The Tenant's Duty To Maintain
By Michael Geo. F. Davis, Attorney at Law



We start by recognizing that the rental premises are usually owned by the landlord, except in rare situations, such a sublease. Since it is the landlord's real property, its upkeep is the landlord's duty. In Florida it is the landlord's responsibility to prepare a property for occupancy and make the repairs necessary for habitability. Further, the Florida Residential Landlord/Tenant Act (the "Act") obligates the landlord to certain statutory responsibilities to maintain the rental premises. A landlord often cannot avoid his duty of habitability or his statutory obligations by including a lease provision purporting to waive all repairs, acknowledge habitability or accept possession "as is". Florida statutes specifically prohibit enforcement of lease provisions that attempt to avoid the landlord's duties arising under the Act or otherwise arising under law. However, the landlord's duties may be modified under the rental agreement to varying degrees, depending on the type of rental unit. See our article, "The Landlord's Duty to Maintain", for a detailed discussion of the landlord's duties and the permitted shifting of those duties by written agreement.

In this article we address the duties to maintain that the Act demands from the resident. The resident's duty to maintain the rental premises can be found in FS 83.52. This statutory section's title, "Tenant's Obligation to Maintain the Dwelling Unit", is somewhat misleading. The section might better state that it covers the resident's duty to properly use the rental premises. The statute requires not only the proper physical use of the landlord's property, but also the proper behavior of the resident and his guests on the rental premises. Note that this statutory section does not distinguish between single family homes, duplexes and multifamily rentals. The resident's obligations are the same without regard to the type of rental premises. The resident's failure to comply with the obligations contained in this section can be the basis for the landlord's service of a Seven-Day Notice of Noncompliance with Opportunity to Cure. Continued noncompliance may be cause for service of a Seven-Day Notice of Noncompliance without Opportunity to Cure.

FS 83.52(1) building codes

FS 83.52(1) requires that the resident "comply with all obligations imposed upon tenants by applicable provisions of building, housing and health codes" (hereinafter just "codes" for short). This mirrors the statutory obligation of the landlord in FS 83.51 to comply with codes. The definition of "building, housing and health codes" can be found in FS 83.43(1). It is so broad that it will include almost anything that applies to housing. The resident may have obligations under the statutes, ordinances or regulations of state, county or local jurisdictions.

FS 83.52(2) clean and sanitary

The second subsection of the statute requires the resident to "keep that part of the premises which he or she occupies and uses clean and sanitary." The definition of "premises", which is found in FS 83.43(5), includes not only the resident's apartment, unit or home, but also the building of which it is a part and the common areas for all resident's use. The resident's duty to keep clean and sanitary applies to his residence, and if applicable, to the building and common areas which the resident uses. It requires the resident to avoid littering and to pick up after himself and his occupants and guests. This does not require the resident to clean the building or common areas. That remains the landlord's responsibility as provided in FS 83.51.

FS 83.52(3) garbage

The third subsection requires the resident to "remove from the tenant's dwelling unit all garbage in a clean and sanitary manner." This provision uses the term "dwelling unit" to signify that the resident's duty is to remove the garbage from his apartment, unit or home. It does not require the resident to provide for the pick-up and removal of the garbage from the property. Again, that is the landlord's responsibility as provided in FS 83.51.

FS 83.52(4) plumbing fixtures

The statute's fourth subsection requires the resident to "keep all plumbing fixtures in the dwelling unit or used by the tenant clean and sanitary and in repair." This provision speaks of "plumbing fixtures." It is not responsibility for all the plumbing. While there may be some gray area of what is a fixture, it is clear that this provision limits the resident's obligation. This provision requires not only that the fixtures be kept clean and sanitary, but also that the resident repair them. Assuming the fixtures, such as faucets, sinks, toilet bowls, etc., are in good repair at initial occupancy, the resident must repair the fixtures during the tenancy without regard to the landlord proving that any damage was the result of the resident's intentional act, negligence or lease noncompliance.

FS 83.52(5) facilities and appliances

The fifth subsection states that the resident "use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators." There is no independent duty to repair the facilities or appliances. The resident would only be responsible for the repair of the facilities or appliances if the resident (or his occupant or guests) broke or damaged them by unreasonable use or operation. If the facilities or appliances broke or malfunctioned due to some other reason, for instance due to age, the landlord is responsible for the repair.

FS 83.52(6) damage or removal

Subsection six mandates that the resident "not destroy, deface, damage, impair or remove any part of the premises or property therein belonging to the landlord nor permit any person to do so." This is a broad general prohibition against damage or unauthorized removal of the landlord's property. The landlord can base the resident's liability for repair or replacement of damaged or removed property, as well as for an unauthorized alteration, on this subsection.


None of the above subsections specifically require the resident to report any needed repairs. The duty to report to prevent further damage can be surmised from the duties in FS 83.52 (1-6), but it is not an explicit obligation. As such, the landlord cannot be assured that a judge will find a duty to report under FS 83.52. The landlord also cannot be assured that a judge will find any duty to control mold in FS 83.52. Mold is mentioned nowhere in the statute. The landlord should not rely on the statute's requirement to use and operate the ventilating and air conditioning in a reasonable manner as an admonishment to control humidity. The landlord should include appropriate lease provisions requiring the resident to report needed repairs and to control humidity/mildew/mold.

That FS 83.52(5) and (6) provide duties for reasonable use and to refrain from damage is clear. The issue faced by landlords is proving that the resident's use or operation was unreasonable, or that the resident caused the damage or removed the property. A court may not assume that because something was in good repair at initial occupancy and it is not now, that the resident is responsible for the damage or repair. The landlord must prove that the damage was the result of the intentional act, negligence or some other noncompliance by the resident or the resident's occupants or guests. Sometimes this can be easy, but sometimes it is difficult to prove that the damage was not the result of a cause unrelated to the resident's use, such as an appliance malfunction.

FS 83.52(7) disturb the neighbors

The final subsection of the statute deals not with the resident's conduct in using property but with the conduct of the resident himself. It requires that the resident to "conduct himself or herself, and require other persons on the premises with his or her consent, to conduct themselves in a manner that does not unreasonably disturb the tenant's neighbors or constitute a breach of the peace." Most landlords would agree that this subsection is the source of many statutory noncompliances by residents. Note one important point in this subsection. It says "unreasonably disturb the tenant's neighbors." Often the difficulty in enforcing this subsection is the unwillingness of neighbors to file complaints or testify in court, because they don't want to get involved, don't have time for court, or simply fear retaliation. Another problem can be proving that the violator was the guest of the resident, if the violator disappears and the resident denies it was his guest. The subsection provides that the resident must "require other persons on the premises with his or her consent" to act properly.

Assuming the resident's obligations

The statute does not contain a provision for shifting the resident's duties under the statute to the landlord by written agreement. In all likelihood that is because the resident's duties to properly and reasonably use the landlord's property are personal to the resident and not transferable. However, if the landlord should intentionally or inadvertently assume an obligation imposed on the resident by any codes, a court may be unwilling to invoke the statute to relieve the landlord of his obligation. Judges recognize the unequal bargaining power often inherent in the landlord/tenant relationship, as well as the fact that many leases are contracts of adhesion (leases with no real negotiations over lease provisions) prepared by the landlord. In these circumstances if the landlord has assumed a resident's statutory obligation, he is probably stuck with it.

Requiring additional resident obligations

The statute does not state that the tenant's obligations are limited exclusively to those enumerated in the statute. If the landlord wishes to expand the resident's obligations for code compliance, maintenance and repair, he should first consult our article, "The Landlord's Duty to Maintain" previously referenced. In brief, many such obligations are not transferable, and an attempt to transfer most or all of such obligations may not only be unwise from an economic/preservation of property standpoint, but may also be held void and unenforceable. However, the landlord can and should supplement the statute with appropriate lease provisions, because the obligations of FS 83.52 are not extensive and contain gaps, some of which are noted above.

Finally, while FS 83.52 places some maintenance, use and conduct obligations upon the resident, the landlord bears the burden of proving statutory noncompliances. This will often require testimony by third parties, such as neighbors or vendors making repairs. Given the difficulties of assembling the necessary proof, the reluctance of third parties to testify, and the possibility that the resident will be less than candid about the cause of the damage or disturbance, it is often better to reach a settlement with the resident for an agreed monetary amount or to agree to a vacating date.


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Evictions And Florida Evidence Law
by Brian P. Wolk, Attorney at Law


Most property managers have a solid handle as to what their attorney will require before filing an eviction for nonpayment of rent. In that situation, property managers expect to fax over a Three-Day Notice for Nonpayment of rent, the lease and sometimes the payment ledger. Assuming the Three-Day Notice, the lease and the payment ledger present no issues, your attorney will file the case. After a while this routine becomes like clockwork for the property manager. Like all good things, this walk in paradise will come to an end, once the property manager attempts to file an eviction based upon a noncompliance of the lease terms by the resident other then for nonpayment of the rent. In this situation, a good attorney looking to protect the property manager will refuse to file an eviction based upon a Seven Day Notice of Termination of Lease unless all of the statutory requirements have been satisfied, and the attorney is certain that there is enough proof to win in court. Our article TERMINATING A TENANT WITHOUT OPPORTUNITY TO CURE is a must read! Here is the link: http://evict.com/?page=articles_2#termnocure

Let your attorney protect you

You may be wondering about who or what your attorney is protecting you from when your lawyer declines to file an eviction based upon a weak Seven Day Notice case. First and foremost, your attorney with be protecting you from yourself! That is right. A property manager can be his or her own worst enemy by impulsively filing an eviction in the heat of the moment. In those moments, the property manager is so focused on removing the bad tenant that a shutdown occurs when the attorney advises that the case will likely not hold up in court. The seasoned attorney will stand up to the manager and respectfully warn that the landlord could be on the hook for substantial legal fees if the resident contests the case and hires an attorney. Worse yet, you could be wasting valuable time, because the bad resident will still be residing in the unit, creating the same problems and making life very stressful. The solution? Let your attorney do his or her job in these kinds of eviction cases. Your attorney must be given proof of the noncompliance by the resident so that the judge in your eviction matter will rule in your favor. Florida law has some very clear guidelines as to what type of proof can be submitted to the judge during the eviction trial. In a nutshell, your proof is the means by which your lawyer can capture the attention of the judge to rule in your favor. The tricky part is turning your proof into evidence that is reviewed by the judge. If your proof is not considered evidence, then it is of absolutely no value to you. The purpose of this article is to provide property managers with a basic understanding of Florida Evidence law, so that they can successfully litigate their eviction case if and when a court hearing becomes necessary.

The Florida Evidence Code

The Florida Evidence Code was adopted by the Florida Legislature in 1976 and became effective in 1979. The evidentiary provisions are found in Florida Statutes Chapter 90. Many of these provisions have procedural components and therefore have been adopted by the Florida Supreme Court as rules of procedure. The Code in Sections 90.201 through 90.207 authorizes a court to treat something as fact without the need for further proof at trial; this is called judicial notice. The court can take judicial notice of a matter at anytime during your hearing. Usually these are rules of the Florida Supreme Court, acts of the Florida Legislature or Florida Ordinances. The Court can also take judicial notice of facts that are easily ascertainable, such as the fact that July 4, 2010 was a Sunday. Property managers will rarely if ever be lucky enough to have their key evidence judicially noticed at trial. The property manager who is dealing with a resident hosting loud parties will not have the evidence regarding the noise judicially noticed; such a noncompliance will have to be proven by testimony of witnesses or some other form of evidence.

Documentary evidence"

Todd and Lisa live in two separate second floor units at the Lakes of Transylvania apartment complex. Sam is their downstairs neighbor. Sam is often heard yelling while on his cell phone out in the common areas and playing loud music very late at night inside his apartment, along with excessive guest traffic in and out of his apartment. Todd and Lisa complained to the apartment manager, who correctly recommended that they call the police and obtain further proof in regard to Sam's obnoxious conduct. Todd and Lisa also began playing private detective. Todd found an old tape recorder, and when Sam acted up again one night, Todd turned the machine on and recorded the loud music along with Sam yelling profanities. Meanwhile, Lisa snapped a bunch of pictures which showed at least 30 people near the front door of Sam's apartment with some of those 30 people inside the unit.

Laying the Foundation

Fast forward to Sam's eviction trial. In order for the tape recording and photographs to be admitted into evidence, your eviction attorney must lay a foundation through witnesses. All that fancy language means is that your eviction attorney will need to ask Todd and Lisa very specific questions prior to the judge allowing the evidence to be admitted. For example, Todd will be asked questions about how he physically recorded the tape and kept custody of the tape; he will be asked if he ever heard Sam's voice in the past and how many times he has heard it. Then Todd will be asked if heard the recording which has been listed as an exhibit. The attorney would then ask Todd if he recognizes the voice, and finally Todd would be asked whose voice it actually was. Finally, the eviction attorney would request that the judge enter the tape recording into evidence. With regard to Lisa's photographs, she would be asked if she was familiar with the photographs, how the photographs were developed, if and how she was familiar with the area contained in the photographs, and if the photographs accurately depict what Lisa saw on the date and time of the incident. One other key point to remember: if the resident that you are trying to evict attempts to offer impermissible evidence at trial, your eviction attorney needs to object at the hearing, or you will have waived your right to contest that evidence in any appeal. Suppose Todd or Lisa failed appear in court, like so many other resident witnesses who tell a property manager that they will attend court and testify against the resident that you are evicting. There would be hearsay implications if Todd or Lisa failed to attend the eviction hearing, which leads us to our next evidence issue.


The hearsay rule in Sections 90.801 through 90.806 of the Florida Statutes prohibit admission of oral or written out of court statements to prove the truth of the matter being asserted, but out of court statements may be admitted for a purpose other than proving the truth of the matter asserted if the statements are relevant to prove a material fact and are not outweighed by any prejudice. Some property managers assume that hearsay means that a person told you something and you are prevented from admitting that statement into evidence at a court hearing. That is not true if that witness is in court with you. The reason is simple. If the witness cannot testify at trial and submit to cross-examination by the opposing party, then the statement is inadmissible. Out of a principle of fairness, the law gives those being accused the right of cross-examination. In the above example, had Todd or Lisa failed to appear in court, the photographs or tape recording would have been inadmissible, since Sam would not have been able to cross-examine Todd or Lisa. This same principle applies to the property manager who takes pictures of a unit after the resident vacates for purpose of proving damages made to the property by the former resident. Take the pictures yourself if feasible, because a third party may not be associated with you three years later. You might not be able to locate that witness, and if you do, he still may not show up in court, even if subpoenaed.


Perhaps the biggest myth regarding hearsay is that you can use a police report in court as proof without the police officer who signed the report being present. Make no mistake about this: police reports are not an exception to the "hearsay" rule in Florida. The same holds true for repair bills. A representative from the company that undertook the repair must appear in court to testify. The same holds true for written statements from residents. The property manager must understand that obtaining signed, notarized letters from your residents loaded with complaints against another resident will not make their way into evidence. Load those complaining residents into your van and take them to court, because they will be required to testify, or you can kiss your eviction goodbye"¦unless you were savvy enough to obtain a police report and subpoena the officer! Florida law permits some exceptions to the "hearsay" rule, which include statements for the purpose of medical diagnosis and treatment, statement of a child abuse victim 11 years of age or less, and business records made at or near the time of the event, by a person with knowledge, kept in the course of normal business activity, provided that it was a regular practice of the business to make such a record.


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Florida "Use Tax" on Internet and Out of State Purchases
by Harry A. Heist, Attorney at Law


Many companies, including our law firm, purchase goods through the internet or by phone from out of state companies. In our case, it may be computer equipment, video recording equipment, office supplies, electronics, marketing materials, evict.com T-Shirts, paper or the myriad items a firm of our size uses throughout the year in conducting business. These purchases are usually delivered by UPS, FedEx, the USPS and other common carriers. The reason for these purchases is simple. We try to save money so we can pass these savings along to our clients, make more money, and not have to raise our rates. When we can buy locally and support Florida businesses, we do, but money is money, and if a product is less expensive and equivalent in value, we will buy from an out of state company. We are not alone. Millions of Floridians, individuals and businesses buy products through the internet.

Sales Tax

You may have noticed that most out of state purchases do not include sales tax. Unless a company has an agreement with the Department of Revenue (DOR) or otherwise operates and is registered in Florida, the out of state company does not charge you Florida sales tax or sales tax from its respective state, as it is not required to do so. This amounts to a nice savings indeed. An apartment community may purchase thousands of dollars in supplies or equipment from an out of state company. There may be a great deal on patio furniture or fitness room equipment from a company you found on the internet, and you may be able to save a substantial amount of money. You may even attend a trade show where a national supplier who does not have a location in Florida is exhibiting, and one of its selling points is that if you purchase from it, not only are you getting a significantly reduced price, but since the items are coming from its North Carolina location, there is no sales tax, and you will thus save another 6% or more. What a great deal! If you can avoid legally paying a tax, why not? Do not the Florida coffers get enough from us already? Not so fast! You may be doing something completely illegal by not paying the taxes, even though you were not charged the taxes, and NOW, the DOR is beginning to crack down.

Do you have to pay taxes on these internet or out of state purchases?

The purchaser of goods from Florida or any other state MUST pay tax on these purchases, and this means YOU. The tax is not called a sales tax, but rather is called a "use" tax. This use tax is a minimum of 6% and may be more in certain counties or municipalities that have an additional "local option tax" or "discretionary sales surtax". In fact, 59 of Florida's 67 counties have a sales tax that exceeds 6%. Here are some examples below.

1. Mountain View Apartments in Collier County purchases a $20,000 set of patio furniture from Fred's Patio World in South Carolina. There is a shipping charge but no sales tax. Result: Mountain View Apartments now owes the DOR a 6% use tax totaling $1200 and MUST report the purchase and pay the use tax.

2. XYZ Property Management Company in Orange County needs a new computer router and while looking on Amazon.com finds a great deal on a Linksys router for $600 from Computer World in Chicago. The purchase is made online, and the only extra charge is shipping. Result: XYZ Property management Company now owes the DOR a 7% use tax totaling $42 and MUST report the purchase and pay the use tax.

Why is this use tax just appearing now?

The use tax has been in place for years, but most business and individuals are completely unaware of it. Until recently, the DOR did not vigorously pursue the collection or this tax, but the party is OVER. Thousand of businesses like yours and ours were recently sent letters offering Tax Amnesty (which expired on September 30) whereby if you went back 3 years and calculated all that you spent on these out of state purchases and "came clean" on the taxes, there would be no penalty, and only half of the interest on the unpaid amounts were due. Did you throw that letter out when it came in? The Florida DOR collected millions of dollars in use tax in 2010, and they are sure to continue to enforce the tax laws now more than ever. State and county governments are doing everything possible to collect the taxes that already are on the books. For years, state governments have been losing out on billions of dollars due to the massive increase in internet and out of state purchases, and they are not taking it anymore. That company you may be buying products from may receive subpoenas or requests for information from the Florida DOR, and through that information, they WILL find you out. You can run, but you cannot hide.

Are ALL out of state purchases subject to the use tax?

The short answer is NO, but MOST are. Let's say you purchased a Dell computer online. If you look at the bill, you will see that Dell charges you a sales tax, even though you bought it online and it was shipped from Nevada. You see, Dell is registered with Florida or otherwise does actual business in Florida through the use of stores or distribution centers. Therefore, Dell goes ahead and collects and remits the sales tax at the time of sale, and you now owe no further sales tax or use tax. Many other large companies are in this position, so now you need to begin to look at your invoices carefully to see if you have in fact paid the sales tax, as you certainly would not want to pay a use tax that is now not owed. Some, but very few indeed, out of state companies charge you the sales tax that is due in their state when you make a purchase. If that sales tax is less than 6%, you will need to pay the difference in the sales tax paid and the minimum Florida 6% (more in some counties) tax to the DOR. Example the supply costs $100, you paid the 4% Michigan sales tax at the time of purchase, you now owe at least 2% use tax to the DOR.

How to begin paying the use tax

There is no better time to start properly paying the taxes that you legitimately owe right now. To do it right, you will need to go back 3 years and look at all your internet or out of state purchases and determine whether you were charged sales tax or not. If you were not, you simply obtain the forms from the DOR, complete them, calculate your interest and penalties, and pay the tax. Once done, they must be paid each quarter and you can rest assured that once you begin paying the use taxes, the DOR will be on top of you to collect them in the future, so do not forget to file or have your accountant file for you.

Is this something to worry about?

We feel that paying use taxes is your legal obligation under Florida law, whether we or you like it or not. Evading taxes can result in substantial fines, interest and penalties. If you have made significant purchases and realize you owe use taxes, you may be able to get the interest reduced or penalties waived by the DOR, so we highly recommend you contact your accountant and discuss this issue getting professional tax guidance. The collection efforts of the DOR are not going to stop, but rather they will be on the rise. The DOR has provided online interest calculators if you want to try to do this yourself, and you can register with the DOR online and pay online, with the taxes, penalties and interest, if any due, automatically deducted from the bank account you provide them. If you do not wish to file online, simply download the Out of State Purchase Return, which is form DR-15 MO, fill it out and send it in.

Our necessary disclaimer!

We are not tax professionals or CPA's, but ignorance is not always bliss when it comes to tax obligations. We highly recommend you speak to your company's accountant right away, copy this article and send it to your corporate attorney, CFO or broker. Our firm used Noack Mitchell & Company Certified Public Accountants, whose phone number is (239) 936-6144, found on the web at www.noackmitchellcpa.com.


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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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