The New Law and the Single Family Home Manager by Harry Heist, Attorney at Law On June 7, 2013, Governor Rick Scott signed into law House Bill 77, the most extensive change in over 20 years to the Residential Landlord-Tenant Act found in Florida Statutes, Section 83 Part II. The changes, additions and subtractions help to clarify some of the greyer areas of law that have developed over the years, and give guidance to property managers, landlords, attorneys and judges. The landlord-tenant relationship is affected by the lease agreement, statutory law and decisions by judges creating case law when the statute or lease is unclear. In the residential setting, most cases are decided in county court. If a judge rules in a way that may not be in accordance with the law, other judges often will follow suit. This creates situations where in one county or circuit the judges rule one way, and in another county or circuit, the judges rule an opposing way. Often judges in the same county or circuit will rule in opposing ways. Inconsistencies create a problem of uncertainty for property managers and landlords and since under Florida law, the prevailing party in a Landlord-Tenant action is entitled to an award of attorney’s fees, the stakes can get extremely high for all parties involved. The Landlord-Tenant Act in Florida is extremely fair, and for the most part clear and concise, but nothing is perfect. The changes to the law clarify a number of areas of the law which will be examined here. Just because the law has changed, we must warn property managers that not all judges will follow the law, especially in the beginning, and some still will interpret the law in a way that you and your attorney may disagree with. When this occurs, there is an option of filing an appeal to a higher court, but due to the expense and time involved, this is not usually done. This article will explain the new law. The new law goes into effect on July 1, 2013, and the new security deposit disclosure wording must be placed in all leases beginning on January 1, 2014. EXCLUSIONS FROM LANDLORD-TENANT LAW Prior Law – If a tenant was occupying a home, paying rent or maybe having paid a deposit intending to buy the home under a contract for sale, the landlord could not evict that tenant if they failed to pay the rent. The landlord was forced to file a foreclosure or ejectment action. New Law - UNLESS the tenant has paid at least 12 months rent or has given the landlord at least 5% of the purchase price of the home, the landlord can now file an eviction if the tenant fails to pay the rent. ATTORNEY’S FEES Prior Law – The Landlord-Tenant Act provides that the prevailing party in a case seeking to enforce the provisions of a rental agreement or the Landlord-Tenant Act is entitled to an award of attorney’s fees. In some cases, tenants would be injured on a property, a slip and fall for example, and the attorney for the injured party would seek attorney’s fees. Personal injury law does not provide that the injured person receives attorney’s fees, but this grey area was being exploited by some personal injury attorneys to ask for and receive attorney’s fees. New Law- The new language clarifies that attorney’s fees will NOT be awarded in an action in which a person was injured on a rental property, AND a lease cannot be modified to allow a landlord to attempt to force a tenant to waive away their rights to attorney’s fees in non-personal injury cases. SECURITY DEPOSITS AND ADVANCE RENT Prior Law – It was unclear in prior law whether the landlord had to notify the tenant if a bank’s name had changed, was sold, or one bank merged with another. That bank would be the one holding the deposits. New Law – Landlords are now clearly not required to notify the tenant of a bank change, merger or bank sale. Prior Law – Landlords were required to provide the tenant with a section of Florida Statutes 83.49(3), explaining timing and procedures that governed the landlord and tenant if the landlord were to make a claim upon the deposit, return the deposit, or if the tenant disputed claims made against the deposit. New Law- A brand new disclosure is now required in the lease for all leases beginning January 1, 2014. Until that time, you can continue to use the old law wording, or you can update your lease right now. The new disclosure clarifies that you do not have to notify the tenant if you are using the advance rent when it becomes due, clarifies that the landlord has 30 days from the time of tenant “move out” to send the Notice of Intention to Impose the Claim on Security Deposit, and encourages the landlord and the tenant to try to informally settle disputes, and if not, either party can sue as before. Basically the procedures regarding security deposits have not changed, just the new disclosure is required. If a tenant disputes, the new law still does not clarify if the landlord is permitted to retain the “disputed” amount, or if the disputed amount can be disbursed to the landlord or put into a manager’s operating account. Prior Law – If the landlord failed to send out the Notice of Intention to Impose Claim on Security Deposit in time or properly, it was unclear if the landlord had to refund the entire amount of the deposit or could “set it off” against the amount the tenant may have owed and return the rest to the tenant. New Law – It is clear now that if the landlord fails to send out the Notice of Intention to Impose Claim on Security Deposit in time or properly, the landlord MUST return 100% of the deposit, but still can sue the tenant in court and get a judgment for the underlying claim in the event the landlord went to court and prevailed. Prior Law – Nothing addresses the safety or security of a tenant’s security deposit on a sale of a property, and often the old landlord or manager kept it; hence the tenant lost it with no recourse against the long gone prior owner. New Law – There is a rebuttable presumption that the new landlord or agent received the deposit from the old landlord or agent, and this presumption is limited to one month’s rent. SCREENS Prior Law – Landlord’s were responsible for screens. This created a problem, as often the screens were damaged or destroyed by the tenant, guest, child or pet, and the landlord continually had to make repairs and replacements. New Law – At the beginning of the lease, the landlord must make sure the screens are installed and in reasonable condition, and the landlord now only must repair screens once annually. We still recommend you keep up screens as it can become a code enforcement/inspection issue. CRIMINAL OFFENSES Prior Law – Rights and duties under the Landlord-Tenant Act were enforceable only by civil action. New Law – If there is a crime by the landlord or tenant, the law is now clarified to show that it now can be enforced by a criminal action as well. CURABLE NONCOMPLIANCES Prior Law – If a tenant committed a curable noncompliance, that tenant was given a Seven Day Notice of Noncompliance with Opportunity to Cure. If the tenant committed the act again within 12 months, the landlord would arguably have to serve the tenant a Seven Day Notice of Termination and wait seven more days before filing an eviction. New Law – After a tenant is given a Seven Day Notice of Noncompliance with Opportunity to Cure and the seven days are up, if the tenant subsequently commits the same or similar offense, NO NEW NOTICE must be given, and the landlord can go straight to eviction. NOTE: We still recommend that in many instances, you serve a new Seven Day Notice of Noncompliance with Opportunity to Cure or a Seven Day Notice of Termination prior to evicting depending on the type of offense and time periods elapsing. PARTIAL RENT
Posted on: Wed, 31 Jul 2013 18:15:12 +0000
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