What Recourse Do Landlords Have When Tenants Want Out?
While it’s true that most tenants are good tenants who take care of their unit, pay their rent, and abide by their lease, there are tenants who put little to no importance on the obligations they voluntarily assume when they sign. While this article is not intended to give specific legal advice (consult your attorney as to your particular situation) here are some helpful tips for Sarasota landlords to consider when your tenant wants out of their lease early.
First, Some Relevant Terms and Concepts
Clearly, in order for a lease to be enforceable, it must be legally binding under the law. A general rule is that both parties to a lease must freely and willingly enter into the agreement. Florida Statute 83 Part II, “Florida Residential Landlord and Tenant Act,” is the governing Florida statute concerning residential tenancies and the following sections are of particular relevance with respect to whether a lease is binding:
- 83.44 ”Obligation of good faith.—Every rental agreement or duty within this part imposes an obligation of good faith in its performance or enforcement.” In other words, neither party can fraudulently enter into the agreement, nor maliciously act under the agreement. The parties must act in good faith towards one another.
- 83.45 ”Unconscionable rental agreement or provision.—(1) If the court as a matter of law finds a rental agreement or any provision of a rental agreement to have been unconscionable at the time it was made, the court may refuse to enforce the rental agreement, enforce the remainder of the rental agreement without the unconscionable provision, or so limit the application of any unconscionable provision as to avoid any unconscionable result.” In other words, just because it is in the agreement does not mean it is enforceable — the court reserves the right to invalidate/modify those terms it deems unconscionable under the law, or the entire agreement.
The Crux of The Issue
Section 83.595 of the Florida Statute lays out the letter of the law with respect to a Florida landlord’s recourse with respect to a tenant that wants out of their lease early. The text of 83.595 is reproduced here in its entirety:
83.595 Choice of remedies upon breach or early termination by tenant.—If the tenant breaches the rental agreement for the dwelling unit and the landlord has obtained a writ of possession, or the tenant has surrendered possession of the dwelling unit to the landlord, or the tenant has abandoned the dwelling unit, the landlord may:
(1) Treat the rental agreement as terminated and retake possession for his or her own account, thereby terminating any further liability of the tenant;
(2) Retake possession of the dwelling unit for the account of the tenant, holding the tenant liable for the difference between the rent stipulated to be paid under the rental agreement and what the landlord is able to recover from a reletting. If the landlord retakes possession, the landlord has a duty to exercise good faith in attempting to relet the premises, and any rent received by the landlord as a result of the reletting must be deducted from the balance of rent due from the tenant. For purposes of this subsection, the term “good faith in attempting to relet the premises” means that the landlord uses at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the landlord uses in attempting to rent other similar rental units but does not require the landlord to give a preference in renting the premises over other vacant dwelling units that the landlord owns or has the responsibility to rent;
(3) Stand by and do nothing, holding the lessee liable for the rent as it comes due; or(4) Charge liquidated damages, as provided in the rental agreement, or an early termination fee to the tenant if the landlord and tenant have agreed to liquidated damages or an early termination fee, if the amount does not exceed 2 months’ rent, and if, in the case of an early termination fee, the tenant is required to give no more than 60 days’ notice, as provided in the rental agreement, prior to the proposed date of early termination. This remedy is available only if the tenant and the landlord, at the time the rental agreement was made, indicated acceptance of liquidated damages or an early termination fee. The tenant must indicate acceptance of liquidated damages or an early termination fee by signing a separate addendum to the rental agreement containing a provision in substantially the following form:
☐ I agree, as provided in the rental agreement, to pay $ (an amount that does not exceed 2 months’ rent) as liquidated damages or an early termination fee if I elect to terminate the rental agreement, and the landlord waives the right to seek additional rent beyond the month in which the landlord retakes possession.
☐ I do not agree to liquidated damages or an early termination fee, and I acknowledge that the landlord may seek damages as provided by law.
(a) In addition to liquidated damages or an early termination fee, the landlord is entitled to the rent and other charges accrued through the end of the month in which the landlord retakes possession of the dwelling unit and charges for damages to the dwelling unit.(b) This subsection does not apply if the breach is failure to give notice as provided in s. 83.575.
The Bottom Line
The law is clear. Florida landlords have Florida Statute 83 Part II, “Florida Residential Landlord and Tenant Act,” as their guide to the rights and responsibilities of tenants and landlords with respect to each other. That said, an old saying among legal scholars goes something like this, “The person choosing to represent himself in court has a fool for a client.” In other words, don’t take actions based on a blog post. Use this information as a starting point for self-education and discussion with your personal attorney. Remember:
- Always consult your attorney.
- I am not your attorney.
Good luck to you!
About The Author
John Michailidis, JD, is an attorney, author, real estate educator, and the broker/owner of Real Property Management of Sarasota & Manatee, a Sarasota, FL based residential property management company providing both Full-service and Lease-Only services to local area landlords. If you own residential investment real estate anywhere in Manatee and/or Sarasota counties, do feel free to reach out to our team at 941-216-0005, or through our website HERE.