When Can A Tenant Legally Withhold Rent

Property managers commonly face situations when a tenant wants to or in fact withholds rent based on an allegation that the landlord failed to comply with some legal or contractual obligation. This is a frustrating situation and can lead to bigger problems, but the property manager may not be clear about when the tenant has a right to withhold rent. This article explains the law on this issue.

There is only one way withholding rent can be done properly, and a few statutes shed light on the tenant’s right, namely, FS 83.51 and 83.60.

FS 83.51(1) essentially provides that the landlord is obligated to comply with building and health codes and where there are none must “maintain the roofs, windows, 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.”

FS 83.51(2) also provides for the landlord’s obligations in other areas, such as “extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs” and “locks and keys, clean and safe condition of common areas, garbage removal and outside receptacles, and functioning facilities for heat during winter, running water, and hot water”. However, the parties can agree in writing to alter the landlord’s obligations.

FS 83.51(2)(e) states that “nothing in this section authorizes the tenant to raise a noncompliance by the landlord with this subsection as a defense to an action for possession under s. 83.59.” This means that the tenant cannot withhold rent based on the allegation that the landlord failed to comply with an obligation that falls under subsection 2.

In contrast, FS 83.60(1) states that a tenant can defend an eviction action (presumably for failing to pay rent) based on the landlord’s breach of his obligation under FS 83.51(1), i.e. not complying with building or health codes, or if none exist, not maintaining in good repair the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other structural components.

In addition to the fact that the landlord’s breach must relate to his obligations under FS 83.51(1), the tenant is required to give the landlord proper written notice of the breach and an opportunity to cure the breach pursuant to FS 83.56(1) and more specifically, FS 83.60(1)(b), which states,

The defense of a material noncompliance with s. 83.51(1) may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord, specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof… A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent.

Therefore, withholding rent may be proper, but only if:

  • the tenant has delivered written notice to the landlord giving the landlord seven days to correct any material housing or building code violations of the premises;
  • the repairs are not completed; and
  • the violations of the housing code are in fact material violations.

If the landlord, in fact, materially violated FS 83.51(1), the tenant consequently withholds rent, and the landlords seeks to evict the tenant for failing to pay rent, the tenant could succeed in defending the eviction action, but to raise this defense, the tenant must first post the disputed rent into the court registry pursuant to FS 83.60(2).

Also, if the eviction issues go to a judge or jury for determination, they must determine if and to what extent rent should be reduced due to the landlord’s breach of FS 83.51(1). The judge or jury “shall determine the amount, if any, by which the rent is to be reduced to reflect the diminution in value of the dwelling unit during the period of noncompliance with s. 83.51(1).” The more severe the diminution, the less rent the tenant will have to pay.

On the other hand, if the landlord did not violate FS 83.51(1) and the tenant withholds rent anyway, the landlord will be successful in evicting the tenant for failing to pay rent.

The major point to take away, as a property manager, is to ensure that your rental properties are complying with FS 83.51(1).