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Q: My boyfriend and I bought a house. Only his name is on the deed. We have an oral agreement under which we equally paid the expenses of purchase, monthly mortgage, insurance, taxes and utilities. I heard through a friend he is filing a landlord tenant action to evict me, claiming I am merely a tenant. Can he do that?

A: Your situation emphasizes the importance of written contracts. Oral contracts can be difficult to prove and the burden of proving an oral contract will be yours in any lawsuit.

Many people rely on oral agreements because they get along so well at the beginning of a transaction. Even where a written agreement is prepared, the parties often try to avoid attorney’s fees and do it themselves. All of these situations are time bombs waiting to explode when the parties later have a dispute.

In Toldeo v. Escamilla, an unmarried couple purchased a condominium, but placed title solely in the boyfriend’s name. The couple later separated and the boyfriend moved out.

Toldeo remained in the condominium unit and continued to pay the mortgage, association fees, maintenance and even made improvements to the property. A few years later, the former boyfriend sold the property to a Mr. Escamilla without Toledo’s knowledge.

Apparently, Escamilla failed to learn or investigate Toledo’s status prior to closing. When he learned that she was living in the condominium, he filed an eviction action against Toledo in County Court under Florida’s Residential Landlord and Tenant Act (thereafter “the Act”).

At trial, Toldeo argued that she had an ownership interest in the property and should not be evicted. The trial judge ruled that because Toledo did not have any interest in the property that would be disclosed through a title search, her oral contract with her former boyfriend was unenforceable against Escamilla. Trail court entered judgment for eviction.

Toledo appealed and the appellate court eventually reversed the decision. The appellate court explained that the act provides landlords simplified procedure for removing a tenant. Under the act, landlord tenant eviction cases must be filed in county court, where the landlord is entitled to an expedited eviction and trial, if needed, is placed ahead of other pending cases in that court.

The court went on to note that the act defines a tenant, as “any person entitled to occupy a dwelling under a rental agreement.” Rental agreement is defined as any written agreement for use and occupancy of premises or an oral agreement for less than one year.

The court found undisputed that there was no written rental agreement. The court also found that because Toledo’s boyfriend had been absent for over four years, any oral agreement between Toledo and her former boyfriend could not be considered a rental agreement, as a rental agreement under the statute, if oral, is limited to duration of less than one year.

The court held that Toledo’s claim to an ownership interest meant that the case had to be tried as an ejection action and not eviction. Ejection is similar to eviction, as it is an action to determine right to possess real property against someone who wrongfully possesses it. The Circuit Court has exclusive jurisdiction over ejection actions. That meant the county court had no jurisdiction to hear this case at all and Escamilla would have to start over again with a new lawsuit in circuit court. That does not mean that Toledo will win, as the circuit court judge will decide the case after hearing all of the evidence at trial.

The Toledo case serves as a shining example of need for good legal advice. Toledo should have been on the deed or at least had a written agreement with her boyfriend. In addition, she should have placed notice in the public records where the property was located.

Escamilla should have personally visited the property before closing. Where a person is living in a property it places a buyer on notice that the person may have a tenancy or ownership interest. When Escamilla learned of the ownership claim by Toledo, he should have transferred the case to circuit court, where proper jurisdiction would allow a trial on the ownership issue.

Failure to transfer the case in a timely fashion means that Escamilla has spent considerable time and money pursing a dead end case. It’s even possible that Toledo may recover attorney’s fees from Escamilla for his unsuccessful effort to evict.

Oral contracts are difficult to prove. Even written contracts can later be found different than intended by one or both parties. Cost of subsequent litigation can be substantial. Competent legal advise and assistance from the outset can be priceless.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.