The year 2020 has placed a lot of pressure on residential landlords in Florida. Caught between a rock and a hard place, many are unable to evict non-paying tenants but seeing no similar relief for the mortgages, taxes, and insurance payments required during the same period. This will continue through at least September 1, 2020, in Florida after Gov. DeSantis issued Executive Order 20-180 which placed a moratorium on mortgage foreclosures and residential tenant evictions. But Executive Order 20-180 was not just a blanket extension of the prior moratoriums; there are two changes which residential landlords need to be aware of.
Bad News First: The governor’s prior orders placed a moratorium on all residential foreclosures. This moratorium now allows foreclosure proceedings to commence against borrowers and only prevents a final judgment of foreclosure if the mortgage is single-family owner occupied. For landlords, this means there is virtually no protection from foreclosure under the much more limited executive order.
Good News Second: It goes without saying that there are a number of tenants who are truly facing difficult times and there are a number of compassionate and reasonable landlords who are working with those tenants to weather this storm. But if you’re a landlord reading this because you actively sought out updates on the moratorium, you likely have unpaid rent from tenants you believe are taking advantage of the situation. The executive order now limits its moratorium on residential evictions and only prevents those evictions where the non-payment of rent is because the tenant was adversely affected by COVID-19. What this means is that a tenant would have to raise as a defense that the tenant’s non-payment of rent is due to a loss of employment, diminished wages or business income, or other monetary loss occurring during the Florida State of Emergency. While evictions will still be more difficult to obtain against non-paying tenants, the process is no longer completely closed off. The opening of this process allows landlords to pursue evictions against the worst offending tenants who are taking advantage of the pandemic to avoid lease payments.
As frustrations rise, its important landlords remember a few key things about Florida’s landlord-tenant statutes. Florida is a no-self-help state! That is one of, if not the most, important things to remember. If a tenant is not paying rent, there are only two ways that tenant is legally being removed from the property: (1) voluntarily or (2) through a court order and writ of possession served by the sheriff. Landlords cannot change locks, turn off utilities, obstruct access to the property, remove gate permission at apartments or gated communities, or take any other steps that would deprive the tenant of their rights to occupy the property. These are all considered self-help measures that are explicitly prohibited under Florida’s statutes. The penalty for any self-help violations is either (i) 3 months’ rent or (ii) the damages caused and resulting from the self-help measures taken, whichever is greater. Landlords who engage in self-help can expect to not only have their attempts at eviction frustrated going forward, but possibly having to also pay damages to the tenant.
Additionally, Florida has a clear and defined process for giving notice to tenants prior to commencing eviction proceedings that most landlords are familiar with. What landlords may be unfamiliar with is the notice provision required under the CARES Act. The federal limitations on evictions and foreclosures expired on July 25, 2020, but the CARES Act still required that landlords give tenants 30-day notice to vacate after those protections expired. In effect, that 30-day notice is tied to the July 25, 2020, expiration date, meaning any notice to vacate must give tenants until August 24, 2020, to vacate the premises. This is markedly different than the 3-day notices Florida landlords are accustomed to.
If you’re a landlord trying to navigate the ever-changing landscape, the attorneys at Marks Gray, P.A. are here to help. Feel free to contact us for a consultation.
Logan K. McEwen is an associate who practices in the areas of intellectual property, commercial litigation, tort liability, and real estate. He assists businesses in navigating registration and licensing of intellectual property, regulatory compliance, consumer relations, business-to-business agreements, and litigation. He advises on a wide array of topics from transactional reassessment, operating contracts, insurance coverage, premises liability, to corporate internal governance disputes and mergers and acquisitions. A native of Pensacola, Florida Mr. McEwen resides in Jacksonville with his wife, Darci, and two daughters. When not practicing law, he enjoys reading, playing music, and woodworking.