House Bill 1163

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    Florida House of Representatives - 1997                HB 1163

        By Representative Roberts-Burke






  1                      A bill to be entitled

  2         An act relating to residential tenancies;

  3         creating s. 83.565, F.S.; providing for a

  4         tenant to repair the premises after notice to

  5         the landlord; providing for deduction of the

  6         costs of repair from rent due; providing

  7         limitations; amending s. 83.60, F.S.; providing

  8         for the right of the tenant to repair to be a

  9         defense to an action for rent or possession;

10         providing for the payment of certain funds into

11         the registry of the court; amending s. 83.64,

12         F.S.; prohibiting retaliatory actions by the

13         landlord; providing an effective date.

14

15  Be It Enacted by the Legislature of the State of Florida:

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17         Section 1.  Section 83.565, Florida Statutes, is

18  created to read:

19         83.565  Remedies; tenant's right to repair after

20  notice.--

21         (1)  If the landlord fails to comply with the rental

22  agreement or s. 83.51, excluding the roofs, and the reasonable

23  cost of repair is less than $250, the tenant may notify the

24  landlord in writing of the tenant's intention to make the

25  repair at the landlord's expense.  Notice to the landlord must

26  be sent by certified mail, return receipt requested, unless

27  the landlord has failed to comply with s. 83.50(1), in which

28  case notice may be by hand delivery to the landlord, the

29  landlord's representative as designated pursuant to s.

30  83.50(1), a resident manager, or the person or entity who

31  collects the rent on behalf of the landlord.  The landlord has

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  1  7 days from the date notice is mailed by certified mail or the

  2  date notice is received, if by hand delivery, to make the

  3  repairs.  If the landlord fails to make the repairs within the

  4  7-day period, the tenant may have the premises repaired.

  5  Installation, servicing, and repair of any permanent, fixed

  6  electrical system shall be by a licensed or registered

  7  electrical contractor pursuant to part II of chapter 489,

  8  F.S., unless excluded by that chapter.  Installation,

  9  servicing, and repair of any plumbing shall be by a licensed

10  or registered plumbing contractor pursuant to part I of

11  chapter 553, F.S., unless excluded by that chapter.  All

12  repairs shall be in a workmanlike manner.  The tenant may

13  deduct from the rent the actual and reasonable cost of the

14  repair and submit to the landlord an itemized statement for

15  the repair.  A tenant's lawful payment of rent becoming due

16  during the 7-day period does not waive his right to deduct the

17  repair cost in the subsequent rental period.  A tenant's

18  compliance with this subsection is a complete defense to an

19  action for possession based upon nonpayment of rent.  This

20  remedy shall not be available to the tenant more than once in

21  a 6-month period.

22         (2)  Subsection (1) does not apply if the condition was

23  created or caused by a deliberate or negligent act or omission

24  of the tenant, a member of the tenant's family, or any other

25  person on the premises with the tenant's consent.

26         Section 2.  Section 83.60, Florida Statutes, is amended

27  to read:

28         83.60  Defenses to action for rent or possession;

29  procedure.--

30         (1)  In an action by the landlord for possession of a

31  dwelling unit based upon nonpayment of rent or in an action by

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  1  the landlord under s. 83.55 seeking to recover unpaid rent,

  2  the tenant may defend upon the ground of a material

  3  noncompliance with s. 83.51(1) [F.S. 1973], or may raise any

  4  other defense, whether legal or equitable, that he or she may

  5  have, including the defense of repair after notice under s.

  6  83.565 or retaliatory conduct in accordance with s. 83.64.

  7  The defense of a material noncompliance with s. 83.51(1) [F.S.

  8  1973] may be raised by the tenant if 7 days have elapsed after

  9  the delivery of written notice by the tenant to the landlord,

10  specifying the noncompliance and indicating the intention of

11  the tenant not to pay rent by reason thereof.  Such notice by

12  the tenant may be given to the landlord, the landlord's

13  representative as designated pursuant to s. 83.50(1), a

14  resident manager, or the person or entity who collects the

15  rent on behalf of the landlord.  A material noncompliance with

16  s. 83.51(1) [F.S. 1973] by the landlord is a complete defense

17  to an action for possession based upon nonpayment of rent,

18  and, upon hearing, the court or the jury, as the case may be,

19  shall determine the amount, if any, by which the rent is to be

20  reduced to reflect the diminution in value of the dwelling

21  unit during the period of noncompliance with s. 83.51(1) [F.S.

22  1973]. After consideration of all other relevant issues, the

23  court shall enter appropriate judgment.

24         (2)  In an action by the landlord for possession of a

25  dwelling unit, if the tenant interposes any defense other than

26  payment, or repair after notice under s. 83.565, the tenant

27  shall pay into the registry of the court the accrued rent as

28  alleged in the complaint or as determined by the court and the

29  rent which accrues during the pendency of the proceeding, when

30  due.  If the tenant raises the defense of repair after notice

31  under s. 83.565, he must pay into the court registry the

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  1  difference between the accrued rent alleged in the complaint

  2  and the repair cost, or any other amount set by the court, and

  3  must pay the rent accruing during the pendency of the

  4  proceeding as it becomes due.  The clerk shall notify the

  5  tenant of such requirement in the summons. Failure of the

  6  tenant to pay the rent into the registry of the court or to

  7  file a motion to determine the amount of rent to be paid into

  8  the registry within 5 days, excluding Saturdays, Sundays, and

  9  legal holidays, after the date of service of process

10  constitutes an absolute waiver of the tenant's defenses other

11  than payment, and the landlord is entitled to an immediate

12  default judgment for removal of the tenant with a writ of

13  possession to issue without further notice or hearing thereon.

14  In the event a motion to determine rent is filed,

15  documentation in support of the allegation that the rent as

16  alleged in the complaint is in error is required. Public

17  housing tenants or tenants receiving rent subsidies shall be

18  required to deposit only that portion of the full rent for

19  which the tenant is responsible pursuant to federal, state, or

20  local program in which they are participating.

21         Section 3.  Paragraph (c) of subsection (1) of section

22  83.64, Florida Statutes, is amended to read:

23         83.64  Retaliatory conduct.--

24         (1)  It is unlawful for a landlord to discriminatorily

25  increase a tenant's rent or decrease services to a tenant, or

26  to bring or threaten to bring an action for possession or

27  other civil action, primarily because the landlord is

28  retaliating against the tenant.  In order for the tenant to

29  raise the defense of retaliatory conduct, the tenant must have

30  acted in good faith. Examples of conduct for which the

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    Florida House of Representatives - 1997                HB 1163

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  1  landlord may not retaliate include, but are not limited to,

  2  situations where:

  3         (c)  The tenant has complained to the landlord pursuant

  4  to s. 83.56(1) or s. 83.565.

  5         Section 4.  This act shall take effect July 1, 1997.

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  8                          HOUSE SUMMARY

  9
      Revises the Florida Residential Landlord and Tenant Act
10    to:
           1.  Authorize a tenant to repair the premises after
11    notice to the landlord under described circumstances and
      to deduct the costs of such repairs from the rent due.
12         2.  Provide that the right of the tenant to repair
      may be a defense to an action for rent or possession and
13    to provide for the payment of described funds into the
      registry of the court.
14         3.  Prohibit retaliatory actions by the landlord.

15    See bill for details.

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