LANDLORDS, ARE YOU EXPOSING YOURSELF TO LIABILITY? IS YOUR LEASE ENFORCEABLE?
May 9, 2019
By: Robert Garcia, Esq., of Barry L. Miller, P.A. Offices Orlando.
Owning a rental property is a dream for most Americans. It is not only a symbol of achievement but many times a secured financial source of additional income. However, is your residential lease enforceable under Florida law? Are you protecting yourself and your largest investment from potential liability? Having an attorney draft and review your lease is critical in protecting yourself and your investment from potential liability by making sure it complies with Florida law.
While the freedom to contract is engrained into the American psyche, Florida law does not permit landlords to do as they wish, even if the tenant agrees to it. Under Sections 83.45(1) and 83.47(1), Florida Statutes,
If the court as a matter of law finds a rental agreement or any provision of a rental agreement to have been unconscionable at the time it was made, the court may refuse to enforce the rental agreement, enforce the remainder of the rental agreement without the unconscionable provision, or so limit the application of any unconscionable provision as to avoid any unconscionable result.
(1) A provision in a rental agreement is void and unenforceable to the extent that it:
(a) Purports to waive or preclude the rights, remedies, or requirements set forth in this part;
(b) Purports to limit or preclude any liability of the landlord to the tenant or of the tenant to the landlord, arising under law.
Determining what is and what is not “unconscionable” under Florida law and what provisions in a lease waive or preclude a right or requirement under Chapter 83, Florida Statutes is a complicated legal task requiring the skill of a real estate attorney. For example, some landlords have included provisions in their leases prohibiting the tenant from recovering attorney’s fees in the event a lawsuit is filed and the landlord is found liable. However, such provisions are unenforceable. Had the landlord known this, the landlord may not have filed suit or would have settled the case. By way of further example, some landlords have attempted to circumvent the 3 Day Notice to tenants for unpaid rent. Once again, such a waiver is prohibited under Florida.
When owning rental properties, landlords should have their leases reviewed and prepared by an attorney in order to avoid headaches and costly litigation down the road. A few extra dollars spent upfront can save years of headaches, stress, and thousands of dollars in legal fees. Finally, landlords must be wary of using template leases found online as these leases may not comply with Florida law and are not tailored to your individual investment’s needs.
Should you have questions regarding your lease or real estate questions, please feel free to contact Barry Miller Law via telephone at 407-423-1700 and via email at [email protected] and speak to our team of real estate attorneys and paralegals.