Florida Residential Landlord Tenant Law
A. Exclusion from Chapter 83 (§83.42)
- Residency in a facility incidental to provision of services
- Occupation under a purchase contact in which 12months rent has been paid or 1 month rent and 5% of purchase price
- Transient occupancy of a public accommodation. NB: Can turn into a tenancy when more than transient. i.e. contract for more than 30 days, or intent that the occupancy be long term.
- Occupancy under a co--op lease
- Occupancy by the owner of a condominium
B. Occupancy as a guest §82.045. Party in lawful possession of a dwelling unit may summarily remove a transient guest upon provision of an affidavit. Note that law enforcement is spotty in its willingness to enforce this statute. Remedy is unlawful detainer.
C. Unlawful Detainer - Chapter 82. Unlawful detainer applies to trespassers, or guests who refuse to leave when asked. Must be filed within 3 years of start of occupancy. Tries right of possession only, not title. Provides for Summary procedure under §51.011. Provides for damages equal to rental value, (double if found to be willful) but not attorneys fees or costs.
D. Ejectment. Chapter 66. Tries both title and possession. Circuit Court only
Once signed, leases are not rescindable. There is no 3-Day cancellation period. Leases of one year or less do not have to be witnessed or notarized. Leases of more than one year must be signed and witnessed by two witnesses. Caveat: Doctrine of partial performance. Demps v. Hogan, 48 So. 998 (1909)
A. Form of Lease
- Written: The FAR\BAR lease may be used by realtors and property managers. Form leases often provide tenants extra rights that they would not otherwise have. Be sure your lease is specifically a Florida lease. You are governed by Florida law. A written lease may not contradict any of the terms provided in Chapter 83. Non-form leases should only be prepared by an attorney. Drafting a lease is practicing law.
- Oral: If you do not have a written lease, you have an oral lease under the terms provided in Florida Statutes Chapter 83. The term of the lease is the same as the rental payment period. i.e. rent paid monthly – month to month lease. Rent paid weekly- week to week lease. Note: make it a “business practice” to give a receipt for rent payments. That way the tenant’s lack of a receipt is proof of non-payment.
B. DISCLOSURE OF LANDLORD'S ADDRESS §83.50
The landlord, or his agent, shall provide in writing the name and address of a person authorized to receive notices.
C. Required Terms:
- Name of landlord
- Name of Tenant. If you add the “tenant’s heirs, successors and assigns, the lease continues post mortem, otherwise it expires upon death.
- Property description
- Amount of rent
- Start date
- Granting clause: Landlord hereby leases to tenant
D. Optional Terms:
- Late Fees \ Security Deposit \ Last Month’s Rent \ Bad Check Fee: The amounts are not provided by law, but may be provided by lease. You can include such fees in the 3-Day Notice if categorized “as additional rent” in the lease. The only late fees rejected by a court were in a case where the landlord stacked a late fee for not paying the rent on another late fee for not paying the utilities. Buckholz V. King. 17 Fla. L. Weekly Supp. 1258a. Broward County ( 2010).
- Repair: See Section 83.51 landlord is legally obligated to keep property up to code. Landlords responsibility to maintain dwelling unit. Note: air-conditioning is not required. single family or duplex: may allocate repair responsibilities to tenant. 83.51(1)(b).
Considerations: costs of repairs to landlord, verses costs of damage to property by tenant attempting repairs. Removal of liability for repair issues, ability of tenant to withhold rent.
- Jury Waiver: have one.
- Assignability: if you do not state not assignable the tenant may assign or sublease.
- Notice to Vacate: §83.575 a lease of specific duration may provide that tenant must provide a notice of non-renewal up to 60 days prior to lease termination. The lease may provide for damages if the tenant fails to give notice. Tenant’s holding over with the landlord’s permission are liable for an extra month's rent.
E. Prohibited Provisions in Rental Agreements .S. §83.47
- Waiver: a rental agreement may not preclude any of the rights afforded under Chapter 83. Lease provision waiving necessity for a court eviction stricken Cristiano v. Robinson, 20 Fla. L. Weekly Supp. 146c, Orange County (2012). Lease provision providing for attorneys fees without a court judgment stricken. Robert Voight D/B/A Emerald Run Apts., V. McClain, 19 Fla. L. Weekly Supp. 737a, Polk County (2011)
- Exculpatory Clause: a provision that purports to preclude any of the rights and remedies of Chapter 83 or to limit landlord’s liability to tenant “under law” is unenforceable. A party may recover any actual damages as a result to such provision F.S. § 83.47(2)
Exculpatory Clause deemed unconscionable and landlord held liable for actual damages caused by leak in Chancellor v. Garrett, 2 Fla L. Weekly Supp 125a, Escambia County 1993.
See Ray v. Tampa Windridge Assoc 596 So.2d 676 (2nd DCA 1991) where a liability waiver for defective locks was voided where tenant was raped because of defective door lock.
But see Lockamy v. Byrne 474 So.2d 372 (1st DCA 1985) clause relieving the landlord of any liability for personal injuries suffered on the premises was not declared unconscionable.
A condo lease providing that acceptance of late rent would NOT constitute waiver of time of the essence provision was upheld by the 1st Circuit court of Appeal in Philpot v. Bouchelle 411 So.2d 1341 (1982)
A clause requiring tenant to vacate the premises by 5:00 pm on the day he received a demand for payment was ruled void by a county court in Bunton v. Powell 7 Fla L. Weekly Supp 739 (Escambia County 2000).
A clause reducing a notice to cure from seven to five days was ruled void by a county court in TCY Inc. v. Johnson, 3 Fla L. Weekly Supp 72 (Dade 1995)
A purchase agreement provided that the seller could evict the buyer if buyer defaulted on a payment was voided in Purcell v. Williams, 511 So.2d 1080 (1st DCA 1987). Seller was required to file a foreclosure to recover possession.
A provision permitting the landlord to terminate the tenancy upon 30 days notice in the first 90 days of a year lease was voided as conflicting with 83.56(2) notice of non-compliance provisions. York v. Fleagane, 7 Fla L. Weekly Supp. 287 (Broward 1999).
Landlord’s imposition of multiple late fees and stacking late fees where lateness extended into subsequent months deemed unconscionable in Buckholtz v. King, 17 Fla. L. Weekly Supp 1258 a Broward 2010.
Lease term permitting landlord to unilaterally change “house rules” deemed unconscionable in Arbor Land Trust v. Rozier, 5 Fla L. Weekly Supp 21b, Alachua County 1997.
- Forfeiture of Security Deposit Upon Breach: Enforceable if found to be liquidated damages, not enforceable if found to be a penalty clause. The larger the deposit, the less likely to be enforced. The earlier the breach, the more likely to be enforced. Inequitable, will not be enforced. Forfeiture clause ruled unconscionable Imbimbo v. Volusia Realty Assocs, 20 Fla, Supp. 2d 100 (Volusia County 1986); Morkin v. Dulaire, 13 Fla. L. Weekly Supp 1228a (Broward County, 2006).
- Waterbeds. §83.535. The landlord may not prohibit, may require tenant to carry insurance.
A utility company or even a municipality providing water a sewer services may not refuse service or discontinue service to either the owner or a prospective tenant due to an unpaid utility bill where service was in the name of a prior tenant.
Florida Statutes §180.135 provides
Utility Services; refusal or discontinuance of services for nonpayment of service charges by former occupant of rental unit prohibited; unpaid service charges of former occupant not to be basis for lien against rental property, exception
(1)(a) any other provision of the law to the contrary notwithstanding. No municipality may refuse services or discontinue utility, water, or sewer service to the owner of any rental unit or to a tenant or prospective tenant of such rental unit for nonpayment of service charges incurred by a former occupant of the rental unit; any such unpaid service charges incurred by a former occupant will not be the basis for any lien against the rental property or legal action against the present tenant or owner to recover such charges except to the extent that the present tenant or owner has benefited directly from the service provided to the former occupant.
(b) This section applies only if the former occupant of the rental unit contracted for such services with the municipality or if the municipality provided services with knowledge of the former occupant’s name and period the occupant was provided the services.
(4) In any case where a (residential) tenant does not make a payment for service charges to a municipality for the provision of utility, water, or sewer services, the landlord may thereupon commence eviction proceedings.
The statute applies if the utilities were in the name of the former tenant. If the landlord had provided the deposit for the utility account, the statute would still apply if the municipality was provided the name of the former tenant and informed of the time period of the tenancy. In the case of Berke v. City of Miami Beach, 568 So.2d 108 (Fla. 3rd DCS 1990) the City of Miami Beach file a lien against the rental property for the unpaid utility bills of the former tenants. The court of appeal ruled that the city could not impose a lien against the rental property. The fact that the tenants received utilities was deemed not to be a benefit to the landlord. The court stated that the city should have protected itself by requiring the landlord to co-sign for the utility account.
In another case, the water pipe broke while the landlord was in possession of the rental property resulting in a huge water bill which he did not pay. The landlord then rented the property to a tenant, who kept his water bill current. The city kept billing the landlord for the previous usage and when the landlord still did not pay this bill, the city cut off the water without any notice to the tenant. The court ruled that this violated due process. Davis v. Weir 497 F.2d 139 (5th Cir. 1974). Another court found that requiring a tenant to pay a former tenant’s water bill violated the equal protection clause Kroger v. Guarino, 412 F. Supp 1375 (E.D. Pa 1976) aff’d 549 F.2d 795 (3rd Cir. 1977). The court rejected these arguments in a case where the utilities were in the name of a husband, who left his wife and with an unpaid utility bill. The utility refused to let her open an account in her own name until the prior bill was paid. The court rejected her due process argument because she had enjoyed the benefit of the utilities. . The court rejected these arguments in a case where the utilities were in the name of a husband, who left his wife and with an unpaid utility bill. The utility refused to let her open an account in her own name until the prior bill was paid. The court rejected her due process argument because she had enjoyed the benefit of the utilities. Haynsworth v. South Carolina Elec. & Gas Co. 488 F. Supp 565 (D.S.C. 1979).
A. Choice of Court
Fla. Stat. § 34.011 (1) (2): County Court has exclusive jurisdiction to hear evictions unless:
- Amount in controversy exceeds $15,000 ( may , or
- The Circuit Court has jurisdiction pursuant to Fla. Stat §26.012 which would occur if the tenant filed a suit for injunctive relief in Circuit Court and the landlord filed a counterclaim for eviction.
If the landlord seeks an injunction against the tenant from damaging the leased premises he may petition either the Circuit or the County Court. The county court was given injunctive power in landlord tenant matters under F.S. 34.011(1)
B. Landlord Tenant Relationship
- Where the tenant alleges possession based on right, title or interest other than a landlord tenant relationship, the Court is required to hold evidentiary hearing to determine existence of residential tenancy. Frey v. Livecchi, 852 So.2d 896 (Fla. 4th DCA 2003) and should NOT require the rent to be deposited in the court registry prior to such determination. The County court does not have jurisdiction to try issues of title. Other than determining the existence of a tenancy, the County court may not rule on any issue regarding title.
- If there is no landlord-tenant relationship the Plaintiff is not entitled to summary procedure [ Grimm v. Huckabee, 891 So.2d 608 (Fla. 1st Dist. 2005)]
- If possession is based on contract for deed, Plaintiff will be required to foreclose [Blanco v. Novoa, 854 So.2d 672 (Fla. 3rd DCA 2003). Grimm, Frey].
Before a landlord can file a suit for possession, the tenancy must be terminated. The tenancy may terminated by the issuance of a notice of lease violation to the tenant. There are three types of notices: 3 day notice to pay rent, 7 day notice of non-compliance, and 15 day notice of non-renewal. The tenancy may also terminate by the expiration of the lease term, in which case no notice is required.
- AGENCY. Who may sign the notice terminating the tenancy ?
- Agency: A court in New York held that where there is not specific proof of the attorney’s authority to bind the landlord, the attorney was not authorized to sign the 3 day Notice, Seigel v. Kentucky Fried Chicken of Long Island Inc., 492 N.E. 2nd 390 (N.Y. 1986) Kwong v. Eng, 583 N.Y.S. 2d 457 (App.Div. 1992)
- FDCPA (F.S. 559.55- .785): An attorney issuing a 3 Day Notice falls under the Fair Debt Collection Practices Act, requiring a 30 day objection period. Ortiz v. Stork 14 Fla.L.Weekly Supp 90A (Broward County 2006).
- Property Managers: A property manager is defined as “one who is responsible for day-to-day management of residential rental property and includes corporate property management firms that have primary responsibility for rental and management of residential rental property and licensed real estate brokers and salesperson.” The Florida Bar re: Advisory Opinion-Non-Lawyer Preparation of and Representation of Landlord In Uncontested Residential Evictions, 627 So. 2d 485 (Fla. 1993).
- Landlord: The "landlord" is defined as either the owner or the "Lessor" of the dwelling unit §83.43 (3) F.S. Practice Tip: check the tax records to verify who the record title holder is. If there are multiple owners, they must all be listed on the notice.
- NON-PAYMENT OF RENT - 3 DAY NOTICE. A proper 3-day notice to evict is a condition precedent to eviction. Bell v. Kornblatt, 705 So. 2d 113 (Fla. 4th DCA 1998)
- 3 Day Notice Requirements. Fla. Stat. § 83.56(3) sets forth the requirements for the 3 Day Notice which are strictly construed. The notice must contain the following:
- Names: You must name all occupants legally responsible for payment of the rent.
- Address of the property and the apartment number as it appears on the door. Address: Notice is defective if it does not contain description of dwelling by either address or legal description. Starkey v. Shealey, 4 FLW Supp. 878 (Fla. Broward Cty. Ct. 1997). Practice Tip: if the doors are not marked, mark them. The Sheriff will not execute a writ of possession is there is any doubt as to the identity of the subject premises.
- The amount of the rent due, exclusive of any other fees or charges. Failing to specify the amount of rent or stating the wrong amount owed makes a 3 Day Notice defective . Kaplan v. McCabe, 532 So. 2d 1354 (Fla 5th DCA 1988); Palawski v. Duley, 50 Fla. Supp. 2d 207 (Fla. Manatee Cty. Ct. 1991)(failing to state the exact amount of rent due). Attorney fees, court costs and sheriff’s fees. Vinner v. Mason, 44 Fla. Supp. 2d 1990 (Fla. Pinellas Cty. Ct. 1990). Late fees. Barcelona West v. Ellis, 4 Fla. Supp. 2d 71 (Fla. Orange Cty. Ct. 1983); Hoche v. Berry, 5 Fla. Supp. 2d 110 (Fla. Orange Cty. Ct. 1981); Faj-hein v. Storr, 1 FLW Supp. 572 (Fla. Broward Cty. Ct. 1993). The lease did not contain any provisions relating to penalty payments for overdue rent. The court held that calling late charges “rent” in “House Rules” document executed simultaneously with lease was not adequate to change the nature of those charges. Arbor Land Trust v. Rozier, 5 Fla. L. Weekly Supp. 21 (Fla. Alachua Cty. Ct. 1997).Interest. Lawson v. Alvarez, 46 Fla. Supp. 2d 94 (Fla. Manatee Cty. Ct. 1990). Practice Tip: as including late fees is usually a mistake, I do not recommend including them on the 3 Day Notice, even if the lease defines late fees as rent.
- Notice may state that payment can only be made in cash [Moskowitz v. Aslam, 575 So. 2d 1367 (Fla. 3d DCA 1991)].
- The date the notice is posted. Notice cannot be sent before rent is due. The Housing Authority of the City of St. Petersburg, Fla. v. Bullard, 45 Fla. Supp. 2d 130 (Fla. Pinellas Cty. Ct. 1990) (notice was improper where delivered to each public housing tenant on the first of the month even before the rent was due and the tenant had defaulted). Shapiro v. Puche, 1 Fla. L. Weekly Supp. 409 (Fla. Broward Cty. Ct. 1993) ( notice was defective because landlord served notice on day rent was due).
- Delivery notice:
- Posting: preferred method of delivery. It does not matter whether the tenant personally receives it or it is posted. Practice Tip: take a picture of the 3 Day Notice on the door.
- Mailing: requires that that the landlord adds 5 working days to the 3 day compliance date. Investment and Income Realty, Inc. v. Bentley, 480 So. 2d 219 (Fla. 5th DCA 1985); Forest Glen Townhome Associate, Ltd. v. Gardner, 16 Fla. Supp. 2d 10 (Fla. Volusia Cty. Ct. 1985). The five additional days for mailing may count weekends and holidays as part of the five days, unless the fifth day falls on a weekend or holiday, in which case the due date shall be the next business day. NGUYEN vs. BROWN, County Court, 3rd Judicial Circuit in and for Columbia County, Civil Division. Case No. 08-442-CC. April 15, 2008. 15 Fla. L. Weekly Supp. 710a.
- Due Date: Failure to state date the rent must be paid renders the notice defective. Garcia v. Ruiz 50 Fla.Supp. 2d 176 (Fla. Dade Cty Ct. 1991). Note the three days exclude weekends and court holidays. Court holidays are days that that county's court is in session. Note that each county celebrates a different set of holidays and the holidays celebrates changes every year. Check with your county's clerk of Court. Practice Tip: At the beginning of each year prepare a form 3 Day notice for the County that you practice in and put the court holidays on the bottom of the 3 Day Notice as a reminder.
- The name of the landlord as it appears on the lease and or the deed. Landlord business name that was neither a registered fictitious name nor an incorporated entity with the Florida Secretary of State deemed invalid. MPI JACKSON ORLANDO LLC, vs. MYRICK, Orange County Court 2011, 19 Fla. L. Weekly Supp. 293c. Practice Tip: you may verify business names on Sunbiz.org.
- The landlord’s address where the rent is to be remitted. Where a three day notice is mailed to the tenant, or requires payment to a PO Box, or payment is to be sent out of the county in which the leased premises is located, the five day mailing rule is triggered. ( See IV B 1. (d) (2).
- The landlord’s phone number
- Tender: The landlord may not refuse a tender of the full amount of the rent claimed before the 3 day notice expires. Curley v. McMillan, 4 FLW Supp. 475a (Fla. Escambia County Ct. 1996). The landlord may refuse personal checks, a partial tender, or a tender after the notice has expired. Some courts have ruled that the tenant has until midnight on the third day, so any rent payment in full found the next business morning should be accepted.
- Waiver: Chronic acceptance of late payments could act to alter the date when rent is legally due. Heggs v. Haines City Community Dev. 2 Fla L.Weekly Supp 137 (10th Cir App. 1994) See also Royal Am. Mgt Inc. v. Kieth, 20 Fla. Supp. 2d 95 (Fla. Volusia County Court 1986).
- Acceptance: The landlord may accept partial payment and still proceed to file an eviction if 1) provide a receipt and the date that the balance is due before filing an eviction 2) Place the partial payment into the court registry upon filing, 3) post a new 3 Day Notice for the balance. §83.56 (5)(a).
- Acceptance of rent payment after issuance of judgment of possession waives landlord right to proceed to execute the writ of possession. Betsy Ross Hotel Corp., v. Betsy Ross Lounge & Restaurant, Corp., 8 Fla. L. Weekly Supp. 315a (Miami -Dade 2001).
- Landlords acceptance of late payment ultimately returned to tenants were deemed to constitute acceptance . See, Belkin v. Robinson, 38 Fla. Supp.2d 188 (Broward 1989). Harmony Shores Mhp, Llc, v. Oakley, 23 Fla. L. Weekly Supp. 884a. Collier County 2015.
- Defective notices: If a notice or pleading is defective, the landlord must be given an opportunity to cure the deficiency before dismissal of the action. §83.60(1)(a). Note: until 2013 a defective notice was grounds for dismissal.
- Section 8 notice requirements: same as private housing except the landlord must first give notice to the PHA before the landlord may evict. 24 C.F.R. 882.21(c)(4).
- 3 Day Notice Requirements. Fla. Stat. § 83.56(3) sets forth the requirements for the 3 Day Notice which are strictly construed. The notice must contain the following:
- LEASE VIOLATIONS / 7 DAY NOTICE TO CURE. F.S. 83.56(2)
There are two types of lease violation: curable and incurable.
Nature of violation:
- shooting at the landlord
- severely beating another tenant, Hew-Burg Realty v. Mocerino, 622 N.Y.S..2nd 197 Civ Ct. 1994)
- constant public drunkenness, Taylor v. Gill Street Inv. 743 P.2d 345 (Alaska 1987)
- prostitution, Broken Arrow Partnership v. PBC Investment Opportunities Inc, 33 P3d 694 (Okla App. 2001)
Form of notice: Fla. Stat. § 83.56(2)(a) “You are advised that your lease is terminated effective immediately. You have 7 days to vacate the leased premises. This action is taken because (cite the violation).” The notice must state with specificity the alleged lease or rule violation. Failure to specify facts permitting eviction will deprive the landlord of possession. The landlord will be limited at trial to the violation alleged in notice. Dade County v. Malloy, 27 Fla. Supp. 2d 1 (Fla. Dade Cty. Ct. 1988).
Nature of violation: all others
Form of Notice: specify the non-compliance, states that if the non-compliance is not corrected in 7 days from the date the notice is delivered the tenancy will be terminated. State that if the violation cited is repeated within 12 months the tenancy will be terminated without further notice.
Fla. Stat. § 83.56 (2)(a) gives as an example: \
Eviction upon a repeated violation:
- Second violation must be similar to first violation. See, e.g. Id, where court held that landlord failed to allege a similar violations’ because the three violations were not similar: driving vehicle in excess of speed limit, playing stereo loud, and verbally abusing other tenants.
No additional notice of violation is required.
Landlord’s acceptance of rent with knowledge of Tenant’s breach of lease by nonpayment constitutes waiver of Landlord’s right to proceed with eviction. Bodden v. Carbonell, 354 So. 2d 927 (Fla. 2d DCA 1978). i.e. acceptance of a rent payment voids your 3 day notice.
Section 8 rent: F.S. 83.56(5) makes an exception for acceptance of the government portion of Section 8 rent, which MAY be accepted without constituting waiver as long as the action is initiated with 45 days of non-compliance.
4. Delivery: §83.56(4) provides for mailing, personal delivery, or posting. This includes email or text message. See Harrari v. Whitford 14 Fla. L. Weekly Supp. 701a, Circuit Court,15th Judicial Circuit, Palm Beach, 2007, landlords email of notice deemed to constitute mailing "whenever a contract or course of dealing between parties establishes e-mail as a permissible means of notice, or whenever it is shown that the recipient received actual and timely notice through e-mail."
F. NON- RENEWAL/ 15 Day notice .
- Oral Lease: The landlord may terminate the tenancy by issuing a notice of non-renewal. If there is no written lease Fla. Stat. §83.57 provides that the lease period is determined by how often the rent is paid. Such “oral leases” will continue to renew until either the landlord or the tenant issues a notice of non-renewal. The timing of the notice is determined by the term of the oral lease.
- a. Annually: 60 days’ notice prior to end of any year.
- b. Quarterly: 30 days notice prior to the end of any quarterly period.
- c. Monthly: 15 days notice prior to end of any monthly period.
- d. Weekly: LL must give 7 days’ notice prior to end of any weekly period.
- Written lease: if the lease contains a termination date then it terminates on that date without further notice. If the tenant is still in possession, he is a tenant at sufferance. If the landlord accepts a payment a new oral tenancy is created.
- Delivery: §83.57 provides for "giving written notice." This includes email or text message. See Harrari v. Whitford 14 Fla. L. Weekly Supp. 701a, Circuit Court,15th Judicial Circuit, Palm Beach, 2007, landlords email of notice of non-renewal deemed proper.
G. DEATH OF TENANT: §83.59(d) provides that if the only tenant has died, the rent is unpaid, and sixty days has elapsed and the landlord has not received a notice of probate, the landlord automatically recovers possession. Abandoned property shall be dealt with as per the lease terms or statute.
H. TRANSFER OF MILITARY TENANT: §83.682. Any service member may cancel the rental agreement upon at least 30 days written notice to landlord accompanied by written verification from their commanding officer of
- Permanent transfer of more than 35 miles from the premises
- Discharged or released from active duty
- RENTAL APPLICATION BY SERVICEMEMBER. §83.683. If a landlord, condominium association, cooperative association, or homeowners association, requires a rental application, any application by a service member must be determined in 7 days or submission, and written notice of determination provided. Absent a denial in 7 days, the landlord must rent to service member if all other terms of the application and lease are complied with.
- Elements of the complaint
- Must attach a copy of lease
- Must attach copy of notice
- Count I: Possession
- Count II: Rent; damages; attorney fees & costs
- Must set forth the address of the premises
- Must state facts that authorize recovery
- Must be filed in the county where the premises are situated
- The court shall advance the cause on the calendar
- Proper signatories of notice of termination and complaint
- Landlord. Failure to comply with fictitious name statute, Fla. Stat. § 865.09, deprives LL of standing to file suit.
- Property manager - F.S. 83.59(2)
- The property manager must have written authorization from the owner to complete, sign and file the eviction action for non-payment of rent.
- Designated non-lawyer property managers may handle uncontested residential evictions on behalf of both individual and corporate Landlord’s.
- If the eviction is for non-payment of rent and is UNCONTESTED, a property manager may:
- draft and serve a 3 day notice;
- sign and file a lawsuit, as landlord’s agent, for possession only, not money damages.
- file a motion for default;
- obtain a writ of possession.
- The Florida Bar re: Advisory Opinion-Non-Lawyer Preparation of and Representation of Landlord In Uncontested Residential Evictions, 627 So. 2d 485 (Fla. 1993)
- Count I: Possession.
- a. In all actions for possession, the landlord is entitled to summary procedure as provided in Fla. Stat. § 51.011.
- b. Tenant has 5 days to answer Count I for possession: Berry v. Clement, 346 So. 2d 105 (Fla. 2d DCA 1977), 5 days excludes weekends and legal holidays. Rule 1.090(a).
- c. Service: Fla. Stat. § 48.183(1). If personal service cannot be effected after at least 2 attempts at least 6 hours apart, the complaint may be posted conspicuously on the premises. Another copy of the complaint must be mailed to the tenant. The five days rules from the later of the date posted or the date on the certificate of mailing,
- Count II: Rent; damages; attorney fees & costs
- a. Tenant has 20 days to answer.
- b. Service: must personally serve Fla. Stat. § 83.48.
- c. If claim is less than $5,000.00, landlord can proceed under summary claims rules.
- d. §83.48 awards attorneys fees and costs to the "party in whose favor a judgment or decree has been rendered."
- B. Summons: An eviction suit for possession and damages is bifurcated in that the possession count is expedited with only five days to respond, and the damages count has twenty days to respond.
- A combination summons may be used [Stein v. Hubbs, 439 SO.2d 1005 (Fla. 5th DCA 1983)] Although Palm Beach County requires separate summons.
- Required Forms
- Broward. Broward County requires a tri-lingual residential eviction summons that you can download here: http://www.17th.flcourts.org/images/stories/17th_pdf_files/2011-27-Civ.pdf
The summons is efiled and then issued by the Clerk
- Palm Beach: requires a tri-lingual residential eviction summons that you can download here: http://15thcircuit.co.palm-beach.fl.us/web/guest/adminorders/series3
The summons is prepared and issued by the Clerk of Court.
- Dade County requires the attached summons http://www.miami-declerk.com/library/civil/141-Web.pdf
The summons is prepared and manually filed with and issued by the Clerk of the Court.
- Broward. Broward County requires a tri-lingual residential eviction summons that you can download here: http://www.17th.flcourts.org/images/stories/17th_pdf_files/2011-27-Civ.pdf
- Challenge of service
- a. Challenge of service is valid even if tenant has actual notice. Napoleon Broward Drainage Dist. v. Certain Lands, 160 Fla. 120, 33 So. 2d 716 (1948).
- b. If tenant does not challenge method of service, it is waived. Hager v Illes, 431 So. 2d 1037 (Fla. 4th DCA 1983) (by answering summary eviction complaint and counterclaiming for affirmative relief and participating fully in trial on the merits and appealing, tenants waived any defects in service by posting).
- Must be filed within 5 days exccluding weekends and legal holidays.
- All defenses of fact or law must be contained in answer.
- Equitable defenses may be permissible. Malt v. R.J. Mueller Enterprises, Inc., 396 So. 2d 1174 (Fla. 4th DCA 1981) (acceptance of late payments by landlord.)
- Motion to dismiss will not toll the time for answer. Crocker v. Diland, 593 So. 2d 1096 (Fla. 5th DCA 1992). Crocker emphasizes that permitting tolling of time by filing a motion to dismiss would undermine summary procedure set forth in Fla. Stat. § 51.011. All defensive motions shall be heard prior to trial and shall be filed also within 5 days of service.
- An informal answer such as a letter response still constitutes an answer. J.A.R.Inc. v. Universal American Realty Corp., 485 So. 2d 467 (Fla. 3d DCA 1986).
i. Answer sufficient even if signed by a corporate officer rather than an attorney.
ii. Letter to tenant’s counsel from insurance adjuster working for landlord’s insurer which denied liability for tenant’s fire damage and advised that landlord was put on notice of potential lawsuit was not a “paper in the action” so as to trigger rule of civil procedure requirement that default could be entered against landlord by court only after landlord had been given notice of tenant’s application for default, since insurance adjuster was neither party to suit nor counsel for party. Americana Associates, Ltd. v. Coleus, 697 So. 2d 573 (Fla. 5th DCA 1997).
d. Answer deemed filed upon mailing: answer faxed to plaintiff attorney and mailed to court on the fifth day deemed timely filed. Blake v. Admani, 19 Fla. L. Weekly Supp. 231a.
3. Defenses to non-payment of rent F.S. §83.60
- Payment of the rent. The tenant must provide some evidence that payment has been made. Unsupported allegations should not be sufficient.
- Rent Determination:
- Landlord non-compliance: Tenant has previously issued landlord a 7 day notice of non-compliance under 83.51(1)(b) which “ripened” before the landlord’s 3 day notice. Tenant must move for a rent determination hearing to determine the diminished value of the property.
- Dispute of amounts claimed: Tenant disputes the amount as factually incorrect. Tenant must move for rent determination hearing
- All other defenses: F.S. 83.60(2) requires the tenant to post the rent claimed in the court registry of a default judgment of possession will be entered. Defense of defective notice: landlord must be given opportunity to cure defective notice or pleading before dismissal. §83.60(1)
A. F.S. § 83.60(2) requires payment into the registry of the court, the amount alleged in the complaint and all rent as it accrues unless tenant alleges.
- Payment (complaint must allege amount of rent owed and amount of rent that will come due; otherwise the tenant will not know how much rent should be posted).
- Request for court to determine amount of rent owed.
- If amount of rent is not clear the court must advise the tenant of the amount of rent to be posted. Olszewska v. Ferro, 590 So. 2d 11 (Fla. 3d DCA 1991).
- If tenant files motion for determination of rent to be paid into registry of the court, tenant must attach to motion documentation to show rent alleged in complaint is in error. Hearing is limited in scope-only to determine an amount of rent to be posted. Error for court to grant default judgment to landlord where tenant had filed a motion for rent determination even though the tenant had not deposited the rent claimed into the court registry. Kendrick v. Corser, Miami-Dade County 2011. 19 Fla. L. Weekly Supp. 72a.
- Fla. Stat. § 83.61 permits landlord to apply to the court for disbursement of funds or for prompt final hearing if landlord can prove:
- danger of loss of premises.
- Other personal hardship resulting from loss of rental income.
- See Pomponio v. Claridge of Pompano Condominiums 378 So.2d 774 (Fla 1980).
- Court may award all or any portion of funds to landlord or may proceed to final resolution.
- Allegation of no-landlord tenant relationship: If the defendant alleges that they are not a tenant, then there is no requirement to post rent in the court registry Grimm V. Huckabee, 891 So.2d 608 (Fla. 1st DCA 2005).Allegation Plaintiff has no standing: Where tenant alleged that the Plaintiff did not have standing to file the eviction suit the tenant was not required to post rent in the court registry. In Poole v. Patrick, 6 Fla.L.Weekly Supp 257 (12th Cir App 1999) Lease was with Mrs. Patrick, 3 day issued by Mrs. Patrick, eviction complaint filed in the name of Mr. Patrick.
- Even if tenant files a counterclaim, tenant must still post the alleged rent in the registry of the court. K.D. Lewis Enterprises Corporation v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984).
- Tenant’s receiving rent subsiies or public housing are only required to deposit portion of rent that tenant would be responsible to pay pursuant to federal, state or local government program which they are participating.
A. If answer not filed and rent not posted into registry of the court:
Landlord entitled to default judgment and writ of possession to issue without further notice or hearing.
NON-MILITARY AFFIDAVIT: Title 50, §521 Protection of Service members from Default judgment: requires the plaintiff to file an affidavit whether Defendant is active duty US Military in any case in which the defendant does not make an appearance.
Defendant is active duty military: it appears that the defendant is in military service, the court 1) shall stqay proceedings a minimum of 90 days [§521(d)], and 2) may not enter a judgment until after the court appoints an attorney to represent the defendant. If an attorney appointed under this section to represent a servicemember cannot locate the servicemember, actions by the attorney in the case shall not waive any defense of the servicemember or otherwise bind the servicemember. [§521(b)(2)]
Unable to determine Defendant's Status: The Court may require Plaintiff to post a bond to indemnify Defendant §521(3)
Palm Beach Clerk of Court in Service Packet #47 (revised 10/20/2010) provides that the requirements for an “Affidavit of Military Status” may be fulfilled in one of four ways:
- A sworn affidavit from the plaintiff landlord articulating facts that would be admissible in evidence.
- A written admission from the defendant tenant.
An online certificate obtained from www.dmdc.osd.mil/scra/owa/home (requires defendant name, social security number and date of birth). There is no charge and you can print out the certificate directly from the website. If you do not know this information, you may have to skip trace your tenant. Note: this website does not work on the Google Chrome web browser, you must use internet explorer or Firefox. You may also get a warning that the site is not trusted. This is because your browser does not come with Department of Defense Root Certificates pre-installed in order to "trust" the website.
You can install this certificate here: http://www.dtic.mil/dtic/announcements/dodrootcertificates.html
If you cannot get the SSN and DOB needed to get the free certificate from the DOD, you can also purchase a certificate from a private company which charges $36.40 to run the search plus $15.00 for a certificate. http://www.servicememberscivilreliefact.com/faq/#7
This website seems to impersonate the DOD website and will come up on search engines when you search for a “military status certificate,” so do not use it and pay for the non-military certificate unless you do not have the information to run the free search.
- Obtain certificates by regular mail from each branch of service @ $5.20 each + SASE . This also requests tenant social security number and date of birth and is so impractical compared to the other choices I am not even going to bother listing the mailing addresses of all of the branches of service.
- If an answer filed and rent posted then the court should review the legal sufficiency of the answer. If a meritorious defense has been alleged the case should be set for hearing.
- If an answer is filed but rent not posted then the landlord should be entitled to a default under F.S. 83.60(2) (1994) as a matter of law. See Hauser “Florida Residential Landlord Tenant Manual”§3.02 [a] Default.
D. Note that the default is as to possession only and not on the damages count.
A. Either party may demand a jury to decide issues of facts. Cerrito v. Kovitch, 457 So. 2d 1021 (Fla. 1984); Jacques v. Wellington Crop, 183 So. 22 (Fla. 1938); State ex rel. Jennings v. Peacock, 171 So. 821 (Fla. 1937). The parties may waive their right to a jury trial. C & C Wholesale, Inc. v. Fusco Management Corp., 564 So. 2d 1259 (Fla. 2d DCA 1990).
B. Simplified final hearing.
The following facts should be established during a simplified eviction hearing:
- Landlord must have ownership of the property. Fla. Stat. § 83.43(3) (1995).
- There must be a rental agreement between the parties. Fla. Stat. § 83.43(2) (1995).
- There was a breach of the rental agreement by the T; Fla. Stat. § 83.56(3) (1995).
- Proper notice given to T. Fla. Stat. § 83.56(3) (1995), Clark v. Hiett, 495 So. 2d 773 (Fla. 2d DCA 1986).
- Non-acceptance by the landlord of rent payments from or on behalf of T since issuance of the notice. Fla. Stat. § 83.56(5) (1995); Bodden v. Carbonell, 354 So. 2d 927 (Fla. 2d DCA 1978).
A. The final judgment should direct the clerk of courts to issue a writ of possession. Fla. R. Civ. P.1.580(a). The writ of possession describes the real property in question, and directs the sheriff to take the property into his or her possession. Anytime after the writ of possession is executed, the owner may also remove the personal property of the tenant without liability. Fla.Stat. §83.62(2). Additionally, the owner may change the locks on the doors at the time the writ of possession is executed. Id.
B. Settlement stipulations.
- Stipulations generally: Stipulations are enforced in the same manner as other contracts. Federal Home Loan Mortgage Corp. v. Molko, 602 So. 2d 983 (Fla. 3d DCA 1992). Unconscionable and repugnant contracts, i.e., “stipulations” may remain unenforced, Krez v. Sun Bank/South Florida, N.A., 608 So. 2d 892 (Fla. 4th DCA 1992).
- Landlord/tenant stipulations. The courts may properly refuse to enforce unconscionable provisions of rental agreement. Fla. Stat. §83.45.
- Knowing waiver. A tenant may knowingly waive constitutional or statutory rights to which he or she is entitled, provided no public policy is violated. Gilman v. Butzloff, 22 So. 2d 263 (Fla. 1945); Weinberger v. Board of Public Instruction of St. Johns County, 112 So. 2d 253 (Fla. 1927).
- Terms. The settlement agreement should provide the following terms.
- A payment schedule for the amounts past due. The longer the repayment plan, the longer the court retains jurisdiction over the tenant.
- The stipulation should require that rent be paid on time for the balance of the lease.
- That a violation of the stipulation shall permit the landlord to file an affidavit of non-compliance and obtain an ex-parte judgment for possession and damages without notice or hearing.
- for a move-out date and that the tenant will leave the premises in broom-swept condition.
- for the disposition of the security deposit
- That the court retains jurisdiction to enforce the terms of the stipulation, and that the Clerk shall not charge a "re-opening fee" to do so.
- Duration. The terms of a settlement agreement can not be enforced in a subsequent lease term. 5800 SW 20 Avenue Holdings, Llc, v. Williams,23 Fla. L. Weekly Supp. 261a Alachua County, 2015
A. Who may file.
Either the landlord or the tenant may file an appeal within thirty days of the final judgment. Fla. Stat. § 51.011(5); Sheradsky v. Basadre, 452 So. 2d 599 (Fla. 3d DCA 1984).
B. Tenants who wish to remain in possession must file both an appeal and a motion to stay.
C. Posting bond.
- Tenant must post a bond in accordance with the following conditions:
- compliance with the court order;
- payment of costs interest, damages for delay, use or depreciation of the property; or
- any other condition the court deems appropriate.
Fla. R. App. P. 9.310(c)(2).
- The purpose and amount of bond.
The bond’s main purpose is to protect the prevailing party. City of Plant City v. Mann, 400 So. 2d 952 (Fla. 1981). The bond must be reasonably related to the appeal. Cerrito v. Kovitch. If the prevailing party is sufficiently protected, the bond need not be posted. A prevailing party’s award of attorney’s fees pursuant to the final judgment may not be collected by the court as part of the bond. Coral Gables v. Geary, 398 So. 2d 479 (Fla. 3d DCA 1981). The tenant still has a right to an appeal, even where the tenant is not able to post bond and the landlord regains possession of the premises. Ruby Mountain Construction & Development Corp. v. Raymond, 409 So. 2d 525 (Fla. 5th DCA 1982); Palm Beach Heights Development & Sales v. Decillis, 385 So. 2d 1170 (Fla. 3d DCA 1980).
D. Test to determine whether the motion to stay should issue.
The Palm Beach County Court has adopted the following three-prong test:
1- will eviction cause the tenant irreparable harm;
2- will issuance of the motion will substantially prejudice the Landlord by not regaining the possession of property;
3- if a substantial question is raised on appeal. Royal Palm Beach Ltd. Partnership v. Tutor Time Learning Center of Royal Palm Beach, Inc., 3 FLW Supp. 290 (Fla. Palm Beach County 1995).
A. Deposit requirements: The landlord shall hold all deposits in a Florida Banking institution not comingled with operating funds. If interest is paid remit 75%. Or the landlord may post a surety bond for the deposits. There is no penalty for violation of this section. Obendorf v. Rasmussen. 22 Fla. L. Weekly Supp. 1172a. Sarasota County, 2015. But see Sipp v. Five Star Of Central Florida, Inc., a Florida Corporation, d/b/a Daytona Village Apartments, 18 Fla. L. Weekly Supp. 1143a, Volusia County, 2011. Tenant prevailed on a civil theft suit against landlord for failing to return security deposit where funds commingled and no claim was made by landlord.
B. Notice Requirements: Landlord shall, in the lease, or provide notice within 30 days of where the deposit is held, and subsequently if it is transferred. The statute prescribes a specific notice to be given https://browardlandlord.files.wordpress.com/2013/06/deposit-notice.pdf
Fla. Stat. § 83.49(3)(a) sets forth notification requirements when the tenant vacates the premises or upon termination of a written lease:
1. Landlord has 15 days to return security deposit with interest if there is no claim or
2. Landlord has 30 days to give T notice of LL’s intent to impose a claim against the security deposit.
3. Notice must:
a. Be sent by certified mail at tenant’s last known mailing address. If tenant does not give forwarding address LL must still send notice to last known address (the address of rented premises) Hicks v. Marchett, 4 FLW Supp. 525 (Fla. 20th Cir. Ct. 1996). The landlord may not send the claim to the vacated premises if he has knowledge of the tenant’s actual address Morkin v. Dulaire, 13 Fla. L. Weekly Supp. 1228a (Broward County 2006). Landlord not, however required to send the claim to tenant’s attorney’s address where no other address was known, Newman v. Gray, 4 Fla. L. Weekly Supp. 271 (Dade County 1996).
b. State the amount of the claim.
c. Specify the reason for the claim.
d. State amount landlord is claiming.
e. Inform the tenant he has 15 days to object or he will forfeit the amount claimed.
f. State the address the objections should be sent to.
4. If notice is defective or not timely tenant does not have to respond.
5. If landlord does not send notice, he forfeits right to security deposit no matter how much damage the tenant has caused. Durene v. Alcime, 448 So. 2d 1208 (Fla. 3d DCA 1983). Fla. Stat. § 83.49(2)(a); Gersten v. Cimovski, 43 Fla. Supp. 2d 38 (Fla. 17 Cir. Ct. 1990).
6. If tenant does not timely object to notice, then landlord keeps amount claimed and must return remainder within 30 days.
7. If landlord fails to escrow the deposit, he does not forfeit his right to claim against the deposit. Pekofsky v. Golden, 1 Fla. L. Weekly 478 (Fla. 11 Cir. App.1993).
8. In order for a tenant vacating before the expiration of the written lease or oral lease to be entitled to a written claim from the landlord, the tenant must give written notice that he is vacating by certified mail or hand delivery at least 7 days before vacating; and inform the landlord of new address. Fla. Stat. § 83.49(5). Tenant’s failure to do so relieves landlord of notice requirement. Tenant’s failure to give notice does not forfeit tenant’s right to security deposit, Rolle v. Armesto, 6 Fla L. Weekly Supp 398 (11th Cir. App. 1999).
Landlord Terminates Rental Agreement Early: If the landlord evicts the tenant, the tenant is probably not required to give the 7 day notice in order to be entitled to a written claim from the landlord Speigner v. Holland, 1 Fla. L. Weekly 529a (Broward County 1993)
9. Landlord’s failure to properly claim the security deposit does not preclude an independent action for damages. If a tenant files a claim for return of the security deposit and prevails, the security deposit may not be used by the landlord for purposes of a set-off against his claim for damages. Durene v. Alcime, 448 So. 2d 1208 (Fla. 3d DCA 1984). But see Stephenson v. Cox, 13 Fla. L. Weekly Supp 910 b (Broward County 2006) tenant’s deposit was set off against landlord’s damages.
10. Prevailing Party: If tenant sues for recovery of his deposit and is awarded anything, he is the prevailing party. Rose v. Gaglioti 46 Fla. Supp 2d 19 (11 Cir 1991)]. If each party prevails on their claim and counter-claim then each will recover apportioned attorneys fees. Hicks v. Marchetti 4 Fla L. Weekly Supp 525 (20th Cir App. 1996).
Practice tip: As the attorneys fees will usually exceed the amount of the security deposit, landlords should exercise discretion in claiming against the tenant’s security deposit.
11. Security deposit can be used for back rent if not prohibited by lease. Pekofsky v. Golden, 1 Fla L, Weekly Supp. 478 (Fla. Dade County 1992).
- REASONABLE WEAR & TEAR: Normal wear and tear in light of the length of the tenancy does not constitute damages.
Definition of normal wear and tear: “the wear which the property undergoes when the tenant does nothing more than come and go and perform the acts usually incident to an ordinary way of life.” Tirrell v. Osborn 55 A.2d 727 (D.C. App 1947).
Carpet cleaning, general cleaning of the house and driveway/patio, or painting, held to be ordinary wear and tear. BURLEY v. MATEO, (Broward County 2010) 18 Fla. L. Weekly Supp. 624a.
Failure to return keys, removal of drapes, lewd messages on wall: not normal wear and tear SMITH vs. NIEDERRITER, Broward County 2011, 18 Fla. L. Weekly Supp. 1051a.
Real estate agent’s commission allowed as damages, McLennan v. Rozniak, 15 Fla. Supp.2d 42 (Palm Beach 1985).
Amount: evidence that Landlord paid for repairs is evidence that expenses were reasonable. Note Landlord is entitled to do the work himself though and may recover a reasonable cost of repair.
Burden of proof: Landlord must proved Tenant caused damages. Then burden on Tenant to show preexisting. Stegeman v. Burger Chef Systems Inc., 374 So.2d 1130 (Fla 4th DCA 1970).
F. BAILMENT. As the security deposit is legally the tenant's money until claimed, the party in possession of it is liable for it. Property manage held liable for security deposit sent to landlord in foreclosure after expiration of lease term where no claim had been made. STRESS FREE PROPERTY MGMT, INC., vs. JONES, 22 Fla. L. Weekly Supp. 1006a. Hillsborough County 2015.
A. Duty to maintain premises. The landlord's duty to maintain the premises is set forth in §83.51. The landlord must comply with the health, housing and building codes. Unless agreed otherwise the landlord is also responsible for: Extermination, locks & keys, maintenance of common areas, garbage removal & receptacles, heat & hot water.
- The landlord must reasonably inspect premises before allowing T to take possession and must make all repairs necessary to transfer a reasonably safe dwelling unit fit for human habitation. Duty of LL to repair dangerous defective conditions upon notice of their existence continues after T takes possession.
- The landlord must however have notice of defects that occur in the premises after the tenant takes possession. In Tolles v. Garcia, 694 So. 2d 94 (Fla. 3d DCA 1997), LL did not have notice of allegedly dangerous elevation changes between a carpeted floor in the bedroom and tile surface in a hallway and, therefore, LL was not liable for injuries to tenant’s guest sustained when she tripped on elevation change.
B. Single Family Homes and Duplexes: 83.51(1) maintenance duties may be assigned to the tenant in the lease. Practice Tip: this has the additional benefit of depriving the tenant the ability to issue a 7 day notice for failure to repair and withhold rent, and to remove any liability of the landlord for damages consequent to disrepair.
A. If landlord
- Fails to comply with Fla. Stat. § 83.51(1) or material provisions of the rental agreement;
- Within 7 days after delivery;
- Of written notice by the tenant;
- Specifying the non-compliance;
- And indicating the intention of the tenant to terminate the rental agreement. Notice needs to be sent prior to 3 day notice otherwise defense of constructive eviction cannot be raised. Lakeway Management Company of Florida, Inc. v. Stolowilsky, 527 So.2d 950 (Fla. 3d DCA 1988).
- The tenant may terminate the tenancy.
B. Notice may be hand delivered or mailed to:
- Property manager.
- Person authorized to collect rent.
C. If the failure to comply with Fla. Stat. § 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the LANDLORD and the LANDLORD has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered as follows:
- 1. If the LANDLORD’s failure to comply renders the dwelling unit uninhabitable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable. Ralston, Inc. v. Miller, 357 So. 2d 1066 (Fla. 3d DCA 1978); Berwick v. Kleinginna Investment Corp., 143 So. 2d 684 (Fla. 3d DCA 1962).
- If the LANDLORD’s failure to comply does not render the dwelling unit uninhabitable and the tenant remains in occupancy, the rent for the period of non-compliance shall be reduced by an amount in proportion to the loss of rental value caused by the non-compliance.
- Where tenant has reasonable basis for withholding rent and deposits same to court registry, tenant may not be evicted based on non-payment of rent. Pilver v. Lenox Realty Associates, Ltd., 2004 WL 1965861 (Fla. Cir. Ct. 2004)
- Where they complained of repairs are minor, then tenant will be found in violation of the lease for failure to pay rent. The mere failure, however, of the landlord to make repairs, the need of which does not render the premises untenable, will not warrant an abandonment of the premises or relieve the tenant from liability for rent. Benson, Vs. Albert's Carpet of Tequesta, Inc., 15 Fla. L. Weekly Supp. 1121a. Palm Beach County, (2008) The test of the breach is an objective one, i.e., whether the premises met ordinary, normal standards reasonably to be expected of living quarters of comparable kind and quality. In Murphy v. Logiudice, 16 Fla. L. Weekly Supp. 966a. Palm Beach County Court (2009)
- Without consent:
- The landlord may enter the dwelling unit at any time without the tenant’s consent to protect or preserve the premises. 83.53(2)
- In case of emergency 83.53(2)(b)
- When tenant unreasonably withholds consent to inspect, supply services, exhibit the unit 83.53 (2)(c)
- Upon reasonable notice: repair. Reasonable notice = 12 hours. Reasonable time = 7:30 am – 8:00 pm 83.53(2) (the statute does not REQUIRE written notice)
- Tenant absent: if the tenant is absent for half of a rental payment period, the landlords is notified of the absence, and the rent is current, the landlord may not enter without the tenant’s consent except to protect or preserve. 83.53 (d)
- Harass: the landlord shall not abuse the right of access or use it to harass the tenant. 83.53 (d). Harassment may rise to the level of constructive eviction. See Peeping Tom landlord case John Kaminski Jr. v. Dynelle Gibson, 13 Fla L. Weekly Supp. 105, Hillsboro County
A. Constructive Eviction. The landlord may not cause directly or indirectly the
- Interruption of any utility service furnished the tenant. Includes: utilities under the control of or paid by landlord or provided for in the lease. Examples include; heat, gas, water, electricity, garbage collection, and refrigeration. Fla. Stat. § 83.67(1). [But see Badaraco v. Suncoast Towers v. Associates, 676 So. 2d 502 (Fla. 3d DCA 1996) which held that tenant could not recover statutory damages where temporary interruption of water and elevator services was due to landlord’s general repairs and renovations and were not intended as a self help eviction].
- Change locks or use any boot lock or similar device.
- Remove outside doors, locks roof, walls, or windows except for maintenance, repair etc.
- Remove personal property except after surrender, abandonment or a lawful eviction.
- Examples of constructive eviction:
- Apartment is uninhabitable due to water damage from unrepaired roof. Ralston Inc. v. Miller, 357 So. 2d 1066 (Fla. 3d DCA 1978);
- LANDLORD threatened eviction causing tenant to vacate. Caso v. Nelson, Inc., 419 So. 2d 668 (Fla. 4th DCA 1982).
- Peeping Tom landlord John Kaminski Jr. v. Dynelle Gibson Case 05-CC-02240LT 13th Judicial Hillsboro County, FL [13 Fla L. weekly Supp. 105].
1) Filing of mortgage foreclosure against subject premises does not constitute constructive eviction Telfair-Oiercew, , vs. Gaskin,. 18 Fla. L. Weekly Supp. 310a, Broward County (2010)
2) Where landlord removed kitchen appliances at gunpoint after tenant complained to code enforcement, tenant awarded 3 months' rent per day until appliances returned. Ireland v. Diamond , 2 Fla. L. Weekly Supp. 223c (Broward County, 1994).
- Landlord may not discriminate against a service member 83.67(3)
- Landlord shall not prohibit a tenant from displaying a U.S. Flag not larger than 4.5’x6’
- (a) LANDLORD liable for actual and consequential damages or 3 months' rent, whichever is greater, and costs, including attorney fees.
- (b) Subsequent or repeated violations, which are not contemporaneous with the initial violation, shall be subject to separate awards of damages.
- (c) Punitive damages for self help may be possible if T can show self help was done with fraud, actual malice, or deliberate violence or oppression, or when LANDLORD acts willfully or with such gross negligence as to indicate a wanton disregard of rights of others.
If Tenant Receives Dwelling As Part of Employment and Employment Terminates Fla. Stat. §83.46(3):
- Employer entitled to rent from day after employment ceases until day unit vacated at rate equal to rate for similarly charged residences.
- If wages are payable weekly or more frequently then tenancy is week to week and must give 7 days' notice to vacate prior to end of any week. If wages are payable monthly or no wages are payable, then tenancy is month to month and must give 15 days' notice prior to end of month.
LANDLORD cannot retaliate against T by discriminatively:
A. Raising the rent.
B. Decreasing services
C. Threatening court action.
Examples of retaliatory conduct are as follows:
- Tenant has complained to a government agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises;
- Organized, encouraged or participated in a tenants’ organization; or
- Complained to the landlord pursuant to Fla. Stat. § 83.56(1)
Evidence of retaliatory conduct may be raised by the tenant as a defense in any action brought against him or her for possession. The tenant has initial burden of proof that landlord’s primary reason for eviction is retaliatory. The burden shifts to the landlord to prove that eviction is based on good cause which include but are not limited to:
- Non-payment of rent;
- Violation of lease or rules;
- Violation of statute.
The tenant is obligated to
- comply with all building and health codes
- keep the leased premises clean and sanitary
- remove their garbage in a clean and sanitary manner
- Maintain plumbing fixtures in a clean and sanitary condition, including repair.
- Use and operate all plumbing, heating, air conditioning, electrical, and other fixtures in a reasonable manner
- Not destroy, deface, damage, impair, or remove any part of the leased premises, not permit any person to do so;
- Conduct himself and require other persons on the premises to conduct themselves is a manner that does not unreasonably disturb the neighbors or constitute a breach of the peace.
If either the landlord or the tenant fails to comply with the requirements of the rental agreement or this part, the aggrieved party may recover the damages caused by the non-compliance.
A. Service and Pleading Requirements
1. Complaint must seek damages. See Antoniadis v. Earca, N.U., 442 So. 2d 1001 (Fla. 3rd DCA 1983). Or issue may be tried by implied consent if no unfair prejudice created thereby. Smith v. Mogelvang, 432 So. 2d 119 (Fla. 2nd DCA 1983).
But see Fla. Stat. § 83.61 suggesting damages may arise from possession claim only and Fla. Stat. § 83.625 suggesting the same thing, but requiring compliance with the Florida Rules of Civil Procedure. F.R.C.P. 1.110(b) requires, “a demand for judgment for the relief to which the pleader deems himself or herself entitled.” (Appendix17) See Stein v. Hubbs, 439 So. 2d 1005 (Fla. 5th DCA 1983) (approving 5-day summons for damage claim and order to the contrary based upon more recent statutory language).
2. 20 day summons.
a. No positing (See Fla. Stat. § 83.625)
b. But if answer is filed denying debt, how does it affect damage claim if:
(a) complaint only asks for possession;
(b) complaint asks for damages, but only 5-day
summons is served;
(c) complaint asks for damages, but service is by posting.
3. Default may be appropriate if answer relates to possession claim only
B. Landlord’s damages.
1. Rent deposited in registry, Fla. Stat. §83.61 vs. Fla. Stat. §83.625
2. Unpaid rent - choice of remedies after possession - Fla. Stat. §83.595 (Appendix 1)
a. retake possession for self and end tenant’s liability;
b. retake possession for tenant and try to re-let – Fla. Stat. §83.595 (2) requires good faith effort to re-let, but does not require landlord to give preference over other vacant units. See Colonial Promenade v. Juhus, 541 So.2d 1313 (Fla 5 DCA 1989)- eviction of tenant does not constitute acceptance of surrender, landlord may recover lost rent until premises re-let. Landlord should be clear he is not terminating the tenancy and thus tenant’s liability for rent.
c. do nothing – sue for the rent as it comes due.
3. Acceleration clauses. Cannot claim for rent that has not accrued in residential cases.
4. Holdover tenancy - Fla. Stat. § 83.58
a. May recover double rent (discretionary).
Holdovers based upon justiciable issues will ordinarily not result in double rent even when landlord ultimately prevails. Greentree Amusement Arcade, Inc. v. Greenacres Development Corp., 401 So. 2d 915 (Fla. 4th DCA 1981).
b. Not applicable if eviction is for non-payment (therefore, cannot use standard 3-day notice) Casavan v. Land-O-Lakes Realty, Inc., 542 So. 2d 371 (Fla. 5th DCA 1989). Practice tip: The issuance of a 3 day notice to a tenant at sufferance will actually create a new month to month tenancy !
5. Waste or damage to property
a. May or may not be covered by security deposit.
b. Even if landlord fails to file proper notice required by statute he or she may still pursue independent damage claim.
c. Should be treated like any other claim for damages.
6. Distress for rent - Landlord’s lien
a. Fla. Stat. § 713.691(3) (Appendix 20) creates the landlord lien but abolishes distress for rent for residential tenancies. It is permitted only for non-residential tenancies, Goodman v. Brasseria La Capannina, Inc., 602 So. 2d 1245 (Fla. 1992).
b. Lien attaches only after sheriff delivers possession to landlord. A premature attempt can lead to a tenant’s claim for damages pursuant Fla. Stat. § 83.67
B. Tenant’s damages
1. Prohibited practices (Fla. Stat. § 83.67)
Unless tenant has surrendered or abandoned (15 days) premises or has been evicted. Damages are actual and consequential, but no less than three months rent plus fees and costs.
2. Casualty damage - Fla. Stat. §83.63 provides that —If the premises are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the premises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case the tenant’s liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the landlord shall comply with s. 83.49(3) dealing with the requirement to make a claim on security deposit. Tenant need not send a written notice if the landlord knew or should have known of problem. Zais v. C.F. West Florida, Inc., 505 So. 2d 577 (Fla. 4th DCA 1987).
Only the tenant may choose to terminate the lease or stay after a casualty. Baldo v. Georgoulakis, 1 FLW Supp 432 (11th Cir. 1993)
3. Tenant may claim moving expenses and/or extra housing costs as part of damage claim pursuant to Fla. Stat. §83.67. Updyke v. Brinkerhoff Property Management, Inc., 44 Fl. Supp. 2d 109 (Fla. Volusia Cty. Ct., 1990).
4. Retaliatory eviction – F.S. §83.64
a. Created by statute as a defense to possession claim
b. Differing opinions on whether or not it creates an independent cause of action.
C. Determining Damages
1. Establishing value
a. Replacement value for personal property
b. Burden of establishing “ordinary wear and tear” reduction is on tenant. Cummingham Drug Stores v. Pentland, 243 So. 2d 169 (Fla. 4th DCA 170)
c. It is incumbent upon party seeking damages to present evidence to justify award of damages in definite amount. Smith v. Austin Development Co., 538 So. 2d 128 (Fla. 2d DCA 1989).
d. Where damages cannot be precisely determined, trial judge is vested with reasonable discretion in making award of damages. Clearwater Assoc. v. Hicks Laundry Equipment, 433 So. 2d 7 (Fla. 2d DCA 1983).
e. Court should take advantage of “reasonable discretion” to attempt to place reasonable value on damages.
See Appendix 21 for suggested methods to assist in determining value.
f. The amount of damages equals the cost of restoration even if the landlord does not use the money to restore the premises. Pomeranc v. Winn Dixie Stores, Inc., 598 So. 2d 103 (Fla. 5th DCA 1992).
2. Settlement Agreement
Interpreting commercial lease Tiny Treasures Academy & Get Well Center, Inc. v. Stirling Place, Inc. 916 So.2d 991 (Fla. 4th DCA, 2005) held that where the language of a settlement agreement is clear and unambiguous, trial court may not modify to provide relief to landlord omitted from agreement.
3. Prejudgment Interest
Prevailing party is entitled to prejudgment interest. Smith v. Austin Development Co., 538 So. 2d 128 (Fla. 2d DCA 1989) and Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla. 1985).
4. Liquidated Damages
Fla. Stat. § 83.575 specifically provides for liquidated damages but only as applied to tenants at the end of their lease. The LL T Act codifies the common law on lost rental damages and provides that and measure of damages in violation of the Act is void. Olen Residential Realty Corp. v. Romine, 2004 WL 3322327, Fla.Cir.Ct., 2004.
A. F.S. §83.48. Action brought to enforce provisions of rental agreement or Fla. Stat. 83: the prevailing party may recover reasonable court costs, including attorney’s fees from the non-prevailing party.
B. Fla. Stat. §83.49(3)(c). Prevailing party in an action for recovery of security deposit is entitled to receive his or her court costs plus a reasonable fee for his or her attorney.
C. Prevailing Party:
- In Mortiz v. Hoyt Enterprises, Inc., 604 So. 2d 807 (Fla. 1992) the Florida Supreme Court ruled that the party who prevails on the significant issue of the case is the prevailing party, regardless of the dollar amount of either party’s recovery.
- If the tenant recovers any portion of the security deposit he/she will be considered the prevailing party on that issue and entitled to attorney fees for the time spent on that issue. Kendall E. Estates v. Banks, 386 So.2d 1245 (Fla. 3r DCA 1980). The amount off fees recovered on prevailing on one claim may be reduced in not prevailing on another claim. Malagon v. Solari, 566 So. 2d 352 (Fla. 4th DCA 1990);
- If both parties claims involve a “common core” of facts and are based on “related legal theories,” a full fee may be awarded to prevailing party unless it can be shown that the attorneys spent a separate and distinct amount of time on counts as to which no attorney’s fees were sought. Anglia Jacs & Co., Inc. v. Dubin, 830 So.2d 169 (Fla. 4th DCA 2002)
D. Neither party may be held to be prevailing party in cases where resolution resulted from stipulation of parties. Zhang v. D.B.R. Asset Management, Inc., 878 So.2d 386 (Fla. 3rd DCA, 2004).
E. Multiplier may be awarded in landlord/tenant cases. Meli Investment Corp. v. O.R., 621 So. 2d 676 (Fla. 3d DCA 1993).
F. Timing: A party seeking attorney’s fees is required to file a motion for attorney’s fees within 30 days after the final judgment has been filed. Fla.R. Civ.P. 1.525 (2001).
G. Voluntary dismissal: The court does not loose jurisdiction to award attorneys fees to the tenant if the landlord files a voluntary dismissal. Scott v. McGregor, 7 Fla Law Weekly Supp 556a (Broward County 2000). A landlord narrowly avoided liability for attorneys fees by filing a voluntary dismissal two hours before the court ruled against him in Wiley v. Jupiter House llc, 22 Fla. L. Weekly Supp. 1008a (Circuit Court, Palm Beach County, 2015).
H. Abatement: Fla.R. Civ P. 1.420(d) if a party who has dismissed a claim in any court commences a new action based upon the same claim against the same party the court shall make an order for the payment of costs of the previous claim and shall stay the proceedings until the plaintiff has complie.
A. 11 U.S.C. § 362: creates an automatic stay and prohibits LL from:
- Taking action to evict T for any reason;
- Using security deposit to off-set rent;
- Another action against T.
B. When bankruptcy case filed, LL must obtain relief from automatic stay before proceeding further, LL cannot:
- Give 3 day notice;
- File eviction complaint;
C. If eviction filed, LL must get a relief from stay.
D. Legal process obtained or orders issued in contravention of stay void, regardless of whether parties had notice of bankruptcy filing. In Re Florida Dairy, Inc., 22 B.R. 197 (M.D. 1982).
E. LL may not resume eviction unless relief from bankruptcy stay or after debtor discharged. Only true with homestead.
F. LL does not have to be formally notified of bankruptcy, i.e. suggestion of bankruptcy. In Matter of Carter, 9 B.C.D. 1086 (8th Cir. 1982) the court ruled that an attorney who continues eviction after receiving telephonic notice and fails to contact the bankruptcy court for verification may be held in contempt.
G. Bankruptcy filed after judgment of eviction does not stay issuance or execution of writ of possession. WDOP SUB I, LP dba Brookwood Club Apts., vs. PEREZ. 20 Fla. L. Weekly Supp. 421a
H. Section 362(b)(22) applies to lift the automatic stay 30 days after the bankruptcy petition is filed unless the tenant certifies a complete cure of the monetary default within the 30 day period. 11 U.S.C § 362(l)(1) and (2). WDOP SUB I, LP dba Brookwood Club Apts., vs. PEREZ. 20 Fla. L. Weekly Supp. 421a
If the lease premises is foreclosed the tenant is entitled to a 30 day notice to vacate from the foreclosure buyer before said buyer can apply for a writ of possession. https://browardlandlord.files.wordpress.com/2015/07/30-day-notice-to-vacate.pdf. This provision may be used as a defense by the tenant in buyer's motion for issuance of a writ of possession, but does not afford the tenant any remedy if the buyer violates this provision.