Can Landlord without court action enter the premises by force and expel the tenant?

[filoxenos]

I have a commercial month to month lease for a small office that includes electricity & amenities such as photocopying, fax, conference room, etc. The lease contains the following clause.
"In the event that the rent specified herein is not paid when due, Landlord shall have the option to terminate this lease, in which event Tenant shall immediately surrender the leased Premises to Landlord. But if Tenant shall fail to do so, Landlord may enter upon the leased Premises and expel or remove Tenant and its effects, by force, if necessary, without being liable to prosecution or any claim for damages."
(also, a 3-day notice is not mentioned anywhere on the lease)
A lawyer told me that unless the Tenant surrenders or abandons the premises, the Landlord can only get possession by court action such as an eviction lawsuit. The lawyer also told me that the above clause is considered unconscionable (that is illegal) and unenforceable.
The Landlord may proceed as follows:
1. Despite the above clause, the Landlord proceeds legally by serving a 3-day notice, follow-up with an eviction law suit, obtain a court order for eviction, and call the police to execute the order. (the legal way)
2. Execute the above lease clause using his own way to remove the Tenant (illegal method 1)
3. Call the police, show them the lease, and ask the police to execute the lease clause and remove the tenant. (illegal method 2)
If the Landlord uses illegal method-1 and attempts to expel the Tenant by force, can the Tenant call the police to intervene and tell the police that the Landlord does not have a court order? How can the Tenant convince the police? What if the policeman has no experience and believes that the lease clause is legal?

If the Landlord uses illegal method-2 and attempts to expel the Tenant by calling the police and asks the police to execute the above lease clause. How can the Tenant convince the police that the lease clause is unenforceable? What if the policeman has no experience and believes he/she has to execute the lease clause?

[Unregistered]

RIGHTS AND DUTIES OF TENANTS
When a person pays rent to live in a house, apartment, condominium or mobile home, the renter becomes a tenant governed by Florida law. It doesn’t matter whether payment is made weekly, monthly or at other regular periods. Also, it doesn’t matter whether the apartment, house, condominium or mobile home is rented from a private person, a corporation or most governmental units. These facts are true even when there is no written “lease” agreement.

A tenant has certain rights and responsibilities under Florida law. These are specified in the Florida Statutes at Part II, Chapter 83, the Florida Residential Landlord Tenant Act. A tenant in federally subsidized rental housing has rights under federal law, as well. If there is no written lease, these laws regulate the tenant's rights. There may also be a written lease that could affect a tenant's rights. If there is a written lease, it should be carefully reviewed. The Florida Residential Landlord Tenant Act prevails over what the lease says.

A tenant is entitled to the right of private, peaceful possession of the dwelling. Once rented, the dwelling is the tenant's to lawfully use. The landlord may enter the dwelling only in order to inspect the premises or to make necessary or agreed repairs, but then only if he or she first gives the tenant reasonable notice and comes at a convenient time. If an emergency exists, the requirement for notice may be shortened or waived.

The landlord is required to rent a dwelling that is fit to be lived in. It must have working plumbing, hot water and heating, be structurally sound and have reasonable security, including working and locking doors and windows, and it must be free of pests. The landlord must also comply with local health, building and safety codes. If the landlord has to make repairs to make the dwelling fit to live in, the landlord must pay.

If the landlord claims the tenant has violated the rental agreement, he or she must inform the tenant in writing of the specific problem and give the tenant time to correct the problem – even if the problem is nonpayment of rent – before the landlord can go to court to have the tenant removed. Tenants receiving a nonpayment-of-rent notice should be aware that a landlord may accept part of the rent owed and still evict the tenant. Tenants renting condominiums should be aware that, in certain circumstances, the condominium association may demand that the tenant pay his or her rent to the association instead of the landlord. Tenants should consult an attorney in this case. If the tenant commits a serious act endangering the property (such as committing a crime on the premises) or fails to correct a problem after written notice from the landlord, the landlord still must go to court to be permitted to evict the tenant. In any court proceeding, the tenant has the absolute right to be present, argue his or her case and be represented by an attorney.

If the landlord requires the tenant to pay a security deposit, the landlord must preserve the deposit during the tenancy. In addition, the landlord must return the full amount of the deposit within 15 days after the tenant leaves the dwelling or give the tenant written notice of why some or all of it won't be returned within 30 days after the tenant leaves the dwelling. The tenant then has the right to object in writing within 15 days of receipt of the notice. Under some circumstances, the tenant may receive the security deposit plus interest. Before moving out, the tenant must provide the landlord with an address for receipt of the security deposit, or else the tenant may lose the right to object if the landlord claims the right to keep the deposit money.

The tenant has the right, under certain very aggravated circumstances caused by the landlord's neglect, to withhold rent. This can be done only when the landlord fails to comply with an important responsibility, such as providing a safe and habitable home in compliance with local housing codes. Before rent is withheld, the tenant must give the landlord seven days' written notice of the problem so the landlord can fix it. Even after withholding rent, the tenant should save the money and seek court permission to spend part of it to do what the landlord should have done. If the tenant does not preserve the money and seek court assistance, the tenant may be evicted for nonpayment.

Finally, the tenant has the right to move out. If there is a written lease, the tenant should read the lease closely to see if he or she must give up to 60 days' notice that the tenant does not intend to stay after the lease ends. If there is no written lease, the tenant may move out for no reason by giving written notice of his or her intent to leave no less than seven days before the next rent payment is due, if the rent is paid weekly, or 15 days, if the rent is paid monthly. The tenant may terminate the rental agreement if the landlord has failed to live up to a major obligation, provided the tenant has sent written notice to the landlord seven days before the rent is due (there are some exceptions to the right to move out).

If a landlord loses in court, the landlord may be held liable for any costs and attorney's fees incurred by the tenant. If the tenant loses in court, the tenant may be liable for the landlord's costs and attorney's fees.

A tenant also has responsibilities that, if not observed, can lead to eviction. The tenant must pay the agreed-upon rent and do so on time. The tenant must comply with building, housing and health codes. The tenant must maintain the dwelling without damage, other than ordinary wear and tear, keep the dwelling clean and maintain the plumbing. The tenant must not violate the law or disturb the peace, nor allow guests to do so.

In trying to evict a tenant, a landlord will try to prove the tenant violated a tenant responsibility. However, the landlord may not seek to evict a tenant in retaliation for legitimate complaints about housing conditions to proper authorities. No eviction can occur until the landlord first gives the tenant notice of the problem, and then gets a court order. Without the court order, the landlord has no power to interfere with the tenant. The landlord cannot, for instance, lock a tenant out or cut off a tenant's utilities. A landlord engaging in this type of prohibited practice may be liable to the tenant for damages in the amount of three months' rent or actual damages, whichever is higher. The landlord must get a court order of eviction before interfering with the tenant's occupancy.

If a tenant is served with papers seeking eviction, the tenant should immediately seek legal assistance. The tenant may have legal defenses. For instance, the landlord cannot try to get even with a tenant through eviction when the tenant has not violated tenant responsibilities. To raise defenses in an eviction proceeding, a tenant normally must pay into the court registry past due rent if any is owed and rent that comes due during the proceeding. A tenant who disputes the amount of rent claimed to be due may ask the court to determine the correct amount, but the tenant must show why the amount is wrong. In an eviction proceeding, a tenant has very little time to respond, so quick action is important.

The landlord can never remove the tenant's property or lock the tenant out. Only the sheriff's office may do this, after a Court Order and Writ of Possession.

If you believe you need legal advice, call your attorney. If you do not have an attorney, call The Florida Bar Lawyer Referral Service at (800) 342-8011, or contact a local lawyer referral service or legal aid office.

[Unregistered]

RIGHTS AND DUTIES OF LANDLORDS

If you rent a house, apartment, condominium or mobile home to another person, you enter into a legal contract known as a rental agreement. This rental agreement need not be in writing. If the rental agreement is in writing, it is a "lease." This agreement has certain basic conditions specified by law, and you should understand them before you enter into the agreement. As a landlord, you have certain rights; you also have certain duties. Even in the absence of a written lease, the law imposes duties and gives rights to the parties.

Your obvious right as a landlord is to receive rent for the use of the property.

Another important right is to have your property returned to you undamaged at the end of the agreement. It should be returned in the same condition in which it was received, except for ordinary wear and tear.

In return for these rights, it is your duty to provide a home that is safe and meets housing code requirements, and to make reasonable repairs when necessary. The obligations can be limited sometimes under the lease. It is also your duty to respect the tenant's rights. One of the most important of these is the right of peaceful possession. By renting to the tenant, you give that tenant the possession and use of your property free from interference. That means that you may not enter the home frequently, at odd hours or without notice. Rights relating to reasonable inspection are often set forth in a written rental agreement, as well as in Florida law. You have a right to protect your property through inspection, but you must give a reasonable notice of at least 12 hours. You don't have the right to show the property to possible buyers without notice to and agreement of the tenants.

It is unlawful for a landlord to increase a tenant's rent or decrease services to a tenant in a discriminatory manner, or threaten to bring an action for possession or other civil action primarily in retaliation against the tenant. Retaliation may be presumed if it occurs after a tenant has complained about housing conditions. It is also unlawful for a landlord to lock the tenant out, intercept or shut off utilities, water or electric services to the tenant, or remove tenant's property, doors or appliances from the home. A landlord who does this can be ordered to pay a tenant damages in the amount of three months’ rent, or actual damages, whichever is greater.

To end the tenancy, if the unit has no written rental agreement or if the lease does not state otherwise and is rented on a month-to-month basis, you must give at least 15 days' notice in writing before the end of any monthly period; a week-to-week rental period requires seven days' notice before the end of any weekly period. Any such notice must be in writing and should be delivered personally to the tenant, but it may be posted at the door if tenant is absent from the premises. If the written rental agreement requires that the tenant give notice of up to 60 days before leaving the unit, the landlord is required to give the tenant the same notice period that there is no intention to renew the lease. Tenants renting a foreclosed home that is sold to a new owner must receive at least 30 days' written notice to vacate the residence after the certificate of title has issued in the foreclosure.

Finally, both the landlord and the tenant have the duty to observe state and local laws concerning the use and condition of the property.

The basic rights and duties mentioned here apply whether or not the agreement between the landlord and the tenant is in writing. A written agreement is best because it serves as a memorandum of other terms and conditions such as restrictions on the number of adults or children or types of pets to be allowed. And if you wish to provide for lease terms of one year or more, the agreement must be in writing to be enforceable.

If the tenant permanently moves out before the end of the rental term and leaves your property vacant, this usually is considered to be an abandonment of the tenant's rights. The law presumes an abandonment if the tenant is absent for at least 15 days without previously notifying you of an intent to be absent. After abandonment, you may then re-enter the dwelling unit. The rights and remedies often are complex, and you should consider legal advice or assistance.

The situation is more complicated if the tenant seems to have gone away but has left some personal property on the premises or there is a considerable amount of unpaid rent. In such a case, you should consult an attorney before trying to dispose of the tenant's possessions or re-renting the property.

Another complicated problem occurs when a tenant fails to pay the rent or refuses to move out at the end of the rental term. Under these circumstances you may evict the tenant, but only after you have taken the proper legal steps to commence an action for possession according to a very specific timetable. You must serve proper notice or notices on the tenant to terminate this rental agreement. If the tenant ignores these notices, you are next required to file a complaint in court and have the tenant properly served with a summons and complaint. Five business days after the complaint is served, you may request the court to set a date for a hearing. However, if the tenant fails to answer the complaint within the five business days or fails to pay the rent that is due then, you can proceed to eviction without having a hearing first, though you must get a court order before evicting the tenant.

If the tenant disputes the amount of rent that is due, the rent does not have to be deposited at the court and a hearing must be held. If you wish to collect money damages from the tenant, you must wait 20 days to set a hearing on damages. At the hearing, you can ask that the tenant be evicted. If the judge agrees that the tenant has violated the terms of the agreement, a sheriff will serve an eviction notice on the tenant. The tenant now has 24 hours to get out of your property, or the sheriff can return to remove the tenant and supervise the removal of the tenant's belongings. Because these proceedings are so technical, it is wise to have them handled by an attorney. Even if you decide to file the claim yourself in county court, you should have an attorney review the notices you have given and the ways you have served them to make sure you have properly observed all of the necessary requirements of the timetable. A single mistake can result in serious delay in your regaining possession of the property.

Because the landlord/tenant relationship is a legal contract, you should understand its various provisions before you rent your property to anyone. Remember that, as a landlord, you will be required to provide living quarters that are safe and keep them in good repair. Your obligations for repairs can sometimes be limited under the lease. You will have to turn over possession of the property to the tenant, free from unnecessary interference from you. In return, you may collect rent and, on reasonable notice or in cases of emergency, may inspect the property. At the end of the rental term, the property must be returned to you with no damage beyond ordinary wear and tear. The landlord has certain duties to account for or refund tenant deposits upon termination of the tenancy. Many of these basic conditions apply whether or not there is a written agreement.

If you believe you need legal advice, call your attorney. If you do not have an attorney, call The Florida Bar Lawyer Referral Service at (800) 342-8011, or contact a local lawyer referral service or legal aid office.

[Unregistered]

INFORMATION FOR LANDLORD AND TENANT EVICTIONS
Filing Fee: $ 185.00 (Checks made payable Pam Childers, Clerk)
Summons Fee: 10.00 (per defendant, in addition to filing fee)
Sheriff Fee: 40.00 (per person, business check or money order payable to the Escambia County
Sheriff Dept. or you can take cash to the Sheriff Dept.)
PROCEDURES TO FILE LANDLORD/TENANT EVICTIONS
There are four (4) different types of notices given to tenants for evictions, each for a specific noncompliance. Listed
below are the different types of notices. You must give the tenant one of the following notices by either hand delivery
to tenant or posting the notice to the tenant’s door. After the required time has passed, you must bring to the
Clerk’s Office the filing fees and five (5) copies of a completed complaint, along with five (5) copies of one of the notices
listed below, together with a stamped envelope addressed to each tenant. If there is a written lease agreement, bring
five (5) copies of it along with the notice and envelope to start the eviction procedures. There are Court approved and
Supreme Court approved forms for giving the Notice and proceeding with the eviction. These forms may be obtained
from the Clerk’s Office County Civil Division at a cost of $4.80 for the packet or $.15 per page. Also, these forms may be
obtained through our web-site at www.escambiaclerk.com .
THREE DAY NOTICE
If a tenant has not paid the rent due, the landlord may give his tenant a three (3) day notice in writing to vacate the
premises or pay the amount demanded. Once the time frame has elapsed (excluding Saturdays, Sundays, legal
holidays and date of service) after service of the notice, if the tenant has not complied with the notice, the landlord may
file the Eviction action with the Clerk’s Office. Fla Statute 83.56.
SEVEN DAY NOTICE (WITH CURE)
If the landlord has a tenant who is undesirable but the situation could be remedied within seven (7) days (i.e.
unauthorized pets, guest, or parking, etc.), the landlord may give the tenant a Seven Day Notice with Cure. The notice
must state the non-compliance and give the tenant seven (7) days to correct the problem or to vacate the premises.
Once the time has elapsed (seven (7) straight days, excluding date of service) after service of the notice and the tenant
has failed to comply with the notice, the landlord may file the Eviction action with the Clerk’s Office. If the tenant
complies within the time frame given, the tenant may remain in the premises. If this same conduct or conduct of a
similar nature is repeated within twelve (12) months, the landlord can terminate the lease by giving a Seven Day Notice
without Cure. Fla Statute 83.56.
SEVEN DAY NOTICE (WITHOUT CURE)
If a tenant is undesirable with a serious non-compliance (i.e. destruction, damage or misuse of property; unreasonable
disturbance, etc.), the landlord may give the tenant a Seven Day Notice without Cure. The notice informs the tenant the
rental agreement is terminated and that no further rent will be accepted. It also lists the items of non-compliance. Once
the time has elapsed (seven (7) straight days, excluding date of service) and the tenant remains in the premises, the
landlord may file the Eviction with the Clerk’s Office. Fla Statute 83.56.
FIFTEEN DAY NOTICE
If the landlord needs possession of his property and it is not for any of the above reasons and the rent is paid on a
month to month basis, the landlord may give the tenant a fifteen (15) day written notice to vacate the premises. The
Notice states that the rental agreement is terminated and no further rent will be accepted. This notice should be given
fifteen (15) days prior to the rent being due. Once the time has elapsed (fifteen (15) straight days, excluding the date
of service) and the tenant remains in the premises, the landlord may file the Eviction action with the Clerk’s Office. Fla
Statute 83.57.
PROCEDURE AFTER INITIAL FILING OF EVICTION COMPLAINT
When the eviction complaint is filed, the clerk issues a Five Day Summons and forwards it to the Sheriff for service on
the tenant. The tenant has five (5) working days to file a written response to the Summons with the Court or to vacate
the premises. If a written response is made, a hearing will be set before the judge assigned to the case and the parties
are notified. If no response is made, the landlord may come back to the Clerk’s Office, with a Motion for Default, and
pay another $90.00 to the Sheriff (business check or money order payable to the Escambia County Sheriff or you can
take cash to the Sheriff Dept.). You must submit a Judgment for Possession for the judge to sign and a Writ of
Possession to be issued by the Clerk’s Office. The Sheriff’s Department will serve the tenant with a notice to vacate. If
the tenant does not vacate the premises, the Sheriff will then proceed to evict the tenants. If the tenant should vacate
the premises or pay the rent prior to the landlord filing their Motion for Default, the landlord should notify the Clerk’s
Office in writing and submit an Order of Dismissal for the Judge to sign. Inquiries concerning individual cases or
problems should be directed to the Clerk’s Office. Telephone number: (850) 595-4170.
(Revision 5-2015)

[filoxenos]

I really appreciate the responses, and even though most of what you posted applies to both residential and commercial leases, there are some minor differences. However, while it is clear that the clause (in quotes and italics) is violating Florida Statutes, I am more concern with the response of Police, and specifically the Tampa Police since the property is in the city of Tampa. I need to know how to convince the police that the Landlord is violating the law if the Landlords attempts any of the 2 illegal methods indicated in purple and blue font color at the end of the original posting. I hope a law enforcement person, or any person who has knowledge or experience in this matter will respond to the post's questions.
Thank you

[What's Right]

According to the very beginning of your post/question, "In the event that the rent specified herein is not paid when due, Landlord shall have the option to terminate this lease, in which event Tenant shall immediately surrender the leased Premises to Landlord"; it is obvious yiu haven't paid your rent.

Whether or not the tactics of the Landlord are wrong, I for one will not help someone refusing to pay for something that they are contractually obligated to pay for, stay in place. You are wrong in this. You either didn't pay your bill on time or didn't pay at all. Yiu deserve to be kicked out. I think you fear TPD's response because you know what yiu did/are doing is wrong and know you will get no sympathy from us.

Do everyone including yourself a favor, pack up your stuff and leave on your own accord. That way TPD won't have to waste their time on this call.

Ps: when you believe you will have a problem with a call, request a supervisor to respond as well.