Tenant Must Serve A Proper Statutory Notice Prior To Defaulting In Rent In Order To Use The Landlord's Failure To Maintain The Premises As An Affirmative Defense To A Florida Residential Eviction Action

In the eyes of the residential tenant, one of the sexiest affirmative defenses to an eviction for the non-payment of rent is a claim that the landlord has failed to adequately maintain the premises. To the tenant, this defense to eviction appears to be the best of both worlds: the tenant gets to live at the rental property while withholding the rent and, when the tenant is ultimately required to pay the rent (after the landlord fixes the problems), the tenant is entitled to a reduction in the rent due to the decrease in the rental value of the property. However, this defense is rarely as successful as the tenant anticipates.

The main reason for the disappointing result for most Florida tenants has to do with timing. Specifically, the tenant is permitted to raise the defense that the landlord has failed to maintain the property only after the tenant properly serves the landlord with a statutory notice. This written notice must specifically advise the landlord what complaints the tenant has regarding the condition of the property. The notice must also declare the premises “wholly untentable” and give the landlord no less than twenty days to make the repairs or maintenance. Finally, the notice must state that the tenant intends to withhold the rent for the NEXT rental period and thereafter until the repair or maintenance has been performed. Florida Statute § 83.201.

LANDLORD RIGHTS TIP: This affirmative defense is only available if the residential tenant gives the proper notice PRIOR to defaulting in the payment of rent. In the case of Lakeway Management Co. of Florida, Inc. v. Stolowilsky, 527 So. 2d 950 (Fla. 3d DCA 1988), the Court found that a notice is not timely if the tenant serves it after defaulting on the rent.