Can the property manager evict us without reason?
Full Question:
My question is that my landlord has given me a "7-Day notice to cure noncompliance or vacate premises" letter. The reason stated is for behaving in an obnoxious and threatening manner towards the management and staff. However, this is not the case. Both my husband and I have been trying to talk to the property manager for 5 months about several problems that we have. She avoids us and never once talked to us during those 5 months and we tried on NUMEROUS occasions to speak with her (we've both been in and out of the office trying to talk to her, and made SEVERAL phone calls trying to talk to her), and won't speak to us, the other staff lies and says she isn't in. One day I went in and said that I know what car she drives and I know when she is in the office and she will be hearing from me again when I have more time to talk. We then get this letter later that day stating I threatened her and to remedy the situation, or vacate the premises. Both my husband and I went in to remedy the situation, but she REFUSED to speak to us and said we are evicted and we must be out in 7 days. Is this legal? There is no way we can move out of our apartment in 7 days! especially since we didn't do anything wrong, all we were asking is for the property manager to do her job.
05/15/2007 |
Category: Landlord Tenant |
State: Florida |
#4861
Answer:
You should carefully read your lease agreement to determine your rights and obligations and your landlord's rights and obligations regarding termination and eviction.
The following Florida statutes are as follows:
83.44 Obligation of good faith. —
Every rental agreement or duty within this part imposes an obligation of
good faith in its performance or enforcement.
83.45 Unconscionable rental agreement or provision. —
(1) If the court as a matter of law finds a rental agreement or any
provision of a rental agreement to have been unconscionable at the time it
was made, the court may refuse to enforce the rental agreement, enforce the
remainder of the rental agreement without the unconscionable provision, or
so limit the application of any unconscionable provision as to avoid any
unconscionable result.
(2) When it is claimed or appears to the court that the rental agreement
or any provision thereof may be unconscionable, the parties shall be
afforded a reasonable opportunity to present evidence as to meaning,
relationship of the parties, purpose, and effect to aid the court in making
the determination.
83.47 Prohibited provisions in rental agreements. —
(1) A provision in a rental agreement is void and unenforceable to the
extent that it:
(a) Purports to waive or preclude the rights, remedies, or requirements
set forth in this part.
(b) Purports to limit or preclude any liability of the landlord to the
tenant or of the tenant to the landlord, arising under law.
(2) If such a void and unenforceable provision is included in a rental
agreement entered into, extended, or renewed after the effective date of
this part and either party suffers actual damages as a result of the
inclusion, the aggrieved party may recover those damages sustained after
the effective date of this part.
83.51 Landlord's obligation to maintain premises. —
(1) The landlord 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 landlord shall not be required
to maintain a mobile home or other structure owned by the tenant.
The landlord'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 landlord 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 landlord shall not be liable for damages but shall abate
the rent. The tenant 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 therefor.
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 landlord 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 tenant to raise a noncompliance
by the landlord 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 tenant.
(e) Nothing contained in this subsection prohibits the landlord from
providing in the rental agreement that the tenant 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 landlord's duty is determined by
subsection (1).
(4) The landlord is not responsible to the tenant under this section for
conditions created or caused by the negligent or wrongful act or omission
of the tenant, a member of the tenant's family, or other person on the
premises with the tenant's consent.
83.52 Tenant's obligation to maintain dwelling unit. —
The tenant at all times during the tenancy shall:
(1) Comply with all obligations imposed upon tenants by applicable
provisions of building, housing, and health codes.
(2) Keep that part of the premises which he or she occupies and uses
clean and sanitary.
(3) Remove from the tenant's dwelling unit all garbage in a clean and
sanitary manner.
(4) Keep all plumbing fixtures in the dwelling unit or used by the tenant
clean and sanitary and in repair.
(5) Use and operate in a reasonable manner all electrical, plumbing,
sanitary, heating, ventilating, air-conditioning and other facilities and
appliances, including elevators.
(6) Not destroy, deface, damage, impair, or remove any part of the
premises or property therein belonging to the landlord nor permit any
person to do so.
(7) Conduct himself or herself, and require other persons on the premises
with his or her consent to conduct themselves, in a manner that does not
unreasonably disturb the tenant's neighbors or constitute a breach of the
peace.
83.54 Enforcement of rights and duties; civil action. —
Any right or duty declared in this part is enforceable by civil action.
83.55 Right of action for damages. —
If either the landlord or the tenant fails to comply with the
requirements of the rental agreement or this part, the aggrieved party
may recover the damages caused by the noncompliance.
83.56 Termination of rental agreement. —
(1) If the landlord 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 tenant specifying the noncompliance and indicating
the intention of the tenant to terminate the rental agreement by reason
thereof, the tenant 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 landlord and the landlord 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 landlord's failure to comply renders the dwelling unit
untenantable and the tenant vacates, the tenant shall not be liable for
rent during the period the dwelling unit remains uninhabitable.
(b) If the landlord's failure to comply does not render the dwelling unit
untenantable and the tenant 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.
(2) If the tenant materially fails to comply with s. 83.52 or material
provisions of the rental agreement, other than a failure to pay rent, or
reasonable rules or regulations, the landlord may:
(a) If such noncompliance is of a nature that the tenant should not be
given an opportunity to cure it or if the noncompliance constitutes a
subsequent or continuing noncompliance within 12 months of a written
warning by the landlord of a similar violation, deliver a written notice to
the tenant specifying the noncompliance and the landlord's intent to
terminate the rental agreement by reason thereof. Examples of noncompliance
which are of a nature that the tenant should not be given an opportunity to
cure include, but are not limited to, destruction, damage, or misuse of the
landlord's or other tenants' property by intentional act or a subsequent or
continued unreasonable disturbance. In such event, the landlord may
terminate the rental agreement, and the tenant shall have 7 days from the
date that the notice is delivered to vacate the premises. The notice shall
be adequate if it is in substantially the following form:
You are advised that your lease is terminated effective immediately. You
shall have 7 days from the delivery of this letter to vacate the premises.
This action is taken because (cite the noncompliance).
(b) If such noncompliance is of a nature that the tenant should be
given an opportunity to cure it, deliver a written notice to the tenant
specifying the noncompliance, including a notice that, if the
noncompliance is not corrected within 7 days from the date the written
notice is delivered, the landlord shall terminate the rental agreement by
reason thereof. Examples of such noncompliance include, but are not
limited to, activities in contravention of the lease or this act such as
having or permitting unauthorized pets, guests, or vehicles; parking in
an unauthorized manner or permitting such parking; or failing to keep the
premises clean and sanitary. The notice shall be adequate if it is in
substantially the following form:
You are hereby notified that (cite the noncompliance). Demand is hereby
made that you remedy the noncompliance within 7 days of receipt of this
notice or your lease shall be deemed terminated and you shall vacate the
premises upon such termination. If this same conduct or conduct of a
similar nature is repeated within 12 months, your tenancy is subject to
termination without your being given an opportunity to cure the
noncompliance.
(3) If the tenant fails to pay rent when due and the default continues
for 3 days, excluding Saturday, Sunday, and legal holidays, after delivery
of written demand by the landlord for payment of the rent or possession of
the premises, the landlord may terminate the rental agreement. Legal
holidays for the purpose of this section shall be court-observed holidays
only. The 3-day notice shall contain a statement in substantially the
following form:
You are hereby notified that you are indebted to me in the sum of
__________ dollars for the rent and use of the premises (address of leased
premises, including county), Florida, now occupied by you and that I
demand payment of the rent or possession of the premises within 3 days
(excluding Saturday, Sunday, and legal holidays) from the date of delivery
of this notice, to wit: on or before the __________ day of __________,
(year).(landlord's name, address and phone number)
(4) The delivery of the written notices required by subsections (1), (2),
and (3) shall be by mailing or delivery of a true copy thereof or, if the
tenant is absent from the premises, by leaving a copy thereof at the
residence.
(5) If the landlord accepts rent with actual knowledge of a noncompliance
by the tenant or accepts performance by the tenant of any other provision
of the rental agreement that is at variance with its provisions, or if the
tenant pays rent with actual knowledge of a noncompliance by the landlord
or accepts performance by the landlord of any other provision of the rental
agreement that is at variance with its provisions, the landlord or tenant
waives his or her right to terminate the rental agreement or to bring a
civil action for that noncompliance, but not for any subsequent or
continuing noncompliance. Any tenant who wishes to defend against an action
by the landlord for possession of the unit for noncompliance of the rental
agreement or of relevant statutes shall comply with the provisions in s.
83.60(2). The court may not set a date for mediation or trial unless the
provisions of s. 83.60(2) have been met, but shall enter a default judgment
for removal of the tenant with a writ of possession to issue immediately if
the tenant fails to comply with s. 83.60(2). This subsection does not apply
to that portion of rent subsidies received from a local, state, or national
government or an agency of local, state, or national government; however,
waiver will occur if an action has not been instituted within 45 days of
the noncompliance.
(6) If the rental agreement is terminated, the landlord shall comply with
s. 83.49(3).
83.57 Termination of tenancy without specific term. —
A tenancy without a specific duration, as defined in s. 83.46(2) or (3),
may be terminated by either party giving written notice in the manner
provided in s. 83.56(4), as follows:
(1) When the tenancy is from year to year, by giving not less than 60
days' notice prior to the end of any annual period;
(2) When the tenancy is from quarter to quarter, by giving not less than
30 days' notice prior to the end of any quarterly period;
(3) When the tenancy is from month to month, by giving not less than 15
days' notice prior to the end of any monthly period; and
(4) When the tenancy is from week to week, by giving not less than 7
days' notice prior to the end of any weekly period.
83.575 Termination of tenancy with specific duration. —
(1) A rental agreement with a specific duration may contain a provision
requiring the tenant to notify the landlord before vacating the premises at
the end of the rental agreement; however, a rental agreement may not
require more than 60 days' notice before vacating the premises.
(2) A rental agreement with a specific duration may provide that if a
tenant fails to give the required notice before vacating the premises at
the end of the rental agreement, the tenant may be liable for liquidated
damages as specified in the rental agreement if the landlord provides
written notice to the tenant specifying the tenant's obligations under the
notification provision contained in the lease and the date the rental
agreement is terminated. The landlord must provide such written notice to
the tenant within 15 days before the start of the notification period
contained in the lease. The written notice shall list all fees, penalties,
and other charges applicable to the tenant under this subsection.
(3) If the tenant remains on the premises with the permission of the
landlord after the rental agreement has terminated and fails to give notice
required under s. 83.57(3), the tenant is liable to the landlord for an
additional 1 month's rent.
83.58 Remedies; tenant holding over. —
If the tenant holds over and continues in possession of the dwelling unit
or any part thereof after the expiration of the rental agreement without
the permission of the landlord, the landlord may recover possession of the
dwelling unit in the manner provided for in s. 83.59 [F.S. 1973]. The
landlord may also recover double the amount of rent due on the dwelling
unit, or any part thereof, for the period during which the tenant refuses
to surrender possession.
83.59 Right of action for possession. —
(1) If the rental agreement is terminated and the tenant does not vacate
the premises, the landlord may recover possession of the dwelling unit as
provided in this section.
(2) A landlord, the landlord's attorney, or the landlord's agent,
applying for the removal of a tenant shall file in the county court of the
county where the premises are situated a complaint describing the dwelling
unit and stating the facts that authorize its recovery. A landlord's agent
is not permitted to take any action other than the initial filing of the
complaint, unless the landlord's agent is an attorney. The landlord is
entitled to the summary procedure provided in s. 51.011 [F.S. 1971], and
the court shall advance the cause on the calendar.
(3) The landlord shall not recover possession of a dwelling unit except:
(a) In an action for possession under subsection (2) or other civil
action in which the issue of right of possession is determined;
(b) When the tenant has surrendered possession of the dwelling unit to
the landlord; or
(c) When the tenant has abandoned the dwelling unit. In the absence of
actual knowledge of abandonment, it shall be presumed that the tenant has
abandoned the dwelling unit if he or she is absent from the premises for a
period of time equal to one-half the time for periodic rental payments.
However, this presumption shall not apply if the rent is current or the
tenant has notified the landlord, in writing, of an intended absence.
(4) The prevailing party is entitled to have judgment for costs and
execution therefor.
83.595 Choice of remedies upon breach by tenant. —
(1) If the tenant breaches the lease for the dwelling unit and the
landlord has obtained a writ of possession, or the tenant has surrendered
possession of the dwelling unit to the landlord, or the tenant has
abandoned the dwelling unit, the landlord may:
(a) Treat the lease as terminated and retake possession for his or her
own account, thereby terminating any further liability of the tenant; or
(b) Retake possession of the dwelling unit for the account of the tenant,
holding the tenant liable for the difference between rental stipulated to
be paid under the lease agreement and what, in good faith, the landlord is
able to recover from a reletting; or
(c) Stand by and do nothing, holding the lessee liable for the rent as it
comes due.
(2) If the landlord retakes possession of the dwelling unit for the
account of the tenant, the landlord has a duty to exercise good faith in
attempting to relet the premises, and any rentals received by the landlord
as a result of the reletting shall be deducted from the balance of rent due
from the tenant. For purposes of this section, "good faith in attempting to
relet the premises" means that the landlord shall use at least the same
efforts to relet the premises as were used in the initial rental or at
least the same efforts as the landlord uses in attempting to lease other
similar rental units but does not require the landlord to give a preference
in leasing the premises over other vacant dwelling units that the landlord
owns or has the responsibility to rent.
83.60 Defenses to action for rent or possession; procedure. —
(1) In an action by the landlord for possession of a dwelling unit based
upon nonpayment of rent or in an action by the landlord under s. 83.55
seeking to recover unpaid rent, the tenant may defend upon the ground of a
material noncompliance with s. 83.51(1) [F.S. 1973], or may raise any other
defense, whether legal or equitable, that he or she may have, including the
defense of retaliatory conduct in accordance with s. 83.64. The defense of
a material noncompliance with s. 83.51(1) [F.S. 1973] may be raised by the
tenant if 7 days have elapsed after the delivery of written notice by the
tenant to the landlord, specifying the noncompliance and indicating the
intention of the tenant not to pay rent by reason thereof. Such notice by
the tenant may be given to the landlord, the landlord'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 landlord. A material
noncompliance with s. 83.51(1) [F.S. 1973] by the landlord is a complete
defense to an action for possession based upon nonpayment of rent, and,
upon hearing, the court or the jury, as the case may be, shall determine
the amount, if any, by which the rent is to be reduced to reflect the
diminution in value of the dwelling unit during the period of noncompliance
with s. 83.51(1) [F.S. 1973]. After consideration of all other relevant
issues, the court shall enter appropriate judgment.
(2) In an action by the landlord for possession of a dwelling unit, if
the tenant interposes any defense other than payment, the tenant shall pay
into the registry of the court the accrued rent as alleged in the complaint
or as determined by the court and the rent which accrues during the
pendency of the proceeding, when due. The clerk shall notify the tenant of
such requirement in the summons. Failure of the tenant to pay the rent into
the registry of the court or to file a motion to determine the amount of
rent to be paid into the registry within 5 days, excluding Saturdays,
Sundays, and legal holidays, after the date of service of process
constitutes an absolute waiver of the tenant's defenses other than payment,
and the landlord is entitled to an immediate default judgment for removal
of the tenant with a writ of possession to issue without further notice or
hearing thereon. In the event a motion to determine rent is filed,
documentation in support of the allegation that the rent as alleged in the
complaint is in error is required. Public housing tenants or tenants
receiving rent subsidies shall be required to deposit only that portion of
the full rent for which the tenant is responsible pursuant to federal,
state, or local program in which they are participating.
83.64 Retaliatory conduct. —
(1) It is unlawful for a landlord to discriminatorily increase a tenant's
rent or decrease services to a tenant, or to bring or threaten to bring an
action for possession or other civil action, primarily because the landlord
is retaliating against the tenant. In order for the tenant to raise the
defense of retaliatory conduct, the tenant must have acted in good faith.
Examples of conduct for which the landlord may not retaliate include, but
are not limited to, situations where:
(a) The tenant 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;
(b) The tenant has organized, encouraged, or participated in a tenants'
organization;
(c) The tenant has complained to the landlord pursuant to s. 83.56(1); or
(d) The tenant is a servicemember who has terminated a rental agreement
pursuant to s. 83.682.
(2) Evidence of retaliatory conduct may be raised by the tenant as a
defense in any action brought against him or her for possession.
(3) In any event, this section does not apply if the landlord 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 tenant is being
treated differently as to the rent charged, the services rendered, or the
action being taken by the landlord, which shall be a prerequisite to a
finding of retaliatory conduct.
83.67 Prohibited practices. —
(1) A landlord of any dwelling unit governed by this part shall not
cause, directly or indirectly, the termination or interruption of any
utility service furnished the tenant, including, but not limited to,
water, heat, light, electricity, gas, elevator, garbage collection, or
refrigeration, whether or not the utility service is under the control
of, or payment is made by, the landlord.
(2) A landlord of any dwelling unit governed by this part shall not
prevent the tenant from gaining reasonable access to the dwelling unit by
any means, including, but not limited to, changing the locks or using any
bootlock or similar device.
(3) A landlord of any dwelling unit governed by this part shall not
discriminate against a servicemember in offering a dwelling unit for rent
or in any of the terms of the rental agreement.
(4) A landlord shall not prohibit a tenant from displaying one portable,
removable, cloth or plastic United States flag, not larger than 4 and 1/2
feet by 6 feet, in a respectful manner in or on the dwelling unit
regardless of any provision in the rental agreement dealing with flags or
decorations. The United States flag shall be displayed in accordance with
s. 83.52(6). The landlord is not liable for damages caused by a United
States flag displayed by a tenant. Any United States flag may not infringe
upon the space rented by any other tenant.
(5) A landlord of any dwelling unit governed by this part shall not
remove the outside doors, locks, roof, walls, or windows of the unit except
for purposes of maintenance, repair, or replacement; and the landlord shall
not remove the tenant's personal property from the dwelling unit unless
such action is taken after surrender, abandonment, or a lawful eviction. If
provided in the rental agreement or a written agreement separate from the
rental agreement, upon surrender or abandonment by the tenant, the landlord
is not required to comply with s. 715.104 and is not liable or responsible
for storage or disposition of the tenant's personal property; if provided
in the rental agreement, there must be printed or clearly stamped on such
rental agreement a legend in substantially the following form:
BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER
OR ABANDONMENT, AS DEFINED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD
SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE
TENANT'S PERSONAL PROPERTY.
For the purposes of this section, abandonment shall be as set forth in
s. 83.59(3)(c).
(6) A landlord who violates any provision of this section shall be liable
to the tenant for actual and consequential damages or 3 months' rent,
whichever is greater, and costs, including attorney's fees. Subsequent or
repeated violations that are not contemporaneous with the initial violation
shall be subject to separate awards of damages.
(7) A violation of this section constitutes irreparable harm for the
purposes of injunctive relief.
(8) The remedies provided by this section are not exclusive and do not
preclude the tenant from pursuing any other remedy at law or equity that
the tenant may have. The remedies provided by this section shall also apply
to a servicemember who is a prospective tenant who has been discriminated
against under subsection (3).