The sky is falling…does the tenant still have to pay rent?

It’s a common commercial landlord-tenant showdown – a tenant accuses its landlord of failing to make repairs and threatens to withhold rent. But can a tenant legally do that? If the lease doesn’t address the issue, Florida law says the answer is yes, but with some conditions.

For commercial tenancies where the lease is silent on a procedure for making repairs or maintenance and whether rent must be paid, Section 83.201 of the Florida Statutes governs. Under the statute, where a landlord fails or refuses to make repairs or maintain the premises, the tenant can withhold rent as long as the tenant provides a written notice and the premises are “wholly untenantable.”

The notice must say that the premises are “wholly untenantable” and give the landlord at least 20 days to make the repairs or maintenance, which the tenant must specifically describe.  The notice must also say that the tenant will withhold rent until the landlord makes the repair or maintenance.

The statute doesn’t define “wholly untenantable,” but a Florida court has. In v. Eller Drive Properties, Inc., 813 So.2d 254 (Fla. 4th DCA 2002), the Fourth District Court of Appeal held that if a tenant occupies any part of the premises, the premises are not “wholly untenantable.”  In, the tenant withheld rent over an air conditioning malfunction, but its employees continued to work in the premises.

The court ruled that the tenant did not have the right to withhold the rent because the premises were not “wholly untenantable” if the tenant continued to use them. Plus, the court ruled that the landlord never refused to make the repairs and did, in fact, make them on time.

Once the landlord makes the repair, the tenant must pay the withheld rent. If the landlord does not make the repair in time, the tenant can abandon the premises, retain the withheld rent, terminate the lease, and not be responsible for further rent.

  • Matthew R. Chait

    Matt Chait is the Managing Partner of the West Palm Beach office of Shutts & Bowen LLP, where he is a member of the Business Litigation Practice Group. His statewide practice focuses on commercial real estate and land use litigation ...

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