A fairly recent court county court decision in an eviction case reveals how judges can view and rule on landlord-tenant issues involving rent credit and waiver of lease provisions arising out of an eviction lawsuit and in light of Florida Statutes (FS), ch. 83, pt. 2. The highlight case is Cobb v. Pittman, 2018-CC-3251 in Bay County before Judge Joe Grammer. 


In this case, the landlord sued the tenant for residential eviction under FS 83.56 for failure to pay rent. The landlord attached a 3-day notice to pay or vacate to the complaint, wherein he demanded payment of rent in the amount of $850 ($650 was the monthly rent obligation—the landlord did not specify how he calculated $850). The defendant raised defenses regarding the legal sufficiency of the notice (e.g. lack of specificity, premature delivery, payment, etc.). 

Before the tenant could raise defenses at a trial, the tenant was required to post the disputed rent, as alleged to be owed in the eviction complaint, into the court registry or file a legally sufficient motion to determine rent, pursuant to FS 83.60(2). The tenant filed a motion to determine rent, attaching the document supporting his motion. Here’s why the motion was filed and what happened.

The tenant was on a written month-to-month lease agreement, and he resided there for over a year. During the tenancy, the tenant claimed that the landlord allowed the tenant to make improvements to the property in exchange for rent payment credit. This arrangement was never put into writing or signed by the parties, and no receipts of rent credit was ever given by the landlord to the tenant, but according to the tenant, it was normal for their actions, and as such, the tenant came to rely on the landlord’s actions. 

As it happened, Hurricane Michael struck the area of the rental property on October 10, 2018; and consequently, problems arose with the electrical power panel that regulated the electrical power supply to the home. According to the tenant, he verbally informed the landlord of the problem, and the landlord told him that “he was on his own” as the landlord did not have the money to repair the damage. 

The tenant did not deliver a 7-day written notice to cure to the landlord, and the landlord used this fact at the rent determination hearing in an attempt to defeat any tenant defense in this regard (note: a legal issue arose in this case; to wit: whether the tenant is still bound to deliver a 7 day notice to cure when the landlord preemptively informs the tenant he will not cure the known defect. The court did not rule on this issue.)

Afterwards, the tenant hired a company to repair the electrical panel. The tenant introduced evidence at the hearing showing that he paid $1,950 to have the damaged electrical panel repaired. The invoice was dated for November 2, 2018 (the same day that the 3-day notice to pay or vacate was delivered). 

The tenant said he informed the landlord of the repair cost, as the tenant believed that he was entitled to rent credit for the repair made to the property based on the landlord’s prior actions. However, the landlord refused to give him credit for the $1,950.00. The tenant did not have the money to pay November and December rent because he paid to repair the electrical panel.

While the eviction lawsuit was pending, December’s rent accrued, bringing the alleged rent owed to $1,500.00. As one might imagine, the landlord also delivered a notice to terminate the month-to-month tenancy after the eviction lawsuit was filed, thereby ending the tenancy on December 31, 2018 (special note: during the rent determination hearing, the judge suggested that when the landlord delivered the 3 day notice to pay or vacate, he had terminated the month-to-month tenancy, thereby rendering the tenancy terminated 30 days from the date of delivery of the notice).


At the rent determine hearing, The tenant testified about the landlord’s past actions regarding giving the tenant rent credit for the tenant’s making improvements or repairs to the home. The landlord attacked the credibility of the tenant’s $1,950.00 expenditure by questioning him regarding the lack of a permit being pulled to perform the repair and the electrician not having an electrician license. The tenant noted that the government offices were closed regarding permits and that the electrician was licensed.


There was also an issue raised regarding a lease agreement provision stating that rent shall abate during the time that the premises are damaged due to a natural disaster, rendering the home uninhabitable. The tenant prevailed on this issue. Without electricity in the home, this lease provision applied; and therefore, the tenant was entitled to an abatement of rent from October 10, 2018 until electricity was restored, which the court did in his order by reducing the rent to be deposited into the court registry.


After hearing the testimony, the court ordered the tenant to pay $1,300.00 into the court registry (with abatement credit being given to the tenant during the period of time the home did not have electricity). Here are some highlights of the ruling.

A big take away here is the court’s giving credibility to a tenant argument that tenant repairs could constitute rent payment, based on the actions of the landlord; namely, that the landlord gave rent payment credit to the tenant for repairs or improvements made. But the court did not apply the $1,950 payment towards rent payment because of one fact: namely, the tenant did not get the landlord’s permission to apply the expenditure towards rent payment PRIOR to the expenditure, as was customary with the landlord according to the tenant’s testimony. 

The court’s ruling implies that had the tenant gotten the landlord’s permission prior to the expenditure, the court would likely have applied the $1,950.00 towards the tenant’s rent payment; and accordingly, the tenant would not have had to post any additional rent to raise his defenses at trial. 


The court’s finding on the rent credit is notable because the lease agreement provided that the tenant was not allowed to make any repairs or alterations to the property without the prior written permission of the landlord. There was nothing in writing from the landlord to give rent credit at any time, but the court still considered the landlord’s actions when determining what rent the tenant owed. 

Notably, the court did not cite this lease provision (i.e. prior written permission) to foreclose the tenant’s argument that he was entitled to rent credit. The legal reason for this is not stated in the court’s order, but it seems apparent that the legal reason is that a written contract provision can be waived by the parties when the parties’ actions reveal a different intent and when the parties act in reasonable reliance on their verbal or non-verbal agreement. 


Here are some lessons landlords should learn from this case:

1)   Prepare your legal notices correctly and with the advice of counsel. A defective notice provides defenses to the tenants and can you a lot of wasted time, money and energy. 

2)   Do not act contrary to the lease agreement. Your actions may be taken as a waiver of a lease provision and create a new agreement with the tenant. 

3)   For any agreements that are not anticipated by the lease agreement, put them in writing and signed by the parties. Use an attorney to draft the agreement, as your rights and obligations are affected by the agreement.

4)   Maintain the premises as required by FS 83.51 and the lease agreement. If you do not, the tenant has remedies to either withhold rent or terminate the lease where the violations are material and the tenant gives proper notice. 

5)   Where the premises have been damaged by a disaster, hire a contractor to inspect and repair the damage. Do not leave such matters to the tenant. You may incur even more damages and risk greater liability.

6)   If you allow rent credits in exchange for tenant repairs or improvements, detail the terms and conditions in writing, signed by the parties, which allow you to enforce the agreement if the tenant breaches it. Have an attorney draft the agreement. 

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