Landlords run numerous risks in the rental business, and one of them is not enforcing the lease agreement in a timely and proper manner. In other words, landlords who sit on their rights may lose them.
While landlords may, at times, believe they are doing the right or kind thing by letting tenant violations go without timely enforcement, the landlord may be jeopardizing his ability to enforce the tenant obligation in the future. Here are some important things to understand about proper enforcement of the lease agreement.
Types of Waivers
Landlords may be deemed to have waived their rights to enforce the lease agreement by two main (in)actions; namely,
- Acting or stating contrary to what the lease agreement requires, and
- Failing to enforce the lease agreement timely.
Any one of these landlord (in)actions may cause the landlord problems in any future legal action against the tenant, including an evictions, security deposit claim disputes, and actions for damages.
There are two main types of tenant violations that the landlord must timely enforce to be able to maintain their ability to enforce lease obligations: 1) non-payment of rent, and 2) lease violations.
Non-Payment of Rent
The general rule is that a landlord could waive his right to enforce late rent payments and the notice to pay itself under F.S. 83.56(3) where the landlord shows a pattern of accepting late rent payment from the tenant during the tenancy without using due diligence of enforcement and the notice requirement required under F.S. 83.56(3).
What commonly happens is this: the landlord will allow a tenant to repeatedly pay rent late during the tenancy and not deliver a Notice to Pay when the tenant is late or will repeatedly accept partial rent payment during a notice to pay period without using the remedies provided in F.S. 83.56(5)(a)(1)-(3) when accepting partial payment.
When the landlord permits the tenant to continually pay late–or accepts partial payment during the notice period–without enforcing the tenant’s obligations of timely rent payment, the tenant may have a waiver defense to an eviction when the landlord finally decides to deliver a either deliver the notice to pay or refuse to accept partial payment during the notice period.
Florida courts have long held that by not enforcing the tenant’s rent payment obligation, the landlord will have waived the ability to file an eviction based on yet another late payment unless the landlord delivers formal notice of not accepting further late payments and sticks to it.
For example, this Florida court reiterated courts’ ruling in this regard in Prairie Oaks Apartments, LTD v. Robinson, 20 Fla. L. Weekly Supp. 800a (Levy County, April 26, 2013):
Courts have held that if the landlord has a pattern of constantly accepting late payments after giving the tenant notice that late payments would no longer be accepted, then the landlord may be estopped from evicting the tenant without giving the tenant additional notice that late payments will not be accepted. Heggs v. Haines City Community Dev., 2 Fla L. Weekly Supp. 137a (10th Cir App. 1994), Royal Am. Mgt. Inc. V. Keither, 20 Fla. Supp. 2 D 95 (Fla. Volusia County Ct. 1986). Such an action would cause a reasonable lessee to believe that the lessor did not intend to enforce the default. Vines v. Emerald Equipment Company 342 So.2d 137 (Fla. 1st DCA 1977). The Court held that lessor waived prompt payments of rent by their previous acquiescence in accepting late rent payments.
If there is a pattern of the landlord accepting late payments, landlord must deliver written notice to the tenant that late payments will not be accepted, and the landlord must stick to it. By accepting late payments after that landlord delivers such a notice, the landlord will be in same position as before giving the notice.
Lease Violations
Lease violations, other than non-payment of rent, may include violations like:
- having unauthorized pets or occupants
- failing to maintain the lawn
- disturbing the peace of the neighbors
- failing to place utilities in tenant’s name
- adding an amenity without authorization
Like waiving the right of evicting for non-payment of rent, if the landlord “sits on this rights” regarding lease violations, the landlord could be deemed to have waived the right to enforce the tenant’s obligation. Of course, just as important to not sitting on your rights as a landlord is to know how to properly enforce the lease agreement.
Acting or Stating Contrary to the Lease Terms
A landlord can potentially waive his right to enforce a tenant lease violation when the landlord acts in a way or states something to the tenant that is contrary to the lease terms.
For example, if the lease agreement provides that the tenant cannot install a portable shed on the property, but then when the landlord inspects, the landlord observes that the tenant violated that lease provision, fails to enforce the provision and continually accepts rent payment, the tenant may raise the waiver defense in any eviction filed for that violation.
Or let’s say, the landlord tells the tenant that he must pay the landlord a fee for the lease violation but doesn’t give a notice to cure, the landlord could be deemed to have waived the tenant obligation, both in regards to allowing the tenant to pay for the ability to do what the lease prohibits and by failing to enforce the violation.
There are plenty of case examples in Florida where the landlord lost in legal actions filed against the tenants when the landlord told the tenants they could do something contrary to what the lease agreement required. For example, in Steve Spry v. Arthur Budau, 7 Fla. L. Weekly Supp. 620a (Broward County, June 26, 2000), the tenant breached the lease when he replaced some of interior wallpaper in residence, but the court found the breach was immaterial and “innocent” when the landlord told the tenants to “make themselves happy” and to “do what they wished to residence”.
In addition, F.S. 83.56(5)(a) provides,
If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions…, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance.
To avoid a “waiver” of landlord rights and remedies, landlords should enforce the lease agreement timely, but if the landlord wants to alter the terms of the lease agreement when a lease violation is discovered (e.g. require the tenant to pay for a privilege), the landlord should have an attorney draft the lease addendum so that the rights and obligations of the parties is clearly defined.
Failing to Timely Enforce the Lease Terms
Another way a landlord can waive his right to enforce tenant obligations is by not taking enforcement action timely. For example, if the lease agreement prohibits unauthorized occupants, and the landlord later discovers that the tenant has permitted an unauthorized occupant, the landlord could waive the obligation if the landlords sits back and does nothing for too long. The longer the landlord waits on enforcement, the greater the chances that the tenant could argue a “waiver” defense, especially when the landlord continues to accept rent after discovering the violation.
Therefore, for landlords to ensure their ability to legally enforce the tenant obligations, landlords should timely respond to all lease violations. For violations that require an opportunity to cure, deliver a notice to cure. For violations that are non-curable in nature, a notice to terminate the lease can be delivered.
Conclusion
Landlords need to know what’s happening on their rental property. This requires using due diligence to routinely inspect the premises. If the tenant has violated the lease, landlords must timely respond to enforce the tenant obligations using proper enforcement mechanisms. Otherwise, the landlord may find that he has waived the right to enforce the obligation.
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