Bill Text: FL S0804 | 2018 | Regular Session | Comm Sub

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-Comm_Sub.html
       Florida Senate - 2018                              CS for SB 804
       By the Committee on Rules; and Senator Passidomo
       595-03999-18                                           2018804c1
    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; transferring, renumbering, and
   31         amending s. 82.045, F.S.; conforming provisions to
   32         changes made by the act; amending s. 82.04, F.S.;
   33         requiring that the court determine the right of
   34         possession and damages; prohibiting the court from
   35         determining question of title unless necessary;
   36         amending s. 82.05, F.S.; requiring that the summons
   37         and complaint be attached to the real property after
   38         two unsuccessful attempts to serve a defendant;
   39         requiring a plaintiff to provide the clerk of the
   40         court with prestamped envelopes and additional copies
   41         of the summons and complaint if the defendant is
   42         served by attaching the summons and complaint to the
   43         real property; requiring the clerk to immediately mail
   44         copies of the summons and complaint and note the fact
   45         of mailing in the docket; specifying that service is
   46         effective on the date of posting or mailing; requiring
   47         that 5 days elapse from the date of service before the
   48         entry of a judgment; amending s. 82.091, F.S.;
   49         providing requirements after a judgment is entered for
   50         the plaintiff or the defendant; amending s. 82.101,
   51         F.S.; adding quiet title to the types of future
   52         actions for which a judgment is not conclusive as to
   53         certain facts; providing that the judgment may be
   54         superseded by a subsequent judgment; creating s.
   55         163.035, F.S.; defining the term “governmental
   56         entity”; prohibiting a governmental entity from
   57         adopting or keeping in effect certain ordinances and
   58         rules based upon customary use; providing an
   59         exception; requiring a governmental entity seeking to
   60         affirm the existence of a recreational customary use
   61         on private property to follow certain procedures;
   62         providing notice requirements for a governmental
   63         entity seeking to affirm such recreational customary
   64         use; requiring the governmental entity to file a
   65         specified complaint with a certain circuit court
   66         within a certain time; providing notice requirements
   67         for the filing of such complaint; specifying that
   68         proceedings resulting from such complaint are de novo;
   69         requiring the court to consider specific factors when
   70         determining whether a recreational customary use
   71         exists; specifying that the governmental entity has
   72         the burden of proof; specifying that an owner of a
   73         parcel of property subject to the complaint has the
   74         right to intervene in the proceeding; providing
   75         applicability; repealing s. 82.061, F.S., relating to
   76         service of process; repealing s. 82.071, F.S.,
   77         relating to evidence at trial as to damages; repealing
   78         s. 82.081, F.S., relating to trial verdict forms;
   79         providing an effective date.
   81  Be It Enacted by the Legislature of the State of Florida:
   83         Section 1. Section 66.021, Florida Statutes, is amended to
   84  read:
   85         66.021 Ejectment Procedure.—
   86         (1) RIGHT OF ACTION.—A person with a superior right to
   87  possession of real property may maintain an action of ejectment
   88  to recover possession of the property.
   89         (2) JURISDICTION.—Circuit courts have exclusive
   90  jurisdiction in an action of ejectment.
   91         (3) NOTICE.—A plaintiff may not be required to provide any
   92  presuit notice or presuit demand to a defendant as a condition
   93  to maintaining an action under this section.
   94         (4)(1) LANDLORD NOT A DEFENDANT.—When it appears before
   95  trial that a defendant in an action of ejectment is in
   96  possession as a tenant and that his or her landlord is not a
   97  party, the landlord must shall be made a party before further
   98  proceeding unless otherwise ordered by the court.
   99         (5)(2) DEFENSE MAY BE LIMITED.—A defendant in an action of
  100  ejectment may limit his or her defense to a part of the property
  101  mentioned in the complaint, describing such part with reasonable
  102  certainty.
  104  SEVERAL.—When plaintiff recovers in an action of ejectment, he
  105  or she may have one writ for possession and for, damages and
  106  costs or, at his or her election if the plaintiff elects, may
  107  have separate writs for possession and for damages and costs.
  108         (7)(4) CHAIN OF TITLE.—The Plaintiff with his or her
  109  complaint and the defendant with his or her answer must include
  110  shall serve a statement setting forth, chronologically, the
  111  chain of title upon which the party on which he or she will rely
  112  at trial. Copies of each instrument identified in the statement
  113  must be attached to the complaint or answer. If any part of the
  114  chain of title is recorded, The statement must include shall set
  115  forth the names of the grantors and the grantees, the date that
  116  each instrument was recorded, and the book and page or the
  117  instrument number for each recorded instrument of the record
  118  thereof; if an unrecorded instrument is relied on, a copy shall
  119  be attached. The court may require the original to be submitted
  120  to the opposite party for inspection. If a the party relies on a
  121  claim or right without color of title, the statement must shall
  122  specify how and when the claim originated and the facts on which
  123  the claim is based. If defendant and plaintiff claim under a
  124  common source, the statement need not deraign title before the
  125  common source.
  126         (8)(5) TESTING SUFFICIENCY.—If either party seeks wants to
  127  test the legal sufficiency of any instrument or court proceeding
  128  in the chain of title of the opposite party, the party must
  129  shall do so before trial by motion setting up his or her
  130  objections with a copy of the instrument or court proceedings
  131  attached. The motion must shall be disposed of before trial. If
  132  either party determines that he or she will be unable to
  133  maintain his or her claim by reason of the order, that party may
  134  so state in the record and final judgment shall be entered for
  135  the opposing opposite party.
  136         (9) OPERATION.—This section is cumulative to other existing
  137  remedies and may not be construed to limit other remedies that
  138  are available under the laws of this state.
  139         Section 2. Section 82.01, Florida Statutes, is amended to
  140  read:
  141         82.01 Definitions “Unlawful entry and forcible entry”
  142  defined.—As used in this chapter, the term:
  143         (1) “Forcible entry” means entering into and taking
  144  possession of real property with force, in a manner that is not
  145  peaceable, easy, or open, even if such entry is authorized by a
  146  person entitled to possession of the real property and the
  147  possession is only temporary or applies only to a portion of the
  148  real property.
  149         (2) Real propertymeans land or any existing permanent or
  150  temporary building or structure thereon, and any attachments
  151  generally held out for the use of persons in possession of the
  152  real property.
  153         (3) “Record titleholder” means a person who holds title to
  154  real property as evidenced by an instrument recorded in the
  155  public records of the county in which the real property is
  156  located.
  157         (4) “Unlawful detention” means possessing real property,
  158  even if the possession is temporary or applies only to a portion
  159  of the real property, without the consent of a person entitled
  160  to possession of the real property or after the withdrawal of
  161  consent by such person.
  162         (5) “Unlawful entry” means the entry into and possessing of
  163  real property, even if the possession is temporary or for a
  164  portion of the real property, when such entry is not authorized
  165  by law or consented to by a person entitled to possession of the
  166  real property No person shall enter into any lands or tenements
  167  except when entry is given by law, nor shall any person, when
  168  entry is given by law, enter with strong hand or with multitude
  169  of people, but only in a peaceable, easy and open manner.
  170         Section 3. Section 82.02, Florida Statutes, is amended to
  171  read:
  172         82.02 Applicability “Unlawful entry and unlawful detention”
  173  defined.—
  174         (1) This chapter does not apply to residential tenancies
  175  under part II of chapter 83 No person who enters without consent
  176  in a peaceable, easy and open manner into any lands or tenements
  177  shall hold them afterwards against the consent of the party
  178  entitled to possession.
  179         (2) This chapter does not apply to the possession of real
  180  property under chapter 513 or chapter 723 This section shall not
  181  apply with regard to residential tenancies.
  182         Section 4. Section 82.03, Florida Statutes, is amended to
  183  read:
  184         82.03 Remedies Remedy for unlawful entry and forcible
  185  entry.—
  186         (1) A person entitled to possession of real property,
  187  including constructive possession by a record titleholder, has a
  188  cause of action against a person who obtained possession of that
  189  real property by forcible entry, unlawful entry, or unlawful
  190  detention and may recover possession and damages. The person
  191  entitled to possession is not required to notify the prospective
  192  defendant before filing the action.
  193         (2) If the court finds that the entry or detention by the
  194  defendant is willful and knowingly wrongful, the court must
  195  award the plaintiff damages equal to double the reasonable
  196  rental value of the real property from the beginning of the
  197  forcible entry, unlawful entry, or unlawful detention until
  198  possession is delivered to the plaintiff. The plaintiff may also
  199  recover other damages, including, but not limited to, damages
  200  for waste.
  201         (3) Actions for possession and damages may be bifurcated.
  202         (4) All actions under this chapter must be brought by
  203  summary procedure as provided in s. 51.011, and the court shall
  204  advance the cause on the calendar If any person enters or has
  205  entered into lands or tenements when entry is not given by law,
  206  or if any person enters or has entered into any lands or
  207  tenements with strong hand or with multitude of people, even
  208  when entry is given by law, the party turned out or deprived of
  209  possession by the unlawful or forcible entry, by whatever right
  210  or title the party held possession, or whatever estate the party
  211  held or claimed in the lands or tenements of which he or she was
  212  so dispossessed, is entitled to the summary procedure under s.
  213  51.011 within 3 years thereafter.
  214         Section 5. Section 82.045, Florida Statutes, is
  215  transferred, renumbered as section 82.035, Florida Statutes, and
  216  amended to read:
  217         82.035 82.045 Remedy for unlawful detention by a transient
  218  occupant of residential property.—
  219         (1) As used in this section, the term “transient occupant”
  220  means a person whose residency in real property a dwelling
  221  intended for residential use has occurred for a brief length of
  222  time, is not pursuant to a lease, and whose occupancy was
  223  intended as transient in nature.
  224         (a) Factors that establish that a person is a transient
  225  occupant include, but are not limited to:
  226         1. The person does not have an ownership interest,
  227  financial interest, or leasehold interest in the property
  228  entitling him or her to occupancy of the property.
  229         2. The person does not have any property utility
  230  subscriptions.
  231         3. The person does not use the property address as an
  232  address of record with any governmental agency, including, but
  233  not limited to, the Department of Highway Safety and Motor
  234  Vehicles or the supervisor of elections.
  235         4. The person does not receive mail at the property.
  236         5. The person pays minimal or no rent for his or her stay
  237  at the property.
  238         6. The person does not have a designated space of his or
  239  her own, such as a room, at the property.
  240         7. The person has minimal, if any, personal belongings at
  241  the property.
  242         8. The person has an apparent permanent residence
  243  elsewhere.
  244         (b) Minor contributions made for the purchase of household
  245  goods, or minor contributions towards other household expenses,
  246  do not establish residency.
  247         (2) A transient occupant unlawfully detains a residential
  248  property if the transient occupant remains in occupancy of the
  249  residential property after the party entitled to possession of
  250  the property has directed the transient occupant to leave.
  251         (3) Any law enforcement officer may, upon receipt of a
  252  sworn affidavit of the party entitled to possession that a
  253  person who is a transient occupant is unlawfully detaining
  254  residential property, direct a transient occupant to surrender
  255  possession of residential property. The sworn affidavit must set
  256  forth the facts, including the applicable factors listed in
  257  paragraph (1)(a), which establish that a transient occupant is
  258  unlawfully detaining residential property.
  259         (a) A person who fails to comply with the direction of the
  260  law enforcement officer to surrender possession or occupancy
  261  violates s. 810.08. In any prosecution of a violation of s.
  262  810.08 related to this section, whether the defendant was
  263  properly classified as a transient occupant is not an element of
  264  the offense, the state is not required to prove that the
  265  defendant was in fact a transient occupant, and the defendant’s
  266  status as a permanent resident is not an affirmative defense.
  267         (b) A person wrongfully removed pursuant to this subsection
  268  has a cause of action for wrongful removal against the person
  269  who requested the removal, and may recover injunctive relief and
  270  compensatory damages. However, a wrongfully removed person does
  271  not have a cause of action against the law enforcement officer
  272  or the agency employing the law enforcement officer absent a
  273  showing of bad faith by the law enforcement officer.
  274         (4) A party entitled to possession of real property a
  275  dwelling has a cause of action for unlawful detainer against a
  276  transient occupant pursuant to s. 82.03 s. 82.04. The party
  277  entitled to possession is not required to notify the transient
  278  occupant before filing the action. If the court finds that the
  279  defendant is not a transient occupant but is instead a tenant of
  280  residential property governed by part II of chapter 83, the
  281  court may not dismiss the action without first allowing the
  282  plaintiff to give the transient occupant the notice required by
  283  that part and to thereafter amend the complaint to pursue
  284  eviction under that part.
  285         Section 6. Section 82.04, Florida Statutes, is amended to
  286  read:
  287         82.04 Questions involved in this proceeding Remedy for
  288  unlawful detention.—The court shall determine only the right of
  289  possession and any damages. Unless it is necessary to determine
  290  the right of possession or the record titleholder, the court may
  291  not determine the question of title.
  292         (1) If any person enters or has entered in a peaceable
  293  manner into any lands or tenements when the entry is lawful and
  294  after the expiration of the person’s right continues to hold
  295  them against the consent of the party entitled to possession,
  296  the party so entitled to possession is entitled to the summary
  297  procedure under s. 51.011, at any time within 3 years after the
  298  possession has been withheld from the party against his or her
  299  consent.
  300         (2) This section shall not apply with regard to residential
  301  tenancies.
  302         Section 7. Section 82.05, Florida Statutes, is amended to
  303  read:
  304         82.05 Service of process Questions involved in this
  305  proceeding.—
  306         (1) After at least two attempts to obtain service as
  307  provided by law, if the defendant cannot be found in the county
  308  in which the action is pending and either the defendant does not
  309  have a usual place of abode in the county or there is no person
  310  15 years of age or older residing at the defendant’s usual place
  311  of abode in the county, the sheriff must serve the summons and
  312  complaint by attaching it to some conspicuous part of the real
  313  property involved in the proceeding. The minimum amount of time
  314  allowed between the two attempts to obtain service is 6 hours.
  315         (2) If a plaintiff causes, or anticipates causing, a
  316  defendant to be served with a summons and complaint solely by
  317  attaching them to some conspicuous part of real property
  318  involved in the proceeding, the plaintiff must provide the clerk
  319  of the court with two additional copies of the summons and the
  320  complaint and two prestamped envelopes addressed to the
  321  defendant. One envelope must be addressed to the defendant’s
  322  residence, if known. The second envelope must be addressed to
  323  the defendant’s last known business address, if known. The clerk
  324  of the court shall immediately mail the copies of the summons
  325  and complaint by first-class mail, note the fact of mailing in
  326  the docket, and file a certificate in the court file of the fact
  327  and date of mailing. Service is effective on the date of posting
  328  or mailing, whichever occurs later, and at least 5 days must
  329  have elapsed after the date of service before a final judgment
  330  for removal of the defendant may be entered No question of
  331  title, but only right of possession and damages, is involved in
  332  the action.
  333         Section 8. Section 82.091, Florida Statutes, is amended to
  334  read:
  335         82.091 Judgment and execution.—
  336         (1) If the court enters a judgment for the plaintiff, the
  337  verdict is in favor of plaintiff, the court shall enter judgment
  338  that plaintiff shall recover possession of the real property
  339  that he or she is entitled to and described in the complaint
  340  with his or her damages and costs. The court, and shall award a
  341  writ of possession to be executed without delay and execution
  342  for the plaintiff’s damages and costs.
  343         (2) If the court enters a judgment for the defendant, the
  344  court shall verdict is for defendant, the court shall enter
  345  judgment against plaintiff dismissing the complaint and order
  346  that the defendant recover costs.
  347         Section 9. Section 82.101, Florida Statutes, is amended to
  348  read:
  349         82.101 Effect of judgment.—No judgment rendered either for
  350  the plaintiff or the defendant bars any action of trespass for
  351  injury to the real property or ejectment between the same
  352  parties respecting the same real property. A judgment is not
  353  conclusive as to No verdict is conclusive of the facts therein
  354  found in any future action for of trespass, ejectment, or quiet
  355  title. A judgment rendered either for the plaintiff or the
  356  defendant pursuant to this chapter may be superseded, in whole
  357  or in part, by a subsequent judgment in an action for trespass
  358  for injury to the real property, ejectment, or quiet title
  359  involving the same parties with respect to the same real
  360  property or ejectment.
  361         Section 10. Section 163.035, Florida Statutes, is created
  362  to read:
  363         163.035 Establishment of recreational customary use.—
  364         (1) DEFINITION.—The term “governmental entity” includes an
  365  agency of the state, a regional or a local government created by
  366  the State Constitution or by general or special act, any county
  367  or municipality, or any other entity that independently
  368  exercises governmental authority.
  370  governmental entity may not adopt or keep in effect an ordinance
  371  or rule that finds, determines, relies on, or is based upon
  372  customary use of any portion of a beach above the mean high
  373  water line, as defined in s. 177.27, unless such ordinance or
  374  rule is based on a judicial declaration affirming recreational
  375  customary use on such beach.
  378  that seeks to affirm the existence of a recreational customary
  379  use on private property must follow the procedures set forth in
  380  this subsection.
  381         (a) Notice.—The governing board of a governmental entity
  382  must, at a public hearing, adopt a formal notice of intent to
  383  affirm the existence of a recreational customary use on private
  384  property. The notice of intent must specifically identify the
  385  following:
  386         1. The specific parcels of property, or the specific
  387  portions thereof, upon which a customary use affirmation is
  388  sought;
  389         2. The detailed, specific, and individual use or uses of
  390  the parcels of property to which a customary use affirmation is
  391  sought; and
  392         3. Each source of evidence that the governmental entity
  393  would rely upon to prove a recreational customary use has been
  394  ancient, reasonable, without interruption, and free from
  395  dispute.
  397  The governmental entity must provide notice of the public
  398  hearing to the owner of each parcel of property subject to the
  399  notice of intent at the address reflected in the county property
  400  appraiser’s records no later than 30 days before the public
  401  meeting. Such notice must be provided by certified mail with
  402  return receipt requested, publication in a newspaper of general
  403  circulation in the area where the parcels of property are
  404  located, and posting on the governmental entity’s website.
  405         (b) Judicial determination.—
  406         1. Within 60 days after the adoption of the notice of
  407  intent at the public hearing, the governmental entity must file
  408  a Complaint for Declaration of Recreational Customary Use with
  409  the circuit court in the county in which the properties subject
  410  to the notice of intent are located. The governmental entity
  411  must provide notice of the filing of the complaint to the owner
  412  of each parcel of property subject to the complaint in the same
  413  manner as is required for the notice of intent in paragraph (a).
  414  The notice must allow the owner receiving the notice to
  415  intervene in the proceeding within 45 days after receiving the
  416  notice. The governmental entity must provide verification of the
  417  service of the notice to the property owners required in this
  418  paragraph to the court so that the court may establish a
  419  schedule for the judicial proceedings.
  420         2. All proceedings under this paragraph shall be de novo.
  421  The court must determine whether the evidence presented
  422  demonstrates that the recreational customary use for the use or
  423  uses identified in the notice of intent have been ancient,
  424  reasonable, without interruption, and free from dispute. There
  425  is no presumption regarding the existence of a recreational
  426  customary use with respect to any parcel of property, and the
  427  governmental entity has the burden of proof to show that a
  428  recreational customary use exists. An owner of a parcel of
  429  property that is subject to the complaint has the right to
  430  intervene as a party defendant in such proceeding.
  431         (4) APPLICABILITY.—This section does not apply to a
  432  governmental entity with an ordinance or rule that was adopted
  433  and in effect on or before January 1, 2016, and does not deprive
  434  a governmental entity from raising customary use as an
  435  affirmative defense in any proceeding challenging an ordinance
  436  or rule adopted before July 1, 2018.
  437         Section 11. Section 82.061, Florida Statutes, is repealed.
  438         Section 12. Section 82.071, Florida Statutes, is repealed.
  439         Section 13. Section 82.081, Florida Statutes, is repealed.
  440         Section 14. This act shall take effect July 1, 2018.