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Tenant rights

Tenant rights vary by state, but include the right to safe and habitable housing, privacy, and non-discrimination.

Michael N Bress | Oct 17, 2019


INTRODUCTION An eviction is when a landlord forces a tenant to move out. To evict a tenant in Florida, a landlord must follow the procedure governed by Chapter 83 of the Florida Statutes. Failure to follow the proper procedure could lead to an eviction suit being dismissed, or result in the tenant being awarded fees and costs or even damages. Common grounds to terminate a tenancy are when a tenant fails to pay rent, violates the rental agreement, or violates local, state, or federal law. Other grounds include the absence or expiration of a rental agreement. The following are the main steps required to evict a tenant in Florida. (1) TENANT NOTICE The first step in the eviction process is the landlord must give the tenant a termination notice. The amount of notice required depends on the grounds for terminating the tenancy. Termination can be for cause (for non-payment or non-compliance) or without cause (when there’s no lease agreement or the agreement has expired). (B) TERMINATION WITH CAUSE FOR UNPAID RENT, the landlord must give the tenant a three-day notice to either pay the unpaid rent or vacate the unit. If the tenant pays the full amount within three days, minus weekends and holidays, the landlord must accept the payment. If the tenant offers the landlord less than the full amount, the landlord must reject the payment or will have waved the right to pursue the eviction until a further breach occurs. If the agreement has an anti-waver clause, providing the landlord can accept partial payment and still pursue the eviction, the clause may be upheld by the court. FOR A VIOLATION OF THE RENTAL AGREEMENT, the landlord must give the tenant a seven-day notice to either fix the violation or vacate the unit. If the tenant fixes, or “cures,” the violation within seven days, the landlord must not pursue the eviction. FOR NON-CURABLE AND REPEAT VIOLATIONS, a landlord must provide the tenant with a seven-day notice. Unconditional-quit notices are for non-curable violations such as a serious destruction of property, or a violation that has reoccurred within a twelve-month period. These notices do not give the tenant an opportunity to cure. The tenancy is terminated and the tenant has seven days to vacate the property. If the tenant does not leave, the landlord can file a complaint for eviction. (C) TERMINATION WITHOUT CAUSE IF THERE IS NOT A WRITTEN LEASE OR A LEASE WITHOUT A SPECIFIED PERIOD OF TENANCY, the landlord can terminate the tenancy at will. In such cases, notice is not required. Not unless a local statute or a written lease of unspecified duration states otherwise. Notifying the tenant, however, is recommended as a courtesy and also it might help to avoid additional damage to the property. FOR A WEEK-TO-WEEK LEASE, notice must be given seven days before rent is due. FOR A MONTH-TO-MONTH LEASE, notice must be given fifteen days before rent is due. Miami, however, has a special law that requires a thirty-day notice to terminate a month-to-month tenancy without a specific duration. FILE THE EVICTION COMPLAINT If a tenant does not comply with the notice, the next step in the eviction process is to file an eviction complaint in the county where the property is located. Once an eviction suit is filed, the Clerk of Court must issue a summons for each defendant, and then a professional process server or the Sheriff’s office must serve the tenant with both the summons and the complaint. TENANT HAS FIVE DAYS TO RESPOND TO THE COMPLAINT Once served, the tenant will have five days, excluding weekends and holidays, to answer the complaint. If the tenant answers, the tenant may offer defenses. If the action is for unpaid rent, in order to contest the eviction the tenant will have to deposit the rent owed into the court registry. If the tenant does not respond to the complaint, the action will be uncontested and the landlord should file a motion for default judgment and schedule a hearing. EVICTION HEARING A hearing can be scheduled by either the landlord or the tenant. Once scheduled, the other party must be served notice. If the case is contested, both the landlord and the tenant will be given an opportunity to testify and to provide evidence to the court. At the hearing, the court will decide whether the tenant should be evicted based on the pleadings, testimony, and other evidence. REMOVAL OF THE TENANT If the court finds in the landlord’s favor, the Clerk of Court shall issue a writ of possession commanding the Sheriff to put the landlord back into possession. Once the Sheriff has served the tenant with the writ, the tenant will have 24 hours, minus weekends and holidays, to vacate the property. If the tenant does not vacate, the Sheriff will return to force the tenant out of possession. CONCLUSION Often, the best solution to a problem is to avoid the problem in the first place. This is why a landlord needs to be diligent in screening prospective tenants for potential red flags, and to draft rental agreements that reduce the potential for litigation. If a dispute does arise, however, an alternative to litigation is to try to resolve the dispute through mediation. Either way, if you hire an attorney, you should discuss what in your situation is likely to be the cost-effective approach.

Sara L. Messina | Jun 5, 2019

Avoiding Renter's Remorse

If You Are Renting from A Private Owner... When you consider a private residence for housing in North Carolina, you should check on the ownership of the property, and the source of the lease. There are a growing number of renters seeking legal help because a landlord did not have full ownership of a property. This has lead to renters being evicted because of the landlord's foreclosure or because the landlord never actually owned the house. A real owner has no obligation to allow a renter to stay, even if they have paid money or signed a purported lease. Speak to an attorney about running a title or tax record check. You should also make sure all the utilities are properly and legally installed on the property. Private homeowners might try do-it-yourself projects that leave you with shoddy electric or cable service. Illicit hook-ups are also the first warning sign of a scam landlord. If You Are Renting from a Company... Just because the property is owned or managed by professionals doesn't mean the renter has nothing to worry about. Check as many sites as possible featuring reviews of the community and the company. If your local office lacks an internet presence, other locations in the same state are often managed with similar protocols. Also, a lack of virtual presence could mean the landlord is not as professional as they appear. If you choose to visit a property, make sure you review the entire lease and ask questions of someone in authority. It might help to let the leasing office know you want such a person available when you view the property. Some leasing offices are staffed with personnel who are only meant to process paperwork, not answer questions about the legal contract you are considering. When you meet the person in authority, ask them about lease provisions that you might need changed, or that seem suspicious. You should also ask if they inspect inside the property regularly, and if or when that effects evictions or non-renewals of the lease. Also ask if they built the building themselves, so you know if a prior owner might be liable for structural issues, and ask what they do to prepare apartments between tenants. ALWAYS PAY YOUR RENT This is the number one way clients cause trouble for themselves. In North Carolina, a tenant does not have the right to decide to withhold rent. No matter how bad the landlord is, no matter what issues you have, pay the full rent on time. The law is setup so that a landlord has to mutually agree or a tenant has to sue or be sued before rent is reduced. If you and a landlord agree to a lower rate than what is stated in the lease, put it in writing as an amendment to the lease. Oral contracts are enforceable, but that often amounts to tenants and landlords giving conflicting testimony as evidence. A magistrate is going to want to enforce the lease. On that note... Get a Written Lease You can rent month-to-month on an oral lease in North Carolina. Your landlord would be allowed to increase the rent at the end of each rental period--at the end of every month! You would also only get a week's notice before the landlord could file for eviction. The eviction process itself is accelerated compared to the 30 days you get on an annual lease. Skip the hassle and uncertainty with a written lease. Read the entire lease. Do not skim it like it's the Terms and Conditions. The lease should specify the name and address of the landlord and tenants, the rent amount, the date rent is due, when rent is late, when the lease begins, and when it ends. This is the bare minimum for a decent lease. An attorney should check a lease a private landlord gives to you. I have seen leases with illegal late fees, terms that make the party who loses a legal battle pay attorneys fees, and more from cheap online leases. A consult with an attorney early is always cheaper than a lawsuit later. Don't Rent Until the Property is Ready Depending on the age of the property and length of the lease, you should expect some need for repairs during your tenancy. If the property needs significant repairs, don't sign a lease until it is ready. The lease makes you liable for rent whether or not you live at the property. Make sure to view the property before you sign, and make a checklist of items and their conditions for your own records. Be sure that: Windows and doors to the outside lock; Windows are sealed to the outside; Electrical outlets function; Clean vents and air filters; Batteries in smoke detectors; Toilets flush without issue; Water heats and doesn’t leak, and Any appliances are clean and run. Landlords are not required to provide appliances beyond toilets, sinks, and a tub or shower. The toilet might be an outhouse. Air conditioners and heaters are not required unless the temperature is outside a specific range for a number of days. Visit the property to know what you need to bring with you. When you get there Take Pictures If the landlord will permit it, take pictures of the property before you sign a lease. This will give an attorney or magistrate an idea of its condition before you had any effect on it. Once you move in, take pictures after any repairs are done. If a problem causes ongoing damage, take pictures periodically to show the progression of the damage. Always notify the landlord in writing if you need repairs. Even if you spoke to the landlord, send some form of writing and make sure it is dated. Texting with the landlord may be sufficient, but letters are better. Lastly, the Landlord Has Obligations A landlord has obligations for upkeep on certain parts of the property, as well as legal duties which protect a tenant's legal rights. A consult with an attorney would be the best way to confirm the specific duties within any one landlord-tenant relationship. However, every tenant should be aware of some basics, such as: The landlord has a duty of upkeep and repair on common areas like shared hallways or landscaping. If the landlord does provide appliances, they need perform their intended function. Any repairs must be made in a timely manner, but realize that this provides a landlord time to review the damage and find professional help. The landlord is obligated to follow the eviction process, which includes giving the tenant notice of intent to file eviction before going to court. A landlord cannot simply lock out a tenant. A landlord must also continue to provide utilities if they are part of the rent paid. This applies even if you are late on rent or being evicted. They can only cut off the utilities if a court has evicted you, and you have reached the end of the eviction process.