The tenant moved in and paid for the last 5 days of Oct. The lease begin date is Nov 1st. She notified me on November 2nd that there was a window that was not working and some wires hanging from the ceiling that the contractor forgot to re-install the hallway light, she also found wires out by the pool pump that were exposed. I told her I would fix them asap and I showed up to fix things on Monday Nov 3rd and she proceeded to stop payment on the Nov rent payment, and the last months rent which were part of the lease agreement. Now she moved out until we fixed everything and refuses to pay the Nov rent in full and pay the late fees and the bounce check fees. Is the Lease null and void now? Can I change the locks or should I post a 3 day notice and proceed with an eviction. Thank you!
The lease is neither null nor void. It is a binding contract. You can sue to enforce your rights under the lease, including future rent payments. The tenant's right to withhold rent can be asserted only if she gave you written notice of the defect and provided you 7 days to cure the defect. If she did not give you that notice, she had/has no right to withhold rent.
Do not change the locks. That would be a constructive eviction, opening you up to being sued. Just go through the normal process of 3-day notice and then sue for possession.
If you know where she works, try to have her served at her place of employment by personal service so that you can also seek a money judgment for her breach of the lease. You have a duty to try to mitigate your damages by re-renting the premises, so keep in mind that once the eviction is over that you do so. Also remember that under Section 68.065 you can sue for 4x the amount of the check, but must send out the statutory bad check demand letter.
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I agree with Mr. Lampert and add that if your tenant has not relinquished possession or abandoned the property, (and from what you state it appears she has not), then you cannot re-rent the property at this time. You do have a duty to mitigate damages, however, from what you describe it appears your tenant is not rescinding the contract or abandoning the property, but is refusing to move in until the repairs are made. If you move a new tenant into the property before she abandons, relinquishes possession, or a writ of possession is issued, she could claim constructive eviction.
Mr. Lampert is correct, do not change the locks, as you could be liable for triple the monthly rent amount, or consequential damages, whichever is greater plus attorney's fees and costs. Consult with an attorney if you are not sure how to proceed.
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No, it is simply breached. You should get with a local lawyer and send a statutory bad check notice in addition to the LL/T notices as criminal prosecution will usually get you a great deal of bargaining leverage to limit further controversies.
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