Last Update: 5/1/18
In Florida, residential tenancies are governed by (1) Chapter 83 of the Florida Statutes under what is commonly known as “Florida Residential Landlord and Tenant Act” (see Florida Statute 83.40) and (2) the language in the individual lease or rental agreement between the landlord and the tenant.
These two work together to define the duties of a landlord to a tenant and define the legal rights of a residential tenant here in Florida. The interaction of this statute with a lease or rental agreement can sometimes make things complicated and costly for landlords.
A complication generally manifests itself when a landlord either ignores or is ignorant of the rights granted to a tenant under Florida’s statutory law. In these situations, the cost to the landlord can include a variety of remedies for a tenant, including the landlord paying actual and consequential damages, injunctive relief and the payment of the tenant’s attorney fees.
Here are 6 common examples of rights that tenants have in Florida that landlords sometimes neglect or sometimes violate:
1. Tenant Right to Have Residence in Reasonable Condition and Code-Compliant
Under Florida Statute 83.51, residential landlords have a legal duty to keep their residential property in a condition that complies with the requirements of the applicable building, housing, and health codes for that location.
Meaning, a Florida residential tenant has the right to hold a landlord responsible for failing to maintain the premises and keep its components in good repair and in reasonable working condition (this is also known as the warranty of habitability).
However, if the rental is a single-family home or a duplex, then the landlord may alter or modify some of its obligations in the lease agreement. If the tenant agrees to the altered language, then the tenant has agreed that the landlord does not need to make provisions for things like extermination and garbage removal.
2. Tenant Right to Security Deposit With Statutory Interest
Florida Statute 83.49 is detailed on how a landlord must handle and protect a tenant’s security deposit, including its return.
The right to have security deposit held in a Florida Banking Institution
First and foremost, a tenant has a right to have their security deposit held in a bank account. Under Florida Statute 83.49(1), the landlord must deposit the security deposit in a separate interest bearing or non-interest-bearing account in a Florida banking institution for the benefit of the tenant or tenants.
The tenant has a right to have the security deposit kept separately from any other assets of the landlord. The landlord legally cannot commingle the security deposit with any other funds and cannot use the security deposit in any way.
For interest bearing accounts, the interest the tenant has a right to get on the security deposit is (1) at least 75% of the annualized average interest rate payable on such account or (2) interest at the rate of 5% per year, simple interest.
The right to prompt return of the security deposit
The law mandates that the tenant must get their security deposit back “no more than 15 days” after they move out. The tenant also has a right to be paid the interest on that security deposit for the time that it was with the landlord unless otherwise provided in the lease agreement.
If the landlord wants to keep some (or all) of the security deposit (and they usually try to do so because of a wear and tear issue with the carpet), then the landlord must comply with the detailed instructions of Florida Statute 83.49 which include providing the tenant with a notice that includes the following language pursuant to the statute:
This is a notice of my intention to impose a claim for damages in the amount of upon your security deposit, due to . It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord’s address) .
3. Tenant Right to Proper Written Notice from the Landlord
The tenant has the right to receive a notice in writing of the landlord’s desire to end the residential lease. Usually, the landlord wants the tenant to leave because the tenant is behind on the rent. However, there are times when the landlord wants to evict the tenant because the tenant has failed to perform other things listed in the lease.
Whatever the reason, the landlord has to give written notice to the tenant. Moreover, that written notice must follow certain guidelines or it will not legally be considered proper and effective notice.
For instance, under Florida Statute 83.56(3),(4), the written notice to the tenant from the landlord:
- Must be delivered by mail or by delivering a copy to the property.
- Three days has to pass between the date of the notice and any filing of a lawsuit against the tenant by the landlord. Saturdays, Sundays and legal holidays are not counted here.
The written notice must also include specific language that is specified in Florida law. For instance, Florida Statute 83.56(3) provides the following paragraph has to be in the written notice for unpaid rent:
“You are hereby notified that you are indebted to me in the sum of dollars for the rent and use of the premises (address of leased premises, including county) , Florida, now occupied by you and that I demand payment of the rent or possession of the premises within 3 days (excluding Saturday, Sunday, and legal holidays) from the date of delivery of this notice, to wit: on or before the day of , (year) .
Signed, (landlord’s name, address, phone number)”
Additionally, Florida statute 83.53, titled “Landlord’s access to dwelling unit,” requires a landlord, after giving at least 12 hours of notice to the tenant, to “…inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.” The landlord can enter the premises for these legitimate reasons, but cannot do so if the main reason is to harass the tenant.
4. Tenant Right to Proper Service of Any Lawsuit by the Landlord – 5 Day and 20 Day Summons
If the landlord decides to sue the tenant, then the tenant has the right to proper service of that lawsuit. Service of the lawsuit must follow Florida’s procedural rules which are designed to meet the constitutional requirements of notice and the opportunity to be heard. See, e.g., Florida Rules of Civil Procedure 1.070 and Form 1.902.
Under Florida law, the tenant has the right to proper service of any lawsuit in which the tenant is named as a defendant, including the two most common landlord-tenant lawsuits: (1) an eviction lawsuit and (2) a lawsuit filed to recover unpaid rent or damages.
Service is achieved via delivery of a summons to the tenant, which is a document issued by the clerk of the court where the property is located. The landlord requests the clerk to issue the summons, who then issues the summons and delivers it to the sheriff for the county where the residence is located. Once the sheriff is in receipt of the summons, he or she then serves it on the tenant (the summons will have a copy of the lawsuit attached – also, an authorized private process server may also serve a summons).
Note: Separate summons are needed when the landlord asks for both an (1) eviction and (2) claims for rent or damages (see below related to the amount of time a tenant has to file an answer to the complaint/lawsuit). In some instances, the landlord may only seek possession of the premises and not damages. In that case, there will be a 5-day summons and not a 20-day summons. Meaning, the tenant must act within 5 days after the date the paperwork is given to the tenant.
5. Tenant Right to Attorney’s Fees, Court Costs, and Damages
Additionally, tenants should know that Florida Statute 83.48 provides for attorneys’ fees and court costs in any lawsuit brought to enforce the rental agreement or for violation of the Florida Residential Landlord and Tenant Act.
If the tenant sues for violation of his or her rights or is defending against a lawsuit brought by the landlord, and the tenant wins, then the landlord must pay both reasonable court costs and the tenant’s legal fees. This tenant right cannot be waived by any language in the lease agreement.
Furthermore, under Florida statute 83.55, if the landlord fails to comply with the requirements of the lease agreement or any part of Florida Residential Landlord and Tenant Act, the tenant may recover the damages caused by the noncompliance.
6. Tenant’s Right to Seek A Reduction of Rent and Remain in The Property Until The Judge Renders A Decision
Florida law also gives the residential tenant rights in defending against any lawsuit filed by the landlord. The tenant, for instance, has five days (where the landlord asks for possession or asks to evict the tenant) to twenty days (where the landlord asks for rent damages) to file an answer to the complaint. As explained above, the time to file an answer starts on the day that the sheriff serves the summons on the tenant (or it is posted on the door). Saturdays, Sundays, and legal holidays are not counted towards the deadline.
You Have To Pay Rent In Order To Raise Any Defense to Landlord’s Lawsuit For Possession
The tenant has the right to assert defenses to the landlord’s allegations in the eviction lawsuit; the landlord can’t simply lock you out of your home. However, when a tenant raises a defense other than payment, under Florida law, the tenant must request a determination of the amount of rent to be paid to the clerk or pay the full amount of rent due to the clerk of the court (“placed into the registry”). See Florida Statute 83.60.
Here, the tenant can claim the amount of rent that is due should be reduced because of the condition of the premises related to mold, bugs, a damaged roof and other conditions that make the premises uninhabitable.
What Should You Do?
If you rent a home, condo or apartment here in Florida and have concerns about your rights as a tenant, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights because the law provides for the payment of your attorney fees if the court rules in your favor (which means, in many instances, a tenant will not have to pay any money to a lawyer, unless the lawyer wins their 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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