A frequent conversation we have on Florida Realtors’ Legal Hotline involves a landlord’s ability to show property to prospective buyers or tenants and his current tenant’s obligation to allow the landlord to do so. The calls are evenly split amongst agents representing the landlords who wish to do this, and agents representing tenants who are upset that the landlord wants to try. Let’s take a look at each side’s position.
Landlord
Oftentimes, an owner ends up renting his property but still continues to list it for sale. While no law requires a landlord to inform a tenant of his intent to do this, do I recommend a landlord letting a tenant know of this plan? Sure! Often, a lack of communication between the two parties regarding things like this ultimately leads to an unnecessary dispute.
If you’re representing a seller who decides to rent or considering taking a sales listing of tenant-occupied property, you should likely ask the owner several questions. Some potential questions to ask:
- “Do you (the owner) want to continue to actively find a buyer even though the property is rented?” If so, a buyer would be purchasing the property subject to the existing lease terms. Pending any language in the lease requiring the tenant to leave, this could limit the potential pool of buyers if they have to take on the role of landlord.
- “If the property is tenant-occupied, how is your relationship with the tenant?” If the answer is in the vicinity of “not great,” that can be a red flag in terms of your ability to do your job, e.g., set up showings, take photos of the property for the listing, use of a lockbox, etc.
- “If the tenant refuses to allow showings, what will you do?” As more fully discussed below, if a tenant refuses to cooperate, a landlord may have to take legal action. Is the landlord willing to do that?
Tenant
While I can certainly understand a tenant’s hesitancy or even annoyance at a landlord’s request to show the property, the fact of the matter is that under the law, a tenant cannot “unreasonably withhold consent” to a landlord that wants to show the property to prospective or actual purchasers or tenants. See Florida Statutes §83.53(1). If you’re representing a tenant, you can always ask the landlord or landlord’s agent about the landlord’s intent to sell if that’s important to your tenant.
Remember, the standard is one of reasonableness. What does this mean? Let’s say the listing agent calls the tenants on Friday morning to say that a potential buyer wants to see the property on Saturday. The tenants, however, are hosting their son’s 6th birthday party at the property and it really isn’t convenient to also accommodate a showing. More than likely, this would be a reasonable justification for the tenants to say no to the showing.
Change those circumstances a bit and you can end up with a completely different scenario. Use the same request above by the listing agent, but this time the tenants flat out refuse to allow the showing. They say they “don’t intend to allow anyone into the property ever, Saturday or Sunday or ANY day.” This would likely be considered unreasonable.
If tenants do unreasonably withhold consent to allow the landlord to show the property to prospective purchasers or tenants, what options does the landlord have?
One is to send a seven (7) day notice of non-compliance. This statutory notice should point out that the tenant is not complying with the law in refusing to allow showings. The notice states that in the event the tenants don’t remedy the compliance within 7 days, the lease can be terminated and the tenants will have to leave the property. Of course, the landlord can also do nothing and simply wait for the lease to end and the tenant to vacate before selling the property. This isn’t a favorable option for a landlord with several months left on a lease or one who may want/need to sell the property quickly.
Again, this is why knowing the relationship between a tenant and landlord in advance can make things easier for the listing agent. Most Realtors don’t want to take on the headache of dealing with a contentious relationship between a landlord and a tenant when they’ve been hired to try to find a buyer.
Of note: While a landlord may still enter their property when the tenant unreasonably withholds consent, based on general safety principals and the potential for conflict, it’s not recommended that the Realtors representing landlords do so.
Potential Solutions?
If you’re representing landlords, have a conversation about their intended uses of the property – e.g., solely an income property, intends to eventually sell – can help guide you in your listing of the property and finding the right tenant.
If you’re representing tenants, discussing their expectations from the landlord can also assist you in asking the right questions of the listing agent/landlord and finding the perfect property for them to rent.
Lastly, while no one wants to turn down potential business, asking questions like the ones posed above can assist Realtors in deciding if they want to even take a listing where there could be a potential issue. Many of you know how exhausting and time-consuming landlord/tenant issues can be, so sometimes it’s best to cut your losses and move on.
Again, taking time to assess the situation in advance can save a lot of headache in the end.
Meredith Caruso is Associate General Counsel for Florida Realtors
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