CONSTRUCTIVE AND RETALIATORY EVICTIONS

 

The vast majority of managers understand that a resident who vacates prior to the lease end date may be liable to some extent for future rent. Likewise, most managers have comfort that if they comply with all of the terms of the lease, then they will prevail if sued by the resident 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 manager 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 manager 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 manager is now vulnerable to a constructive eviction claim by the resident.

 

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 resident 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 manager has neglected the leased premises to the point where it is unsafe or unfit for use by the resident 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 resident so that the enjoyment of the premises is substantially impaired, the resident may terminate the rental agreement and immediately vacate the premises. The resident may vacate the part of the premises rendered unusable by the casualty, in which case the resident'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 manager shall comply with s. 83.49(3).

 

A judge may rule that a resident is constructively evicted if the manager turned off the utilities or was cited for health or housing code violations, such as mold or roach infestation. In one court case, the manager was unable to remedy excessive noise disturbances by other residents. 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 resident to assert a constructive eviction defense when the resident reasonably believed that the manager was about to lock out the resident after refusing the rent and threatening the resident with an eviction. The manager may also be liable for a partial constructive eviction if part of the premises is unusable.

 

You should also keep in mind that residents 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 residents 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 manager 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 resident specifying the noncompliance and indicating the intention of the resident to terminate the rental agreement by reason thereof, the resident may terminate the rental agreement. If the failure to comply with FS 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the manager and the manager 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:

 

1. If the manager's failure to comply renders the dwelling unit untenantable and the resident vacates, the resident shall not be liable for rent during the period the dwelling unit remains uninhabitable.

 

2. If the manager's failure to comply does not render the dwelling unit untenantable and the resident 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 residents all thought that you were a strong property manager. Well those days are over! Ever since Moe discovered that other residents along with himself had faulty air conditioning and heating units, he has created havoc for the property management office.

 

Moe started a resident association at your apartment community. They have meetings every Monday night. As a result, work orders have increased by over 80%! The manager 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 residents 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 manager’s lease stated that renewal is at the discretion of the manager. 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 residents 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 manager to discriminatorily increase a resident's rent or decrease services to a resident, or to bring or threaten to bring an action for possession or other civil action, primarily because the manager is retaliating against the resident. In order for the resident to raise the defense of retaliatory conduct, the resident must have acted in good faith. Examples of conduct for which the manager may not retaliate include, but are not limited to, situations where: (a) The resident 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 resident has organized, encouraged, or participated in a residents' organization; (c) The resident has complained to the manager pursuant to s. 83.56(1); or (d) The resident is a service-member who has terminated a rental agreement pursuant to s. 83.682. (2) Evidence of retaliatory conduct may be raised by the resident as a defense in any action brought against him or her for possession. (3) In any event, this section does not apply if the manager 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 resident is being treated differently as to the rent charged, the services rendered, or the action being taken by the manager, which shall be a prerequisite to a finding of retaliatory conduct.

 

As you can see, there is much conduct on the part of the resident that is protected. The statute prohibits the manager from retaliating against a wide range of resident related activities, including but not limited to: residents that make written complaints regarding the manager’s noncompliance with the lease, residents 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 resident’s group that he founded. In fact, the statute specifically makes even the THREAT of eviction unlawful.

 

Acts That Will Get the Manager in to “Hot Water”.

 

The Florida retaliation statute prohibits the manager from treating the resident who takes part in the conduct above, differently than other residents with regards to services provided, rent charged or other actions on the part of the manager. The manager 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 managers to see if they were acting in a retaliatory manner. In the case of Moe, the manager will need to convince the court that the eviction was not primarily related to Moe’s resident association activities. You should not feel that the manager is powerless over a resident who complains. The key question to ask is this: what was the real reason behind the manager’s action? To change the facts of our above example, if the manager’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 resident group activities.

 

A Final Word of Caution

A common trait shared by many managers who are successfully sued by residents due to constructive or retaliatory eviction related conduct is one that you have probably already figured out. They are managers who fail to maintain the premises in accordance with their lease and Florida law. If one decides to become a manager, 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 residents and their attorneys.