In Florida, a landlord is prohibited from retaliating against a tenant for exercising a lawful right or remedy against the landlord in good faith. It is not uncommon for tenants to allege that the landlord is illegally retaliating against the tenant in an eviction action. Landlords must, therefore, understand what actions Florida law prohibits a landlord from taking and how to properly manage rental property to avoid such defenses.
F.S. 83.60(1)(a) provides that a tenant may raise as a defense to an eviction that the landlord is retaliating against the tenant for exercising lawful rights and remedies. It states,
In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent or in an action by the landlord under s. 83.55 seeking to recover unpaid rent, the tenant…may raise any other defense, whether legal or equitable, that he or she may have, including the defense of retaliatory conduct in accordance with s. 83.64.
F.S. 83.64(1) also prohibits a landlord from retaliating against the tenant when the tenant, in good faith, exercises his rights and remedies. Retaliation includes increasing rent, decreasing services, threatening to bring action against the tenant, or bringing action against a tenant, including eviction.
The statute provides for situations where a landlord cannot retaliate when the tenant:
(a) complained to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises;
(b) has organized, encouraged, or participated in a tenant organization;
(c) has complained to the landlord pursuant to s. 83.56(1);
(d) is a servicemember who has terminated a rental agreement pursuant to s. 83.682;
(e) has paid rent to a condominium, cooperative, or homeowners’ association after demand from the association in order to pay the landlord’s obligation to the association; or
(f) has exercised his or her rights under local, state, or federal fair housing laws.
However, F.S. 83.64(3) provides that where the landlord had good cause, the landlord may take action to evict the tenant for the tenant’s violations. It states,
[i]n any event, this section does not apply if the Landlord proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter.
See Salmonte v. Eilertson, 526 So. 2d 179 (Fla. 1st DCA 1988) (interpreting Section 83.64(3); retaliatory eviction defense does not apply when landlord proves eviction is for good cause and further defines good cause to include violation of the rental agreement).
For the tenant to prove “retaliation”, the tenant must prove that the landlord discriminated against the tenant. F.S. 83.64(4) states,
“Discrimination” under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.
Thus, as discussed below, it is important that landlords treat all tenants objectively and the same in similar situations.
As one can imagine, a tenant may attempt to set up a defense as pretext to an anticipated eviction by making complaints of fair housing violation or housing or code violations (which are the most common situation involving defense claims of retaliation). Sometimes, tenants have legal counsel instructing them on how to set up a retaliation defense and guide them through that process. Therefore, landlords must know how to properly manage the rental property to overcome a tenant’s defense of retaliation.
Below are some proper management tips:
- Keep good records of all things related to the management of the property, including:
- Tenant communications
- Pre-move-in conditions of the propertyProperty conditions during the tenancyInspection reportsTenant violationsRent payment historyVendor communications
- Documents and records
- Take all tenant reports seriously. If the tenant reports a defect on the property, use due diligence and reasonable efforts to:
- Discover the defect
- Document the defect
- Hire an independent professional to inspect and assess the defect
- Use credible support. If the tenant’s claims of a defect are exaggerated or unfounded, document the truth of the matter and use credibile, professional vendors to help support the conclusion that the tenant’s report is exaggerated, unfounded, or remedied.
- Communicate effectively with the tenant, including:
- Do not bring emotions into the conversation.
- Stick to the facts of what is at issue.
- Provide credible support and proof for your position.
- Use an attorney-drafted lease agreement. The lease agreement is vitally important to managing rental property properly. Know its content and how to cite its relevant provisions to the tenant when issues arise.
- Be objective. It’s easy to approach situations with tenants in a biased manner, but ultimately, if your situation ends up in court, the court will not be biased in your favor, so you should address all situations with objectivity so that the court will see you as a credible witness.
- Be reasonable. Like “objectivity”, being reasonable will only help your cause. If you go out of your way to deny or neglect the tenant’s concerns or complaints and do not use due diligence in inspecting, assessing and remedying true, material defects, your later attempts to evict the tenant may be met with a hardy defense.
- Be consistent. F.S. 83.64(4) requires that the tenant show “discrimination” to prove retaliatory conduct. “‘Discrimination’ under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.” Thus, be sure to treat tenants the same under similarly situated circumstances.
- Do right. It should go without saying but be sure to do the right thing. This means your decisions are not motivated by unlawful discrimination or retaliation and act accordingly.
- Watch what you say. Your words can be used against you. So, if you chastise the tenant for making a complaint of your breach of obligations, it can be used against you later in an eviction action.
- Get legal advice. If the tenant is making serious or numerous claims that you, as the landlord, are in violation of your obligations, you should seek legal advice immediately. You may not realize how serious or problematic your situation is. In any event, you need to ensure you are taking proper and legal steps to manage your property the correct way and to avoid unnecessary legal expenses in the future.
- Remedy material defects. If there’s a material defect and it’s a landlord obligation, use reasonable efforts to remedy the defect. Not only is retaliation a potential defense, but also the tenant may have a right to withhold rent or terminate the lease with a proper 7 day notice to cure.
In short, do not retaliate against a tenant who is exercising a lawful right or remedy; manage the property the proper way; keep emotions out of it; get credible support for your position; be consistent across the board; be objective; do what’s right; and document thoroughly. When you manage the rental property properly, it will help you to answer a tenant’s retaliation defense in an eviction action, because you will be able to show that your decision to terminate the tenancy was not motivated by retaliation and was for good cause.
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.