- Security Deposit Claim Form Preparation Basics
- Understanding Constructive and Retaliatory Evictions
- Dogs and Insurance
- AAGO and OPD Crime Free Multihousing Program




Security Deposit Claim Form Preparation Basics
By Michael Geo. F. Davis, Attorney at Law


One of the basic documents used in real property management, whether apartment complex, single family home or condominium, is the Notice of Claim against Security Deposit, referred to in this article as the "Notice". It is called other names such as Statement of Account (SODA) or Move-Out Reconciliation. It ranges from a standard form used by many owners and management companies to a letter individually drafted for each rental. A suggested form is at the end of this article.

The statutory duty

Florida Statutes 83.49(3)(a) states: Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address of his or her intention to impose a claim on the deposit and the reason for imposing the claim.

When to use the Notice

The landlord only uses the Notice if he is making a claim against the security deposit, other deposits (pet deposit), or any other unused pre-paid amounts (unapplied last month's rent in case of a tenant skip). All of these together will for purposes of this article be referred to as the "deposit". If the landlord is returning the entire deposit, then there is no need to use the Notice. The landlord can simply return the entire deposit by first class mail with a cover letter to the last known address. If the landlord is claiming any part of the deposit, then the landlord must use the Notice. Technically, a good argument can be made that if the only escrow money held by the landlord is last month's rent, then no Notice has to be sent. Nonetheless, we still recommend notifying tenants when any escrow money is retained. If the landlord is returning part of the deposit, we suggest that the landlord send a check for the balance with the Notice, because it provides a certified mail record of the refund check being received (since the Notice must be sent by certified mail), and the check demonstrates to the tenant the landlord is genuine about returning the portion of the deposit not claimed. If the tenant does not get the check with the Notice, then there is a greater chance that he will object to the Notice. One downside to sending the refund check with the initial claim letter occurs when subsequent damages are discovered within the 30-day notice period, and the landlord seeks to send a revised claim letter for a greater amount.

If the landlord is returning all or a part of the deposit, he should return it to the last known address. In the case of multiple tenants, the check should be made payable to all the tenants jointly (A, B and C). In the case of a deceased tenant, the check should be made payable to "The estate of A".

Certified mail

The statute requires that the Notice be sent by certified mail. Use of a return receipt (the green card) is not required, but we have traditionally advised landlords to obtain a return receipt. Since landlords now have the ability to track receipt of the Notice online, this position can be reconsidered. However, the green card is powerful evidence in court when the tenant denies receiving notice. There is an exception to the rule requiring that you send the Notice. We recommend that you not rely upon this exception, unless you have forgotten to send the Notice within 30 days and are now forced to see if you fit within the exception. See our article entitled Forgetting to Send the Security Deposit Claim.

The landlord may not charge the tenant for the cost of the certified mail. It is a duty imposed on the landlord by the statute and is not chargeable to the tenant.

Last known address

The Notice must be addressed to all the tenants. It must be sent to the last known address. If no forwarding address is given, then the "last known address" is the rental, and it is sent to the rental. If the lease contains an address for notice to the tenant, then that is the address to use, unless there is a later forwarding address. In the case of multiple tenants who may give multiple forwarding addresses, the notice goes to each of the forwarding addresses. If one of the multiple tenants gave no forwarding address, that tenant's Notice goes to the rental address. If multiple tenants cannot agree in writing to the forwarding address and a check is being sent to them, the landlord should send the check to the last agreed address, probably the rental address or the tenant notice address in the lease, with copies of the check and the Notice to the tenant's individual forwarding addresses.


FS 83.49(3)(a) states: If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit. Whatever the date on the Notice, the postmark date is conclusive. If the postmark is not within 30 days of vacating, then the Notice is late. The courts accept no excuses. For more information on timing, see our article entitled Security Deposit Claim and Refund Timing. Note that the failure to timely comply with the statute only bars claiming the deposit. It does not release the tenant from his financial obligation to pay the damages. The landlord must return the deposit, but the tenant can be sent to collections or sued for the damages.

Required statutory language

FS 83.49(3)(a) states: The notice shall contain a statement in substantially the following form:

This is a notice of my intention to impose a claim for damages in the amount of _____ upon your security deposit, due to _____. It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address) .

Judges are familiar with this wording. While the statute permits some wording changes by only requiring a "substantially" similar statement, you are advised to consult with your attorney before making changes. As you can see, the above wording contains a provision that the landlord's address be included in the Notice. This is the complete landlord's (or agent's) address, where any tenant's objection should be sent, including P.O. Box/street, city, state and zip.

Listing the damages

The Notice only deals with the deposit. It is not required by law to be the complete listing of all the damages but it is highly recommended. Confusion can be avoided if the Notice contains a statement to the effect that the Notice does not waive or limit any of the landlord's rights to damages or amounts due, which may exceed the security deposit or the amounts listed on the Notice. The landlord may later send the tenant a statement of additional amounts due as a result of further damages found or incurred. It is best to send a statement and not a second Notice form, as sending a second Notice may unnecessarily lead the tenant to think that the landlord was required to send the second Notice within 30 days also.

As used in this article "damages" means physical damages to the premises, cleaning charges, unpaid rent or other accrued charges, and any other amounts charged to the tenant. It is good practice to list all known damages at the time the Notice is sent. If the damages exceed the deposit, the tenant will have a clearer idea of the true status of the account.

We advise against accelerating rent owed through the lease expiration date. This is not a right created by Florida Statute 83.595, the statutory section outlining a landlord's collection rights. The disclaimer on the Notice indicating that amounts not listed are not waived should eliminate any doubt that future rents will later become a valid, additional claim if the landlord is unable to relet the premises prior to the lease expiration date.

For more information on what the tenant owes see our articles entitled The Security Deposit Claim and What the Tenant Owes and Carpet Damage.

Damages detail

The purpose of the statute is to give notice to the tenant of the disposition of his deposit. To effectuate that purpose, the courts require that the Notice contain sufficient detail to apprise a reasonable person such that he could make an informed decision as to objecting to a damage item claimed or the charge for that damage. A landlord should ask the question, "If this Notice is given to a judge, will he be able to ascertain what was damaged and how much it cost?"

The following represent bad practice claims: claiming the deposit without listing any damages; listing the damages without amounts; lump-sum damages, such as "rent, damages and cleaning: $900.00"; and summary listings, such as a long paragraph of the individual itemized damages followed by a total amount. If you are considering referencing an automatic deposit forfeiture on the Notice, please first review our article entitled Forfeiture of the Security Deposit.

The Notice can refer to another attached or enclosed list that itemizes the damages and amounts, such as a move-out reconciliation or a final inspection form.

The math

All too often the math is wrong. Check and re-check your math. Most importantly, is the balance owed the landlord or the refund to the tenant correct?

An incorrect Notice

If you find that you have made a mistake on the Notice, see our article entitled Revising the Security Deposit Claim.

Tenant objection

FS 83.49(3)(b) states: Unless the tenant objects to the imposition of the landlord's claim or the amount thereof within 15 days after receipt of the landlord's notice of intention to impose a claim, the landlord may then deduct the amount of his or her claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages.

The tenant has 15 days from receipt of the Notice within which to object to the Notice. Prudent landlords wait 20 days, adding another 5 days in case the tenant mails his objection on the last day. Since the Notice is sent certified, the landlord can track it on-line at the post office website (www.usps.com\). The landlord can see when the certified mail is delivered. If it remains undelivered, it will be returned to the landlord, who has fulfilled his statutory duty regardless that the mail has been returned. For more information on the tenant's objection time, especially for realtors disbursing the funds, see our article entitled The 15 Day security Deposit Dispute Period.

Although not covered in this article, in case of a tenant objection, see our article entitled The Tenant Security Deposit Dispute. Note that the debt is now "disputed", and it must be referred to as "disputed" in any communications. If the debt has been sent to collections or reported to a credit bureau, they must be informed that it is now "disputed".

Click here to download the recommended Notice of Intention to Impose Claim on Security Deposit

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AAGO Partners with Orlando Police Department to bring Crime Free Multi-Housing Program to central Florida
by Chip Tatum AAGO Director of Governmental Affairs


The Apartment Association of Greater Orlando (AAGO) and The Orlando Police Department (OPD) partnered to bring The Crime Free Multi-Housing (CFMH) program to central Florida. CFMH is an internationally recognized and certified program founded in 1992 that is active in over 2000 counties/cities.

The Jacksonville Sheriff's Office (JSO) implemented CFMH and has successfully reduced crime and calls for police service in participating communities from 40%-70% on average, and in some cases as high as 90%!

There are many other compelling reasons apartment communities and law enforcement agencies have chosen to participate in the CFMH program including:

CFMH incorporates a comprehensive group of stakeholders to ensure accountability and success, including apartment management, law enforcement, and apartment residents.

Participating apartment communities establish a closer working relationship with law enforcement with more access to data about crime incidents within the community, police actions, etc.

On November 11th, AAGO and OPD hosted an information session at OPD Headquarters in downtown Orlando. Captain Mark Bowen and Officer Michael Tomberg of the CFMH task force for JSO presented the details of the CFMH program to apartment managers, owners, and central Florida law enforcement agencies. Over 100 representatives of property management companies were in attendance! The session also included Landlord/Tenant Law presentation by Harry Heist, partner with the Law Offices of Heist, Weisse, and Davis, P.A.

AAGO's goal is to implement this program throughout the central Florida region (Lake, Osceola, Seminole, Volusia, and Orange). In mid to late January 2010, a formal training will be conducted for apartment managers who have elected to participate in the program.

For more information please contact Chip Tatum, Director of Government Affairs, at 407-644-0539 or chip@aago.org.


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Dogs and Insurance
by Harry A. Heist, Attorney at Law


Many property managers have improved the way they are dealing with pets. They know to always use a pet addendum, confirm with the COA or HOA that pets are permitted for tenants, collect their pet fee and/or pet deposit, use a pet application, visually observe the pet before approval, and inspect the premises more often to make sure there are no pet damages. The aforementioned are all best practices, and if you are not doing all of them, you need to begin now. However, the real issue to ponder is whether you are going to accept pets at all. Potential liability exposure increases dramatically when pets, especially dogs, are allowed on the premises. There are massive occurrences of dog bite injuries and other injuries attributable to dogs each year, and many millions of dollars are paid out each year by insurance companies or as judgments against property owners, due to injuries and even death relating to dogs, not to forget all the physical property damages that is attributable to dogs.

The economy is such that a landlord who might otherwise wish not to allow their tenants to have dogs is now accepting dogs. When the choice is an empty unit and foreclosure or accepting that tenant with the dog and keeping the home, the choice becomes clear for many landlords. Each landlord must make the decision whether to accept the risk, and each property manager must also decide whether they wish to assume the potential liability and additional work involved in managing a home with a dog or dogs.

The common misconception is that in the event of a dog bite on or near the premises, the owner's liability insurance will cover the damages in a resulting lawsuit or settlement of the case. While in the days of old, insurance companies routinely paid out the sums for medical bills and pain and suffering, times have changed, and these old assumptions are incorrect. The cold, hard truth is that many, if not most, insurance companies are specifically NOT covering dog bite injuries in their liability insurance coverage on the premises, and more importantly, most are not covering dog bites due to a tenant's dog on the premises. Owners may assume they do indeed have coverage when over the years, the insurance policy has changed, and although the insurance company notified the owner, it was typically in the policy renewal paperwork and overlooked by the policyholder. Insurance companies routinely do "drive bys" of their insured's property and have been known to threaten to and then cancel the insurance if they observe a dog on the premises. Insurance companies take this matter seriously, and some use it as a convenient excuse to cancel their Florida policyholders.

Are dogs permitted?

At the outset, the property manager needs to know for sure that pets are permitted in the home they are managing. You have been managing units in a particular condo for years and have seen pets, but are they only various owners' pets? It is becoming more common that the rules and regulations of the COA or HOA are allowing unit owners to have dogs, but NOT tenants. It is crucial to check these rules and regulations and not depend upon your visual observations or the representations made by the unit owner that dogs are allowed. In some cases, you may even observe tenants with dogs and assume they are allowed, not knowing that possibly they have been grandfathered in by the COA/HOA, that they are in fact unauthorized, that they are pets of visitors, or that selective enforcement is occurring. The fact that you observe dogs, or that tenants have been allowed to have them in the past, means nothing. In every COA/HOA rental, you MUST make sure you know the rules and regulations, and clear this with the association, especially if there is an approval process. You are expected to know the rules and regulations if you are going to conduct business in a COA/HOA. In most private, non-COA/HOA homes, pets are usually allowed, but local, county or municipal ordinances may prohibit certain breeds, and this can lead to unpleasant surprises. More counties and municipalities are implementing rules and ordinances each year, so this is one more thing to check before allowing the tenant to have a dog. Once those tenants are approved and you move them in, finding out that they cannot have their beloved dog will cause you or the owner major problems, as you or the owner are now potentially in breach of contract with the tenant.

Are you covered by insurance?

This one is easy. To determine if injuries due to dogs are in fact covered by the owner's insurance, one simply needs to ask the insurance agent and examine a copy of the policy. This is assuming of course that the property owner has liability insurance on the premises. Many distressed property owners are allowing coverage to lapse or not getting coverage at all, leaving themselves and the property manager at great risk. When taking over management of a home, the property manager, as part of their due diligence and checklist procedure needs to check the following:

1. Does the owner have liability insurance? 2. Who does the insurance cover? 3. What are the limits of liability? 4. Does the liability insurance cover injuries due to dogs? 5. Did it cover at one time and now does not? 6. Does the liability insurance cover injuries due to a tenant's dog? 7. If the insurance does cover dogs, are there any excluded dogs or "dangerous dogs" that are not covered? 8. If there is a COA or HOA involved, do they allow tenants to have dogs?

Florida Law and Dogs

Florida Statute Chapter 767 specifically deals with "damage" by dogs. By statute, a dog owner is liable for damage to persons caused by a dog. It is a strict liability statute, meaning that no negligence needs to be proven in the event of a "bite". If the dog "bites" someone, the owner is responsible. Remember that injury or damage is not always from an actual dog bite, but could be due to a dog knocking down an individual or otherwise causing injury to that person. In Florida, due to the higher amount of elderly individuals, there are large numbers of non-bite injuries due to falls by persons attacked by a dog, simply knocked over by a friendly dog, or tripped by a dog or dog leash. Property damage is neither discussed, nor is injury or death to another animal addressed in Florida's dog bite statute. However, in the event a dog causes damage to the rental premises, liability is clear, as the tenant is under a legal obligation not to damage or allow damage to be caused to the rental property under the landlord tenant laws and usually the lease agreement. A dog owner in Florida is liable to any persons injured by a dog, regardless of whether the dog had a propensity towards viciousness or injured a person previously. This liability becomes stronger when the dog owner knew of previous aggressive or vicious behavior of the dog, jumping on people by the dog, or fighting, growling, or other aggressive behavior towards persons or other pets.

In Florida, there is no "One Bite Rule", meaning there is no free ride for the dog owner for the first bite, just because the owner was not aware the dog was dangerous. Since the statute covers dog bites only, a dog owner may be able to try to defend themselves by proving they did not know or had no reason to know that the dog was in fact dangerous if it causes an injury not related to a "bite", but in any event, an injury can result in liability and a possible lawsuit. A dog owner can be considered negligent if he or she was careless and an injury occurs. Carelessness could easily be shown if those persons who allow their dog to run free on the premises or fails to adequately control the dog from injuring guests or invitees. Just because Florida statute 767 is limited to dog "bites", a dog owner is not in the clear and can easily be held negligent for ANY injury due to a dog.

Is the landlord or property manager liable?

While it is clear that the owner of a dog will be held liable in most cases for dog bites or other injuries to a person, is the landlord or property manager liable? We are not sure. If the property owner had no knowledge that the tenant's dog was dangerous, the injured person will have a tougher time holding the owner or property manager liable under Florida Statutes or under a negligence theory. The question then arises, should the owner or property manager have known that the dog was dangerous, aggressive, had a history of causing problems, bit another person or pet before, etc.? This especially becomes a problem when the property manager or owner failed to check out the pet, ask the proper questions on the pet application, find out its true breed, or observe its demeanor in the application process. Unfortunately, most property managers never even see the dog they approve. The applicant fills out the application, pays the fee or deposit, and the first time the property manager even sees the dog is when they do an inspection of the property 6 months or a year later.


As stated previously, most liability insurance policies are not covering dogs but rather are specifically excluding them, and very few will cover a tenant's dog. If this is the case, is it worth the risk to allow a tenant to have a dog? We feel if there is no insurance available, there should be no dogs allowed. There is a possible solution though, and that is for the owner to purchase supplemental insurance to cover the dog. There are insurance companies now that will provide this supplemental insurance, and this should be looked into by the owner to determine if the cost is not too prohibitive.

Renter's Insurance

Florida law is silent on whether a landlord can REQUIRE the tenant to purchase renter's insurance. We feel it is perfectly reasonable and legal to require renter's insurance from a tenant who will have a dog, and to require that renter's insurance to cover any injuries that dog may cause. We urge you to check around and find renter's insurance policies that do in fact cover dog injuries, and provide your tenants or applicants with this information. If you are going to require renter's insurance though, you MUST make sure the tenant has purchased it, pays her premium, and that you are notified by the insurance company if the policy lapses for nonpayment or is canceled. When renewing the tenant, check again to see if the renter's insurance policy has been renewed.

What is the "dangerous dog list"?

There is no such thing as a "dangerous dog" list, but there are a number of breeds and mixtures of breeds that insurance companies, counties and municipalities have considered to be or classified as "dangerous dogs". The mixed breed really causes you a problem, as you cannot tell if the dog is in fact on the list. It is perfectly reasonable for you to require the dog owner to verify the breed by providing proof from their veterinarian, and remember, dogs are NOT a protected class, and you CAN decide not to accept a dog, even if it is not on your "dangerous dog" list. As long as you are not denying or approving a tenant's dog in an illegal, discriminatory manner, there should be no fair housing implications. Some examples of dogs that have been considered "dangerous" include Dalmatians, Boxers, Presa Canario, Chow Chow, Alaskan Malamutes, St. Bernards, Huskies, Siberian Huskies, German Shepherds, Pit Bulls, Rottweilers, Doberman Pinschers, Akitas, American Staffordshire Terriers, Great Danes, Wolf-Hybrids and Rhodesian Ridgebacks. Note that this list is not all inclusive, and you can make your own rules as to size, breed, weight, or any other criteria you desire.

Service Animals

We could not finish this article without mentioning service dogs, companion dogs, therapy dogs or any other dog that might be used by a person suffering a handicap. If your tenant or applicant is handicapped, most of this article will NOT apply. We recommend you call your attorney and get advice on this on a case by case basis. If you have a written dog policy, make sure you always place a disclaimer on the policy sheet that you comply with all fair housing laws, and that your dog policy, including any requirement to pay a pet fee or deposit do NOT apply to service animals or animals for the use of a handicapped individual.


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Understanding Constructive and Retaliatory Evictions
by Brian P. Wolk, Attorney at Law


The vast majority of landlords understand that a tenant who vacates prior to the lease end date may be liable to some extent for future rent. Likewise, most landlords have comfort that if they comply with all of the terms of the lease, then they will prevail if sued by the tenant at a later date. While there is some truth to the above assumptions, it is definitely not the whole truth. Let's see why a landlord can get in to "hot water" if they fail to look past the obvious.

The Constructive Eviction Scenario

Larry appeared to be the ideal prospect. His application was approved, and he paid all of his deposits and moved in. After being in the unit for only three days you received his first work order. The washing machine was leaking. Soon after, you fixed the problem. However, two weeks later, the pipe below the washing machine bursts, and the kitchen and living room is flooded. Your maintenance staff responds and the pipe is fixed. Soon after, you start receiving repeated calls from Larry that his carpet has a strong foul odor. Larry then sends in another work order stating that the apartment home has a bed bug issue. Your exterminator confirms the existence of bed bugs inside the unit. Larry has nine months left on his lease and had already written to you two weeks earlier that he is withholding the rent until the landlord remedies the situation. You figure that it will cost a substantial amount of money to fix the apartment, and you cannot bear to think about dealing with Larry for nine more months. The next day you receive keys from Larry and a note which says, "I HAVE VACATED". "Good riddance", you say to yourself. You plan to sue Larry for breaking his lease and will hold him responsible for future rent until the property is leased. Good news? Nope! The landlord is now vulnerable to a constructive eviction claim by the tenant.

What is a Constructive Eviction?

Did you know that you can end up illegally evicting one of your residents who voluntarily vacated the premises even if you never posted any notices on their door and never requested that your attorney file an eviction action in court. Florida Courts will allow a tenant to break their lease and move out of the premises if the judge rules that a constructive eviction took place. A constructive eviction may occur if the landlord has neglected the leased premises to the point where it is unsafe or unfit for use by the tenant for the purposes for which they were leased. There is also Florida Statute 83.63 below:

"Casualty damage.--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. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case the tenant's liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the landlord shall comply with s. 83.49(3).

A judge may rule that a tenant is constructively evicted if the landlord turned off the utilities or was cited for health or housing code violations, such as mold or roach infestation. In one court case, the landlord was unable to remedy excessive noise disturbances by other tenants. The judge ruled that there was a constructive eviction. Although threats of a future eviction usually would not constitute a constructive eviction, a court allowed a tenant to assert a constructive eviction defense when the tenant reasonably believed that the landlord was about to lock out the tenant after refusing the rent and threatening the tenant with an eviction. The landlord may also be liable for a partial constructive eviction if part of the premises is unusable.

You should also keep in mind that tenants can sue for damages for the fair market value of the apartment for the period that the unit was not habitable. If they prevail, you would have to pay their attorney's fees and court costs, or the tenants can elect to remain on the premises by sending a notice to withhold rent as specified in Florida Statute 83.56 (1).

FS 83.56(1) If the landlord materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement. If the failure to comply with s. 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the landlord and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows:

(a) If the landlord's failure to comply renders the dwelling unit untenantable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable.

(b) If the landlord's failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance.

The Retaliatory Eviction Scenario

Before Moe leased a unit, your tenants all thought that you were a strong property manager. Well those days are over! Ever since Moe discovered that other tenants along with himself had faulty air conditioning and heating units, he has created havoc for the property management office.

Moe started a tenant association at your apartment community. They have meetings every Monday night. As a result, work orders have increased by over 80%! The landlord is beside herself that she has incurred all of those maintenance costs. Every day it seems like you are receiving complaints from residents covering all aspects of the apartment community. You definitely feel that this unwanted attention brought on by Moe will cause your tenants to decide not to renew their leases.

You want to resolve this situation. You feel that the only way to do this is for Moe to live somewhere else where he can be another property manager's nightmare. What can you do? Moe has paid his rent on time. He lives very quietly; in fact, you have never issued to him a Seven Day Notice to Cure. Then your idea hits like a bolt of lightning!

Moe's lease expires in two months. The landlord's lease stated that renewal is at the discretion of the landlord. Moe is sent a letter stating that he will not be allowed to renew his lease. Moe walks in to your office and tells you he would like to renew at the market rate. Moe does not vacate as of the lease expiration date. You have your attorney file a holdover eviction action. Now you just had a phone call with your attorney, in which it is revealed that Moe has hired an attorney. He also tells you that you may very well end up losing the eviction action, and that you will likely have to pony up money to Moe's lawyer as well to cover legal fees and costs. You wish that you had understood the term "retaliatory eviction".

What Is a Retaliatory Eviction?

Since 1983, the Florida Statutes have protected tenants from being evicted for retaliatory reasons. Thus, retaliatory evictions are illegal in Florida! The Statute is below: 83.64 Retaliatory conduct.-- (1) It is unlawful for a landlord to discriminatorily increase a tenant's rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant. In order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith. Examples of conduct for which the landlord may not retaliate include, but are not limited to, situations where: (a) The tenant has 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) The tenant has organized, encouraged, or participated in a tenants' organization; (c) The tenant has complained to the landlord pursuant to s. 83.56(1); or (d) The tenant is a servicemember who has terminated a rental agreement pursuant to s. 83.682. (2) Evidence of retaliatory conduct may be raised by the tenant as a defense in any action brought against him or her for possession. (3) In 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. (4) "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.

As you can see, there is much conduct on the part of the tenant that is protected. The statute prohibits the landlord from retaliating against a wide range of tenant related activities, including but not limited to: tenants that make written complaints regarding the landlord's noncompliance with the lease, tenants that make complaints to government agencies to report building or health code violations, or members of the military who terminate their lease in accordance with Section 83.682.

Section 83.64(1) (b), shown above, will protect Moe from being evicted due his activities related to the tenant's group that he founded. In fact, the statute specifically makes even the THREAT of eviction unlawful.

Acts that will get the landlord in to "Hot Water".

The Florida retaliation statute prohibits the landlord from treating the tenant who takes part in the conduct above, differently then other tenants with regards to services provided, rent charged or other actions on the part of the landlord. The landlord may not retaliate by cutting or reducing services such as utilities, raising the rent, threaten to or file eviction or other civil lawsuits.

What were they thinking?

Courts will attempt to get inside the heads of landlords to see if they were acting in a retaliatory manner. In the case of Moe, the landlord will need to convince the court that the eviction was not primarily related to Moe's tenant association activities. You should not feel that the landlord is powerless over a tenant who complains. The key question to ask is this: what was the real reason behind the landlord's action? To change the facts of our above example, if the landlord's primary reason for evicting Moe was related to a history of paying the rent late, then there would likely not be a violation of the statute. Why? Because the main reason for the eviction was NOT related to Moe's tenant group activities.

A final word of caution

A common trait shared by many landlords who are successfully sued by tenants due to constructive or retaliatory eviction related conduct is one that you have probably already figured out. They are landlords who fail to maintain the premises in accordance with their lease and Florida law. If one decides to become a landlord, then there are many responsibilities the go along with that title. Those responsibilities should be taken very seriously! If not, then only bad things will be in store for them, including being tagged with large money judgments against them obtained by tenants and their attorneys.


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Law Offices of Heist, Weisse & Wolk, P.A.
Phone: 1-800-253-8428 Fax: 1-800-367-9038

Serving Florida's Property Managers with main office in Fort Myers Beach. Available by appointment in Orlando and Clearwater

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