Disaster Preparedness LL/T

1. Disaster Preparedness LL/T How to break a lease, after the hurricane/wildfire/other disasters in Florida.

2. What to do • Follow standard emergency procedures • Evacuate when appropriate • Follow the directions of all law enforcement • Prepare in advance for shelter for pets • Prepare in advance for medications and medical devices • Have a plan for when things fall apart, they will • Have an out of state person who can connect to you if you are separated from family and loved ones • Stay Safe

3. Fl. Statute • 83.63  Casualty damage.--If the premises are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the premises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case the tenant's liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the landlord shall comply with s. 83.49(3) [F.S. 1973].

4. Fl. Statute 83.49 • Since the lease is terminated due to no fault of either party the landlord must treat this like the end of the lease and • Return the Security Deposit, following normal procedures, (15 days, or notice in 30 days why withholding) • Not unreasonably withhold the Security Deposit • Given this the tenant will likely have to: • Give a written form of rental termination (7 day repair or terminate letter) See Forms section • Only withhold that portion of the rent that is reasonable based on how much of the property they are unable to use

5. Fl. Cases • Residential Cases • Grubb et. al. v. Treviso, 966 So. 2d 1000, 2007 Stands for another rule, but it seems to suggest a 50% rule applies. Meaning that if the premises are damaged 50% or more then the landlord could simply terminate the lease rather than repair a given piece of property. This is replacement cost and the lease in question had an arbitration clause, however this would make a good guideline for tenants in evaluating whether they should terminate. So if the unit is 50% or more damaged, the lease most likely terminatable.

6. Fl. Cases Cont. • Kent v. Wood, 235 So.2d 60, 1970 1st DCA • A landlord demanded that a tenant immediately vacate the property under another section of the law. • The court held that although the landlord could require the tenant to vacate under that section of the law, the landlord must refund the unused rent that was prepaid to the tenant, because the landlord had to give at least a 15 day notice. • The section of the law the landlord used here is no longer law. So the viability of the case is questionable. • The ruling and discussion are well thought out, and you may be able to get tenants a refund of Security Deposits and rent money for a portion of the month, if the landlord terminates the lease.

7. Fl. Cases Cont. • Kent v. Wood cont. • Whether you will be able to get a rent refund with an evacuation order , (aka a Katrina style order preventing use of the property for an extended period of time), and no damage is unknown. • It is also unlikely you will be able to have your tenant withhold the full rent for a damage amount less than 50%. A lower amount of rent withheld should be upheld, but it must be properly noticed and a Motion to Determine Rent is probably needed to defend eviction. • The correct place to argue the amount that should be withheld is the Motion to Determine Rent, since this is the first hearing in most cases, you will often win or lose at this stage anyway.

8. Fl. Cases Cont. • Grant v. Thornton, 749 So.2d 529, 1999, 2d DCA • The landlord appears to have an affirmative duty to keep the property in good enough condition that should a disaster occur the tenant not be injured due to the property being below building codes. • Such failure to comply with building codes can act as prima facie evidence of the landlord’s negligence. • In this case the tenant suffered damage as a result of the landlord’s failure to make repairs. The tenant was burned in a fire. As a result the landlord was held liable for negligence.

9. Conclusion • The landlord must keep the property to at least building codes, failure to do so may result in a personal injury claim. • In the case of a 50% or more loss the lease can be terminated, IF the loss is due to no fault of the tenant, including negligence. A grease fire is likely at least negligence on the tenant’s part. • Either the tenant or the landlord can terminate with the 7 day letter. The Security Deposit procedure must be followed. • You may be able to get back the unused portion of the rent.

10. Forms • NOTICE OF INTENT TO WITHHOLD RENT OR TERMINATE THE LEASE AGREEMENT • Date: ____________________________ • ADDRESS: ______________________________ • ______________________________ • ______________________________ • TO: _____________________________________________________ • Landlord’s Name • RE: ___________________________________________________________________________________ • Address of property • Dear Sir/Madam: • This is to inform you that if you do not complete the following repairs within 7 days of this letter I intend to withhold all future rental payments, or terminate the lease agreement per the terms of the lease section XV A (1). Pursuant to the lease and Florida Statute 83.56 you are notified that you have seven (7) days from delivery of this written notice specifying your non-compliance to correct the following deficiencies or else I will refuse to pay rent or terminate the lease: • _____________________________________________________________________________ • _________________________________________________________________ • _________________________________________________________________ • _________________________________________________________________ • Be advised that pursuant to Florida Statute 83.60 your material non-compliance with this notice and Florida Statute 83.51(1) is a "complete defense" to an action for possession based on non-payment of rent. Under Florida Statute 83.67 you may not eliminate any utility service or limit access by a tenant by changing locks or removing doors or other such action, which allows damages of actual or consequential damages or three months rent which ever is greater and attorney fees, and may also support an action for an injunction. • Respectfully yours, • Original furnished to Landlord/Agent on this day of ________, 200_ , by ______________.

11. Forms Cont. • Check with your county clerk for small claims forms, if your program does not use any. • If your clerk does not have forms consider modifying the forms available at http://www.pinellasclerk.org/aspInclude2/SmClaimsPdfs/SC046.pdf. • There are other forms available from the clerk you might consider as well.