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April 1, 1994 MEMORANDUM TO CLIENTS
LANDLORDS AND TENANTS: REMOVAL ISSUES Landlord and tenant tensions may be unsolvable; however, the legislature has attempted to bring some certainty and efficiency to eviction claims. While clients constantly note that they have heard of seemingly ingenious ways to remove a tenant, legal methods and procedures must be followed. This topic will be of interest to clients that have or may obtain rental property, including Associations that may obtain units or lots as the result of assessment lien foreclosures.
Generally, the laws concerning landlord and tenant relationships are found in Chapter 83 of the Florida Statutes. Chapter 83 is divided into two parts. Part I concerns commercial tenancies. Part II concerns residential tenancies. When dividing the law into its two parts the legislature assumed that a commercial tenant is in a better position and has better bargaining power to protect him or herself. Regardless of whether the rationale is correct, Part II provides residential tenants more protection than Part I provides commercial tenants. Neither parts govern members of a cooperative association who have a membership connected lease in a cooperative governed by The Cooperative Act. If occupancy is connected with the providing of a service, such as medical, religious, or geriatric homes, or if occupancy is pursuant to a contract to sell the property or is transient in nature, then Part II does not govern the residential tenancy. If a primarily residential association, whether a condominium or otherwise, leases space for commercial purposes, such as for a restaurant or golf store, then the tenancy is considered commercial in nature and is governed by Part II. The changes to the law are dealt with in the same manner as the law is organized, differentiating between commercial and residential leases. For material breaches of a lease other than nonpayment of rent, a commercial landlord must give a tenant 15 days written notice to cure the breach or relinquish possession. Typically, a material breach would be destruction of the premises, or an unauthorized use causing damage. Upon a tenants failure to cure the breach or relinquish possession, the landlord has cause to remove the tenant. A commercial landlord cannot evict a tenant for nonpayment of rent if the landlord accepts past due rent. If a tenant attempts to pay rent after the due date and if the landlord desires to evict the tenant for nonpayment, then the landlord must return the payment within a reasonable period of time. Preferably, the landlord should not even accept the late payment if eviction is the landlord's goal. If the landlord fails to return the payment within a reasonable period of time, then the landlord is deemed to have waived its right to proceed with an eviction for nonpayment of rent. In an action by the landlord to evict a commercial tenant for nonpayment of rent, the tenant is now required to deposit with the court the amount of the past due rent. Failure to deposit the rent into the court registry will be deemed a waiver by the tenant of the tenant's defenses. Then the landlord will be entitled to an immediate default and possession of the premises without further notice or hearing. A commercial tenant is not without remedies against the landlord for the landlord's failure to meet its obligations under the lease. When the landlord is responsible for maintenance and repairs and fails to comply with these obligations, the tenant may withhold rent after giving the landlord twenty days written notice to cure the problems. Residential landlords who have the obligation to exterminate the leased property now may require the tenant upon proper notice to vacate the premises. However, the landlord's requirement to vacate may not be for more than four days. Another significant change involves the landlord's right to enter the leased premises for the purpose of making repairs. The landlord must give at least twelve hours notice before entering the leased premises and notice must be given between 7:30 am and 8:00 pm. Please note that recent court decisions have clarified the law indicating that "three day" notices to vacant may claim only delinquent rent not additional charges. How are assessments calculated when three adjoining lots are reconfigured so that the middle lot is divided and only two lots remain? In maturing communities, increasingly one owner buys two adjoining lots. Then one home is built upon the two lots. Though only one home remains, the association does not want to lose assessment income. This issue was recently raised in a lawsuit filed in Palm Beach County, Florida, Royal Oak Landing Homeowner's Association v. Pelletier, 620 So.2d 786 (Fla. 4th DCA 1993). The Royal Oak Landing Declaration of Covenants allowed lots to be divided only if contiguous, and provided that if a lot was divided, the portion joined to the contiguous lot would not be considered a new lot. The Pelletiers bought the neighboring lot and sold the far two feet of the new lot to the neighbor on the other side of the new lot. Then the Pelletiers claimed that they were liable only for assessments on the one lot. The appellate court ruled otherwise. The Pelletiers would have to pay assessments for both lots. Notably, though the Declaration's provisions were seemingly clear, the Pelletiers conclusion was deemed "illogical". Therefore, the court examined the Declaration's intent. It was determined that the intent was to assess each lot, not just homes.
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