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04/04/12 It's The Law: What's A Tenant To Do

Question: I am a tenant. It seems to me the landlord has all the power. The landlord tells me that if I do not do everything he asks, including things that are not in the lease, he will evict me. When I ask him to fix something, he tells me to "live with it". When I complain, he shuts off the hot water and cable TV. Don't I have rights?

Answer: Tenants have a lot of rights in Florida, most of which are guaranteed by Florida's Residential Landlord and Tenant Act at Sections 83.40 through 83.682 of Florida Statutes. I will explain some of the most important rights under the statutes.

Deposit money or advance rent must be held in a separate account in a Florida banking institution for the benefit of the tenant. If it is interest bearing, the tenant must get at least 75% of the interest or 5%, whichever the landlord elects. Alternatively, the landlord can post a surety bond to protect the tenant. The landlord has to notify the tenant in writing where the deposit is held and rate of interest, if any, which the tenant will receive.

When the tenant vacates the premise for termination of lease, if the landlord does not intend to impose a claim on the deposit the landlord must return the deposit and appropriate interest to the tenant within 15 days. If the landlord intends to impose a claim, the landlord has 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address. That makes it important the tenant provide the landlord with a forwarding address. If the landlord fails to timely give the notice, the landlord forfeits right to claim any portion of the deposit. If the tenant fails to object to any portion of the landlord's claim within 15 days after receipt of notice, the landlord may deduct the claim from the deposit and send the balance to the tenant.

If the landlord fails to maintain the property as required by statute or the lease, the tenant should do more than merely ask for repair. If the landlord fails to repair or maintain property within 7 days of delivery of written notice from a tenant specifying the non-compliance and indicating intent of the tenant to terminate the rental agreement for failure to maintain, the tenant can terminate the rental agreement for failure to repair unless repairs will take longer than 7 days and the landlord is making a good faith effort to complete the repairs. If the dwelling is untenantable and the tenant vacates, the tenant is not liable for rent during the period that the dwelling remains untenantable. If the failure to repair does not render the unit untenantable, rent for the period of non-compliance is reduced by an amount in portions to the loss of rental value caused by non-compliance. The tenant can only raise a landlord's failure to maintain and repair as a defense to eviction for failure to pay rent if the tenant has complied with the 7 day notice requirement.

The Act provides for expedited trial in eviction proceedings, so that landlords entitled to eviction can move quickly. At the same time the Act prohibits self-help eviction, to minimize damage to property and potential for personal injury.

Landlords are prohibited from terminating or interrupting any utility service furnished to a tenant, including water, heat , light, electricity, gas, elevator, garbage collection or refrigeration, whether or not the service is under the control or payment is made by the landlord. A landlord cannot change the locks or use a boot lock or similar device. A landlord is also prohibited from removing outside doors, locks, roof, walls or windows, except for the purposes of maintenance or repair. The landlord may not remove a tenant's personal property, unless such action is taken after surrender, abandonment or judicial eviction. A landlord who engages in any of these prohibited practices is liable to the tenant for the greater of actual damages or 3 month's rent, court costs and attorney fees.

Landlords are also prohibited from retaliatory conduct, such as increasing rent or decreasing services, or filing or threaten to file an eviction or other civil action, where the primary reason is for retaliation against the tenant. Examples of conduct to which a landlord may not retaliate include a tenant had complaint to a governmental agency of a suspected violation of building, housing or health code; a tenant has organized, encouraged or participated in a tenant organization; the tenant has complained about the landlord's lack of repair or maintenance or the tenant is a service member who has exercised a statutory right to terminate a rental agreement under Florida law. The tenant can raise retaliatory conduct as a defense an action for eviction, but the defense will not stop eviction if the landlord proves the eviction is for good cause, such as nonpayment of rent or violation of the rental agreement.

Most tenants are unfamiliar with the law and deal with landlords from what they perceive as a disadvantageous bargaining position. Good legal advice can level the playing field and even tip the scales in favor of the tenant. If you are having trouble with your landlord, I suggest you consult with an experienced attorney to discuss the specifics of your situation.

By: William G. Morris, Esquire

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