The Tenant’s Duty To Maintain
By Michael Geo. F. Davis, Attorney at LawWe start by recognizing that the rental premises are usually owned by the landlord, except in rare situations, such a sublease. Since it is the landlord’s real property, its upkeep is the landlord’s duty. In Florida it is the landlord’s responsibility to prepare a property for occupancy and make the repairs necessary for habitability. Further, the Florida Residential Landlord/Tenant Act (the “Act”) obligates the landlord to certain statutory responsibilities to maintain the rental premises. A landlord often cannot avoid his duty of habitability or his statutory obligations by including a lease provision purporting to waive all repairs, acknowledge habitability or accept possession “as is”. Florida statutes specifically prohibit enforcement of lease provisions that attempt to avoid the landlord’s duties arising under the Act or otherwise arising under law. However, the landlord’s duties may be modified under the rental agreement to varying degrees, depending on the type of rental unit. See our article, “The Landlord’s Duty to Maintain”, for a detailed discussion of the landlord’s duties and the permitted shifting of those duties by written agreement.
In this article we address the duties to maintain that the Act demands from the resident. The resident’s duty to maintain the rental premises can be found in FS 83.52. This statutory section’s title, “Tenant’s Obligation to Maintain the Dwelling Unit”, is somewhat misleading. The section might better state that it covers the resident’s duty to properly use the rental premises. The statute requires not only the proper physical use of the landlord’s property, but also the proper behavior of the resident and his guests on the rental premises. Note that this statutory section does not distinguish between single family homes, duplexes and multifamily rentals. The resident’s obligations are the same without regard to the type of rental premises. The resident’s failure to comply with the obligations contained in this section can be the basis for the landlord’s service of a Seven-Day Notice of Noncompliance with Opportunity to Cure. Continued noncompliance may be cause for service of a Seven-Day Notice of Noncompliance without Opportunity to Cure.
FS 83.52(1) building codes
FS 83.52(1) requires that the resident “comply with all obligations imposed upon tenants by applicable provisions of building, housing and health codes” (hereinafter just “codes” for short). This mirrors the statutory obligation of the landlord in FS 83.51 to comply with codes. The definition of “building, housing and health codes” can be found in FS 83.43(1). It is so broad that it will include almost anything that applies to housing. The resident may have obligations under the statutes, ordinances or regulations of state, county or local jurisdictions.
FS 83.52(2) clean and sanitary
The second subsection of the statute requires the resident to “keep that part of the premises which he or she occupies and uses clean and sanitary.” The definition of “premises”, which is found in FS 83.43(5), includes not only the resident’s apartment, unit or home, but also the building of which it is a part and the common areas for all resident’s use. The resident’s duty to keep clean and sanitary applies to his residence, and if applicable, to the building and common areas which the resident uses. It requires the resident to avoid littering and to pick up after himself and his occupants and guests. This does not require the resident to clean the building or common areas. That remains the landlord’s responsibility as provided in FS 83.51.
FS 83.52(3) garbage
The third subsection requires the resident to “remove from the tenant’s dwelling unit all garbage in a clean and sanitary manner.” This provision uses the term “dwelling unit” to signify that the resident’s duty is to remove the garbage from his apartment, unit or home. It does not require the resident to provide for the pick-up and removal of the garbage from the property. Again, that is the landlord’s responsibility as provided in FS 83.51.
FS 83.52(4) plumbing fixtures
The statute’s fourth subsection requires the resident to “keep all plumbing fixtures in the dwelling unit or used by the tenant clean and sanitary and in repair.” This provision speaks of “plumbing fixtures.” It is not responsibility for all the plumbing. While there may be some gray area of what is a fixture, it is clear that this provision limits the resident’s obligation. This provision requires not only that the fixtures be kept clean and sanitary, but also that the resident repair them. Assuming the fixtures, such as faucets, sinks, toilet bowls, etc., are in good repair at initial occupancy, the resident must repair the fixtures during the tenancy without regard to the landlord proving that any damage was the result of the resident’s intentional act, negligence or lease noncompliance.
FS 83.52(5) facilities and appliances
The fifth subsection states that the resident “use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators.” There is no independent duty to repair the facilities or appliances. The resident would only be responsible for the repair of the facilities or appliances if the resident (or his occupant or guests) broke or damaged them by unreasonable use or operation. If the facilities or appliances broke or malfunctioned due to some other reason, for instance due to age, the landlord is responsible for the repair.
FS 83.52(6) damage or removal
Subsection six mandates that the resident “not destroy, deface, damage, impair or remove any part of the premises or property therein belonging to the landlord nor permit any person to do so.” This is a broad general prohibition against damage or unauthorized removal of the landlord’s property. The landlord can base the resident’s liability for repair or replacement of damaged or removed property, as well as for an unauthorized alteration, on this subsection.
Issues
None of the above subsections specifically require the resident to report any needed repairs. The duty to report to prevent further damage can be surmised from the duties in FS 83.52 (1-6), but it is not an explicit obligation. As such, the landlord cannot be assured that a judge will find a duty to report under FS 83.52. The landlord also cannot be assured that a judge will find any duty to control mold in FS 83.52. Mold is mentioned nowhere in the statute. The landlord should not rely on the statute’s requirement to use and operate the ventilating and air conditioning in a reasonable manner as an admonishment to control humidity. The landlord should include appropriate lease provisions requiring the resident to report needed repairs and to control humidity/mildew/mold.
That FS 83.52(5) and (6) provide duties for reasonable use and to refrain from damage is clear. The issue faced by landlords is proving that the resident’s use or operation was unreasonable, or that the resident caused the damage or removed the property. A court may not assume that because something was in good repair at initial occupancy and it is not now, that the resident is responsible for the damage or repair. The landlord must prove that the damage was the result of the intentional act, negligence or some other noncompliance by the resident or the resident’s occupants or guests. Sometimes this can be easy, but sometimes it is difficult to prove that the damage was not the result of a cause unrelated to the resident’s use, such as an appliance malfunction.
FS 83.52(7) disturb the neighbors
The final subsection of the statute deals not with the resident’s conduct in using property but with the conduct of the resident himself. It requires that the resident to “conduct himself or herself, and require other persons on the premises with his or her consent, to conduct themselves in a manner that does not unreasonably disturb the tenant’s neighbors or constitute a breach of the peace.” Most landlords would agree that this subsection is the source of many statutory noncompliances by residents. Note one important point in this subsection. It says “unreasonably disturb the tenant’s neighbors.” Often the difficulty in enforcing this subsection is the unwillingness of neighbors to file complaints or testify in court, because they don’t want to get involved, don’t have time for court, or simply fear retaliation. Another problem can be proving that the violator was the guest of the resident, if the violator disappears and the resident denies it was his guest. The subsection provides that the resident must “require other persons on the premises with his or her consent” to act properly.
Assuming the resident’s obligations
The statute does not contain a provision for shifting the resident’s duties under the statute to the landlord by written agreement. In all likelihood that is because the resident’s duties to properly and reasonably use the landlord’s property are personal to the resident and not transferable. However, if the landlord should intentionally or inadvertently assume an obligation imposed on the resident by any codes, a court may be unwilling to invoke the statute to relieve the landlord of his obligation. Judges recognize the unequal bargaining power often inherent in the landlord/tenant relationship, as well as the fact that many leases are contracts of adhesion (leases with no real negotiations over lease provisions) prepared by the landlord. In these circumstances if the landlord has assumed a resident’s statutory obligation, he is probably stuck with it.
Requiring additional resident obligations
The statute does not state that the tenant’s obligations are limited exclusively to those enumerated in the statute. If the landlord wishes to expand the resident’s obligations for code compliance, maintenance and repair, he should first consult our article, “The Landlord’s Duty to Maintain” previously referenced. In brief, many such obligations are not transferable, and an attempt to transfer most or all of such obligations may not only be unwise from an economic/preservation of property standpoint, but may also be held void and unenforceable. However, the landlord can and should supplement the statute with appropriate lease provisions, because the obligations of FS 83.52 are not extensive and contain gaps, some of which are noted above.
Finally, while FS 83.52 places some maintenance, use and conduct obligations upon the resident, the landlord bears the burden of proving statutory noncompliances. This will often require testimony by third parties, such as neighbors or vendors making repairs. Given the difficulties of assembling the necessary proof, the reluctance of third parties to testify, and the possibility that the resident will be less than candid about the cause of the damage or disturbance, it is often better to reach a settlement with the resident for an agreed monetary amount or to agree to a vacating date.
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