Florida Unlawful Detainer vs. Eviction: Which Case Do You Need?
Not every occupancy dispute is an eviction. Florida has a separate, faster track for people who never paid rent. Here's how to tell the difference.
The core distinction
Florida has two separate legal actions for removing an unwanted occupant:
Residential Eviction (Chapter 83, F.S.) — applies when there is a landlord-tenant relationship, meaning the person took possession of the property under a rental agreement (written or oral) and paid or agreed to pay rent.
Unlawful Detainer (Chapter 82, F.S.) — applies when there is no landlord-tenant relationship at all. The person entered with permission (or no permission) but never had a rental agreement and never paid rent. Classic examples: a family member who moved in "temporarily," a live-in partner after a breakup, a former employee who lived on the property as part of their job, or someone who entered without any agreement.
Why it matters
Filing the wrong action gets your case dismissed, costing you filing fees and weeks of time. The procedures are different:
- Eviction requires a 3-day notice to pay or vacate before filing.
- Unlawful detainer does NOT require a pre-suit notice (though sending a demand letter is still good practice).
- Unlawful detainer cases are typically faster — the court issues a writ of possession sooner because there is no "cure" period for unpaid rent.
In Miami-Dade, unlawful detainer cases are filed in County Court and proceed under the same general civil rules, but with expedited hearings.
Signs you need unlawful detainer
Ask yourself:
- Did the person ever sign a lease or rental agreement? → No → likely unlawful detainer
- Did the person ever pay rent, even informally (Venmo, cash)? → No → likely unlawful detainer
- Is the person a guest, ex-partner, or family member who was given permission to stay? → Yes → likely unlawful detainer
- Did the person squat on the property without permission? → Yes → unlawful detainer (or potentially trespass — call law enforcement first)
If the person paid rent even once, or if you had any agreement (verbal counts) about them staying in exchange for something, lean toward the eviction process.
How to file an unlawful detainer in Miami-Dade
1. Prepare a Complaint for Unlawful Detainer. The complaint must state: your ownership/right to possession, when and how the defendant entered, and that they have no legal right to remain.
2. File at the Miami-Dade Clerk of Court, Civil Division. Filing fee: approximately $185–$300.
3. Serve the defendant through the Clerk's office or a process server.
4. The defendant has 5 business days to file an answer.
5. If no answer is filed, you apply for a default and final judgment.
6. The court issues a Writ of Possession; the sheriff executes the writ.
What defendants can argue
In an unlawful detainer the defendant can argue they DO have a tenancy relationship (which would move the matter to eviction court), that they have a legal right to be there (e.g., they are a co-owner), or that service was improper. These defenses are raised in the answer. Courts move quickly when no valid defense is filed.
Key takeaway
If rent was ever paid → file eviction under Chapter 83.
If no rental relationship existed → file unlawful detainer under Chapter 82.
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