State Law Preempts Many Local Rental Rules

ORLANDO, Fla. – In the last Florida Realtors®’ Legal Newsletter, I discussed two changes to the Florida Residential Landlord/Tenant Act (the Act) regarding notice provisions. (See Landlord and Tenant Act’s Changes and Amendments.)

This article will discuss a new law (CS/HB 1417) under this same section of the Florida Statutes.

Effective July 1, 2023, the regulation of residential tenancies, the landlord-tenant relationship, and all other matters covered under the Act are preempted to the state. Section 83.425 makes it clear that the new law supersedes any local government regulations under the Act, including but not limited to:

• the screening process landlords use in approving tenancies
• security deposits
• rental agreement applications and related fees
• terms and conditions of rental agreements
• the rights and responsibilities of the landlord and tenant
• disclosures concerning the premises, the dwelling unit, the rental agreement
• the rights and responsibilities of the landlord and tenant
• fees charged by the landlord
• notice requirements

Over the last few years, Florida Realtors has discussed – at conventions, via legal updates and in various articles – the growing trend for local governments to create ordinances that require party obligations beyond those currently included in the Act. Most local requirements involve various time-notification extensions by the parties – things like an increase in rent or termination of month-to-month tenancies. Some also include requirements for the landlord to provide a “Tenant’s Bill of Rights” to tenants at some point during the rental relationship.

Over 30 counties created these types of ordinances, but there was a lack of consistency between the counties. For example, they created different timeframes and requirements in many instances, and some were difficult to locate or figure out.

83.425 purports to supersede these local government regulations on matters covered under the Act. Some of these are clear. For example, fees charged by the landlord are specifically listed as a matter preempted by the Act.

But what about matters not explicitly listed and not covered by the Act? For example, what about fair housing? Some counties have additional protections beyond those covered under the federal Fair Housing Act, such as source of income, gender identity and dating violence, for example. The Act itself only mentions fair housing once, and it’s in relation to retaliatory conduct on the part of the landlord should the tenant take various actions, one of which could be “exercising his or her rights under local, state, or federal fair housing laws.” However, this section presumably refers to an already established landlord/tenant rental relationship.

Remaining questions

So a question popped into my head: “If a landlord in a county that does have these additional protections, such as source of income, wants to say no Section 8 tenants will be accepted, can the landlord do that?” Is the landlord now allowed to say “no Section 8 applicants” because 83.425 “supersedes any local government regulation” on “the screening process used by a landlord in approving tenancies”?

Or since the Act doesn’t specifically address any fair housing laws per se, does that mean fair housing isn’t “covered under this part” and therefore isn’t preempted by the state?

Unfortunately, in my opinion, there isn’t a clear answer to this just yet.

Courts could potentially decide this issue or the Florida Legislature could further clarify it. Until then, however, the conservative recommendation I have would be to follow any existing local fair housing rules, remembering there is always the “disparate impact” argument.

The adage “better safe than sorry” comes to mind.

While we all would certainly like to have more immediate clarification on this potential conflict, until we hear from the courts or the Legislature, the best advice I can offer is to be mindful of any local fair housing ordinances in your area to avoid running into an issue during one of your transactions.

Meredith Caruso is Associate General Counsel for Florida Realtors
Note: Information deemed accurate on date of publication

© 2023 Florida Realtors®