by Tabitha S. Fish, Esq., Associate, Saxon, Gilmore, Carraway & Gibbons, P.A.
Published in FAHROgram November/December 2011
Once a tenant breaches his or her lease, understanding when and how payment of rental amounts should be made can make or break a landlord’s eviction case. Pursuant to Florida Statutes §83.56(5), “If a landlord accepts rent with actual knowledge of a noncompliance by the tenant … the landlord … waives his or her right to terminate the rental agreement or bring a civil action for that noncompliance ….” It is important to note that waiver can occur even prior to the time that the landlord has served the tenant with a lease termination notice or even decided to evict the tenant. For example, acceptance of rent from a tenant after the landlord learns that the tenant has engaged in drug-related criminal activity could act as a waiver under §83.56(5), despite the fact that the landlord has not yet sent a notice of termination, and could prevent the landlord from evicting the tenant based on this offense. What does this mean for public housing authorities (PHAs)?
1. PHAs should consider implementing procedures to ensure that no rent is accepted from a tenant after a property manager becomes aware of a breach by that tenant, a member of the tenant’s household, a guest or other person under the tenant’s control.
2. If any rent is inadvertently accepted after the PHA becomes aware of a tenant’s breach, the rent should be immediately returned to the tenant via certified mail or another reasonable delivery method that allows the PHA to obtain a written receipt from the tenant evidencing such return.
3. A PHA must be cautious during implementation of its grievance procedures as mandated under 24 Code of Federal Regulations §966.50 – §966.57 in light of the requirements of Florida landlord tenant law and should consult a knowledgeable lawyer for guidance, if necessary.
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