Almost any Floridian who has endured a hurricane has learned the enormous discomforts and inconveniences of living without electricity or water, even if for only a day. Televisions, electric stoves, water heaters, microwaves, and more are off limits. Moreover, refrigerated food goes bad, and when the temperatures drop, cold showers are unbearable.
Occasionally, landlords, knowing too well the grim reality of these discomforts and having residential tenants they want to get rid of, will take what they think is the “easy” route to kicking out a tenant (rather than filing a formal eviction action) by disconnecting the tenant’s electricity or water. This act, a type of “constructive eviction” (or self-help eviction), is against the law in Florida. Section 83.67(1), Florida Statutes, provides that a residential landlord “shall not cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord.”
When residential tenants are the victims of constructive eviction, Florida law allows for them to fight back against the landlord by asking the Court to order the landlord to reconnect the electricity. The law also allows a tenant who is successful in such an action to recover reasonable attorneys’ fees.
In some constructive eviction situations, even the utility company can be found liable. For instance, take a situation where the utility company has actual knowledge that the landlord is disconnecting the utilities for the purpose of getting rid of a tenant and that a tenant family, for example, a single mother and four children, are still living in the house. Most courts will find that a utility company is required to act with the same duty of care that a reasonable person would exercise given the consequences of a shut-off. This duty of care is heightened by the fact that electric and water services are essentials of life.
Furthermore, many courts, especially in cases where the utility company is city-owned, have held that residential tenants have a constitutionally protected interest in continued utility service and therefore may not be deprived of this service without receiving reasonable notice. Imagine a situation where the utility account is in the landlord’s name, but each month the tenant pays the utility company directly. One month, the tenant pays the utility bill but not the rent. The landlord, angry for not having received the rent, telephones the city-owned utility company to disconnect the tenant’s electricity and water. The utility company obliges, because the landlord is the accountholder, and it fails to give notice to the tenant.
In this scenario, the tenant, who had paid the utility bill prior to its wrongful disconnection, has a legitimate interest in the continued enjoyment of the utility service for which she paid. Because a constitutional violation occurs when a government agency fails to provide due process, many courts would find the city-owned utility company in this scenario liable for having violated the tenant’s constitutional due process by having disconnected the tenant’s utilities without notice to her.
Every situation is different, of course, and not all amount to violations. Regardless, where a landlord who commits some sort of act of constructive eviction, a tenant should, at the very least, consult with an attorney who will be able to inform her of her legal rights and options.