Senate Bill 0176c1

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    Florida Senate - 1998                            CS for SB 176

    By the Committee on Judiciary and Senators Meadows, Campbell
    and Forman




    308-1640-98

  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 $100 and the repair is of an

24  emergency nature, the tenant may notify the landlord in

25  writing of the tenant's intention to make the repair at the

26  landlord's expense by deducting the cost of repair from rent.

27  The notice must contain a statement in substantially the

28  following form:

29         Pursuant to section 83.565, Florida Statutes, I

30         am notifying you of your material noncompliance

31         with the rental agreement or section 83.51(1),

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    Florida Senate - 1998                            CS for SB 176
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  1         Florida Statutes, excluding roofs. Unless the

  2         problems listed below are repaired within 7

  3         days after you receive this notice, I will have

  4         the repairs made and deduct the cost of the

  5         repairs, up to $100, from the following month's

  6         rent. The problems are: ...(list the

  7         problems).... ...(Tenant's name, address and

  8         phone number)....

  9  Notice to the landlord must be sent by certified mail, return

10  receipt requested, unless the landlord has failed to comply

11  with s. 83.50(1), in which case notice may be by hand delivery

12  to the landlord, the landlord's representative as designated

13  pursuant to s. 83.50(1), a resident manager, or the person or

14  entity who collects the rent on behalf of the landlord.  The

15  landlord has 7 days from the date notice is received by

16  certified mail or by hand delivery to materially comply with

17  this section.  If the landlord fails to materially comply with

18  this section within the 7-day period, the tenant may have the

19  premises repaired; however, the repair cannot be made by the

20  tenant. The landlord may at any time furnish a list of

21  approved vendors to the tenant for this purpose and if the

22  landlord does so, the tenant may have the repair made only by

23  a vendor on that list. The landlord may from time to time

24  provide an updated list of vendors. If the landlord has not

25  provided a list of vendors for making repairs or no vendor is

26  specified for the type of repair needed, the repair must be

27  made by an individual or business licensed or customarily

28  engaged in making the needed repairs.  Installation,

29  servicing, and repair of any permanent, fixed electrical

30  system shall be by a licensed or registered electrical

31  contractor pursuant to part II of chapter 489, unless excluded

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    Florida Senate - 1998                            CS for SB 176
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  1  by that chapter.  Installation, servicing, and repair of any

  2  plumbing shall be by a licensed or registered plumbing

  3  contractor pursuant to part I of chapter 553, unless excluded

  4  by that chapter.  All repairs shall be completed and reflect

  5  such work standards as are normally and customarily expected.

  6  The tenant may repair and submit to the landlord an itemized

  7  statement for the repair.  A tenant's lawful payment of rent

  8  becoming due during the 7-day period does not waive his right

  9  to deduct the repair cost in the subsequent rental period.  A

10  tenant's compliance with this subsection is a complete defense

11  to an action for possession based upon nonpayment of rent.

12  This remedy is not available to the tenant more than once in a

13  6-month period.  Nothing in this section prohibits the tenant

14  from seeking any other available remedy.

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

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

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

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

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

20  to read:

21         83.60  Defenses to action for rent or possession;

22  procedure.--

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

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

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

26  the tenant may defend upon the ground of a material

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

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

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

30  83.565 or retaliatory conduct in accordance with s. 83.64.

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

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    Florida Senate - 1998                            CS for SB 176
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  1  1973] may be raised by the tenant if 7 days have elapsed after

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

  3  specifying the noncompliance and indicating the intention of

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

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

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

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

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

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

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

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

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

13  reduced to reflect the diminution in value of the dwelling

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

15  1973]. After consideration of all other relevant issues, the

16  court shall enter appropriate judgment.

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

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

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

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

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

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

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

24  under s. 83.565, he or she must pay into the court registry

25  the difference between the accrued rent alleged in the

26  complaint and the repair cost, or any other amount set by the

27  court, and must pay the rent accruing during the pendency of

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

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

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

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

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    Florida Senate - 1998                            CS for SB 176
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  1  the registry within 5 days, excluding Saturdays, Sundays, and

  2  legal holidays, after the date of service of process

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

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

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

  6  possession to issue without further notice or hearing thereon.

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

  8  documentation in support of the allegation that the rent as

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

10  housing tenants or tenants receiving rent subsidies shall be

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

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

13  local program in which they are participating.

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

15  83.64, Florida Statutes, is amended to read:

16         83.64  Retaliatory conduct.--

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

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

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

20  other civil action, primarily because the landlord is

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

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

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

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

25  situations where:

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

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

28         Section 4.  This act shall take effect July 1, 1998.

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    Florida Senate - 1998                            CS for SB 176
    308-1640-98




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 176

  3

  4  The Committee Substitute for Senate Bill 176 provides:

  5  -    that a tenant may have repairs made if the reasonable
         cost of the repairs is less than $100 and the repair is
  6       of an emergency nature;

  7  -    a form for the notice of the need for repairs which the
         tenant is to provide to the landlord; and,
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    -    that the landlord may provide to the tenant a list of
  9       approved repair vendors and that, if the landlord does
         so, the tenant may only have the repair made by a vendor
10       on the list.

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