Landlords need to know about the differences in rent, fees, and charges to a tenant’s account and how to assess and enforce the tenant’s payment obligation as to each category. This article summarizes each category of obligation and their legal import under Florida Residential Landlord-Tenant law.
Rent
State statutes define “rent”. Under the Florida Residential Landlord-Tenant Act, “rent” is defined as follows by F.S. 83.43(11):
“‘Rent’ means the periodic payments due the landlord from the tenant for occupancy under a rental agreement and any other payments due the landlord from the tenant as may be designated as rent in a written rental agreement.”
Thus, rent is either the periodic payment due in exchange for occupancy or a payment the tenant owes as “additional rent” during the tenancy.
The lease agreement must define the monetary obligations that are deemed “rent”. For any those that are not defined as “additional rent”, the landlord cannot include those fees or charges in a Notice to Pay pursuant to F.S. 83.56(3). See, “The 3 Day Notice to Pay”.
This rule is important to know because landlords, many times, mistakenly include fees or charges that are not defined by the lease agreement as “additional rent” in the Notice to Pay, which renders the notice defective. See, How to Prepare a Rent Payment Ledger.
Keep in mind, even though the Landlord may not include a non-rent fee in a Notice to Pay, the tenant remains obligated to pay the non-rent fee, and the landlord can use other legal remedies to enforce the obligation, such as, make a claim on the security deposit, deliver a 7 Day Notice to Cure, or file legal action for damages.
For verbal tenancies, since there is no written lease agreement, the landlord cannot include any fee that is not due as a periodic payment for occupancy. As such, the landlord cannot include those fees in a Notice to Pay.
Fees
Fees are money obligations the tenant must pay upon the occurrence of some event or provision of some service. Examples of fees include, cleaning fee, lease violation fee, service fee, user fee, etc. Landlords should include all fees in the lease agreement, and it is good practice to include all fees in a Fee Addendum for ease of reference. Fees are not “rent” unless the lease agreement defines the fee as such.
The lease agreement should define what triggers a fee and the amount of the fee. If the court finds that the provision is vague or confusing, the court may not enforce that provision. Landlords should have an attorney prepare their lease agreement to ensure compliance with the law relative to these provisions.
Fees that are charged must be reasonable and not unconscionable. If a court finds that a fee is unreasonable or unconscionable, the court has the authority to nullify that fee provision, pursuant to F.S. 83.45(1), which states,
“If the court as a matter of law finds a rental agreement or any provision of a rental agreement to have been unconscionable at the time it was made, the court may refuse to enforce the rental agreement, enforce the remainder of the rental agreement without the unconscionable provision, or so limit the application of any unconscionable provision as to avoid any unconscionable result.”
Keep in mind, even though the Landlord may not include a non-rent fee in the Notice to Pay, the tenant remains obligated to pay the non-rent fee, and the landlord may use other legal remedies to enforce the monetary obligation, such as, make a claim on the security deposit under F.S. 83.49, deliver a 7 Day Notice to Cure under F.S. 83.56(1), or file legal action for damages.
For verbal tenancies, since there is no written lease agreement to define fees as “additional rent”, the landlord cannot include any fee that is not due as a periodic payment for occupancy. As such, the landlord cannot include those fees in a Notice to Pay.
Charges
Charges are monetary obligations the tenant must pay pursuant to the lease agreement’s terms and conditions. Charges may include payment for services provided to the tenant or property, which normally recur (e.g. utilities), or for damages caused by the tenant and attorney’s fees and costs incurred due to the tenant’s negligence or breach of the lease agreement. Charges are generally categorized as monies owed due to services provided to the tenant or the rental property or due to the tenant’s negligence.
Florida courts do not permit landlords non-customary or non-recurring charges (e.g. utility charges) in a Notice to Pay because the tenant’s obligation must first be proven. This is especially true when the nature of the charge amounts to damages alleged to be caused by the tenant’s negligence or wrongdoing—and the greater the amount of damages caused, the more likely this would become an issue in an eviction action for non-payment.
For example, if the tenant allegedly caused, say, $5,000 in property damage, the landlord cannot include that charge in a Notice to Pay, because the tenant’s obligation to pay the charge must be proven before being able to include that charge as “additional rent”, assuming the lease agreement defined “damages” caused by the tenant as “additional rent”. The same rule applies for attorney’s fees and costs. For attorney’s fees, the landlord must first prevail in the legal action and get a court order for attorney’s fees and costs.
Another example is if the tenant requested maintenance, and upon inspection, the landlord determined that the repair charge is the tenant’s obligation. In that case, the landlord should not include the charge as “additional rent”, because the court may find that the charge was not proven to be owed yet and thus cannot be included in a Notice to Pay.
Compare those damages-type “charges” with more routine and recurring charges, such as utility charges. Utility charges that are assessed to tenants are commonly defined as “additional rent” and may be defined as such. Thus, if a tenant fails to pay utility charges defined as “additional rent”, the landlord may include those unpaid charges in a Notice to Pay.
Conclusion
Landlords need to be aware of the different categories of tenant payment obligations and their legal import. Rent is legally defined by Florida Statutes. Any money obligation that is not defined as “rent” may not be included in a Notice to Pay, but even if the lease agreement defines a charge as “rent”, the court may not permit the landlord to include the charge in a Notice to Pay when the landlord must first prove that the tenant is obligated to pay that charge, such as for damages and attorney’s fees and costs. In general, the rule of thumb is for landlords not to include any monetary obligation that is not a periodic rent payment and not a flat fee easily identifiable and assessed based on an occurrence or service provided.
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