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Florida Bar Journal

The Need for Statutory Change to the Right to Terminate Residential Leases

Real Property, Probate and Trust Law

Florida’s residential landlord-tenant law is governed by F.S. Ch. 83, Part II, the Florida Residential Landlord and Tenant Act (LL/TE Act).1 Although there are many provisions in the LL/TE Act that cover what remedies are available for a landlord to terminate a lease at the end of the lease term, the LL/TE Act is silent as to what remedies a tenant has if the landlord refuses to renew the lease.

There have been many documented cases around the state of Florida in which landlords have unjustifiably nonrenewed tenants’ leases where those tenants have paid the rent on time and abided by all provisions in the lease agreements. In one case documented by WKMG, a CBS station in central Florida, the tenant had received a certificate of good tenancy from the landlord, but was nonrenewed without any reason after 16 years of residence in that apartment complex.2 This particular landlord had numerous vacant units at the time, and the tenant had even offered to pay a higher rent to remain, however, the lease was nonrenewed.

Common law rules govern what a landlord is permitted to do in nonrenewal of lease situations in Florida. A brief history of how common law evolved with respect to our Florida law system in landlord-tenant relations reveals why the LL/TE Act is silent on this issue. Florida adopted the common law and statute laws of England as of July 4, 1776.3 & #x201c;Unfortunately, Florida and other American States found themselves laboring under a truncated version of common law with regard to the evolution of the residential landlord’s” transactions with tenants, and were thereby unable to accept the fluid development of common law that took place in England after 1776 and the social changes created by the industrial revolution.4 Florida and other states’ residential landlord-tenant law was based on the landlord’s having a contract for farming. One case exemplified how difficult it was for the American courts to deal with social change when the tenant was held liable for rent for a tenement house that was destroyed by fire.5

Traditionally, a lease was considered a conveyance of an interest in land, and courts tended to use special rules governing property transactions to resolve controversies in leases.6 It was not until the 1960s that a revolution in American landlord-tenant law erupted with a direction that landlord-tenant transactions be based on pure contract theory.7 Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970), was one of the first ground-breaking cases to hold that “courts have a duty to reappraise old doctrines in the light of the facts and values of contemporary life; particularly old common law doctrines which the courts themselves created and developed.”8 Florida did not follow the pure contract theory as espoused by Javins and its progeny.9

However, there is a lesson to be learned from the ruling in the Javins case.10 Changing rules in landlord-tenant laws in a piecemeal fashion by the courts may lead to frequently conflicting decisions which do not assist either the landlord or the tenant in understanding his or her legal rights.11

Currently in Florida, common law rules permit landlords to remain silent as to their rationale for not renewing leases. This creates uncertainty and anxiety for tenants who feel that they have not materially violated the lease terms. Landlords argue that they may terminate leases for any reason and in secrecy under common law.12 The author asserts, however, this argument is misplaced.

Common law rules apply as a common sense safeguard against arbitrary actions and in this case, arbitrary nonrenewal of leases. The two principal foundations of common law are established customs and established rules and maxims.13 & #x201c;Law is the perfection of reason, that it always intends to conform thereto and that what is not reason is not law.”14 & #x201c;Not that a particular reason of every rule in the law can be precisely aligned, but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well-founded.”15

The common law practice of nonrenewal of leases was traditionally permitted when the landlord needed to sell the property; the rental property was condemned or destroyed through natural disaster or other governmental or administrative action; or the rental property was changed for other personal or business use not relating to residential tenancies. Nonrenewal of a lease of a complying tenant was not a condition accepted or anticipated by the common law.

Recent actions by landlords, however, in nonrenewing tenants’ leases are creating grave hardship for tenants, and in the author’s opinion are “flatly contradictory to reason” and common sense.16 Why would landlords not renew leases of tenants who are making timely rental payments and abiding by the lease conditions?

The answer may be in the unbridled discretion of landlords, particularly the large corporate apartment complexes, to engage in arbitrary business practices. Since the rules affecting nonrenewals are not codified, landlords have no requirement to keep good tenants. There is a severe shortage of rental units in Florida, particularly in light of many condo conversions; thus, landlords have the power to arbitrarily take actions to nonrenew complying tenants.

The LL/TE statute has no section addressing a tenant’s right to remain in tenancy past the contractual lease termination date. The landlord has no contractual or common law duty to make any good faith efforts to renew a lease of a complying tenant. There are only limited safeguards for tenants in F. S. §83.64 where a nonrenewal or eviction, if deemed retaliatory, can be challenged.

In some instances the tenant can challenge the nonrenewal or eviction.17 Those instances include if a tenant contacts a governmental agency to complain about building, housing, or health codes; organizes, encourages, or participates in a tenants’ organization; writes complaints to the landlord regarding maintenance problems pursuant to F.S. §83.56(1); or if the tenant is a service member who has terminated the rental agreement, and the landlord terminates the lease or proceeds to evict the tenant. The probability of a tenant successfully challenging a nonrenewal under this statutory remedy is rare.18 However, the conditions required to trigger the statutory protections noted above are inapplicable to the nonrenewal issue highlighted in this article. The nonrenewals cited seem to have been arbitrary and without any factual basis.

Most leases in Florida today do not contain renewal clauses, and those leases that do usually permit only a month-to-month lease. Traditionally, tenants are given only 30 to 60 days notice to vacate the rental unit after a lease expires. This short notice imposes grave hardship on many tenants to locate affordable housing. In those instances, where tenants have exigent personal circumstances, such as prolonged chronic illnesses or inability to locate schools for their children in time for the school year, the shortened time frame for relocation is burdensome and expensive. The protections under F.S. §83.64 are inapplicable to these tenants and they have no recourse to challenge the arbitrary nonrenewals.

If leases are treated as contracts, as they should be, then the general principles of good faith and commercial reasonableness should apply.19 For instance, in the lease assignment context, there is case law that states

where the lease merely contains a provision, without more, granting a person, normally a landlord, the power to withhold consent, regardless of whether explicitly qualified to reasonable exercises of the power…[a landlord’s] refusal to consent to a person acceptable [for assignment to the lease], by reasonable commercial standards, to be an unreasonable exercise and thus violative of the lease.20

Unfortunately, this general principle of good faith and commercial reasonableness is neither followed nor recognized in the nonrenewal of lease context. Perhaps that is because Florida does not follow a pure contract theory with respect to landlord-tenant transactions.

In the author’s opinion, Florida legislators should insert a provision in the LL/TE Act to protect such tenants from arbitrary nonrenewal of leases. The remedy could provide tenants at least six months’ notice to move or grant them one more renewal. If the lease term is for one year, then a one-year renewal could be given. If the lease is for seven months, for example, a seven-month renewal could be granted corresponding with the previous lease term.

Opponents of additional statutory protections for complying tenants cite the rule against perpetuities as preventing any such protection being implemented.21 However, that rule will not apply if the LL/TE statute clearly states that if a landlord wishes to nonrenew, but the tenant wishes to renew, a one-time renewal of the lease should be granted.22

Case law supports the proposed provision that permits a landlord to only grant one renewal of the lease. For instance, “in the absence of unambiguous terminology indicating the intention of the parties to provide for plural renewals, it is generally held that the covenant to renew is satisfied by one renewal and does not require the intersection of a renewal clause in the instrument” under which the lessee is permitted to remain.23 In other words, the court in Hutson v. Knabb, 212 So. 2d 362 (Fla. 1st DCA 1968), held that the term “renewal” imports a new lease for the same period of time and on the same terms, but without any covenant for a further extension. Therefore, critics of the proposed amendment to the LL/TE statute should be assured that the rule against perpetuities will not be violated if the law is amended.

Furthermore, if landlords are only required to grant a one-time renewal of the lease and not pay for moving expenses if they wish to renew, an abuse of the law would not occur. Only complying tenants with a bona fide desire to remain in the rental property would be subject to the proposed law renewing the lease.

It is interesting to note that, although complying tenants are not protected from arbitrary nonrenewal of leases, lawmakers have protected landlords’ interests in assessing liquidated damages to tenants who do not give notice when terminating their leases before the lease term ends.24 Although proposed legislation was vetoed by the governor, several bills were proposed and passed by the Florida House of Representatives and Florida Senate in the 2007 legislative session to permit landlords to assess two month’s rent if a lease is terminated by a tenant prior to the expiration of the lease and to charge back any rent concessions that were given to the tenants.25 Landlords in Florida have profited because of the significant demand for a decreasing supply of rental units available in Florida. Therefore, if the legislature wishes to protect the financial interests of landlords, it is the author’s view that the law should protect the tenants who are materially affected by arbitrary nonrenewal of leases.

Complying tenants experience significant financial and emotional hardship when they are forced to move with only 30 to 60 day’s notice as a result of arbitrary nonrenewal of leases. Those tenants with fixed or low income, if displaced from their apartments or rental units, are at a grave disadvantage for finding suitable, affordable housing with short notice. Other states have addressed this issue and enacted some ameliorative laws to combat the problem.

Rhode Island has recognized tenants’ rights on this issue of nonrenewal without cause and have required that landlords give tenants at least three month’s notice if they decide to terminate the lease and nonrenew.26 Several other states have codified the general practice on nonrenewals to make a good faith effort to prevent “surprise nonrenewal of leases.” Many of those states have rejected the view that a landlord has an absolute right to nonrenew complying tenants. In the author’s opinion, those states have rightly accepted the view that housing is a human right and lack of it could have dire consequences for all of us.27

In a recent poll taken in the Central Florida area by a TV news station, 57 percent of viewers expressed that the laws should be amended to prevent arbitrary nonrenewal of leases.28 Landlord-tenant law practitioners could attempt to use the general contract principles of good faith and commercial reasonableness to convince landlords to renew leases of complying tenants in the short run. However, since Florida does not follow a pure contract theory with respect to landlord-tenant transactions, it is highly unlikely that this case strategy would be successful. For this reason, the author believes the time has arrived for legislators to review the LL/TE statute carefully and amend it to prevent arbitrary nonrenewal of leases. In the long run, this will help landlords realize that it is good business practice to keep good tenants in their residential units.

In a time of scarcity of affordable housing, the landlord and tenant have harshly conflicting positions. In theory, the landlord and tenant have seemingly equal rights under the law to decline to renew a lease; however, the tenant, in some instances, will suffer drastic consequences of an unwanted refusal to renew. Usually, if forced from his or her cherished rental home with short notice, the tenant will have difficulty finding a new rental unit with comparable benefits. If the tenant, however, does not wish to renew, the landlord will have little difficulty locating other tenants. This asymmetry is exacerbated by the present state of Florida law with respect to renewal of leases for complying tenants, but its harshness could be lessened by changes in the LL/TE statute.

Changes in the law which restore the balance between landlords and tenants could actually benefit both parties. A complying tenant who is not subjected to a surprise nonrenewal will take better care of the property because the tenant is confident about his or her rights. Such a tenant might be more interested in reporting crime, vandalism, and serious property defects that need to be taken care of immediately and generate better relations with the landlord’s managers. The development of consumer rights in the context of landlord-tenant transactions over the past 100 years has not harmed the residential rental industry, and development of tenants rights in the renewal of leases might actually benefit landlords by making their properties safer, more secure, and more valuable.

1 Fla. Stat. Ch. 83, Part II (Residential Landlord and Tenant Act).
2 WKMG Problem Solvers, CBS Station, Orlando, FL, March 26-28, 2002.
3 Fla. Stat. §2.01(“The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the fourth of July, 1776, are declared to be of force in this state; provided the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the legislature of this state.”); John J. Boyle, Landlord Remedies in Florida, Ch.1, p. 9 (Lexis Law Publications 1987-1997).
4 John J. Boyle, Landlord Remedies in Florida, Ch.1, p. 9 (Lexis Law Publications 1987-1997).
5 Graves v. Berdan, 26 N.Y. 498 (1863).
6 Landlord Remedies in Florida at Ch. 1, p. 9.
7 Id.
8 See Spencer v. General Hospital of the District of Columbia, 138 U.S. App. D.C. 48, 53 (1969).
9 Landlord Remedies in Florida at Ch. 1, p. 13b; See generally State v. DeAnza Corp., 416 So. 2d 1173, 1175 (Fla. 5th D.C.A. 1982) (The lease of real estate is not a “consumer transaction.”).
10 Javins v. First National Realty Corporation, 428 F.2d 1071, 1075 (1970).
11 Id.
12 Jeffrey A. Brauch, Is Higher Law Common Law? 125 (1999).
13 Id.
14 Brauch, Is Higher Law Common Law? 125.
15 Russell Kirk, The Roots of American Order (2003), cited in Brauch, Is Higher Law Common Law? 127 (1999).
16 Id.
17 Fla. Stat. §§ 83.60(1) and 723.063(1).
18 Pilver vs. Lenox Realty Services, Ltd. d/b/a Lenox Apartments, 14 Fla. L. Weekly Supp. 349 (13th Judicial Circuit, Hillsborough County, FL, August 2, 2006) (Tenant was evicted by landlord on pretext that he failed to move after nonrenewal of lease and did not pay double rent. Record revealed that landlord had nonrenewed lease because tenant had complained to code enforcement about the chronic problem with malfunctioning plumbing that landlord failed to fix. Despite record at trial level, tenant had to appeal eviction and damages award to landlord in order to get any relief from arbitrary nonrenewal; note no award of costs made to tenant even though eviction was ultimately reversed.).
19 Fernandez v. Vazquez, 397 So. 2d 1171,1173 (Fla. 3d D.C.A. 1981).
20 Id. at 1174; Homa-Goff Interiors, Inc. v. Cowden, 350 So. 2d 1035, 1038 (Ala. 1977); Arrington v. Walter E. Heller International Corp., 30 Ill. App. 3d 631, 633 N. E.2d 50, 58(1975) (lessor not permitted to arbitrarily and capriciously withhold consent to an assignment of a commercial lease).
21 G. Thompson, Real Property, §1122 (1980).
22 Sisco v. Rotenberg, 104 So. 2d 365, 368 (Fla. 1958); Sheradsky v. Basadre, 52 So. 2d 599,603(Fla. 3d D.C.A. 1984); Schroeder v. Johnson, 696 So. 2d 498 (Fla. 5th D.C.A. 1997).
23 Hutson v. Knabb, 212 So. 2d 362, 364 (Fla. 1st D.C.A. 1968).
24 Fla. Stat. §§83.575(1) and 83.575(2).
25 H.B. 1277, 2730 and S.B. 880, 1596 (2007); H.B. 1277 passed both the Florida Senate and House of Representatives, but was vetoed by Gov. Charlie Crist on May 24, 2007.
26 R.I. Gen. Laws 34-18-37 (2007) (if written lease for at least one year, then three months written notice to terminate and nonrenew must be given to tenant).
27 Universal Declaration of Human Rights, Article 25(I) adopted and proclaimed by the General Assembly Resolution 217A(III), December 10, 1948 (“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, shelter, and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or lack of livelihood in circumstances beyond his control.”)(Emphasis added.).
28 Local6.com Web Survey, WKMG, CBS station, Orlando, FL, May-August 2003.

Roshani M. Gunewardene practices landlord-tenant, immigration, consumer, and criminal law in Central Florida. She received her J.D. from the University of Connecticut and LL.M. from Columbia University, where she was associate editor of the Colombia Business Law Review.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Melissa Murphy, chair, and William P. Sklar and Richard R. Gans, editors.

Real Property, Probate and Trust Law