Tenant Defenses to Eviction Notices in Florida

Each state has a set of laws that govern when and how a landlord can evict a tenant. A tenant can be evicted for not paying rent or for violating the lease or rental agreement. Sometimes a tenant may have good reasons (legal grounds) to fight against an eviction. This article will explain how and when a tenant may choose to defend against an eviction in Florida.

Eviction Notices and Evictions in Florida

In Florida, eviction procedures are governed by Chapter 83 of the Florida state landlord-tenant statutes. Landlords must follow the procedures contained within these statutes when evicting a tenant for not paying rent on time or for violating a portion of the lease or rental agreement.

Evictions for Nonpayment of Rent

A landlord who evicts a tenant for not paying rent in Florida must give the tenant a three-day notice to vacate for failure to pay rent, or a notice similarly named. This notice gives the tenant three days to either pay the rent or leave the rental unit. For details, see the Nolo article Eviction Notices for Nonpayment of Rent in Florida, and Florida statutes covering termination of rental agreement: Fla. Stat. Ann. § 83.56(3).

Evictions for Lease Violation

If the tenant is being evicted for violating a portion of the lease agreement, such as having pets when none are allowed, then the landlord must give the tenant a seven-day notice to vacate, or a notice similarly named. In this case, the tenant then has seven days to move out of the rental units, also under Chapter 83 or Florida statutes covering terminations:in this case, Fla. Stat. Ann. § 83.56(2).

Court Role in Evictions

If the tenant chooses to fight the eviction and does not move out within the specified time period, then the landlord will typically file a complaint at the courthouse in the county where the rental property is located. The court will then set a hearing date for both the landlord and the tenant to attend (see Fla. Stat. Ann. § 83.59(2)). Once the tenant receives the landlord's complaint, the tenant will have five days to file an answer with the court. The tenant will provide all the defenses to the eviction within the answer. At the hearing, the judge will decide whether the tenant should be evicted, based on the landlord's complaint and the tenant's answer. (See the "Summary procedure section of Florida statutes: Fla. Stat. Ann. § 51.011(1).)

For more information on how to respond to an eviction notice, see the "Help! I Just Got a 3-Day Notice!" brochure published at FloridaLawHelp.org.

Does It Make Sense to Fight an Eviction?

Fighting an eviction can cost a tenant time and money and is only worth it if the tenant has a solid defense. A tenant who loses an eviction case could end up paying the landlord's court costs and attorneys' fees and receive a negative credit rating. A tenant who needs only a few more days in the rental unit before moving out should try to reach an agreement with the landlord outside the court system. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website mediate. com and the American Arbitration Association. The mediation faqs on the Nolo site provide more information on the subject.

Tenant Defenses for Challenging an Eviction in Florida

There are several defenses available to tenants for fighting an eviction. Here are some of the legal grounds available to tenants who want to stop an eviction in Florida.

Landlord Used "Self-Help" Eviction Procedures

A landlord must not engage in "self-help" eviction procedures, such as forcing a tenant to leave a rental unit by such means as shutting off the utilities to the rental unit or changing the locks on the doors. A landlord who does any of these prohibited actions could end up paying the tenant damages worth up to three months' rent (under "prohibited practices" section of Florida laws: Fla. Stat. Ann. § 83.67). See the Nolo article Illegal Eviction Procedures in Florida for more information.

Landlord's Eviction Notice and/or Service to the Tenant Had Errors

Landlords in Florida must follow very specific guidelines when creating and delivering eviction notices to tenants. For example, if an eviction notice does not have essential information like the date the tenant must be out of the rental unit, then the eviction notice will be considered defective. The landlord must then fix the error and send the eviction notice to the tenant again before the appropriate time period starts running for the tenant to move out. For more information on how and when eviction notices must be given to tenants, see the Nolo article Eviction Notices for Nonpayment of Rent in Florida.

This defense will not stop an eviction completely if the landlord is justified in evicting the tenant: It will merely give the tenant more time to live in the rental unit before being evicted.

Landlord Does Not Have the Legal Justification to Evict (Nonpayment of Rent)

There may be several defenses available to a tenant to challenge an eviction for nonpayment of rent.

Tenant Has Paid Late Rent In Full

If a tenant receives a three-day notice to vacate for failure to pay rent and pays rent in full during the three-day time period, then the landlord cannot proceed with the eviction (see Fla. Stat. Ann. § 83.56(3)). If the landlord proceeds with the eviction anyway, the tenant can use the payment of rent as a defense.

Tenant Has Not Paid Rent Because Landlord Has Failed to Maintain The Rental Unit Premises

Under the Florida state landlord-tenant statutes, a landlord has an obligation to comply with all Florida building codes and health codes. If there is not an applicable building, housing, or health code, then the landlord has an obligation to keep the structure and plumbing of the rental unit in good repair. If the landlord fails to follow the applicable codes or keep the rental unit in good repair, then the tenant must notify the landlord in writing of the defect and of the tenant's intent to not pay rent. The tenant must give the landlord seven days to fix the defect. If the landlord does not fix the defect within seven days of receiving the notice, the tenant is then justified in not paying rent. The landlord's failure to fix the defect can be a complete defense to the eviction lawsuit, meaning the landlord will lose the case (see Fla. Stat. Ann. § 83.60(1)).

For more information, see the Nolo articles Florida Tenant Rights to Withhold Rent and Tenant Rights to a Livable Place.

Landlord Does Not Have the Legal Justification to Evict (Lease Violation)

If a tenant is violating a portion of the lease or rental agreement, the landlord must give the tenant an opportunity to fix the violation, if possible, before proceeding with an eviction lawsuit. Some examples of violations that the landlord must give the tenant the opportunity to fix include having unauthorized pets, guests, or vehicles; parking in an unauthorized area; or failing to keep the rental unit clean and sanitary. The tenant must be given up to seven days to fix the violation. If the tenant fixes the violation within the seven days, the landlord must not proceed with the eviction. If the landlord proceeds with the eviction even after the tenant fixed the violation, the tenant can use the fact that the violation was fixed within the time period as a defense to the eviction (see Fla. Stat. Ann. § 83.56(2)(b)).

If a landlord falsely accuses a tenant of a violating a portion of the lease agreement (for example, a storm damaged the front gate), then the tenant must provide proof that the lease violation was outside the tenant's control or was not caused by the tenant.

Landlord Is Retaliating Against the Tenant

A landlord cannot evict a tenant in Florida in retaliation of certain acts the tenant may have committed in good faith. According to Fla. Stat. Ann. § 83.64, these acts include, but are not limited to:

• the tenant complaining to a government agency that the landlord violated a building, housing, or health code
• the tenant participating in or organizing a tenants' organization
• the tenant complaining to the landlord for not maintaining the rental unit, or
• the tenant terminating the rental agreement because the tenant has been called to active duty in the military (see Fla. Stat. Ann. § 83.682).

If the landlord proceeds with an eviction lawsuit after the tenant exercises one of the rights listed above, then the tenant may be able to use retaliation as a defense to the eviction lawsuit. See the Nolo article Florida State Laws Prohibiting Landlord Retaliation for more information.

Landlord Evicts the Tenant Based on Discrimination

Both the federal Fair Housing Act and the Florida Fair Housing Act make it illegal for a landlord to discriminate against a tenant based on race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. A landlord cannot evict a tenant based on any of these characteristics. If a landlord does evict a tenant in violation of the federal Fair Housing act or the Florida Fair Housing Act, the tenant can use that discrimination as a defense against the eviction. See the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.

Paying Rent During Eviction Lawsuit

Unless the tenant is challenging the eviction based on not paying rent, the tenant must continue to pay rent during the eviction proceedings. The tenant will not pay rent to the landlord, however, but to the court registry. If the tenant does not continue to pay rent during the eviction proceedings, then the landlord will automatically win the eviction case and the tenant will be evicted (see Fla. Stat. Ann. § 83.60(2)).

Tenant Resources for Fighting an Eviction in Florida

For useful articles on evictions in Florida, see the resources available on FloridaLawHelp.org, a program maintained by Florida Legal Services. Tenants who live in federally assisted housing should also check out the tenant resource page at HUD.gov.

Check Out Your Specific Florida County Court Website

It is important for tenants to understand how their particular county courthouse operates in order to fight an eviction. To find information on your county courthouse, visit the court locator maintained by the Florida court system. Some court websites will also provide helpful forms and links, such as the Miami-Dade County Court or the Hillsborough County Court.

When to Hire an Experienced Tenants' Lawyer

If your case is complicated or the landlord has already retained a lawyer, you should probably also contact a lawyer—either to handle the whole case, or to give you advice on how to proceed. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and if your lease or rental agreement entitles you to attorney fees if you win in court.

For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Attorney.

Also check out Nolo's Lawyer Directory for Florida lawyers who specialize in landlord-tenant law.

If you qualify for legal aid you may be able to get some help. See Florida Legal Services for more information on resources available in Florida.

More Information on Evictions and Terminations

For more articles on the subject, see the Evictions and Terminations section of Nolo.com. If you want to learn about how tenant bankruptcy affects an eviction, see the Nolo article Bankrupt Tenants.

For more information on tenant rights, see Every Tenant's Legal Guide, by Janet Portman and Marcia Stewart (Nolo).