TO WITHHOLD OR NOT TO WITHHOLD – THAT IS THE QUESTION

by Edward J. Fucillo, J.D. on September 6, 2016

TO WITHHOLD OR NOT TO WITHHOLD – THAT IS THE QUESTION

By: Edward J. Fucillo, J.D.
Fucillo Law Firm, P.L.
Fucillolaw.com
2016

Whether a tenant can ever withhold rent from a Florida landlord is an issue that arises often and deserves more analysis than has been given in online forums. There are some who believe that in Florida a tenant can never withhold rent but, unfortunately when making this assertion, they fail to offer any legal authority to support their claim. I respond to this issue in an effort to correct a misconception and edify, rather than to criticize any colleagues who I’m sure mean well but, apparently decided to forgo legal research on this issue.

The Florida Legislature has under certain circumstances specifically provided authority for residential tenants to either terminate a rental agreement, or withhold rent from their landlord. This authority is found in F.S. §83.56, which states in part:

(1) If the landlord materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement.

Subpart (a) states:

(a) If the landlord’s failure to comply renders the dwelling unit untenantable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable.

Subpart (b) then states:

(b) If the landlord’s failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance.

Some of my colleagues believe this statute never allows a tenant to withhold rent and claim they cringe at the thought of a tenant withholding rent. They further claim any reduction or withholding of rent can only be accomplished by an order of the court. I respectfully disagree. The plain language of the statute states that a tenant must first provide a 7-day notice to the landlord specifying the material or statutory duty with which the landlord has failed to comply. It then states that if the landlord’s failure to comply renders the dwelling unit untenantable, the tenant is not liable for rent and may terminate the rental agreement. This language is clear authority for the termination of the rental agreement and the withholding of rent without first obtaining a court order.

In subpart (b) of the statute it states if the rental property is habitable and the tenant remains, the rent shall be reduced in proportion to the landlord’s non-compliance. Again, the statute allows for rent to be reduced or withheld, and does not state that a court order must first be obtained prior to the reduction in rent. The Florida Legislature has essentially provided a legal basis when a tenant may terminate a lease and when rent may be reduced, or withheld, despite the existence of a contractual agreement stating otherwise, and all without a court order. Had the Legislature intended that the withholding of rent only be accomplished by a court order, it is presumed the Legislature possesses the knowledge of how to add that language to the statute, but it did not. Reynolds v. State, 842 So.2d 46, 49 (Fla. 2002), Rehearing denied (2003).

Notwithstanding this authority, I have previously cautioned and reiterate that the withholding of rent is not an issue that should be addressed by a tenant without the assistance of an experienced litigation attorney. Even if a tenant legally terminates a lease or withholds rent, it is almost inevitable that an uninformed landlord and/or his or her attorney will immediately file a lawsuit; a gaffe which could result in an award of attorney’s fees to the tenant.

Basic research of this issue reveals that not only does Florida Statute, §83.56 provide for the withholding of rent, but the Florida Bar has also petitioned the Florida Supreme Court for the approval of a form that tenants can issue to their landlord when they intend to withhold rent. This petition is found at The Florida Bar RE Approval of Forms, 591 So.2d 594 (Fla. 1991), where under the heading, “NOTICE FROM TENANT TO LANDLORD–WITHHOLDING RENT FOR FAILURE OF LANDLORD TO MAINTAIN PREMISES AS REQUIRED BY FLORIDA STATUTE 83.51(1) OR MATERIAL PROVISIONS OF THE RENTAL AGREEMENT”, the Florida Supreme Court provides the following instruction:

“NOTE: A tenant cannot withhold rent from the landlord without sending the above notice and allowing the landlord time to make repairs. If the repairs are not made the tenant may withhold rent. In any legal proceeding, however, the tenant will have to pay all past due rent, and rent as it comes due during the legal proceedings, into the registry of the court. The tenant should, therefore, deposit all rent as it comes due in a separate bank account until the tenant’s disputes with the landlord have been solved. For the text of Florida Statute 83.51(1), and the grounds for withholding rent, see the note to Form” (Emphasis added)

Consequently, not only does F.S. 83.56 provide the legal grounds exist for a tenant to withhold rent, the Florida Supreme Court has approved a form that the Florida Bar submitted for tenants to use when withholding rent in the appropriate circumstances.

In 2010, the Florida Bar petitioned the Florida Supreme Court for amendments to previously approved forms that include a form for the withholding of rent. The Florida Supreme Court, In Re Revisions to Simplified Forms, 50 So.3d 503 (Fla. 2010), again recognized the statutory right of a tenant to withhold rent and approved a revision to Form 4 which includes the following language:

A Tenant cannot withhold rent from the Landlord without sending notice and allowing the Landlord time to cure the non-compliance, violation, or default of its obligations. Failure to send the required notice to the Landlord has significant impact on a Tenant’s rights under the rental agreement and Florida Statutes. If the non-compliance is not remedied within the time period specified by statute (or such longer time as may be granted in your written rental agreement) and the Landlord’s failure to comply renders the dwelling unit untenantable and the Tenant vacates, the Tenant may vacate and withhold all rent, or, if the failure to comply does not render the dwelling unit untenantable, rent may be reduced in proportion to the loss of rental value caused by the non-compliance. If the Landlord’s violation of its obligations is not remedied, but the failure to cure the non-compliance does not render the dwelling unit untenantable, the Tenant may remain in the dwelling unit and the rent shall be reduced, until the violation is cured, by an amount in proportion to the loss of rental value caused by the failure to cure the violation. In any legal proceeding, however, the Tenant will have to pay all past due rent, and rent as it comes due during the legal proceedings, into the registry of the Court. The Tenant should, therefore, deposit all rent as it comes due in a separate bank account until the Tenant’s disputes with the Landlord have been resolved. For the text of Florida Statute 83.51(1), and the grounds for withholding rent, see the note to Form 3.” (Emphasis added)

The form and instruction specifically approved by the Florida Supreme Court anticipates the ability of a tenant to withhold rent prior to any legal proceedings being instituted. If an action is filed after the tenant has withheld rent, the tenant is then required to comply with F.S. 83.60 by depositing the unpaid rent into the registry of the court. Examination of F.S. 83.60(1)(b), also shows that it provides a complete defense to tenants who withhold rent after a landlord’s material non-compliance, and states:

“A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent, and, upon hearing, the court or the jury, as the case may be, shall determine the amount, if any, by which the rent is to be reduced to reflect the diminution in value of the dwelling unit during the period of noncompliance with s. 83.51(1).”

Notwithstanding any claims to the contrary, when proper notice is given to a landlord the Florida Legislature affords protection to tenants who withhold rent subsequent to a landlord’s material noncompliance with F.S. 83.51.

In K.D. Enterprises Corporation, Inc. v. Smith, 445 So.2d 1032 (Fla. 5th DCA 1984), a tenant withheld rent based in part upon a landlord’s failure to maintain the rental property. The appellate court recognized the right of the tenant to withhold rent pursuant to F.S. 83.56, but, reiterated the requirement of depositing the rent into the registry of the court in order to continue such defense. The tenant’s failure to procedurally follow through in depositing the unpaid rent into the registry of the court resulted in a judgment for the landlord. The appellate court did not, however, hold that tenants do not have the right to withhold rent.

Despite that this issue is not a well litigated area of law, it is abundantly clear from review of Florida Statutes, the approved forms and instruction of the Florida Supreme Court and appellate case law that in appropriate circumstances and after proper notice, the right of a tenant to terminate a lease or withhold rent does exist. Rather than cringing at this concept, those colleagues who practice in this area should conduct research and fully review all the facts prior to precipitously deciding the right of a tenant to withhold rent does not exist. For those tenants considering withholding rent, I strongly recommend you consult with an attorney who will carefully and diligently determine whether you do, or do not, have the right to terminate your lease agreement and/or withhold the payment of rent.

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