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How to deal with a bad tenant

It is hard to be a landlord in Miami with a bad tenant. Typical complaints can include failure to pay rent, destruction of the property, unauthorized pets, smoking, guests or subleases, and the list goes on and on. Here are some tips for dealing with your tenant to preserve your rights and your property.

Bad TenantBe clear about your rights and responsibilities are as a landlord

  • Have a lease agreement

Your lease agreement is an enforceable contract with your tenant. It lays your rights and responsibilities for the property in exchange for your tenant’s rent payments. In general, your lease will describe the property you are leasing, the length of time of the lease, or “term,” the amount of rent payments, the security deposit, whether you are allowed pets, and perhaps other subjects. The Florida Supreme Court provides a form lease.

When something happens on your property that you think is the tenant’s responsibility, like a repair, first check the lease to learn who is responsible for handling the problem. Also, check to make sure that you are in compliance with your lease. Remember the old saying, “he who lives in a glass house should not throw stones.” You need to be sure to fulfill your responsibilities as a landlord so that you can throw stones without reservation. If you are not holding up your end of the bargain, it will be difficult, if not impossible, to make the tenant hold up its side.

  • Read Florida Statute Section 83.47

Your lease with your tenant must comply with the Florida Statute, Florida Statute Section 83.47. Courts will only enforce your lease and its provision provided that they do not “waive or preclude the rights, remedies, or requirements set forth in this part,” or “limit or preclude any liability of the landlord to the tenant or of the tenant to the landlord, arising under law.”

  • If you don’t have a lease agreement with your tenant, then the Florida Statute will govern your relationship.

Tenants have obligations towards landlords under the statute. Tenants must “keep that part of the premises which he or she occupies and uses clean and sanitary, remove from the tenant’s dwelling unit all garbage in a clean and sanitary manner, keep all plumbing fixtures in the dwelling unit or used by the tenant clean and sanitary and in repair, use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances, including elevators, not destroy, deface, damage, impair, or remove any part of the premises or property therein belonging to the landlord nor permit any person to do so, and conduct himself or herself, and require other persons on the premises with his or her consent to conduct themselves, in a manner that does not unreasonably disturb the tenant’s neighbors or constitute a breach of the peace.”

Landlords also have duties under the statute. Section 83.51 of the statute makes landlords responsible for “comply[ing] with the requirements of applicable building, housing, and health codes,” or if there are none, then they must maintain “the roofs, windows, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition.” The landlord also has to provide locks and keys, the clean and safe condition of common areas, garbage removal, functioning facilities for heat during winter, running water, and hot water, and smoke detection. In addition, landlords are responsible for maintaining screens and exterminating pests like “rats, mice, roaches, ants, wood-destroying organisms, and bedbugs.” If the tenant’s issue is pests, the landlord can ask the tenant to vacate the home for four days at most, and must give the tenant written notice seven days in advance. Landlords also have to “abate” or reduce the rent for the time tenant had to leave the home. Other than that, landlords do not have to pay damages to tenants for pests. Air conditioning is not a requirement for landlords under the Florida Statute.

  • Once you have learned your rights and responsibilities, make your complaints in writing.

Landlords often fail to enforce their rights because they do not provide the correct form of notice to the tenant. Telephone calls and emails to complain are not enough. The law requires you to notify the tenant, at the property address, (see Section 83.50) with an old-fashioned letter on paper that must be sent by mail, hand delivered, or posted on the door. (See Section 83.20[3]) I recommend certified mail, but you can probably skip the return-receipt. (Sometimes people will refuse to sign or not be available to sign, so requiring signatures can interfere with giving them proper notice.)

Under Section 83.201, if a repair is the landlord’s responsibility, the tenant must serve “a written notice declaring the premises to be wholly untenantable, giving the landlord at least 20 days to make the specifically described repair or maintenance, and stating that the tenant will withhold the rent for the next rental period and thereafter until the repair or maintenance has been performed.” You may include in your lease a longer period of time allowed for the repair. When the landlord completes the repair, the tenant must pay the amount of rent withheld.

If the landlord does not complete the repair or maintenance in the allotted time, the landlord and tenant may agree to extend the time in writing, or the tenant may abandon the premises, retain the amounts of rent withheld, terminate the lease, and avoid any liability for future rent or charges under the lease with written notice provided at least seven days before leaving.

If your tenant has decided to withhold rent, you may receive a seven-day notice of curable noncompliance like this. It is your option to provide a three-day notice to pay or vacate like this. If your tenant does not pay or vacate, the next thing you would likely file is a complaint for eviction, like this.  Tenants must respond to the complaint for eviction within five days or they lose by default. The response has to be filed with the clerk of court of your county and mailed to the landlord.

Once you file your complaint for eviction and the tenant responds (within five days), the court will schedule a pretrial conference. In Miami-Dade County, the pretrial conference will include a mediation. In a mediation, the parties meet with each other and their attorneys with a neutral mediator to discuss their differences and try to resolve their problem. If you cannot agree, the mediator will file a notice of impasse, which tells the court that you could not agree and will go on to have a trial. Before trial, you must comply with the judge’s requirements and provide any evidence you intend to bring up in the trial to the other side. Some judges will require a pretrial memorandum or catalog, which is a summary of your arguments, evidence and the law and cases you will be citing. The judge will describe what is required in a trial order. Read this carefully and be sure to comply.

On the day of trial, you will have to bring all of your documents and witnesses and then try the case.

Before you start a war with your tenant, be sure to consider whether the cost outweighs the benefit. Do you really want to have a lawsuit that could last a year and result in damage to your income? Is it worth the risk of losing your case and having to pay all of your tenant’s attorney’s fees? What do you have to gain? Secondly, I would not recommend going through with this process or a trial without a lawyer. It is almost always preferable to have an attorney to represent you, especially if your tenant has an attorney, because they will know the law and procedures to be able to defend you effectively. When you win a landlord-tenant lawsuit, you may win your attorney’s fees as well. (See 83.625) This means when you lose a landlord-tenant lawsuit, you could have to pay your tenant’s attorney’s fees and costs.

Learn more:

Rights and Duties of Tenants

Landlord Tenant Instruction Forms

Landlord Rights & FAQ’s

 

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