April 13, 2023

Residential Tenancies and the Erosion of Public Power through Preemption

Companion bills (SB 1586/HB 1417) titled “Residential Tenancies” are making their journey through the Florida Legislature. The overarching effect of Residential Tenancies is to preempt the landlord-tenant relationship

Preemption is nothing new in Florida. Just in the last few years, special interest groups have been lobbying for state preemption over topics including gun control, vacation rentals, regulations of businesses, building and land use, and plastic bags.[1] In the 2023 session alone, there have been at least 22 bills over 12 subjects[2] that expressly or implicitly preempt these subjects to the state’s purview. These bills strip power from localities to address local issues and from voters who now get far less of a say in their lives and governments. It even appears that lawmakers are realizing some of the challenges that come with preemption, because two of the bills this legislative session — SB 498 and SB 1722/HB 865 — were introduced just to reverse past preemptions.

While proponents of the legislation point to language in the bill that codifies the 30-day notice extension for month-to-month tenants, there is no guarantee that the state will keep this extension in the future.

As mentioned in a recent FPI blog post, the landlord-tenant relationship in Florida is particularly one-sided, with landlords holding nearly all of the power. Due to this, some counties have chosen to increase tenants’ rights in an attempt to level the playing field:

  • Requiring landlords of month-to-month tenants to provide a 60 days’ notice of a change of ownership that might result in termination of the tenancy (Miami-Dade);
  • Preventing landlords from asking prospective or current tenants about their eviction history when considering an application for admission (Miami-Dade);
  • Requiring landlords to provide tenants with an itemized list of all potential fees a landlord may charge in connection with the tenancy that must include a description, amount, and frequency of each separate (Orange);
  • Creating an Office of Tenant Services that informs tenants of their rights, investigates tenant complaints, enforces the Tenants Bill of Rights and Rental Ordinance Notices, and acts as a broker between tenants and organizations they can go to for additional housing-related assistance (Orange); and

This list is non-exhaustive and does not take into account the multiple town and city governments that have enacted laws increasing the rights and power of tenants. Most of these extensions of legal rights have come through referendums, meaning the voters in those localities expressed the need for these laws and voted to implement them. If SB 1586/HB 1417 is enacted, all of these laws that voters fought for will be rendered null and void.

While proponents of the legislation point to language in the bill that codifies the 30-day notice extension for month-to-month tenants, there is no guarantee that the state will keep this extension in the future. Due to landlords having greater lobbying power than tenants, it will not be surprising to see any future extension of tenants’ rights stamped out after the passage of SB 1586/HB 1417. This lobbying power will also very likely yield future statutory boons to landlords that make it through both chambers without much argument or issue.

Notes

[1] The News-Journal Editorial Board, "Florida Lawmakers, Stop Eroding Home Rule," Sun Sentinel, 2018, https://www.sun-sentinel.com/opinion/fl-op-stop-eroding-home-rule-florida-legislature-20180122-story.html.

[2] (1) SB 102/HB 627; (2) SB 170/HB 1515; (3) SB 172/HB 177; (4) SB 262/HB 1547; (5) SB 388/HB 317; (6) SB 438; (7) SB 698/HB 731; (8) SB 714/HB 833; (9) SB 752/HB 415; (10) SB 1164/HB 1279; (11) SB 1240/HB 1197; and (12) SB 7050.

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