The following article was provided by Shawn M. Yesner, Esq., founder of Yesner Law, P.L., a Tampa-based boutique real estate and consumer law firm
Most landlords want to avoid the time, expense and general ugliness of evicting a family from a residential dwelling. Unfortunately, however, when tenants fail to pay (even with a reasonable explanation) landlords are sometimes forced to remove the tenant in order to protect their investment property. Many evictions can be avoided, and many disagreements can be diffused if landlords and tenants would both follow the written agreement (the lease) and Florida law.
Residential tenancies are governed by the Florida Residential Landlord and Tenant Act (“Act”), which is Chapter 82, Part II (sections 83.40 – 83.683) of the Florida Statutes. Under Florida Law, the Act controls in most situations, unless the lease provides something different.
Most landlords run into trouble when tenants complain about the condition of the property. There is a process whereby tenants can withhold rent for the landlord’s failure to maintain the property. Unfortunately, many tenants fail to utilize the process properly. If the lease is silent as to the obligation to maintain the property, then the landlord’s responsibilities are governed by section 83.51, which provides that the landlord must: (a) comply with all building, housing and health codes, or (b) if none, “maintain the roof, windows, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition.” Unless the parties agree differently, in the lease agreement, the landlord must also make reasonable provisions for: (a) extermination, (b) working locks and keys, (c) clean and sage common areas, (d) garbage removal, (e) heat during the winter, running water, and hot water, and (f) working smoke detectors.
However, section 83.51(c) says, “Nothing in this part authorizes the tenant to raise a noncompliance by the landlord with this subsection as a defense to an action for possession.” This means that if the landlord fails to maintain the property, the tenant cannot use that failure to maintain as justification to stop paying rent without taking a few preliminary actions. The tenant must send the landlord a letter pursuant to Section 83.56 and Section 83.60, that specifies the violation and gives the landlord seven (7) days to fix the problem. If the landlord does not try to fix the problem or is unable or unwilling to fix the problem, the tenant can then (after 7 days from delivery of written notice) do one of two things: (1) terminate the lease without penalty, or (2) reduce rent proportionately with the repairs necessary.
Another area that trips up landlords is terminating a lease agreement that was for a specific term but has become month to month, or a lease that was month to month from its inception. Florida Statute Section 83.57(3) provides that a month to month tenancy is terminated “by giving not less than 15 days’ notice prior to the end of any monthly period.” This means that if notice is given any time before the 14th or 15th of the month (not including February) then the notice is proper to terminate the lease by the end of the month. But if the notice is given after the 16th of the month, then the lease terminates at the end of the next month – because the notice would not be given more than 15 days prior to the end of the month. For example, notice given on March 2, to terminate the lease by March 31, is okay; conversely, notice given on March 20 would terminate the lease on April 30, not April 4 (15 days) as most landlords believe to be true.
Finally, Section 83.64 prohibits the landlord from evicting, raising rent, or otherwise discriminating against the tenant if the tenants has: (a) complained to a governmental agency about the condition of the property, (b) organized, encouraged or participated in a tenant organization, (c) complained about the condition of the property, (d) paid association dues after then landlord’s failure to do so, or (e) exercised his rights as a member of the military, or under state or federal housing laws.
For more information on Florida Landlord / Tenant Law, please subscribe to the Crushing Debt Podcast, on iTunes, Stitcher, and GooglePlay. If you prefer, please contact Yesner Law, P.L. to schedule a free initial consultation to discuss your options at 813-774-5737 or email Shawn M. Yesner, Esq. directly at firstname.lastname@example.org.