How To Withhold Rent In Florida As A Result Of Landlord's Failure To Maintain The Property

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We are all intimately familiar with situations wherein a landlord promises, whether orally or in writing, to maintain a rental property and as soon as the tenant moves in, the landlord fails to fulfill his or her obligations. Many times, after reaching out on countless occasions unsuccessfully requesting - no pleading - with the landlord to repair the property, the tenant takes the law in his or her own hands and elects to withhold rent until the repairs are made by the landlord. However, Florida statutes mandate that the tenant comply with a strict procedure prior to withholding rent. The following are some suggestions regarding the proper method of withholding rental payments in Florida.

Things You Will Need

* While it is entirely acceptable to hand write the letter referenced herein, typing the letter on bond paper using a typewriter or computer is much more professional. This is the preferred method, if possible.

Step 1

Understand What The Landlord Is Statutorily Required To Do Even In The Absence Of A Written Residential Lease. In Florida, at all times during the tenancy, the landlord is statutorily required to "comply with the requirements of applicable building, housing, and health codes, or, where there are no applicable building, housing, or health codes, maintain the roof, windows, screens, doors, floors, steps, porches, exterior walls, foundations and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition." These requirements, subject to certain exceptions as set forth below in the "tips & warnings" section, are statutorily imposed on the landlord even in the absence of a written residential lease.

Step 2

Understand What The Landlord Is Obligated To Do Unless Specifically Agreed To In Writing To The Contrary. Unless otherwise agreed in writing, in addition to the requirements set forth in Step 1, the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for: (1) the extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs. When vacation of the premises is required for such extermination, the landlord shall not be liable for damages but shall abate the period of time not to exceed 4 days, on 7 days' written notice, if necessary, for extermination pursuant to this statute; (2) locks and keys; (3) the clean and safe condition of common areas; (4) garbage removal and outside receptacles therefor; and (5) functioning facilities for heat during the winter, running water, and hot water. If you are reading carefully, you may have noticed that there is no requirement that a landlord provide air conditioning for the property. Seriously? In Florida? Not sure the Florida legislature though that one through carefully...

Step 3

Understand That The Landlord's Non-Compliance With Step 1 and Step 2 Does Not Provide The Tenant With A Defense To An Action For Possession When The Lease Has Been Terminated. Florida Statute 83.51(c) provides that nothing in this section "authorizes the tenant to raise a noncompliance by the landlord with [Step 1 and Step 2] as a defense to an action for possession under s. 83.59." Florida Statute 83.59 provides that if the rental agreement (i.e., the lease) is terminated and the tenant does not vacate the property, the landlord may recover possession of the property and more fully set forth in that section. Accordingly, Florida law does not permit the tenant to simply raise non-compliance with the statutory requirements in order to defeat an action for possession filed by the landlord after the lease was terminated. Instead, material non-compliance with the mandates of Step 1 and Step 2 are only available to the tenant as a defense if the landlord files an action to recover unpaid rent.

Step 4

In The Event The Tenant Wants To Withhold Rent Due To The Landlord's Failure To Maintain Or Repair The Property, The Tenant Must Provide The Landlord With The Statutorily Required Notice. Florida Statute 83.201 provides, in pertinent part, that "When a lease is silent on the procedure to be followed to effect repair or maintenance and the payment of rent relating thereto, yet affirmatively and expressly places the obligation for same upon the landlord, and the landlord has failed or refused to do so, rendering the leased premises wholly untenantable, the tenant may withhold rent after notice to the landlord." The tenant must served the landlord with a written notice that "declaring the premises to be wholly untenantable, giving the landlord at least 20 days to make the specifically describe repair or maintenance, and stating that the tenant will withhold the rent for the next rental period and thereafter until the repair or maintenance has been performed."

Once the landlord has completed the repair or maintenance, the tenant is obligate to pay the withheld rent. However, if the landlord does not complete the repair or maintenance in the allotted time, the parties may extend the time by written agreement or the tenant may abandon the premises, retain the amounts of rent withheld, terminate the lease, and avoid any liability for future rent or charges under the lease.

Step 5

The Following Is An Example Of Language That Should Be Used By The Tenant Invoking The Protections of Florida Statute 83.201.

Date

SENT VIA CERTIFIED, RETURN RECEIPT REQUESTED US MAIL

Re: Residential Lease dated x/x/xxxx between Jane Doe, as Landlord, and John Doe, as Tenant, for that certain real property located at 1234 Slum Town, Slumtown USA (the "Property").

Dear [Insert Landlord's Name and Address]:

Please allow this letter to serve as your written notice pursuant to Florida Statute 83.201. Specifically, you are hereby notified that the Property is wholly untenantable as a result of [insert specific items that need to be maintained or repaired] (the "Repairs"). Demand is hereby made that you, within 20 days from your receipt of this letter, complete the Repairs. Please be advised that I will be withholding next month's rent and thereafter until the Repairs are completed. Please govern yourself accordingly.

Sincerely,

John Doe
Following these suggestions may assist you in successfully withholding rent to force the landlord to comply with his or her obligations to maintain or repair the property.

Tips & Warnings

* Because Florida law provides that parties to a transaction may contract for more or less rights and/or responsibilities, unless the statute specifically provides that a provision is non-waivable, the express terms of the contract (i.e., the residential lease) govern the parties' relationship.

* This article is based on the current status of Florida law. However, it is written for informational purposes only and is not intended as legal advice. In the event you are in need of the services of an attorney, please consult an attorney in your state that is licensed to practice law.