For Florida tenants, fighting eviction comes at a price

A life-long renter in a Tampa neighborhood may spark an overhaul of Florida’s eviction law, if she wins in court.

Elizabeth Dorado has lived in the same house for 30 years. She raised her two children there. So when her landlord filed to evict her in December 2019, she chose to fight it. In order to prove that she had always paid her rent on time and kept the property in good shape, Dorado, 64, first had to pay $3,000.

“I was shocked,” Dorado said. “Since I work paycheck to paycheck it was really hard. I was a nervous wreck.”

Under Florida law, tenants accused of failing to pay rent must pay whatever amount their landlord says they owe into the court registry before they can proceed with their eviction case. If the tenant doesn’t pay within five business days, the case defaults in favor of the landlord.

Those in favor of the law say that without it, delinquent tenants may try to stall an eviction while living rent free. But housing rights advocates contend that the statute creates a pay-to-play system which prevents poor people from seeking justice.

Florida is the only state in the country where tenants must pay before they’re given an initial eviction hearing. Dorado’s case has the potential to change that.

Dorado, who works as a home health aide, was able to borrow the money she needed from one of her clients, allowing her to move forward with the case. In April, her attorney, Ryan Torrens, filed a motion asking the circuit court judge in Hillsborough County to overturn the statute that requires tenants to pay into the registry.

“No Floridian should be required by law to pay an admission ticket costing thousands of dollars to gain access to the courthouse doors,” the motion states. “This is precisely what Fla. Stat. § 83.60(2) does and, as a result, the statute violates the Florida Constitution’s guarantee of access to courts as well as the Due Process Clause of the federal constitution.”

Dorado’s landlord, Sandra Consuegra, declined to comment for this story through her attorney. The Florida Apartment Association, an industry group for multi-family housing providers, also declined to comment, citing pending litigation.

Lawrence Silvestri is a commercial real estate attorney in St. Petersburg who has represented residential landlords in eviction proceedings. He said the statute helps protect landlords.

“Even with this provision, the landlord is probably going to lose one or two months of rent,” he said. “In states where they don’t have this, it can take six months or more of loss before you get a tenant out.”

Overturning the statute, he said, would open the door for bad tenants to take advantage of the system while helping relatively few tenants with legitimate defenses.

When the statute was first enacted in 1973 it was intended as a safeguard for landlords, said Jeffery Hearne, director of litigation and advocacy director for the Tenants’ Rights Project at Legal Services of Greater Miami. But overtime the language has been amended in a way that’s made it “more and more draconian.”

“The landlord does have a property interest and they have a right to have a resolution,” Hearne said. “But we can’t take away tenants rights just to make sure that things move through the courts efficiently.”

Last year there were bills filed in the Florida Legislature aimed at removing the statute, but those efforts died before they reached the House and Senate floors.

Torrens said Dorado’s case presents a rare opportunity to seek a resolution through the courts. “The only reason we are even able to fight this is because she could pay into the registry,” he said. “Most tenants cannot.”

Since 2018, 74,262 evictions have been filed in Hillsborough, Pinellas and Pasco counties, according to data from the respective clerks of court. Less than 10% of those cases resulted in a hearing.

At the start of the pandemic, both state and federal governments put emergency restrictions in place to ensure renters would have a safe place to stay as the coronavirus spread. This caused a sharp drop in evictions across Florida. But since those protections expired — in 2020 for the state moratorium and 2021 for the federal one — the number of evictions has steadily climbed.

Among those tenants affected is 33-year-old Marquel Ferguson. He was evicted from his Clearwater apartment last month after a state-run rent assistance program failed to pay his landlord on time.

Though Ferguson said he had a legitimate defense for falling behind on rent, “I never got the chance to explain myself,” because he could not come up with the $3,700 his landlord claimed he owed.

Generally, if a tenant cannot pay into the registry the landlord automatically wins. But there are a few exceptions to the rule. If a tenant claims they do not owe any money, they can argue what’s called a “defense of payment,” Torrens said.

Though Dorado raised a defense of payment, she ultimately still had to pay into the registry. That’s because her case hinged on several other arguments as well. If she didn’t pay, she wouldn’t be allowed to make those additional arguments.

Tenants also have the opportunity to dispute the amount of rent owed. In order to do so they must file a motion within five business days and provide evidence for the judge to evaluate.

For the average person without a law degree, “the process is not very user friendly,” said Hearne. “The odds are stacked against you.”

This was the case for Ferguson.

In February, he and his daughter contracted COVID-19, causing him to miss several weeks of work. At the time, Ferguson worked for a solar company and made most of his money on commission. He had applied to the OUR Florida emergency rental assistance program in the past and reached out to them again for help. Ferguson said he was approved for three payments of $1,200 to cover his rent for March, April and May.

Ferguson said the March rent assistance was paid. In April, the payment from OUR Florida never came. At first, Ferguson said his property manager was understanding. Then in May the same thing happened, the money never came through.

Laura Walthall, a spokesperson for the state agency that runs OUR Florida said that Ferguson was not approved to receive assistance for the months of April and May. Ferguson’s property management company, Providence Team Realty, did not respond to multiple requests for comment.

By June, Ferguson was two months behind on rent, but he said his property manager agreed to wait for OUR Florida to send the rent assistance money. It never came. After a heated back and forth with the property manager, Ferguson said his outstanding balance continued to increase until he owed $3,700.

On June 17 he received a summons of eviction. Ferguson knew he didn’t have the money to pay into the registry, so he wrote to the judge in Hillsborough County circuit court, explained his situation and asked for a hearing to determine the amount of rent owed.

On July 11, the judge delivered a final judgement siding with the property manager. There was no response to Ferguson’s letter and no explanation as to why he would not be given a hearing.

Ferguson and his two children moved out last month with nowhere to go. His kids are now staying with family members in the area, and Ferguson is couch surfing until he can find a new apartment.

Though he hoped he would be able to amicably resolve the dispute through the court system “the whole situation left me feeling defeated,” he said. “I feel like I was taken advantage of because I’m poor.”

There have been a handful of lawsuits that have raised issues with the court registry system, though none have been successful in changing the law that requires tenants to pay upfront.

Torrens said he believes Dorado’s case has the potential to eliminate the financial barriers that prevent Ferguson and countless other Floridians from getting their day in court.

“We are hoping the judge makes the right decision here and strikes down this statute,” he said.

Dorado had never planned to live anywhere else but the home she’s rented on West St. John Street. Now she’s unsure where she’ll live next if she has to go.

“I would love to stay forever,” she said. “That’s my dream.”