RETALIATORY NONRENEWAL

 

Owners may find themselves having rented to the proverbial “resident who is more trouble than he is worth.” During the term of the lease, the resident doesn’t commit any lease noncompliances that are serious enough to justify a lease termination. He may chronically pay late, but always before the three days on the Three-Day Notice to Pay Rent runs. Aside from late payments, he may have a series of other lease noncompliances: unauthorized occupancy, pet rule breaches, noise disturbances, parking violations, etc. He may never commit the same offense twice, or his acts, while annoying and requiring an inordinate amount of management time, are never grievous enough to justify lease termination. He may have chronic complaints about his neighbors, and after investigation the owner finds them unwarranted. He has or may be in the process of making insurance claims against the owner for personal injuries or for damage to his personal property. He expects the perfect rental, and to that end deluges the owner with a series of repair requests. Some of the repair requests are valid, but many, too many, concern cosmetic issues that are frivolous or border on frivolous.

 

It is important not to succumb to frustration with this resident. The law and the lease must be followed: his noncompliances noticed, his complaints investigated, his claims processed and his repair requests answered. It may be difficult, but the valid must be sorted from the frivolous, the relevant from the insignificant, and the valid and relevant handled as required by Florida law and the lease. Most important of all, everything should be logged, recorded and documented in the resident’s file.

 

All too often these residents are more familiar with the Landlord/Tenant Act than the owner. These residents have been down this path before. They may copy attorneys on complaints, repair requests and correspondence, or cite fair housing violations or claim retaliatory conduct. The owner can bet that these residents are documenting their files.

 

The owner, who has had enough, now prepares to non-renew the troublesome resident. Before serving the non-renewal notice, the owner is advised to contact his attorney to discuss the potential for a retaliatory conduct defense by the resident to the non-renewal.

 

Retaliatory Conduct Statute

 

Florida has a statute addressing retaliatory conduct by the owner. FS 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:

 

1. 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;

 

2. The resident has organized, encouraged, or participated in a residents' organization;

 

3. The resident has complained to the manager pursuant to s. 83.56(1); or

 

4. 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.

 

Retaliating

 

FS 83.64 is much broader than it appears on first reading. The statute forbids retaliating against the resident. What is “retaliating”? The statute indicates it is to discriminatorily 1) increase the resident’s rent, 2) decrease services to the resident, or 3) bring or 4) threaten to bring an action for possession or other civil action primarily because of a retaliatory motive.

 

The statute doesn’t explicitly forbid a non-renewal. It might be argued that every non-renewal carries with it the implicit threat of an action for possession. That tenuous argument aside, if the resident won’t vacate, the owner’s method to enforce the non-renewal is by actually bringing an action for possession, and the statute now clearly can be invoked by the resident as a defense to the action for possession.

 

The statute enumerates four examples of protected activity by the resident: complaint(s) of code violations, resident organization, resident delivery of a 7-Day Notice to the owner under F.S. 83.56(1) or service-member termination. Note that these are only examples and are non-inclusive examples. Thus, courts are free to hold that the statute applies to the exercise by the resident of any rights granted under the Landlord/Tenant Act or the exercise of any rights granted the resident under the lease. As a matter of fact, the statute’s language doesn’t limit its application to only the Landlord/Tenant Act or the lease. Other states with retaliatory conduct statutes have found an eviction action to be retaliatory when it was in response to the resident taking any action that the resident was legally entitled to take. Whether or not a Florida court will apply the statute so broadly remains to be seen.

 

Given that the statute’s purpose is to protect the resident, an owner should be prepared for a court finding that the statute applies to the resident’s exercise of the any rights granted by the Florida Landlord/Tenant Act or contained in the lease, such as the right to demand repairs. An eviction based on the non-renewal of the resident for exercising his rights, such as requesting repairs, can be met with the defense of retaliatory conduct.

 

Owner Defenses

 

Under the statute the owner has several defenses available: his action isn’t discriminatory, his action isn’t primarily retaliatory, his action is for good cause, and the resident is not acting in good faith.

 

Not Discriminatory

 

The owner’s action isn’t discriminatory. “Discrimination” is defined in the statute as treating the resident differently as to rent charged, services rendered or action taken by the owner. Since the statute requires a finding of discrimination by the owner as a “prerequisite” to finding retaliatory conduct, no discrimination in the treatment of the resident means no retaliation. If everyone in the building is being non-renewed for the building’s rehab, then there would appear to be no discrimination towards anyone in the building.

 

Not Primarily Retaliatory

 

The owner’s action isn’t primarily retaliatory. This is a proof issue of the owner’s subjective intent. The burden of proof rests on the owner. When there are several reasons for the non-renewal, the owner will have to prove that his primary reason wasn’t retaliation. It may be hard to convince a court of an owner’s subjective intent without any documentation to support the owner’s position. The owner’s testimony is likely not going to be enough. If the resident has been a problem resident, the owner should have a file with Seven-Day Notices of Noncompliance or Three-Day Notices to Pay Rent. If the repair requests have been frivolous and unwarranted, the file should contain reports by the owner after investigation or by responding vendors so indicating. This is when the owner’s documentation can be crucial.

 

For Good Cause

 

The owner’s action is for good cause. The statute specifically sets forth good cause as the owner’s absolute defense to the application of the retaliatory conduct statute. The statute lists three examples of good cause: good faith action for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the Landlord/Tenant Act. These are only examples and are non-inclusive examples. Owners are free to raise any other reasons as good cause. Note that the examples are preceded by the requirement that the owner’s action is in “good faith.” The fact that the statute expressly states that the good faith rent nonpayment eviction (Three-Day Notice to Pay Rent) and the good faith eviction for violation of the rental agreement or of reasonable rules (Seven-Day Notice of Noncompliance) are exempted from the statute’s application may be the best reason why owners don’t often face a viable retaliatory conduct defense by residents. Judges recognize it as a stalling tactic or an invalid defense, if the owner has properly prepared his case. Judges may be more likely to consider it in the non-renewal case of the troublesome resident.

 

No Good Faith

 

The resident’s isn’t acting in good faith. The statute requires that in order to raise the defense of retaliatory conduct, the resident must have acted in good faith. Once again this is an examination of subjective intent. This time it is the resident’s intent. The owner has the burden of proving the resident’s bad faith. Again, without any documentation it will be difficult to prove the resident’s intent. Timing may be an indication of the resident’s bad faith. The owner may successfully raise a bad faith claim, in the case of a resident, who didn’t object to the non-renewal notice when it was served, but first raises the retaliatory conduct defense when the eviction is filed.

 

The Landlord/Tenant Act has a separate statute (FS 83.44) that imposes the obligation of good faith on the performance or enforcement of every rental agreement and on the every duty under the Residential Tenancies Part of the Landlord/Tenant Act. The drafters of the retaliatory conduct statute (FS 83.64) saw fit to include the duty of good faith twice again in the retaliatory conduct statute – applying it to both the owner and the resident. This will not be lost on a court in evaluating the evidence presented by the owner and the resident.

 

Fair Housing

 

Retaliatory conduct claims are often accompanied with a fair housing claim of discrimination. Many times the evidence will be the same to contest the fair housing discrimination claim and the retaliatory conduct claim. The fair housing aspect of such cases is not treated in this article.

 

As indicated at the beginning of this article, there are instances in which the owner should be prepared for a retaliatory conduct defense to a non-renewal notice. The best preparation is a candid discussion of all the facts with his attorney before the owner takes any action.