In short: Not through Florida’s summary eviction process. Chapter 83 eviction is only for a landlord and a tenant, and a tenant is someone who occupies under a rental agreement with the owner. In Borjas v. Vergara, an owner won possession and back rent against a woman living in his Brickell apartment, but his only agreement was with her son. On October 18, 2017, the Third District reversed because there was no landlord-tenant relationship between the parties to the case.
The Facts
According to the opinion, Elizabeth Borjas and her son, Erick Vaiana, owned an apartment at the Skyline on Brickell until a bank foreclosed. In September 2012 Jorge Lopez Vergara bought the apartment from the bank for $450,000. He said he did it as a favor to the son, who was supposed to repay him within a couple of months and then take title. The son did not repay. Vergara and the son later signed a handwritten agreement, which did not resolve things.
Borjas and her son then sued Vergara in circuit court, claiming a partnership over several Miami real estate investments, including the apartment. About three months later Vergara sued Borjas, who still lived in the apartment, in county court for possession, back rent and attorney’s fees. Borjas answered that there was no rental agreement under section 83.43 and that she had an ownership interest.
The county court transferred the case to the same circuit court division as the partnership case. The circuit court refused to consolidate the two cases, gave Vergara an expedited trial, and entered judgment for possession and back rent, finding him entitled to fees. At argument the lawyers said Borjas later agreed to move out rather than face removal by the sheriff. The points below are what they argued.
- Borjas argued she was never a tenant. Vergara testified that his dealings, the handwritten agreement and the payments were all with the son, who was not a party to the eviction case.
- She argued the owner’s remedy, if any, was ejectment, and that she was never allowed to amend her pleadings to raise her ownership and partnership claims.
- Vergara argued she had lived there for years and must be either a tenant or a trespasser, that there was at least an implied agreement that she would stay, and that she never showed prejudice from the denied amendment. He dismissed his cross-appeal before argument.
The Decision
The Third District reversed in a written opinion on October 18, 2017. The court wrote: “Because there is no landlord/tenant relationship between the parties to this action, we reverse.” The record showed an agreement between Vergara and the son, but “there is no record evidence of a lease or any other form of agreement between Mr. Vergara and Ms. Borjas.”
Because a landlord-tenant relationship is a condition for using the summary eviction procedure, Vergara could not get relief under chapters 83 and 51, and the fee award under section 83.48 fell with the judgment. Relying on its earlier decision in Toledo v. Escamilla, the court noted that when a defendant claims she is not a tenant and holds an equitable interest, ejectment rather than eviction is the proper remedy. It remanded for further proceedings.
The docket shows the court also denied Vergara’s motion for appellate fees under sections 57.105 and 83.48, and later denied his motion for clarification on November 14, 2017.
The Law
Part II of chapter 83, the Florida Residential Landlord and Tenant Act, gives landlords a fast way to recover possession. Under section 83.59, a landlord can use the summary procedure of section 51.011. That shortcut works only against a tenant.
section 83.43 defines the terms. A “tenant” is “any person entitled to occupy a dwelling unit under a rental agreement,” and a “rental agreement” is any written agreement, or an oral agreement for less than one year, providing for use and occupancy of premises. If the occupant has no such agreement with the owner, the eviction statute does not fit.
The prevailing-party fee statute, section 83.48, applies to actions to enforce a rental agreement or part II of chapter 83. When the eviction fails because there was no tenancy, the fee claim under it fails too.
Ejectment, under chapter 66 (section 66.021), is the traditional action for an owner with title to recover possession from someone in possession who is not a tenant. It is a different and slower case, and it is where disputes about who really owns the property get tried.
Current law (2026): In 2024 the Legislature created section 82.036, a sheriff-removal remedy for unauthorized occupants of residential property. It does not apply to current or former tenants under an authorized rental agreement, to the owner’s immediate family, or when litigation over the property is pending between the owner and the occupants. A dispute like this one, with a pending ownership lawsuit, would not qualify.
Lessons
- Before filing an eviction, confirm you have a rental agreement with the person you are suing. A deal with a relative or friend of the occupant is not enough.
- An occupant who claims an ownership or equitable interest can push the case out of the summary eviction track. Owners should consider ejectment from the start in that situation.
- Getting a fast judgment on the wrong theory can cost more time than filing the right case. Here the owner’s judgment, rent award and fee entitlement were all reversed.
- Occupants facing an eviction should raise the lack of a rental agreement early and in writing. It was Borjas’s defense from her first answer.
Source: Borjas v. Vergara, No. 3D16-1788 (Fla. 3d DCA Oct. 18, 2017); ACIS docket.
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Eviction Under Chapter 83 When the Occupant Never Agreed to Rent: Tenant or Ejectment Case?
Go Deeper
- “It Was Never Really a Lease”: Estoppel Loses to the Written Terms (Bay Point Schools)
- Is an Eviction Appeal Moot Once the Tenants Move Out? (Sierra v. 3011 N.W. 36th Street)
- A Handwritten 50-Year Lease Signed by Only One Owner (Corbin v. McDaniel)
Frequently Asked Questions
Can I evict someone who never signed a lease with me?
Only if you have a rental agreement with that person, which can be oral if it is for less than a year under section 83.43. In Borjas v. Vergara, the owner’s agreement was with the occupant’s son, so the Third District held the eviction process could not be used against her.
What is the difference between eviction and ejectment in Florida?
Eviction under chapter 83 is a fast, summary process for landlords against tenants. Ejectment under chapter 66 is a regular lawsuit by an owner with title against someone in possession who is not a tenant, and it is where disputed ownership claims are decided.
How do I remove a family member who won't leave my house in Florida?
It depends on whether there was a rental agreement. If not, eviction may be the wrong tool, and the 2024 sheriff-removal law in section 82.036 excludes the owner’s immediate family. Ejectment is often the remedy, and a lawyer should look at the facts first.
Do I owe the owner's attorney's fees if I win an eviction appeal?
Not under section 83.48 if there was no landlord-tenant relationship. In Borjas, the fee entitlement fell with the judgment, and the Third District denied the owner’s motion for appellate fees.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
