After a major storm or hurricane here in Florida, apartments and other rental properties are often damaged to the point where they need some level of repair to make them livable. In some instances, the property may be a total loss or the damage is so bad that repairs can take an extended period of time to complete.
This of course means tenants may not be able to access their homes for a while. Even worse, when they are finally able to return to their homes they may find that their personal property has been destroyed. Glass may have blown out of windows, rugs and flooring may be wet, walls can be covered in mold, doors broken or missing, and even the roof may be damaged or destroyed.
Generally speaking, a residential tenant owns the furnishings they bring to the residence, but the fixtures and improvements (like the walls, carpets, windows, and appliances) are owned by the landlord.
Which brings us to a common question that is asked after a storm; What are a tenant’s rights and a landlord’s duties after a hurricane’s wind, rain, or flooding causes damage to rental property and its contents?
1. What Happens If The Apartment or Rental Property is Uninhabitable?
Unfortunately, damage that Hurricanes can cause to real estate is well known to the insurance industry, legislators and property owners. These casualty events are contemplated when insurance policies are written as well as when Florida law is adopted.
Fortunately, Florida law provides protection for tenants in these situations, due, in part, to landlords having taken advantage of tenants in the past when a hurricane or storm has hit Florida.
A. Terminate The Lease (Rental Agreement)
Under Florida’s Residential Landlord and Tenant Act, if a residential tenant cannot live in their home because the damage caused by a Hurricane has rendered the property uninhabitable, then the tenant may have the grounds to terminate the lease.
According to Florida Statute 83.63, if the tenant’s home is “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.”
Additionally, the language of the lease may also address this issue. There may be a provision in the written lease agreement that terminates the lease if the property is destroyed due to natural disasters or acts of God, or other causes not resulting from the tenant’s actions.
Florida contract law allows the parties to agree among themselves to end the lease and terminate their relationship. In most instances, the tenant will be required to give written notice as described in the lease that the agreement is terminated due to the hurricane’s destruction.
B. Return of Security Deposit
Under the lease agreement, there may be language addressing the return of the security deposit to the tenant if the home is uninhabitable due to a hurricane or storm damage or other act of God (look for a Force Majeure clause in the agreement).
If the contract does not have any language on this issue, then Florida law provides that the landlord must return the tenant’s security deposit within fifteen (15) days after the proper termination of the tenancy.
If for any reason the landlord is not returning the deposit money, then the tenant must receive a letter of explanation within thirty (30) days. This letter must be sent by certified mail to the tenant, and the tenant must respond within fifteen (15) days to this notice or waive his right to return of the security deposit.
The tenant needs to have proof that he or she has provided the landlord with a designated mailing address after the storm so that the landlord has a legal address for service or a mailing address for where the money should be sent.
As overwhelmed as a tenant may be in the aftermath of a catastrophic weather event like a hurricane, a tenant needs to have physical proof that he or she has given their landlord their new mailing address (even if it’s a temporary one or it’s a post office box or rental box at the nearest UPS store).
2. What Happens When The Tenant’s Property is Damaged in a Storm or Hurricane?
After hurricane force winds or storm surge recedes, a tenant may return to their home to find that their apartment or condo is still standing and habitable – with some repairs needed. However, what happens when the wind or rain has destroyed some or all of the tenant’s belongings?
A. Renter’s Insurance
Most renter’s insurance policies cover losses related to storm damage. A tenant should make a claim as soon as possible after the storm passes. Receipts should be gathered and pictures and video should be taken of the damage.
B. Landlord’s Insurance
If the tenant does not have renter’s insurance, or if it fails to cover all of their personal property, then the landlord may have an insurance policy which provides coverage for any personal property located in the dwelling.
It is advised that you send a written request (with proof that you sent it, along with the time and date) to your landlord for this information. You should ask for a copy of the policy or the policy number and the name of his or her adjuster.
Finally, there are claims that can be made through FEMA and its Individual and Household Program (IHP) for some tenant property losses. This will cover basic necessities like clothing, beds, tables, and appliances.
3. What Happens If The Landlord Tries to Wrongfully Evict The Tenant After A Hurricane?
Unfortunately, after a major hurricane or superstorm here in Florida, many people find themselves without a place to live. For landlords, this may be an opportunity for a landlord to evict a “problem” tenant.
However, a tenant cannot be simply forced out of their homes just because there has been a hurricane or major storm event.
Florida eviction statutes apply here just like in any other situation where a landlord wants a tenant to move out. The landlord cannot change the locks or keep the electricity turned off for the apartment, even if there has been a major weather event (unless, there is legitimate life and safety reason for doing so).
If the landlord does engage in this behavior, then that behavior is considered a wrongful eviction and is illegal under Florida law. The tenant not only has a legal right to live in their home as provided for in their lease agreement, but the tenant has a legal right to collect damages from the landlord who engages in this activity.
For details, read: Illegal Evictions in Florida
4. Hurricane Preparations Before The Storm Hits
It may be surprising to some, but Florida law does not impose a legal duty on landlords to rush over to rental properties and board up the windows or otherwise secure the property against the hurricane or storm.
Does a Landlord Have a Statutory Duty to Protect the Property from the Storm?
Tenants may find themselves dealing with landlords that have no intention of making efforts to protect the rental property from harm or destruction from storm surges, flooding, high winds, fires, or debris.
Under Florida law, landlords must keep the premises safe and meet all housing and health codes that apply to the property. The law also mandates that the home, condo, or apartment be in “good repair” and “capable of resisting normal forces and loads.”
Of course, hurricane force winds are not “normal forces” – they are unusual and catastrophic ones. If a landlord chooses not to protect their rental property from storm damage, then a tenant has to live with the consequences. This is because under Florida statutes, landlords do not have an obligation to maintain their premises to withstand a hurricane.
Does The Lease Agreement Provide A Duty For The Landlord to Act?
If there are provisions in the lease agreement that mandate a duty upon the landlord, then the landlord must make hurricane or storm preparations on the property. However, this duty exists only if it has been agreed upon by the landlord and the tenant under the lease agreement.
Can a Landlord Forbid a Tenant From Making Storm Preparations?
The duty to protect the real property falls upon the owner and his or her property manager. If the owner declines to protect his property, then Florida law does not force him or her to do so.
The tenant has control only over his or her own property/ belongings. These are the items that he or she moved into the residence, from clothing and computers to washers, dryers, and cars in the garage or car port.
If the lease agreement does not provide for the landlord to make storm preparations on the rental property, then he or she can legally ignore it. The tenant must do whatever he or she is able to do in order to protect their own possessions.
In addition, the landlord can go so far as to forbid the tenant from taking steps to protect the dwelling itself from the storm.
See, for instance, the interviews with three Palm Beach tenants faced with landlords who planned to do no hurricane preparations on the rental properties before Hurricane Irma, in the Palm Beach Post story, “Hurricane Irma: Do you rent? You could be on your own for shutters.” And even worse, the coverage in the Miami Herald where the landlord forbid tenants from taking matters into their own hands and boarding up windows, etc., on their apartment complex before Irma hit.
While the law may not require the landlord to take proactive steps to protect the property, rest assured the insurance adjuster will want to know what the landlord did to safeguard the covered apartment complex or condo unit. (This is called “mitigation of damages” in the insurance industry.)
What Should You Do?
After a major storm or hurricane, a tenant may find that having an experienced Florida tenant’s rights lawyer on their side can be tremendously helpful in negotiating with their landlord and their insurance adjuster (as well as the tenant’s adjuster on their auto insurance policy).
If you are having a problem with your landlord or an insurance adjuster after a hurricane, then a good piece of advice is to speak with an experienced Florida real estate lawyer to learn about your rights. 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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