Av Preeminet Matindale-Hubbell Lawyer Ratings

Best Lawyers Best Law Firms US News 2019

Removing Unauthorized Occupants After a Lease Expires

The named tenants moved out, but someone else is still living in your unit. They were never on the lease, never paid you rent, and now refuse to leave. Here’s how Florida landlords handle it.

A surprisingly common problem for Florida landlords arises when a lease expires or is terminated, the named tenants vacate the unit, but other people remain in the property — a roommate who was never on the lease, a romantic partner the tenant moved in, a sublessee the tenant arranged without the landlord’s knowledge, or even a complete stranger the tenant allowed to stay. These unauthorized occupants have no lease with the landlord, no rental agreement, and often no relationship with the landlord at all. But they are in your property, and they will not leave.

This guide covers the legal analysis Florida landlords must work through to determine the correct removal process, the steps to take, and the strategies for preventing this situation in the first place.

Who Is an “Unauthorized Occupant”?
Eviction or Unlawful Detainer? Choosing the Right Process
Step-by-Step Removal Process
The Unauthorized Sublease Problem
Preventing Unauthorized Occupants: Lease Provisions That Work
Frequently Asked Questions

1. Who Is an “Unauthorized Occupant”?

An unauthorized occupant is any person living in a rental unit who is not named on the lease, was not approved by the landlord, and does not have an independent rental agreement with the landlord. Common examples include a boyfriend or girlfriend the tenant moved in without the landlord’s knowledge or approval; a friend or relative of the tenant who is “crashing” at the unit; a sublessee to whom the tenant rented a room or the entire unit in violation of the lease; a person the tenant invited to stay while they were away; and any person remaining in the unit after the named tenant has vacated.

The key legal characteristic of an unauthorized occupant is that they have no privity of contract with the landlord— meaning there is no landlord-tenant relationship between the property owner and the person remaining in the unit. Their right to occupy the property (if it ever existed) derived from the named tenant’s lease, and when that lease ended, so did any derivative right of occupancy.

2. Eviction or Unlawful Detainer? Choosing the Right Process

The correct legal process depends on the nature of the unauthorized occupant’s relationship to the property and the landlord.

Scenario	Correct Process	Why
Occupant was never on the lease, never paid landlord directly, never had any agreement with landlord	Unlawful Detainer (Ch. 82)	No landlord-tenant relationship exists
Occupant paid rent directly to the landlord (even once), or landlord knew of and accepted the occupant as a tenant	Eviction (Ch. 83)	Acceptance of rent or acknowledgment may have created a tenancy
Occupant has an unauthorized sublease with the original tenant	Unlawful Detainer (Ch. 82), or Eviction naming all parties	Depends on whether landlord consented to the sublease
Original tenant is still on the lease and present in the unit alongside the unauthorized occupant	Eviction (Ch. 83) for lease violation (unauthorized occupant provision)	Named tenant is still in possession; address through the existing lease relationship

Did You Accept Rent from the Occupant?

If the unauthorized occupant ever paid rent directly to you — even a single payment — or if you knowingly accepted rent from the named tenant that was actually funded by the unauthorized occupant, a court may find that you created a landlord-tenant relationship with the unauthorized occupant. This would require you to proceed under the standard eviction process (Chapter 83) rather than unlawful detainer. Be extremely careful about accepting money from anyone other than the named tenants on the lease.

3. Step-by-Step Removal Process

When the unauthorized occupant has no landlord-tenant relationship with you, the removal proceeds as an unlawful detainer action under Chapter 82.

Step 1: Confirm the named tenants have vacated. Verify that the named tenants on the lease have surrendered possession. If the named tenants are still in the unit alongside the unauthorized occupant, you should address both through the eviction process — the named tenants for whatever ground applies (lease violation, holdover, nonpayment) and the unauthorized occupant as a party to that action.

Step 2: Serve a written demand to vacate on the unauthorized occupant. Deliver a written notice to the unauthorized occupant identifying the property, stating that the lease under which they may have derived any right to occupancy has terminated, stating that they have no legal right to remain, and demanding that they vacate within three to seven days. Deliver the demand by a documentable method.

Step 3: File the unlawful detainer complaint. If the unauthorized occupant does not vacate within the demand period, file the unlawful detainer complaint in the county where the property is located. Attach the deed, the expired lease (showing the unauthorized occupant is not named as a tenant), the written demand to vacate, and proof of delivery.

Step 4: Service of process and response period. The complaint must be served on the unauthorized occupant. After service, the occupant has the applicable response period to file a defense. If no response is filed, move for default and final judgment.

Step 5: Judgment and writ of possession. If the court rules in your favor, obtain the writ of possession and have the sheriff execute it. Change the locks immediately after execution.

4. The Unauthorized Sublease Problem

An increasingly common variant of the unauthorized occupant situation involves unauthorized subleasing — the named tenant rents the unit to a third party (or lists it on a short-term rental platform) without the landlord’s knowledge or consent. When the original lease ends and the named tenant disappears, the sublessee remains and may have a colorable claim that they are a tenant with rights.

The legal analysis depends on whether the lease prohibited subleasing (most Florida residential leases contain anti-subletting provisions) and whether the landlord had any knowledge of or consented to the sublease. If the lease prohibited subleasing and the landlord never consented, the sublease is unauthorized and the sublessee has no greater right than the original tenant — meaning the sublessee’s rights ended when the original lease terminated. The landlord may proceed with unlawful detainer.

If the landlord knew about the sublease and acquiesced (for example, by accepting rent directly from the sublessee), a court may find that the landlord ratified the sublease, creating a landlord-tenant relationship with the sublessee. In that case, the eviction process under Chapter 83 would be required.

5. Preventing Unauthorized Occupants: Lease Provisions That Work

The best way to deal with unauthorized occupants is to prevent them from becoming entrenched in the first place. The following lease provisions and management practices significantly reduce the risk.

Explicit Occupancy Clauses

Your lease should include a provision that names every authorized occupant by full legal name; states that no other persons may reside in the unit without the landlord’s prior written consent; defines “reside” broadly to include any person staying in the unit for more than a specified number of consecutive days (typically seven to fourteen) or more than a specified number of total days in any month; and states that any unauthorized occupancy constitutes a material breach of the lease.

No-Subletting Provisions

Include an explicit prohibition on subleasing, assignment, or listing the unit on any short-term rental platform (Airbnb, VRBO, etc.) without the landlord’s prior written consent. The provision should state that any unauthorized sublease is void and constitutes a material breach.

Regular Inspections

Conduct periodic inspections of the property (with proper notice to the tenant under Section 83.53) to verify that the persons occupying the unit match the authorized occupants listed on the lease. If you discover unauthorized occupants during an inspection, address the violation immediately with the named tenant through a seven-day notice of noncompliance.

Address Unauthorized Occupants While the Tenant Is Still There

The easiest time to address an unauthorized occupant is while the named tenant is still in the unit and the lease is still in effect. Serve a seven-day notice of noncompliance on the named tenant for violating the occupancy clause, giving them seven days to remove the unauthorized person. This puts the burden on the tenant — whose lease is at stake — to solve the problem. If you wait until after the tenant leaves and only the unauthorized person remains, you face the more complex unlawful detainer process.

Unauthorized Person in Your Rental Unit?

We identify the correct legal process, file the appropriate action, and get you back in possession of your property.

6. Frequently Asked Questions

Can I name the unauthorized occupant in an eviction against my existing tenant?

Yes. If your named tenant is still in the unit and the unauthorized occupant is there as well, you can file an eviction action against the named tenant for violating the lease’s occupancy provision and name the unauthorized occupant as an additional defendant (typically identified as “John Doe” or “Jane Doe” if you do not know their legal name, or as “all other occupants”). This allows the court to enter a judgment covering all persons in the unit.

What if I don’t know the unauthorized occupant’s name?

You may file the unlawful detainer complaint against “Unknown Occupant(s)” or “John Doe” at the property address. Service of process may be accomplished by posting on the property if personal service cannot be achieved. Your attorney can advise on the specific procedures in your county for serving unknown occupants.

Can the unauthorized occupant claim tenant rights because they received mail at the address?

Receiving mail at an address does not, by itself, create a tenancy. However, it is evidence that the person has established a residence at the property, which is relevant to the question of whether they can be treated as a trespasser (subject to immediate police removal) or whether they must be removed through the civil court process. In most cases, an occupant who has been living in the unit for more than a brief period and receives mail there will need to be removed through unlawful detainer or eviction — not simply through a police call.

My tenant listed my property on Airbnb. What do I do?

If your lease prohibits subleasing (including short-term rental listings), the tenant has committed a material lease violation. Serve a seven-day notice of noncompliance requiring the tenant to remove the listing and cease all subletting activity. If the tenant does not cure the violation within seven days, proceed with eviction under Chapter 83. If the tenant vacates but Airbnb guests remain, those guests are unauthorized occupants subject to the unlawful detainer process — or, because their “stay” is typically very short-term, they may be treated as trespassers subject to police removal.

Related Guides