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08/23/12 It's The Law: How To Deal With A Problem Tenant

Question:

I have a problem tenant. He is behind in rent and plays loud music at all hours of the night, does not maintain the property, and otherwise breaks his lease at will. What are my rights?

Answer:

Florida has a comprehensive Residential Landlord/Tenant Act designed as a compromise to protect both landlords and tenants. A lot of people do not understand that a tenant has ownership of the property, albeit of limited scope. The statute tries to protect the ownership intent of both landlord and tenant. The statute bars self-help eviction, due to the potential for violence and property damage. In its place, the statutes provide a detailed and expedited process under which a landlord can get a judgment for possession much faster than judgment in a “regular” lawsuit.

The statutes are technical and failure of the landlord to meet all of the requirements can be fatal to the case. If you want to evict for nonpayment of rent, the process starts with giving the tenant a 3-day notice to pay rent or move. Notice must substantially comply with the form prescribed by statute. The notice must calculate and state when the 3 days end, exclusive of Saturdays, Sundays and legal holidays. It must demand the exact amount of overdue rent. Landlords often include late fees, attorney’s fees, interest and other charges in their 3-day notice, rendering the notice invalid, unless they are defined as rent in the lease).

The statute also requires that the 3-day notice be mailed or personally delivered to the tenant. If the tenant is not home, a copy of the notice may be left at the residence.

If the tenant does not pay or move, the landlord may file suit for possession and unpaid rent. It is often a waste of time and money to pursue a tenant for unpaid rent. Most tenants have little the landlord could get to pay the rent and the cost of pursuit will exceed the recovery. Nevertheless, some landlords want to pursue unpaid rent because the Landlord/Tenant Act provides for award of attorneys fees to the prevailing party in a landlord/tenant action. A court award of attorneys fees or unpaid rent is merely a piece of paper unless it can be collected. And, since the Constitution prohibits incarceration for failure to pay debt, many judgments for unpaid rent and attorneys fees are never collected.

If damages are sought, the tenant must be served the summons and complaint personally, or by leaving the summons and complaint with someone at least 15 years of age or older residing in the residence. The tenant has 20 days to serve a response. In contrast, a summons for possession does not have to be personally served. If the tenant is absent and there is no one at the residence 15 years of age or older after 2 attempts at service, the summons and complaint may be posted on the premises. The tenant only has 5 days to serve a response to a complaint for possession.

The summons seeking possession for unpaid rent must advise the tenant of other statutory requirements. One of those requirements is that if the tenant answers and makes any defense other than payment, the tenant must pay into the court’s registry the delinquent rent and rent as it accrues, or file a motion to determine the amount of rent to be paid into the registry. Failure to deposit rent or file the motion is a waiver of all defenses other than payment.

If the tenant complies with the statutes and the landlord cannot get a quick default judgment, the statutes give the landlord the right to an expedited trial. Rather than waiting months required for a “regular” trial, trial in an eviction case can usually be scheduled within 2 to 3 weeks of the date the tenant files his answer. The eviction trial for nonpayment of rent is usually quite short. The only real issues are payment of rent and any technical deficiencies in the landlord’s eviction documents.

As for other violations of the lease, landlords are tasked by the statutes with determining if the noncompliance is of such a nature that the tenant should be given an opportunity to cure. The statutes provide examples of noncompliance which should not be given opportunity to cure to include: destruction or damage to property or continued unreasonable disturbance. For those events, the landlord may terminate the rental agreement by 7 days notice. If the noncompliance is of a nature that the tenant should be given opportunity to cure, the landlord must give the tenant 7 days notice to comply and advise that failure to comply will terminate the lease. Examples of noncompliance that require opportunity to cure are: unauthorized pets, guests or vehicles, and failure to keep the property clean and sanitary. The statutes provide a notice that must be substantially followed. The notice must include a warning that if the same or similar conduct is repeated within 12 months, the tenancy may be terminated without opportunity to cure. The landlord is entitled to the same fast trial as for failure to pay rent.

Many tenants who fail to comply with one or more provisions of the lease still pay rent. If the landlord accepts rent with actual knowledge of the noncompliance, that acceptance is a waiver of the landlord’s right to terminate the lease or to bring a civil action for noncompliance. It is not a waiver of any subsequent or continuing noncompliance. If the tenant wants to rely on waiver as a defense, he must comply with the statutory requirement to pay rent into the court’s registry as the case proceeds.

The landlord/tenant statutes are detailed and complex. Landlords who try to do their own paperwork often find a savvy tenant or attorney successful in defense because the landlord has failed to meet a technical requirement of the statutes. For that reason, even experienced landlords are well advised to retain a good attorney at the start of these cases.

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