Lease Agreements, Rent, and Fees
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.
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.
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.
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.
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.
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.
No, unless your lease agreement has a termination provision permitting you to terminate the lease early.
No. If the tenant terminates early, you are entitled to the remedies under F.S. 83.595.
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.
No, but Florida law does prohibit unlawful discrimination and retaliation in regard to how you set and increase 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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
No, there is no law requiring landlords to accept Section 8 housing funds (yet).
No. In Florida, you cannot remove a tenant except by the procedures provided in Florida Statutes ch. 83. In short, the landlord must deliver specific notice of termination relative to the violation, and if the tenant does not cure or comply with the legally-sufficient notice, the landlord must file for eviction seeking an order to remove the tenant from the property.
1) When the tenant surrenders possession of the premises, and you accept the tenant’s surrender. 2) When the tenant abandons the premises, and you retake possession of the premises. 3) Upon the death of a tenant (presuming the statutory conditions are met). 4) Upon lawful eviction to remove the tenant.
If you accept rent from the tenant during an eviction action for non-payment of rent, you lose the eviction action. In that situation, you should enter into a written settlement agreement with the tenant prior to accepting rent, and once the court approves your settlement agreement, accept rent from the tenant pursuant to the agreement.
It depends on the county where your rental property is located. County clerks of court, judges and sheriff’s offices vary in how quickly they handle the eviction process. In the more efficient counties, the process normally takes 4-6 weeks from the time of filing the eviction to the final judgment. In less efficient counties, the process could take months. Some of this depends on the tenant’s answers and issues raised in the pleadings. You should hire a competent, experienced landlord-tenant attorney to handle your evictions.
Repairs and Maintenance
It depends. F.S. 83.51(1) imposes landlord obligations to keep the property in compliance with housing and health codes, but if there is no applicable code, then to reasonable working conditions on specified items in the statute. This is generally known as the “warranty of habitability.” However, the landlord and tenant may agree to alter the landlord’s obligations in writing if the property is a single-family or duplex. It is advisable to consult an attorney when altering the landlord’s obligations in a lease agreement.
It depends. You are obligated to comply with the landlord obligations under F.S. 83.51(1) and for those you have promised to repair in the lease agreement. You are not obligated to repair any item that was damaged by the tenant, and you are not obligated to repair an item that is not listed as an obligation under F.S. 83.51(1) and the lease agreement.
First, determine that the repair requested is not your obligation. Next, notify the tenant that the repair requested is not a landlord obligation under F.S. 83.51 or the lease agreement. If the tenant desires to make the repair himself, be sure that you do not let the tenant do work that they are not qualified to perform. If the tenant wants to hire a vendor, do not let them hire one that is not qualified, licensed, and insured to perform the needed work. It is advisable that you have a written lease agreement to govern these situations.
It depends. First, your lease agreement should address mold complaint situations. Next, mold can be a serious problem, so not assessing a mold complaint can impose liability on you if mold is in fact present. If mold is visible, you should take steps to assess the condition. If the tenant was not the cause of the mold, and the report reveals dangerous types and levels of mold, you should remedy the problem. If mold is not visible and your lease agreement does not address the situation, this poses a problem. If you do not assess the condition, and the tenant gets injured by mold, you could be held liable. But if you assess the condition, and there is no mold present, you’ve spent hundreds of dollars needlessly. Again, use a lease agreement that addresses this situation, and if necessary, consult an attorney to help guide you through mold complaints.
Most likely, yes. Professional property management companies that are staffed with experienced real estate brokers and agents should provide you with many benefits in managing your rental property. There are many complicated aspects to managing rental property, not the least of which is liability avoidance and mitigation. The rental business is becoming a more highly-targeted business by attorneys and tenants. Consider hiring a good property management company to help protect your property and finances.
No, pursuant to F.S. 475.01(1), unless you meet the exceptions found under F.S. 475.011.
Create a written process and procedure that governs your selection criteria based on lawful discriminatory practices (e.g. rental income, credit score, criminal history, rental history, etc.). Stick to that process and procedure for all applicants.
Yes. As a landlord, you have obligations under F.S. 83.51(1) to maintain the premises under the “warranty of habitability.” Also, if there is a dangerous or hazardous condition that you knew about or should have known about using reasonable inspection efforts, and a tenant is injured for your failure to remedy the defect, you could be held liable for the tenant’s injuries.
Yes, because it can be seen as foreseeable that third parties could be injured if you have neglected your landlord obligations to keep the property free from dangerous and hazardous conditions.
There is no rule on how many inspections per year you should conduct, but depending on the situation you may need to inspect the premises three times or more each year. There are several factors that should help you determine when and how often inspections are needed. To enforce the lease agreement, inspect periodically so you know whether or not the tenant is in default. As a landlord, you need to conduct reasonable inspections to determine if there are any dangerous or hazardous conditions that need to be remedied.
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