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The topic is "constructive eviction".

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Answered in 4 minutes by:
5/23/2018
Legal Eagle
Legal Eagle, Lawyer
Category: Legal
Satisfied Customers: 14,394
Experience: Licensed to practice before state and federal court
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Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today.

Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only. What specific questions did you have? I have an idea about your situation, but I don’t want to make any assumptions.

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Customer reply replied 2 months ago
My condo building is undergoing external repairs that started in mid March. The tenants signed a one year lease in August of last year. At that time they knew that the project would begin during the coming year. They asked for, and we granted, a reduction in the advertised rent to compensate them for the disruption to come. They enjoyed almost eight months of the reduced rent and then, shortly after the project begin, vacated the unit with three days notice and demanded ( via an attorney) that we return their security deposit. We have not done that and do not intend to. They, via their attorney, are making noises about claiming "constructive eviction" as a legal basis for their action. I am generally familiar with Florida law on this matter. Because of the agreement they proposed and benefited from, I do not think they have a case. I want to file in small claims count for the $4,800 rent remaining on the lease. What is your opinion?

Thanks for coming back. This one is a bit tough. On one hand, landlords have to provide a place that is habitable to their tenants. One of the options is an abatement of the rent for the lack of habitability. Landlords also have a responsibility to return the deposit back to a tenant minus any reasonable charges for repairs or cleaning.

In your case, the fact that they acknowledged and agreed to live there during the construction in exchange for a reduced rent means that it is improbable that a judge is going to require you to pay them anything more than you already have. Since they lived there for so long and agreed to the terms, it is not likely they were "constructively evicted." So, the fact you abated the rent in advance means that you don't owe them in my more in my legal opinion.

As far as the deposit, that will have to come back to them. Even if a tenant left, the law requires a security deposit be returned. If you don't do it now, then a judge is likely to require you to turn it over to them. A judge will likely look at this as a way to effectively resolve this matter. It won't require you to pay any more money, but it will require you to give back the deposit minus the regular charges.

Because I value your input, I would like to know whether you have any other questions for me today that I could help you with?

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Customer reply replied 2 months ago
I'm a little confused. I haven't paid them anything so far. If they were not constructive evicted, then they are in breach of the lease. I am damaged to the extent that they will not pay the rent remaining on the lease.

I'm sorry for the confusion. So, because they invalidly left the lease, you can apply the remaining security deposit to their unpaid rent. Because they don't have a good claim for constructive eviction, a court would probably not require you to give them anything back if this is the case. Accordingly, in your situation, you may want to send them a letter advising that their case doesn't have any merit, you'll be searching for new tenants, but you'll be keeping their deposit to cover whatever rent is still owed until you find a new tenant.

Does that make better sense?

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Customer reply replied 2 months ago
your last response makes sense. The tenants were sent the notice required under s83.49(3) just cover all bases. Because they did not give proper notice we were not actually required to do that -- See s83.49(5).
Now...what about going after them for the remaining rent on the lease? If I file a small claim, I would agree to mediation so I probably wouldn't get it all, but would be happy to get a portion.

Excellent. So, I think mediation is a good way to resolve matters like this. It'll keep you from having to defend false claims of a constructive eviction, but it can also allow you to get what you were owed out of this contract at the same time. I would consider as an option asking them to pay you something like the reduced rent rate for all of the days after they moved out without notice as a backup if they balk at paying the full rent. I think that this would be a fair settlement, but be prepared for some trial because they seem like shady tenants and I have reason to believe they think they can swindle a judge into seeing it their way.

Did you have any other questions for me today?

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Customer reply replied 2 months ago
We are making good progress. I have been notified that there is an issue submitting my reply. I will deal with it and be back to you shortly. Don't disappear!

No problem.

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Customer reply replied 2 months ago
Legal Eagle: It turns out that I have to leave, so it may be some time before we can continue our conversation. I will be back for sure and intend to give you a good rating. DB

Not a problem. Thanks so much!

Legal Eagle
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Customer reply replied 2 months ago
Sorry about the interruption in our conversation yesterday. Here is what I was thinking re a settlement: There were 4 months left on the lease when they bugged out -- April, May, June and July. At $1,600/mo rent that's $6,400 total, too much for small claims. But, we have their $1,600 security deposit. So, if we keep that, we are "damaged" in the amount of $4,800. I would be willing to settle for half of that. Their attorney has suggested a meeting. My guess is that they do not want to go to court over the security deposit. It is also my guess that at such a meeting, we will hear a lot about their pain and suffering and "constructive eviction." If they do not accept my offer, I am fully prepared to file in small claims court. I Have every thing prepared including witnesses (building manager) to testify that some of their claims are factually false. I assume that if I file, the matter will end up in mediation.Do you have any other advise? Do you know of any legal cases that are on point?You've been very helpfuopfu
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