Florida’s Landlord Tenant Laws – Concepts and Vocabulary.
One of the most effective ways to gain greater insight and understanding of Florida’s eviction laws is to learn the legal vocabulary associated with this particular field of law. What follows is a brief (but by no means exhaustive) list of vocabulary words commonly employed by eviction lawyers practicing under Florida law. Understanding the interplay between the various words and their associated legal concepts can lead to a greater understanding of Florida’s landlord/tenant laws.
Lease: A real property contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for some good or service (also known as consideration). The Tenant’s “consideration” is usually rent money while the Landlord’s “consideration” is the rental property itself. Under Florida law, a lease term can be for a fixed period of time, for life, or for a period terminable at will by the property owner. The term lease can also refer to a written instrument which memorializes a conveyance of real property and its covenants. In sum, a lease is a contract by which a rightful possession of personal property conveys the right to use that property for some agreed upon period of time in exchange for some form of consideration. To have a valid Lease, the parties need not memorialize the instrument in writing.
- A lease may be formed by oral of written agreement between landlord and tenant. Under Florida law, and depending on the specific terms of the parties’ lease agreement, a lease may be assigned to an Assignee, or subleased to a Sublessee. Sometimes, however, a Landlord’s consent is needed before the tenant assigns or subleases the real property. A commercial lease is a contract which conveys the right to use and enjoy property that is intended to be used for commercial or business purposes. A residential lease is a contract which conveys the right to use and enjoy property that is intended to be used for commercial or business purposes. A community lease is a contract in which multiple landlords owning interest in separate tracts of land execute a lease in favor of a single lessee (aka tenant).
- A Concurrent Lease is a lease that begins before a previous lease ends.
- A Full Service Lease is a contract in which the Landlord agrees to pay all maintenance expenses, insurance premiums, and property taxes.
- A Graduated Lease, usually employed in the commercial tenancy context, is a contract in which rent varies depending on future contingencies, such as the tenant’s operating expenses or gross income.
- A Gross Lease is a lease in which the tenant pays a flat amount for rent, out of which the pays all of the expenses associated with maintaining the rental property in good, working order.
- A Ground Lease is a long-term lease of land only, usually 99 years. A ground lease contract typically involves commercial property, and any improvements built by the lessee usually revert to the lessor.
- An Index Lease is a lease contract which provides for increases in rent due according to the increases in the consumer price index.
- A Master Lease is a lease that establishes a leasehold’s basic terms, conditions, covenants and restrictions which are applicable to all related contracts for rental properties.
- A Month-to-Month Lease, under Florida law, is a lease contract between landlord and tenant that is usually not memorialized in writing. If a written lease contract is deemed a month-to-month lease, it is because the written terms of the lease do not specify a lease term. By operation of Florida law, written leases that do not specify a lease term are deemed month-to-month tenancies with no specific duration and terminable at will by the landlord.
- A perpetual lease is an ongoing lease which is not limited in its duration. It is a grant of land in fee with a reservation of rent in fee.
- A Reversionary Lease is a contract that takes effect when a prior lease terminates.
- A Sandwhich Lease is a lease whereby the lessee subleases the property to a third party especially for higher rent than under the original lease.
- A Short Lease is a lease of brief duration, often less than 6 months.
Leasehold: The term leasehold refers to a given tenant’s possessory estate in land or premises. The four major types of tenancies at common law, in the early development of landlord-tenant law, are (1) the tenancy for years; (2) the periodic tenancy; (3) the tenancy at will; and (4) the tenancy at sufferance.
Leasehold Improvements: This phrase refers to beneficial changes to leased property, such as a parking lot or extended driveway, made by, or for, the benefit of the tenant. This phrase is sometimes used in condemnation proceedings to determine the share of compensation that should be allocated to the tenant for a premature termination of the tenancy.
Leasehold Interest: A leasehold, especially for the purpose of eminent domain (e.g., a government taking of land for public use). The leasehold interest usually refers to the tenants interest in the lease itself, measured by the difference between the total remaining rent and the rent the lessee would pay for similar space for the same period.
Tenancy: The possession or occupancy of land under a lease contract, also referred to as a leasehold interest in real estate. A tenancy can also refer to the period of time of possession or occupancy of land.
Periodic Tenancy: A periodic tenancy is a tenancy that automatically continues for successive periods. A period can be week to week, month to month, or year to year, and the landlord may terminate a periodic tenancy upon proper Notice at the end of the applicable period. A month to month tenancy is a kind of period tenancy. The periodic tenancy arose at common law through court rulings where Courts refused to terminate a periodic tenancy because the Landlord accepted rent for the period. The Courts at common law imposed a notice requirement before terminating a periodic tenancy. Today, the Notice requirement to terminate a period or month to month tenant is codified in Florida’s Landlord and Tenant laws.
Tenancy At Will: A tenancy at will refers to a situation where a tenant has possession of real estate with the Landlord’s permission and consent but without a fixed term, whether that fixed term is rent or duration. Under Florida law, a tenancy at will is terminable at the will of either the landlord or the tenant upon statutory notice.
Tenant: Under Florida law, a tenant is a person (or corporation) who holds or possesses lands or tenements under any sort of right, title, or interest.
Holdover Tenant: Under Florida law, a holdover tenant is a person who remains in possession of real property after the expiration of a previous tenancy. This is also known as a tenancy at sufferance.
Tenancy At Sufferance: A tenancy at sufferance arises when a person who has been in lawful possession of property wrongfully remains in possession of such property after his or her leasehold interest has expired. A tenancy at sufferance, or holdover tenancy, may take the form of either a tenancy at will, if the landlord consents, or a periodic tenancy, if the Landlord does not strictly consent but accepts rent.
Tenantable Repair: A tenantable repair refers to a repair that will render real property fit for a tenant’s habitation.
Tenement: Tenement is another word for Property (especially land) held by a freehold. The term tenement can also refer to a house or other building that is used for residential purposes.
Waste: Waste refers to permanent or irreversible harm to real property committed by a tenant to the detriment of the owner.
Implied Warranty of Habitability: An implied warranty of habitability is a warranty that is implied and in full force and effect between landlord and tenant in a residential lease. The landlord warrants to the tenant that the leased property is fit to live in and that it will remain so during the term of the lease.
Writ of Possession: A writ, e.g., a command from the Court to the Sheriff, telling the Sheriff to remove all tenants in possession so that the Landlord may recover possession of the property.
Wrongful Eviction Action: A lawsuit brought by a former tenant or possessor of real property against one who has put the plaintiff out of possession, alleging that the eviction was illegal. Normally, a wrongful eviction action is brought by a former tenant against his or her former landlord.
Squatter: A person who settles on real property without any legal claim, title, or interest in such property.
Ejectment: The ejection of an owner or occupier from real property. The basic allegations in a lawsuit for ejectment are that (1) the plaintiff has title to the land, (2) the plaintiff has been wrongfully dispossessed or ousted, and (3) the plaintiff has suffered damages.
Equitable Ejectment: A lawsuit, usually brought by an equitable owner of real property, brought to enforce specific performance of a contract for the sale of such real property and for other purposes. Though in the form of an ejectment action, this proceeding is in reality a substitute for a bill in equity. In an ejectment action, the title holder of real property seeks to regain possession of the property by way of such a lawsuit. Under Florida law, a title holder/plaintiff is required to prove up a chain of title and deeds to demonstrate a superior right of possession.
Abatement: The act, especially by a Court of competent jurisdiction, of lessening or moderating; a diminution in amount or degree. An abatement clause is a lease clause that releases the tenant from the rent obligation when an act of G-D or other specified reason precludes occupancy.
Affidavit of Service: In the context of Florida’s landlord/tenant laws, an Affidavit of Service is a sworn statement, by a licensed and certified process server, or the county Sheriff, whereby the Affiant swears or affirms that he or she has served copies of a five day summons/complaint, writ, or process. In order to complete an eviction without interruption, a landlord will usually be required to swear to the tenant’s non-payment of rent and non-military status.
Rent: Consideration paid, usually periodically or as set forth in a given lease, for the use or the occupancy, whether residential or commercial, of real property.
Three Day Notice To Pay Rent or Vacate: Under Florida law, a three day notice to pay rent or vacate is a notice given by the Landlord or Property Manager to a tenant when a tenant defaults or is late in the payment of rent. The three day notice for non payment of rent may be given to residential or commercial tenants. The statutory requirement that a Landlord give a nonpaying Tenant a three day notice may be waived by the Landlord and the tenant in the applicable lease. Three day notice waivers in Florida leases have been upheld as valid in Florida Courts. The form of a three day notice must be in substantial compliance with the form provided in Florida’s Residential Landlord and Tenant Act. If a three day notice is defective in form or substance, then this fact alone is grounds for a dismissal of the lawsuit for eviction, regardless of the substantive merits of the case.
Seven Day Notice to Cure Material Non-Compliance: Under Florida law, if the tenant has breached the the terms of the lease, other than in the form of failing to pay rent, and if such a breach is of a nature that the Tenant should be given the opportunity to cure it, then the Landlord may deliver a seven day notice to cure material noncompliance to the tenant. The tenant would have seven days to cure the material breaches of lease cited by the landlord in the Notice, and notify the landlord accordingly. An example of a situation where this type of notice would be used is when there are unauthorized persons or pets at the property. This Notice gives the tenant an opportunity to come into compliance with the terms of the lease so that the tenant does not risk having the lease terminated by the landlord, and so that a subsequent cause of action for eviction isn’t filed. Another example of a situation where a Landlord would deliver a seven day notice to a tenant is when a tenant has failed to pay a late fee due to a late rent payment, or failed to make some repair or improvement that the tenant is obligated to make under the lease. If the tenant does not cure the breaches specified in the seven day notice within seven days of delivery, the landlord may consider the lease terminated and may file a lawsuit for eviction.