Chapter 83 of the Florida Statutes addresses both comemrcial and residential leases. Part II of the Chapter deals with Residential Tenancies. Unfortunately, it is a section that goes unread by the vast majority of people renting property - both tenats and landlords. Sadly, too many people enter into leases without understanding their rights. Even though they did so, it is often not too late to protect those rights. While it is always recommended that a potential tenant have an attorney review the lease prior to signing, should trouble arise after signing, it is important to speak with an attorney to ensure you are afforded every protection under the law.
Below is a brief introduction to how the Landlord-Tenant Act addresses rental agreements.
There is often a misconception that a tenant may rescind a lease within a certain time period after it is signed. If both parties executed the lease, the lease is valid and cannot be rescinded without the express consent of both parties.
Written: Some leases may be too tenant friendly whereas others may provide the landlord more protections. Because the lease is governed by Florida law, it is in a tenant’s best interest to have an attorney review the lease prior to signing. Too often, a tenant has committed himself to terms that he did not understand or failed to read.
Oral: Oral leases are valid in Florida under certain circumstances. A tenant should never enter into an oral lease if he can avoid doing so. Rental payment terms are generally the same as a written lease in that a tenant can enter into; for example, a week-to-week or month-to-month lease.
Description of the property being leased
Amount of rent
Start date of the lease
Duration of the lease
Granting clause: i.e. “Landlord hereby leases to tenant . . . “
Late Fees, Security Deposit, first and last month’s rent, bounced check fees, etc.: The lease may provide for these items, which are not required by law, so long as the tenant is not waiving a substantive right as provided for in Chapter 83.
Maintaining the premises: Tenants should familiarize themselves with Section 83.51. While landlords are obligated to provide for some maintenance, there are many items in which the parties may agree to in writing that require the tenant to be responsible for.
Assignability: This is a commonly inserted clause that usually prevents the tenant from assigning the lease to another party. Failure to include this clause generllay allows the tenant to assign.
Notice to Vacate: This common clause, should the tenant fail to understand it, has created many problems. Section 83.575 states that a tenant may be required by a lease provision to provide up to 60 days notice of vacating if the provision also requires the landlord to provide notification of not renewing the lease. The Section also provides for the possibility of damages amounting to an additional 1 month’s rent so it is imperative that the tenant is aware of the existence of such a provision in the lease and abides by its terms.
PROHIBITED PROVISIONS IN RENTAL AGREEMENTS
Exculpatory Clauses: Any lease provision that “[p]urports to waive or preclude the rights, remedies, or requirements” of Chapter 83 or that “[p]urports to limit or preclude any liability of the landlord to the tenant or of the tenant to the landlord” that arises under law is void and unenforceable. Should either party suffer damages, that party may recover those damages. F.S. § 83.47. There are many, varied, instances in case law on this topic. A tenant or landlord would be wise to discuss their specific issue with an attorney to determine their rights.
Forfeiture of Security Deposit Upon Breach: Not all instances of breach may result in the forfeiture of the security deposit. Courts look at the specific instance when deciding whether such a forfeiture clause is enforceable or unconscionable. A party would be wise to contact an attorney to determine their rights.