Among the more common legal issues that people handle on their own without an attorney are those involving relationships between landlords and tenants. Landlords don’t always keep their promises or comply with various laws concerning maintaining the properties they rent to tenants, and tenants don’t always keep their promises to pay rent and keep the premises in reasonably good condition.
Where should landlords and tenants look for their respective rights and obligations?
- The written lease agreement
- The state statutes or legislative code (find your state’s landlord-tenant laws here)
- Local (county or municipal) codes and ordinances (municode.com is a great resource)
When conflicts develop between landlords and tenants, landlords often seek to evict tenants, sometimes for proper reasons (nonpayment of rent) and sometimes for improper reasons (such as retaliation against a tenant who reported the landlord to a local authority for failure to keep an apartment vermin-free).
When tenants decide to resist eviction and defend lawsuits brought against them, they must take care to follow the law precisely. A misstep could lead to the loss of defenses and quick repossession of the premises by the landlord.
Miami attorneys Miguel Chamorro and Christopher Berga recently did a great job explaining what some of these missteps look like in Florida and how disastrous they can be for tenants who have otherwise solid defenses against eviction actions. Their article, “No Rachmones: The Dynamics of Florida’s Pay-to-Play Eviction Litigation,” was published in the September-October 2015 issue of the Florida Bar Journal. Although they wrote their article with other Florida attorneys in mind, there is a lot of great information in it that pro se litigants can use. And if you’re not in Florida, you can use the information published in the article to research and look for similarities in the laws in your state (see our table of resources by state).
Chapter 83 of the Florida Statutes contain the landlord-tenant codes. Part I concerns commercial and other nonresidential tenancies (i.e., any tenancies not covered by Part II), while Part II concerns residential tenancies and is known as the Florida Residential Landlord and Tenant Act. There is a Part III, concerning rentals of self-storage spaces, but we are not discussing that in this post.
Written into Parts I and II are some of the procedures to follow early in those eviction actions in which tenants wish to retain possession of the leased premises while the litigation plays out. To retain possession, tenants must pay some rent, usually in accordance with a court order, and sometimes into the registry of the court. The amount of the rent to be paid can either be agreed upon between the landlord and tenant and then written into an order that the judge signs, or, if the amount is in dispute (e.g., if some portion of the leased premises is uninhabitable and the tenant believes the rent should be reduced accordingly), the judge can determine or set the amount after a hearing.
So, the judge will sign an order that states the amount of rent that is to be paid, the manner in which it is to be paid, and the due dates for the payments. These orders are called “pay to play” because tenants must pay money in compliance with these orders to maintain their rights to defend against the eviction actions.
Chamorro and Berga explain that §83.232 of the Florida Statutes (concerning commercial and other nonresidential tenancies) and §83.60(2) of the Florida Statutes (concerning residential tenancies) “were enacted to prevent delinquent tenants from unjustly enriching themselves at their landlord’s expense by occupying the premises rent-free while their landlord sues to evict them.” This makes sense. It is a just and fair goal.
But what happens if a defending tenant does his or her very best but is somehow unable to make a rent payment by the date in the court order? A lease agreement might very well include some sort of grace period of a day or two. Does a similar grace period exist in the court orders?
Let’s imagine Tom is an apartment tenant who is defending himself against what he believes is a wrongful eviction action brought by his landlord. The judge had entered an order earlier in the case requiring Tom to deposit his rent payments into the court registry on or before the first day of every month. For the past four months, Tom has driven to the courthouse on the last day of each month – the day before the payment is due – to personally make the payment so there is no question. Today is no exception. But as Tom drives to the courthouse, another driver runs a red light and collides with Tom’s car. Tom is injured and is taken to the hospital. Thankfully, his injuries aren’t severe and Tom is released two days later. He goes straight to the courthouse to pay his rent, which is now one day late. Certainly the judge will understand and won’t toss Tom out of his home, right?
Let’s go to the article and find the answer.
As you read the article, do your best to wade through the thick legal lingo and try to pick up as much as you can because the authors include a lot of solid points throughout. And then when you get to it, really focus on the section called, “Practical Considerations for the Tenant.” Here are some points:
- “…[T]he statutes require tenants to deposit the amount of rent demanded in the complaint [for eviction] within five days of being served with process or as soon as they answer the complaint ….”
- Or, if the tenant disagrees with the amount of rent being demanded in the eviction complaint, she “can contest and seek to establish the amount due” in a court hearing.
- The tenant also must be ready to pay any past-due rent and any other money that is due to be paid to the landlord.
- The tenant should be prepared to pay rent, and any other outstanding amounts due, on the same day as the hearing. Being prepared to pay rent includes becoming familiar with the clerk’s payment preferences, including, for example, whether personal checks are accepted.
- Finally, and most importantly, the tenant “should make all payments well in advance of any court-ordered deadline to account for the unexpected.”
The last point brings us back to Tom. The article authors make it abundantly clear that Florida courts have no discretion to consider the circumstances surrounding why a tenant was late making a payment. The only things the judge can even look at are (1) the “pay to play” order, and (2) whether the payment was late according to that order.
Although the judge may very well understand Tom’s predicament and his intention to pay the rent on time, the judge actually will have no discretion under the law to allow for any exception. Tom’s landlord has all the power to decide whether to evict Tom and take possession of the apartment.
What could Tom have done to prevent this result? He could have planned to pay his rent into the court registry with a larger buffer of time to allow for unanticipated problems. He also could have had a backup plan, such as a friend or a family member who could step up and make the payment for Tom in Tom’s absence.
If Tom’s landlord does choose to have Tom evicted immediately, Tom likely will have no recourse against the landlord, but he might have a claim for damages stemming from the eviction against the driver who hit Tom’s car. Tom should consult with an attorney who can assess Tom’s situation.
Have you had an experience representing yourself in court, either as a landlord or tenant? If so, please share your story below.