Know your rights before you waive your right to have your landlord make repairs.
Renting a home is very popular here in South Florida. In fact, so many people are renting rather than buying a home, that the cost to rent has risen dramatically in the past few years.
In this kind of market, anyone interested in renting a home in Broward County, Palm Beach County, or Miami-Dade County needs to know what Florida law says about a residential landlord’s obligations when it comes to repairs, inspection and maintenance of rental property.
Tenant’s need to know their rights before they sign a lease, including what a landlord is obligated to do both before and after a tenant moves in to an apartment or other multi-family dwelling.
This is because some landlords may be tempted to sidestep their legal duties repairing and maintaining their rental units, given the high interest in residential rental properties right now.
See – Miami is getting lots of new apartments, but you may not be able to afford them published on July 9, 2017, in the Miami Herald.
What Must a Landlord Do When Inspecting an Apartment?
Under Florida law, a residential landlord cannot lease a property without making sure it is safe to live in as a full-time dwelling. Before a tenant moves in, Florida law mandates that the landlord “reasonably” inspect the conditions of the premises. This includes:
- Ensure that plumbing and electric are working;
- check for insects (including bed-bugs); and
- inspect for mold.
As one Florida court explained, the “the landlord has a duty to reasonably inspect the premises, and to make necessary repairs to transfer a reasonably safe dwelling unit.” Youngblood V. Pasadena at Pembroke Lakes, 882 So. 2d 1097 (Fla. Dist. Ct. App. 2004).
Landlords Don’t Have to Rent A Perfect Apartment
During the course of an inspection, a landlord may find problems or items that need to be repaired. Some of repairs may be minor, and some may be major repairs that are dangerous if left unrepaired, like exposed wiring, mold infestation or a leaky roof.
Florida law does not require the landlord to spend money and time to make the rental unit perfect. Minor damage may be ignored by a landlord with impunity (such as stained wallpaper or carpeting.)
However, conditions that put a renter or his or her guests in danger must be fixed. The dwelling, in the language of the courts, must be “reasonably safe.” For example, if there is a gas leak, then the landlord must repair that leak. If there are rotten boards in the outdoor decking, then they need to be replaced.
Can A Tenant Waive The Duty of A Landlord To Make Repairs?
Under Florida’s residential landlord-tenant law, landlords can negotiate their duty to repair. They can do so for conditions that existed prior to possession and a tenant can waive the duty for a landlord to make repairs after a tenant takes possession.
In today’s marketplace, landlords have the upper hand and they may be able to use that advantage to get a tenant to accept a waiver of the landlord’s obligation to make repairs, especially if the tenant can save a little money on rent.
However, beware of these “deals.” A tenant may save money on rent but they may be assuming liabilities which are larger than the amount they save on rent (see below).
As the Florida Supreme Court states the law: [T]he owner of a residential dwelling unit, who leases it to a tenant for residential purposes, has a duty to reasonably inspect the premises before allowing the tenant to take possession, and to make the repairs necessary to transfer a reasonably safe dwelling unit to the tenant unless defects are waived by the tenant ….” Mansur v. Eubanks, 401 So.2d 1328, 1329-30 (Fla. 1981).
What Is The Effect Of A Waiver?
When a tenant signs a waiver, and the tenant moves into a dwelling that has conditions which may be unsafe, it relieves the landlord of the obligation of repairing the unsafe conditions. Thus, when a tenant signs a waiver and the tenant or a guest is hurt as a result of the known unsafe condition, then the landlord will likely be protected from liability for any damages caused by the unsafe condition.
No one thinks they will be hurt in an accident in their home, however, accidents happen every day. When a landlord receives a waiver from a tenant they are simply reducing their costs by shifting the risk to the tenant. When landlord reduces his or her costs by more than the amount of rent reduction, the landlord wins.
The Case of the Exploding Gas Water Heater
This duty of the landlord was established by the Florida Supreme Court as the result of a gas explosion in a Florida apartment back in 1976. Mansur v. Eubanks, 401 So. 2d 1328 (Fla. 1981).
Jean Barnett and Mary Eubanks owed a rental property that they leased to Marie Grisby. Marie gave a deposit to her landlords, and they all agreed verbally that the lease started on August 1, 1976 (There wasn’t a written lease agreement.)
Marie started moving her stuff into her new apartment on July 31st. Her new next-door neighbor, Michael Mansur, was nice enough to help her do so. He was another tenant of Jean Barnett and Mary Eubanks.
Some of the appliances in the apartment ran on gas. This meant that the gas had to be turned on for the stove and water heater to work. One day, Marie and Michael went looking around for the gas line – and found it outside the apartment. They turned it on.
Afterwards, they went back inside Marie’s apartment and they tried to light the stove. They smelled gas while doing so but they went on to trying to light the water heater.
As soon as Michael struck the match to light the gas flame for the water heater, it exploded.
Michael was seriously injured in the explosion so much so that he sued the landlords for his injuries.
At the time that the lawsuit was first filed, Jean Barnett and Mary Eubanks offered up the defense of “caveat lessee,” which was a law held that residential landlords were not liable for injuries caused in accidents that happened on leased premises.
However, the Florida Supreme Court found this to be unjust. It held that Florida law should be changed.
In this landmark case, it became the law of the state of Florida that any owner of residential property that leases it for residential purposes has a duty to reasonably inspect the place for dangers before allowing a new tenant to move into the rental unit. Along with an inspection, a landlord has a duty to make repairs to items which are defective, unless the tenant waives that requirement.
The court explained, “We do not believe there are sufficient reasons to continue to completely insulate the landlord from liability. We live in an age when the complexities of housing construction place the landlord in much better position than the tenant to guard against dangerous conditions.”
Read more: Mansur v. Eubanks, 401 So. 2d at 1330.
What Was The Key Take Away From This Landlord Tenant Lawsuit?
The key holding in that case, and cases that have been decided since the ruling was made in Mansur, is that a landlord can escape liability for serious personal injury damages if the tenant waives the duty to repair.
This means that every Florida tenant should read every provision in their proposed lease agreement carefully. A prospective tenant should focus on:
- Language regarding the landlord’s duty to make repairs to the premises before the tenant takes possession; and
- Language stating that the tenant waives the landlord’s duty to make repairs after the tenant moves-in
If waiver language appears in a tenant’s lease agreement, then the tenant needs to understand that they may be assuming the risk related to injuries caused by a defect or condition that was discovered during the pre-move-in inspection. Furthermore, Florida law also says that a landlord has a continuing duty to exercise reasonable care in repairing dangerous and defective conditions upon the tenant giving notice of their existence, unless waived by the tenant.
For some tenants, these provisions may be fine – but even so, tenants should negotiate with the landlord on this issue. If there is waiver language in the lease, then what is the tenant going to receive as compensation for granting the landlord this escape provision?
What Should You Do?
If you are looking to rent a new home in South Florida, then it is likely that an experienced landlord, especially those with an older property, will want to get a tenant’s waiver of the duty to make repairs before the tenant moves-in.
What should a tenant do if faced with one of these waivers in their lease? Should they sign? Should they walk away? Should they negotiate? What’s their risk here?
If you are concerned about signing a waiver of 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. 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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