Florida Law: non-specific advanced notice of entering

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Florida Law: non-specific advanced notice of entering

Alexander V.
United States · Member since 2019 · 52 posts · 76 votes

I just had an interesting exchange...

I'm both a landlord and a tenant in Florida. While I always give specific advanced notice of entering to my tenants (e.g. I tell them exactly what day and time I will be there), my landlord just attempted something that seems unusual to me. He just emailed me that he will enter my apartment "sometime within 1 to 4 WEEKS" and said that this email constitutes advanced notice under Florida's required notice law. The law in Florida is that "tenants must be given at least 12-hours advance notice before landlord may enter." It doesn't actually say that the entry time needs to be specified.

Obviously, a standing notice like this is completely useless. I have no idea what time, what day, or even what week he may choose to barge in. But is such a uselessly broad standing notice legally compliant? Can you really get around the law so easily by saying "I will enter your apartment sometime within 6 months" and then just enter whenever you want since this "notice" was technically more than 12-hours in advance? I wouldn't do this to my tenants anyway even if I could, but it doesn't seem legal to me since the notice conveys essentially no meaningful information. It is not a notice of any specific entry, it's a blanket statement that does not prepare the tenant at all.

It isn't a big deal, but to understand this facet of the law better, does anyone know if this is legal in Florida (or other states that have advanced notice laws, for that matter)?

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Matt Devincenzo
Investor · Clairemont, CA · Member since 2011 · 3k+ posts · 2k+ votes
5y

I'll agree with the general sentiment that this notice is not 'reasonable', and generally the provision for notice centers around the idea of repairs and maintenance. Obviously he can inspect etc, but again reasonable...inspecting every day would be seen as harassments I'm sure. I would not whip the statute out, but would reach out and have a plain conversation about what it is he needs and why etc. Maybe the explanation helps understand the reasoning for a 3 week window...like an appraisal window he's received or a contractor's schedule that is also variable (just random ideas). 

If he has a decent explanation then you can easily say, "Great I completely understand and will do my best to make this work for you! Since it is such a large window I really can't plan for that length of time, so could you please let me know the day before...or even the day of 6-8 hours before hand...when specifically they would be by? Now that I know it's within the next three weeks I can just make sure I'm prepared for the last minute notice and it won't be an issue. But I really can't reasonably be expected to be prepared all day everyday for 21 straight days!

If that conversation doesn't go well, then you can go to the statute and argue your point...but hopefully a conversation resolves this. 

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  • Karen A.
    Rental Property Investor · Bradenton, FL · Member since 2017 · 41 posts · 28 votes
    5y
    The landlord needs a specific reason to enter, see FS 83.53(1).  Did he give you the specific reason?
    I would say that the 1-4 week time period violates FS 83.53(3), because it's "abusing the right of access", and possibly "harassing" you.  Tell your landlord you'd appreciate setting up a specific time that you both agree on.
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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    5y

    From Black's Law Dictionary: "The term reasonable is a generic and relative one and applies to that which is appropriate for a particular situation."  I would contact the landlord and advise him/her I believe the current notice is not reasonable and require the appointment window to be partially closed.

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  • Matt Devincenzo
    Investor · Clairemont, CA · Member since 2011 · 3k+ posts · 2k+ votes
    5y

    I'll agree with the general sentiment that this notice is not 'reasonable', and generally the provision for notice centers around the idea of repairs and maintenance. Obviously he can inspect etc, but again reasonable...inspecting every day would be seen as harassments I'm sure. I would not whip the statute out, but would reach out and have a plain conversation about what it is he needs and why etc. Maybe the explanation helps understand the reasoning for a 3 week window...like an appraisal window he's received or a contractor's schedule that is also variable (just random ideas). 

    If he has a decent explanation then you can easily say, "Great I completely understand and will do my best to make this work for you! Since it is such a large window I really can't plan for that length of time, so could you please let me know the day before...or even the day of 6-8 hours before hand...when specifically they would be by? Now that I know it's within the next three weeks I can just make sure I'm prepared for the last minute notice and it won't be an issue. But I really can't reasonably be expected to be prepared all day everyday for 21 straight days!

    If that conversation doesn't go well, then you can go to the statute and argue your point...but hopefully a conversation resolves this. 

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    5y

    F.S. 83.53 Landlord’s access to dwelling unit.—(1) The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.(2) The landlord may enter the dwelling unit at any time for the protection or preservation of the premises. The landlord may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. “Reasonable notice” for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The landlord may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:(a) With the consent of the tenant;(b) In case of emergency;(c) When the tenant unreasonably withholds consent; or(d) If the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the landlord of an intended absence, then the landlord may enter only with the consent of the tenant or for the protection or preservation of the premises.(3) The landlord shall not abuse the right of access nor use it to harass the tenant.

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  • Alexander V.
    OP
    United States · Member since 2019 · 52 posts · 76 votes
    5y
    Originally posted by @Matt Devincenzo:

    I'll agree with the general sentiment that this notice is not 'reasonable', and generally the provision for notice centers around the idea of repairs and maintenance. Obviously he can inspect etc, but again reasonable...inspecting every day would be seen as harassments I'm sure. I would not whip the statute out, but would reach out and have a plain conversation about what it is he needs and why etc. Maybe the explanation helps understand the reasoning for a 3 week window...like an appraisal window he's received or a contractor's schedule that is also variable (just random ideas)...

    The reason is a simple filter replacement. This is obviously a legitimate reason, but the repair team definitely does not need a month long open interval to walk in and spend 30 seconds to put a new filter in my utility closet. Management are maintenance are not "bad" per se (don't harass anyone and do maintain the property), but I get the feeling that they aren't particularly well organized or professional. I can't think of any reason for giving an open interval like that except as an excuse to not bother keeping a schedule. Keeping a schedule and log of tasks over dozens of apartments takes a consistent effort. 

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  • Alexander V.
    OP
    United States · Member since 2019 · 52 posts · 76 votes
    5y

    I sent a friendly email requesting a more specific notice closer to the date of entry, and his response was "this is your notice of entry." I don't think they want to bother keeping a schedule, and this allows them to shirk that responsibility. The repair team is on-site and a filter replacement from grabbing the part from their storage area to installing it in my apartment would in total take less than 5 minutes, so there's really no other excuse.

    As far as quoting the statute, that specific statute unfortunately gives an explicit definition of "reasonable notice," and the definition is purely that the notice must be "at least 12 hours prior to entry." I'm mainly wondering if there is a different statute or I'm misinterpreting it, because it seems wide open for this sort of abuse. It says nothing about being specific, and "reasonable" is not left open to interpretation.

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  • Austin F.
    Investor · MI · Member since 2015 · 227 posts · 478 votes
    5y

    It seems wide open and open to abuse, but I certainly feel like a 1 to 4 week window for anything is UN-reasonable, and I believe anyone would agree with that

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  • Matt Devincenzo
    Investor · Clairemont, CA · Member since 2011 · 3k+ posts · 2k+ votes
    5y

    Yeah I'd never expect a 3 week window for a filter replacement. As far as 'reasonable' to Peter's point legal terms have legal definitions and in this case reasonable includes 'that which is appropriate to a specific situation'. a three week window for a 30 second filter change is not an appropriate window for this situation. Section 3) is your statue 'The landlord shall not abuse the right of access'...their advance notice is reasonable, and the work time they will be there it is assumed will be reasonable, but their long window is an abuse of the notice. 

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    5y

    I'm not an atty and this is not legal advice but I've handle a lot of litigation over contract disputes the years and in my opinion the statute definition of reasonable relates to repairs while I believe AC filter replacement is maintenance and would so argue.  I would also pull out a copy of the lease and see what that provides because that might override the statute.  I would also suggest to management that if they have the filter at the management office I'll come by, pick it up and change it myself saving them the time.

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  • Karen A.
    Rental Property Investor · Bradenton, FL · Member since 2017 · 41 posts · 28 votes
    5y

    FYI, nothing in a lease can override a statute. Statutes always override a lease (F.S. 83.47)

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    5y
    Originally posted by @Karen A.:

    FYI, nothing in a lease can override a statute. Statutes always override a lease (F.S. 83.47)

    I believe some statutory rights can be waived by contract.  In this case we're discussing the definition of the word "reasonable".  Do you have some support for your claim that you and I can't enter into a lease that defines "reasonable" in a different way than the statute?

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  • Karen A.
    Rental Property Investor · Bradenton, FL · Member since 2017 · 41 posts · 28 votes
    5y

    @Peter Walther I think we could agree on anything and put it into a contract, but that doesn't mean that part of the contract could be upheld in court if it contradicts a statute.

    For example, I had a tenant one time who signed a lease with their (former) landlord.  The lease said they had to give 60 days notice to vacate while they were on month-to-month, otherwise they'd owe penalties.  The tenants signed this lease, thereby agreeing to its terms.  But the statute says they only need to give 2 weeks notice.  When it came time for the tenant to leave that rental and come to mine, the landlord (an apartment complex) tried to enforce that part of their lease and collect penalties for less than 60 days notice.  They even showed the tenant the lease and where it stated that.  The tenant was dismayed.  So my husband called the apartment complex and quoted the law to them and boy did they back down FAST.  The tenant was released from the month-to-month with no penalties, and had several happy years with us until they bought their own house.

    I know that the apartment complex knew their clause was illegal, which is why they backed down so fast.  But they try to bully people so they can get more money.  It's shameful, really.

    As for the definition of "reasonable,"  ultimately that is up to a judge to decide if it gets that far.  Another example:  I recently had a tenant who left a lot of marks on the walls, so much that we had to repaint the whole house.  She thought it was "reasonable wear and tear" and shouldn't have to pay for painting.  I did not think it was "reasonable" at all.  It went to court.  The judge agreed with me.  Case closed.  :-)

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    5y
    Originally posted by @Karen A.:

    @Peter Walther I think we could agree on anything and put it into a contract, but that doesn't mean that part of the contract could be upheld in court if it contradicts a statute.

    For example, I had a tenant one time who signed a lease with their (former) landlord.  The lease said they had to give 60 days notice to vacate while they were on month-to-month, otherwise they'd owe penalties.  The tenants signed this lease, thereby agreeing to its terms.  But the statute says they only need to give 2 weeks notice.  When it came time for the tenant to leave that rental and come to mine, the landlord (an apartment complex) tried to enforce that part of their lease and collect penalties for less than 60 days notice.  They even showed the tenant the lease and where it stated that.  The tenant was dismayed.  So my husband called the apartment complex and quoted the law to them and boy did they back down FAST.  The tenant was released from the month-to-month with no penalties, and had several happy years with us until they bought their own house.

    I know that the apartment complex knew their clause was illegal, which is why they backed down so fast.  But they try to bully people so they can get more money.  It's shameful, really.

    As for the definition of "reasonable,"  ultimately that is up to a judge to decide if it gets that far.  Another example:  I recently had a tenant who left a lot of marks on the walls, so much that we had to repaint the whole house.  She thought it was "reasonable wear and tear" and shouldn't have to pay for painting.  I did not think it was "reasonable" at all.  It went to court.  The judge agreed with me.  Case closed.  :-)

    According to the Florida Supreme Court in Hernandez v. Crespo, No. SC15-67, 2016 Fla. LEXIS 2718 (Fla. Dec. 22, 2016): 

    “Parties may contract freely around a statute, but ‘a contractual provision that contravenes legislative intent in a way that is clearly injurious to the public violates public policy and is thus unenforceable.’” 

    Perhaps the landlord in your first illustration either didn't know the law or decided the fight wasn't worth the effort.

    As to reasonable, if the contract defines a term, I believe a court will be obligated to interpret the definition using the common understanding of the  language.  For example, if a lease defines "reasonable time for notice of entry to conduct maintenance" as "no less than 24 hours but no more that 4,320 hours", I believe a court would be bound to enforce the plain reading of the contract.

    It has often been said of me, often wrong, but never in doubt.  I'd love to read any Florida cases you're aware of that that demonstrates I'm wrong.

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  • Karen A.
    Rental Property Investor · Bradenton, FL · Member since 2017 · 41 posts · 28 votes
    5y

    @Peter Walther  I think what you stated in the case decision perfectly illustrates my point.  What that apartment complex was trying to do does try and get around legislative intent AND was injurious to a tenant who just wanted to exercise their right to leave.  Otherwise the apartment complex is essentially holding them hostage (most landlords can't afford to "hold" a property for 60 days without payment and most tenants can't afford to pay double rent for 60 days.)  So therefore you could argue that it's unenforceable.

    You may be right about a contract defining the term "reasonable" by listing the hours.  But I didn't think that was case in the OP's scenario.

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  • Peter Walther
    Specialist · Winter Springs, FL · Member since 2009 · 1k+ posts · 747 votes
    5y
    Originally posted by @Karen A.:

    @Peter Walther  I think what you stated in the case decision perfectly illustrates my point.  What that apartment complex was trying to do does try and get around legislative intent AND was injurious to a tenant who just wanted to exercise their right to leave.  Otherwise the apartment complex is essentially holding them hostage (most landlords can't afford to "hold" a property for 60 days without payment and most tenants can't afford to pay double rent for 60 days.)  So therefore you could argue that it's unenforceable.

    You may be right about a contract defining the term "reasonable" by listing the hours.  But I didn't think that was case in the OP's scenario.

    I think you're conflating a matter that may be injurious to the individual tenant involved in the dispute with one that is injurious to the public at large.  If your position was correct, parties would never be able to contract around a statute making the Supreme Court's  statement superfluous.  This article might help in understanding the difference.  When Does a Contract Violate Public Policy? - Williams Mestaz

    As to "reasonable", I don't know if it's in the lease at issue.  That's why I suggested pulling it out and reading it.

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