- Lease Break By the Resident
- Requiring Notice Prior to Lease Expiration Date
- The Agreement to Vacate



The Agreement to Vacate
by Michael Geo. F. Davis, Attorney at Law


When a property manager has a resident who is constantly causing problems, and the resident's lease expiration date is sufficiently close, the property manager may consider non-renewal as a solution to the resident's lease noncompliance(s). However, a resident's noncompliances may be of such a serious nature and/or the lease expiration date too distant for a non-renewal to be effective. At that point the property manager may consider terminating the lease with a Seven-Day Termination Notice. Many property managers are not aware of the difficulty in filing an eviction arising from a lease termination by a Seven-Day Termination Notice. Most property managers are only familiar with the standard eviction filed for nonpayment of rent. They have never encountered the difficulties in proving other lease violations or noncompliances in court subject to the rules of evidence. They have not experienced reluctant, neighboring residents who don't want to come to court to testify, or suddenly can't remember or be sure of what they saw or heard. They have not lost a case because they were not allowed to show the court a complaint letter, incident report or other crucial document, because the person who wrote the letter or document didn't show up to testify about it. They haven't learned that some residents can lie better or tell a more convincing story than the property manager can tell the truth. Given the problems with such evictions, it is surprising that many property managers are unaware of a very good alternative to filing eviction - an "Agreement to Vacate" form.


An eviction based on the nonpayment of rent is normally a straightforward matter with the property manager usually prevailing. An eviction based on a lease noncompliance other than nonpayment of rent is an entirely different matter. The obvious costs are the court costs and attorney fees to file the eviction. The "hidden" costs include the continuing disturbance to the other community residents while the property manager waits for the running of the time periods for the Seven-Day Notice of Noncompliance with Opportunity to Cure and/or the Seven-Day Termination Notice (hereafter "Notices"); the staff time and effort to assemble the proof necessary to support the Notices, including obtaining, if necessary, police reports, obtaining witness statements and their attendance in court to testify; the staff time to attend court hearing(s); and the possible intentional damage to the apartment by the evicted resident holding a grudge. Should the resident be the prevailing party, there is the risk of liability for the resident's attorney fees and court costs, if any, and a possible counterclaim. The prevailing resident may also file a fair housing complaint alleging the Notices and eviction were discriminatory. When the costs and risks of lease termination and eviction for a noncompliance other than nonpayment are considered, avoiding them by using the Agreement to Vacate becomes very attractive.

Agreement to Vacate

The Agreement to Vacate is a mutual agreement by the resident and property manager that provides for the resident to surrender possession and vacate by a certain date in return for the property manager deferring the filing of an eviction. The benefits to the resident are avoiding an eviction on his record that may severely limit his ability to qualify for future rentals; the potential costs of an eviction for his attorney fees, court costs and registry deposit charges, and if the property manager is the prevailing party, for the property manager's attorney fees and court costs. The benefits to the property manager are avoiding his own court costs and attorney fees, and if the resident is the prevailing party, the resident's attorney fees and costs. A significant benefit is that the property manager can accept rent through the vacating date of the Agreement to Vacate, without which agreement rent would have to be refused.

When to use

The Agreement to Vacate can be used anytime the property manager has a lease noncompliance. It is not necessary to have served a Seven-Day Notice of Noncompliance without Opportunity to Cure or a Three-Day Notice to Pay Rent in order to use the agreement. When there is a nonpayment noncompliance, the Agreement to Vacate may not be as useful, unless the resident is going to pay rent through the vacating date at the time of signing the Agreement to Vacate. Otherwise, use of the Agreement to Vacate may only defer the inevitable eviction filing and result in additional unpaid occupancy. For lease noncompliances other than nonpayment, the Agreement to Vacate is ideal to possibly avoid the need to file eviction.

Approaching the resident

The best approach is in person by a staff member who, if possible, hasn't been directly involved in the previously contentious issues. The property manager wants to dampen the emotional aspects of the situation as much as possible. Since the resident's initial reaction may be to refuse to sign, the property manager's approach to the resident should be to give the resident enough time to consider his alternatives. The resident will often calm down and sign later. If the property manager must send the Agreement to Vacate to the resident or leave it with the resident, the Agreement to Vacate should contain a deadline for its return to the property manager.

Time to vacate

The vacating date in the Agreement to Vacate is subject to negation with the resident and will likely depend on the extent and nature of the noncompliance. The more serious the violation, the more likely the manager will want a faster vacating date. A main attraction (and selling point to the resident) of the Agreement to Vacate is that it permits a more flexible time to vacate, unlike the Seven-Day Termination Notice's limited seven days to vacate. The resident normally would be pressed to find a rental and move in seven days. Residents in tax credit properties or residents receiving Section 8 assistance will almost surely need additional time to find another apartment in their income range and/or that accepts Section 8.

Tax credit and Section 8

In tax credit properties, if the noncompliance is for the failure to recertify, the vacating date should be no later than the lease expiration date, if at all possible. Since the property manager can't accept rent for a resident who has not recertified, the property manager will be unable to collect rent after the lease ends. An Agreement to Vacate vacating date after the lease expiration date isn't fatal to the Agreement to Vacate, but does essentially provide free occupancy to the resident after the lease expiration date. In Section 8 cases the housing office has to approve any early termination of the lease, such as the Agreement to Vacate. The property manager must coordinate the termination through the housing office. The housing office will require a mutual rescission agreement and has the required form. Note that the mutual recession agreement will release the resident from any further liability under the lease, including any further liability for rent.

Executing the Agreement to Vacate

The Agreement to Vacate must be signed by all lease signers, and then by the property manager (or the owner or other authorized representative of the owner). Unless the Agreement to Vacate is signed by ALL lease signers, it cannot be used as the basis for filing eviction against the unsigned resident. In fact, an Agreement to Vacate which has not been signed by all the residents, but has been signed by the property manager, will needlessly complicate any later eviction filing. With a properly signed Agreement to Vacate, the property manager can collect rent through the vacating date. The property manager should not accept rent for any period of time past the vacating date. Doing so can be interpreted by a court as a waiver of the vacating date, possibly voiding the enforceability of the Agreement to Vacate in the process.

Extending the vacating date

The property manager's policy should be that no extensions will be given. However, if an extension is absolutely necessary, the property manager should contact his attorney, as granting extensions can be risky. It can lead to the resident arguing that the vacating date wasn't a firm date but was subject to further modifications. The property's policy should be that no one but the manager is authorized to discuss any extensions of an Agreement to Vacate. The property manager should never enter into any oral or informal extensions. This provides the resident with the opportunity to argue that there were other oral modifications of the Agreement to Vacate. If an extension must be given after consultation with the property manager's attorney, it should be done in writing, signed by all the parties, preferably another Agreement to Vacate with a new vacating date.

Resident doesn't vacate

Most residents who sign the agreement do vacate. If the resident doesn't vacate on the vacating date, the property manager files eviction based on the Agreement to Vacate. The underlying noncompliance(s) should not have to be proved, as they are usually no longer relevant. The resident may argue that he was threatened or intimidated into signing the Agreement to Vacate or that he didn't understand what he was signing. Most judges find such arguments unpersuasive.

Fair housing

If a resident raises the claim that he is being treated differently than other residents with similar lease noncompliances, the property manager should consult a fair housing attorney, rather than ignoring the resident's discrimination claim.

Notice to Vacate

The Notice to Vacate is not a substitute for the Agreement to Vacate. The wording of Notices to Vacate vary widely. Some are closer to an intent to vacate, seemingly retractable by the resident. Even when apparently binding, the Notice to Vacate is subject to a court finding that the resident may withdraw it, especially if the property manager has not re-leased the apartment. The property manager is advised not to use a Notice to Vacate, even in conjunction with the Agreement to Vacate. The Notice to Vacate wording my conflict with the Agreement to Vacate, potentially compromising the enforceability of the Agreement to Vacate.

Financial Liability

The resident's relinquishing his right to possession and terminating his lease financial obligations are two different things. The Agreement to Vacate should be clear that the resident is vacating (surrendering possession), but remains liable for his financial obligations under the lease. The property manager should be clear to the resident that the Agreement to Vacate is not a general release of his lease financial obligations, as residents may misinterpret this. If the resident is being released from his financial obligations, the Agreement to Vacate should state that and specify the extent of the release - complete or only specific items. If the resident leaves before the vacating date referenced in the Agreement to Vacate, no rent refund is due, as the resident had the right of possession through the vacating date.

Lease termination agreements

Many management companies have their own form for an early termination of the lease. If it is the intent to release the resident from all future lease obligations, the property manager should consider using this form. It is likely to more clearly spell out the obligations released and remaining, as well as to contain a mutual release. If the management company does not have such a form, the property manager should contact his eviction attorney for the attorney's form.

A properly executed Agreement to Vacate can solve the property manager's issue with a resident's lease noncompliance by removing the resident, while avoiding the costs, inconvenience and risks of an eviction. A successful property manager will be adept at using the Agreement to Vacate.


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Requiring Notice Prior to Lease Expiration Date
by Brian P. Wolk, Attorney at Law


Florida Statute 83.575 authorizes a landlord to charge a resident under certain circumstances, if the resident vacates the apartment home at the end of the lease term without proper written notice within the time frame as set forth in the lease. This has been the law since 2004. Of all the various statutory sections set forth in the Florida Residential Landlord/Tenant Act, Florida Statute 83.575 is arguably the least understood, and even worse, many property managers in Florida have no idea the law even exists. The apartment manager who charges for nonexistent or insufficient notice and fails to comply with Florida Statutes in so doing must be aware that there could be serious collection law violations, should those charges appear on the former resident's credit report. Also, if the resident obtains an attorney who contests the charges or deductions from the security deposit in small claims court and prevails, then the landlord will have liability for the former resident's reasonable attorney's fees and court costs, an amount which could be substantial.

Florida Statute 83.575 must be read carefully

Florida Statute 83.575 - Termination of tenancy with specific duration: this section must be examined very carefully by the apartment manager who is determined to charge a resident leaving the apartment home at the end of the lease term without giving proper written notice as provided in the lease. The law is somewhat confusing to property managers and even attorneys, as the statute requires that the landlord give the resident written notice that a charge will be assessed against the resident if the resident fails to give the required notice under the lease. This requirement is easier to understand if it is viewed as an obligation of the landlord to remind the resident that the resident must provide written notice of an intention to vacate at the end of the lease term. The reason that the law is written in that manner is so the resident is not later surprised by an insufficient notice charge.

Landlord may not require more than 60 days' notice

Florida Statute 83.575 (1) allows a landlord to place in a rental agreement a provision requiring the resident to notify the landlord prior to vacating the premises at the end of the rental agreement. The statute does limit the landlord in terms of the amount of notice that can be required. The rental agreement may not require the resident to provide more than 60 days' notice that the resident is vacating the premises at the end of the lease term.

Resident may be liable for liquidated damages

Florida Statute 83.575 (2) authorizes the landlord to place a provision in a rental agreement of a specific duration which would impose liability on the resident for liquidated damages in the event the resident vacates at the end of the lease term without providing the landlord proper notice. However, the resident will not be responsible for such a charge if the reminder provisions of Florida Statute 83.575 (2) are not met by the landlord. The landlord must provide written notice to the resident

Florida Statute 83.575 (2) authorizes the landlord to hold the resident liable for liquidated damages as specified in the rental agreement if the landlord provides written notice to the tenant specifying the tenant's obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The landlord must provide such written notice to the tenant within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the resident.

The application of the provisions of Florida Statute 83.575 (2)

In order to charge the resident under the terms of the lease when the resident vacates at the end of the term without the proper notice required by the lease, the resident must receive notice within 15 days of the beginning of the notice period the landlord is requiring from the resident.

The reminder letter must be very specific

Some property managers only partially comply with Florida Statutes 83.575 in that they send out the reminder letter to the resident within the correct time period but fail to disclose in the letter what is required under Florida Statute 83.575. Partial compliance is equivalent to noncompliance by the landlord. It does the landlord absolutely no good to only partially comply with the statute; the landlord must comply with all the statutory requirements. If not, then the landlord will have no right to charge the resident the insufficient notice charge contained within the lease. In summary, the written reminder notice sent to the resident must clearly list the date the lease ends and must reference the applicable lease clause and all of the fees, penalties and charges that will apply to the resident if the resident vacates the apartment home at the end of the lease term without providing the proper notice required under the lease.

Strict 15 day window

Florida Statute 83.575 is very clear; the resident must receive notice in the specific 15-day window preceding the beginning of the notice period required under the lease; the notice period itself is typically either 30 or 60 days. Therefore, the landlord will be out of compliance with the statute if the notice is sent too early or too late. Although counterintuitive, the landlord would be violating the statute for giving too much notice to the resident. If the resident fails to give the required notice, it will not matter whether some notice or no notice was given by the resident; if the landlord fails to properly send the reminder notice, no insufficient notice charges can be assessed.

Example of how to calculate the time period for sending our the reminder letter to the resident

Suppose the lease requires residents to provide 60 days' written notice to the landlord if they plan on vacating the apartment home at the end of the lease term. In order to enforce that provision, the property manager must deliver the reminder letter in accordance with Florida Statute 83.575 within 61 -75 days prior to the end of the resident's lease term. Many property managers mistakenly send out the reminder notice 90 days prior, as that is an easy date to remember. That would be too much notice, and the landlord will not have complied with the statute.

When the statute does not apply

If the resident stays on under a month-to-month tenancy, the insufficient notice provision of the lease has no application. The statute's application is limited to those situations in which the resident vacates as of the lease expiration date without providing the notice required under the lease. If the tenant breaks the lease early, Florida Statute 83.575(2) does not govern that situation. If the lease rolls into a month-to-month tenancy, Florida Statute 83.57 governs what notice needs to be given by the landlord or resident to terminate the month-to-month tenancy. If the resident subsequently vacates without giving proper notice, the insufficient notice charges allowed by Florida Statute 83.575(2) do not apply.


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Lease Break By the Resident
by Brian P. Wolk Attorney at Law


Property managers frequently receive communication from residents indicating their intention to break the lease because they plan on living somewhere else, even though the term of the lease has not expired. The communication from the resident is usually by email or by phone. However, residents use many different types of communication to notify management of their intention to break the lease. Often accompanying written communication from the resident is the forwarding address, as the resident expects to receive a security deposit refund. Oftentimes, the property manager's first impulse in these cases is to become frustrated, because from the property's manager's perspective, the resident is failing to honor an agreement that was made, and now the property manager may be faced with an empty apartment that is not bringing in rent each month as had been anticipated. The critical decision for the property manager at that point is whether to respond to the resident or simply ignore the resident.

Anticipatory Breach of Contract

An anticipatory breach occurs when a party demonstrates its intention to break a contract. By declaring an anticipatory breach, the aggrieved party may begin taking legal action immediately, rather than waiting until a contract's terms are actually broken. When a resident notifies the property manager that he is leaving town and not fulfilling the remainder of the lease term, an anticipatory breach of contract has taken place.

No legal obligation to respond to the resident

When there is an anticipatory breach of contract by the resident, the law does not specifically mandate that the property manager respond to the resident. Therefore, a resident who breaks his lease is still responsible for the obligations under the lease, even if the property manager does not expressly communicate back to the resident that the resident's anticipated course of action is not acceptable.

Practical reasons for responding to the resident

If the property manager does not respond back to resident after learning that the resident is planning to break the lease, the property manager may be unwittingly reinforcing the resident's mistaken beliefs concerning a legal right to break the lease. For example, many residents incorrectly believe that illness, purchasing a home, or job relocation entitles them to leave their apartment homes without further financial responsibility. Other residents planning to depart early from an apartment community mistakenly are of the opinion that the property manager's failure to respond is treated as acquiescence by the property manager. In simpler terms, these residents believe that they have legally obtained consent from the landlord to break the lease, because the property manager never expressly objected to the intended breach of the lease. Therefore, it is recommended that the property manager respond to residents in this type of situation, so that it is clear there will be negative consequence if they go through with their plan to break the lease.

Why the response to the resident must be in writing

The moment the property manager learns that the resident intends to break the lease or already has broken the lease, all communication should be in writing. The property manager must comprehend that the remaining term of the lease is potentially at stake, and that could translate to significant dollar amounts. As a result, some residents may do whatever they can to relieve themselves of that obligation. Residents who are leaving the apartment home early, especially those residents under financial duress, will be very eager to twist the communications of the property manager in order to avoid further responsibility for the remaining term of the lease. Oral communications by the property manager are often ineffective and counterproductive if the manager has been notified that the resident has broken or plans to break their lease.

Adverse results in court if the response is not in writing

Unfortunately for property managers, some residents will lie in court. That is a fact of life. If the charge to the resident for breaking the lease is contested in court, judges will be forced to choose between the resident's version of events, which will undoubtedly be that the landlord orally consented to the move-out, and the property manager's version, which would be that no consent was given to the resident to break the lease. Judges typically will be skeptical as to the property manager's testimony if the property manager's position is not backed up with proof, such as a written response to the resident making it clear that consent was not granted.

Error to make a payment arrangement

Frequently, property managers make payment arrangements with residents who break or who intend to break the lease. This is a classic mistake, because neither the landlord nor the resident knows exactly the length of time that the apartment home will remain vacant.

Error to inform the resident that if a new resident is found that no further amounts will be owed

Many property managers will tell departing residents that their obligation to pay rent under the lease will cease once a new resident is found. The resident who is breaching the lease will often find a replacement resident and then believe that there are no further obligations to the landlord. However, these potential replacement residents frequently fail the approval process. Also, replacement residents may be paying a lower rental amount. The former resident will latch on to the property manager's earlier statement that upon the apartment home being released, the resident would not continue to be responsible for the rent. The former resident will then take the position in court that the landlord must bear the rent shortfall.

The recommended response in writing

The property manager who receives a communication from the resident that the resident will be breaking the lease and moving should respond in writing. Essentially, the property manager should inform the resident that the resident's act of vacating the premises will constitute a breach of the lease agreement. Unless a proper early termination/liquidated damages addendum in accordance with Florida Statute 83.595 was signed by the parties, liquidated damages should not be referenced in the letter, as those charges would not be legal. Likewise, it would not be legal to charge accelerated rents. Therefore, there should be no reference to accelerated rents in the letter to the resident. An automatic forfeiture of the security deposit is also not legal and should not be referenced in the letter by the property manager.

Wording to include in the response letter

The letter sent to the resident who plans to break the lease should contain the date and time of the resident's communication which informed the landlord of an intent to break the lease. The letter should make clear that the landlord considers the resident's anticipated action a breach of the lease agreement, and that the landlord will exercise all rights under the lease and Florida law. The letter should additionally state that the resident is expected to continue to pay rent and all other owing charges under the lease until the earlier of the date the unit is re-rented, if the landlord elects to do so, or the lease expiration date. The letter should also state that if the landlord rents the apartment home at a lower rate than the resident's rental rate, that the resident will be liable for that deficiency. The letter should also indicate that until possession rights have clearly been relinquished by the resident, including the turning over all keys, the landlord's ability to relet the premises on the resident's account will be frustrated.

Exercise caution before taking possession of the apartment home

Frequently, the resident who notifies the landlord of an intent to break the lease as of a certain date will not surrender possession, and instead will wait to see whether the landlord takes back possession of the apartment home. Property managers must not fall into the trap of prematurely regaining possession of the premises. The property manager who believes that the resident did indeed vacate, must verify that there has been a surrender of the apartment, or that legal abandonment has occurred in accordance with Florida Statute 83.59. If the property manager retakes possession of the unit without being able to prove surrender or legal abandonment, then there could be massive liability for the landlord, including but not limited to consequential damages, one or more three month rent penalties for prohibited practices, along with potential civil theft liability and criminal law penalties.


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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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