House Bill 1163c1

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    Florida House of Representatives - 1997             CS/HB 1163

        By the Committee on Real Property & Probate and
    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.

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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 received by certified mail or

  2  by hand delivery, to materially comply with this section.  If

  3  the landlord fails to materially comply with this section

  4  within the 7-day period, the tenant may have the premises

  5  repaired, provided, however, the repair cannot be made by the

  6  tenant and must be made by an individual or business licensed

  7  or customarily engaged in making the needed repairs.

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

  9  electrical system shall be by a licensed or registered

10  electrical contractor pursuant to part II of chapter 489,

11  unless excluded by that chapter.  Installation, servicing, and

12  repair of any plumbing shall be by a licensed or registered

13  plumbing contractor pursuant to part I of chapter 553, unless

14  excluded by that chapter.  All repairs shall be completed and

15  reflect such work standards as are normally and customarily

16  expected.  The tenant may repair and submit to the landlord an

17  itemized statement for the repair.  A tenant's lawful payment

18  of rent becoming due during the 7-day period does not waive

19  his right to deduct the repair cost in the subsequent rental

20  period.  A tenant's compliance with this subsection is a

21  complete defense to an action for possession based upon

22  nonpayment of rent.  This remedy shall not be available to the

23  tenant more than once in a 6-month period.  Nothing in this

24  section would prohibit the tenant from utilizing any other

25  available remedy.

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

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

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

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

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

31  to read:

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    Florida House of Representatives - 1997             CS/HB 1163

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  1         83.60  Defenses to action for rent or possession;

  2  procedure.--

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

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

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

  6  the tenant may defend upon the ground of a material

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

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

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

10  83.565 or retaliatory conduct in accordance with s. 83.64.

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

12  1973] may be raised by the tenant if 7 days have elapsed after

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

14  specifying the noncompliance and indicating the intention of

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

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

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

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

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

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

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

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

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

24  reduced to reflect the diminution in value of the dwelling

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

26  1973]. After consideration of all other relevant issues, the

27  court shall enter appropriate judgment.

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

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

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

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

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    Florida House of Representatives - 1997             CS/HB 1163

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

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

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

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

  5  difference between the accrued rent alleged in the complaint

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

  7  must pay the rent accruing during the pendency of the

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

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

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

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

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

13  legal holidays, after the date of service of process

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

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

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

17  possession to issue without further notice or hearing thereon.

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

19  documentation in support of the allegation that the rent as

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

21  housing tenants or tenants receiving rent subsidies shall be

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

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

24  local program in which they are participating.

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

26  83.64, Florida Statutes, is amended to read:

27         83.64  Retaliatory conduct.--

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

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

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

31  other civil action, primarily because the landlord is

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    Florida House of Representatives - 1997             CS/HB 1163

    605-109-97






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

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

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

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

  5  situations where:

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

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

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

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