Removing a Non-Tenant from Estate-Owned Property

What happens when someone is illegally living in estate owned property and will not leave? Easy. Evict them. Right? Yes, if the person is a tenant of the property and the estate is the landlord. Eviction actions arise out of disputes between landlords and tenants and can be filed in both county and circuit courts. However, what happens in situations where the person occupying the estate-owned property is not a tenant of the estate? In these cases, ejectment is the proper cause of action. So, where and how does a person bring an ejectment claim to recover estate-owned property? In such situations, circuit court is the proper venue. This can include probate courts, whose general duty is to settle estates. While there is nothing expressly disqualifying a probate court, as a circuit court, from hearing an ejectment claim, if the a probate court cannot adequately administer justice, the claim must be heard in a circuit court of general jurisdiction.

Ejectment is a statutory action in Florida to be handled by circuit courts. “[Circuit courts] shall have exclusive original jurisdiction [i]n actions of ejectment.” Fla. Stat. § 26.012(f). When a person dies, testate or intestate, with real estate, his personal representative may bring ejectment to recover the land from the possession of another. The court in In re Brown’s Estate quoted the proposition that, “[c]ourts of probate settle estates. They settle them among the persons originally interested in them.” In re Brown’s Estate, 134 So. 2d 290, 295 (Fla. 2d DCA 1961). The court in Brown found that it was not within the purview of a probate court to settle disputes between the estate and a stranger to the estate. Id. However, according to the court in Wallace v. Luxmoore, “the circuit courts as courts of equity have jurisdiction in cases where as in this the probate court cannot administer such relief as will give complete and adequate justice.” See Wallace v. Luxmoore, 156 Fla. 725, 727-8 (Fla. 1946); see also Opitz v. Morgan, 68 Fla. 469 (Fla. 1914); Cole v. Cole, 106 Fla. 226, (Fla. 1932). Further, “[a] question of title to real property must be determined in the Circuit Court, irrespective of the fact that as an incident thereto the court determines the validity of proceedings in the County Judge’s Court; however, such collateral inquiry into the regularity of the proceedings in the County Judge’s Court will not be allowed except upon a showing of an entire absence of jurisdiction.” Bambrick v. Bambrick, 165 So. 2d 449, 457 (Fla. 2d DCA 1964); see also Wilkins v. Deen Turpentine Co., 84 Fla. 457 (Fla. 1922); Fiehe v. R. E. Householder Co., 98 Fla. 627, 652 (Fla. 1929); Mitchell v. Bogue, 142 Fla. 787 (Fla. 1930).

Ejectment actions can be brought when: 1) the plaintiff is out of possession of property and the defendant is in possession; 2) the plaintiff seeks to recover possession; and 3) the plaintiff has an immediate right to possession. “[E]jectment actions are subject to the exclusive original jurisdiction of Florida’s circuit courts.” Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So. 2d 1244, 1251 (Fla. 2008). To be entitled to recover in an ejectment suit, a plaintiff must show that he has a present right to possession. See Demps v. Hogan, 57 Fla. 60, 48 So. 998 (1909); Byrd v. Culver, 376 So.2d 41, 42 (Fla. 4th DCA 1979); Davis v. Hinson, 67 So. 3d 1107, 1110 (Fla. 1st DCA 2011). “A present right to possession may be established in two ways: by demonstrating an enforceable legal title or by showing prior possession (actual or constructive) of the land.” See Blitch v. Sapp, 142 Fla. 166, 194 So. 328, 329 (1940); Alford v. Sinclair, 55 So.2d 727, 729 (Fla.1951).

So, in order to be successful in a claim for ejectment, the plaintiff (generally the personal representative of the estate) must show that the estate is not in current possession of the property, that the estate is seeking to possess the property, and that the estate has the right to possess the property. To establish the right to possession, the estate can rely on the title to the property or can make a case for constructive possession based on prior possession. The latter situation arises in cases when the legal title to the property is not held by the estate.

In sum, when removing a person from estate-owned property, the personal representative first needs to assess whether there is a landlord-tenant relationship and thus whether a claim for eviction or ejectment is warranted. If there is no landlord tenant relationship, and therefore no basis for eviction, a claim for ejectment may be filed in circuit court.

If you or someone you know is aware of someone improperly possessing estate-owned property, the lawyers at Chepenik Trushin LLP can help.