When a landlord fails to make repairs to a rental home, it, understandably, causes the tenant concerns.  Who has the obligation to make repairs?  What should a tenant do if a landlord fails to make repairs?  What options are available to a tenant under such circumstances?

Must a Landlord Make Repairs?

In Florida, most landlords have a duty to fix the rental premises.  However, there are exceptions to this general rule.  For example, one exception is when a tenant leases a single-family home or a duplex, AND the landlord has passed this duty on to the tenant.  The passing of this duty to the tenant is more common than most tenants realize.

Therefore, the first step should always be to review AND understand any written or oral leases.

The Right and OBLIGATION to Withhold Rent

In return for a landlord's duty to repair, a tenant has an obligation to pay rent.  However, when a landlord fails to make a repair, the tenant has certain rights.  Unfortunately, most of these rights do not arise until and unless the tenant sends the landlord notice (preferably by a method with proof of receipt —like certified mail or overnight mail).  This notice must provide that (1) the landlord failed to make repairs, and (2) the tenant is withholding rent as a result of such failure to make the repairs.

It is crucial for tenants to know and understand that if they are to hold a landlord responsible for failing to make the repairs, they must withhold rent—BUT before doing so, they must send landlord notice of such withholding.  If a tenant fails to do either, the tenant may lose in any resulting eviction or litigation relating to this issue and will waive the landlord's breach of the lease.

However, Before Withholding Rent, the Tenant Must Determine:  “Can I Actually “AFFORD” to Withhold Rent?

Although tenants have rights and OBLIGATIONS to withhold rent, doing so comes with significant consequences!

First, Tenants should understand that once they withhold rent, there is a good chance that the landlord will file an eviction.  Why?  Because a landlord is not likely to stand by and not get paid.  Also, the lawyers of landlords advise them to do so, because most tenants will not be represented by an attorney in the eviction action.  And the tenant's lack of legal representation usually results in a slam dunk eviction.   Therefore, after a complete case review, I attempt to advise my tenant clients in a way that minimizes the risk of the filing of an eviction.

Why?  Because, obviously, an eviction does significant damages to a tenant's creditworthiness—and thus, makes it more difficult for tenants to find adequate rentals in the future.  Additionally, evictions also cause psychological stress and situational stress.

Second, Tenants should also understand that the requirement of withholding rent, simply, serves a greater purpose:  terminating the lease and moving out.  In other words, if the landlord fails to make the repairs, the tenant should be prepared to terminate the lease and move out of the rental premises.  Thereafter, the tenant's attorney should deal with the security deposit issue and the breach of the lease by the landlord.

However, on the other hand, if the tenant withholds rent—but fails to move, the landlord will likely feel forced to file an eviction.

Therefore, if a tenant cannot afford to move out, the tenant must consider whether to go down this road at all.  If an eviction is entered, the tenant will be forced to move anyway—even though the tenant cannot “afford” to do so.  Again, this will not only likely result in a negative credit report, but it may create lots of financial and situational stress on the tenant.

Conclusion

Therefore, before withholding rent, tenants should carefully evaluate whether they can “afford” to exercise their rights.  In other words, Tenants must decide whether they must waive the landlord's refusal to make the repairs—or hold the landlord accountable by terminating the lease, moving out, and suing the landlord for a breach of the lease after the security deposit issue is determined.

The Law Offices of Debi Rumph and her Tenant's Clinic charge to (1) help tenants develop customized strategies relating to repairs (2) representing tenants through the termination of lease process, and/or (3) drafting documents on behalf of tenants relating to the above.  However, once a tenant has moved out of the premises, and this issue is no longer time-sensitive, we review and take these types of cases on full contingency.  Therefore, please let us know how we can be of assistance to you!

Are you interested in withholding rent? If you are ready to move forward—or if you have any questions about us or our process, email us at [email protected], text us, or call us at (407) 294-9959. Otherwise, we wish you good luck with your legal matter.