord and tenant cases; ejectments are property law cases. Evictions and Ejectments are distinct legal actions that implicate different legal issues and elements of law.
In the following we will discuss the difference between ejectment and eviction, and the crucial importance of not getting either confused.
EVICTION
An eviction is a removal by a landlord of a tenant from rental property through legal process. It is different from what is called an “actual eviction,” a physical expulsion of the tenant by the landlord or its agent. In Florida, the later is considered “self-help” and is illegal. See Fla. Stat § 83.67. You cannot, so to speak, take the law into your own hands. Removing a tenant from a property requires a court order. And the actual removal must be performed by the sheriff’s office pursuant to a court-ordered writ of possession.
To pursue an eviction, the landlord must prove there is a landlord and tenant relationship. This is easy if there is a written and signed contract. If there is no written and signed agreement, a court may still find a landlord and tenant relationship. The court would generally consider whether rent has been paid at regular intervals, such as weekly, monthly, yearly, along with considering other indicia (factors) of a landlord and tenant relationship. If such a relationship does exist, the landlord would be allowed to pursue an eviction under Florida Statutes chapter 83. That is, upon proper grounds and according to the proper statutory procedure. Id.
EJECTMENT
An ejectment is a legal action used to contest the right of title to or possession of real property. In other words, for the court to determine the owner(s) of the real property and whether the owner has been wrongfully dispossessed of their property. If there is no landlord and tenant relationship, as defined by Florida law, and the owner of real property wants to remove an occupant of the property, the proper legal remedy is probably an ejectment under Fla. Stat. § 66.
Unlike an eviction action, which in Florida is usually filed in the local county court (see Fla. Stat. § 34.011), an ejectment action must be filed in the jurisdiction’s circuit court (Fla. Stat. § 66.021). If the owner files a “well-plead” complaint, for the defendant to defeat the claim the defendant must prove that they have either an ownership interest or an ongoing right of possession of the property.
NOT CONFUSING EVICTION AND EJECTMENT
The distinction between an eviction and ejectment may be confusing, but it is important. If the party pursuing possession files a lawsuit based on the wrong cause of action, their case will probably be dismissed. While most disputes are resolved without the need for litigation, when a dispute does arise, confusion about the legal issues or legal relationship, about the respective parties’ rights, duties, or obligations, makes it difficult for the parties to arrive at a mutual understanding or agreement. This tends to lead to costly mistakes and costly litigation, which might otherwise be unnecessary.
CONCLUSION
Whether you are contemplating a landlord and tenant or real property agreement, it is important to clearly outline each party’s legal relationship and their respective obligations in the form of a well-written and properly executed contract. Legal pitfalls are most likely avoided by hiring an attorney to advise you as your legal rights and potential issues, and to draft the necessary documents to best protect your interests. Either way, whether your are contemplating an agreement or confronted with a legal dispute, your interests are best served by consulting or hiring an eviction attorney.
Last updated March 14, 2023.
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BRESS LAW FIRM, PLLC. Estate Planning (Wills, Trusts, & Estates), Business Law, and Landlord Tenant Law. The Bress Law Firm is the sole practice of Michael N. Bress, Attorney at Law. We are located at 2980 NE 207th St. #300, Aventura FL, 33180, but serve clients throughout Miami-Dade and Broward. Appointments are by appointment only. To Schedule a Free Legal Consultation, contact the Bress Law Firm by phone 954-336-8049, email michael@bresslaw.com, contact form, or visit www.bresslaw.com.
