|FROM:||The Legal Taxi|
|RE:||Whether a tenant is liable for rent and repairs accruing during a co-tenant's holdover|
Whether a tenant is liable for rent and repairs accruing during a co-tenant's holdover.
Client and her husband rented one side of a duplex from Samuel and Sharon Marynick for several years. Their last written lease was jointly executed in 2011, for a twelve-month term ending on February 28, 2012. The lease included that Tenant should remain in possession of the demised premises with the consent of Lessor after the natural expiration of this lease, a new tenancy from year to year shall be created between Lessor and Tenant which shall be subject to all the terms and conditions hereof but shall be terminable by 60 days notice. Ten days before the lease expired, Client separated from her husband and vacated the premises. The tenant gave notice to the landlord that she ceases to hold the leased premises. The lessor is asking whether a tenant who has vacated the leased premises before the end of the term is liable for rent and repairs accruing during a cotenant's holdover tenancy. The landlady wants to hold both H&W liable (assuming H defaults at some point). Since W left early, can she avoid liability?
Standard Research Memo
- Highlighted Copies of Key Cases.
- Summaries of Key Cases.
Whether tenant is liable for rent and repairs accruing during a cotenant's holdover.
Florida statutes and case law
Based on the facts provided in this query, it is pertinent to note that Andrea and her husband entered into a lease for fixed period. The law of tenancy states that upon expiration of a lease if the tenant holds over in the possession of the premises without renewing the lease by some further instrument of writing, then the hold over shall be construed to be a tenancy at sufferance . Our research therefore addresses the following topics: the specific term of the tenancy, whether Andrea remains a co-tenant, whether she avoids liability, and is a choice available to the landlord.
Tenancy was for Specific Term
Andrea and her husband entered into a lease agreement that was jointly executed in 2011 for a twelve-month term ending on February 28, 2012.Based on this specific term, Florida Statute § 83.575 defines “termination of tenancy with specific duration”:
- A rental agreement with a specific duration may contain a provision requiring the tenant to notify the landlord before vacating the premises at the end of the rental agreement; however, a rental agreement may not require more than 60 days’ notice before vacating the premises.
Because this tenancy was for a definite term, it may not require tenant to give notice in order to terminate, it simply expires at the end of the contract period.
Did Andrea remain to be a co-tenant after termination of lease?
The lease stated that, “a new tenancy would be subject to the same terms and conditions as the original tenancy, but the holdover tenancy would be from year to year, terminable by 60 days notice." Thus, under the express terms of the lease, this holdover tenancy was a new tenancy rather than an extension or renewal of the original lease.
While interpreting the Fla. Stat. § 83.04 in Painter v. Groveland, 79 So. 2d 765, 767 (Fla. 1955) the court states:
Upon the expiration of a leasehold term created by an instrument in writing, if the tenant shall hold over in the possession of the premises without renewing the lease by some further instrument of writing, then such holding over "shall be construed to be a tenancy at sufferance, and the mere payment or acceptance of rent shall not be construed to be a renewal of the said term.
The court in Brown v. Markham 56 Fla. 20248 So 39, 42, ruled:
A holding over under a written lease containing an option to renew is "subject to the provisions of" § 83.04, and that, in the absence of an instrument of writing extending the lease, the lessee was a tenant at sufferance.
The common law holdover rule was discussed by the court in Sholts v. Beers, 270 So. 2d 434, 435-436 (Fla. Dist. Ct. App. 4th Dist. 1972), it states:
When one cotenant has exclusive possession of lands owned as tenant in common with another and uses those lands for his own benefit and does not receive rents or profits there from, such cotenant is not liable or accountable to his co-tenant out of possession unless such co-tenant in exclusive possession holds adversely or as the result of ouster or the equivalent thereof.
The court in its dissenting opinion discussed an exception:
The cases abundantly illustrate that in many instances continued ownership of real estate by two or more persons is likely to prove awkward and unsatisfactory because of a difficulty, or practical impossibility, of satisfactory concurrent personal use or occupancy. The difficulty of course is most acute where the property consists of a single small residence or a small place of business, and it is with reference to property of the latter character that some of the cases have departed from the principles usually applied to co-tenancies and have held the occupying co-tenant liable respecting the rental value even though he does not deny the co-tenancy or the equal rights of his co-tenants and is guilty of nothing except making a normal use of the property 20 Am.Jur.2d, Co-tenancy and Joint Ownership, § 42. Further, there are some courts in proceedings of an equitable nature that simply decide the issue on the basis of equity and fairness and do allow a rental value 20 Am.Jur.2d, Co-tenancy and Joint Ownership, § 44.
Can the wife avoid liability?
In Goolsby v Wiley, 547 So. 2d 227, 228 (Fla. Dist. Ct. App. 4th Dist. 1989), the court interpreted the joint and several liabilities of cotenants:
The most important characteristic of a tenancy in common is the proposition that each cotenant is ultimately liable for his or her proportionate share of the obligations of the property, and that when one cotenant is vested with possession agreement and is required to pay some or all of the obligations of the property, "the right of the co-tenant in possession to reimbursement from the other co-tenant is postponed until such time as the property is partitioned or otherwise sold.
The law presumes that possession by one cotenant is presumed to be the possession of all cotenants. Thus a cotenant in possession is not liable to his cotenants for rent unless he holds adversely to them or unless there has been an ouster or its equivalent. Any such ouster or adverse holding gives rise to liability for rent only where that fact has been communicated to the cotenant(s) out of possession.
Thus, any presumption that one co-tenant's holding over binds another co-tenant is contrary to the case law that the relationship of co-tenancy exists only so long as the parties own rights in common property.
Choices available to landlord?
The choice of remedies upon breach or early termination by a tenant are established in the following provisions:
§ 83.595, which states that if the tenant breaches the rental agreement for the dwelling unit and the landlord has obtained a writ of possession, or the tenant has surrendered possession of the dwelling unit to the landlord, or the tenant has abandoned the dwelling unit,
(1) Treat the rental agreement as terminated and retake possession for his or her own account, thereby terminating any further liability of the tenant;
In Stenor v. Lester, 58 So. 2d 673, 676 (Fla. 1951), the court dealt with the options available to landlord:
on the default of the lessee appellant had the right to elect to treat the lease as terminated and resume possession of the premises, thereafter using the same exclusively as its own for its own purposes; or it might have retaken possession of the premises for the account of the lessee.
Your query shows that the procedure that was followed by the landlord amounted to an election that the husband could live there and continue with the new lease. Consequently, having made such election, the landlord could not thereafter hold Andrea liable for rent and repairs accruing during a cotenant's holdover tenancy.
The tenancy was for a specific period of twelve months. Andrea’s holdover tenancy was not a continuation of the original tenancy that she held jointly with her husband, but it was a new tenancy in which the husband was a sole tenant. The relationship of co-tenancy exists only as long as the parties own rights in common property until a common period that has expired. After termination of prior lease, an option was available to the landlord to treat the lease as terminated and resume possession of the premises, but he allowed the husband to stay there. Such holding over will be construed as a tenancy at sufferance. Therefore, Andrea may not be held liable for rent and repairs accruing during her husband's holdover.
1. Highlighted copies of Key Cases.
2. Summaries of Key case.
3. Referred Statutes.
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