A lease agreement is an understanding between the landlord and the tenant as to the terms of the arrangement whereby a landlord will rent property to a tenant in exchange for consideration, normally in the form of a monetary lease payment. The essential terms must be in agreement; the amount of rent, how often rent will be payable, etc.. However, not everything related to a lease agreement needs to be spelled out between the landlord and tenant in order to create a binding rental agreement. A lease agreement can be month-to-month, week-to-week, and longer or shorter. Lease agreements can be in writing or oral.
Generally, a lease is an agreement for a tenant to have possession and use of real property in exchange for giving consideration, usually money, to a landlord who owns the property. Parties can enter into leases for many reasons:
- Lease of commercial office space
- Rent of an apartment unit
- Rent a single family house
- Lease space for a restaurant
- Rent a unit in a strip mall or shopping center
- Lease mining rights to dig for minerals or precious metals
- Oil leasing rights to exploit oil wells
A lease may be oral or written. However, unique provisions of oral leases are rarely enforced by the courts, other than terms such as the monthly rental amount and property location.
It is not required for a lease agreement to be in writing to be binding. Oral lease agreements, provided there is a mutual understanding as to essential terms and it does not fall under some of the exceptions which require a written lease contract, are enforceable. However, it is not advisable as misunderstandings and disagreements can easily arise. Even a short lease agreement covering the essential terms as well as setting forth other matters can, in the long run, provide great assistance to a Landlord. For example, and not as an exhaustive list, the written lease contract can establish which persons may live in the residence, establish under what terms a tenant has a pet in the residence [including how much of a pet deposit is required], and that if the landlord has to enforce the lease terms in any way, the landlord can recover attorneys fees and costs. It is also appropriate to have two witnesses to the lease contract. There are Florida laws governing essential specific issues related to this topic, thus, this information is not a substitute to your reviewing applicable law and getting specific legal advice on particular issues. You can review many of the applicable Florida Statutes related to residential landlord/tenant lease arrangements as well as eviction matters. These statutes are available at our website at the links below.
As set forth above, it is not required for a lease agreement to be in writing to be binding. Oral lease agreements, provided there is a mutual understanding as to essential terms and it does not fall under some of the exceptions which require a written lease contract, are enforceable. However, it is not advisable as misunderstandings and disagreements can easily arise. Also, the Florida laws for landlord/tenants govern many situations, however, at times, the lease agreement will control over the applicable Florida statute. Thus, it is more clear to have a written lease to help clarify the terms and conditions. There are Florida laws governing essential specific issues related to this topic, thus, this information is not a substitute to your reviewing applicable law and getting specific legal advice on this issue.
LEASE TERM PERIOD – WHEN NOTICE OF TERMINATION OF LEASE MUST BE GIVEN TO A TENANT [FSA 83.46, 83.57 & 83.575]
A lease agreement terminates at the end of the time period of the agreed upon rental period. However, where a tenant continues to stay in the leased property and the Landlord agrees to the continuation, then the tenancy continues and the tenant(s) remain obligated to pay rent. Many lease agreements provide that after the initial lease term expires, then the lease period continues month to month, until terminated by either the Landlord or the tenant.
Where there is no agreement upon the duration of the rental period, including after termination of the initial rental period, and a tenancy continues at the agreement of the Landlord and the tenant, then the rental period is deemed to be the same period as that which rental payments are made. So if rental payments are made monthly, then the lease term is deemed monthly. If rental payments are made weekly, then the lease term is for one week at a time.
Florida law provides that a lease agreement can require a tenant to give a landlord at least 60 days advance notice of the tenant’s desire to terminate the lease at the end of the lease term. If a tenant remains on the leased property with the Landlord’s permission, then rent is due monthly.
Where a tenancy is from year to year, then either the Landlord or the tenant can terminate the lease by giving the other party at least 60 days advance notice. If the rental period is from month to month, then either party can terminate the lease by giving the other at least 15 days advance notice, unless the lease requires more time.
If the Landlord decides not to continue to lease the leased property to the tenant(s) after the lease term expires, then the Landlord should serve the tenant(s) with a Notice of Non-renewal. The form should be completed fully, and duly delivered to the tenant(s). See the Eviction Law Firm’s Help Center for forms and instructions.
The landlord can establish policies and rules for tenants to follow. It is advisable to provide the tenant with a written set of these rules and have them sign it and the Landlord retain a copy of it as proof that the tenant was made aware of the policies and rules. At a minimum, a landlord should post a notice stating what the policies and rules are. For example, they can be posted on a sign by a pool setting forth important safety and precautions for tenants and their guests. Or a landlord can pass around written memos to tenants of any changes or additions to the policies and rules. However, these policies and rules should not be a substitute for the terms of the lease agreement. They should serve more as a guide for tenants to understand that living or operating a business at the Landlord’s property requires compliance with standards and norms set forth by the Landlord. They also help ensure that a tenant does not take some action which interferes with other tenants’ right to peacefully enjoy their leased property, without interference by other rule-breaking tenants. The written lease agreement should include language that the tenant agrees to comply with all of the policies and rules, as amended or added, established by the Landlord. If a tenant violates a rule or policy established, or even a term of the lease agreement other then failing to pay rent, then a Landlord may decide to curtail such conduct and provide the tenant with notice to cure the violation. Doing so also sets the stage for a possible eviction of the rule-breaking tenant if the wrongful conduct does not stop. A Landlord may serve notices of violations and defaults on the tenant, however, before an eviction is properly commenced, one of the legally required notices must first be properly served on the tenant. There are Florida laws governing essential specific issues related to this topic, thus, this information is not a substitute to your reviewing applicable law and getting specific legal advice on this issue.
If the violation of the lease (other then non-payment of rent), policies or rules is something which the tenant is able to remedy such as by ceasing such conduct [e.g., removing an un-permitted pet, parking their vehicle in the commercial loading zone, removing garbage lying in front of a doorway, or not allowing their children to do cannon-balls into the shallow end of the community pool], then a 7 day notice to cure is the proper procedure for a Landlord to follow. It will be up to the Landlord to decide if the violation is one that can be cured or not. However, a rule of thumb is that if the tenant’s violation is against the law, then it is usually a violation which the Landlord can deem is not able to be cured. The 7 day notice to cure is a basic form, but it is important it be completed correctly, and duly served upon the tenant. In the event a tenant fails to cure the defect within the 7 days, or the conduct is repeated within a 12 month period, then the Landlord may terminate the lease agreement within 7 days, or if the Tenant originally cured the defect but committed it again within the 12 month period, then the Landlord shall post a notice to the tenant advising the tenant that the lease agreement is terminated and they must vacate the rental property within 7 days (7 day Notice to Vacate). In the event the tenant fails to vacate, then the Landlord must initiate eviction proceedings to remove the tenant. It is important to be as precise as possible in the 7 Day Notice to Cure so as to state what provisions of the lease agreement, rental property rules and/or Florida law are being violated. Weekends and holidays are included in the calculation of the 7 days. Please visit the Eviction Law Firm’s Help Center for more specific forms and instructions.
[FSA 83.56(2)(a)] (Not Including Failure to Pay Rent)
If the violation of the lease agreement (other then non-payment of rent), policies or rules is something which the tenant is not able to remedy [e.g., intentionally causing damage to the rental property or causing material disturbance to other tenants], or if the tenant was served with a 7 Day Notice to Cure within the previous 12 month period as to the same issue, then the Landlord shall serve the tenant with a 7 day Notice of Termination of Lease. It will be up to the Landlord to decide if the violation is one that cannot be cured. The 7 Day Notice of Terminate of Lease is a basic form, but it is important it be completed correctly, and duly provided to the tenant. The tenant will then have 7 days to vacate the rental property. If the tenant fails to vacate, then the Landlord must initiate eviction proceedings to remove the tenant. It is important to be as precise as possible in the 7 Day Notice to Cure so as to state what provisions of the lease agreement, rental property rules and/or Florida law are being violated. Weekends and holidays are included in calculation of the 7 days. Please visit the Eviction Law Firm’s Help Center for more specific forms and instructions.
If the tenant fails to pay rent when due, then the Landlord shall provide the tenant with a notice advising the tenant that rent must be paid within 3 days otherwise, the tenant will be evicted; the 3 Days Notice to Pay or Vacate. The 3 Days Notice to Pay or Vacate is a basic form, but it is important it be completed correctly, and duly provided to the tenant. If the tenant fails to make the payment within the 3 days, then the Landlord must start eviction proceedings to remove the tenant. Please visit the Eviction Law Firm’s Help Center for more specific forms and instructions.
The 3 Day Notice to Pay or Vacate has 3 main components, and they must be completed correctly. The first is the insertion of the tenant or tenants names and address. Make sure to list all of the tenants occupying the subject rental property. Even if only one person signed the lease but more are occupying the rental property, list everyone. As a catch-all, a Landlord can use the phrase “and all others in possession” after the name of the last person occupying the rental property. Second, the amount of rent due, as well as past due from a prior month or months as of the date of the delivery of the notice must be stated. If the lease agreement explicitly includes things like late fees and extra parking spaces as additional rent, then include it in the amount of rent due. Third, include the address of the subject rental property. Fourth, state the date when the 3 day notice expires, but skip the day you post or deliver the Notice, as well as skip Saturdays, Sundays and legal holidays. Visit the Eviction Law Firm’s Help Center for a calendar of the different Courts’ Holiday Schedules. Fifth, indicate the name, address and telephone number of the Landlord. It is advisable to state the method of the delivery of the 3 day notice as Florida law specifically states how the notice is to be given as stated in the sections that follow. Please visit the Eviction Law Firm’s Help Center for more specific forms and instructions.
[FSA 83.56(4)] The 7 Day Notice to Cure, 7 Day Notice of Termination of Lease, 3 Day Notice to Pay or Vacate, and the Notice of Non-Renewal of Lease must be served upon the tenant. Service upon the tenant can be accomplished in one of several ways. Unless the written lease specifically requires a certain method, an actual copy of the notice can be mailed to the tenant using the regular U.S. postal service, hand delivered to the tenant, or if the tenant is not present, the landlord can leave a copy of the notice at the residence in an obvious place. It is a good idea to state on the bottom of the notice form the method used and when it was done, as we have provided in the “Proof of Service” section of our sample Notice. The best method to use is to personally deliver the notice to the tenant or post the notice to the front door. Please visit the Eviction Law Firm’s Help Center for more specific forms and instructions.
[FSA 83.64 & FSA 83.67] Florida law prohibits Landlords from taking wrongful actions (not including legitimate lawsuits) against a tenant. Wrongful actions mean, generally, if a tenant is not paying rent or is violating provisions of the leased property rules, a landlord may not (in addition to other things the landlord may not do) terminate utility services, restrict a tenant’s access to the rental property, or remove the front door or remove a tenant’s belongings from the rental property, except as allowed pursuant to a lawful eviction. Harsh and expensive penalties can be assessed against landlords that violate these laws. The proper process to remove a tenant is for a landlord to legally evict a tenant by following Florida’s residential tenant eviction laws, which may include hiring a law firm to perform eviction proceedings.
After the applicable properly completed Eviction Notice is duly served upon a tenant by the landlord, the next step is to file a complaint for eviction. A process server “serves” the tenant with the eviction complaint. Service by the process server is accomplished by either personally giving the tenant the Summons and Complaint for Eviction, or by going to the leased premises at least twice, at least six hours apart, and then posting the Summons and Complaint for Eviction at the leased premises. The tenant then has 5 business days to respond to the complaint. In the majority of cases (in this author’s opinion), tenants do not respond to the complaint. If no timely response to the complaint is filed with the clerk of the court in which the lawsuit is pending, then the clerk of the court, after due written request, enters default judgment against the tenant. Then, again after due and proper written motion, the judge enters a final judgment for eviction. The written request is then made to the clerk of the court to issue a writ of possession. The final judgment and writ of possession are the legal documents which grant “legal possession” of the rental property back to the landlord. Under Florida law, eviction lawsuits are to be expedited on the judge’s calendar, yet it is up to the landlord (and the landlord’s eviction attorney) to ensure the eviction case is accelerated accordingly. However, the above process can be altered depending on what, if anything, a tenant files with the clerk of the court in the eviction lawsuit. Please see the following sections which address ways a tenant can stall or challenge the eviction. If any such challenge is made, it will be up to the landlord (and the landlord’s eviction attorney) to strike or otherwise properly and timely get past the challenges brought by the tenant in order to proceed to the final judgment and writ of possession.
As set forth above, in many tenant evictions (at the opinion of this author), the tenant does not challenge (fight) the eviction lawsuit. However, a tenant has the right to do so. Some challenges can stall or delay the eviction, and others can not. Yet only in certain circumstances can the tenant cause a significant delay in his/her eviction.
A tenant can file with the clerk of court any number of written defenses to an eviction. Such defenses can include that the landlord failed to comply with the lease agreement and the tenant is therefore entitled to a setoff of the amount of rent due, to a tenant’s claim that the amount of rent claimed owed in the complaint is incorrect. However, under such circumstances, the tenant under eviction must deposit into the registry of the court that amount of money allegedly owed to the landlord as stated in the complaint or as the judge in the case determines.
[FSA 83.60(2)] If a tenant under eviction files a motion to determine rent, along with documentation which describes the amount of rent the tenant believes is owed, then the court must set the motion for hearing in order to determine the amount of rent owed. After the court’s ruling, the tenant will be required to deposit into the registry of the court that amount of rent the court deems is owed. Thereafter, the lawsuit continues, and the landlord can continue to seek repossession of the rental property. If the tenant does not deposit the rent into the court registry, then the judge will enter a judgment for eviction against the tenant.
The bankruptcy laws use to protect tenants much more than they do under the recent changes of the bankruptcy code. Therefore, evictions of tenants who have filed for bankruptcy are much more likely. The explanation and steps to manage such a scenario are beyond the scope of this eviction information. The Eviction Law Firm is pleased to provide landlords experiencing tenants filing for bankruptcy with additional supplemental information.
2. Challenges to the 3 or 7 Day Notice
A tenant has the right to challenge the accuracy of the 3 or 7 day eviction notice. Challenges may include a defect in the format or in the amount of money demanded. Either way, an error could result in a considerable time delay in removing tenants under eviction. Care must be taken to accurately complete the notice, and duly deliver it to the tenant.
3. Members of the Armed Forces [FSA 83.682]
A member of the military that receives orders which require a relocation beyond 35 miles, discharge from the military, a release from active duty, as well as other orders from superiors which effect the service-member can be grounds for a termination of the lease agreement at the option of the service-member.
4. Other Miscellaneous Motions or Filings by Tenants
All other motions and papers that a tenant files with the clerk without paying the required sums into the registry of the court are subject to being struck upon due and proper motion by the landlord (and the landlord’s attorney). Thereafter, default can be entered against the tenant, and the case can continue to the final judgment and entry of the writ of possession.
A tenant could challenge the landlord’s right to proceed with an eviction by claiming that the landlord failed to comply with the lease agreement or Florida law. [FSA 83.56(1) & FSA 83.64(2)]. However, a tenant must provide the landlord with a proper notice to cure any such defects.
If a tenant is violating the terms of the lease agreement, whether due to nonpayment of rent or otherwise, a landlord and tenant can freely agree to resolve their differences by mutually agreeing to terminate the rental agreement and agree upon any payment terms, or if the eviction lawsuit has already commenced, by entering into a settlement stipulation agreement. It is also possible that the judge will order the landlord and tenant to attend mediation to attempt to resolve their differences. Mediation is non-binding and does not require the parties to settle their differences. A settlement stipulation after the eviction case begins can either be an agreement for the tenant to vacate the leased premises by a certain date, or for the tenant to remain in the premises provided agreed upon payments are made by the tenant. Benefits to the tenant include that there would not be an eviction on their record, they do not have to worry about when the sheriff will be there to throw out their belongings, and there is the opportunity that the landlord will not seek any money from the tenant for the unpaid sums.
In most settlement stipulation, including the settlement stipulations the Eviction Law Firm uses, in the event the tenant(s) violates the terms of the settlement, then an affidavit of noncompliance has to be completed by the Landlord and delivered to the court or the Eviction Law Firm will submit it on behalf of the landlord after receiving written confirmation of the tenant’s settlement breach. The affidavit along with other court papers are delivered to the Court and the eviction is proceeded with to final judgment for eviction.
[FSA 83.62 & FSA 713.691] The Sheriff in the county where the property is located is responsible for executing the Writ of Possession. Executing the writ means that the Sheriff sets a day and time to go the evicted tenant’s rental property and to make sure the evicted tenant(s) leave the property. The Sheriff goes to the rental property first to post a notice conspicuously located that states that the landlord will be placed in possession of the rental property, and the evicted tenant removed after 24 hours. After the 24 hours are up, the Sheriff will return to the rental property, though not necessarily on the 24th or even the 25th hour, but rather it may be several days later. A locksmith or other person must be present as coordinated by the landlord, when the Sheriff returns to unlock the door, and if wanted by the landlord, to change the locks. Then the Sheriff removes the evicted tenant(s). If the evicted tenant(s) has personal belongings still in the property, then the landlord can either leave the belongings in the rental property, or remove the belongings to the property line – the Eviction Law Firm suggests that the tenant’s belongings should be removed to the property line as a better course of action. The landlord must have the a locksmith present to unlock the door for the Sheriff. The landlord must also have someone present at the time the Sheriff arrives for the removal to help take the removed tenant’s belongings out of the rental property and place it on the property line. A better approach is to remove the tenant’s belongings to the property line when the Sheriff is present, as under Florida law, the landlord is not liable to the landlord for any loss or damage to the removed property after the Sheriff Removal is completed. However, a landlord is entitled to a lien upon any personal property remaining in the rental property after the Sheriff’s removal. See additional laws related to this topic.
[FSA 83.56(5)] A Landlord may not accept rent from the tenant once an eviction proceeding has started, otherwise the landlord automatically waives the right to proceed with eviction based on non-payment of the rent then paid. If a tenant under eviction attempts to make payment or slides the rent check under the Landlord’s door, then it must be returned promptly to the tenant if the Landlord wants to continue with the eviction process of this tenant. If the landlord accepts rent after the Notice to Pay Rent or Vacate is served, them the Eviction Notice is automatically deemed waived, and to proceed with an eviction, the landlord would need to serve the tenant with a new Notice to Pay Rent or Vacate.
The following is general information on Florida evictions, however, it may not be accurate to your particular circumstance, and it should not be used as a substitute to receiving competent legal advice from an attorney.
Unless a tenant surrenders the rental property to the landlord or has abandoned the property, the only other way for a landlord to get back “legal possession” and “physical possession” of the leased premises is by eviction proceedings (an eviction lawsuit). The laws applicable to evicting residential tenants is basically the same regardless whether the rental property is a house, condominium or apartment in a rental community. Likewise, in commercial evictions (where the leased property involves a business rather than a residence) the procedures are nearly the same whether the rental property is a suite of an office building, a unit in a strip mall, or a standalone location. The proceedings involve filing a lawsuit for eviction in the County in which the leased property is located. The following provides information in furtherance of this process. The information herein should be used solely as a guide and is not intended to be considered the rendering of legal advice.