Legal FAQ’s
Legal
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Do I need a written lease agreement to create a legal rental agreement with a tenant?
No, as long as the lease term is not more than 1 year. Under the Statute of Frauds, if the lease term is more than 1 year, the agreement must be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.
Do I need an attorney to prepare a written lease agreement?
It depends. Individual owners of real property can draft their own lease agreement, but if you are leasing property as a property manager, the property manager cannot draft a lease agreement. The property manager can only use what is known as the “FAR-BAR” lease or a lease prepared by an attorney. It is highly advisable to have a landlord-tenant attorney prepare your lease agreement.
If I do not have a lease agreement in writing, or don’t have the terms memorialized in writing, how do I prove the terms of the rental agreement?
Typically, if the terms of a verbal agreement are in dispute, you prove the terms by the actions of the parties. For example, to prove that rent was due on the first, you may need to introduce bank records to show that you historically deposited the tenant’s rent payment on the second day of the month. It is advisable to have lease agreements in writing to avoid disputes as to terms.
Does a tenant have the right to sublease my rental property?
Yes, unless the written lease agreement explicitly prohibits the tenant from subleasing. This is one of many good reasons why you should put your lease agreements in writing.
How should I handle a situation where the tenant is requesting to amend the lease agreement?
In short, the lease agreement should be in writing, and any amendments should be in writing. Lease agreements are legal documents that affect your rights and obligations. Be sure to have an attorney help you with your lease agreement and addenda.
What happens when a tenant remains in possession of the property after the expiration of the lease term?
It depends. If the lease agreement automatically terminates the tenancy at the end of the lease term, and you have not given permission to the tenant to remain, the tenant is a holdover, and you can file an eviction to remove the tenant. If you accept rent from the tenant and have given the tenant permission to remain, the tenancy is month-to-month, and the tenancy will be governed by the terms and conditions of the lease agreement that expired. It is advisable that your lease agreement addresses end-of-lease term processes and holdover situations.
Can I terminate a written lease agreement during its term when the tenant is not in violation of the lease agreement?
No, unless your lease agreement has a termination provision permitting you to terminate the lease early.
Can a tenant terminate the written lease agreement during its term early when I have not violated the lease agreement?
No. If the tenant terminates early, you are entitled to the remedies under F.S. 83.595.
Can a tenant be relieved from complying with a written lease agreement?
It depends. First, courts will not uphold unconscionable lease terms. This is a good reason to have an attorney prepare your lease. Second, courts may find that you have waived a lease provision by your actions. Thus, you should always stick to the terms of the lease agreement, and if an amendment to the lease needs to be made, put it in writing.
Does Florida law regulate how much rent I can charge a tenant?
No, but Florida law does prohibit unlawful discrimination and retaliation in regard to how you set and increase rent.
Can I charge tenants fees in addition to rent?
Yes, as long as you have a written lease agreement that defines the fees and the conditions that must be met for the fees.
Can I add fees defined in the lease agreement to a Notice to Pay or Vacate?
Yes, as long as the lease agreement defines the fee as additional rent, and the fee has, in fact, accrued when you deliver the notice. There are also limitations to the fees you can charge under Section 8 housing.
Can I use the tenant’s security deposit to pay unpaid rent during the tenancy?
No. F.S. 83.49 governs how landlords are to handle and disburse the security deposit. You can only make a claim on the security deposit after the tenant has vacated the premises upon termination of the lease. However, there are situations when the tenant and landlord can enter into agreements regarding the security deposit, but in those situations, it is advisable to have an attorney advise you on how to properly draft such an agreement.
Is there such a thing as the tenant “forfeiting” the security deposit?
No. F.S. 83.49 governs how landlords are to handle and disburse security deposits. You can only make a claim on the security deposit after the tenant has vacated the premises upon termination of the lease. However, there are situations when the tenant and landlord can enter into agreements regarding the security deposit, but in those situations, it is advisable to have an attorney help properly draft such an agreement.
If a tenant has failed to pay the security deposit, can I deliver a 3 Day Notice to Pay or Vacate demanding that the tenant pay the security deposit?
No. A security deposit is not rent, and therefore, you cannot use the 3-Day Notice to Pay or Vacate to demand the payment of the security deposit. You would have to use a 7-Day Notice to Cure.
Does Florida law regulate how much security deposit I can require the tenant to pay?
No, unless the tenant is on Section 8 housing. However, you are still obligated to comply with Fair Housing laws relative to how you treat protected classes.
What damages can I use to make a claim on the security deposit?
Any damages beyond normal wear and tear caused by the tenant,and monies the tenant owes under the lease agreement (e.g. cleaning fee, unpaid rent). Taking comprehensive move-in and move-out photos is crucial in proving the condition of the premises before and after the tenancy. The lease agreement can define certain fees owed to avoid some of the common arguments tenants raise when it comes to “damages beyond normal wear and tear”. For example, it is much simpler to include a house cleaning fee in the lease agreement than to have to prove that the tenant did not leave the premises in clean enough condition.
Will I lose the right to use the security deposit if I don’t send my written claim by certified mail to the tenant’s last known address within 30 days of the tenant vacating upon the termination of the lease?
Yes. F.S. 83.49 has been interpreted strictly by the courts. If you fail to send the claim by certified mail within the 30-day deadline, you lose the right to use the deposit, but you can still sue the tenant for damages.
How do I determine the value of damage to my property, if the tenant caused the damage, and if I need to make a security despot claim or file suit?
Determining the value of damages is not always easy, but as a general rule you can charge the tenant for the fair market value of the damaged item (see e.g. depreciation and useful life expectancy calculations), plus the costs of repair. Do not charge the tenant for repair items that are the landlord’s obligation or that exceed the scope of the damages at issue. Also, beware of charging for the replacement of material in order to “match” the damaged material. Consult an attorney regarding issues of damage value.
Do I have to accept rent from the tenant after the expiration of a 3 Day Notice to Pay or Vacate?
No, but you must accept rent from the tenant during the notice period if the rent is full payment. If the tenant attempts to pay partial rent, you have the option to accept or reject the partial payment during the notice period. If you accept a partial payment, you must comply with F.S 83.56(5)(a).
How do I deliver a notice to a tenant to cure a violation or terminate the lease?
By hand-delivering the notice to the tenant, by posting it in a conspicuous place on the premises if the tenant is not present, and by mail. According to a Florida court, emailing also suffices for written notice, but the dissenting opinion stated that if email constitutes written notice, you must add five days to the notice period under the Mailbox Rule.
Am I required to rent to Section 8 tenants?
No, there is no law requiring landlords to accept Section 8 housing funds (yet).
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