PM Minute


This information provided by Florida Association of Realtors. Legal Center.

Remember we are not CPAs or Attorneys. For your specific needs, please visit a CPA or an attorney.

Q: When I serve a three-day notice for a residential tenant to pay rent or vacate the premises, may I include a demand for payment of security deposit, late fees or attorney fees? 

A: No. Additional charges, unless designated as rent in a written agreement, do not constitute rent, as defined in Section 83.43(6), Florida Statutes. A three-day notice which demands payment of charges other than rent would be defective. 

Q: I’m involved in residential property management. Is my landlord required to exclude normal wear and tear of the property from his claim on the security deposit?
 

A: No. There is no such requirement to do so in the Residential Landlord/Tenant Act.

Q: ’m a sales associate who’s listed a condominium unit that’s being rented. The tenants have been uncooperative about allowing entry to the unit for showing to prospective buyers. May the tenant do this? 

A: Per Section 83.53(1), Florida Statutes, the tenant must not unreasonably withhold consent to the landlord to enter the dwelling from time to time to show it to prospective or actual buyers. The statute specifically uses the term landlord. 

Q: I manage an owner’s property, which is currently leased to a tenant pursuant to a one-year written lease. The owner wants to cancel the lease and place the property on the market. May the owner give the tenant 15 days’ notice and terminate the lease? 

A: This cannot be done without liability for damages to the tenant unless the lease specifically includes a provision that allows the landlord to cancel the lease by giving the tenant 15 days’ notice. 

Q: I’m a property manager holding a security deposit. Lightning caused a fire that destroyed a residential tenant’s apartment. The tenant moved out and gave me notice that he was terminating the rental agreement and wanted his security deposit back. Must I return it? 

A: Under these circumstances, the landlord must comply with Section 83.49(3), Florida Statues, either by returning the security deposit within 15 days or by giving the required 30-day notice of intent to impose a claim for damages.

Section 83.63, Florida Statues, provides that if the premises are 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. 

Q: I represented a tenant who entered into a written residential lease in an apartment complex. The tenant recently called to say he has seen several mice in his unit. Is the landlord required to exterminate the mice? 

A: Yes, unless an agreement between the landlord and the tenant states otherwise. Section 83.51(2) of The Residential Landlord and Tenant Act stipulates that “Unless otherwise agreed in writing ... the landlord of a dwelling unit other than a single family home or duplex shall, at all times during the tenancy, make reasonable provisions for: the extermination of rats, mice, roaches, ants, wood destroying organisms, and bedbugs …” 

Q: I’m a property manager. A residential tenant who is in a rock band came back from the band’s European tour and trashed his condo rental. He damaged, destroyed and defaced the landlord’s property. The tenant was very apologetic and has offered to pay for all the damage, but my landlord wants him out. May we terminate the lease even if the tenant is willing to pay for all the damage? 

A: Yes. Pursuant to Section 83.56 (2) (a), Florida Statutes, the landlord may immediately terminate the lease and provide the tenant seven days notice to vacate the premises if the tenant materially failed to comply with his obligations under Section 83.52, Florida Statutes, or material provisions of the rental agreement and where the noncompliance is of a nature that the tenant should not be given an opportunity to cure it.

The statute indicates that examples of noncompliance that are of a nature that the tenant shouldn’t be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord’s property by intentional act.

Q: I manage a residential property for an owner.  The owner won't allow the tenant to have a waterbed on the premises.  May a landlord do this? 

A: No. Section 83.535, Florida Statutes, states that a landlord may not prohibit a tenant from using a flotation bedding system in a dwelling unit as long as the flotation bedding system doesn’t violate any applicable building codes.

The statute requires that the tenant carry, in the tenant’s name, flotation insurance in an amount deemed reasonable to protect the tenant and owner against personal injury and property damage to the dwelling units and the policy must carry a loss payable clause to the owner of the building. 

Q: I own a home that I leased to a tenant. The lease commenced in January and ends in December of the same year. I recently decided to put the home up for sale and informed the tenant that I would be showing it to prospective buyers. The tenant is unwilling to let me show the property while his lease is in effect; however, the lease doesn’t specify whether he can refuse showings. May the tenant do so? 

A: No. Section 83.53(1), Florida Statutes, provides “[t]he tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit from time to time in order to … exhibit the dwelling unit to prospective or actual purchasers … .” 

Q: I manage a residential property for a landlord. The landlord entered into a written lease with a tenant, which prohibits the tenant from having pets in the dwelling. Recently, the landlord informed me that the tenant has a dog and cat and the landlord wants to terminate the lease. May he do so? 

A: It depends. The Residential Landlord/Tenant Act, specifically Section 83.56(2)(b), outlines the procedures that the landlord must follow before terminating the lease (other than for tenant’s non-payment of rent). Keeping unauthorized pets is considered a “noncompliance” with the terms of the lease, but the tenant should be given an opportunity to cure. Therefore, the tenant must be given written notice that specifies the noncompliance and offers the tenant an opportunity to correct it within seven days from the date that notice is delivered. If the tenant fails to remove the pets within the period or if the same noncompliance occurs within 12 months, then the landlord may terminate the rental agreement. The landlord may terminate the lease by giving the tenant a second notice specifying the noncompliance and stating that the lease is terminated and the tenant has seven days to vacate. 

Q: If a residential tenant doesn’t make his or her rent payment on time, may the landlord change the locks to prevent the tenant from gaining access to the dwelling? 

A: No. This would be a prohibited practice pursuant to Section 83.67(2), FS. Pursuant to Section 83.67(6), FS, the landlord would be liable to the tenant for actual and consequential damages or three months’ rent, whichever is greater, and for costs, including attorneys’ fees. 

Q: Suppose a tenant and landlord entered into a residential lease that requires the landlord to maintain the air conditioning unit. The tenant reports that the unit isn’t working but the landlord refuses to fix it. Is there a Florida law regarding the length of time that a landlord has in which to make repairs to appliances such as an air conditioner? 

A: No. However, the parties may address this issue in detail in their lease. If the lease merely obligates the landlord to repair the air conditioning unit, the tenant may still have some relief. He or she will have to comply with Section 83.56(1), Florida Statutes, which advises, in part, that “if the landlord materially fails to comply with … material provisions of the rental agreement within seven days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement.” 

Q: I’m a property manager for a landlord who entered into a one-year written lease with a tenant. The tenant recently notified the landlord that she’s terminating the lease several months early because she’s buying a house. She says Florida law permits first-time homebuyers to terminate a lease early. Is this true? 

A: No. There is no provision in Florida law that gives a tenant the right to terminate a written lease early based on the tenant’s decision to buy a home. Absent a provision in the lease giving the tenant such a right, the tenant could be liable to the landlord if she terminates the lease early. 

Q: I’m a property manager for a residential landlord who obtained a writ of possession to evict a tenant. May I remove the tenant’s property that remains inside the apartment? 

A: Yes. Section 83.62 (2), Florida Statutes, provides in part that at the time the sheriff executes the writ of possession or at any time thereafter, the landlord or the landlord’s agent may remove any personal property found on the premises to or near the property line. The statute further provides that neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruction or damage to the property after it has been removed. 

Q: Is a tenant’s residential lease automatically canceled if the landlord sells the property? 

A: No. There is no provision in the Residential Landlord/Tenant Act stating that a tenant’s lease automatically terminates in the event the landlord sells the dwelling. The lease itself, however, could include a provision that would allow the landlord to terminate. 

Q: I manage a residential property for an owner.  The owner won't allow the tenant to have a waterbed on the premises.  May a landlord do this? 

A: No. Section 83.535, Florida Statutes, states that a landlord may not prohibit a tenant from using a flotation bedding system in a dwelling unit as long as the flotation bedding system doesn’t violate any applicable building codes.

The statute requires that the tenant carry, in the tenant’s name, flotation insurance in an amount deemed reasonable to protect the tenant and owner against personal injury and property damage to the dwelling units.  The policy must carry a loss payable clause to the owner of the building. 

Q: A landlord has placed a newspaper advertisement stating that he will rent his residential property only to nonsmokers. I represent the applying tenant, a smoker who feels that he is being discriminated against. If the landlord decides not to lease the property to the tenant based solely on the fact that he is a smoker, would that be a violation of the Fair Housing Act? 

A: No. A smoker is not a member of a protected class as defined under the Fair Housing Act. Under the Fair Housing Act, the only protected classes are as follows: race, color, religion, sex, handicap, familial status and national origin. Thus, the landlord’s refusal to rent his residential property to the tenant based solely on the fact that he is a smoker is not a violation of the Fair Housing Act.  

Q: I represent a landlord who entered into a written residential lease with a tenant who is a member of the United States Armed Forces. After signing the lease, the tenant received military orders to move into government quarters. Does the tenant have a right to terminate the lease based on those orders? 

A: Yes. Section 83.682 of The Residential Landlord and Tenant Act provides several grounds upon which a “servicemember” may terminate his or her lease. Among them, 83.682(1)(d) provides that when a tenant who is a “servicemember” receives military orders requiring the tenant to move into government quarters, the tenant “may terminate the rental agreement by providing the landlord with a written notice of termination to be effective on the date stated in the notice that is at least 30 days after the landlord’s receipt of the notice.”

Q: I’m leasing a home that I own. The tenant informed me about a problem with the plumbing in one of the bathrooms. However, the tenant claims that I must provide at least one day’s notice prior to entering the dwelling and that the repair may only be made after 11 a.m. What type of notice must I give the tenant before entering the home for repairs, and during what time of day may the repairs be made? 

A: Section 83.53(2), Florida Statutes, stipulates that a “landlord may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for purpose of repair of the premises.” The statute further provides that reasonable notice “is notice given at least 12 hours prior to the entry” and that reasonable time “shall be between the hours of 7:30 a.m. and 8 p.m.”

Q: If a residential tenant damages the property and abandons it, may the landlord claim part of the security deposit for damages and use the balance to offset rent lost while seeking a new tenant? 

A: Yes. Under Section 83.49, Florida Statutes, the landlord may make a claim on the security deposit within 30 days after the tenant vacates. Also, under Section 83.595, Florida Statutes, the landlord may hold the tenant liable for amounts the landlord couldn’t recover from re-letting the property.

Q: I’m a property manager. One of my owners sold his home and instructed me to transfer his tenant’s security deposit and advance rents to the new owner. Must I obtain the tenant’s permission before transferring the funds from my escrow account to the new owner? 

A: No. Section 83.49(7), Florida Statutes, provides that upon the sale or transfer of title of rental property, all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner, together with any earned interest and an accurate accounting showing the amounts to be credited to each tenant’s account. Therefore, you are not required to obtain the tenant’s consent prior to transferring the funds to the new owner.