When Can A Tenant Withhold Rent

When Can A Tenant Withhold Rent

Landlords face a common problem in their property management business, namely, tenants threaten to or in fact withhold rent based on the allegation that the landlord breached some statutory or contractual obligation. Both the landlord and tenant commonly do not know how to properly handle this situation and err in their assumptions about this issue. Below is a brief explanation of when a tenant can lawfully withhold rent.

There are a couple of Florida statutes that shed light on this issue, as well as some Florida court decisions to explain the statutes in their application.

First, for a tenant to be able to withhold rent, the landlord must be in breach of his obligations under FS 83.51(1). This statute provides that the landlord is obligated to comply with building and health codes; and where there are no applicable codes, the landlord must “maintain the roofs, windows, 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.” Landlord-tenant experts also conclude that a tenant is not entitled to withhold rent just because a landlord has breached the lease, but rather, the landlord’s breach must specifically be for FS 83.51(1).

To be clear, FS 83.51(2) also provides for certain landlord’s obligations, but a breach of these obligations do not form a basis for the tenant to withhold rent. These obligations include, “extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs” and providing “locks and keys, clean and safe condition of common areas, garbage removal and outside receptacles, and functioning facilities for heat during winter, running water, and hot water”. The parties can agree in writing to alter the landlord’s obligations. FS 83.51(2)(e) states that “nothing in this section 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.” Again, a tenant cannot withhold rent for a landlord’s failure to comply with his obligatons under subsection 2.

Next, FS 83.60(1) provides if a tenant has withheld rent based on the landlord’s breach of his obligations under FS 83.51(1) and the landlord subsequently files an eviction complaint for non-payment of that withheld rent, the tenant can defend on the grounds the landlord breached his obligations under FS 83.51(1). For the tenant to raise this defense, the tenant is required to deliver proper written notice to the landlord whereby the tenant notifies the landlord of the violation, giving him an opportunity to cure the breach pursuant to FS 83.56(1).

To this procedure, FS 83.60(1)(b) states,

The defense of a material noncompliance with s. 83.51(1) 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… A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent.

Florida courts have interpreted this defense and have stated that the tenant may withhold rent, but only if the tenant has complied with the following procedures:

· the tenant has delivered written notice to the landlord giving the landlord 7 days to correct the alleged breach of the applicable violations of the premises;

· the repairs are not completed within the 7 days; and

· the violations are material.

To pursue this defense in an eviction action, the tenant must first post the disputed rent into the court registry pursuant to FS 83.60(2), namely, within 5 days of being served with Summons. If the tenant fails to post rent or file a legally-sufficient motion to determine rent, the tenant will waive his defense and be evicted.

Next, if the tenant posts rent and defends on the grounds that the landlord violated his obligations under FS 83.51(1), the tenant may ultimately still be required to pay rent to the landlord, but potentially in a lesser amount due to the landlord’s breach. FS 83.51(1) provides that the judge or jury “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).” The more severe the diminution, the less rent the tenant will have to pay. Therefore, the tenant is not necessarily “off the hook” just because the landlord breached one of his obligations under FS 83.51(1), but may be required to pay rent in consideration of diminution.

If the judge or jury determines that the landlord did not violate FS 83.51(1) or that the violation was not material to the point that the tenant should not be able to withhold rent, the landlord may prevail against the tenant and receive the eviction.

If you are a landlord and receive a notice from a tenant to withhold rent, you need to contact an attorney to review your case. You should not handle this alone, because your and the tenant’s rights are affected, and if you do not handle the matter properly from the beginning, you may end up losing rent, incur liability and lose an eviction.

If you are a tenant and believe you are entitled to withhold rent, do not withhold rent until you have consulted with a landlord-tenant attorney. If you wrongfully withhold rent, you will be evicted and incur liability, including damages, back rent, and attorney’s fees and costs incurred by the landlord.

If you are landlord or tenant in Pensacola, Ft. Walton, Destin, Panama City, Tallahassee, Jacksonville, or Orlando, contact The Virga Law Firm, PA for all your residential landlord-tenant issues.