Waiver & Estoppel - Florida Evictions
September 26th, 2013
Shutting Off Utilities Costs Landlord Triple in Florida Eviction
A recent opinion out of the 17th Judicial Circuit in and for Broward County questioned whether a landlord was liable for treble damages under Florida’s constructive eviction statute. The court held that pursuant to statute, direct or indirect action by a landlord, which resulted in termination of utility services to a tenant constituted a constructive eviction and thus subjected landlord to treble damages. Smith v. Niederriter, 18 Fla. L. Weekly Supp. 1051a (Fla. Broward County Ct. 2011).
It is interesting to note that the landlord took remedial measures in the interest of accommodating the tenant during the service interruption; however, said measures were ineffectual in countering the tenant’s constructive eviction arguments, thus resulting in the award of treble damages to tenant. See text of opinion below.
RICKY SMITH, Plaintiff, vs. VIRGIL NIEDERRITER, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-5202 COCE (53). June 20, 2011. Robert W. Lee, Judge.
FINAL NET JUDGMENT IN FAVOR OF THE PLAINTIFF
This cause came before the Court for trial on June 17, 2011. In this case, Ricky Smith, as tenant, brought a claim against Virgil Niederriter, as landlord, for damages arising out of constructive eviction. At the same time, Niederriter brought a counterclaim against, Smith, for damages to property and remainder of unpaid rent on the lease between plaintiff and defendant. The Court’s having review the entire Court file; received evidence; made findings of credibility consistent with this judgment; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
This case involves a landlord-tenant dispute over damages incurred upon termination of utilities to the plaintiff’s apartment and damages. The Plaintiff is claiming that the Defendant owes him treble damages because cessation of utilities amounts to a constructive eviction. The Defendant maintains that the Plaintiff caused damages to the residence above normal wear and tear, and the Plaintiff should therefore compensate him for such damages to the apartment. The question(s) to be addressed by the Court are whether the interruption of utilities by the landlord at the tenants abode amounted to constructive eviction, and what, if any, damage the Plaintiff is liable for at the residence above normal wear and tear.
The Plaintiff, Ricky Smith, was a tenant in a 1 bedroom/1 bath apartment owned by the Defendant, Virgil Niederriter, at [Editor’s Note: Address omitted]. The Plaintiff and Defendant entered into a lease with a 1 year term beginning November 1, 2010, ending November 1, 2011. Smith moved into the apartment on November 1, 2010. Upon moving into the premises and pursuant to the written lease the Plaintiff furnished a total of $1,400.00 to the Defendant: $650.00-first month’s rent, $650.00-last month’s rent, and $100.00-security deposit. The monthly rent required by the lease was $650.00 per month. The Plaintiff’s apartment was a “mother-in-law” suite to the adjoining premises and both residences shared a single utility meter. The tenant in the adjoining property vacated the premises on November 27, 2010.
On November 28, 2010, electricity and water service (“utilities”) were disrupted at the Plaintiff’s residence. At that time, the utilities to both apartments were not held in the tenant’s name and when the adjoining property was vacated, the landlord cutoff utility service was disconnected, which affected both residences. The tenant-Plaintiff attempted to get the utilities reconnected with help from the landlord. The Defendant, however, wanted the Plaintiff to put the utilities in his own name. The Defendant knew cutting utilities to the meter would interrupt Plaintiff’s utilities. The Defendant tried to get the Plaintiff to move into another apartment in an effort to remedy the situation.
On December 4, 2010 the Plaintiff vacated the premises. Upon tenant’s vacating the premises, there was damage above normal wear and tear which caused the Defendant to have to repaint and to replace the drapes, which were admittedly removed by the tenant. The Plaintiff asserts that the Defendant’s direct or indirect interruption of utilities amounts to a constructive eviction. The Defendant contends the Plaintiff caused damage beyond normal wear and tear, and is liable for such. Additionally, Defendant claims he is entitled all rent for the entire lease term.
CONCLUSIONS OF LAW
In regards to whether the actions of the Defendant constitutes constructive eviction:
Florida Statute §83.67 reads:
1) A landlord of any dwelling unit governed by this part shall not cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord.
2) A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorneys’ fees. Subsequent or repeated violations that are not contemporaneous with the initial violation shall be subject to separate awards of damages.
Under Florida Statute §83.67 a landlord cannot take action to terminate utilities to a leased premises. Pursuant to the statute if the landlord is responsible for interruption of any utility service the landlord has created a constructive eviction, thus liable for “treble” damages which in this case would amount 3 times 1 month’s rent or $1,950.00. In this case, the Court finds that the tenant was subject to a constructiveeviction. Additionally, the Plaintiff is entitled to a credit for the $100.00 security deposit, $650.00 last month’s rent, and $43.33 refund on a prorated November rent at $650 a month or approximately $21.67 per day.
In regards to whether the actions of the Plaintiff amounted to more than normal wear and tear:
Even if a tenant is entitled to vacate premises, he is still liable for any damages above ordinary wear and tear. In this case the Court finds the Defendant caused $970.00 dollars in damages above ordinary wear and tear. Ordinary or natural “wear and tear” is deterioration or depreciation in value by ordinary and reasonable use of the subject-matter. BLACK’S LAW DICTIONARY 1593 (6TH ED. 1990). CERTAINLY IT IS NOT ORDINARY TO VACATE A RENTAL PROPERTY WITH KEYS AND DRAPES IN TOW, AND IT IS NOT REASONABLE TO LEAVE LEWD IMAGES IN NEAR INDELIBLE MEDIA ON THE WALLS OF A RENTAL UNIT. THEREFORE THE COURT FINDS THE ACTIONS OF THE PLAINTIFF CONSTITUTE HARM TO THE RENTAL UNIT ABOVE NORMAL WEAR AND TEAR. HOWEVER, THE COURT FINDS THAT THE DEFENDANT LANDLORD IS NOT ENTITLED TO ANY ADDITIONAL RENT BECAUSE THE LANDLORD’S INTERRUPTION OF UTILITIES AMOUNTS TO A CONSTRUCTIVE EVICTION. ACCORDINGLY,
IT IS ADJUDGED THAT:
THE PLAINTIFF IS ENTITLED TO THE SUM OF $2,643.33 AS DAMAGES FROM THE DEFENDANT, VIRGIL NIEDERRITER. HOWEVER, THE DEFENDANT IS ENTITLED TO A SET-OFF FROM THE PLAINTIFF, RICKY SMITH, IN THE AMOUNT OF $970.00. THE PLAINTIFF SHALL FURTHER RECOVER FROM THE DEFENDANT, VIRGIL NIEDERRITER, THE ADDITIONAL SUM OF $30.00 IN COURT COSTS. THE TOTAL RECOVERY FOR THE PLAINTIFF FROM THE DEFENDANT, VIRGIL NIEDERRITER, IS $2,743.33. THEREFORE, THE FINAL NET JUDGMENT AFTER SET-OFF OF AWARDS IS $1,803.33 IN FAVOR OF THE PLAINTIFF, RICKY SMITH. ALL SUMS AWARDED IN THIS JUDGMENT SHALL BEAR INTEREST AT THE RATE OF 6% PER ANNUM UNTIL PAID, FOR WHICH SUMS LET EXECUTION ISSUE FORTHWITH.
1The Court thanks Nova Southeastern University legal intern David Sholl for his assistance in researching the issues in this final judgment.