Can a tenant withhold rent from the landlord when there are problems with the rental property?

Attorney Tom Olsen: If you're a landlord trying to evict a tenant for non-payment of rent, and then the tenants file some kind of defense saying, "Oh, well, there was a problem with the air conditioner, there was a problem with this, a problem with that, so that's why I didn't pay the rent," that's just not going to fly here.

Attorney Caleb Maggio: That's right, Tom, and that brings up an interesting point of, whether, as a tenant, can you withhold rent from a landlord when things like that break? The answer is, yes, but I see a lot of tenants go wrong here, because, in order to do such a thing, let's go with your example of the AC going out, the tenant actually has to deliver the landlord a written notice saying, "Hey, you better come and fix this within seven days, or I am holding X amount of dollars in rent from you next month."

You have to determine how many dollars of rent is that AC worth if it were working, and that is the amount you can withhold. Now, I have a lot of tenants just withhold rent without doing that notice, or they'll try to charge for some additional things like, "Oh, I had people come in and paid them to move my furniture, so I could get to the AC unit, so I could try to fix it." That stuff's not going to fly.

On the other end, the landlord also has the right to do the seven-day notice to cure, in the event the tenant is in breach of something.

Tom: That's where a lot of tenants go wrong is, they think, "Oh, the air conditioner is not working, I just won't pay the rent." In fact, Florida Statutes Chapter 83 Part II, lays out a remedy for the tenant, and that is to give the landlord a seven-day notice to-- What do you call that?

Caleb: Cure.

Tom: Seven-day notice to cure. That notice to the landlord would say, "Hey, the air conditioner is not working, and if you don't fix it within seven days, then I will withhold the rent."

Caleb: Exactly, to the proportion of the value of the AC, so say rent's $2,000, really, you ought to get yourself a realtor to determine what the value is, but say a realtor says, $500, you could withhold $500 from the next month, if it was not fixed in seven days.

Tom: I know that actual seven-day notice that the tenant gives the landlord, telling the landlord that, "Hey, you've got to fix this problem, or I'm not going to pay rent, or I'm withholding rent," that form itself, I think the language is, the tenant says, "I will withhold a reasonable amount of rent," or something along those lines. Back in the days when I would do that for a tenant, I would tell the tenant to put-- Write into that seven-day notice to the landlord how much rent they were going to withhold.

Caleb: I think that's a requirement nowadays, Tom. The way the statute is now worded, you have to specifically tell them, and it's better to specifically tell them, because then you get into a battle of, how much can you withhold, was the landlord on notice, and things like that.

Tom: I would love to see the new statute on that particular issue, Caleb, to confirm that you now as a tenant put the amount of withholding in that notice.