Posted By Larry Tolchinsky on February 7, 2017
In Florida, the portion of the landlord-tenant law relating to residential dwelling units (including, homes, apartments, mobile homes and condos) was written, in part, to protect tenants during the the eviction process. Under our statutory law, the eviction process is referred to as an action by the landlord for possession of the dwelling unit.
Most residential evictions in Florida occur over the issues of non-payment of rent or because the landlord alleges the tenant has violated some term of the lease (often times, that violation (breach) relates to pets, guests and/or noise issues).
Fortunately, a residential tenant in Florida has certain statutory defenses he or she can raise against a landlord that seeks to evict the tenant from their dwelling (under the law, a dwelling is defined, in part, as “a structure or part of a structure that is rented for use as a home, residence, or sleeping place by one person or by two or more persons who maintain a common household.”)
These defenses are available to a tenant no matter if the tenant is leasing for a long period of time (like an apartment lease covering a year or more) or if the tenant is renting from week to week or from month to month (like a summer vacation home or condo).
Residential Landlord-Tenant Eviction Law in Florida
In Florida, we have a specific law that controls residential tenancies known as known as the “Florida Residential Landlord and Tenant Act.”
Our residential landlord-tenant law is found in this Florida Statute as well as in court case precedent, where courts have rendered legal opinions in past eviction cases. The statutory laws that control residential tenant evictions in Florida are found in a sub-section of Chapter 83 of the Florida Civil Practice and Procedures Code. See, Florida Statutes 83.40 – 83.683.
How Does The Eviction Process Begin in Florida?
So, how does the legal process between landlord and tenant begin? Here’s what usually happens:
A landlord normally begins the eviction process when the tenant stops paying the rent or continually fails to materially comply with the lease or the law relating to maintaining the dwelling. Sure, sometimes the tenant doesn’t have the money to pay the rent on time that month. Times can get tough.
However, there are times when a tenant has the money to pay the rent and decides not to do so. Why? The tenant may feel forced to stop sending the rent check because the landlord isn’t listening to their complaints or fulfilling his or her duty under the law to maintain the premises.
Notice of Termination of The Rental Agreement to the Tenant
Under the law, before a residential tenancy is terminated and the landlord is entitled to possession of the property, the landlord must deliver (defined under the law) a written notice to the tenant. The type of notice to be used, and, if applicable, the amount of time the tenant has to correct the non-compliance, will depend on the reasons for termination the rental agreement (i.e. non payment of rent or a material failure to comply with Florida Statute 83.52 or material provisions of the rental agreement – See Florida Statute 83.56).
The notice must include specific language about the basis for terminating the rental agreement and the steps, if applicable, the tenant can take to avoid termination or being required to vacate and/or deliver possession of the premises. No matter which type of notice is delivered, it must substantially follow the form set forth in the statute or it will be considered defective.
After notice is delivered and the tenant fails to comply, then an eviction lawsuit is filed.
Defenses to Being Evicted By The Landlord
When the eviction process begins a tenant can assert a variety of defenses to the eviction lawsuit. Here are some of the most common:
1. Improper Notice by the Landlord
If the landlord does not provide proper notice of the eviction, then, simply stated, he or she has not followed the law. In Florida, a tenant cannot be evicted if the landlord does not take the following steps:
- provide written notice; and
- include all of the statutorily required information in that notice.
For instance, if the tenant fails to pay rent when due and the default continues for 3 days after notice is delivered to the tenant, then the landlord may terminate the rental agreement and evict the tenant. This 3 day period is called a “condition precedent” (meaning, this step must occur before the landlord can exercise his or her right to terminate the rental agreement).
If the landlord did not give the full 3 days before terminating the agreement, or filing a lawsuit, then the condition has not been met.
The tenant can move to dismiss the eviction action because of a defective notice. See, Clark v. Hiett, 495 So.2d 773 (Fla 2d DCA 1986).
What Days Count in the Notice? You May Be Surprised
A basic step here is that the three-day time period has to be counted correctly. It cannot include legal holidays.
If the landlord’s count includes a Florida legal holiday, then the notice is improper giving the tenant a defense to the eviction lawsuit.
What are the legal holidays for the State of Florida? They are listed in Florida Statute 683.01 and include the following:
- Sunday, the first day of each week.
- New Year’s Day, January 1.
- Birthday of Martin Luther King, Jr., January 15.
- Birthday of Robert E. Lee, January 19.
- Lincoln’s Birthday, February 12.
- Susan B. Anthony’s Birthday, February 15.
- Washington’s Birthday, the third Monday in February.
- Good Friday.
- Pascua Florida Day, April 2.
- Confederate Memorial Day, April 26.
- Memorial Day, the last Monday in May.
- Birthday of Jefferson Davis, June 3.
- Flag Day, June 14.
- Independence Day, July 4.
- Labor Day, the first Monday in September.
- Columbus Day and Farmers’ Day, the second Monday in October.
- Veterans’ Day, November 11.
- General Election Day.
- Thanksgiving Day, the fourth Thursday in November.
- Christmas Day, December 25.
- Shrove Tuesday, sometimes also known as “Mardi Gras,” in counties where carnival associations are organized for the purpose of celebrating the same.
- Whenever any legal holiday shall fall upon a Sunday, the Monday next following shall be deemed a public holiday for all and any of the purposes aforesaid.
Other Failures to Give Proper Notice of Eviction
The landlord’s notice must be correct under the law (as to substance and form). Other examples of improper notice which can provide a tenant with a defense to eviction are:
- The lease is signed by both husband and wife, but the notice only lists one of them;
- The notice has the wrong amount listed for the rent; and
- The notice includes a late fee as different amount due than rent (only rent can be the basis of an eviction notice).
However, the landlord “must be given an opportunity to cure a deficiency in a notice or in the pleadings before dismissal of the action.”
2. “I Don’t Have the Money to Pay Right Now”
A lot of times, tenants will say they will have the money “soon” to pay the rent. They may even have the evidence to support their claim. Maybe their employer is late in paying them all of the commissions that are due to them. Maybe their parents haven’t sent them the check yet or their student loan hasn’t been release to them.
These excuses may be valid, but insufficient funds on the date that the rent is due may not stop an eviction. However, if the tenant pays rent in full during the three-day time period, then the landlord cannot proceed with the eviction. If the landlord does proceed with the eviction, then the tenant can use “payment” as a defense.
3. Landlord Has Not Kept Up the Property
Under Florida 83.51, residential landlords have a statutory duty or obligation to repair and maintain their rental property.
Here, the landlord must comply with applicable housing regulations. These are laws, rules, and regulations that may have been passed by federal, state, county, or city governments regarding the condition and upkeep of the property.
If the landlord does not obey, then the tenant is free to stop paying rent. It is considered a “complete defense” to any eviction action.
Florida 83.60(1)(b) provides the legal defense. In the Florida Code, this is called the “defense of a material noncompliance with Florida Statute 83.51.”
Seven Day Time Ticker
There is a time requirement: 7 days must have passed between (1) the delivery of written notice by the tenant to the landlord, specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof, and (2) the withholding of the rent payment.
Notice by the Tenant
The tenant’ notice can be given to (1) the landlord, (2) the landlord’s designated representative under Florida Statute 83.50, (3) a resident manager, or (4) the person or entity who collects the rent on behalf of the landlord.
Reduced Rent Can Be Awarded
The judge or jury may decide that not only was the landlord guilty of material noncompliance with the law requiring the landlord to maintain the property, but that the tenant can have their rent reduced “ …to reflect the diminution in value of the dwelling unit during the period of noncompliance.”
Tenant Must Comply With Rental Deposit Law
The tenant cannot simply hold the money that would otherwise go to the landlord as a rent payment. The rent must be paid. However, it just doesn’t go to the landlord. Instead, the tenant must pay the rent into the court registry. See, K.D. Lewis Enterprises Corp. v. Smith, 445 So. 2d 1032 (Fla. 5th DCA 1984).
Warning: you must follow this law to the letter, and deposit your rent in the court depository in order for this to be a viable tenant defense to eviction.
In Florida, under Florida Statute 83.56(5), a tenant may argue the defense of “waiver” in an eviction lawsuit. Here, the tenant must provide evidence that the landlord took a rent payment after the lawsuit was filed.
If the landlord accepts rent after starting an eviction proceeding, then he or she has waived his right to evict the tenant.
Note: this defense may not work if the tenant’s actions that cause the eviction to begin are repeated again. Continued or repeated violations by the tenant can work to block a waiver defense.
5. Retaliatory Conduct, Discrimination and Self-Help
Under Florida’s statutory law, there are several other defenses that a tenant may use to defend against a residential eviction. These are referred to in the statutes as unlawful or prohibited practices (See Florida Statutes 83.64 and 83.67).
However, there are caveats to using some of these defenses, like “in order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith.”
For details of what is considered an unlawful or prohibited practices (like changing the locks or interrupting your electricity), and to learn the consequences for doing so, read our prior post “Illegal Residential Evictions in Florida.”
What Should You Do?
A good piece of advice if your landlord is attempting to terminate your lease agreement and evict you from your home, is to speak with an experienced Florida real estate lawyer to learn about your rights and to learn the different defenses that may be available to you, including how landlords may be ordered to pay your legal fees if you win your case. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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