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MANAGER’S MAINTENANCE RESPONSIBILITY
12-12-2019
12-12-2019

MANAGER’S MAINTENANCE RESPONSIBILITY

The manager’s duty to maintain the rental premises can be found in FS 83.51 of the Florida Residential Landlord and Tenant Act. The statute can be confusing, because it mandates its coverage in broad language and then exempts certain situations and then overrides some exemptions. This is due to Florida’s building, housing and health codes moving from local to statewide application. It is important to understand that the statute requires the manager to comply at all times during the tenancy, not just at the initial occupancy. The manager is subject to regulatory changes throughout the tenancy. Also, note that the statute distinguishes between a single-family home or duplex and a three or more unit building. In this article I will refer to the manager of a single family home or duplex as the “single-family” manager and the manager of three or more units as the “multi-family” manager.

 

FS 83.51(1) Building Codes

 

FS 83.51(1) mandates that the manager comply with all building, housing and health codes (hereafter just “codes” for short) or, in the absence of codes, comply with specific building and structural requirements. The definition of “building, housing and health codes”, which can be found in FS 83.43(1), is so broad as to encompass almost anything that applies to housing. Codes include both state and local housing regulations. Since local jurisdictions may have implemented more stringent regulation than is contained in the state codes and may have implemented other housing regulations, local ordinances should always be checked. If a visit from code enforcement, the health inspector, the fire marshal or any of the other myriad regulatory officials results in some infraction being discovered, the appropriate response is to remedy the deficiency diligently and thoroughly. This is important not only to avoid further issues with the regulatory authority, but also because unresolved violations are grounds for the resident to withhold rent or terminate the lease. Further, the resident may use a violation complaint to a government agency as the basis to accuse the manager of engaging in illegal retaliation, when the manager attempts to enforce rules, serves lease noncompliance notices (Seven-Day Notices), issues a non-renewal notice, or takes just about any action that the resident feels singles him out for alleged discriminatory treatment.

 

If there are no applicable codes, the statute requires that certain building and structural components be kept in good repair and capable of resisting normal forces and loads. It specifically lists roofs, windows, screens, doors, floors, steps, porches, exterior walls and foundations. It also requires that the plumbing be in reasonable working condition. At one time this provision may have been important in those areas of Florida without codes. Today the Florida Building Code and the health code apply on a statewide basis. This part of the statute would have limited, if any, applicability. However, a judge, who is not familiar with the Florida Building Code, may look at the enumerated items as a guide to who should be responsible for the repair, for instance, of the screens.

 

The multi-family manager cannot modify his responsibilities for compliance with the codes. Any attempt to do so by the multi-family manager will be void and unenforceable.

 

FS 83.51(2): More Duties to Maintain

 

FS 83.51(2) contains additional maintenance obligations for the manager. The manager is responsible for:

 

  1. Extermination of rats, mice, roaches, ants, wood-destroying organisms and bedbugs. The statute enumerates these pests. Note that bedbugs, a recent plague to managers, are specifically listed.

 

  1. Locks and keys. Since the manager’s duty to maintain continues during the tenancy, damaged locks not the fault of the resident must be repaired by the manager.

 

  1. The clean and safe condition of the common areas.

 

  1. Garbage removal and outside receptacles therefore. The manager must supply outside garbage cans, if appropriate, and, if necessary, a dumpster, trash compactor other proper receptacle. This includes arranging for garbage pick-up in areas without county/municipal garbage service.

 

  1. Functioning facilities for heat during winter, running water and hot water. One can immediately notice the absence of what some would say is the most necessary “functioning facility” of all in Florida – air conditioning.

 

The statute provides that the multi-family manager and his residents can agree under written leases that the residents are responsible for these maintenance duties. At one time this part of the statute was a benefit to managers. It is not much benefit today. The majority of codes now adopted in Florida place the responsibility for the duties listed in 1-5 above on the multi-family manager, and the multi-family manager is still responsible for these duties if the codes require it of him. For example, if the codes require a manager to remove garbage, then the codes control. Any agreement by the multi-family manager and his residents otherwise is void and unenforceable.

 

Charging the Resident

 

Although the multi-family manager may have to provide and the single-family manager may choose to provide garbage removal, water, fuel and utilities, they can require the residents to pay the costs and charges for these services.

 

Eviction Defenses

 

The statute contains another provision that at one time was helpful to managers, but with the statewide application of the building and health codes, is not much assistance today. The resident may not use the manager’s failure to comply with the maintenance duties listed in 1-5 above as a defense to an eviction. However, the resident may use the manager’s noncompliance with codes as a defense to an eviction. Since most codes overlap the duties listed in 1-5 above, the codes are the resident’s defense.

 

Smoke Detectors

 

The statute requires the single-family manager to install working smoke detectors at the beginning of occupancy. The statute is silent as to any duty to maintain the detectors during the tenancy, so it appears permissible to require the resident to replace batteries and check that the detectors remain operational. The statute gives guidance on the type of smoke detector required. It gives no guidance on the number or placement of the detectors. Managers should check with their local fire marshals on these points. Although the statute does not require multi-family managers to install smoke detectors, the fire codes require such installation or more.

 

FS 83.51(4) Resident Fault

 

The manager is not liable for maintenance or repairs required by the statute, if the resident, his occupants or guests caused the condition by their negligence, intentional act or noncompliance with the lease or the statutes. While this may seem to shift the cost of maintenance and repairs to the resident when he, his occupants or guests are at fault, it can be difficult to accomplish in practice. The manager bears the burden of proof in any litigation in which the manager claims the damage is caused by the resident, in an effort to hold the resident financially responsible for the repairs and as an explanation why the manager did not undertake the repairs, perhaps in response to the resident’s attempt to withhold rent. The manager must prove that the resident, his occupants or guests caused the damage or that the damage was the result of their lease noncompliance.

 

Sometimes it’s easy to prove, and sometimes it’s not. The manager must also provide proof of the maintenance or repair cost. This may require vendors to appear in court to testify as to the cause as well as to the cost.

 

A manager may want to evict the resident for failure to reimburse the manager for a maintenance or repair bill that is alleged to be the resident’s responsibility. Many judges consider such costs to be a deposit claim issue to be resolved at the end of the lease, not a possession issue. This is true even if the lease provides that the resident is responsible for paying maintenance or repair costs when billed. The exception to this might be if the current costs are significant, exceed the security deposit by a significant amount, and the manager can show the judge the manager's property is being intentionally destroyed or abused. Even then the court outcome is not predictable.

 

Conclusion

 

The statute at one time was more beneficial to managers than it is today. With the advent of statewide codes and the proliferation of local additional codes or more stringent code provisions, the statute’s exemptions are of limited value today. The message of the statute today is that compliance with the codes is a serious matter. The failure to comply with codes can be used by the resident as the basis to withhold rent, terminate the lease or to defend against an eviction.

 


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