HURRICANES AND TROPICAL STORMS
by Cathy L. Lucrezi, Attorney at Law
It's that time of year again. A tropical storm will cause mischief somewhere and damage someone's rental premises. The havoc will interrupt the tenant's possession of the premises as well as the landlord's income. Here are some important repair matters to keep in mind:
Damaged and uninhabitable. If rental premises are damaged in a way that renders them uninhabitable, the tenant is not liable for rent for the period that the premises are uninhabitable. The owner is not obligated to pay for a hotel or move the tenant to another unit (unless the lease specifically says he should).
Repairs should be completed as quickly as is reasonable. This is often difficult in a post-hurricane period, given the great demand on services. Documentation is key to show that you are making best efforts to get the premises repaired.
Damaged but still habitable. If the premises are damaged but not destroyed, it is wise to work out some "credit" to the rent until repairs are done. How much of a credit depends on the facts of the particular situation. Alternatively, a wise landlord will have a clause in the lease that allows the landlord the right to terminate the tenancy in the event the premises are "damaged".
The tenant cannot refuse to pay rent. However, some compromise should be reached. If you served a three day notice while significant repairs were ongoing, and then filed an eviction, it is very likely that a judge would consider the damage to be a "diminution" in value. That's enough to mess up an otherwise good eviction case.
When repairs are completed, you will be on solid footing to demand the full rent.
Destruction of premises. If the rental premises are destroyed, the owner might wish to terminate the lease rather than do repairs. Unfortunately, the option to do this is limited. The Florida statute does not entitle the landlord to terminate the tenancy under these conditions. The tenant can do so, but not the landlord.
The landlord can terminate the tenancy due to destruction only if the lease says he can. This language is usually found in a paragraph titled "Casualty" or "Maintenance".
If the lease does not contain language that permits the landlord to terminate the tenancy, yet repairs are out of the question, the owner may want to "invite" the tenant to terminate the tenancy. The landlord would suggest to the tenant that the tenant could give notice to vacate and be released from the lease.
Data and documentation Sure, everyone knows to take photos of damage after the hurricane, but do you have photos of what the place looks like now? It is sometimes hard to fully appreciate an "after" picture without having a "before". You should record and document the condition of the rental premises now, before the winds blow.