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The Florida Bar Journal
September/October, 2018 Volume 92, No. 8
What Are You: A Hotel Guest, Tenant, or Transient Occupant?

by Miguel J. Chamorro

Page 67

Florida hotels occasionally encounter the following problem: They want a guest gone, but the guest cannot be easily removed because the guest is actually a tenant. In Florida, there is no legal requirement that residential tenancies be in writing. And thanks to vague law, the occupant of a hotel can claim to be a tenant rather easily. That last year’s hurricane rendered the hotel their primary residence, that their children are enrolled at a nearby school, that their driver’s license reflects the hotel’s address, that they have been there for a long time, and that they have nowhere else to go, are all winning arguments for the guest-turned-tenant.

The benefits of the legal transformation, so to say, of a hotel guest into a tenant are substantial. Hotels, which are formally known as public lodging establishments, according to F.S. §509.013(4)(a), cannot immediately remove a guest from its premises for reasons such as nonpayment or being a nuisance, as would be the case with a restaurant that wants to remove a patron.1 The law protects individuals who intend to make of their hotel room a home, even in the absence of a written lease. A hotel may call the police for help, but the police may refuse to get involved in a civil dispute. The hotel may also lock out such guests to motivate them to leave, but, in doing so, it risks being sued for an unlawful eviction. Thus, the hotel’s recourse may be to commence eviction proceedings — expensive and time-consuming, but the safest bet.

Anecdotal evidence suggests that an increasing number of hotel guests in recent years have successfully asserted themselves as tenants and have avoided being immediately removed from hotels. Doing so buys them precious time. If such a guest does not pay the bill (a/k/a the rent), the hotel must serve him or her a three-day notice, wait for the three business days to expire (assuming it was hand delivered and that the default is not non-monetary, for which additional notice is required), file the lawsuit, obtain service of process, obtain a judgment of possession, obtain a writ of possession, wait for the sheriff to post a 24-hour notice and then, finally, consummate the eviction. To make matters worse, the hotel is forced to incur the expense of resorting to the judiciary while continuing in an undesired relationship in which it is likely losing income.

It is critical for the public lodging industry and individuals, therefore, to distinguish transient occupants (i.e., ordinary hotel guests, as to whom the public lodging law, F.S. Ch. 509, applies) from nontransient occupants (i.e., tenants, as to whom the Florida Residential Landlord and Tenant Act (FRLTA), F.S. §§83.40-83.683, applies). This article explores the differences and provides practical advice to all parties affected.

The Summary Removal of Ordinary Guests (i.e., Transient Occupants)
As already noted, it is easier for a hotel to remove an ordinary guest (i.e., a transient occupant) than it is for a landlord to evict a tenant. Removing a transient occupant merely requires a request for departure.2 The FRLTA does not come into consideration.3 A hotel need only notify the transient occupant that it no longer wishes to entertain him or her as its guest and, “at the time such notice is given,” reimburse the unused portion of any advance payment.4 It suffices to give the transient occupant the following statutory warning, orally or in writing:

“You are hereby notified that this establishment no longer desires to entertain you as its guest, and you are requested to leave at once. To remain after receipt of this notice is a misdemeanor under the laws of this state.”5

A transient occupant who remains on the premises after being so requested to leave, may be prosecuted for a second-degree misdemeanor.6 The hotel may call any law enforcement officer of this state for assistance and it becomes the duty of such officer, upon the hotel’s request to:

“place under arrest and take into custody …any [transient occupant] who violates [§509.141(3), Fla. Stat.] in the presence of the officer….Upon arrest…the [transient occupant] will be deemed to have given up any right to occupancy or to have abandoned such right of occupancy of the premises, and the operator of the establishment may then make such premises available to other guests.”7

The immediate removal procedure defers to the hotel’s freedom to choose with whom it does business.8 The statute upon which it is based provides a host of reasons that a hotel can cite as grounds for removing transient occupants: the illegal possession of controlled substances; being intoxicated, profane, lewd; brawling; indulging in language or conduct that disturbs the peace and comfort of other guests; failing to pay rent; failing to check out timely; or being considered a person the continued entertainment of whom would be detrimental to such hotel.9

F.S. §509.141 is popular among hotel operators. Popular, that is, until the police decide they cannot remove a guest, and the hotel realizes it needs to file an eviction lawsuit; and less popular still when a former guest sues the hotel for unlawful eviction.

Distinguishing Ordinary Guests from Nontransient Occupants
The practicality of the immediate removal procedure begs the question: To whom does it apply? It applies to guests in transient occupancy only.

Under Florida law, hotel guests are either transient occupants (i.e., ordinary hotel guests) or nontransient occupants (i.e., tenants). A transient occupancy means “occupancy when it is the intention of the parties that the occupancy will be temporary.”10 There is a rebuttable presumption that, when the dwelling unit occupied is not the sole residence of the guest, the occupancy is transient.”11 Transient occupants are generally associated with “transient public lodging establishments,” which are groups of units that are “rented to guests more than three times in a calendar year for periods of less than 30 days or one calendar month, whichever is less, or which [are] advertised or held out to the public as a place regularly rented to guests.”12 Although public lodging establishments are classified into six categories (e.g., hotels and motels), for purposes of this article those classifications are irrelevant if a guest is considered to be in a nontransient occupancy.13

A nontransient occupancy exists when “it is the intention of the parties that the occupancy will not be temporary. There is a rebuttable presumption that, when the dwelling unit occupied is the sole residence of the guest, the occupancy is nontransient.”14 In practice, a guest in nontransient occupancy is a tenant. A hotel cannot immediately remove tenants — it can only evict them in accordance with the FRLTA.15

However, the definitions of transient and nontransient occupants are vague. Is it the intention of both “parties” — i.e., the hotel and the guest — that needs to be considered in determining whether the occupancy is transient? Both definitions use the plural of the word “party,” meaning that both sides should agree, ab initio, as to what type of relationship exists.16 There is no reported caselaw on this issue, but anecdotal evidence indicates that local police often defer to guests’ intentions, real or purported. In other words, police tend to side with guests who argue their occupancy was never meant to be temporary and that their hotel room is their sole residence, thereby invoking the rebuttable presumption of the statute.

Another problem with the definitions of transient and nontransient occupants is that they do not indicate when the parties should manifest their “intention” to each other.17 Should it be upon the guest’s arrival or after the passing of time? There is a dearth of caselaw on this topic. Some hotels request guests, upon checking in, to disclaim in writing the existence of a landlord-tenant relationship. These disclaimers may help the hotel’s cause, but they are not foolproof because they can be considered an unlawful attempt “to circumvent the procedural requirements of the [FRLTA].”18 In HSH Eastgate, LLC v. Sheriff of Osceola County, 2015 WL 3465795 (M.D. Fla. 2015), for example, the court held that it would be improper for police officers to determine whether a hotel guest was a transient based solely on what was stated in their guest registration card on file with the hotel. Likewise, any provision in a residential lease that “purports to waive or preclude the rights, remedies, or requirements set forth in [the FRLTA]” is unenforceable.19

Unofficially, some police departments and hoteliers use the six-month mark of a guest’s stay to distinguish transient occupants from nontransient occupants. This informal rule is derived from a tax statute, which exempts the payment of tax on rentals that last more than six months.20 Under this informal rule, it is presumed that a de facto tenancy arises after the guest has been in-house for six months. Indeed, an extended stay at a hotel, regardless of the reason for it, lends credence to the existence of a nontransient occupancy.21

Some courts, however, disregard the length of stay and focus on the statutory presumption: whether the dwelling unit “is the sole residence of the guest.”22 Given the statutory presumption, whether the hotel is the guest’s sole residence is arguably the most decisive indicator of whether a nontransient occupancy is deemed to exist — be it by the police or a court of law.

A Hotel vs. the Sheriff — A Tale of Frustration
A common problem generated by the definition of nontransient occupancies is when a short-term guest can no longer afford the hotel’s rates, the hotel requests immediate removal, and the police refuse to help on grounds that the guest (presumably a transient occupant) qualifies for protection under the FRLTA. Perhaps out of fear of negative publicity or to avoid a tense altercation, some police officers err on the side of finding nontransient occupancies. This leads to the sort of frustration epitomized by the hotel operator in HSH Eastgate.23

In HSH Eastgate, a hotel complained that when it asked the sheriff’s office to assist with the immediate removals of transient occupants, the sheriff refused to make arrests, even though the hotel had satisfied the requirements of F.S. §509.141.24 The hotel contended that the sheriff’s policy of refusing to properly enforce the law deprived it of its right to procedural due process, in violation of 42 U.S.C. §1983.25 The sheriff countered that its officers had properly refused to arrest the hotel’s guests under F.S. §509.141(4) because, after conducting investigations, the officers determined that the guests were nontransient.26

In granting summary judgment for the sheriff’s office, the court noted that:

“[T]he only evidence in the record is that the [s]heriff requires that officers first determine that a guest is transient, and therefore that [§509.141, Fla. Stat.] applies, before arresting the guest for violating it. Such a policy is not only acceptable under the [d]ue [p]rocess [c]lause, it is required by the Fourth Amendment. The constitutional validity of an arrest turns upon whether, at the moment it was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent officer in believing that the person had committed the offense.”27

The judgment entered in HSH Eastgate should serve as a cautionary tale to hotels considering similar legal action against law enforcement. It should also serve to emphasize the fact that F.S. §509.141 safeguards the rights of nontransient occupants.

Asserting One’s Rights as a Nontransient Occupant (i.e., Tenant)
As noted previously, it is statutorily presumed that there exists a nontransient occupancy if the hotel is the guest’s sole residence. But this presumption can be rebutted. To buttress it, one may turn to the law of unlawful detainers, which, although it pertains to a different cause of action, may help establish one’s status as a guest in nontransient occupancy and, therefore, subject to the FRLTA.28

F.S. §82.045 lists criteria that may be considered in determining if someone is a “transient occupant.”29 A guest who wishes to prove that it is a nontransient occupant should offer proof of the following items:

1) The guest has an ownership interest, financial interest, or leasehold interest in the property.

2) The guest has property utility subscriptions.

3) The guest uses the property address as an address of record with any governmental agency (e.g., the Department of Highway Safety and Motor Vehicles or the Supervisor of Elections).

4) The guest receives mail at the property.

5) The person has a designated space of his or her own, such as a room, at the property.

6) The person has a substantial amount of personal belongings at the property.

7) The person does not have an apparent permanent residence elsewhere.30

If the factors above are presented to a police officer who appears at a hotel to carry out an immediate removal, the officer is likely to decline to act.

For the hotel, at that point, the next step should be to file an eviction action. A hotel that still insists on removing the guests through other means — such as by locking out or cutting off utilities to its room — risks an unlawful eviction action for damages. Under the FRLTA, a “wrongfully removed” tenant can sue for the following types of relief: 1) compensatory damages under F.S. §83.55; 2) actual and consequential damages or three months’ rent, whichever is greater, under F.S. §83.67(6); 3) injunctive relief under F.S. §83.67(7); and 4) even punitive damages, if the hotel acted with intentional misconduct or gross negligence.31 In addition, F.S. §83.48 entitles a tenant to recover its attorneys’ fees and costs. Hotels should avoid such a scenario.

Evicting Nonstransient Occupants (i.e., Tenants)
Having established that a guest is actually a nontransient occupant, the question arises: How is that person evicted? In situations involving nonpayment, the answer is simple. The hotel must serve on the guest a three-day notice to pay rent or vacate, identifying the deadline by which the guest must either eliminate its outstanding balance or vacate the premises.32 Moneys charged to the guest for the privilege of occupying the hotel room should be considered rent for purposes of the FRLTA.33 In situations involving a guest’s failure to comply with hotel regulations (e.g., the guest is being a nuisance), a seven-day notice to cure would be served. But the answer is more complicated when the hotel simply wants to part ways with the guest, say, because it wants to renovate the hotel or lease the dwelling unit to someone else. In the latter situation, the term of the parties’ tenancy must be ascertained.

A nontransient occupancy creates, as a matter of law, a tenancy without a specific term between the hotel and its nontransient occupant.34 This is so because there is no rental agreement between the parties that establishes the duration (i.e., term) of the tenancy — otherwise there would have been no question about the existence of a landlord-tenant relationship. To evict such a nontransient occupant when there is no monetary or non-monetary default, the hotel must terminate the tenancy. To do so, the hotel must ascertain the duration of the tenancy, which is determined by the periods for which the rent is payable:

“If the rent is payable weekly, then the tenancy is from week to week; if payable monthly, tenancy is from month to month; if payable quarterly, tenancy is from quarter to quarter; if payable yearly, tenancy is from year to year.”35

Hotels that charge rent on a daily basis should consider treating the tenancy as being from week to week or — the more conservative approach — from month to month.

Depending on how often the rent is payable, the hotel must serve the tenant written notice, in accordance with F.S. §83.56(4) as follows, in order to terminate the tenancy:

“(1) When the tenancy is from year to year, by giving not less than 60 days’ notice prior to the end of any annual period;

“(2) When the tenancy is from quarter to quarter, by giving not less than 30 days’ notice prior to the end of any quarterly period;

“(3) When the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period; and

“(4) When the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.”36

One should be wary of municipal ordinances that require additional time, as these ordinances could be construed to supplement the FRLTA’s restrictions on the termination of tenancies and therefore be allowed to coexist with F.S. §83.57.37 A tenant who remains in possession of the hotel room after the expiration of the deadline identified in these notices may be treated as a holdover tenant.38 In what can be considered a bright spot for the hotel, holdover tenants may be subject to an action for eviction and for “double the amount of rent due on the [hotel room], or any part thereof, for the period during which the tenant refuses to surrender possession.”39 Furthermore, the hotel can recover attorneys’ fees in such an action.40

With the number of visitors and people on the move in this state, it is almost inevitable for Florida hotels and their guests to encounter the problem of not knowing which laws govern their rights and liabilities when their relationship sours. The vague statutes that define guests’ occupancy of hotel rooms encourages situations in which law enforcement officers take a purported position of neutrality, which means that hotels must resort to the judiciary for help. This benefits guests. It also benefits the attorneys who must litigate on behalf of public lodging establishments. It need not be so. The present state of the law on this important issue leaves too much to the imagination, and should be corrected. Everyone’s rights would be better protected, and law enforcement resources better conserved, by legislation that clearly states when a tenancy exists or when a hotel-guest relationship gives way to a landlord-tenant relationship.

1 For simplicity, this article refers to public lodging establishments as “hotels.”

2 Fla. Stat. §509.141(2).

3 Fla. Stat. §83.40-83.683.

4 Fla. Stat. §509.141(2).

5 Id.

6 Fla. Stat. §509.141(3).

7 Fla. Stat. §509.141(4). The statute refers to this procedure as “ejection,” which is not be confused with actions for ejectment under Fla. Stat. Ch. 66. Notably, the term “ejection” is not used elsewhere in the statutes.

8 In addition to calling the police, the hotel can use the lockout procedure found in Fla. Stat. §§509.401-509.417, by which the hotel can deny room access to a guest who accumulates a large outstanding balance. This procedure is not addressed in this article, but suffice it to say that it should only be applied to guests in transient occupancy.

9 Fla. Stat. §509.141(1). Removal cannot be based upon race, creed, color, sex, physical disability, or national origin.

10 Fla. Stat. §509.013(12).

11 Id.

12 Fla. Stat. §509.013(4)(a)(1).

13 Fla. Stat. §509.242.

14 Fla. Stat. §509.013(5).

15 See Fla. Stat. §§83.40-83.683.

16 Fla. Stat. §509.013(13) and (15).

17 Id. (emphasis added).

18 Fla. Stat. §509.034.

19 Fla. Stat. §83.47(1).

20 See Fla. Stat. §212.03.

21 See, e.g., Fleming v. Master, 18 Fla. L. Weekly Supp. 688a (June 7, 2011) (stay of almost two years); Chandler v. Cone, 3 Fla. L. Weekly Supp. 369a (July 28, 1995) (stay of approximately 16 months).

22 Fla. Stat. §509.013(15). See, e.g., Freppon v. Lakeland Hospitality Inc., 12 Fla. L. Weekly Supp. 783a (May 13, 2005) (holding that a nontransient occupancy had been established, despite stay of only one month in duration, where the guest resided at a hotel as an incident to employment).

23 HSH Eastgate, 2015 WL 3465795.

24 Id. at *1.

25 Id. at *1-2.

26 Id. at *1.

27 Id. at *3.

28 See generally Fla. Stat. Ch. 82. Unlawful detainer actions are used to evict — essentially — persons who come into possession of real property with the consent of the owner but then refuse to leave. They arise outside of the contexts of a landlord-and-tenant and hotel-and-guest relationship.

29 Fla. Stat. §82.045(1)(a). Despite the similar vocabulary, a “transient occupant” under Fla. Stat. Ch. 82 is not the same as a hotel guest in “transient occupancy” under Ch. 509.

30 See Fla. Stat. §82.045(1)(a).

31 Fla. Stat. §768.72(2).

32 Fla. Stat. §83.56(3).

33 Fla. Stat. §83.43(6).

34 Fla. Stat. §83.57.

35 Fla. Stat. §83.46(2).

36 Fla. Stat. §83.57.

37 See Op. Att’y Gen. Fla. 94-41 at *1 (1941) (opining that “[a] municipal ordinance that merely supplements the notice provisions in [§]83.57, Florida Statutes, would not conflict with the statute and would, therefore, be valid”). See also City of Miami Beach v. Rocio Corp., 404 So. 2d 1066, 1070 (Fla. 3d DCA 1981).

38 Fla. Stat. §83.58.

39 Id.

40 Fla. Stat. §83.48.

MIGUEL J. CHAMORRO is a partner at Lydecker|Diaz in Miami. He represents landlords and tenants in real estate, commercial, premises liability, and other legal matters. Chamorro currently serves as vice chair of the Civil Procedure Rules Committee of The Florida Bar.

This column is submitted on behalf of the Business Law Section, Michael B. Chesal, chair, and Paige Greenlee, editor.

[Revised: 08-24-2018]