As discussed in a previous blog, a landlord in Florida must follow specific procedures if they wish to evict a Tenant. Fairly often, however, Landlords do not follow these procedures. So a Tenant may face the prospect of not having a residence, but with a solid legal case against a Landlord. Below are some examples of how to defend against an eviction if you are the Tenant.
Material Non-Compliance:
Under Florida Statute 83.60, if the Landlord has not materially complied with Florida Statute 83.51(1)– which requires the Landlord to maintain necessary parts of the premises such as roofs, windows, and doors- and the Tenant hasn’t paid rent based on Landlord’s failure to maintain the premises, the Tenant will usually be able to defend against eviction for non-payment of rent. However, to qualify for this defense, the Tenant must have previously provided to Landlord a written 7-day notice specifying how the Landlord failed to maintain the premises (non-compliance with Florida Statute 83.51(1)) and that, because the Landlord failed to maintain the premises properly, the Tenant intends not to pay rent. Read more about a tenant’s rights here.
Retaliatory Eviction:
A “Retaliatory Eviction” refers to an eviction not conducted for a good cause by the Landlord and done primarily as a way to retaliate against the Tenant. The Florida Legislature recognized that a Landlord should not use its position of control over the leased property to be able to evict a Tenant because the Tenant acted in a way the Landlord did not like. So Florida Statute 83.64 prohibits retaliatory evictions. It also lists several scenarios where the Landlord may not retaliate against the Tenant.
Constructive eviction:
Constructive eviction occurs when the Landlord has not technically evicted or tried to evict but has made it, so the Tenant has no choice but to vacate the residence. Florida courts have the opinion that a Constructive Eviction occurs when a Tenant is essentially deprived of the enjoyment of the leased premises. Suppose something like this happens to a Tenant, rendering the premises unlivable. In that case, the Tenant must provide Landlord a 7-day written notice of the Tenant’s intent to terminate the lease, as prescribed in Florida Statute 83.56(1). So if, for instance, your neighbor is blasting music all through the night, forcing you to sleep somewhere else, you’ve given your Landlord a 7-day written notice about this problem and your intention to terminate the lease if the Landlord does not fix it. If the Landlord does not fix it, you may have a claim for Constructive Eviction.
Waiver:
As a general rule, if a Landlord accepts rental payment from a Tenant when Landlord knows of certain non-compliance on the part of the Tenant, the Landlord waives or gives up its right to terminate the lease based on that known non-compliance. Note: Florida Statute 83.56(5)(a) specifically allows for a Landlord with knowledge of non-compliance by the Tenant to accept partial payment of rent from the Tenant without waiving his rights to terminate the lease.
Deposit into the court registry
In most cases, if a Landlord brings a legal action to evict the Tenant, the Tenant will have to deposit into the court registry the accrued rent and any rent which accrues throughout the legal action. Florida courts have generally described this requirement as collateral for the Tenant to continue living on the premises during the eviction action. One exception to this requirement is if the Tenant claims, as a defense to the Landlord’s legal action, that Tenant has indeed paid proper rent. Another exception is if the actual ownership of the real estate is at issue in the case.
If you are a Tenant facing an eviction proceeding, please contact Siegel & Siegel at 561-620-8200. We look forward to helping you.
DISCLAIMER: The information contained on this website, including this article, presents general information and is not and should not be used as legal advice. Before acting on any of the materials presented on this website, we advise you to seek legal counsel regarding your unique situation. Using this website does not create an attorney-client relationship between the user and Siegel and Siegel, P.A., or any of its lawyers.
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