Landlords in Florida are limited in their legal remedies against a tenant who has terminated a lease agreement prior to its natural expiration in breach of the lease agreement. Those limitations are found in F.S. 83.595, and landlords should be familiar with these remedy options.
When a landlord and tenant enter into a written lease agreement for a specified term, the tenant is legally obligated to pay rent during the lease term unless the tenant has a lawful reason to terminate the lease early or to withhold rent. See our article on a tenant’s right to withhold rent. If the tenant does not have a lawful reason to terminate the lease early but does so in breach of the lease agreement, the landlord has remedies under F.S. 83.595.
Remedies for Lease Breach: Understanding Your Options
First, the landlord’s remedies exist when “the tenant breaches the rental agreement for the dwelling unit and the landlord has obtained a writ of possession, or the tenant has surrendered possession of the dwelling unit to the landlord, or the tenant has abandoned the dwelling unit.” F.S. 83.595. See our article on abandonment and lease termination.
When a tenant breaches the lease in one of those situations, the landlord is authorized by the Florida Statute to use one of the remedies, which are summarized below.
Option 1
Treat the rental agreement as terminated and retake possession for his own account, thereby terminating any further liability of the tenant.
This is not usually chosen by the landlord, as most landlords want to recover lost rent when the tenant breaches the lease. But there may be a situation where the landlord selects this option, particularly when the landlord intends not to put the property on the market for rent in the near future, whether to remodel the home or perhaps to move back into the home.
Option 2
Retake possession of the rental unit for the account of the tenant, holding the tenant liable for the difference between the rent stipulated to be paid under the rental agreement and what the landlord can recover from a reletting.
Here, the landlord must exercise good faith to relet the premises. “Good faith in attempting to relet the premises” means that the landlord uses at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the landlord uses in attempting to rent other similar rental units. However, the landlord is not required to give a preference in renting the premises over other vacant dwelling units. This is a commonly used remedy option.
Option 3
Stand by and do nothing, holding the tenant liable for the rent as it comes due. Like remedy option 1 above, this remedy option is unusual, because it is unlikely that a tenant will pay rent as it becomes due when they have vacated the rental unit. Rather than sit back and do nothing and allow back rent to accrue, most landlords would rather put the property back on the market for rent and find a new tenant to begin paying rent, which of course will help to mitigate the landlord’s loss of rent.
Option 4
Charge liquidated damages as provided in the lease agreement or addendum. Liquidated damages can be no more than an amount that equals 2 months’ rent. Most landlords use the 2-month rent amount as liquidated damages. In the case of an early termination fee, the landlord cannot require the tenant to give more than 60 days’ notice prior to the proposed date of early termination. Like remedy option 2 above, landlords commonly use this remedy option, because the amount is fixed and easily ascertained, and it limits the tenant’s exposure to 2 month rent amount. Below is a sample liquidated damages lease addendum.
Landlord Restrictions with Liquidated Damages Provisions
Landlords should know that if the landlord and tenant have entered into a liquidated damages provision in case of the tenant’s early termination in breach of the lease agreement, the landlord cannot charge the tenant for rent that accrues during the remaining term of the lease after the tenant vacates the premises. Landlords are limited to the liquidated damages amount.
If the tenant does not pay the required liquidated damages amount, the landlord may make a claim on the security deposit pursuant to F.S. 83.49. See our article on security deposit claims.
If there are other charges the landlord incurs due to the tenant’s breach of the lease agreement, the tenant may remain liable for those charges. For example, if upon vacating the premises, the landlord inspects the premises and discovers that the tenant damaged the property, the tenant is liable for those damages. Another example may be if the tenant incurs or is responsible for some fee stated in the lease, such as a cleaning fee, the tenant is liable to pay for that fee as well in addition to the liquidated damages amount. Of course, the tenant remains liable for all rent and service charges that the tenant incurs while the tenant remains in possession of the premises and until such time as the tenant vacates the premises.
Landlord’s Response to Early Lease Termination
One last note about a tenant’s early termination of the lease term. If the tenant gives notice to the landlord that he intends to vacate the premises and terminate the lease early, the landlord should deliver proper notice to the tenant of his receipt of the notice and his intended remedy choice. Doing this will help to clarify to the tenant what the landlord intends to do in reliance on the tenant’s notice and what the tenant’s obligations are. A sample response notice is below.
Conclusion
Landlords should know what their rights and limitations are under Florida when the tenant breaches the lease agreement and terminates the tenancy early, because Florida courts will limit the landlords’ remedies in that regard. Landlords should also have sound processes and procedures of handling the situation when the tenant terminates the tenancy early to ensure a smoother termination and turnover process.
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