The Landlords Handbook

INTRODUCTION
This booklet attempts to provide you with an overview of your rights and responsibilities as a landlord under Florida Law. This information will help you in taking the proper steps to protect these rights, but it is not intended to take the place of legal advice nor is it intended to be a complete summary of the Florida Residential Landlord and Tenant Act which is found in Chapter 83, Part II, of the Florida Statutes. A copy of this law is available at the local law library or online at http://www.leg.state.fl.us/STATUTES/ and must be read in conjunction with any rental agreement, the local housing and building codes and the pertinent Federal regulations, if applicable. *Please note: If you are a landlord at a mobile home park wherein the tenants own their mobile homes and rent lot space, the information contained in this booklet may not apply. An explanation of some of the differences in the mobile home law appears at the end of this booklet. The law regarding mobile home evictions is found in Chapter 723 of the Florida Statutes, http://www.leg.state.fl.us/STATUTES/. On the other hand, when both the mobile home and lot are rented, the information contained in this booklet and Ch. 83, Part II of the Florida Statutes does apply.

THE LEASE AGREEMENT

The lease is your contract with the tenant. Leases can be oral or written. In Florida, you do not have to let a tenant out of a lease if the tenants employer transfers the tenant, if the tenant loses his/her job, or if a spouse or roommate dies or leaves, unless there is a clause in the lease that permits termination for these reasons. Written leases should describe the amount of rent, when it is due, the length of the lease, the security deposit provision, the rules and regulations, who is responsible for paying the utilities (each utility should be separately specified), and late fees. Some daily late fees are considered too high by the courts. There cannot be a provision in a lease that makes the tenant forfeit personal property without going to court. There is no self-help eviction in Florida so your lease cannot contain a provision that the landlord can enter the unit and remove the tenant without proper legal process.

THE LANDLORD'S OBLIGATIONS

The landlord and his employees by law must follow the local housing, building and health codes; or (1) where there are no applicable building, housing, or health codes, the landlord must maintain the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and the plumbing in reasonable working condition. The landlord's obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex. (2) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all times, make reasonable provisions for: 1

1. The extermination of rodents and wood destroying organisms. 2. Locks and keys. 3. The clean and safe condition of common areas. 4. Garbage removal. 5. Functioning facilities for heat during winter, running water, and hot water. Unless otherwise agreed in writing, the landlord of a single-family home or duplex must install working smoke detection devices. Note: There is no requirement that a landlord provide air conditioning under Florida law. Further, the landlord is not required to maintain a mobile home or other structure owned by the tenant. The landlord can charge the tenant for garbage removal, water, fuel or utilities. The landlord is not responsible for conditions on the premises caused by the negligent or wrongful acts of the tenants or tenants family or guests.

LANDLORDS NON-COMPLIANCE
A tenant may terminate a rental agreement based on the Landlords failure to comply with the above obligations, (which are also spelled out in Section 83.51, Florida Statutes) but only if the tenant has sent the Landlord, 7 days prior, a written notice specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement. In the alternative, the tenant can give the 7 days prior written notice of noncompliance with an intent to reduce the rent by an amount equal to the noncompliance. The notice can be sent by mail or hand delivery. The landlord must have received the written notice 7 days prior to the tenant vacating or withholding rent. If the landlord disagrees with the noncompliance and/or the amount of rent withheld, the landlord can file an action for eviction of the tenant. The tenant can only defend the action on the basis of the material noncompliance if the tenant had sent the 7 days prior written notice. In such an eviction action, the tenant will be required to deposit ALL past due rent into the registry of the court. The court will decide if the noncompliance was material and, if so, whether the tenant should be allowed to terminate the lease or, if not, the amount of rent that should be withheld. If the court decides the noncompliance was not material, eviction may be granted. You may also ask for damages (the amount of rent due), court costs and attorney fees.

ACCESS TO THE PREMISES

The landlord can enter the rented premises at reasonable times to inspect the unit, supply agreed services, make repairs to the premises, or show it to a possible buyer, etc. by giving reasonable notice of the need to enter. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry and "reasonable time" for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. However, the landlord can also enter at any time and without reasonable notice in order to protect or preserve the premises if there is an emergency, if the tenant has given consent, if the tenant withholds consent unreasonably, or if the tenant is absent for an extended period of time equal to one-half the time for periodic rental payments.

THE TENANT'S RESPONSIBILITIES

The tenant also has certain responsibilities. If the tenant fails to live up to these responsibilities, they may be subject to eviction. The tenant must pay the rent and security deposit and follow all other legal requirements in the lease agreement. By law, tenants must also: 1. Keep their part of the premises clean and sanitary. 2. Remove all garbage in a sanitary manner. 3. Keep all plumbing fixtures clean and sanitary and in repair. 4. Use and operate all systems, facilities and appliances in a reasonable manner, including elevators. 5. Conduct themselves and require other persons on the premises with their consent to conduct themselves in a manner that does not disturb neighbors or breach the peace. 6. Not destroy or deface the property. 7. Comply with all housing codes.

NONPAYMENT OF RENT
As stated, there is no self-help eviction in Florida. If rent is not paid on time, the landlord must give the tenant a Three (3) Day Notice for nonpayment of rent. This notice must inform the tenant that the tenant has failed to pay the rent on the date it was due. It must inform the tenant of the exact amount of rent due and give the tenant 3 days to pay the rent due or vacate the premises. In calculating the three days, DO NOT include the date you send the notice, weekends or holidays. The notice should be dated and should be delivered to the tenant on that date (unless notice is mailed). It is not necessary that this notice be delivered by a Sheriff or process server, but can be. You may hand deliver the notice or post it on the tenants door. If you mail the notice, you must add five (5) business days for mailing to the due date. More evictions have been denied for flaws in the Three Day Notice or the delivery of the Three Day Notice than for any other reason. You should use the form notice found in Section 83.56 (3), Florida Statutes. Do not include late fees in your demand unless late fees are specifically defined as "rent" in your written lease agreement. Likewise, do not include other fees (like utility payments) in the amount due unless those fees are specifically defined as "rent" in your written lease agreement. If you have no written agreement or the agreement does not specifically define late fees or other charges as rent, then you cannot include those charges in the amount due in your Three Day Notice. If the tenant pays the full amount of rent due within the three day time period, you cannot evict the tenant for nonpayment of rent. However, if the tenant does not pay the full amount of rent that is due or does not voluntarily vacate the premises within the three day time specified, you can file an eviction action in county court. PLEASE NOTE that most courts will consider you to have waived your right to eviction if you accept a partial payment of the full amount demanded. This means the court could deny you an eviction based on nonpayment if you accepted some, but not all, of the rent. For that reason, receipt of partial payments is discouraged, at least without some written agreement or payment plan signed by the tenant as to partial payments. 3

Please note that the notice provisions for public housing is a Fourteen (14) Day Notice to pay rent or vacate instead of a Three (3) Day Notice. It must state all that the Three (3) Day Notice states, but also must advise the tenant that they have a right to a grievance hearing on the issue of rent owed, must inform the tenant of the right to make such reply to the Notice, and must also inform the tenant of the right to examine public housing documents directly relevant to the eviction. If a grievance hearing is requested within the proper time frame, the landlord cannot file an eviction action until the grievance process has concluded. If the premises is Section 8 housing or other government subsidized housing, other than public housing, if the lease does not state differently, a Three (3) Day Notice is the operative notice.

OTHER WAYS TO TAKE POSSESSION

The only means by which a landlord can obtain legal possession of the premises is by an action for eviction in county court; or when the tenant has surrendered possession of the dwelling unit to the landlord or abandoned the dwelling unit. If the tenant has surrendered possession or abandoned the unit, the landlord may reenter and recover possession. If the landlord does not have actual notice that the unit has been surrendered or abandoned, it shall be presumed that the tenant has abandoned the unit if the tenant is away from the premises for a period of time equal to one-half of the time for periodic rent payments, unless the tenant has specifically notified the landlord, in writing, of the intended absence. Please see Section 83.59, Florida Statutes for an explanation of when a dwelling unit is considered abandoned upon the death of the last remaining tenant.

ILLEGAL ACTIONS
As stated, there is no self-help eviction in Florida. A landlord cannot cause (by any means) the termination of any utility services, including electricity, gas, and water, even if the service is in his name or payment of these services are made by the landlord. For example, if electricity is in the landlord's name, the landlord cannot call up the utility company and order that this service be discontinued. The landlord is also not allowed to change the locks, use any other device to lock a tenant out of the home or remove the doors or windows in an effort to force the tenant to leave the premises. Furthermore, it would be illegal for the landlord to remove personal property from the dwelling unit unless proper legal action has been taken or the premises surrendered or abandoned as described above. If the landlord does any of the above illegal actions, the tenant may obtain an injunction forcing the landlord to restore the utility or allowing the tenant to regain access to the dwelling unit. Further, the landlord may be held liable to the tenant for three (3) months' rent or actual damages, whichever is higher, plus costs and attorney's fees. If a landlord is sued for illegal eviction, the landlord may counter-sue the tenant for any damages, such as unpaid rent, that may have arisen out of the tenancy. The prevailing party is entitled to court costs and attorney's fees.

HOTELS, MOTELS, OR ROOMING HOUSES

If a tenant is living in a hotel, motel, or rooming house, and it is the tenants only home, the owner cannot lock the tenant out for violating a rule or not paying rent on time (with 4

some exceptions based upon the circumstances). In order to terminate the tenancy, the owner has to abide by the same notice provisions that are outlined in this booklet. This applies to non-transient occupancy only.

TERMINATION OF THE LEASE FOR CAUSE

The landlord can terminate a tenancy for the tenants breach of the rental agreement or for violation of the applicable reasonable rules or regulations, other than a failure to pay rent, as follows: Material Noncompliance: A material noncompliance occurs when the tenant does not live up to some important part of the lease agreement or the requirements imposed by law. There are two types of noncompliance. The first type is curable, meaning that the tenant is given the opportunity to stop the behavior and not be evicted. The second type is non-curable, meaning that a tenant committed an act that is too serious for the tenant to continue living in the dwelling. Some examples of curable noncompliance include, but are not limited to, violation of a pet policy, playing music too loudly, parking in an unauthorized manner, having too many guests, and failing to keep the residence clean and sanitary. Examples of non-curable noncompliance include, but are not limited to, intentional damage or destruction of property, assaulting other tenants, or a subsequent or continued unreasonable disturbance. Curable Noncompliance: If the tenant does not comply with the lease agreement or the reasonable rules and regulations of the premises, and this violation is curable, the landlord must give the following notice in substantially this form: You are hereby notified that (cite the noncompliance). Demand is hereby made that you remedy the noncompliance within 7 days of receipt of this notice or your lease shall be deemed terminated and you shall vacate the premises upon such termination. If this same conduct or conduct of a similar nature is repeated within 12 months, your tenancy is subject to termination without your being given an opportunity to cure the noncompliance. The purpose of this notice is so the tenant can cure the violation. If the tenant does not cure the violation in the time stated, the tenancy is deemed terminated and an action for eviction can be commenced. You should not accept rent after the termination date. Acceptance of rent can be construed by the court as an act approving the tenants tenancy, which contradicts your termination. Public housing or Section 8 housing leases may contain other time frames for curable violations.

Non-curable Noncompliance: When a tenant commits a non-curable violation or if a curable noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the landlord of a similar violation, the following notice should be sent: You are advised that your lease is terminated effective immediately. You shall have 7 days from the delivery of this letter to vacate the premises. This action is taken because (cite the noncompliance). Because this is non-curable, the tenant is subject to eviction. The landlord should have proof of the violation and the violation should be serious and constitute a threat to the health, safety, or welfare of the tenant or other tenants/persons. You should not accept rent after the termination date. Acceptance of rent can be construed by the court as an act approving the tenants tenancy, which contradicts your termination. NOTE: Public housing evictions may be governed by other rules, including 30 day termination notices.

TERMINATION OF THE LEASE/TENANCY WITHOUT CAUSE

Month-to-month or week-to-week tenancies automatically renew unless terminated by the landlord or the tenant. A month-to-month tenancy, whether written or not, is when the tenant pays rent monthly without agreement as to how long the tenant will stay. For month-to-month tenancies, the landlord or tenant must deliver a notice at least fifteen (15) days before the next time the rent is due informing the other party that the lease will be terminated. Any shorter time period is ineffective. Any attempt to terminate on a date other than the next time the rent is due is insufficient. In order to terminate a week-to-week tenancy, a seven (7) day notice is needed. Thus, for example, if the rent is due Monday, the notice must be delivered and received, on or before the previous Monday. When a lease agreement automatically renews, the terms of the lease agreement dictate how to terminate the lease. Also, in Florida, provided there is no agreement to the contrary, if an employee of the landlord is furnished with a dwelling unit as an incident of employment (rent free), the duration of the tenancy is determined by the periods for which wages are paid. For example, if the employee is paid weekly or more often, the tenancy is from week to week; if wages are paid monthly or no wages are paid, then the tenant is regarded as a month to month tenant. Note: In order to increase rent, a landlord must follow the same notice and time procedures as stated above. Oral notice increasing the rent is not valid. Also, in Florida, if a Notice is served upon a party by mail, then 5 additional days, excluding weekends and legal holidays must be added to the time period required for compliance. 6

The landlord for a private dwelling, under an oral lease or a written lease without a specific duration, can terminate the tenants tenancy for any reason, using the above required notices, as long as it is not discrimination or retaliatory eviction.

RETALIATORY EVICTION
The landlord cannot discriminate or retaliate against a tenant by increasing rent, decreasing services, or evicting solely on the basis that the tenant has complained to a governmental agency about a housing or health code violation, or because a tenant has participated in a tenant's union or similar organization. A tenant may present evidence of this conduct as a defense if the landlord brings an action for possession of the dwelling unit without alleging a break of the lease or tenant obligations.

BREAKING THE LEASE

If the tenant leaves the rented premises before the end of a written lease, the tenant may be liable to the landlord for unpaid rent due. In order to recover this rent, however, the landlord must file a County Court action. Some leases state that the landlord is automatically entitled to keep the tenants security deposit as "liquidated damages" if the tenant leaves the rental dwelling before the lease expires. This remedy is available only if stated in the written lease or agreed upon with the tenant. Such agreement should be in writing.

HOLDING OVER
If the tenant holds over and continues in possession of the dwelling unit or any part thereof after the expiration of the lease agreement, without the landlord's permission, the landlord can recover possession of the dwelling unit by filing a Complaint in County Court. The landlord can also recover double the amount of rent due on the dwelling unit, or any part thereof, for the period during which the tenant refused to surrender possession.

LANDLORD IN FORECLOSURE
If the leased property is going into foreclosure, tenants have specific rights under federal law from May 20th, 2009 until December 31st, 2012. Under this law tenants have 90 days to move out after the service of a notice of termination from the new owner, if the owner intends on living in the property. If the new owner does not intend to live in the property the tenant has 90 days after the service of the notice, or until the lease expires, whichever comes later. Tenants are still obligated to pay rent during the foreclosure to the current owner of the property until they are given notice of the sale of the property.

THE EVICTION LAWSUIT IN COURT

If the rental agreement has ended or the landlord terminates the tenancy for any of the reasons allowed under Florida law and the tenant fails to move out, the landlord must file a complaint for eviction (file a lawsuit) against the tenant. The lawsuit is filed in the county court of the county where the premises is located. The complaint should 7

describe the dwelling unit and state the facts that authorize the eviction. If the eviction is for non-payment, the complaint cannot be filed until the Three Day Notice has expired. The landlord should obtain the Eviction package from the Clerk of Court, which contains all the necessary forms. The landlord has the option of serving a one count complaint for eviction only; or a two count complaint for eviction plus damages. The one count complaint simply asks the court to evict the tenants (i.e., remove them from the property). The two count complaint asks for the eviction plus a money judgment against the tenants for the past due rent and other recoverable costs or fees. When filling out the complaint form, please note that damages is the legal terminology for the amount of money the tenant owes you. Costs means your court costs, service of process fees and fees for the writ of possession. Costs do not include past due rent or other damages owed by the tenant. A landlords agent can file the complaint but the eviction action from that point on (especially hearings) must be completed by the landlord him/herself or the landlords attorney. If the landlord is a corporation, LLC or other such entity, it must be represented by an attorney throughout the entire proceeding. The landlord is entitled to a shortened procedure called summary procedure, and evictions are advanced on the court calendar. After the landlord fills out the complaint and summons paperwork obtained from the Clerk of Court, the landlord must arrange for the complaint to be served on all tenants by the Sheriff or a private process server. If the tenant cannot be found, service can be effected by posting. The Sheriff and process server will know the law with regard to service by posting, and will send you an affidavit of service that must be filed with the court (some process servers will file it for you). If service is posted, you must also send to the Clerk of Court a Certificate of Mailing along with stamped envelopes to each tenant. The summons gives the tenant five days, excluding weekends and legal holidays, to file an answer to the eviction in writing with the court. If a two count complaint is filed, the tenant has five days to respond to the eviction allegations, and 20 days to respond to the damages allegations. After five days, if no answer has been filed by the tenant, you may fill out the default paperwork and ask the court for your Default Judgment of Possession and issuance of the Writ of Possession. If a two count complaint was filed, you may obtain your Default Judgment of Possession and a Writ of Possession after the 5-day deadline passes, if no answer is filed; but you cannot obtain your money judgment until after 20 days from the date of service, if no answer is filed. If a tenant files an answer, they may also put forth defenses. Make sure you have accurate accounting to defend any defense of payment; and that you have sent all the required notices in the specified time periods to defend a defense of improper notice. A defense of a material noncompliance can only be raised if the tenant provided the 8

landlord with a proper written seven-day notice as discussed previously. Other possible defenses may be the landlord's retaliatory or discriminatory conduct. However, in order to raise these defenses, the tenant must have acted in good faith and be able to substantiate the accusations with evidence. If the defense to a non-payment eviction is anything other than "payment", the tenant is required to pay any rent currently owed, as alleged by the landlord in the complaint, into the registry of the court at the same time that the answer is filed, and must continue to deposit rental payments as they become due during the pendency of the case. If the tenant is on subsidized housing, the tenant is only obligated to deposit that portion of the rent for which they are responsible pursuant to the applicable Federal, state, or local program. Simply because a tenant answers and deposits the money with the Clerk of the Court as required does not mean that the tenant will win the lawsuit. The tenant must still have a "legally sufficient" defense for failure to have paid the rent. The fact that a tenant is having difficult financial times is NOT a defense to non-payment of rent. If the tenant fails to deposit the rent, you may apply for and are entitled to immediate Default Judgment and issuance of the Writ of Possession. If a tenant puts forth the defense of payment, the tenant is not required to deposit the rent into the court registry, but is required to file a Motion to Determine the Amount of Rent and to have that motion heard promptly. You, as the landlord, can set the tenants motion for a hearing by calling the judges assistant. At the hearing, the tenant must be able to document the alleged payment. Counter-Claim: If the tenant has any claims against the landlord that arise out of the tenancy, the tenant may also file a Counterclaim. At the trial, the tenant will have to prove the counterclaim, just like the landlord has to prove his original claim. The Final Hearing: If no default is entered, you must schedule a Final Hearing with the judge by calling the judges assistant for hearing time, and sending a notice of hearing to the tenant with a copy to the judge. The landlord him/herself must be present at the hearing. At the hearing, be prepared. The landlord will go first, and you must be able to prove and substantiate all allegations in your complaint. Either the landlord, or the landlords agent such as a manager or bookkeeper, must testify as to the amounts due in a non-payment eviction. It helps to have the tenants file and all rent ledgers with you. You must have eyewitnesses, photographs and other evidence necessary to prove a noncompliance eviction at the hearing. Written statements or affidavits are hearsay and inadmissible. The tenant can cross examine your witnesses, and you can cross examine theirs. Dress for court. Making a good impression is important, as is showing respect for the court -- do not let inappropriate dress affect the outcome of your case. If you win: The Court will tell both parties in person or by written order how long the tenant has to move out. The landlord then files with the Clerk of Court a Writ of 9

Possession for issuance by the Clerk according to the final judgment, and pays the Sheriffs fee for execution of the Writ of Possession. Ask the Clerk to forward the Writ and your payment to the Sheriff. The Sheriff will post a copy of the Writ on the premises and give the tenant usually 24 hours to vacate. If they do not vacate within this 24 hour period, the Sheriff will remove the tenant by force. It is a good idea to put your contact name and phone number on the Writ of Possession so the Sheriff can notify you of when the Writ will be executed and you can stand by with a locksmith if desired. After the Sheriff puts you in possession of the premises, you may remove any personal property found on the premises to or near the property line. If requested by the landlord to do so, the Sheriff shall stand by to keep the peace while the landlord changes the locks and removes the personal property from the premises. Neither the Sheriff nor the landlord or his agent are liable to the tenant or any other party for the loss, destruction, or damage to the property after it has been removed from the dwelling unit.

SECURITY DEPOSITS
All landlords should thoroughly read Section 83.49, Florida Statutes prior to dealing with security deposits in any way. Landlords must give tenants certain kinds of disclosure concerning the manner in which security deposits are handled and kept. Upon the tenant vacating the unit, at the end of the lease or on abandonment with proper notice, the landlord has fifteen (15) days to return the security deposit or must send a certified letter within thirty (30) days to the tenant informing the tenant of the landlords intention to impose a claim on the security deposit. The following form should be used by the landlord: This is a notice of my intention to impose a claim for damages in the amount of ________ upon your security deposit, due to (reason) . It is sent to you as required by Section 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address). If the landlord fails to send this notice in writing within the 30 days, the landlord forfeits his right to claim the security deposit. If the landlord does follow the proper procedure, the tenant must respond within 15 days in writing if they object to the claim. If they do not object to the claim, the landlord may then keep the amount stated in the notice and must send the rest of the deposit within thirty (30) days after the date of the notice. Please keep in mind that your claim to the deposit monies must be substantiated by your lease agreement. A tenant will have a cause of action in small claims or county court for return of the deposit if the landlord keeps the deposit without sending the required notice within 30 days. If a tenant sues to recover the security deposit, the landlord may counter-sue to recover unpaid rent. Here again, the prevailing party is entitled to costs and attorney's fees. 10

NOTE: If the tenant vacates the premises prior to the end of the lease or if the rental agreement, whether written or oral, does not contain a provision as to the duration of the tenancy, the tenant must give at least 7 days written notice by certified mail or hand delivery to the landlord stating the date they will be out and including an address where they may be reached. Failure to give this notice relieves the landlord of the 15 day notice requirement, but shall not waive any right that tenant may have to the security deposit.

DISCRIMINATION
ALTHOUGH SOME EXCEPTIONS APPLY, IT IS ILLEGAL TO REFUSE SOMEONE THE OPPORTUNITY TO RENT A DWELLING UNIT BECAUSE OF THEIR RACE, COLOR, NATIONAL ORIGIN, RELIGION, SEX, HANDICAP, OR FAMILIAL STATUS OR SEXUAL PREFERENCE.

DIFFERENT RULES FOR MOBILE HOME PARKS

Mobile home parks governed by Chapter 723, Florida Statutes, have different eviction rules and procedures. Chapter 723 parks are those where the residents own their mobile homes and rent lot space from the park owner. Some of the differences include: Whether oral or written, lease agreements in mobile home parks cannot be for less than one year in duration. Landlord and tenant obligations are similar to those in Chapter 83, but a landlord in a mobile home park may only evict a tenant under one of the permissible eviction actions outlined in Section 723.061, Florida Statutes. The demand for non-payment of rent is a Five Day Notice for mobile home parks as opposed to the Three Day notice for other tenancies. If the landlord wins an eviction, either by default or upon final hearing, the writ of possession cannot issue from the Clerk of Court until 10 days have elapsed from the date of the final judgment.

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