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Brent Blanchard
Brent Blanchard, Attorney
Category: Business Law
Satisfied Customers: 1975
Experience:  Thirteen years of business law experience, from business formation to litigation
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I was able to get a restraining order against one of the tenants,

Customer Question

I was able to get a restraining order against one of the tenants, and I send them a 7 day eviction notice. Yesterday the wife offered to leave the premises in exchange for some money. We signed an agreement in which she agreed to move out tomorrow. The first clause of the agreement makes clear that the earlier contract is null and void.

If she doesn't move out, can we accuse her of trespassing, since the first contract will be null and void?
Submitted: 6 years ago.
Category: Business Law
Expert:  Brent Blanchard replied 6 years ago.
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Brent Blanchard :

Thank you for your question.

Brent Blanchard :

If a later contract clearly exchanges agreements and promises that an earlier agreement is now fully nullified, that new agreement almost always holds.

Brent Blanchard :

There are exceptions, such as misrepresentation making one side be "tricked" into the later agreement, agreements against public policy (you can't hire someone to kill you, for example), and possible violations of statutory law if the new agreement goes "outside the lines" of what the legislative people say you can.

Brent Blanchard :

A person whose rights to occupancy to residential rental property have been extinguished can usually be charged with criminal trespass for remaining on the premises. However, there is potential for interplay with local landlord-tenant law, and an "unlawful detainer" action is the proper way to enforce the right to oust a tenant from the land. A restraining order complicates things, because its specific terms may or may not help a landlord's case in trying to forcibly remove a tenant who has broken yet another promise.

Brent Blanchard :

There is also a question regarding authority. A person who is "a stranger to the contract" cannot sign on behalf of the person who really was part of the original contract. Attorneys are always asking who their client means by "they" and "he" and "we", for that reason. Whose name/names are XXXXX XXXXX original lease will determine how enforceable any later agreement will be, regardless of whether it was entered into for the purposes of settlement.

Brent Blanchard :

Thank you.

Brent Blanchard :

BAB.

Customer :

Hi Brent,

Customer :

Both the original contract and the agreement included both of the persons involved in this matter

Brent Blanchard :

Then neither one can complain about the later agreement.

Customer :

How do I request an unlawful detainer action? Please remember that I am in Florida

Brent Blanchard :

Unlawful detainers are a lot like any other lawsuit. The procedures and hearing schedule are expedited, though. I wouldn't worry about that until/unless there is yet another breach. That would be a whole new question anyway. Please do not forget to click the green "Accept" button so I can receive credit for my work.

Brent Blanchard :

Thank you.BAB.

Customer :

Hi Brent,

Customer :

Im sorry, but your answer does not seem to apply in Florida...

Brent Blanchard :

To which question?

Customer :

Your answer about Unlawful detainers

Customer :

I asked about trespassing and you said that "unlawful detainer" action is the proper way to enforce the right to oust a tenant from the land."

Customer :

Except that this is not so in Florida, so my original question stands:

Customer :

In Florida, can I seek a trespass charge if she doesn't move out, as she agreed to do in writing?

Brent Blanchard :

Trespass charges fall under the criminal statutes. The immediate remedy is law enforcement assistance. Prosecution is usually by the city attorney, at his or her discretion. Unlawful detainer is a civil action and puts you right back into the civil and landlord/tenant arena.

Brent Blanchard :

Two different questions.

Brent Blanchard :

I am leaving for an outside appointment. Cheers!

Brent Blanchard :

BAB.

Brent Blanchard and 3 other Business Law Specialists are ready to help you
Expert:  Brent Blanchard replied 6 years ago.
BTW, if you want to pursue a civil case for trespass, that remedy under the contract's termination of rights of occupancy almost always takes much longer than regular eviction proceedings. Those are expedited under the statutes and court rules.

"Charges" means a criminal case in the legal world. Trespass is also a civil tort for which money damages and a court order authorizing physical removal of the people and/or their "stuff" is the remedy.

Thank you.

Sent as "Need Info" as it merely supplements the prior answer.

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