In Florida, a tenant may be able to withhold rent (or terminate the lease – but this article focuses on withholding rent) upon satisfaction of certain legal requirements. Landlords need to know the basic requirements that must happen for a tenant to withhold rent, because it is not uncommon that tenants will attempt to do this (even if there is no basis). The article addresses the basic legal requirements the tenants much satisfy to withhold rent and defend an eviction when the tenant withheld rent.
Summary on Withhold Rent
Here’s what you’ll see in this article:
- Tenant may withhold rent when:
- Landlord is in breach of the warranty of habitability and the defect is material,
- the tenant delivers written notice specifying the breach and defect and states the tenant’s intent to withhold rent if the breach is not cured within 7 days, and
- the landlord does not cure the material defect timely.
- The landlord’s response include,
- getting legal advice,
- inspecting timely after receiving a notice to cure,
- documenting adequately of the defect reported,
- contacting applicable professionals to assess and address the reported defect,
- taking reasonable efforts to cure the defect when it is the landlord’s obligation.
- If the defect is cured within 7 days, the tenant cannot withhold rent.
- If the defect cannot be cured because it is not within the landlord’s ability to cure after using reasonable efforts, Florida Statutes provides for the parties’ options.
- If an eviction is filed, the tenant must:
- deposit all back rent owed as alleged in the complaint, or
- file a motion to determine rent specifying the reasons why the back rent alleged in the complaint is in error, and
- post the rent ordered by the court at a rent determination hearing, failure of which shall result in default judgment in favor of the landlord.
Statutory Provisions
Florida Statutes ch. 83, pt. 2 provides for the tenant’s ability to withhold rent. The relevant statutes are found at F.S. 83.56(5)(b) and 83.60(1)(b), and the tenant’s right to withhold rent and defense to an eviction are rooted in the landlord’s obligation to comply with the warranty of habitability found in F.S. 83.51(1).
F.S. 83.60(1)(b) provides that the tenant may raise a defense to an eviction as follows:
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.
Again, F.S. 83.51(1) provides for the landlord’s obligations to maintain the premises, also known as, the warranty of habitability. Notably, the landlord’s material violation of F.S. 83.51(1) is an absolute defense to eviction for non-payment of rent. See F.S. 83.60(1)(b) (“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”). Clearly, this is a very important issue in a landlord-tenant relationship.
Breach of Warranty of Habitability – Material Defect
To withhold rent, the landlord must, first, have violated the warranty of habitability, and the defect must be material. The landlord’s maintenance obligations are found at F.S. 83.51(1). (Note: we provide a training module on Landlord’s obligations in our qualified membership plans.). In short, F.S. 83.51(1) provides that the:
Landlord must comply with housing, building, or health codes, but if there are none, the landlord must maintain the roof, windows, floors, steps, porches, exterior walls, foundations and all other structural components in good repair and must maintain the plumbing in reasonable working condition.
If the landlord breached the warranty of habitability and the defect is material, the tenant then may deliver written notice to cure stating his intent to withhold rent if the defect is not cured within 7 days.
7 Day Notice to Cure
Before the tenant may withhold rent, the tenant must deliver written notice to cure to the landlord, pursuant to F.S. 83.56(1). In the notice, the tenant must specify the defect and landlord’s breach and give the landlord at least 7 days to cure the defect. The notice must also specifically state the tenant’s intention to withhold rent or terminate the lease. Failure to comply with this legal requirement prevents the tenant from raising the landlord’s non-compliance as a defense to an eviction for non-payment of rent.
Landlord’s Response
If a landlord receives a tenant’s 7 Day Notice to Cure (especially with an intent to withhold rent), the landlord should immediately seek legal advice because these issues normally involve complex issues and require legal analysis and proper advice on how to handle the situation.
At a minimum, the landlord should timely inspect the premises regarding the reported breach and document thoroughly the inspection findings. From there, the landlord should determine if a professional or licensed vendor is needed to assess the reported defect for purposes of determining causation, the material or immaterial nature of the defect, and the remedy. Get the professional’s written report on the matter to support the findings and determinations.
If there is, in fact, a breach of the warranty of habitability (not caused by the tenant), the defect is material, and the remedy is within the control of the landlord, the landlord must use reasonable efforts to timely remedy the defect. If the landlord cures the defect, the tenant has no right to withhold rent.
If Defect Cannot Be Remedied
If the defect is not reasonably within the landlord’s control to cure, F.S. 83.56(1) provides for the parties’ remedies, stating:
If the failure to comply with s. 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the landlord and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows:
(a) If the landlord’s failure to comply renders the dwelling unit untenantable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable.
(b) If the landlord’s failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance.
Regarding subsection (b) (i.e. rent is reduced by the proportion of the loss of rental value by the non-compliance), if this happens, the Landord should seek the professional opinion of a real estate broker or associate qualified to determine what the “loss of rental value” is under the circumstances and then work out an agreement with the tenant to reduce rent by the agreed upon value during the time the defect cannot be cured while the tenant remains in possession of the premises.
There is also a notable legal issue in the situation where the repairs are extensive, such that the landlord is unable to cure the defect without the tenant vacating the premises: can the landlord terminate the lease to make the necessary repairs? One Massachusetts appellate court in Knott v. Laythe, 674 N.E.2d 660 (Mass. App. 1997) ruled that a landlord is entitled to terminate a lease to make such repairs, based on Mass. Gen. Laws ch. 239, § 8a, but the appellate court ruled that trial court rightly reduced the rent for the time period that the tenant remained on the premises.
This issue demonstrates good reason why you need an attorney to draft your lease agreement, because provisions can be made in the lease agreement to permit the landlord to terminate the lease in extraordinary cases of repair or even at the landlord’s discretion with adequate notice to the tenant.
Eviction
Pursuant to F.S. 83.56(5) and 83.60(2), if the landlord files an eviction, the tenant may not raise the defense that the landlord breached the warranty of habitability unless the tenant deposits the back due rent into the court registry as alleged in the complaint within 5 days of being served with summons or files a motion to determine the amount rent the tenant should be obligated to deposit. F.S. 83.60(2) also requires that the tenant file supporting documents showing that the back rent alleged in the complaint is in error.
At a rent determination hearing, the court must determine the amount of rent the tenant must deposit, and according to the court’s order, the tenant must deposit that rent before the tenant may raise the defense that the landlord breached the warranty of habitability and that the defect was material. If the tenant fails to deposit the rent into the court registry as ordered by the court, the court is required to enter a default judgment for the landlord.
Conclusion
When a tenant delivers a notice to cure with intent to withhold rent, there are numerous issues involved and that need to be dealt with. The situation can become complicated to navigate. Landlords need to seek legal advice immediately.
Landlords need a lease agreement drafted by a landlord-tenant attorney. The lease agreement should address situations when major repairs are needed and how the lease can be terminated.
Landlords should use due diligence to stay in compliance with the warranty of habitability and inspect the premises routinely to ensure there are no material defects, and when a tenant delivers a notice to cure, landlords should inspect timely to discover, assess, and remedy defects that are the landlord’s obligation—especially material defects.
Property Management Law Solutions, LLC is a Florida law firm that specializes in landlord-tenant law and is a landlord-only law firm. We provide statewide services including evictions, consultation plans, education and training, membership plans, lease agreement plans and more. If you are a landlord or property manager, contact us today or subscribe to one of our online membership plans.