RENT WITHHOLDING OR LEASE BREAK LETTER FROM RESIDENT

A Letter from the Resident?-- A certified mail or regular mail letter from a resident, now that is a change. Usually it is the property manager who is sending the letters and notices. You open the letter up expecting the resident to be breaking his lease, but instead it contains a five page list of demands on you to make repairs to the property. The letter ends by saying that if you do not make the repairs within 7 days, the resident will either withhold rent or break the lease. Rent is now due, and you have served a Three Day Notice. Can you file an eviction? Can the resident break the lease? Does this need to be taken seriously? We commonly call this letter a “rent withholding letter” or “7 Day Letter from a resident”.

Does the resident have an attorney? -- If you receive a rent withholding letter from a resident or even a letter that implies that the resident is going to withhold rent, or worse yet, mentions something about you fixing something within 7 days, you can be almost 100% assured that the resident has gotten legal advice. This means that there is an attorney lurking in the shadows somewhere in a dark alley, waiting to see if you fail to make the repairs within the 7 Day time frame as demanded in the letter.

The Manager’s maintenance responsibilities - -- A manager is required by the lease and Florida law to maintain the premises. While the lease normally states what the resident’s responsibilities may be, if it is not stated in the lease that the resident is responsible for a particular item, frequently the implication is that the manager is the responsible party.

Florida Law and the Manager’s Duties- Florida law states the manager’s responsibilities regarding maintenance in Florida Statutes 83.51. Manager’s obligation to maintain premises. (1) The manager at all times during the tenancy shall:
(a) Comply with the requirements of applicable building, housing, and health codes; or
(b) Where there are no applicable building, housing or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. However, the manager shall not be required to maintain a mobile home or other structure owned by the resident. The manager's obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex
. (2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the manager of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for: 1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs. When vacation of the premises is required for such extermination, the manager shall not be liable for damages but shall abate the rent. The resident shall be required to temporarily vacate the premises for a period of time not to exceed 4 days, on 7 days' written notice, if necessary, for extermination pursuant to this subparagraph. 2. Locks and keys.
3. The clean and safe condition of common areas.
4. Garbage removal and outside receptacles therefore; 5. Functioning facilities for heat during winter, running water, and hot water. (b) Unless otherwise agreed in writing, at the commencement of the tenancy of a single-family home or duplex, the manager shall install working smoke detection devices. As used in this paragraph, the term "smoke detection device" means an electrical or battery operated device which detects visible or invisible particles of combustion and which is listed by Underwriters Laboratories, Inc., Factory Mutual Laboratories, Inc. or any other nationally recognized testing laboratory using nationally accepted testing standards
. (c) Nothing in this part authorizes the resident to raise a noncompliance by the manager with this subsection as a defense to an action for possession under s. 83.59
. (d) This subsection shall not apply to a mobile home owned by a resident.
(e) Nothing contained in this subsection prohibits the manager from providing in the rental agreement that the resident is obligated to pay costs or charges for garbage removal, water, fuel, or utilities.
(3) If the duty imposed by subsection (1) is the same or greater than any duty imposed by subsection (2), the manager's duty is determined by subsection (1).
(4) The manager is not responsible to the resident under this section for conditions created or caused by the negligent or wrongful act or omission of the resident, a member of his family, or other person on the premises with his consent.

The Letter from the Resident- What does it look like? The letter from the resident will often be a complaint letter listing one or more items and demanding that the manager fix these items. In order for the resident to withhold rent or break the lease, first these items must be those that allow the resident to withhold rent or terminate, and secondly, the letter must give the manager 7 days to fix the items and state in the letter that failure to repair will result in rent withholding or the resident breaking the lease. The letter needs to be in writing, but some judges have held that verbal or actual knowledge by the manager was enough for the resident to comply with the resident’s obligation of putting the manager on notice.

Florida law pertaining to termination of the rental agreement. 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 s. 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: (a) 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. (b) 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

For What Items Can the Resident Legally Withhold Rent or Terminate the Lease?

A technical reading of Florida Statute 83.60(1), the section of Florida law specifically addressing the resident’s right to withhold rent, indicates that a resident’s right to withhold rent is restricted to violations of 83.51(1), which essentially involves the manager’s failure to maintain the property up to existing building, housing or health codes. The resident has the right to terminate the lease when an 83.51(1) violation exists, or if the manager is failing to provide a material provision of the rental agreement. The right to terminate is actually a more expansive right, and what constitutes a material provision of the lease can be subjective. However, many judges allow the resident to withhold rent for items that would not technically constitute code violations (for example, a refrigerator problem).

The Letter from the Resident- What does it do? A letter from the resident in accordance with Florida law will allow a resident to break the lease if the problem is not repaired within 7 days AND will create a complete defense to an eviction action IF the problem has not been repaired within 7 Days. This is a very powerful tool the resident has, and if the manager receives such a letter, it should NOT be taken lightly, and most importantly, it should not be withheld from the attorney who may be filing the eviction action. Here is Florida law showing how the resident’s letter could be a complete defense to an eviction action and stating the strength of the resident’s letter to you. FS 83.60(1) …The defense of a material noncompliance with s. 83.51(1) may be raised by the resident if 7 days have elapsed after the delivery of written notice by the resident to the manager specifying the noncompliance and indicating the intention of the resident not to pay rent by reason thereof. Such notice by the resident may be given to the manager, the manager's representative as designated pursuant to s. 83.50(1), a resident manager, or the person or entity who collects the rent on behalf of the manager. A material noncompliance with s. 83.51(1) by the manager is a complete defense to an action for possession based upon nonpayment of rent…

Resident the from Letter receive you when attorney your - Failure to disclose to your attorney that you have received a rent withholding letter, or 7 Day Letter as we commonly call it, can be deadly. Your attorney will file the eviction, the resident will post the rent into the court registry and the judge may look at the letter as a complete defense to the eviction action, throwing the case out of court and holding you liable to pay a substantial amount of money in attorney’s fees to the resident’s attorney. NEVER hide a letter like this from your attorney.

So you received the letter from the resident, What should you do? – Notify the property owner, explain the law to the property owner, get the necessary funds and authorization, and get the repair done immediately. Judges are not keen on your excuse that you had no money from the owner to make the repairs, or you had to get 5 bids, or that no one could come out to make the repair. While all repair requests should be taken seriously, a repair request in the form of a 7 Day Letter from a Resident or a Rent Withholding letter needs to be given the utmost priority.