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08/15/13 It's The Law: Tenant Defense Often Fails To Meet Statute's Requirements

It's The Law

Tenant Defense Often Fails To Meet Statute's Requirements

(8/15/13)

Question:

I own a condo that I rent. I have filed suit against my tenant for eviction because the tenant did not pay rent. The tenant filed defenses in which he makes a lot of claims that I did not repair the unit and other matters. Someone told me the tenant cannot do that unless he pays the rent. Can you explain?

Answer:

Florida's Residential Landlord Tenant Act is a balance between a landlord's desire for immediate eviction of a problem tenant and the tenant's rights and possible claims against the landlord. The statutes provide detailed and technical requirements for most aspects of the landlord's eviction process, beginning with wording and service of notice to the tenant through trial. The statutes also provide technical requirements applicable to claims by the tenant.

The most common reason for tenant eviction is failure of a tenant to pay rent. The most common reason for failure to pay rent is the tenant does not have the money. Most tenants do have money; they just do not have enough to pay the rent and their other creditors.

Tenant eviction starts with the landlord serving the tenant a 3-day notice to pay rent or move out. If rent is not paid and the tenant does not move out, the landlord files suit. In response, the tenant may file an answer listing reasons why the tenant should not be evicted and reasons the tenant feels he or she should be excused from payment of rent.

The tenant's first procedural problem is Section 83.60 of Florida Statutes. That statute requires a tenant defending on any ground other than payment of rent to deposit all of the unpaid rent into the Registry of the Court. The tenant is also required to pay rent as it accrues into the Registry. That is intended to weed out tenants who are unwilling to pay rent and who may merely be trying to prolong the eviction process and stay rent free. The tenant is informed of the rent deposit requirement by mandatory language in the eviction summons, which is served by a process server and also mailed to the tenant by the Clerk of Courts. If the tenant fails to make the deposit, the landlord is entitled to a default judgment for possession.

If the tenant is uncertain as to the amount of rent to be deposited, the tenant can file a motion asking the judge to determine the amount that must be deposited. The motion must be accompanied by documentation supporting the allegations that the rent as alleged in the complaint is in error. Most tenants fail to attach documentation to the motion.

Failure to pay rent into the Registry also bars raising the defense of a landlord failing to meet the statutory technical requirements for eviction cases, including defects in the 3-day notice, service of the summons and complaint or failure to attach required exhibits to the complaint. When the case is centered on a tenant's failure to pay rent, the statutory scheme mandates that such defects be overlooked unless the tenant makes the deposit.

Claiming a landlord has failed to comply with maintenance requirements under the statute is probably the most common defense in eviction cases. But, by the time suit is filed, it is too late to raise that defense.

The statute requires before the tenant withholds rent, the tenant serve a landlord with written notice specifying the landlord's non-compliance and indicating the tenant's intent to withhold rent because of the non-compliance. The notice must be given at least 7 days before the rent is withheld. If rent is withheld before the notice, the defense fails.

If the tenant timely gives notice and it is shown the landlord has failed to comply with the statutory mandate, it is a complete defense to an action for eviction based upon non-payment of rent. The court or the jury, as the case may be, then determines the amount, if any, by which the rent is to be reduced to account for diminution in value of the premises during the period the landlord fails to comply with the statute.

Even if the tenant has complied with the statutory notice requirements, the tenant will still have to deposit rent into the Registry as alleged in the complaint. Failure to deposit the rent bars the defense.

Most of the time a tenant who does not pay rent has little or no real defense to the landlord's eviction claim. There are occasions when the tenant has been frustrated by the landlord's failure to comply with maintenance and repair allegations. In most of those cases, the tenant simply withholds rent. Sometimes, the withheld rent is used to pay for maintenance and repair. When a landlord files suit for eviction, it is too late for the tenant to comply with the statute.

Florida's Residential Landlord Tenant Act contains many technical requirements to be met by both landlords and tenants. For that reason, failure to consult an experienced attorney in these disputes often proves penny wise but pound foolish.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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