The End of Lease Term and Holdover
As a lease term is soon to expire, the landlord needs to notify the tenant about whether the landlord will allow the tenant to occupy the premises after the natural expiration of the lease term or not, but a lease agreement may also require the tenant to vacate at the natural expiration without the landlord having to give the tenant advanced notice of the tenant’s obligation to vacate at the end of the lease term.
If the tenant continues to occupy the premises after the lease term expires without permission of the landlord, the tenant is a holdover, and pursuant to F.S. 83.58, the landlord may recover possession of the premises and “may also recover double the amount of rent due on the dwelling unit.”
The Issue
What if the landlord demands and accepts double rent from the tenant during the holdover? Can the landlord still evict, or does the Landlord create an at-will tenancy? Landlords commonly ask these questions.
First, let’s look to the statute governing “holdover” in residential tenancies. F.S. 83.58 states,
83.58 Remedies; tenant holding over.—If the tenant holds over and continues in possession of the dwelling unit or any part thereof after the expiration of the rental agreement without the permission of the landlord, the landlord may recover possession of the dwelling unit in the manner provided for in s. 83.59. The landlord may also recover double the amount of rent due on the dwelling unit, or any part thereof, for the period during which the tenant refuses to surrender possession.
Creating an At-Will Tenancy
This provision is not clear on the issue, as it could be interpreted a couple of ways. The first interpretation is that the landlord may file an eviction and may also sue the tenant for double rent damages in the lawsuit.
Under this interpretation, the landlord is not able to demand and accept double rent during the tenant’s holdover, because by accepting rent, the landlord is agreeing to create an at-will tenancy. This interpretation may be supported by the language in F.S. 83.58, stating, the “landlord may also recover double the amount of rent due”. The word “may” implies that this is a matter for judicial determination, not landlord right or demand.
Of course, there is a longstanding rule in Florida that when a landlord accepts rent from a tenant after the lease term has expired, the landlord is, thereby, creating an at-will tenant. See Springer v. Duke, 10 Fla. L. Weekly Supp. 928a (Palm Beach County, September 8, 2003) (“Section 83.56(5), Fla. Stat. (2002) provides that if a landlord accepts rent from a tenant in non-compliance ‘the landlord. . .waives. . .her right to terminate the rental agreement or to bring a civil action for that non-compliance. . . .’). Thus, this legal principle further supports this interpretation.
Eviction Not Waived
However, the second interpretation is that the landlord may demand the tenant to pay double rent (or make a claim on the security deposit) as a holdover tenant. In other words, the landlord may choose to demand that the tenant pay double rent during the holdover as a penalty against the holdover tenant. That is, the “landlord may also recover” double rent against the holdover tenant.
Being allowed to accept holdover rent appears, on its face, to conflict with F.S. 83.56(5) that provides for the landlord’s waiver of filing action against the tenant when the landlord accept tenant’s rent while the tenant is a holdover, but there is a Florida case that supports this interpretation, i.e. that the landlord may demand double rent during the holdover period without waiving the right to evict the holdover tenant.
In Springer v. Duke, 10 Fla. L. Weekly Supp. 928a (Palm Beach County, September 8, 2003), the tenant was a holdover for 25 days after the natural expiration of the lease term. The landlord demanded the tenant pay double rent during the holdover and also made a claim on the security deposit for the double rent. When the tenant didn’t vacate the premises, the landlord filed an action for eviction and double rent. The tenant defended on the grounds that the landlord waived the right to evict by making a claim on the deposit for double rent and by taking the deposit to pay for that rent.
The court ruled in favor of the landlord (on the issue of double rent) as follows.
In virtually every holdover tenancy situation — including the instant case — the tenancy has already been terminated. As such, that portion of §83.56(5), Fla. Stat. (2002) indicating a waiver of a right to terminate a rental agreement is both inapplicable and clearly unintended by the Legislature with respect to holdover tenancies. To further suggest that a landlord (who accepts rent with knowledge of a holdover non-compliance) waives his or her right “to bring a civil action for that [holdover] non-compliance” is just as incongruent and the adoption of such an interpretation would clearly destroy the Legislature’s evident intent and meaning thereby destroying the force of one or both statutory provisions. Indeed, adopting the Defendant’s interpretation of §83.56(5), Fla. Stat. (2002) would render this statutory provision a dead letter to any aggrieved landlord who is saddled with a holdover tenant.
However, in the Springer case, the court stated that there are two conditions that the landlord must comply with to demand double rent from a holdover tenant:
- the tenancy must be terminated, and
- the landlord must deliver notice to the tenant that he is invoking the statute, F.S. 83.58, to demand the tenant pay double rent during holdover.
Notice and Demand
Pursuant to the Springer case, to ensure that the landlord can demand (or make a security deposit claim) for double rent during the holdover period, the landlord must deliver written notice to the tenant that
- the tenancy will not be extended or renewed,
- the tenant has no permission to occupy the premises after the natural expiration of the lease term, and
- the tenancy is terminated upon the expiration of the lease term.
Then, if the tenant does not vacate at the natural expiration of the lease term and becomes a holdover, the landlord must deliver written notice that the landlord is demanding the tenant pay double rent as a holdover tenant pursuant to F.S. 83.58.
Do Not Sit on the Eviction Right
Keep in mind, the landlord should not sit back on his eviction rights and allow the tenant remain in possession for too long and should still file an eviction against the holdover tenant because to continue to accept rent payment month to month from the tenant after the tenant has become a holdover may lend itself to a different result than Springer, where the tenant was only a holdover for 25 days.
In other words, if the landlord continues to permit the holdover to occupy the property (even if the tenant happens to pay the double rent for the first holdover month), the tenant may argue that by continuing to accept rent without filing an eviction, the landlord is implicitly giving the tenant permission to reside on the premises, and accordingly, the double rent would no longer have to be paid and an at-will tenancy created.
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