Q: A sales associate is putting together a lease for a landlord using the Florida Supreme Court– approved lease: Residential Lease for Single Family Home or Duplex. Paragraph 13 of this lease deals with the Lead-based Paint Disclosure. The landlord’s home was built in 2007. How does the associate complete this section?
A: The Lead-based Paint Disclosure must be given only if the dwelling was built prior to Jan. 1, 1978. A landlord whose property was built in 2007 does not need to give this disclosure to the tenant. The language in the lease instructs the user to “check and complete this section if the dwelling was built prior to January 1, 1978.” Therefore, in filling out this lease for their landlord, agents do not need to check this box, and the remaining section of this portion of the lease will not need to be completed.
Q: How long does a landlord have to make a claim on a security deposit?
A: Section 83.49, Florida Statutes, requires the landlord to give written notice of intent to claim a security deposit within 30 days of the date the tenant vacates the premises. The notice must be sent by certified mail and must be sent to the tenant’s last known address. There is specific language (supplied in Section 83.49, Florida Statutes) that must be included in the notice. A landlord who isn’t going to make a claim on a security deposit is required to return the deposit within 15 days of the date the tenant vacates the premises.
Q: I’m the broker and handle the property management for a residential landlord. The tenants’ security deposit and advance rent are held in my brokerage company’s escrow account. If the owner sells the property, may I as the property manager transfer the tenant’s security deposit and advance rent to the new owner?
A: Yes. Under Section 83.49(7), Florida Statutes, upon the sale of rental property, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner, together with any earned interest and an accurate accounting showing the amounts to be credited to each tenant’s account.
Q: I primarily represent residential landlords, but recently a few commercial landlords have contacted me. Since the Florida Supreme Court provided lease forms for only residential property, may I have my local attorney draft a commercial lease form that I can fill out for my landlords?
A: For each commercial lease, the landlord and/or tenant will need a lawyer to draft a lease specific to the transaction. The landlord and tenant are also welcome to draft the lease themselves, although commercial leases are typically complicated enough to merit the services of a legal professional.
The Florida Supreme Court has provided only two lease forms that Realtors may use, and both are residential. If Realtors step beyond the role of scrivener (i.e., just filling in facts as dictated by the parties) on the residential lease forms, they’re likely engaging in the unauthorized practice of law.
Q: I’m a property manager, and I have one tenant who is chronically late paying rent. The tenant eventually pays, but not until a day or two after receiving my three-day notice to pay or quit the premises. The landlord and I are tired of playing this game. When we renew the lease, can the landlord add a section that says that the landlord can immediately evict once rent is one day late?
A: Probably not. Section 83.47,Florida Statutes, provides that a lease provision is void and unenforceable if it purports to preclude the requirements of the Florida Residential Landlord and Tenant Act. Since the contemplated provision seeks to destroy the statutorily mandated three-day notice for nonpayment of rent, a court would likely find the added provision unenforceable.
Q: I represent a landlord as property manager and have a tenant who will frequently be out of the country over the course of his yearlong lease. The tenant has asked me to accept 10 predrafted checks and to direct deposit one at the beginning of each of 10 months of his absence to the landlord’s bank account. May I do this?
A: No. Rule 61J2-14.009, Florida Administrative Code, provides that an associate must deliver an escrow deposit “to the broker or employer no later than the end of the next business day following receipt of the item to be deposited. Saturdays, Sundays and legal holidays shall not be construed as business days.”
The broker must then comply with Rule 61J2-14.010(1), Florida Administrative Code, by immediately depositing the funds in an escrow account. Rule 61J2-14.008(3), Florida Administrative Code, defines immediately as “the placement of a deposit in an escrow account no later than the end of the third business day following receipt of the item to be deposited. Saturdays, Sundays and legal holidays shall not be construed as business days.”
The agent/broker’s holding of the checks for eventual monthly deposit would be a clear violation of Florida law.
Q: I represent a residential landlord who lives out of state. I’m handling the property management of his houses, but not holding the advanced rent(s) or deposit(s).May the landlord open a bank account out of state with a bank that has a branch in Florida and still be complying with the Florida Statutes?
A: For reasons that follow, we recommend that you advise your landlord to seek legal advice as to whether this intended action will violate Section 83.49(1)(a), Florida Statutes. The statute states that the money must be held in a “Florida banking institution,” but doesn’t provide detailed guidance as to what qualifies as a Florida banking institution. It seems clear that the law is not going to mandate that a bank be chartered in the state of Florida, but merely have an operating presence and be properly registered to do business within the state.
That said, one view is that to be in full compliance with the statute, the homeowner/landlord should open the account while personally in the state of Florida, within the branch in question.
An opposing view is that as long as the financial institution has significant contacts with Florida and a tenant is easily able to recognize and locate the intermediary for questions concerning the status of any deposits, opening an account in an institution that is based outside the state, but that contains a registered business presence within the state, may actually comply with the law. For these delicate legal reasons, we suggest you refer your landlord to a licensed Florida attorney to discuss how these different arguments may apply to any specific financial intermediary your landlord wishes to choose.
Q: I am a property manager for a landlord who decided to rent out her second home for a three month rental period. The rent for the three month period and a security deposit were due before the rental period began. The tenant paid all of the money when it was due. Since this is a short-term rental, is the landlord exempt from the requirements of Section 83.49, Florida Statutes, which obligate the landlord to hold the security deposit in a separate account or post a surety bond?
A: Based on these facts, the landlord is not exempt from Chapter 83, Florida Statutes. Therefore, the landlord or the landlord’s agent must either place the security deposit in a separate account until the money is actually due the landlord or the landlord must post a surety bond.
Q: I am a property manager for a single-family home. There is a homeowners’ association, and the tenant recently told me that the association is demanding that the tenant pay rent to the association instead of to the landlord. I know the owner is behind on paying his association dues, but can the association do this?
A: Yes. Section 720.3085(8), Florida Statutes, states in part that "if the parcel owner is delinquent in paying any monetary obligation due to the association, the association may demand that the tenant pay to the association the future monetary obligations related to the parcel. The demand is continuing in nature, and upon demand, the tenant must continue to pay the monetary obligations until the association releases the tenant or the tenant discontinues tenancy in the parcel." If the owner believes the association has overstepped its authority, he should consult with his attorney.
Q: I represent a seller and can’t gain access to show the property due to an uncooperative tenant. What can I do?
A: Section 83.53, Florida Statutes (Landlord and Tenant), provides that tenants shall not unreasonably withhold consent to the landlord to enter the dwelling for reasons including, but not limited to, making repairs as well as exhibiting the unit to prospective buyers. A landlord may notify tenants that they must remedy their noncompliance within seven days of receipt of the notice. If they don’t, the landlord has the right to terminate the lease and move for an eviction.
Q: I’m the property manager. My tenant voluntarily enrolled in the Army and then voluntarily opted to live in government quarters. Now he wants me to cancel the lease. Do I have to?
A: Yes. According to Section 83.682(1), Florida Statutes, a service member who meets certain criteria may elect to terminate his or her lease. However, pursuant to the statute, the tenant must provide the landlord 30 days’ written notice, along with a copy of the official military orders or a written verification signed by the service member’s commanding officer.
Q: Is there a right to cancel a lease after a landlord and a tenant have executed a residential lease agreement, and before the tenant has moved into the property?
A: No. Section 83, Part II, Florida Statutes, governing residential landlord and tenant law, doesn’t allow a tenant or a landlord an automatic rescission period or right to cancel for executed lease agreements. Once both the landlord and the tenant sign a lease agreement, it’s legally binding, and they must comply with the terms. However, parties may include a rescission period in the lease before it is signed.
Q: I am a property manager. Once the tenant became aware that the landlord’s lender had begun foreclosure proceedings, the tenant stopped paying rent, rationalizing that if the landlord was not paying the mortgage payment, the tenant did not have to pay rent. If residential rental property is in foreclosure, is the tenant excused from paying rent?
A: No. A tenant who stops paying rent may be given the three-day notice as set forth in Section 83.56(3), Florida Statutes. If the tenant does not pay rent or vacate within three business days after delivery of the notice, the landlord may file for eviction.
Q: I’m a sales associate working with a residential tenant. The lease requires that if the tenant is not renewing it, the tenant must give the landlord 90 days’ notice before vacating the property. In addition, the lease states that if the tenant doesn’t provide this notice, the tenant is liable for liquidated damages as provided in the lease. May the landlord require the 90-day notice?
A: No. Although a lease with a specific duration may contain a provision that the tenant must notify the landlord prior to vacating the property upon expiration of the lease, it may not require more than 60 days’ notice. The lease may also state that the tenant is liable for liquidated damages if no notice is provided. However, Section 83.575(2), Florida Statutes, provides that the landlord must give a written notice to the tenant within 15 days before the start of the notification period contained in the lease, and that this notice must list all fees, penalties and other charges for which the tenant is liable.
Q: If a residential tenant doesn’t make a timely rent payment, may the landlord cut off his or her electricity and garbage collection service?
A: No. Pursuant to Section 83.67(2), Florida Statutes, this would be a prohibited practice. Pursuant to Section 83.67(6), Florida Statutes, the landlord would be liable to the tenant for actual and consequential damages or three months’ rent, whichever is greater, and costs, including attorneys’ fees.
Q: I represent a tenant who’s renting a single-family home on a month-to-month basis. The lease has no definite termination date, and rent is due on the first day of each month. On Feb. 20, the landlord gave the tenant written notice terminating the tenancy on March 15. Is this notice sufficient?
A: No. The Florida Residential Landlord Tenant Act provides that either party may terminate a month-to-month tenancy by giving not less than 15 days notice prior to the end of any monthly period. In this case, the next monthly period begins on March 1 (the day rent is due). The landlord’s notice is defective because it was given less than 15 days prior to the end of the previous monthly period. Therefore, the tenant has the right to retain possession for the entire month of March.
Q: May a landlord show a property to a prospective buyer if a tenant is living in it?
A: Yes. As per Section 83.53(1), Florida Statutes, a tenant may not unreasonably withhold consent to a landlord to enter a dwelling unit to show it to a prospective or actual purchaser or tenant.
Q: I represent a tenant. The landlord and tenant entered into a contract to lease and then entered into a lease agreement. Some terms in the lease agreement differ from the terms in the contract to lease. Which controls?
A: Once the parties enter into a lease agreement, the terms of the lease agreement control, even if they conflict with terms of the contract to lease.
Q: I’m a property manager for a landlord who entered into a one-year written lease with a tenant. The tenant recently notified the landlord that she’s terminating the lease several months early because she’s buying a house. She says Florida law permits first-time homebuyers to terminate a lease early. Is this true?
A: No. There is no provision in Florida law that gives a tenant the right to terminate a written lease early based on the tenant’s decision to buy a home. Absent a provision in the lease giving the tenant such a right, the tenant could be liable to the landlord if she terminates the lease early.
Q: I’m a property manager for a residential landlord who obtained a writ of possession to evict a tenant. May I remove the tenant’s property that remains inside the apartment after the sheriff executes the writ?
A: Yes. Section 83.62 (2), Florida Statutes, provides in part that at the time the sheriff executes the writ of possession or at any time thereafter, the landlord or the landlord’s agent may remove any personal property found on the premises to or near the property line. The statute further provides that neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruction or damage to the property after it has been removed.
Q: Is a tenant’s residential lease automatically canceled if the landlord sells the property?
A: No. There is no provision in the Residential Landlord/Tenant Act stating that a tenant’s lease automatically terminates in the event the landlord sells the dwelling. The lease itself, however, could include a provision that would allow the landlord to terminate the lease.
Q: I manage a residential property for an owner. The owner won't allow the tenant to have a waterbed on the premises. May a landlord do this?
A: No. Section 83.535, Florida Statutes, states that a landlord may not prohibit a tenant from using a flotation bedding system in a dwelling unit as long as the flotation bedding system doesn’t violate any applicable building codes.
The statute requires that the tenant carry, in the tenant’s name, flotation insurance in an amount deemed reasonable to protect the tenant and owner against personal injury and property damage to the dwelling units. The policy must carry a loss payable clause to the owner of the building.
Q: A landlord has placed a newspaper advertisement stating that he will rent his residential property only to nonsmokers. I represent the applying tenant, a smoker who feels that he is being discriminated against. If the landlord decides not to lease the property to the tenant based solely on the fact that he is a smoker, would that be a violation of the Fair Housing Act?
A: No. A smoker is not a member of a protected class as defined under the Fair Housing Act. Under the Fair Housing Act, the only protected classes are as follows: race, color, religion, sex, handicap, familial status and national origin. Thus, the landlord’s refusal to rent his residential property to the tenant based solely on the fact that he is a smoker is not a violation of the Fair Housing Act.
Q: If a residential tenant doesn’t make his or her rent payment on time, may the landlord change the locks to prevent the tenant from gaining access to the dwelling?
A: No. This would be a prohibited practice pursuant to Section 83.67(2), FS. Pursuant to Section 83.67(6), FS, the landlord would be liable to the tenant for actual and consequential damages or three months’ rent, whichever is greater, and for costs, including attorneys’ fees.
Q: I’m a property manager. One of my owners sold his home and instructed me to transfer his tenant’s security deposit and advance rents to the new owner. Must I obtain the tenant’s permission before transferring the funds from my escrow account to the new owner?
A: No. Section 83.49(7), Florida Statutes, provides that upon the sale or transfer of title of rental property, all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner, together with any earned interest and an accurate accounting showing the amounts to be credited to each tenant’s account. Therefore, you are not required to obtain the tenant’s consent prior to transferring the funds to the new owner.
Q: If a residential tenant damages the property and abandons it, may the landlord claim part of the security deposit for damages and use the balance to offset rent lost while seeking a new tenant?
A: Yes. Under Section 83.49, Florida Statutes, the landlord may make a claim on the security deposit within 30 days after the tenant vacates. Also, under Section 83.595, Florida Statutes, the landlord may hold the tenant liable for amounts the landlord couldn’t recover from re-letting the property.
Q: I’m leasing a home that I own. The tenant informed me about a problem with the plumbing in one of the bathrooms. We both agree that I have an obligation to repair the problem. However, the tenant claims that I must provide at least one day’s notice prior to entering the dwelling and that the repair may only be made after 11 a.m. What type of notice must I give the tenant before entering the home for repairs, and during what time of day may the repairs be made?
A: Section 83.53(2), Florida Statutes, stipulates that a “landlord may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for purpose of repair of the premises.” The statute further provides that reasonable notice “is notice given at least 12 hours prior to the entry” and that reasonable time “shall be between the hours of 7:30 a.m. and 8 p.m.”
Q: Lightning caused a fire that destroyed a residential tenant’s apartment. The tenant moved out and gave the landlord notice that he was terminating the rental agreement and wanted his security deposit back. Must the landlord return the security deposit to the tenant?
A: Under these circumstances, the landlord must comply with Section 83.49(3), Florida Statues, either by returning the security deposit within 15 days or by giving the required 30-day notice of intent to impose a claim for damages.
Section 83.63, Florida Statues, provides that if the premises are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the premises and provides that the landlord must comply with 83.49 (3)'s requirements.
Q: May I prepare an addendum to the Supreme Court approved lease forms on behalf of the landlord?
A: No. A real estate licensee is only permitted to fill in the blanks of the Supreme Court approved lease forms.
Q: I’m a property manager. A residential tenant who is in a rock band came back from the band’s European tour and trashed his condo rental. He damaged, destroyed and defaced the landlord’s property.
The tenant was very apologetic and has offered to pay for all the damage, but my landlord wants him out. May we terminate the lease even if the tenant is willing to pay for all the damage?
A: Yes. Pursuant to Section 83.56 (2) (a), Florida Statutes, the landlord may immediately terminate the lease and provide the tenant seven days notice to vacate the premises if the tenant materially failed to comply with his obligations under Section 83.52, Florida Statutes, or material provisions of the rental agreement and where the noncompliance is of a nature that the tenant should not be given an opportunity to cure it.
The statute indicates that examples of noncompliance that are of a nature that the tenant shouldn’t be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord’s property by intentional act.