Leases for residential real property are governed by Florida Statute Sections 83.40 through 83.682; leases for commercial real property are governed by Sections 83.001 through 83.251.  In addition to these statutory requirements, landlords and tenants must understand their rights and obligations under their written lease agreement.  The focus of this post is landlords’ and tenants’ rights and obligations, under residential and commercial leases, to maintain the leased property.

Any good written lease agreement should have specific provisions pertaining to maintaining and repairing the property, and the party responsible for same.  Indeed, section 83.51 of the Florida Statutes provides that landlords have specific areas of the property that they must maintain (unless altered by the written lease agreement).  Section 83.52 of the Florida Statutes provides for certain tenant obligations in maintaining the residential property.  For commercial leases, the Florida Statutes do not specify the same maintenance/repair requirements as with residential leases.  Many commercial leases, however, are “triple net.”  Under a triple net lease, the tenant is obligated to pay all taxes, insurance and cost of maintenance on the leased premises.  E.F. v. The State of Florida, 795 So. 2d 232 (Fla. 3d DCA 2001).  Even in those types of commercial leases, the lease agreement will often include some obligations for landlords to make repairs and maintain certain portions of the property.

If the landlord or tenant fails to maintain or make certain repairs to the leased property, the failure may be considered a material breach of the lease agreement.  If the landlord fails to make necessary repairs and maintain the property, the tenant may, under certain circumstances, withhold rent.  See Sections 83.60 (residential) and 83.201 (commercial) of the Florida Statutes.  If the tenant fails to make certain repairs or maintain the property, the landlord may have an action for eviction and damages.

Before invoking the remedy to withhold rent, the tenant should carefully review the lease agreement to determine the parties’ rights and obligations related to maintenance and repair of the property.

Section 83.201 of the Florida Statutes pertaining to commercial leases provides:

When the lease is silent on the procedure to be followed to effect repair or maintenance and the payment of rent relating thereto, yet affirmatively and expressly places the obligation for same upon the landlord, and the landlord has failed or refused to do so, rendering the leased premises wholly untenantable, the tenant may withhold rent after notice to the landlord. The tenant shall serve the landlord, in the manner prescribed by s. 83.20(3), with a written notice declaring the premises to be wholly untenantable, giving the landlord at least 20 days to make the specifically described repair or maintenance, and stating that the tenant will withhold the rent for the next rental period and thereafter until the repair or maintenance has been performed. The lease may provide for a longer period of time for repair or maintenance. Once the landlord has completed the repair or maintenance, the tenant shall pay the landlord the amounts of rent withheld. If the landlord does not complete the repair or maintenance in the allotted time, the parties may extend the time by written agreement or the tenant may abandon the premises, retain the amounts of rent withheld, terminate the lease, and avoid any liability for future rent or charges under the lease….

But what exactly does “wholly untenantable” mean?  In order to understand the term, one should look to the concept of constructive eviction.  Constructive eviction is defined as the landlord’s wrongful act that, while not amounting to an actual eviction, is accomplished with express or implied intention of interfering with the tenant’s beneficial use and enjoyment of the property.  Berwick Corp. v. Kleinginna Investment Corp., 143 So.2d 384 (Fla. 3d DCA 1962). Mere dissatisfaction with the property falls short of constructive eviction and “wholly untenantable” and does not relieve a tenant from its obligation to pay rent.  Boulevard Shoppes, A.B. v. Pro-1 Realty, Inc., 605 So.2d at 1317 (Fla. 4th DCA, 1992).  To rise to the level of “wholly untenantable”, the failure to maintain or repair the property should interfere with the tenant’s beneficial use and enjoyment of the leased property.  At least one Florida court has stated that because employees continued to work at the property, the premises were not wholly untenantable.  Cruise.com, Inc. v. Eller Drive Properties, Inc., 813 So.2d 254 (Fla. 4th DCA 2002).

For example, a landlord’s failure to clean up dog waste and beer cans for several days did not render the premises untenantable.  Boulevard, 605 So. 2d 1317.  However, rodent infestation, fire, flooding, failure to repair a roof that is causing water intrusion, or failure to make repairs to the exterior of a building that is causing water intrusion, may cause the property to be deemed wholly untenantable.

Landlords and tenants should be aware of their respective rights and obligations when it comes to making repairs and performing maintenance on the property.  Failure to understand the rights and remedies under the lease agreement, as well as under Florida law, could render the landlord or the tenant in breach of the lease agreement.