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Withholding rent payment not a good idea

January 3, 2014
By SYLVIA HELDRETH (Real Estate Law) , Cape Coral Daily Breeze

QUESTION: My sister lives in a rented house and her landlord doesn't keep up with the repairs. One of her light fixtures has been broken for months and the toilet leaks. I've told her that she should stop paying rent but she heard that an approach like that could cause trouble, even eviction and very quickly. Is she right?

ANSWER: The most common reason that a tenant is evicted is because they have stopped paying rent. This process can move very quickly because it begins with a three-day notice. So your sister is correct in that she needs to be cautious.

The speed of eviction is based upon the Florida Residential Landlord Tenant Act which was written to balance the landlord's need for an immediate eviction with the rights of the tenants and their claims against the landlord. The statutes that relate to this act provide the technical requirements for the eviction process, including the language of the needed documents and the requirements for a tenant who has a complaint.

The most common reason that a tenant does not pay the rent is that the tenant does not have the money to do so. Some of these tenants use the excuse that there is some problem with their rental unit and that the landlord has been remiss in fixing the problem. To protect landlords from what might be a false or exaggerated claim about a deficiency in the rental unit, Section 83.60 of Florida Statutes requires that the tenant deposit all of the unpaid rent into the Registry of court and that the tenant must pay the rent into the Registry until the conflict is resolved. This serves to eliminate tenants who are trying to prolong the eviction process and stay in their unit without paying rent. The eviction notice explains this process.

If the tenant is uncertain about the amount of rent to deposit, they may file a motion to ask the judge to determine the amount. This motion must be supported by documents that support the allegation that the amount listed as due is incorrect.

If the tenant does not pay rent into the Registry, they also lose the right to use technical requirements as a defense against the eviction, including claiming a defect in the three-day notice, a problem with the service of the summons and/or failure to attach items to the complaint.

If you sister does want to withhold rent, she should serve her landlord a written notice specifying the non-compliance and indicating her intention to withhold rent but this must be given at least seven days before the rent is withheld. If the rent is withheld before the notice, she will have serious difficulty.

Attorney Sylvia Heldreth is a certified specialist in real estate law. Her office is located at 1215 Miramar St., in Cape Coral.

This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.



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