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Tenants’ Right to Withhold Rent in Florida by Jena Conley, Volusia County Attorney

Right to withhold rent in Florida.

Often, a tenant may decide to withhold rental payments when their landlord fails to perform their duties as required under Florida law and the lease agreement. While Chapter 83, Florida Statutes, does permit tenants to withhold rent under certain circumstances, the process and procedure can be confusing and complex. Understanding Florida law and the terms of the lease is crucial for both landlords and tenants to uphold their responsibilities and protect their rights.

Landlords have the obligation to maintain the property, and comply with applicable building, housing, and health codes. In general, landlords must also make reasonable provisions for the extermination of certain pests, lock and keys, clean and safe conditions of common areas, and functioning facilities. If the landlord fails to perform their duties under s. 83.51(1) or a material provision of the rental agreement, the tenant may withhold rent.

If a landlord is not performing as agreed upon or as required by Florida law, it is important for the tenant to follow the proper procedure if they wish to withhold rent. Under Section 83.60, Florida Statutes, the tenant must deliver written notice to the landlord specifying the noncompliance with s. 83.51(1) or material term of the lease. This written notice must also state the tenant’s intention to not pay rent by reason thereof. The landlord must be given seven days from delivery of the notice to cure such noncompliance.

It is important to understand that if a tenant withholds rental payments, the landlord may still file an eviction action for nonpayment of rent. However, a landlord’s material noncompliance is a complete defense to an action for possession based upon nonpayment. If the tenant raises this defense, the court or jury will determine the

amount, if any, by which the rent is to be reduced. This determination is based upon the proportional loss in rental value the noncompliance has caused.

Although a material noncompliance with s. 83.51(1) is a complete defense to an eviction action for nonpayment of rent, that defense will be waived if the tenant fails to follow the proper procedure. If the landlord files for eviction, the tenant will be served with the summons and complaint. Within 5 days of the date of service of process, the tenant must pay the rental amount that is alleged or file a motion to determine the amount of rent to be paid into the registry. Failure to do so will constitute an absolute waiver of the tenant’s defenses, and the landlord will be entitled to a writ of possession without further notice or hearing.

Whether you are a landlord or tenant, it’s crucial to seek guidance from a seasoned attorney regarding a tenant’s right to withhold rental payment. A skilled lawyer can assist you in understanding the legal proceedings and safeguarding your rights throughout the process. With years of experience in handling landlord/tenant cases, the Rice Law Firm is well-equipped to provide expert counsel on this matter and other legal concerns you may have. If you would like to consult with an experienced attorney on these issues and other legal matters, please give us a call at 386-257-1222.