When the Tenant breached the rental agreement and either:

1. the landlord obtained a writ of possession;
2. the tenant surrendered possession; OR
3. the tenant abandoned the premises

the Landlord may:

1. retake possession for his own account (thereby terminating any further liability of the Tenant);
2. retake possession for the account of the Tenant (and holding the Tenant liable for the difference between what the Landlord is owed under the rental agreement and what that Landlord can recover from releasing the premises);
3. do nothing; OR
4. charge the Tenant an early termination fee.

If you are a Landlord, you would be well advised to contact a Landlord / Tenant Attorney BEFORE choosing one of the available remedies provided for under Florida Law to determine which option is best for your current situation and to ensure the proper election of the chosen remedy.

If you are a Tenant and your Landlord is seeking damages from you as a result of your breach of a rental agreement, you would be well advised to contact a Landlord / Tenant Attorney to determine whether you are in fact liable for those alleged damages under Florida Law.

If you have any questions about Landlord / Tenant Law, please do not hesitate to contact my office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

Section 84.43(17), Florida Statutes, defines an “early termination fee” as

any charge, fee, or forfeiture that is provided for in a written rental agreement and is assessed to a tenant when a tenant elects to terminate the rental agreement, as provided in the agreement, and vacates a dwelling unit before the end of the rental agreement.

However, the following are specifically excluded from that definition:

1. Unpaid rent and other accrued charges through the end of the month in which the landlord retakes possession of the dwelling unit.
2. Charges for damages to the dwelling unit.
3. Charges associated with a rental agreement settlement, release, buy-out, or accord and satisfaction agreement.

In order to charge an early termination fee, Landlord must comply with Section 83.595, Florida Statutes. Among other things, section 83.595 requires the Landlord and Tenant to sign an addendum to the rental agreement in which the Tenant specifically agrees to pay the early termination fee. Florida law also limits the amount of early termination fees to a maximum of two months rent.

If you are a Landlord and are interested in retaining the ability to charge an early termination fee, you would be well advised to contact a Landlord / Tenant Attorney BEFORE you enter in a rental agreement to ensure proper compliance with Florida Law.

If you are a Tenant and your Landlord is charing you an early termination fee, you would be well advised to contact a Landlord / Tenant Attorney to determine whether you are in fact liable for that fee under Florida Law.

If you have any questions about early termination fees under Florida Law, please do not hesitate to contact my office at (407) 835-8688.

Jaisen J. Stango, Esq.
Residential Eviction Lawyer

A common question from Tenants is, “When can my Landlord come into my home?”

The answer depends on the terms and conditions of the rental agreement. If the rental agreement is silent on the issue, then Florida Law exclusively governs the issue.

Landlord’s Right to Access:

Ownership of property has been analogized as having a “bundle of rights.” One of those “sticks” in the bundle of rights is ‘possession.’ Although the Landlord ‘owns’ the property, when he enters into a rental agreement with a Tenant, the Landlord transfers over the right of possession to the Tenant. Consequently, the Landlord does not have the unfettered right to enter the property.

Florida Law prohibits the Tenant from unreasonably withholding consent to the Landlord occasionally entering the premises to

1. protect or preserve the premises
2. make necessary or agreed repairs
   
3. make decorations, alterations, or improvements
4. supply agreed services
5. exhibit the premises to prospective or actual purchasers, mortgagees, tenants, workers, or contractors

Landlord’s Obligations:

The Landlord can enter the premises to protect or preserve the premises at any time.

Landlord Larry stops by the unit to collect the rent and sees smoke coming from inside. In this case, Larry can immediately enter the premises without prior notice or consent from the Tenant Tom.

The Landlord can enter the premises to make repairs by giving at least 12 hours notice and entering the unit between 7:30 am and 8 pm.

Larry hires Joe the Plumber (after he gets a license and liability insurance) to install water saving shower heads on all of his rental properties. Larry can enter the Tom’s unit by giving Tom notice on Monday at 9 am the Joe will be entering the unit on Tuesday at 1 pm to make repairs.

For any of the other enumerated reasons in Section 83.53(1), the Landlord may enter the premises

1. with the consent of the tenant
2. in case of emergency
3. when the tenant unreasonably withholds consent

However, the Landlord is prohibited from abusing his right to enter the premises or use it to harass the Tenant.

Jaisen J. Stango Esq.
Landlord / Tenant Lawyer

A common question ask by Landlords is whether they can include “late fees” in the amount demanded from the Tenant in the 3 Day Notice. The answer depends on the terms of the written rental agreement.

Under Florida Law, “Rent” is defined as the periodic amount due for occupancy of the premises AND any other amount due to the Landlord designated as “Rent” under the terms of the written rental agreement.

Accordingly, a Landlord cannot include ‘late fees’ in the 3 Day Notice if the Tenant is occupying the premises under an oral rental agreement. If there is a written rental agreement, the issue is whether the agreement specifically identifies ‘late fees’ as “Rent” due to the Landlord.

Common language used to designate ‘late fees’ as “Rent” in a rental agreement is

If payment is not made by the 3rd of the month, then $100 shall be due as additional rent.

Unfortunately, some of the Landlords that I assist in the eviction process downloaded their lease off of the Internet. The requirement that ‘late fees’ be due as additional “Rent” is a Florida specific law that is unlikely to be found in a lease drafted to conform to the laws of another state. Had the Landlord retained a Landlord / Tenant attorney to draft the rental agreement, the Landlord could have included the ‘late fee’ in the the amount demanded from the Tenant in the 3 Day Notice.

If you have any questions about what can be included in the 3 Day Notice or would like a rental agreement drafted for your investment property, please call my office at (407) 835-8688 for more information.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

Common contract language used in a commercial lease regarding the assignability of the leasehold interest is:

“Tenant may not assign this rental agreement without the written consent of the Landlord.”

The inevitable consequence of such a provision is that it does not explain when the Landlord may and may not lawfully withhold its consent to the assignment.

In Fernandez v. Vazquez, 397 So.2d 1171 (Fla. 3d DCA 1981), the lease contained a similar provision. The issue before the court was whether a commercial landlord with the power to withhold consent to an assignment can withhold that consent for any reason whatsoever. The Tenant in Fernandez entered into an agreement to sell its business, however the Landlord refused to consent to the assignment unless the buyer agreed to pay an additional $250 per month in rent. The buyer refused and rescinded the purchase and sale contract. In response to a subsequent eviction action, the Tenant counterclaimed alleging the Landlord breached the lease by refusing to consent to the assignment.

The court held that when a Tenant agrees to limit its right to assign the lease without prior consent of the Landlord, that consent should not be unreasonably withheld. The court reasoned that a lease is a contract and, therefore, should be governed by the contract principles of good faith and commercial reasonableness. The court further explained that a withholding of consent to an assignment is unreasonable (i.e., a breach of the lease) when it fails the tests for good faith and commercial reasonableness. The court stated that in determining the reasonableness of the withholding of consent by a landlord, the factors to be considered are:

1. the financial stability of the proposed subtenant
2. the suitability of the proposed subtenant for the particular building
3. the need for alteration of the premises
4. the legality of the proposed use
5. the nature of the occupancy, (i.e., residential, commercial, office, retail, etc.)

If you have any questions regarding the legitimacy of a refusal to consent to an assignment of a lease, please call my office at (407) 835-8688 for more information.

Jaisen J. Stango, Esq.
Commercial Eviction Attorney

A Tenant becomes a “holdover tenant” if that Tenant remains in possession of the premises either after the expiration of a rental agreement or the valid termination of the tenancy by the Landlord. Accordingly, the period is which the tenant remains in possession after the expiration or valid termination of the rental agreement is the “holdover period.” Under Florida Law (s. 83.06 & 83.58 ), the Landlord may be entitled to double rent during the holdover period.

However, under certain circumstances, a Tenant may remain in possession of the premises after the expiration of a rental agreement or the valid termination of the tenancy and not be deemed a holdover tenant. Under Florida Law, a Tenant that remains in possession under a bona fide claim of right is not a holdover tenant. See Greentree Amusement Arcade, Inc. v. Greenacres Development Corp., 401 So.2d 915 (Fla. 4th DCA 1981).

In Covelli Family, L.P. v. Abg5, L.L.C., the property was damagesd by two hurricanes. The Landlord terminated the rental agreement under the “damage or destruction” provision, which permitted the Landlord to terminate the rental agreement if the cost to repair the building exceeded 20% of the insurable value. However, the Tenant remained in possession of the premises claiming the Landlord failed to obtain estimates from “reputable” contractors. The trial court found in favor of the Landlord and awarded the Landlord double rent during the holdover period

On appeal, the Court held that is was in error to award the Landlord double rent because the Tenant had a “well-founded claim of possession” and, therefore, was not a holdover tenant. The Court noted that, similar to Greentree Amusement Arcade, Inc. v. Greenacres Development Corp, the Tenant remained in possession under an injunction awarded by the trial court. Furthermore, the Court also pointed out that the Landlord’s actions of first using an unlicensed contractor added to the legitimacy of the Tenant’s challenge to the termination.

If you have any questions about Florida Landlord / Tenant Law, please call my office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

A “Holdover Tenancy” arises when the Tenant remains in possession of the premises after the expiration of the rental agreement or after the lawful termination of the rental agreement by the Landlord. Under Florida Law (s. 83.06 & 83.58 ), the Tenant may be liable for double rent during the holdover period.

However, even if the Landlord lawfully terminated the rental agreement, the Tenant may be relieved of the obligation to pay double rent during the Holdover Period so long as the Tenant remained in possession under a bona fide claim of right. See Greentree Amusement Arcade, Inc. v. Greenacres Development Corp., 401 So.2d 915 (Fla. 4th DCA 1981).

In Greentree, the lease required the Tenant to maintain the premises in an orderly fashion. However, because the Tenant’s patrons were “rowdy, unruly, and generally disruptive,” the Landlord alleged this conduct constituted a material breach of the lease and, therefore, terminated the rental agreement. The trial court found the Landlord’s termination of the lease was justifiable and awarded the Landlord damages in the amount of double rent during the holdover period.

On appeal, the Court held that although there was a valid termination of the lease, the Tenant was not a holdover tenant because the Tenant had a bona fide claim of possession. The Court’s rationale was

despite the fact that the trial court correctly found that the landlord had validly terminated the lease option, the validity of that termination remained a genuine and justiciable issue up to the time that the final judgment was entered.

However, the Court noted that the Tenant’s possession of the premises was (1) authorized by an injunction awarded by the trial court and (2) the Tenant continued to pay the normal rent due under the rental agreement until the Tenant vacated the premises.

If you have any questions about Florida Landlord / Tenant Law, please call my office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

A Tenancy without a Specific Term may be terminated by either party giving written notice, as follows:

• When the tenancy is from week to week, by giving not less than 7 days’ notice prior to the end of any weekly period.
• When the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period.
• When the tenancy is from quarter to quarter, by giving not less than 30 days’ notice prior to the end of any quarterly period.
• When the tenancy is from year to year, by giving not less than 60 days’ notice prior to the end of any annual period.

However, the above-mentioned notice requirements may be modified by the rental agreement or, in some instances, by the conduct of the parties. Accordingly, it is advisable for Landlords to seek the counsel of a Landlord / Tenancy Attorney to properly terminate a tenancy without a specific term.

If you have any questions about terminating a tenancy without a specific term, please call my law office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

Under Florida Law, if the rental agreement is silent on the duration of the tenancy (i.e, there is no specific termination date/period contained in the rental agreement), then the the duration of the tenancy is determined by the period for which the rent is payable.

For instance:

• if the rent is paid every week, then the tenancy is from week to week;
• if paid ever month, then the tenancy is from month to month;
• if paid every quarter, then the tenancy is from quarter to quarter;
• if paid every year, then the tenancy is from year to year

If you have any questions about the duration of a tenancy, please call my law office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney

A “Holdover Tenancy” is a tenancy in which the Tenant unlawfully remains in possession of the premises after the expiration of the rental agreement. For instance, if the rental agreement clearly states that the Tenancy shall expire at 5 pm on Dec 31, yet the Tenant remains in possession (without the consent of the Landlord) past that time and date, then the Tenant is a Holdover Tenant.

Holdover Tenants are still under the protection of Florida Law. (i.e., Landlords shall not use self-help methods of eviction to remove Holdover Tenants). Accordingly, Landlords must file an appropriate action in a court of competent jurisdiction to recover possession of the premises from Holdover Tenants. However, Florida Law encourages Tenants to peacefully vacate the premises after the expiration of the rental agreement by entitling Landlords to recover DOUBLE RENT during the Holdover Period. For instance, if the normal monthly rent was $900, then the Tenant is liable for $60 per day (based on a 30 day proration) for each day that the Tenant remains in the premises after the expiration of the rental agreement.

A problematic issue arises when Landlords enter into negotiations to renew Tenancies with Tenants prior to the expiration of the rental agreement. Even though (from the Landlord’s point of view) a ‘final agreement’ to renew the Tenancy was never mutually agreed upon, the Tenant may be in a position to claim that the Tenant reasonably and materially relied upon the Landlord’s representations that the Tenant would be able to remain in possession of the premises after the expiration of the rental agreement and, as a result, the Landlord may not immediately file an eviction action shortly after the expiration of the rental agreement.

Another common problem for Landlords is accepting anything of value from Tenants in exchange for permitting the Tenant to remain in possession of the premises past the original expiration date.

If a Landlord does not intend to renew a rental agreement, it is advisable for that Landlord to seek the counsel of a Landlord / Tenant Attorney so that the Landlord’s actions prior to the expiration to the rental agreement does not give rise to a defense in an eviction action.

If you have any questions about recovering possession from a Holdover Tenant, please call my law office at (407) 835-8688.

Jaisen J. Stango, Esq.
Landlord / Tenant Attorney