Florida law does not specifically address all that can and cannot be put into a lease.  This lack of clarity allows consumer law attorneys to come up with reasons or test novel legal theories as to why something should or should not be legal.  If there is litigation, this leaves it up to a County or Circuit Court Judge or Jury to rule upon a specific clause in a lease.

Unless something is specifically egregious or outright illegal, we will prepare the lease based on what our clients want.  It is crucial to understand though that there are gray areas which could put the property manager, property management company, and/or owner of the property at risk.  It is up to you as to how much risk you wish to take.

In the event there is litigation and the tenant prevails, there are consequences.  In Florida, the property manager, property management company, and/or owner is responsible for the legal fees of the tenant if the tenant prevails.  Tenants do not need to incur legal fees.  Tenants may find an attorney willing to take the case for free but, if the tenant prevails, the attorney may go after legal fees. These fees range from $250 to $450 an hour.  To make matters worse, consumer law attorneys can file class action lawsuits. The class in the class action are those tenants who were impacted by the actions of the property manager, property management company, and/or owner.  This means if the same conduct occurred with multiple tenants, you could be subject to a class action lawsuit where, win or lose, it could cost you a substantial amount of money and time.

Normally consumer law attorneys do not file class actions when the class is small or there are no “deep pockets” but some do.  Your E & O insurance may or may not cover the costs to defend you in such a case.

Please carefully read some of the things that are in a gray area of law.

EXCESSIVE LATE FEES – There is no law on the amount of a legal late fee but at some level, a Judge or Jury may feel a late fee is excessive. You may need to prove in court that you sustained “damages” equal to the late fee you are charging.  If rent is looked upon as a debt or loan, the “interest” rate would often be usurious.

ADMINISTRATIVE FEES – While these are common in the industry, and have been for years, a Judge or Jury may find your fee excessive.

MANDATORY DEDUCTIONS FROM A SECURITY DEPOSIT – A Judge or Jury may feel that only damages that exceed “ordinary wear and tear” can be deducted from a security deposit. Mandatory fees such as key fees, carpet cleaning fees, mandatory repainting fees, and other miscellaneous cleaning/repair fees could be held illegal even though the tenant agreed to them in the lease.

FINES – Florida law does not mention any fines for anything in the Landlord/Tenant Act. A Judge or Jury may feel that since they are not in the law, they are illegal.

LEASE RENEWAL FEES – Florida law does not mention any lease renewal fees. A Judge or Jury may feel that since they are not in the law, they are illegal.

RESIDENT BENEFIT PACKAGES – A growing number of property managers are requiring the tenant to pay for “benefits” that they may or may not want. A Judge or Jury may feel that since the “benefits” are mandatory that the cost of these benefits are excessive or one or more of the benefits have no real value to the tenant. The property manager, property management company, and/or owner could be held liable for the “benefit” the tenant received or was promised.

POSTAGE/PREPARATION FEES – Florida law requires that the tenant receives a Notice of Intention to Impose Claim on Security Deposit by certified mail in the event that any money will be deducted from the security deposit. Charging the tenants to prepare the notice or the postage fees could be found illegal by a Judge or Jury.

NOTICE POSTING FEES – Florida law requires that certain notices are delivered to the tenant and some property managers and owners are charging the tenant for the delivery of these notices. Charging the tenant the notice delivery fees could be found illegal by a Judge or Jury.

FAILURE TO DISCLOSE ALL FEES EARLY – If you collect any nonrefundable funds from applicants and then ask them to sign a lease that they have never seen that includes your terms and fees, the tenant could claim that you misrepresented the true cost of renting from you. This could be considered bait and switch or an unfair and deceptive trade practice.

HIDDEN PROFITS – If you profit off of any goods or services provided to the tenant through kickbacks or discounts with vendors and this is not disclosed to and agreed with by the tenant, this could be found to be illegal or deceptive by a Judge or Jury.

FORFEITURE OF FUNDS – The Landlord/Tenant Act does not allow any automatic forfeiture of the tenant’s funds in the event the tenant breaks the lease or is evicted. While it is rare that a tenant would ever receive their deposit back if they were evicted or left owing sums of money, there is no automatic forfeiture of funds.

PAYMENT METHODS – There are many different kinds of payment methods today. Additional charges for certain payment methods are common.  It is possible that a Judge or Jury could find these charges illegal.

Many of the common fees and practices of Florida landlords are not legal in some other states. Fees have been steadily growing over time and practices by some Florida property managers, property management companies, and/or owners have become more risky.  This practice has gained nationwide attention and has recently drawn the ire of the federal executive branch which is calling for more regulation.

Take some time to review your company’s practices and decide whether you wish to take certain risks or put the property manager, property management company, and/or owner at risk. 

Understand that simply because the tenant agreed to something in a lease by signing that lease, this does not make the lease fully legal and could subject the property manager, property management company, and/or owner to expensive legal challenges later in court.

 

“Serving the Property Management Professional”

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