Law Offices of James W. Mallonee, P.A.
Port Charlotte 941-206-2223
Venice 941-207-2223
Helping individuals & families across Florida with their legal matters since 2005

So You’ve Decided to Rent

So you’ve decided to downsize by selling your home and leasing a condominium or single family residence. As the tenant, it helps to understand some of the rights that you and your landlord have under Florida law when things go wrong. This article will cover only the situation where a tenant fails to make the require rent payment on time. In future articles we’ll discuss other rights of the parties when certain conditions of the leased property degrade to the point that such premises are simply not habitable, the landlord seeks damages for the non-payment of rent as well as those situations when the landlord decides to keep your security deposit or personal property following termination of the lease.

Whenever you lease property (whether it is commercial or residential) you should always review the lease agreement and understand the terms involving the payment rent. Believe it or not, one the most crucial is where and when such payments are to be sent. You should also familiarize yourself with any late charges or other fees (when rent is not paid when due) that you may incur and check to see if those fees and costs are considered a part of the rent payment. Lastly, verify the length of the lease. Is it a term lease that is fixed in time with no automatic renewal or does it contain language that automatically renews if you fail to give notice indicating you are returning the property back to the landlord at the termination of the agreement. If it automatically renews, check on the number of days you are required to give notice when terminating the lease. On the other hand, if you have no lease agreement then your lease is “at will” giving both parties the right to terminate such lease; provided notice of such termination is given within the statutory timelines. The payment of an “at will” agreement is generally based on the periods payment for rent will be due when taking possession of the premises (e.g. weekly, monthly, quarterly, or annual rent payments).

If rent is due on the first of the month and you fail to make payment on or before the close of business on that day, then in that event you are considered late. Failure to pay gives your landlord the right to begin eviction procedures. The eviction procedures that your landlord must follow are statutory and must be strictly followed. Failure to follow the statutory procedures may result in a dismissal of the complaint for possession of the premises. However, this does not prevent the landlord from re-starting the eviction process.

The first procedure that the landlord must follow is delivery of a three day notice to the tenant. The three day notice generally informs the tenant that they have three days from delivery of the notice to pay rent or be evicted by judicial proceedings. The 3 day notice must be in writing, demand an exact amount of overdue rent, and must calculate the 3 days’ grace period to pay the rent before the landlord can begin filing a complaint for eviction. Failure to provide this information in the notice makes it legally defective.

The critical issue of serving the three day notice is counting the days before the landlord can file a complaint for possession of the premises. The method of counting days does not include the day the 3 day notice was received by the tenant. It also does not include legal holidays, Saturdays or Sundays. Be aware that legal holidays are those that the Court recognizes which may be different from those recognized by the Federal Government or other entities. An example of how the 3 days Notice to Pay Rent or face the possibility of eviction is counted is as follows: if you get served with a 3 day notice on the Thursday (physically handed or find it attached to a conspicuous place on the property) before the Labor Day Holiday, the day you must deliver the rent to the landlord is the Wednesday following Labor Day holiday (e.g. day 1 is Friday; Saturday, Sunday and Monday the Labor Day holiday do not count; day 2 is Tuesday; and, day 3 is Wednesday equaling the three days).

If the notice is mailed, an additional 5 days must be added to the designated period of time that the tenant has to respond. If the landlord mails the 3-day notice, the tenant will be permitted to respond by mail. Thus, if both parties use the mail, an additional 10 days (5 days each for the landlord and tenant’s letter), will be added to the original 3-day requirement to pay the rent due before the landlord can file a complaint for eviction. Once again, if the 3 day notice is mailed by the landlord, Saturdays, Sundays, and legal holidays are not counted in the additional 5 day grace period. To avoid this problem, most landlords physically deliver the three day notice to the tenant to avoid the possibility of having to add the additional 5 to 10 day grace period.

The 3-day notice allows the tenant to pay the rent in order to keep the premises. This raises the question as to whether late fees can be included in the amount shown due in the 3-day notice. The general consensus is that in order for late fees to be included in the amount due, such late fees must be designated as rent in the lease (so check your lease agreement).

If you fail to deliver your rent payment within the date stated within the 3 day notice, your landlord can file a complaint with the court demanding possession of the premises. At this point you’ll get served with a complaint. The summons will instruct you to make the alleged late rent payment to the Court Registry within 5 days from receipt of the complaint. If you fail to deliver the full rent payment alleged in the Complaint to the Clerk of Court’s Court Registry within 5 days or file an answer with defenses as to why payment was not made, you will have waived any and all defenses for non payment of rent. In that event, the landlord is entitled to an immediate default judgment by the court for the removal of the tenant. The Court is obligated to issue a writ of possession without further notice or hearing thereon. Once a writ of possession is issued, the next visit a tenant can expect is from the Sheriff who will physically remove the tenant from the property.

As a tenant, if you think you have a defense for not paying the rent alleged in the eviction complaint, you must file your defense with the court and the attorney who filed such complaint. The addresses of each will appear on the summons issued demanding possession of the property.

Some of the defenses you can file for not making the rent payment include a demand to determine the amount of rent due or a showing that the rent was paid. When answering the complaint with a defense stating that the rent was timely paid, you must support such statement with documentation proving such payment (e.g. receipt or cancelled check).

When filing an answer with the court asking it to determine the amount of rent due, you must show documentation in support of the allegation that the alleged rent due in the complaint is in error. The demand to determine the amount of rent due usually occurs when the tenant feels that the premises is uninhabitable and its inhabitability is so severe that the rent due should be reduced. If this is your defense, you will need to supply the court with evidence of such uninhabitability. Experience suggests that you obtain a housing code violation report from the county of the non-habitable conditions. It is also suggested that you provide evidence that you notified the landlord of such violations and no response or action was taken by the landlord within 7 days or receipt of such notice before you began withholding rent.

Another available defense is when a tenant is called into state active duty, provided the tenant has notified the landlord in writing of his or her active call to duty, the rent is less than $1,200 per month, and the premises is occupied primarily as the tenant’s residential dwelling.

In addition, some courts have ruled that the improper institution for eviction before the 3 day notice for demand of rent by the landlord has been completed is a complete defense resulting in an automatic dismissal of the eviction complaint. However, you should not rely on this as a complete defense because other courts have ruled that the landlord should not be deprived of his right to possession of the property.

To protect yourself from default and the waiver of defenses, it is advisable to pay the amount of rent due into the court registry (as the tenant you should not make such payment to the landlord, make it only to the clerk of court as specified in the summons). Experience suggests that even if you feel you have a valid defense, it is better to pay into the Court Registry the amount alleged due in the Complaint. If the court agrees with your defense, you will be entitled to any balance not awarded to the landlord.

It should be no surprise that a landlord is entitled to the payment of rent when due. When a rent payment is not made, the landlord is entitled to possession of the premises. However, to regain the possession of the premises requires certain procedures to be followed. If those procedures are not followed the tenant has a defense that will prevent his or her eviction. However, as stated above, the tenant is also responsible for following certain procedures to ensure the protection from the court. If the tenant fails to follow those procedures, the outcome in a dispute over who is entitled to possession of the leased property will likely be in favor of the landlord. To make certain that you as a tenant will be heard by the Court, experience suggests that you pay the amount of rent alleged in the eviction complaint to the Court Registry even if you believe you have a perfect defense.

Prior to incurring the possibility of being evicted, it is strongly suggested that you take the time to visit with an attorney before signing a lease or in the case of an “at will” lease, before you make your first payment of rent and take possession of the property. Your attorney can explain to you in understandable language what obligations you are about to incur and what consequences you can expect should things deteriorate between the parties. It could be the best cost savings visit you make.

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