Monday, February 19, 2018

Residential Tenant Rights After Irma, Same as Before

LAW MATTERS

 

 

The effects of Irma will be felt for a long time. Damage to residential property is no exception. Damage to rental property hurts both owner and tenant. Landlords attempting to protect their rental properties indirectly protect tenants, but there is no statutory requirement that landlords “storm proof” property or take any special action when a hurricane approaches. There is no prohibition against tenants, with landlord consent, protecting the rental property from storm damage. The big difference is that a tenant only has a temporary possessory right. Expense of “storm proofing” may exceed a tenant’s ability to pay or simply not make financial sense.

Florida statutes do address damage or destruction of rental property. If damage is not due to negligent act of a tenant and use of the premises is substantially impaired, the tenant can terminate the rental agreement and immediately vacate the premises. Alternatively, the tenant can vacate the part of the premises rendered unusable by the casualty and reduce the rent by the fair rental value of that portion of the premises damaged or destroyed.

 

 

Termination of the lease or reduced rent does not happen automatically. Except in the most severe circumstances, the tenant must give written notice to the landlord. But, the statutes lack clarity as to what notice is necessary when the entire dwelling is destroyed.

Section 83.56 of Florida Statutes addresses termination of rental agreements. First paragraph of that statute states that if the tenant notifies the landlord that the tenant will terminate the lease if the landlord fails to repair a deficiency that is landlord’s responsibility, the tenant can terminate if the defect is not remedied. But, if the property defect is caused by circumstances beyond the landlord’s control and the landlord makes every reasonable effort to repair the property, the tenant also has the option of (a) moving out without liability for rent while the unit is unhabitable, reserving the right to move back in for remainder of the lease term and recommencing rent once the premises are repaired or (b) remaining in possession if only part of the property is untenantable and reducing rent by an amount in proportion to the lost rental value caused by the defect.

Reduced rent based upon lost rental value is not a simple calculation. Some argue that if 25% of the property is uninhabitable, rent is reduced by 25%. Others argue that reduced rental value should be calculated based on what another tenant would be willing to pay for the property “as is.” Still others will compare rent for a two bedroom apartment to rent for a one bedroom when only one bedroom is unusable. Difference in perspective between a landlord needing rent to pay for repairs and a tenant dealing with the inconvenience of living in damaged property can result in markedly different opinions as to reduced rental value. When that occurs, the landlord may attempt to terminate the lease for failure to pay rent.

If the landlord chooses to evict the tenant, the landlord must follow Florida’s Residential Landlord Tenant Act (the Act) and any applicable provisions in the lease. The Act requires a landlord seeking to evict for failure to pay rent serve the tenant with a three day notice to either pay rent or move out. The statute includes form of notice and mandates that the notice from landlord substantially follow that form. The notice must state the amount of unpaid rent, that the unpaid rent is due within three days excluding Saturdays, Sundays and legal holidays from date of delivery of the notice and state the date rent is due.

Error in three day notice is one of the most common mistakes made by landlords. Rent is all that can be claimed in the notice, not to include interest, late fees, utilities or other charges. Landlords often include everything they claim a tenant owes as part of the three day notice. Many landlords cannot count and others are not aware of the requirement that three days exclude Saturdays, Sundays and legal holidays.

The Act allows notice to be sent by mail, actual delivery to the tenant, or if the tenant is absent from the premises, by leaving a copy at the residence (posting). That provides two additional opportunities for a landlord to fail. If mailed, Florida law requires an additional five days be added to the time for payment. Second, many landlords follow the statute but do not read their own lease and many leases require notice be sent by a specific manner (such as certified mail). Both lease and statute must be followed.

If the tenant gets a three day notice, the tenant has to make a decision: pay the rent, move out or stay and fight. If the tenant moves out, the tenant may find that is not the end of the tenant’s problems. Even though the three day notice demands rent or possession of the premises, if the tenant gives up possession the tenant is not excused from payment of rent. The tenant may later be sued by the landlord seeking rent for the remainder of the lease term.

If the tenant chooses to stay and fight, the landlord will have to file an eviction action with the court to get rid of the tenant. The Act provides that if the tenant raises any defense other than payment, including defense of a defective three day notice, the tenant must pay into the court registry accrued rent as alleged in the complaint or as determined by the court and rent that accrues during the law suit as it comes due. That provision is intended to give landlords a speedy route to judgment for non-paying tenants, while providing tenants the protection of trial only if they pay rent to the court. The rent paid to the court is ultimately distributed per decision by the court. If the tenant does not agree with the landlord’s claim of unpaid rent, the tenant must file a motion to determine the amount of rent to be paid into the registry by the deadline to serve the answer to the complaint, along with documentation in support of any claim that the rental alleged in the complaint is incorrect.

The Act provides for expedited handling of eviction cases. It is a balance between a landlord’s desire for immediate possession and the need to protect the tenant’s contract and constitutional property rights. It is also an effort to avoid violence that could accompany self-helped evictions. Instead of the standard 20 days to answer a summons, a tenant must answer in five. Instead of months or even years until trial, the court advances trial so that most cases are heard within 30 days from date a party asks the court to set a trial date.

Some landlords are unwilling to wait even that long and others want to avoid the expense and difficulty of court action. Those landlords often find avoiding the statutory procedures can be expensive.

Section 83.67 of Florida Statutes is titled “Prohibited Practices.” The statute prohibits landlords from terminating or interrupting utility service, including water, heat, light, electricity, gas, elevator, garbage collection or refrigeration, whether or not the service is provided by or paid for the landlord. Landlords are also prohibited from preventing tenants from gaining access, and specifically prohibit changing locks, use of a boot lock or similar device. If the landlord violates the statute, the landlord is liable to the tenant for the greater of actual and consequential damages or three months rent plus court costs and attorneys fee. Forcing the tenant out by cutting off utilities or changing locks can be an expensive and losing proposition.

Florida’s Residential Landlord Tenant Act is a balance between the rights and obligations of both landlord and tenant. It does not specifically address hurricanes, but does provide rights and obligations for both landlord and tenant if property is damaged. It is filled with technical requirements which must be met by both parties. Failure to meet those technical requirements can cause as much damage to a party’s claim as Irma did to the property itself

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.

One response to “Residential Tenant Rights After Irma, Same as Before”

  1. Marcia says:

    After Irma, as landlord, I have a tenant living in a unit that had flooding in a weatherized lanai. The wet carpet and drywall were removed within days after the hurricane. To repair damages, we had mold testing, which just came back, elevated and we have had 3 mold remediation companies come out. Only one has thus far submitted estimates. Concern, a tenant living in a unit that has not fully been cleaned. The full structural repair will need not only putting the unit back to pre hurricane, but raising an exterior door, pouring up the concrete floor and replacing flooring in the unit. (To prevent like flooding in the future) I’m still waiting on general contractor estimates and permits will need to be obtained from Collier County(inundated with permit requests) and approval of plans from my association.
    What are my rights and liabilities as a landlord to breaking our lease with our tenant? I do not know based on extensive internet research what the mold “airtesting results mean” nor if the remediation protocol is actually necessary, and builders and remediator have said they are weeks out when it comes to scheduling the actual work. I am struggling with my insurance company over payment of all aspects of our claim. My adjuster refuses to send me a copy of the field adjuster’s report. Our tenant was approached by our manager about terminating his lease without penalty. (The lease agreement as is, terminates Jan 10, 2018, the tenant has informed us he is not renewing the lease). I do not want liability for potential complaints by the tenant that mold remediation nor repairs were not done timely and it caused damage to them.
    What are my right as landlord to terminate a lease due to unforeseen acts of nature? What are my rights as an owner of renters and flood insurance to claim loss of income if I terminate the lease. Your response is greatly appreciated.

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