I Want to Evict My Commercial Tenant! What Do I Need to Know? Common Defenses to a Commercial Eviction Action
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Commercial landlords may encounter tenants who refuse to pay rent, refuse to vacate the premises after the lease term has ended or fail to cure a material breach of the lease agreement. In these situations, the landlord may decide to commence eviction proceedings by filing an action for eviction and for damages. Commercial eviction actions are also commonly referred to as summary removal actions. In response to the landlord’s eviction/removal action, commercial tenants will likely raise all available defenses in an effort to delay the eviction action.
Prior to commencing a commercial eviction action, commercial landlords should be aware of the common defenses raised by tenants and how to overcome those defenses. This article addresses some of the common defenses raised by tenants. However, each eviction action is different and the facts giving rise to the action or possible defenses should be evaluated on a case-by-case basis.
Motion to Determine Rent and the Requirement of Paying Rent into the Court Registry
A tenant’s answer is due five (5) days after service of the eviction complaint on the tenant. §51.011(1), Fla. Stat. (2020). Section 83.232, Florida Statutes, requires a tenant to pay into the court registry the amount of unpaid rent alleged in the eviction complaint and any rent accruing during the pendency of the action when it becomes due. §83.232, Fla. Stat. The tenant must pay the amount alleged in the complaint into the court registry on or before the date on which his or her answer is due. §83.232(1). Even if a tenant files a counterclaim for money damages, the tenant is not relieved from its obligation of depositing rent into the court registry. §83.232(4).
In response to the eviction complaint, and instead of immediately depositing the amount due into the court registry upon answering the complaint, tenants commonly file what is called a “motion to determine rent” and ask the court to determine the amount of rent that is due. Many times, this is just a delay tactic. A savvy commercial landlord should recognize this delay tactic and immediately set a hearing on the motion to determine rent.
If the tenant files a motion to determine rent and contests the amount due, the court will hold a hearing and determine the amount that the tenant must pay into the court registry. Thereafter, the tenant must pay such amount into the court registry on the day the court makes its determination unless additional time is granted by the court. The requirement of payment is inflexible. See 214 Main St. Corp. v. Tanksley, 947 So. 2d 490, 492 (Fla. 2d DCA 2006) (holding that the trial court does not have discretion to excuse the late payment of rent into the court registry based on a finding of excusable neglect). Section 83.232(5) provides that failure of the tenant to pay the rent into the court registry shall be deemed an absolute waiver of the tenant’s defenses to the commercial eviction action. §83.232(5). Additionally, failure of the tenant to comply will result in the landlord receiving an immediate default for possession without further notice or hearing. §83.232(5).
Defense of Waiver
Section 83.202 provides that if a landlord accepts the full amount of past due rent, with knowledge of the tenant’s breach of the lease by nonpayment, it may be considered a waiver of the landlord’s right to proceed with an eviction claim for nonpayment of that rent. §83.202, Fla. Stat. Acceptance of rent includes conduct by the landlord concerning any tender of the rent by the tenant which is inconsistent with reasonably prompt return of the payment to the tenant. §83.202, Fla. Stat.
Waiver is an affirmative defense that must be raised in the tenant’s answer. If a tenant fails to raise this defense, the defense will be lost.
Failure to Give Proper Notice Prior to the Eviction Action
Section 83.20(2) provides that if a tenant fails to pay rent and holds over possession of the premises without permission, the landlord must provide the tenant three (3) days’ notice in writing to either pay the rent or to surrender possession of the premises. §83.20(2), Fla. Stat. If the landlord fails to give the tenant proper notice, the tenant will have a defense of failure to give proper notice under section 83.20(2).
In addition, Section 83.20(3) provides that if a tenant fails to cure a material breach of the lease or oral agreement (other than nonpayment of rent) and holds over possession of the premises without permission, the landlord must provide the tenant fifteen (15) days’ notice in writing to either cure the breach or to surrender possession of the premises. §83.20(3), Fla. Stat. If the landlord fails to give the tenant proper notice, the tenant will have a defense of failure to give proper notice under section 83.20(3).
However, if a written lease agreement provides for a longer notice period than described in Section 83.20, the longer notice period will apply. See Stephenson v. National Bank of Winter Haven, 39 F.2d 16, 17-18 (5th Cir. 1930). Therefore, commercial landlords should be diligent and analyze the lease for any notice requirements. If the lease agreement does not provide for a notice requirement, the landlord must provide the requisite three (3) or fifteen (15) days’ notice in writing before filing their eviction/removal complaint.
Rent Lawfully Withheld Due to Landlord’s Failure to Repair/Maintain the Premises
Pursuant to Section 83.201, if the landlord is obligated to repair and maintain the leased premises, and has failed or refused to do so, rendering the leased premises wholly untenantable, the tenant may lawfully withhold rent. See §83.201, Fla. Stat. However, unless the procedure is otherwise set forth in the lease agreement, prior to withholding rent, the tenant must: (1) give the landlord written notice declaring the premises to be wholly untenantable, (2) give the landlord at least twenty (20) days to make the described repair, and (3) state that the tenant will withhold rent until the repair has been performed. §83.201, Fla. Stat. Once the repair is made, the tenant is required to pay the landlord the amount of rent withheld. §83.201, Fla. Stat.
If the landlord fails to repair and the premises is rendered “wholly untenantable,” the tenant is authorized to withhold rent and will have a valid defense against a landlord’s claim for unpaid rent. However, when the tenant continues to occupy all or a portion of the premises, the premises is not “wholly untenantable.” See Cruise.com, Inc. v. Eller Drive Props., Inc., 813 So. 2d 254 (Fla. 4th DCA 2002) (holding the tenant was not entitled to withhold the rent because the tenant’s employees continued to work on the premises and therefore the premises was not wholly untenantable, which is a statutory condition precedent to withholding rent).
In addition to defenses raised to a commercial eviction action, tenants commonly raise counterclaims and employ the strategy that “the best defense is a good offense”. For example, a tenant may raise a counterclaim for wrongful/constructive eviction. Wrongful/constructive eviction occurs when a landlord’s wrongful act deprives a tenant of possession of the rented premises or disturbs the tenant’s beneficial enjoyment of the premises. Generally, the tenant must abandon the premises within a reasonable time after the landlord’s wrongful act in order to sue the landlord for wrongful eviction. As such, counterclaims for wrongful/constructive eviction are generally raised in response to a landlord’s action for damages as opposed to its action for possession/eviction. Nevertheless, prior to filing an eviction action or an action for damages, landlords should be aware of common grounds for raising wrongful/constructive eviction.
Wrongful acts that may give rise to a claim for wrongful eviction include, but are not limited to, the following:
- Self-help. If the landlord uses self-help, such as by changing the locks on the premises, the tenant may have a cause of action for wrongful eviction. See Vines v. Emerald Equip. Co., 342 So. 2d 137 (Fla. 1st DCA 1977) (holding that the landlord breached the lease agreement by engaging in self-help by changing the locks on the premises); See also Unlawful Commercial Evictions: A Cautionary Tale for Commercial Landlords Wanting to Use Self-Help to Retake Possession of Leased Property, https://www.jimersonfirm.com/blog/2021/06/unlawful-commercial-eviction/.
- Failure to fix. If the lease agreement provides that the landlord has the obligation to make repairs, the landlord’s failure to fix or repair the premises may give rise to a claim for constructive eviction. See Rosen v. Needelman, 83 So. 2d 113 (Fla. 1955) (providing that the landlord failed to comply with its obligations under the lease agreement to maintain the roof and outside walls of the premises).
- Breaching an exclusive use provision in the lease. If the landlord breaches a covenant of the lease, such as an exclusive use provision, the tenant has a cause of action for wrongful eviction. See Hollywood Shopping Plaza, Inc. v. Schuyler, 179 So. 2d 573 (Fla. 2d DCA 1965) (providing that the landlord breached the exclusive use provision by leasing nearby property to a business selling competing merchandise).
- Excessive noise. Excessive noise can constitute wrongful eviction if the tenant can no longer conduct its business. See Barton v. Mitchell Co., 507 So. 2d 148 (Fla. 4th DCA 1987) (providing that a tenant was constructively evicted because another tenant in an adjacent space was operating an exercise studio with loud music and which caused walls to vibrate and made it impossible for the tenant to operate her business).
- Renovation or construction. Extensive construction on the premises may constitute wrongful eviction. See Carner v. Shapiro, 106 So. 2d 87 (Fla. 2d DCA 1958) (awarding damages to the tenant for loss of use of the premises and damages as a result of construction on the upper stories of a tenant’s office space).
- Lack of access. Denying or blocking the tenants access may constitute wrongful eviction. See Vines v. Emerald Equip. Co., 342 So. 2d 137 (Fla. 1st DCA 1977) (holding that the landlord breached the lease agreement by prohibiting the tenant from entering the premises).
Prior to commencing an action for eviction and possession of the property, it is important for landlords to not only familiarize themselves with the statutory requirements and prerequisites for bringing such action, but they should also understand common defenses raised and consider whether the tenant may have grounds to support any of those defenses.
- Austin T. Hamilton, Esq.
- Melissa M. Murrin, J.D.