What is residential constructive eviction in Florida?

A tenant may terminate their lease with a landlord in the event of a constructive eviction. Constructive eviction is defined as any disturbance to the tenant by the landlord that: (1) renders the premises unfit for the purpose for which they were leased; or (2) deprives the tenant of the beneficial enjoyment of the premises. To establish a valid constructive eviction action against a landlord, a tenant must be able to prove:

  • The landlord breached a duty to the tenant which substantially and materially deprived the tenant of his/her use and enjoyment of the premises;
  • The tenant gave the landlord notice and a reasonable time to repair; and
  • After such reasonable time, the tenant abandoned the property.

(A) Landlords’ Breach of Duty.

In almost every lease there exists an implied covenant of quiet enjoyment and implied warranty of habitability for residential tenancies. A covenant of quiet enjoyment promises that landlord will not interfere with the tenant’s quiet enjoyment and possession of the premises. An implied warranty of habitability is the landlords’ duty to provide the tenant with property which is suitable and safe for occupancy.

Therefore, a landlord who leases property to a tenant for residential purposes, has an implied duty to reasonably inspect the premises before allowing the tenant to take possession. Additionally, after the tenant takes possession, the landlord has a continuing duty to exercise reasonable care to repair defective conditions upon notice of their existence by the tenant, unless the tenant waived the continuing duty. However, a residential landlord’s duty to their tenant to repair defects in the leased property to render it reasonably safe for occupancy, is limited to conditions that are inherently unsafe or dangerous that are not readily apparent to the tenant. A landlord also has an obligation to comply with all local housing codes, and absent such local housing codes, the landlord must, among other things, maintain and keep in good repair the roof, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural elements, and the plumbing.

If there is an express provision within the lease requiring the landlord to make certain specified repairs, and the landlord fails to make such repairs within a reasonable time after being notified by the tenant, the landlord could be held liable for constructive eviction. Absent such express provision in the lease, a landlord is considered to have breached his duty to their tenant if there are any disturbances of the tenant’s possession by the landlord, that renders the premises unfit, unsafe, or unsuitable for occupancy in whole or substantial part for the purposes for which the premises leased, or that deprives the tenant of their beneficial enjoyment of the premises. To amount to a breach, it is imperative that the landlord’s act be done with the express or implied intent of essentially interfering with the tenant’s use and enjoyment of the premises.

(B) Notice.

A tenant is required to provide the landlord with reasonable notice of the alleged breach. Notice provides the landlord with a reasonable opportunity to rectify the alleged conditions which constitute the constructive eviction. A reasonable time for notice, as set out by Florida Statute §83.56, is 7 days, but is subject to the courts discretion. In other words, a tenant cannot assert a termination of the lease for a breach of covenant to make repairs, unless the landlord is notified that maintenance or repairs are necessary.

(C) Abandonment.

Lastly, as a necessary element of constructive eviction, the tenant must abandon or surrender possession of the premises within a reasonable time after the unsafe or unfit condition arises. What is considered reasonable time, is not set out explicitly, but will instead be determined by the court on a case-by-case basis. In essence, the court will weigh each the facts of each case to decide how much time is deemed “reasonable,” and whether the premises was so impaired to constitute a proper abandonment by the tenant.  

Whether a defective condition is considered unsafe, unfit, or unsuitable for occupancy.

To determine whether a defective condition is deemed unsafe or unsuitable for occupancy, the landlord must look at both the lease agreement and to the local housing code for the city or county the residential property is located. If the lease agreement provides that the landlord will maintain specific repairs to the premises, then the landlord has an obligation to repair the defective condition within reasonable time. If there is no such provision within the lease agreement, but the local housing codes require the landlord to repair the defective condition, the landlord still has the obligation to repair the such defect. Should the landlord fail to make such repairs within reasonable time after being notified, and the tenant subsequently abandons the property, it is likely that constructive eviction has occurred, the tenant may terminate the lease, and the landlord may be liable.

In conclusion, for a tenant to establish constructive eviction, the tenant must prove:

  1. The landlord had a duty to the tenant and breached that duty by either substantially depriving the tenant of their use and enjoyment of the premises, or failing to exercise reasonable care to repair unsafe conditions;
  2. The tenant gave the landlord notice of the alleged breach and a reasonable time to repair; and
  3. After the reasonable time, the tenant surrendered the possession of the premises.

Further, a breach of an implied covenant of quiet enjoyment or implied warranty of habitability for residential tenancies will occur if a landlord disturbs the tenant’s possession of the property that renders the premises unfit for occupancy, or that deprives the tenant of the beneficial enjoyment of the premises. Both of these breaches, if established on their own, will be considered a valid constructive eviction. If a tenant fails to timely notify the landlord of the alleged breach(s), the tenant is deemed to have waived their right to a constructive eviction claim. Lastly, if the landlord, after notice and reasonable time, fails to make the unsafe repairs which cause the tenant to abandon the premises, the landlord may be liable for constructive eviction.

If you or someone you know is interested in finding out more information regarding a FL Residential Constructive Eviction  or have any questions regarding the subject, you may contact us at info@epgdlaw.com or via phone (786) 837 – 6787.

*Disclaimer: This blog post is not intended to be legal advise. We highly recommend speaking with an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*




Categories: Real Estate Law | Tax Law