POST THREE-DAY NOTICE COMMUNICATIONS
by Harry Anthony Heist, Attorney at Law

A common practice among landlords is to serve the Three-Day Notice, and if no payment has been made, serve the tenant with an additional notice or letter to induce payment. This notice or letter is usually entitled "Final Warning", "Eviction Notice", "24 Hour Notice" or some kind of variation on this theme. The purpose obviously is to give the tenant a final chance at paying the rent to avoid the necessity of an eviction filing by the property manager. Does it work? Yes, often the "post" Three-Day Notice letter or notice is highly effective, especially when a tenant has received one before and has paid after the expiration of the Three-Day Notice. The problem is that the notice can cause serious problems with the procedure and prerequisites of filing an eviction action.

The Sacred Three-Day Notice

The Three-Day Notice is a condition precedent and jurisdictionally required notice which must be given in a non-payment of rent situation in order for the landlord to proceed to filing an eviction action. It is a very specific notice, clearly spelled out in Florida Statutes, must be of a certain form, with specific rent items only allowed, and it must be prepared and served properly in order for it to be a valid Three-Day Notice. If there are any defects in the Three-Day Notice, it is quite possible that the eviction action will be dismissed, resulting in a further loss of rent by the landlord, delays and potential liability for paying the tenant's attorneys fees.

The effect the "Post" Three-Day Notice communication has on the Three-Day Notice

If a landlord gives the tenant any type of "post" Three-Day Notice letter or notice regarding the payment of rent or a last chance to pay, some case law has shown that the original Three-Day Notice is nullified or made void by the later notice or letter. While this doesn't seem to make practical sense, the reasoning lies in the fact that Florida Statutes alone provides for and requires a specific notice prior to an eviction action. Any notices given after the Three-Day Notice can confuse the tenant, and since not Florida Statute provided, will be made up by the landlord and could create confusion on the part of the tenant.

Should we discontinue using the "post" Three-Day Notice letter or notice?

Our recommendation is that you cease using any notice after the service of the Three-Day Notice. As more and more cases are being contested at a higher rate, with more sophisticated and knowledgeable tenants and attorneys, it is not advisable to do anything that can jeopardize the eviction action. If you have been using the "post" Three-Day Notice letter or notice in the past, a problem is created for future cases, as the tenant who has received such a notice or letter before will be expecting this notice before you file an eviction. This detrimental reliance by the tenant on your "post" Three-Day Notice letter or notice can actually now provide the tenant with a defense when you did not use the notice or letter!

Practical considerations

If you have been using a "post" Three-Day Notice letter or notice in the past, we recommend that you immediately cease this practice. It will be important though to notify the tenants of this change in policy or procedure. You may want to use language such as the following:

Dear Resident,

In the past, our company has been sending out a "Last Chance Letter", "24 hour Notice", (insert name of your notice) after the expiration of the Three-Day Notice giving the residents a final chance to pay rent to avoid eviction.

From this point on, we will only be serving a Three-Day Notice as required by law. Any rent tendered after the expiration of the Three-Day Notice may be refused by us, and eviction proceedings may be commenced. This letter shall serve as notification that in the event you do not pay according to the stated due date on your lease, you may be subject to receiving a Statutory Three-Day Notice giving you three business days to pay the rent. No further notice or letter will be given.

Can we continue using the "Notice" or "Letter"?

Many landlords will opt to continue using a "post" Three-Day Notice letter or notice, as it is without a doubt very effective in getting the tenant to pay the rent. It is quite possible that the risks in giving the letter or notice are outweighed by the benefit of reducing evictions and receiving the rent. Each landlord must decide the route to take. All we can say is, "You have been warned."

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SMALL CLAIMS STRATEGIES - SETTLEMENT
by Harry Anthony Heist, Attorney at Law

A Small Claims Court case is simply a lawsuit by one party against another party where the sum sought after is up to $5000.00. Florida law has created a system within the County Court system where smaller cases such as these are handled in a unique and often expeditious manner. There are many ways of proceeding if one finds himself or herself as a defendant in a Small Claims Court case. You may be able to file a Motion to Dismiss if there are defects in the Plaintiff's case, an Answer may be appropriate, possibly a Counterclaim will be necessary, or the case can be amicably settled. This article will only deal with settling the most common Small Claims Court case whose subject matter is a Security Deposit Dispute, and assumes the Small Claims Court case is NOT filed by an attorney, but rather is pro-se, meaning that the Plaintiff filed the case on his or her own without an attorney signing the paperwork.

The Security Deposit Dispute"”The most common Small Claims Court subject matter

The vast majority of Small Claims Court cases involve a dispute over a security deposit. The Plaintiff, a former tenant, will claim that you failed to return the security deposit, failed to send out notice in the required time period or unfairly charged the security deposit for things that were not the Plaintiff's responsibility. Most of the time the Plaintiff is suing for no more than the security deposit amount plus the costs of filing the lawsuit. While you may firmly believe that the amount you charged the Plaintiff is absolutely correct, this type of case is one of the best kinds to settle rather than fight.

Why should we settle?

The Small Claims Court case regarding a security deposit dispute is much harder for the landlord to fight than one may think. The same judge that seems very tough on tenants in eviction court often seems to bend over backwards to believe the Plaintiff's story of the evil, greedy landlord who charged the Plaintiff for damages he did not do to the unit that the Plaintiff left cleaner than it was when the Plaintiff moved in. While the ex-tenant Plaintiff is bringing the case against your company and should have the burden of proof, the judge will demand that you prove that the unit was not damaged when the tenant moved in, the tenant did the damage while living there, it was over and above ordinary wear and tear, and you can prove the costs of the repairs or replacements. You may need a detailed move-in and move-out inspection form, photos, videotapes, maintenance persons, vendors and just about anybody you can possibly think of that had contact with the unit in court with you to prove that the amount you charged the Plaintiff was correct. You may have a stack of bills for carpet cleaning, pest control and painting, but the judge will not look at these if you try to use them to prove the Plaintiff damaged the unit, as these bills will be considered hearsay. You will need to bring the painter, pest control person and carpet cleaner into court to testify, and often they do not want to come to court or, when they do come to court, make poor witnesses. In almost every single case we examine, the landlord has severe weaknesses in the case.

The Mechanics of the Small Claims Court Case

The Plaintiff files the Small Claims Court case in County Court and has the case served upon you, the defendant, by Registered mail, private process server approved by the court, or most commonly, by a Sheriff's deputy. When the case is filed, a date is specified on the paperwork for a Pretrial or Mediation date. If the case is not settled before the Pretrial date, you must attend this Pretrial, or you will have a judgment automatically entered against you or your company. At the Pretrial, a mediator is appointed to the case, and there is an opportunity to sit down in a private room with all the parties present to discuss the possibility of settling the case. If the case is not settled, the parties go back to the courtroom where they wait for a trial date from the judge. The parties must then attend the actual trial, where the case will be fully tried with all witnesses present. At the end of the trial, the judge will make his or her ruling and may award costs at that time.

How long does the process take?

The Pretrial process usually takes from 1 hour to 3 hours depending on how many cases are assigned to the court that day. The time is usually spent waiting in the courtroom to be called by the clerk. Once called and a mediator is assigned, the actual Mediation session usually takes between 30 minutes and one hour. If the case is not settled in Mediation, the parties will be sent back into the courtroom, where the wait can be from 5 minutes to one hour to get a date from the court for the trial. The trial is usually scheduled to be held within 60 days from the Pretrial date. On the trial day, the parties can potentially wait up to 2 hours for the trial to begin, and a typical small claims trial takes anywhere from 30 minutes to 2 hours on average. Unlike what you may observe on "The People's Court" or "Judge Judy", all the rules of civil procedure apply in the Small Claims Court trial, and it is actually taken very seriously by the judge. You need to have all your witnesses and evidence in court. If you are unprepared or disorganized, expect to be intimidated and berated by the judge. Frequently the judge is already annoyed that the case was not settled, and most judges really do not seem to enjoy small claims court trials.

Settling prior to the Pretrial, the cost-benefit analysis and "principle"

Settling the Small Claims Court case prior to Pretrial/Mediation is the preferred way to go. At this point you will have little to no time into the case and will have avoided countless hours of aggravation. You need to make a simple cost benefit analysis of the situation and avoid wanting to go to court for "the principle of the matter". Fighting over "principle" is just not wise. First, your expenses will be increased and secondly, you have no idea whatsoever if you will win in court, as Small Claims Court is so full of surprises. If you and the Plaintiff can come up with an agreeable amount, the agreement is put into writing, the money is exchanged, and the Plaintiff files a Voluntary Dismissal with the court. Does it make sense to take 3 staff members out of the office for 5 hours? Are you sure you are going to win in court? Will you need to get your attorney heavily involved? Will you need to subpoena parties? Will your vendors that you subpoenaed be aggravated with you? Will they show up in court? You need to take a deep breath and ask all these questions before you chart out your course of action. Assuming you are agreeing to give the Plaintiff some money to settle the case, it is imperative that you do not just send the Plaintiff the money. You must do this in conjunction with a proper Voluntary Dismissal and release. You don't want to settle with the Plaintiff and then have his or her co-tenant sue you over the same dispute. Smart settlement is a smart thing to do. Principle does not pay.

Settling the Small Claims Court case at the Pretrial Mediation

Surprisingly, most Small Claims Court cases are settled at the Pretrial Mediation. The court has fully trained volunteer mediators from all walks of life whose mission it is to have you settle the case and walk out of the courthouse relatively satisfied. In the mediation, each party has a chance to present their side of the story in front of the impartial mediator. The mediator also will conduct a caucus at times, whereby one party leaves the room and the other party can privately speak with the mediator. When you go to mediation, you want to be very prepared, as sometimes, a good mediator will encourage a party to settle if they feel the other party has a very good case. Once the parties come to an agreement, the mediator writes everything up on a settlement form, and the case is over. Assuming it is a security deposit dispute and you are agreeing to return some funds to the tenant, this will all be written out, and you must comply with the Settlement agreement or you will have a judgment entered against you. Since we know that most cases are settled at Mediation, try to settle the case BEFORE mediation to avoid wasting time.

Suppose Mediation is unsuccessful?

If Mediation is unsuccessful, a trial date will be set by the court. It is important to bring your calendar with you to Mediation, as once the trial date is set, the only way it can be changed is with agreement by the parties or the court granting a Motion for Continuance. After a trial date is set, there is plenty of time to decide whether proceeding with the trial is prudent or settlement is the better way to go. A case can be settled at any time prior to the actual trial date. Sometime after the parties have some time to reflect on the mediation, settlement becomes easier. The time before trial can be used to continue to attempt settlement through the use of offers and counteroffers. Always get the Plaintiff's phone number and current address so the lines of communication can be kept open.

Your attorney's role in a Small Claims Court case

It is a good idea to always notify your attorney the moment you are served with a Small Claims Court case so your attorney can quickly review the paperwork and give you some advice. Most honest attorneys will tell you the truth about your case, disclose how much it will probably cost to fight the case and advise that you try to settle the case. In most cases, if your attorney advises that you settle the case, they can provide you with advice and with forms to help make this happen. You may want your attorney to attempt to settle the case. This is often an excellent route to take, as long as it will not take your attorney too many hours to accomplish this task. Give your attorney a figure that you will settle on, agree on attorney's fees, and let your attorney run with it. A pro-se plaintiff will be surprised that you have an attorney involved in the case and will be more likely to want to settle. Here you attorney acts in a quasi-mediator fashion to get the parties to settle. The truth is, most attorneys have no desire to fight small claims court cases regarding dispute security deposits, because in most cases, they know that in the end, their client will not be happy having to pay their attorney's fees and possibly losing the case in whole or part. Your attorney will advise you if you can go it alone, or if the attorney should file a Notice of Appearance and take over the case.

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DOCUMENT DESTRUCTION COMPLIANCE by Harry Anthony Heist, Attorney at Law

Identity theft is one of the fastest growing crimes in the United States today, affecting approximately 10 million people each year. Criminals are engaging in everything from sophisticated computer hacking to dumpster diving to obtain private information on individuals, which can be later used to obtain credit, or access for emptying out bank accounts. A typical landlord will be in possession of documents which would be highly valuable to an identity thief. The primary documents which have the most information useful to an identity thief are the Application for Residency and the Consumer Report. The application will have the name, date of birth, Social Security number and bank account information of the applicant, all of which can be used by a thief. The Consumer Report will contain a list of all the applicants' credit cards and other valuable information. In response to the rapid increase in identity theft fraud, the Federal Government through the Federal Trade Commission (FTC) has enacted new laws which directly affect the landlord.

The Disposal Rule

Effective June 1, 2005, if you are a business that uses a consumer report, more commonly known as a Credit Report, you must dispose of this information in a specific fashion. Since most landlords ask for an Application and subsequently receive a Credit Report, it is apparent that the Disposal Rules apply to the landlord. The Disposal Rule requires disposal practices which are "reasonable and appropriate" to prevent the unauthorized access to or use of information in a "consumer report". You will note that the law says "consumer report" and not "Application". Many Federal rules when initially introduced are vague and confusing. As time goes by, the courts and the FTC "interpret" the rule. Obviously the purpose of the rule is to prevent identity theft; thus we strongly recommend that you apply the rule to the application as well as the Credit Report, as this is consistent with the intent and legislative history of the rule.

How long and where should we keep documents?

The statute of limitation regarding disputes arising out of a contract such as a lease is 5 years. We recommend that you do not dispose of any files for a minimum of 5.5 years from the time the tenant vacates the premises. While this may seem a bit extreme and cumbersome, if you are sued and do not have your file, anything can and will happen in court, and it will not be pleasant. Some people intentionally wait until the Statute of Limitations is almost up, as they know that most people will not have kept the records for this length of time. Your documents need to be kept in a safe place in your office and subsequently in storage. Most landlords do not keep these files locked up or have a written plan in place as to file security or destruction. This needs to change.

Paper records

Files should always be kept in a locked room or locked filing cabinets with access limited to persons designated in writing as having permission. These should only be employees that are bonded. Most landlords do not consider the value the paper files have to an identity thief and are not in any compliance whatsoever. If records are sent to storage, there needs to be a specific procedure in place to prove chain of custody and detailing exactly who has access to files and when they accessed the files.

Computer records

Most people find it difficult to throw out old computers. They pile up in the back room and eventually get thrown out or donated years after they will not run current programs. Most landlords do not have password protection in place on their computers, making them vulnerable to an identity thief. Finally, most landlords who are careful about backing up their computer data do not have a specific procedure for storing these backups. Landlords need to immediately evaluate the safety of the data and create a written procedure which needs to be followed. If information from the tenant's application and consumer report will not be stored on or transmitted through a computer, the danger is significantly lessened.

How should documents, hard drives and backups be destroyed?

Paper documents should be shredded or pulverized. There are different levels of paper document destruction available, and we recommend that the documents are pulverized to avoid any problems later. Many landlords purchase store bought shredders and pulverizers, but if operating on any kind of a large scale, document destruction companies will need to be utilized to carry out the larger document destruction tasks. Many local garbage disposal companies are jumping into the business of document destruction, and it is prudent to check this in addition to the smaller private companies. As chain of custody is crucial, most of the document destruction companies provide an on-site service that can be observed by the landlord to avoid someone taking the documents to another location and using them for illegal means. Hard drives and backups can be physically destroyed by a landlord or destroyed by the document destruction companies who deal with this as well as paper documents. The key is to have a plan in place, and this should be part of your written procedures for document safekeeping and disposal.

Does everything have to be disposed of properly?

Fortunately only certain information has to be disposed of according to the FTC rules. An examination of your tenant files will probably show that only a few sheets contain information which could be successfully used by an identity thief. Most likely only the application and the consumer report will contain the sensitive information, therefore your procedure may limit the disposal to the destruction of only those documents.

FEDERAL TRADE COMMISSION INFORMATION

Disposing of Consumer Report Information?
New Rule Tells How

In an effort to protect the privacy of consumer information and reduce the risk of fraud and identity theft, a new federal rule is requiring businesses to take appropriate measures to dispose of sensitive information derived from consumer reports.

Any business or individual who uses a consumer report for a business purpose is subject to the requirements of the Disposal Rule. The Rule requires the proper disposal of information in consumer reports and records to protect against "unauthorized access to or use of the information." The Federal Trade Commission, the nation's consumer protection agency, enforces the Disposal Rule.

According to the FTC, the standard for the proper disposal of information derived from a consumer report is flexible, and allows the organizations and individuals covered by the Rule to determine what measures are reasonable based on the sensitivity of the information, the costs and benefits of different disposal methods, and changes in technology.

Although the Disposal Rule applies to consumer reports and the information derived from consumer reports, the FTC encourages those who dispose of any records containing a consumer's personal or financial information to take similar protective measures.

Who must comply?

The Disposal Rule applies to people and both large and small organizations that use consumer reports. Among those who must comply with the Rule are:

Consumer reporting companies
Lenders
Insurers
Employers
Landlords
Government agencies
Mortgage brokers
Automobile dealers
Attorneys or private investigators
Debt collectors

Individuals who obtain a credit report on prospective nannies, contractors, or tenants Entities that maintain information in consumer reports as part of their role as service providers to other organizations covered by the Rule

What information does the Disposal Rule cover?

The Disposal Rule applies to consumer reports or information derived from consumer reports. The Fair Credit Reporting Act defines the term consumer report to include information obtained from a consumer reporting company that is used - or expected to be used - in establishing a consumer's eligibility for credit, employment, or insurance, among other purposes. Credit reports and credit scores are consumer reports. So are reports businesses or individuals receive with information relating to employment background, check writing history, insurance claims, residential or tenant history, or medical history.

What is "˜proper' disposal ?

The Disposal Rule requires disposal practices that are reasonable and appropriate to prevent the unauthorized access to - or use of - information in a consumer report. For example, reasonable measures for disposing of consumer report information could include establishing and complying with policies to:

burn, pulverize, or shred papers containing consumer report information so that the information cannot be read or reconstructed;

destroy or erase electronic files or media containing consumer report information so that the information cannot be read or reconstructed;

conduct due diligence and hire a document destruction contractor to dispose of material specifically identified as consumer report information consistent with the Rule. Due diligence could include:

reviewing an independent audit of a disposal company's operations and/or its compliance with the Rule;

obtaining information about the disposal company from several references;

requiring that the disposal company be certified by a recognized trade association;

reviewing and evaluating the disposal company's information security policies or procedures.

The FTC says that financial institutions that are subject to both the Disposal Rule and the Gramm-Leach-Bliley (GLB) Safeguards Rule should incorporate practices dealing with the proper disposal of consumer information into the information security program that the Safeguards Rule requires ( ftc.gov/privacy/privacyinitiatives/safeguards.html ).

The Fair and Accurate Credit Transactions Act, which was enacted in 2003, directed the FTC, the Federal Reserve Board, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, the National Credit Union Administration, and the Securities and Exchange Commission to adopt comparable and consistent rules regarding the disposal of sensitive consumer report information. The FTC's Disposal Rule became effective June 1, 2005. It was published in the Federal Register on November 24, 2004 69 Fed. Reg. 68,690, and is available at http://www.ftc.gov/os/2004/11/041118disposalfrn.pdf

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit FTC.GOV or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

Your Opportunity to Comment The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency's responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal. To comment, call toll-free 1-888-REGFAIR (1-888-734-3247) or go to www.sba.gov/ombudsman.

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MOTION TO DETERMINE RENT
A TENANT DELAY TACTIC

by Harry Anthony Heist, Attorney at Law

Your attorney filed an eviction on a tenant that clearly is two month's delinquent. There is no disputing the amount and no problems with the premises; the tenant just has no money and told you he could not pay the rent. You think it is a slam dunk eviction when out of the blue, your attorney notifies you that the tenant has filed a "Motion to Determine Rent". On top of that, the tenant has not posted one dime into the Court Registry and a court hearing is set for next week. How could this be? Doesn't the tenant have to post the rent money into the Court Registry? The Motion to Determine Rent is one of the most annoying time delay tactics a tenant can successfully use against a landlord and its use is on the rise.

How can a Tenant defend an eviction?

Tenants have a number of remedies available to them when defending an eviction action. Some but certainly not all include actions whereby the tenant can file an Answer with the court, which is basically a statement by the tenant of reasons why he or she should not have to leave the premises. The tenant can file a Motion to Dismiss whereby the tenant tries to say that there is some defect in your paperwork or reason why the case should just be completely dismissed and thrown out of court, or the tenant can file what is called a Motion to Determine Rent. This article will examine the Motion to Determine Rent in depth, so you may have a better understanding of how it affects the eviction process.

WHAT IS A "MOTION TO DETERMINE RENT ?"

Background--When you file an eviction action for non-payment of rent, you must attach a 3 Day Notice to the eviction complaint and allege in the eviction complaint how much is owed by the tenant. This is required by law, as the tenant needs to know for what amount he or she is being evicted. Usually this amount is the rent and late charges (if the lease considers late charges as additional rent), plus any other periodic payments due under the lease terms and amounts which are considered rent. Oftentimes the tenant disputes this amount or feels that the eviction is unjust and files an "Answer" with the court. By law, the tenant when filing an Answer with the court, is required to place into the Court Registry the rent amount which is asked for by the landlord in the Complaint. Some tenants comply, other tenants don't, and often the eviction continues on to completion, regardless of the Answer that the tenant filed with the court. In this case, the tenant may not get his or her day in court. There is one way a tenant can get heard in court WITHOUT filing an answer OR putting any money into the Court Registry. This is by filing a Motion to Determine Rent.

Legal Basis of the Motion--Florida law states that a tenant who is contesting an eviction must file an Answer within 5 business days of being served with the eviction summons OR may file a Motion to Determine Rent asking the judge to decide how much rent is owed, and how much if any should be deposited into the Court Registry. This will frequently trigger a court hearing.

Requirements of a Motion to Determine Rent--According to law, a tenants may file a Motion to Determine Rent if they are alleging that the rent asked for by the landlord on the 3 Day Notice or the complaint is "in error". It is possible that the landlord has overstated the rent amount, the tenant paid the rent, the tenant is owed something by the landlord, the tenant has been given multiple 3 Day Notices with conflicting amounts, the tenant was to receive a concession, or the premises are so deficient that the tenant feels that the amount asked for should not be the amount that they should have to place in the Court Registry, or any other thing the tenant can come up with to make it appear that they do not understand what the amount of rent truly should be or how much they should pay. By law, the tenant is required to attach documentation to the Motion to Determine Rent showing some proof to the judge that the rent amount alleged in the complaint is in error.

The Problem--Most Motions to Determine Rent are legally insufficient, but they often end up triggering a court hearing nonetheless. The tenant does not attach documentation to the Motion showing that the rent is "in error". Often the Motion simply says, "I want the court to determine how much rent is owed". Use of the motion can be an outrageous abuse of the system, and judges are acting improperly when they set these matters for hearing. The tenant's Motion to Determine Rent should often be "stricken" by the court as legally insufficient, but in many cases the hearing is set, and off to court we go.

The Result--Unfortunately, some judges will set a hearing on just about any Motion to Determine Rent, regardless of whether the tenant has properly filed the Motion, and the courts will do this with or without documentation attached to the Motion. This results in a time wasting hearing in most cases. The tenant and the landlord must now appear in court, the judge will take some testimony, and then the judge will order the tenant to place in the Court Registry the amount the judge feels is the amount of rent owed. Usually, this amount is exactly what the 3 day notice states and the amount that the landlord asked for in the complaint plus any rent that may have accumulated during the time the eviction was filed and the time the parties are in court. The eviction case is not heard at this time. It is only a limited hearing to determine how much money the tenant must place in the Court Registry.

When does the Court require the money to be posted into the Court Registry?--Sometimes the tenant is required to place the money into the Court Registry by 5 PM that day, or sympathetic and often inexperienced judges will give the tenant a week or more to deposit the money. Sounds outrageous? It is.

How does the tenant even know about this Motion to Determine Rent? --Unfortunately many court clerks tell the tenant that he can do this and go as far as to provide the tenant with a fill in the blank "Motion to Determine Rent." Attorneys may represent the tenant and file such a motion, and many of the legal aid organizations provide the tenant with a form Motion to Determine rent solely for the purposes of delaying the case.

Suppose the tenant does not deposit the money into the Court Registry as ordered by the judge?--If the tenant fails to comply with the judge's order, the judge will sign a Final Judgment of Eviction and the case will proceed to completion with no further court hearing.

Suppose the tenant deposits the money into the Court Registry as ordered?--The court will then set a trial, and a full fledged eviction trial will occur sometime when it is suitable for the judge. This could be in a few days or a few weeks depending on the judge's schedule.

What can be done to minimize the occurrence of the Motion to Determine Rent?--While it is nearly impossible to prevent a tenant from filing a Motion to Determine Rent, there are certain things which are done by a property manager that increase the risk that such a motion will be filed. The following will increase the Motion to Determine Rent risk:
1. Giving the tenant a 3 Day Notice with excessive late charges.
2. Giving the tenant conflicting 3 Day Notices.
3. Giving the tenant a notice after the 3 Day Notice
4. Allowing a tenant to make a repair and having a dispute about a reimbursement or a concession.
5. Giving a tenant an open ended 3 Day Notice which says they owe a particular amount plus a certain amount per day causing the notice to be ambiguous.
6. Carrying over a balance for a long time and then putting this balance on the 3 Day Notice
7. Not maintaining the premises, causing the tenant to feel they are entitled to a rent abatement
8. Making oral payment arrangements with the tenant.

CONCLUSION--Unfortunately, we cannot prevent a tenant from filing a Motion to Determine Rent, and the frequency of these motions is increasing. A clean 3 Day Notice stating the exact amount owed, breaking out any other charges and making it easy to look at the lease agreement and the notice to see a nice match will be very helpful and is advisable in all cases. An experienced attorney will emphasize to the judge that the amount the tenant is to place in the Court Registry is the amount on the 3 Day Notice and any amount that may have accrued. If the tenant is claiming that the property value is diminished due to a deficiency with the premises, it is our firm position that the tenant should place all the money into the Court Registry, and these matters can be sorted out at trial. This separates the scam tenant from the legitimate tenant and is the whole reason why Florida law requires that the rent money be deposited into the Court Registry in order for a tenant to have a trial in court. Now"¦ if only all the judges would follow the law.

FLORIDA STATUTES PERTAINING TO
THE MOTION TO DETERMINE RENT

83.60 Defenses to action for rent or possession; procedure "¦(2) In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon. In the event a motion to determine rent is filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies shall be required to deposit only that portion of the full rent for which the tenant is responsible pursuant to federal, state, or local program in which they are participating.

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NEW SEXUAL PREDATOR AND OFFENDER ORDINANCES
AND
HOW THEY AFFECT THE LANDLORD

by Harry Anthony Heist, Attorney at Law

Background of "Megans Law"

Megan's Law was created to provide information to the community as to the presence of sexual predators and offenders in their neighborhood. Through the Florida Department of Law Enforcement's website and many other websites maintained by municipalities, it is possible for anyone to look up a person to see if they are a registered predator or offender and see the exact address of that person. Megan's Law was named after 7-year old Megan Kanka, who was sexually assaulted and murdered by a convicted sexual predator; the law was created to have a system in place under which people could be notified of the presence of such a person in their community.

Florida Law--Florida Law does not require a private person such as a landlord to inquire as to whether someone is a sexual predator or offender, does not prohibit renting to one, and creates no requirement for the landlord to notify the community or immediate neighbors if they do in fact rent to a registered sexual offender or predator. While Florida law imposes restrictions on where a sexual predator or offender can live, there in no duty or obligation on a Florida landlord to inquire about the sexual predator or offender status of a person, or prohibit them from renting where he or she would be in violation of Florida law. Megan's law as it applies to Florida only requires law enforcement to set up some sort of notification system to help a community know of the presence of an offender or predator in their neighborhood. The FDLE website is such a step in this direction. There are other laws that apply to the registered sexual predator or offender which prohibit them from living within a certain number of feet from places like schools, designated public school bus stops, day care centers, parks, beach playgrounds, libraries, churches or other places where children regularly congregate, but until now, this was not the concern of the Florida landlord.

New Ordinances as they apply to the Registered Sexual Offender, Predator and the property owners

Registered Sexual Offenders and Predators--Certain Florida municipalities, such as Ormond Beach, and Florida counties, such as Seminole County, are creating and have enacted ordinances which are further restricting where registered sexual predators or offender may reside, AND in the case of Seminole County, imposing criminal penalties on landlords if they rent to such a person in violation of the ordinances. The City of Ormond Beach will most likely soon pass an ordinance which prohibits any sexual predator or offender who has committed an illegal act of a sexual nature on a person less than the age of 16 years to establish a permanent residence within 2500 feet of a school, designated public school bus stop, day care center, park, beach playground, library, church or other place where children regularly congregate. The 2500 feet is measured from the outer limits of the residence to the nearest outer property line of the prohibited area "as the crow flies. Violation of this by the registered sexual predator or offender can result in a fine of $500.00 and by imprisonment for up to 60 days. Repeat offenders of the ordinance will suffer substantially greater penalties.

Owners--The proposed Ormond Beach ordinance makes it unlawful for the property owner to rent to any registered sexual predator or offender if such person will be in violation of the 2500 foot rule, and the enacted Seminole County Ordinance subjects the property owner to a criminal misdemeanor punishable by up to 60 days in jail and /or a fine up to $500.00. The property owner can actually now go to jail for renting to a sexual predator or offender.

Exceptions to the ordinances--There are some limited exceptions to these ordinances. In Ormond Beach for example, if a sexual predator or offender was currently living within the 2500 foot buffer zone prior to the enactment of the ordinance, there will be no violation of the ordinance, or if a school, designated public school bus stop, day care center, park, beach playground, library, church or other place where children regularly congregate is placed into service after the person has moved in, there is no violation. Once the lease expires though, the sexual predator and the owner will be in violation of the ordinance, if the tenant does not move.

What does this means to the property owner?--All owners need to immediately check the FDLE sexual predators and offenders website to see if they are indeed renting to a person on the list. If this is the case, it is highly recommend that the owner immediately examine the lease or the tenancy to see how soon a Notice of Non-Renewal can be given, and this Notice of Non-Renewal should be given in accordance with the terms of the lease and Florida law, plus be sent by certified mail, regular mail and by hand delivery or posting on the premises, to cover all bases. Many tenants served with a Notice of Non- Renewal deny receiving the notice, and this can complicate or prevent an eviction from occurring successfully if the tenant fails to vacate per the notice.

Practical Considerations--Every owner and property manager needs to be diligent in conducting criminal background checks on all applicants. There are many excellent companies which provide these checks at a very reasonable cost. We recommend using a Florida company, as they may have more up to date access to the court records. Even after you receive the background history, it is imperative that you check the FDLE website and make a written notation when you checked the website, the exact name you checked as provided by you from the applicant, and the steps you took to verify the information. The FDLE website has photographs of the registrants to assist you in verifying who you are dealing with, as many people have similar names. A registered sexual predator or offender will do whatever it takes to get housing, as they probably have been denied on numerous occasions and will often change the spelling of their name or fill out the application illegibly to make your search more difficult. As you can see, the "as the crow flies" distance requirement is extremely broad. Check with your local municipality, sheriff's department and police station if you are unsure where your property is located in relation to a school, designated public school bus stop, day care center, park, beach playground, library, church or other place where children regularly congregate. If a property manager places a registered sexual offender or predator within this area and the property owner gets in trouble, be sure that you will not be the next to get in trouble. Remember, 2500 feet is almost one half mile, so the chances are very high that your property could fall within the danger zone.

NOTE Future issues of the Legal Newsletter will keep you up to date with the details pertaining to each ordinance.

TO RECEIVE COPIES OF THE PROPOSED ORMOND BEACH ORDINANCE OR THE ENACTED SEMINOLE COUNTY ORDINANCE, EMAIL US AT Info@Evict.com

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FLORIDA CONSUMER COLLECTION LAWS AND THE TENANT DEBT DISPUTE by Harry Anthony Heist, Attorney at Law

You send out a Notice of Intention to Impose a Claim on Security Deposit due to tenant damages. The tenant writes you a letter disputing the charges and calling you every name in the book. You write a letter back explaining your charges and tell the tenant that if they don't pay, you are going to send the account to collections, and it will affect their credit. Sounds reasonable, right? You just violated the Florida Consumer Collections Law. The penalty? Actual damages PLUS additional statutory damages of up to $1,000.00, together with court costs and reasonable attorney's fees incurred by the tenant. This is serious business, and attorneys are out there just waiting for you to violate the law.

History of the Law -- Most landlords are familiar with or have heard of the Fair Debt Collections Practices Act, the FDCPA. These are the Federal Laws that govern "debt collectors". When you send a file to a collection agency, the agency must follow these laws or they and you could be subject to penalties if the FDCPA is violated. Since the FDCPA applies only to "debt collectors", the landlord usually does not have to worry about compliance to a great extent, as at least for now, a landlord or a property manager is for the most part not considered a "debt collector" under the FDCPA. A "debt collector" under the FDCPA is more closely defined as someone who collects delinquent debts of another. The purpose of the FDCPA was to create laws to curb abuses by debt collectors who sometimes threaten and harass debtors. As you can see, the FDCPA governs debt collectors, but what if you are collecting a debt that is due to you? If you are collecting rent, you are considered an "original creditor", thus you are not a "debt collector" as defined by the FDCPA, but you are not off the hook yet. An original creditor is governed by Florida Statutes Consumer Collection Act Section 559.

Florida Statutes and the Original Creditor-- Florida Statutes Section 559 governs not only debt collectors as does the FDCPA, but also governs the original creditor. This would be the landlord or the property manager. This article will examine only one specific section of the Florida Consumer Collection Law and how it applies to the owner or property manager.

Security Deposit Disputes-- After a tenant vacates the premises, the landlord is required to send the tenant the Notice of Intention to Impose Claim on Security Deposit according to Florida Statutes 83.49. The receipt of this required notice by the former tenant is the single largest cause of disputes. Many tenants simply disagree with the amount that the landlord has claimed from the security deposit and make it clear to the landlord or property manager in the form of a letter. This letter is a "dispute" by the tenant.

Common Practice-- Upon the landlord's receipt of a dispute letter by the former tenant, the landlord may or may not respond to the tenant in writing. A typical response by the landlord is an explanation of why the landlord charged the tenant, and the letter tries to justify the amount charged. Although not required by law, and not recommended by us, sending a letter to the tenant explaining or justifying the charges is not illegal in any way. Often the landlord or property manager sends out a demand letter to the tenant specifying the charges owed and telling the tenant that if these amounts are not paid by a specific time or arrangements are not made, the debt will be sent to collections and potentially affect the tenant's credit. This is where the problem begins.

Threatening to send a debt to collections -- Threatening to send a debt to collections is NOT illegal. Threatening to send a "disputed" debt to collections is NOT illegal. Threatening to send a "disputed" debt to collections without telling the debtor that the debt will be sent as a "disputed" debt is completely illegal under Florida law. Unfortunately this happens all the time. The landlord sends out the Notice of Intention to Impose Claim on Security Deposit, the former tenant disputes, and the collection letters go out just like that. Violations of Florida Statutes occur every day, and more and more attorneys are keenly aware of the law regarding this.

The Penalties Sending the debtor a letter stating that they will be sent to collections or that their credit may be affected WITHOUT telling the debtor that the fact that the "debt is disputed" will be disclosed to the collection agency or credit reporting agency triggers a penalty of up to $1000.00 per occurrence, and in the event an attorney has sued the landlord, the attorney will be entitled to an award of attorney's fees and costs, which could far exceed the $1000.00. If an attorney thinks you may have done this to many debtors, the attorney may just decide to file a class action lawsuit against you, which could cost tens if not hundreds of thousands of dollars in defense, penalties and attorney's fees of the attorney filing the lawsuit.

SAMPLE WORDING ON ANY CORRESPONDENCE
AFTER YOU GET A DISPUTE

We are in receipt of your letter disputing the debt of $(INSERT AMOUNT). Our collection agency and anyone else inquiring about your creditworthiness shall be notified of your debt as a "disputed debt".

Practical Considerations 1. Never forget to use the word "disputed debt" when telling the debtor that the debt will be sent to collections.
2. Never threaten to affect someone's credit report.
3. Send your collection agency a certified letter informing them that the debt is "disputed", and keep a record of this in the file.
4. If someone inquires about the debtor's creditworthiness or delinquency, always disclose that the debt is disputed.
5. Try to settle disputes to avoid litigation.

FLORIDA CONSUMER COLLECTION PROHIBITED PRACTICES

559.72 Prohibited practices generally.--In collecting consumer debts, no person shall: (1) Simulate in any manner a law enforcement officer or a representative of any governmental agency;

(2) Use or threaten force or violence;

(3) Tell a debtor who disputes a consumer debt that she or he or any person employing her or him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor's reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed as required by subsection (6);

(4) Communicate or threaten to communicate with a debtor's employer prior to obtaining final judgment against the debtor, unless the debtor gives her or his permission in writing to contact her or his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection, but this shall not prohibit a person from telling the debtor that her or his employer will be contacted if a final judgment is obtained;

(5) Disclose to a person other than the debtor or her or his family information affecting the debtor's reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false;

(6) Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact. If a disclosure is made prior to such reasonable dispute having been asserted and written notice is received from the debtor that any part of the debt is disputed and if such dispute is reasonable, the person who made the original disclosure shall reveal upon the request of the debtor within 30 days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the preceding 90 days;

(7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family;

(8) Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family;

(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist;

(10) Use a communication which simulates in any manner legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney at law, when it is not;

(11) Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments which only attorneys are authorized to prepare;

(12) Orally communicate with a debtor in such a manner as to give the false impression or appearance that such person is or is associated with an attorney;

(13) Advertise or threaten to advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor;

(14) Publish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts;

(15) Refuse to provide adequate identification of herself or himself or her or his employer or other entity whom she or he represents when requested to do so by a debtor from whom she or he is collecting or attempting to collect a consumer debt;

(16) Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor. An example of this would be an envelope addressed to "Deadbeat, Jane Doe" or "Deadbeat, John Doe";

(17) Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor's time zone without the prior consent of the debtor;

(18) Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the debtor's attorney fails to respond within a reasonable period of time to a communication from the person, unless the debtor's attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication; or

(19) Cause charges to be made to any debtor for communications by concealment of the true purpose of the communication, including collect telephone calls and telegram fees.

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Paying Leasing Bonuses to Unlicensed Persons and Referral Fees to Residents by Harry Anthony Heist, Attorney at Law

THE BACKGROUND

Florida Statutes section 475 governs the ability or inability to receive or pay compensation when engaging in real estate related services. Real estate related services include things such as appraising, auctioning, selling, exchanging, buying, and most importantly for this article, renting of real property. Only a licensed broker, a person who holds a real estate broker's license in Florida may receive and pay compensation for these services to other licensed brokers or salespersons. Certain exceptions to the requirement of licensure have been carved out by the legislature, which allows compensation to be paid and received for a real estate related service without the need for a license. For instance, FS 475.011 exempts any "salaried employee of an owner, or of a registered broker for an owner, of an apartment community who works in an onsite rental office of the apartment community in a leasing capacity". Note that the key word here is "salaried". Through the efforts of the Florida Apartment Association, another exemption was added which allows a referral fee or finder's fee to be paid in an amount up to $50.00 in cash, a rent reduction or something of value to a resident who refers another resident to the apartment community. Unfortunately, apartments are limited to paying their employees only a salary for leasing activities and paying residents the $50.00 referral fee cap. Many companies knowingly and unknowingly violate this law. There has been little to no enforcement by the Florida Real Estate Commission until very recently, and a number of apartment communities, in particular the licensed real estate brokers of those companies, have come under fire. The penalties are expensive and severe and there are criminal felony implications.

COMPENSATION WHICH AN UNLICENSED EMPLOYEE OF AN APARTMENT COMMUNITY CAN LEGALLY RECEIVE

FS 475.011 exempts on-site employees from the legal requirement of having a broker's or sales person's license to receive compensation for leasing. Specifically, it exempts any "salaried employee of an owner, or of a registered broker for an owner, of an apartment community who works in an onsite rental office of the apartment community in a leasing capacity." From the language of this section, it would appear and has been interpreted by the Florida Real Estate Commission that nothing other than a "salary" can be paid to the property manager or leasing staff. Paying a bonus or giving anything extra of value to the employee when he or she leases an apartment is considered illegal and violative of FS 475. Can the property manager or leasing agent receive a performance bonus each week or month, just as in many other professions where the hard working employee can receive a bonus? It appears that the answer is no, if that bonus is based on the "leasing" or the number of leases which are consummated through the effort of that employee. It our opinion that this prohibition by FS 475 is ridiculous, and the law needs to be changed. No harm is being done to the public by paying a leasing agent or property manager a "bonus"; many on-site property managers and leasing agents have far more experience then the majority of property managers who hold Florida real estate licenses, and almost no training or testing in property management is performed or required by Florida law in order to obtain either a sales person's license or broker's license. This is not a situation where unlicensed persons such as on-site property managers or leasing agents are in any way infringing upon the livelihood of a licensed person. With all that said, it is our firm's view that if an apartment manager, leasing agent or any employee of an apartment community is paid anything other than a salary, they risk prosecution by the Florida Real Estate Commission. You have been forewarned, enforcement has begun.

REFERRAL OR FINDERS FEES TO CURRENT RESIDENTS

FS 475.011 specifically allows the payment of a referral fee or finder's fee to a current resident for referring a new resident to the apartment community. The law exempts "Any property management firm or any owner of an apartment complex for the act of paying a finder's fee or referral fee to an unlicensed person who is a tenant in such apartment complex, provided the value of the fee does not exceed $50.00 per transaction". This means that no license is required by either party to give or receive this finder's fee or referral fee. The amount given cannot exceed anything valuing more than $50.00 so a $100.00 reduction of rent off to the referring resident, a $100.00 gift certificate to a local restaurant or anything that exceeds $50.00 in value is clearly prohibited. Examples the law gives include a "fee paid, credit towards rent, or some other thing of value provided to a person for introducing or arranging an introduction between parties to a transaction involving the rental or lease of an apartment unit". The penalty for paying a referral fee in excess of $50.00 is severe, and the person making the payment could be charged with a third degree felony, and the person or corporation making the payments fined up to $5000.00 per occurrence.

OUR RECOMMENDATIONS

You should immediately speak with your corporate attorney if your company has been paying employees anything other than salaries for leasing activities, or you have been giving resident referral or finder's fees in excess of $50.00, and get advice on how to proceed. We urge you to actively get involved with the Florida Apartment Association, which is continuing its effort at trying to clarify the law and lobbying for the ability of the apartment community employee to be rewarded for a job well done.

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IS A UNIT ABANDONED?
by Harry Anthony Heist, Attorney at Law

The electric is off, the water is off, the unit is filthy and filled with trash, empty beer cans, some clothes, piled up unclaimed mail, and the neighbor tells you that they saw the tenant pack up and leave last week. Is the unit abandoned? Can you take possession of the unit and get it ready for the new tenant? Not if you want to follow the law and protect yourself from liability!

The 3 ways you get possession

The 3 ways to legally gain possession of a rental unit are surrender, eviction or abandonment. When it comes to determining whether a unit is abandoned, we have to ignore logic, common sense and intuition and look solely to the law. FS 83.59 states
" When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he is absent from the premises for a period of time and equal to one-half the time for periodic rental payments. However, this presumption shall not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence"
Basically this means that the appearance of the unit, the fact that the electric was off or a neighbor's observations are all irrelevant. We just have to ask some simple questions:
1. Were the tenants (all tenants!) absent for 15 days?
2. Is the rent unpaid?
3. Did the tenants tell us in writing that they were coming back?

These are the legal requirements of abandonment. Failure to follow this can result in costly lawsuits in which the judge will be sympathetic to the tenant because you failed to follow the law. The burden of proof imposed on the wronged tenant is extremely low, and the tenant can easily fabricate the alleged missing contents of the unit, resulting in a large judgment and liability to pay the tenant's attorneys fees, which could be substantial. When a property manager "jumps the gun" and takes possession too soon, many attorneys will readily take a case like this on a contingency fee basis, making it easy for the tenant to have access to the legal system. The tenant can sue for the lock out prohibited practices and of course the claimed value of the items he or she claims are missing. The property manager could face other serious consequences in court, including criminal charges, charges of wrongful eviction, conversion, and liability for anything the tenant claimed was in the unit!!

In some cases, the property manager has knowledge that the tenant is gone, but someone else is living in the unit. Is this person a squatter or trespasser? You would think so, but if this person states that he is in there with the permission of the tenant or is renting from the tenant, it does not matter whether the original tenant is gone. The unit is simply NOT abandoned. Some property managers attempt to call the police when an unknown person is remaining in the unit, but usually the police will state to the property manager that it is a "civil matter" and tell you that you must evict the person. Calling the police is always worth a try, because the person in the unit may in fact be a trespasser or squatter completely unknown to the original tenant and if so will often readily leave.

In the event you accidentally take possession too soon and the tenant returns, try to calm the tenant, call your attorney immediately, and get the tenant to write down what he or she says is missing and the approximate value. If you have only changed the locks and have not removed any belongings, you will need to let the tenant back in, regardless of how much money, if any, the tenant owes you. After this you can proceed with the normal route of eviction after proper notice, or possibly the tenant will surrender the premises. Remember that A UNIT IS LEGALLY ABANDONED UNDER FLORIDA LAW IF ALL OF THE FOLLOWING IS IN PLACE:

1. NO ONE HAS BEEN IN THE RENTAL UNIT FOR A FULL 15 DAYS AND YOU CAN PROVE IT.

2. THE RENT IS UNPAID.

3. NO TENANT OR OCCUPANT HAS GIVEN YOU ANY NOTICE, VERBAL OR WRITTEN STATING THAT THEY ARE GOING TO PAY THE RENT OR COME BACK AT A LATER TIME.

If you have followed the aforementioned 3 standards of abandonment, you will probably be safe in taking possession. We recommend that you take pictures or videotape each room of the rental unit prior to taking possession. Training your staff, especially maintenance staff, is crucial to avoiding mistakes in taking possession. Lastly if a unit is chock full of personal belongings and other items and you are baffled as to why a person would up and leave all these items behind, we strongly recommend that you give notice if you have not done so already and file an eviction as this will be your absolute safest route. The tenant could be in jail or have been Baker Acted to a mental facility and the last thing you need is to deal with that tenant when he or she gets out and finds out that you have taken full possession of the unit. If you are ever unsure, always give your attorney a call to get an opinion on the matter.

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Notifying the Tenant of New Management
by Harry Anthony Heist, Attorney at Law

You just took over management of a unit from another property management company or a homeowner who was self-managing. You send the tenant a letter announcing that you are the new manager and that he needs to send you the rent from this point on. Does the tenant have to send you the rent now? Not according to some judges.

Common incorrect practice

Common practice when taking over a rental unit that is occupied by a preexisting tenant is for the new property manager to send a nice letter advising the tenant that they are the new managers of the premises and instructing the tenant where to pay rent from this point on. The letter from the new property manager often goes further and tells the tenant who to call for maintenance requests, who the property manager will be and gives other relevant and important information the tenant needs to know.

Does the tenant have to abide by this letter? You would think so, because after all, you are the new property manager. But who are you to the tenant? The tenant may never have heard of your company. The tenant may be also embroiled in the disputes that often occur between the property owner and the property management company that the owner is firing! The old property management company may be telling the tenant to continue paying the rent to them, the owner is telling the tenant that the old property management company is being fired, and the tenant is in the middle of the whole mess. The tenant's response to this? The tenant refuses to pay the rent to anyone, and the new property management company, with the permission of the property owner, institutes an eviction action. The tenant can successfully defend the case by saying that she was not sure to whom to pay the rent and therefore did not pay the rent to anyone. This may seem absurd that a judge would buy such a defense, but it actually happens. So what is the solution? Does a tenant just get a free ride if the property management company changes? Is there a solution to this dilemma?

The simple solution

The solution is simple. The property OWNER needs to notify the tenant in writing that YOU are the new property manager. While YOUR letter was informative, the owner is changing agents, and the owner needs to inform the tenant who the new property management company will be. The letter from the owner to the tenant can be prepared by the property manager but should be signed by the owner. A sample notification letter could be as simple as the following:

Dear Tenant:
Please be advised that we have hired XYZ PROPERTY MANAGEMENT to manage our property in which you reside. ABC PROPERTY MANAGEMENT is no longer managing the property for us.

From this point on, all rent payments and all payments due under your lease and Florida Law, inquiries and maintenance reports and requests are to be made to our new property manager. We have attached the information sheet provided to us by the management company. You will be receiving correspondence from XYZ.

Please make no further payments to ABC PROPERTY MANAGEMENT, and all payments must be received by XYZ PROPERTY MANAGEMENT on or before the due date in your lease.

Please feel free to call our new property manager MARY JONES at 555-1212 should you have any questions or concerns

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Trampolines - Fun or Fatal
by Harry Anthony Heist, Attorney at Law

Are you aware that most insurance companies do not cover injuries sustained by people using trampolines, and the mere presence of a trampoline on the property could result in the insurance company canceling the insurance on the premises? Does your lease adequately address this issue? Can you force the tenant to remove the trampoline?

The Deadly Trampolines

Injuries to individuals using trampolines are rising at a dramatic pace, as trampolines are becoming less expensive and easily obtainable at the mega-stores such as Wal-Mart and K-Mart. Serious injuries occur every year to the neck, legs, spine, face and head of users. Over 89,000 people sustained injuries last year alone, many included paralysis, and some even death due to the use of trampolines. The insurance companies are taking swift action!

In our opinion, trampolines should be expressly prohibited on residential rental property, and according to many insurance companies, the mere presence of a trampoline on a rental property will result in the loss of insurance coverage. Does your owner's insurance coverage permit or prohibit trampolines? If the insurance company decides to prohibit them, can you make the tenant remove the trampoline?

Creating a policy

Your first step needs to be to create a policy that trampolines are prohibited, and this needs to be clearly stated in the lease agreement. By failing to state this in the lease agreement, it becomes difficult to make a tenant remove the trampoline and could even appear that the property owner or manager is discriminating against children by making them remove a trampoline. If you discover that trampolines are prohibited by the insurance company, and your lease fails to address the issue, we still recommend that you give a Seven Day Notice of Noncompliance With Opportunity to Cure, and attempt to force the tenant to remove the trampoline. The tenant's use or possession of the trampoline is thus affecting the insurance coverage the owner has on the property, so this may be grounds for enforcing the removal of the trampoline and even the tenant if the tenant fails to comply.

Other Recreational Equipment

What about swing sets, above-ground pools or other toys or recreational equipment that may be prohibited by an insurance company now or in the future. Do you need to list out every possible item and prohibit it all? You simply need to have a clause in your lease which makes the tenant agree to not engage in any activities which can affect insurance coverage.

Here is a "Sample Lease Clause which may be helpful:

"No trampolines, athletic equipment, recreational equipment, or any items or activities which can cause interference with or affect the insurance coverage on the premises will be permitted. Tenant agrees to cease any activity and/or remove any items which causes interference with or affects the insurance coverage on the premises immediately upon notice from Landlord or Landlord's agent"

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REQUIRING NOTICE FROM TENANTS PRIOR TO LEASE END
by Harry Anthony Heist, Attorney at Law
Landlords must now give notice to tenants in a specific fashion and in a specific time frame or will not be able to enforce notice provisions in lease.

PRIOR LAW: Prior to July 1, 2004, a landlord could require the tenant to give a specific amount of notice of vacating the premises. This had to be stated in the lease and could not exceed a requirement of 60 days' notice from the tenant. Most leases required a 30 day notice from the tenant, and failure to give such notice resulted in the tenant forfeiting their security deposit or having to pay an additional month's rent. The landlord was not required to notify the tenant in any way other than to state the notice requirements in the lease. Failure of the tenant to give notice would result in a forfeiture of money up to the amount of rent that the notice period required and/or the security deposit.

NEW LAW:Landlord can still require notice from the tenant of up to 60 days BUT MUST give tenant written notice of the tenant's notice obligation within 15 days of the beginning of the required notice period. This NEW notice from the landlord must contain information regarding the notice requirement, how the notice needs to be given, and the fees, penalties or other charges imposed upon the tenant if the tenant does not give the notice.

EXAMPLE: Lease requires tenant to give landlord 30 days' notice prior to lease end. Landlord NOW must inform tenant of this requirement by giving tenant written notice per FS 83.575 45 to 31 days prior to the beginning of the 30 day notice period. If the landlord fails to give this notice, and the tenant vacates without notice at the end of the lease, the landlord will not be permitted to charge tenant for failure to give notice. The new law does not specify HOW this notice must be given. We recommend giving the notice according to the terms of your lease, hand delivering the notice or posting on the tenant's door if your lease allows this type of delivery. If you are going to mail the notice, it is crucial that you ADD 5 BUSINESS DAYS for mailing, and avoid certified mail as often the certified mail is not picked up.

SAMPLE WORDING:

Place this in your Renewal Letter along with your other usual information.

"According to your lease, you are required to give us ______ days notice in writing if you are vacating the premise at the end of your lease term. Failure to give us this notice in writing will result in __________ Forfeiture of your security Deposit __________ You will owe us an additional _________ month rent."

PRACTICAL IMPLICATIONS: A property manager should always be diligent in determining whether a tenant is staying or leaving at the end of the lease term. Most property managers send out their renewal letters 30 to 60 days prior to the end of the lease as a standard procedure and should continue to do so just as in the past. The only difference is that NOW, a letter needs to get to the tenant within that 15 day timeframe before your required notice period. It is important to create a tickler file, mark your calendar, create a reminder on your computer, etc., to make sure that you do not miss this 15 day "window".

PLEASE DO NOT FORGET TO DO THIS!!!!

TEXT OF THE NEW NOTICE LAW

83.575 AS AMENDED Termination of tenancy with specific duration.--
(1) 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.
(2) A rental agreement with a specific duration may provide that if a tenant fails to give the required notice before vacating the premises at the end of the rental agreement, the tenant may be liable for liquidated damages as specified in the rental agreement if the landlord provides written notice to the tenant specifying the tenant's obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The landlord must provide such written notice to the tenant within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the tenant under this subsection.
(3) If the tenant remains on the premises with the permission of the landlord after the rental agreement has terminated and fails to give notice required under s. 83.57 the tenant is liable to the landlord for an additional 1 month's rent.
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DISPLAY OF UNITED STATES FLAG BY TENANTS
by Harry Anthony Heist, Attorney at Law
Landlord may not prohibit tenant from displaying United States Flag on premises

PRIOR LAW: Prior to July 1, 2004 a landlord could prohibit tenant by the lease terms from displaying or hanging a flag or any other item from or on the premises.

NEW LAW: A landlord may not prohibit a tenant from displaying a United States flag on the premises as long as it meets certain requirements.

SAMPLE LEASE WORDING: "Tenant may display a "United States Flag", commonly known as the "Stars and Stripes", as long as this flag is portable, removable, cloth or plastic with a size not larger than 4.5 feet by 6 feet and is displayed in a respectful manner. This flag may not infringe on any other tenant's area or space rented by another tenant, including but not limited to a downstairs tenant's lanai space if any. This flag, its pole or its base may not constitute a safety hazard to any person or property. In displaying the flag, tenant shall not destroy, deface, damage, impair, or remove any part of the premises or property therein belonging to the landlord nor permit any person to do so".

TEXT OF THE NEW FLAG LAW

FS 83.67 AS AMENDED

4) A landlord may not prohibit a tenant from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and one-half feet by 6 feet, in a respectful manner in or on the dwelling unit, regardless of any provision in the rental agreement dealing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The landlord is not liable for damages caused by a United States flag displayed by a tenant. Any United States flag may not infringe upon the space rented by any other tenant.

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EVICTION COUNTY FILING FEES GOOD NEWS!!
by Harry Anthony Heist, Attorney at Law
A change in the Florida State Constitution approved by voters in 1998 will be fully implemented on July 1, 2004. As a result of this constitutional change, fees charged by all of the Clerks of Court in Florida will be increasing. The great news is that in most counties, the fees for filing an eviction action will be decreasing!

In almost every county, the filing fees for filing an eviction action will be $80.00. In some counties they were over $160.00!!

PRACTICAL IMPLICATIONS: While the filing fee is now set at $80.00, already some county clerks are imposing other small fees such as fees to issue summonses etc. which will be their way of raising revenue. Always check with your attorney when stipulating with a tenant or accepting payment in full so you have the exact figure from your attorney. (Back to Top)


POST HURRICANE CONSIDERATIONS
by Harry Anthony Heist, Attorney at Law

Many legal issues arise after there is damage or destruction of occupied premises. All situations should be dealt with on a case by case basis and you should get your attorney involved immediately. Often your compassionate accommodation of a tenant will result in greater problems and liability to you and the property owner if not done properly.

RELEASING TENANTS FROM THE LEASE: It is imperative when releasing a tenant from a lease that a proper release form is used which deals with the security deposit, prepaid rents, damages to the premises, date of vacating and abandoned property. We recommend the CANCELLATION OF LEASE, AGREEMENT AND MUTUAL RELEASE.

TERMINATING THE TENANCY: If your lease agreement has a clause which states that the lease may be terminated at the landlord's option upon the damage or destruction of the premises, you are probably safe to give a Seven Day Notice of Termination to the tenant. If the lease fails to have a clause allowing such termination, we advise that you call your attorney immediately to see what options you may have. Check your lease carefully. Most leases only give the landlord the option to terminate the tenancy if the premises are "destroyed". This is a major problem as more often a property is not "destroyed" but is "damaged" to the point where you want the tenant to vacate. Review and have your lease revised immediately.

TRANSFERRING A TENANT: It is not advisable to transfer a tenant to another unit unless a Resident Transfer Addendum is signed by all parties. Failure to use such addendum can result in you having two units occupied by the tenant and/or their belongings. If a tenant is transferred, all items should be removed from the original premises before the tenant is allowed to take possession of the new premises.

RENT REDUCTIONS AND CONCESSIONS: No rent reductions should be given or offered unless and until such time as you have consulted with your attorney and have written permission from the property owner. If the property is damaged and the tenant is demanding a rent reduction or concession, please remember that if you and the tenant cannot come to an agreement, a judge may eventually make the agreement for you with less than desirable results. Once an agreement is made, your attorney will write up a contract detailing all the terms. Nothing should be done verbally.

SECURITY DEPOSIT AND ADVANCE RENT: Once a tenant has vacated the premises, you have 30 days to make the claim upon the security deposit. If you are not making any claim, you have 15 days to refund the entire security deposit and last month's rent if applicable. If you are refunding the security deposit or prepaid rents in an emergency fashion, it is imperative that you use the proper form. Call your attorney immediately.

MOLD AND MILDEW: There is an incredible increase in mold and mildew situations due to water intrusion and power outages. Over the next year, this will worsen as properties have suffered severe water intrusion and attorneys will be capitalizing on mold litigation. If you have a proper Mold Addendum, you will be able to terminate the tenancy if there is mold or mildew present. Call your attorney immediately if you receive complaints of mold or mildew and check each property carefully for mold and mildew.

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THE VERIFICATION OF NON-MILITARY STATUS
by Harry Anthony Heist, Attorney at Law and
Irena Nikolova, Legal Assistant

Under federal law, a landlord technically must inform the state court of a tenant's military status when seeking a default. Some Florida Counties strictly enforce this law, particularly in those counties in which a natural military presence exists, such as counties in which military bases are located, or are nearby. Before a judge will enter a Final Judgment, he or she wants to be certain that the tenant is not in the military, as military status has a potential delaying effect upon the process. The judge needs to see a document which verifies that the person you are evicting is not in the military service. If a judge is informed that the tenant is in the military, the judge has the discretion to significantly delay the eviction. If you know your tenant under eviction is in the military, you must notify your attorney, who will then prepare an affidavit accordingly for the court. Depending upon the county and the judge, a non-military affidavit may be signed by the attorney or sometimes must be signed by the landlord. Most landlords have seen this form and know that the attorney needs the form back, but unfortunately many landlords delay in getting this back to the attorney, and the case stops dead in its tracks. Why delay your eviction? Don't you have enough problems to deal with?

The History of the SSCRA

The Soldiers' and Sailors' Civil Relief Act (SSCRA) was adopted in 1940 to assist military personnel who are unexpectedly transferred or recalled to active duty. Its purpose is to give certain protection to military personnel when their legal rights or financial obligations are "materially affected" (creates a hardship) by the unforeseen recall to active duty. SSCRA is not intended to cancel or discharge lawful obligations; it only allows certain delays for appearing in court or paying off debts.

What this Act has to do with the eviction process?

In accordance with SSCRA, after an eviction has been filed and the landlord is seeking a default for the tenant's failure to respond to the lawsuit, some counties in Florida strictly enforce the requirement that the Landlord to file an Affidavit as to military status setting forth facts showing that the defendant or respondent is not in military service before a default judgment may be entered.

What counties strictly enforce the requirement of proof of military status?

Our office files evictions in 28 counties only and of these counties, those that strictly enforce the requirement of an Affidavit of Non-Military Service to be filed are Hillsborough, Flagler, Martin, Orange, Osceola, Palm Beach, Pasco, Pinellas, and Sarasota. There are 67 counties in Florida so if you are not in one of our 28, you need to check with your attorney to see if this is required.

How the process works

In order to for the evictions to be processed in timely manner, when our office prepares an eviction action we mail the Non-military Affidavit to our clients in the above counties the very same day the eviction is filed in an envelope stamped "Time Sensitive Document Enclosed". The Affidavits are mailed with instructions printed on a bright sheet of paper and stapled to them. Self-addressed envelopes are also attached to expedite the process.

What does the Landlord need to do?

All Non-Military Affidavits have to be signed, dated, faxed back to us, and mailed in the attached self-addressed envelope as soon as possible after you receive them in the mail. Although we immediately file the evictions, we cannot get a Final Judgment of Eviction in the above counties until we receive the Non-Military Affidavits to submit to the court with the default papers.

Specific county requirements :

Orange, Osceola, Pasco, Pinellas, Sarasota - require a Verification of Non-Military Service. Fax copies of the dated and Verification signed by you are accepted by the clerks of the court.

Flagler, Martin - Only an original Affidavit of Non-Military Service can be filed with the court. The Affidavit must be dated, signed and notarized. Fax copies are not accepted by the clerks.

Hillsborough - Original Verifications of Non-Military Service have to be filed.

Palm Beach - An original Affidavit of Military Status must be dated, signed, notarized and must have attached to it a statement from the Department of Defense that the defendant is not in military service. Such a statement is available from the Defense Manpower Data Center (DMDC), which allows verification of non-military status for defense branches of armed services through its website at CLICK HERE . The statement is provided electronically in a form with the seal of the Department of Defense and the signature of the Center's Director.

How do you verify if the tenants are in the military?

1. Verify the military status through the DMDC at CLICK HERE (you will need tenant's Social Security Number or Date of Birth)
2. Ask the tenant personally
3. Look up tenant's records - rental application, other records in the file
4. Speak to neighbors who know the tenant personally, but do not tell them you are collecting a debt or filing an eviction
5. Speak to tenant's employer or co-workers, but do not tell them you are collecting a debt or filing an eviction
6. Other - observe if tenant is wearing a uniform, etc.

The Big Unnecessary Eviction Delay Caused by the Landlord

If your county requires verification of non-military service, it is imperative that you get the information your attorney requests to the law firm immediately. Every day, evictions are delayed because the landlord fails to take the military status request seriously, and it languishes on the landlord's desk. This delay is completely unnecessary and totally within the landlord's control. Perhaps more importantly, if your county does not strictly enforce the military affidavit requirement, the landlord is still required to notify the state court judge of a tenant's military status. Whenever sending an eviction request to your attorney, please notify your attorney if you know one or more of the tenants involved in the case is in the military.

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THE COURT HEARING WHEN THERE IS
NO MONEY IN THE COURT REGISTRY

by Harry Anthony Heist, Attorney at Law

In order for a tenant to have his or her day in court, the tenant must place the rent money that is owed into the Court Registry, right? You would think so, because it is the law. Unfortunately, many judges do not follow the law and set eviction trials when no money at all is deposited in the Court Registry or fail to require accruing rent to be deposited into the court registry. The result? More time wasted and more money lost to the landlord. How does this happen?

Law regarding Court Registry Deposits

Florida Statutes clearly state that if a tenant is contesting an eviction, the tenant must place the rent money as alleged in the eviction complaint and money as it becomes due during the time period from when the case is filed into the Court Registry until a final hearing, or file a Motion to Determine Rent, which will often allow the tenant to get into court without placing any money into the Court Registry. This article will only deal with the tenant filing an answer with the court, not the Motion to Determine rent, which is dealt with in the article entitled Motion to Stay Writ . If the tenant claims that he or she has PAID the rent to you in full, or has paid you rent after you after you served the Three Day Notice, most judges will set the case for a hearing. Payment of rent is a complete defense to an eviction, and a judge will not take any chances or require the tenant put up more money into the court registry other than money which may become due as the case progresses into the next month. While it is not too common that a tenant will outright lie and say they have paid the rent, this tenant delay tactic will be dealt with in a future article.

Florida Statutes section 83.60 Defenses to action for rent or possession (2) In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon"¦

Purpose of the law

The purpose behind the law is to protect the landlord from a potential greater loss of rent by the tenant filing an answer to the complaint, delaying the action while the rent owed continues to build up. It also is meant to cut down on unnecessary court hearings in which the tenant has no real defenses to the law. Basically the law says to the tenant, "˜PUT YOUR MONEY WHERE YOUR MOUTH IS," or you will not be entitled to a hearing. There is no surprise here to the tenant, as this requirement is clearly stated in the eviction summons as required by the law. A number of years ago, this statute only stated that the landlord was entitled to a "default" if the tenant failed to place the rent money into the court registry. This gave an easy "out" for judges, and many would enter a default but still set the case for a hearing or eviction trial, allowing for a further delay and loss of rent to the landlord. The statute was modified and now states that the landlord is entitled to an "immediate default judgment", which made it clear that if the money was not in the Court Registry, a final judgment of eviction would be entered against the tenant and a writ of possession could issue.

Suppose the tenant files an answer and places the rent into the court registry?

1. ALL RENT DEPOSITED Under current law, if the tenant places ALL the rent into the court registry as it is alleged due in the complaint that your attorney files, the tenant has an absolute right to be heard in court, at which time the tenant can bring forth any and all defenses to the eviction action. This is assuming that no more rent has accumulated during the eviction action, i.e., we have not gone into another month and more rent is owed.

2. PARTIAL RENT DEPOSITED If the tenant only places a partial amount into the court registry, not the full amount, some judges will set the case for a hearing. For instance, the complaint when filed states that $600.00 is owed, but the tenant only places half this much into the Court Registry. The law states that the judge should enter a default judgment against the tenant. Unfortunately the partial rent deposit can trigger a court hearing even though it DOES NOT comply with the law.

3. ALL RENT DEPOSITED BUT NOW MORE RENT IS OWED An eviction is commonly filed some time in the middle or towards the end of the month. Often the tenant will place the amount of money owed as alleged in the complaint into the Court Registry, but NOW another month is owed. Under the law, the judge should enter a default judgment against the tenant, but often this does not happen, and again a hearing is set.

The Law Versus Reality

As you can see, the law says one thing, but in reality often another thing occurs. How can this happen? Some judges are not aware of the law. This can occur when a judge is new and has just been put on the bench, or another judge who does not handle evictions may be sitting in for a judge on vacation or home ill. Other judges simply are more lenient to the tenant and have taken a stance that they will do what they will. A judge new to the bench is often lenient in the beginning, then as times goes on, they realize why the law was written and how the failure to follow the law results in unnecessary hearings, a burden on the court and a greater loss of rent to the landlord.

Your attorney's role

When a tenant files an answer with the court and has not complied with the law requiring the deposit of the rent money into the Court Registry, your attorney will file a Motion for Default for Failure to Post Rent Into the Court Registry. Our firm files detailed motions in these cases, and we never fail to remind the judge what the law is in the matter. If the eviction rolls into another month and the accrued rent is not deposited as required by law, we file another Motion for Default for Failure to Post Rent Into the Court Registry to again show the judge what the law is, in hopes that he or she will sign the judgment. Will the judge sign the default judgment after receiving the motion? Yes, in most cases. In the other cases, the judge will require a hearing, and unfortunately you will end up in court. Your attorney will often know the particular judge's stance in these cases and may be able to advise you whether there will be a high chance of a hearing, or whether the judge will most likely sign the judgment.

The Landlord's Role

There is not much the landlord can do when the judge requires a hearing, but there are some things that increase the risk of the judge setting a hearing when a tenant files an answer. A Three Day Notice with odd amounts will often raise the suspicion of a judge that something may be improper on the Three Day Notice. Strange amounts can be due to late charges, acceptance of partial payments in the past, a running balance, accumulated late charges, excessive rent owed or many other reasons. If the Three Day Notice clearly states how you arrived at the amount you are demanding, this makes a judge more comfortable in entering a default if no money has been placed in the Court Registry. Many landlords who file their own evictions do not know that only rent or amounts defined as rent in the lease can be placed on a Three Day Notice. Judges see improper Three Day Notices all day long. Take your time, prepare your Three Day Notice with care, and always ask your attorney what can or cannot be put on the Three Day Notice.

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Terminating a Tenant Without Opportunity to Cure
by Harry Anthony Heist, Attorney at Law

Just about every landlord will at one time have to deal with a tenant's noncompliance. The usual culprits are the unauthorized person or pet, failure to maintain the premises, noise and parties, among many other possible lease violations. Almost all tenant noncompliances are of a curable nature, and the landlord knows that they must first give the tenant a Notice of Noncompliance With Opportunity to Cure. After service of this notice, usually the tenant cures the noncompliance and life goes on. There are limited circumstances where the tenant is NOT given an opportunity to cure a noncompliance, and the landlord is able to go straight to the Seven Day Notice of Termination. It is imperative that the landlord knows when and how to use this notice, as this notice is drastic. The landlord is taking the unilateral step to terminate an important and valuable property use right of a tenant.

The law regarding the Seven Day Notice of Termination

Florida law gives the landlord the authority to terminate a tenancy in FS 83.56(2) (2) If the tenant materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the landlord may:
(a) If such noncompliance is of a nature that the tenant should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the landlord of a similar violation, deliver a written notice to the tenant specifying the non-compliance and the landlord's intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the tenant should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord's or other tenants' property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the landlord may terminate the rental agreement, and the tenant shall have 7 days from the date that the notice is delivered to vacate the premises"¦

When is a noncompliance not of a curable nature?

The examples Florida law gives us are destruction, damage, or misuse of the landlord's or other tenants' property by intentional act or a subsequent or continued unreasonable disturbance. The law also states that the landlord is not limited to these specific items but does not elaborate any further. This creates a problem, since we are not sure whether a noncompliance which is not listed in the statute is to be considered of a curable nature or a non-curable nature.

Destruction, damage, or misuse of the landlord's or other tenants' property by intentional act

If a tenant were to break out all the windows in the unit, intentionally set a fire on the premises or smash the windshield of another tenant's vehicle, it would be fairly clear that the landlord could go straight to termination. In most situations, it is not so clear. Tenants often have fights and end up breaking a window in the unit. They claim it was an accident. You now have to prove it was intentional. Were you there at the time? Probably not. The tenant's door is kicked in, and there is a fight on the premises. It looks like intentional damage, but the tenant claims some unknown person came to the unit and kicked in the door. You inspect a unit and there are stains all over the carpet and writing on the walls. It doesn't look like an accident, but will a judge evict someone for this, or expect you to take the damages out of the security deposit when the tenant vacates? The tenant has a fire in the unit resulting in severe smoke and water damage. They claim it was an accident. Can you prove otherwise?

Criminal acts on the premises

Most landlords feel that if a tenant commits a crime on the property, this is cause for immediate termination. These crimes may include, but are not limited to, a weapons offense, molestation, battery, sexual offense, domestic violence or a drug offense. It would seem clear that if the tenant commits a crime, this is not a situation where the tenant should be given the opportunity to cure. The big problem though is that the tenant is considered innocent until proven guilty in a court of law. The same tenant who got hauled off to jail last night for a serious crime is considered completely innocent in the eyes of the law and most likely will be out on bail in a short period of time. It is interesting that the statute does not mention the commission of a crime as a basis for immediate termination. However, the statute does indicate that the listed immediate termination items are not an exclusive list, so it may be possible in some circumstances to go straight to termination, even though the tenant has not been and will not be convicted of any crime by the time you file the eviction.

The Drug and Crime Free Addendum

Many landlords wonder why it is necessary to use a Drug and Crime Free Addendum. The Drug and Crime Free Addendum specifically states that in the event of a commission of a crime on the property, the tenancy may be immediately terminated. Here the tenant is contractually agreeing to the termination of the tenancy without being given the opportunity to cure.

Falsification of information on a rental application

Most applications and leases have or should have a clause dealing with the ability to terminate a tenant if the tenant falsifies information on the rental application. In most cases, if it was a material falsification, you can go straight to termination. Here again, we see a contractual agreement by the tenant that in the event of falsification, immediate termination will be the consequence.

Continued unreasonable disturbances

The law allows for immediate termination in the event of "continued unreasonable disturbances" on the premises, which likely include constant fighting, police responses, multiple parties and other disturbance type activities. The first element is that they have to be continual, meaning they have to either be repeated on different occasions or non-stop. The second element states that they must be "unreasonable" disturbances. This is where most cases will fall apart. While the tenant's actions may be unreasonable to the surrounding tenants, you must be able to convince a judge that they were indeed unreasonable. This will require heavy proof, neighboring residents testifying in court, and often testimony from a law enforcement officer. The judge may feel that the tenant should have been given an opportunity to cure the problem rather than the immediate resort to a termination notice.

When should you decide to serve a Seven Day Notice of Termination?

In our opinion, you should NEVER make the decision to go straight to termination. Your attorney will want to be certain that there is a solid case established, and your attorney should not only make the decision for you but also prepare the wording for the notice. A solid case can be lost on the basis that the notice is worded improperly. Most landlords have never been in court on a contested Seven Day Notice termination case and do not realize that it is far different than your typical nonpayment of rent case. As in any eviction, the prevailing party is entitled to an award of attorney fees and costs. Typically if you lose a Seven Day Notice termination case, and the tenant has an attorney, you will be faced with paying a substantial amount of attorney fees to the tenant's attorney, and you will have a higher chance of being hit with a Fair Housing complaint in the event the person you unsuccessfully attempted to evict is of a protected class.

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HOT LEASE TIP - TERMINATING DUE TO DAMAGES by Harry Anthony Heist, Attorney at Law

A simple lease clause can allow the landlord the ability to terminate a lease in the event the property is damaged by fire, flood, wind, hurricane, tornado, or any act of god. Without this clause, a landlord can be faced with dealing with a rent withholding tenant who will not move, even when you need them to move just to make the necessary repairs. Florida law allocates repair responsibilities, but does not take into account situations where the tenant needs to be out of the premises. Since Florida law does not cover what to do in many of these events, a clear and encompassing lease clause is a must.

The use of this clause should allow the landlord to terminate the tenancy and evict the tenant if necessary, should the premises be put in a condition whereby it has become unsafe or unusable, or the tenants need to vacate the premises for a repair to be properly effectuated.

Recommended Lease Clause

CONDEMNATION, DAMAGE TO PREMISES, ACTS OF GOD and TERMINATION: If for any reason the premises are condemned by any governmental authority, destroyed, rendered uninhabitable, rendered dangerous to persons or property, and/or damaged through fire, water, smoke, wind, flood, act of God, nature or accident, or if it becomes necessary, in the opinion of LANDLORD or its agent, that TENANT must vacate the premises in order for repairs to the premises to be undertaken, this lease shall, at LANDLORD'S option and upon 7 days written notice to TENANT, cease and shall terminate and TENANT, if not in default of the lease, shall owe no further rent due under the terms of the lease. In such case, TENANT hereby waives all claims against LANDLORD for any damages suffered by such condemnation, damage, destruction or lease termination.

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THE DANGERS OF PREPAID RENT
by Harry Anthony Heist, Attorney at Law

Collecting rent has been the biggest and most basic challenge of landlords since the first cave was rented out in 1300 BC. Typically, tenants are required to pay rent on a specific day of the month, the 1st being the most common day of payment. Situations arise in which tenants are desirous of paying rent in advance, and most landlords do not perceive this as a problem, but rather see it as a plus. Many reasons abound for a tenant's prepayment of rent. The tenant may be going on an extended vacation or job assignment, may have come into a substantial sum of money, or simply doesn't want to be bothered with making monthly payments and is willing to pay the entire term of the lease, possibly in exchange for a more favorable rent amount. In a perfect world, accepting prepaid or advance rent would be an advantage, but there are many dangers and pitfalls which should be considered before the decision is made to accept prepaid rent. Additionally, there are legal considerations which govern how the prepaid rent is held and disbursed.

The Law and Prepaid Rent

Florida Statutes require that advance rent be kept in the same account in which the security deposit is held. If interest is to be earned, Florida Law must be followed regarding the payment of this interest and notifications to the tenant. The money can be removed from this account for use by the landlord only as it becomes due. This would prohibit a landlord from accepting prepaid rent from the tenant and immediately utilizing it for the landlord's general purposes if it has not in fact become due. In a typical lease, the term is for a year, and the payments are made monthly. This means that the landlord is only entitled to the rent when the due date arrives.

The Lease and prepaid rent However, there is a way that a landlord can legally take all or part of prepaid rent and utilize it at any time and for any purpose, but the lease must be drawn up differently. Instead of having a lease for a year, payable with monthly rental payments, the lease is for a set term, and the tenant is required to pay rent for the entire term. be it 3 months, 6 months or even the entire year. In this case, the lease is not a typical monthly lease, but simply a lease for a fixed term, and the lease states the amount of rent due for that term. Most leases are not structured this way, but this is a possibility and an available option to the landlord and tenant.

Prepaid rent and a tenant's unwarranted breach

If the landlord is holding prepaid rent, and the tenant breaches the lease by vacating prior to the expiration date of the lease, the landlord will be able to tap into that prepaid rent that is or should be held in the security deposit account only when it becomes due. Acceleration of rent is not looked upon favorably by the courts in Florida, so the landlord would need to wait each month to be able to actually utilize the prepaid rent. The law is not entirely clear regarding any duty by the landlord to try to rerent the unit to mitigate their damages, because presumably, there are no damages if the landlord is holding the rent. In the situation in which the tenant breaches the lease with no legal basis whatsoever, having prepaid rent will definitely be advantageous to the landlord.

Suppose the tenant has a warranted breach?

Many tenants who breach a lease by vacating prior to the expiration date have or will fabricate a legal reason why they are breaking the lease. Reasons may include a failure by the landlord to provide peaceful quiet enjoyment of the premises to the tenant, defects in the property, failure on the part of the landlord to make a legally required repair, or a host of other reasons which seem to come out of left field and astound the landlord when the breach occurs and the tenant is demanding a refund of the prepaid rent. That perfectly nice tenant, when faced with having to break a lease for a job transfer or divorce, will come up with novel or bizarre reasons why breaking the lease was completely warranted and legal under Florida law. It is bad enough that tenant can completely fabricate reasons why he will break a lease when there is no prepaid rent in the picture, and this only gets worse and more common if in fact the tenant has more at stake. Possibly the tenant's breach is completely warranted. Let's say the tenant just moved into a condominium. Two months after move-in, contractors begin replacing or repairing the concrete balconies. This tenant, who coincidentally has a night job and sleeps during the day, now is faced with listening to jackhammers and construction crews all day long. Can this person break the lease? While the construction noise may not be the fault of the condo owner, it is clear that the tenant's peaceful quiet enjoyment of the premises is interfered with significantly. If there were no prepaid rent, the tenant most likely would simply give notice and walk out of the lease, and the landlord would have a difficult time enforcing the remaining balance of the lease, as this would probably be considered a good reason to break a lease by most judges. If there is prepaid rent, many landlords will insist on keeping the rent, and many tenants will insist on getting it back. The result? Litigation. In the event of litigation, the landlord will be faced with trying to convince a judge that the tenant's breach was improper, illegal and unwarranted. The tenant will have an entirely different story, and if there are attorneys involved in the case, it will often become a bad situation.

Is the landlord "used" to accepting prepaid rent?

Most landlords are not accustomed to accepting prepaid rent. They are more accustomed to chasing after current or past rent owed! This increases the risk that the prepaid rent is mis-posted in the computer system that the landlord uses for managing the property. Recently a client accidentally failed to post the rent prepaid by a tenant. The computer system incorrectly showed that the rent was delinquent, the tenant was evicted, and all his possessions were removed to the street. The tenant returned a month later, only to find that all his possession were gone and that he had been evicted. The result? Most likely a lawsuit will be filed. If a landlord is not accustomed to accepting prepaid rent, the danger increases dramatically.

The conclusion

Are you convinced yet? Often things that appear good turn out to be fraught with dangers. We urge you to think long and hard before you deviate from the standard and time tested way of charging and accepting rent monthly.

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RETURNING RENT DURING AN EVICTION

by Harry Anthony Heist, Attorney at Law

The Three Day Notice has expired, an eviction is filed in county court, and the tenant is served with eviction paperwork. You arrive at your office on a Monday morning, and in the mail slot is a check or money order from the tenant. Most landlords know that accepting this payment without entering into a proper Stipulation with the tenant will immediately kill the eviction action. Acceptance of any rent or amount owed by a tenant will almost surely result in a complete defense to the eviction action, resulting in dismissal of the eviction action or a finding for the tenant in court. When a payment is tendered by a tenant after an eviction has actually been filed with the court, the landlord must return the money. The issue here is the manner in which and when the payment is returned. Failure to return the payment promptly or properly is a common mistake made by landlords.

Can you accept the tenant's payment?

If the tenant is paying you in full, and this sum includes your attorney's fees, costs, late charges and any other amount the tenant owes you, there is no great harm in accepting the payment. Under no circumstances should you accept anything other than certified funds such as a certified check or a money order, and you need to be aware that a stop-payment order can actually be made on a certified check or money order, so you are not entirely safe. If the payment is partial and the landlord wishes to work with the tenant, this can be accomplished with a Stipulation BUT, the landlord needs to do this immediately. If the payment is held for more than one day, there is a serious risk of problems.

In our opinion, if you have knowledge of a tenant's payment and intentionally hold a tenant's payment for more than one day, this can be considered acceptance of rent. Florida law does not define how long the holding must be before it is considered acceptance, but most judges interpret any delay in returning the money to the tenant as acceptance. If the tenant "thinks" you have accepted the rent, most judges will feel the same. Depositing the rent is almost surely considered acceptance, unless you can prove to a judge that it was purely accidental, it was caught immediately, and the tenant receives the payment rent back immediately. How do you return the payment back if the tenant paid by a check and the money was deposited into your account? You can write the tenant a check back, but there is an incredible danger that the check you gave the tenant will come back NSF and now YOU have paid the tenant rent!

How to return the payment to the tenant

HAND DELIVERY: The best way to return a tenant's payment is to make a photocopy of the payment, go directly to the tenant with a witness present and hand-deliver the payment back to the tenant. While the tenant may deny receipt in rare circumstances, this is our preferred way to return. At the time you are returning the money, you will have an opportunity to discuss with the tenant the tenant's plans or enter into a Stipulation or even an Agreement to Vacate. We recommend that you call your attorney and get a Stipulation, so you have this in hand in case you will be able to work things out with the tenant. Never tell a tenant to put the money into the court registry. A landlord is not in the business of educating the tenant on how the tenant can contest an eviction.

CERTIFIED MAIL: If the tenant is not available, not home or refuses to accept back the payment that was tendered to you, the landlord MUST get the money back to the tenant, but at the same time, making sure the tenant knows that the money is not being accepted and it is being returned. Here are some steps you can take.

1. Copy the payment
2. Call the tenant and tell him or her that you are returning the money and that it will not be accepted
3. Prepare and copy a letter to the tenant stating that you cannot accept rent and that the payment is being sent by certified mail back to the tenant that day
4. Place that letter in an envelope and tape it securely to the tenant's door. If there is back door or garage that the tenant may use, tape an additional envelope and letter to these entrances. The key is to make sure the tenant knows the money is not being accepted.
5. Send the payment back to the tenant by Certified Mail Return Receipt Requested, saving the proof of mailing.
6. Notify your attorney so the attorney can make a note in the file.

Common mistakes

1. Landlord receives the payment and holds onto the payment. 2. Landlord calls tenant and tells tenant to pick up payment, the payment is not picked up, and the landlord holds the payment. 3. Tenant's payment is deposited into landlord's account. 4. Landlord puts payment in an envelope and tapes it to the tenant's door. 5. The landlord returns the payment to the tenant and tells the tenant to put the money into the court registry.

Recommendations

Notify everyone in your office that the particular tenant is under eviction, and carefully watch that the tenant does not try to make a payment. Communication with staff is crucial in avoiding the accidental acceptance of a payment. You may want to go as far as placing a note on the office wall out of the sight of other tenants or attaching a note to your bank deposit book simply stating "Do not accept rent from John Doe, Apt 123". Carefully follow the return of payment steps as outlined above, and be aware that another person may try to slip a payment in or use a check or money order that only indicates to what unit the payment is to be applied. Finally, if a tenant has tendered a payment, you need to think Stipulation. A Stipulation is one of the best rent collection and resident retention tools available to a landlord.

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SQUATTER OR TENANT? by Harry Anthony Heist, Attorney at Law

Your tenant moves out, and you decide to check out the condition of the property. "Robert" answers the door eating a ham sandwich and says he is living there with the permission of the former tenant. Surprised and angry, you call the police, and they respond, "It is a civil matter, you will need to evict the person." But wait! Isn't this person a trespasser or squatter? A typical landlord would make the assumption that this individual is not a tenant but rather an illegal trespasser or squatter on the premises, and in many cases the landlord would be correct. The problem is that law enforcement does not look at this the same way, as well as possibly Florida law.

Is this person an unauthorized occupant?

Often the person who remains behind after the tenant has vacated the premises will claim that she is there with the permission of the tenant. This unsubstantiated claim alone transforms the individual into an unauthorized occupant (unauthorized by you), rather than a squatter or a trespasser, and this prevents law enforcement from using their powers to remove the individual. Law enforcement officers are often called upon by landlords to assist in removing people from rental property, and they are extremely cautious that they are not being used by the landlord to effectuate an "eviction" of a tenant who has a right to be on the premises until legally evicted from the premises. In most cases, law enforcement will inform the landlord that the problem is a "civil matter", i.e. you need to call your attorney, serve the proper notices and begin the eviction process. While this may seem absurd to the landlord who has never seen the individual occupying the premises, had no contact with this person and never received any rent from this person, unfortunately an eviction will be necessary.

Will law enforcement ever take action?

If pressed hard enough, law enforcement may cooperate with the landlord, if the landlord is insistent that the person is in fact a trespasser or squatter, and the evidence does point to this fact. The landlord needs to be clear with law enforcement that they have no idea who this person is, and they feel that this person has broken into the unit or entered the unit after the prior tenant has vacated. Law enforcement may question the individual and sometimes get an admission from the individual that she indeed does not have a key to the premises and should not be in the unit. In limited situations, law enforcement will then trespass the person and assist you in removing this trespasser from the property. In some cases, people do enter vacant units and camp out until law enforcement involvement. A good relationship with law enforcement and a concerned officer will often aid in assisting the landlord in removing a true trespasser who does not have any permission from the prior tenant to be in the unit. When calling law enforcement, the landlord needs to be clear that the person is a trespasser if they will get law enforcement to even remotely consider any involvement. Any statement by the individual that she is in there with permission will stop the process and force the landlord to begin eviction. If a landlord removes a person from the unit either by himself, uses law enforcement, changes the locks, removes the doors, shuts off utilities or does anything to make this person leave, and this person can then prove in court that she had possession with permission, the landlord will be faced with being sued for an unlawful or wrongful eviction and/or prohibited practice(s).

The individual fails to move and law enforcement does nothing

If the landlord in unsuccessful with law enforcement, the landlord now needs to serve a Seven Day Notice of Noncompliance With Opportunity to Cure to the prior tenant by posting the notice on the door of the unit. The notice will state "You have an unauthorized occupant residing on the premises in violation of the terms of your lease agreement". The landlord needs to act as if the prior tenant is still in the unit, even though most likely the prior tenant will never get the notice. If the landlord has any way to get in touch with the prior tenant, all efforts should be made to do this, as it is possible that the prior tenant does not even know that his friend or relative is still in the unit, and if faced with a legal action may get this person out for you. If after seven days the person or persons are still in the unit, a Seven Day Notice of Termination needs to be served. After seven days, an eviction can be filed.

Suppose the landlord takes rent from the individual?

If the landlord accepts any rent from the individual, they will have created an even greater problem, as they will have potentially established a landlord/tenant relationship with the person minus any written documents such as a lease. No matter how desperate a landlord may be for the money, taking rent from the individual can be a fatal mistake.

Will the landlord succeed in eviction?

In most of these eviction cases, the "squatter" or "trespasser" will not fight the eviction. We have seen cases where the individual will fight the eviction, claiming that they paid rent to the prior tenant, and that the prior tenant failed to pay the landlord. This is rare, and the landlord can have a fair amount of certainty that they will prevail in the eviction action. The key is making sure that the landlord resists all urges for self-help, as this can completely derail an eviction action and create a major legal problem.

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MANAGING IN CONDO OR HOMEOWNER ASSOCIATIONS
by Harry Anthony Heist, Attorney at Law

The tenant just moved in, and now the condo association is demanding that the tenant remove the prohibited truck from the premises. Prohibited? Whoops. The condo association never required that you get board approval of the tenant, but now all of a sudden says you failed to get approval, wants the tenant out, and this has been the rule for years. Approval? Whoops. You put four tenants into a home, and the homeowners association informs you that no more than 3 unrelated people can live in the home. Unrelated? Whoops. There are so many pitfalls that await a careless landlord who fails to do the homework necessary when renting units controlled by condo or homeowners associations. Have you done your homework?

The landlord managing property governed by a condominium association or homeowners association, hereinafter "Association" has unique challenges and requirements. Not only do the Florida Landlord/Tenant laws apply to the relationship, but the Declaration of Condominium and the rules and regulations of the Association apply to the relationship. Often these rules and regulations change, and if the landlord or property manager is not alert and keeping up with these changes, major problems can occur. This article will deal with the most common areas in which the landlord needs to carefully understand the relationship with the Association and the rules and regulations, and act accordingly.

The Power of the Association

The Association has the power to limit and restrict rentals, create rules and regulations, impose fees, and even create rules and regulations that apply only to the tenants while not an owner in an owner occupied unit. While many of these rules and regulations seem unfair, arbitrary and even "anti-tenant", when an individual buys a property governed by an Association, there are certain rights which the owner must give up to the declarations, rules and regulations and decisions made by the Board of Directors.

The Association's attitude towards tenants

To put it bluntly, many owner occupiers in Associations do not like tenants. Owner occupiers often do not appreciate tenants as their neighbors and will do whatever it takes to create problems for the tenants and the owner of the tenant occupied unit. Owner occupiers will often complain to the Association over minor violations, slight noise, children playing or almost anything that could potentially get the unit owner in trouble with the Association. Do tenants cause problems and violate the rules? Yes, and so do owner occupiers, but the action taken against a unit owner who is renting out a unit is often swift and harsh.

Restrictions on vehicles

The Association is able to restrict the number of and types of vehicles that an owner or tenant may bring onto the property. The restrictions may differ and be more restrictive for the tenant. Many Associations restrict commercial vehicles, motorcycles, trucks, pickup trucks, vans or vehicles with any signage. While we all know what a motorcycle is, do we know what a commercial vehicle is? Would a car used for a tenant's work that has a sign painted on the door qualify as a commercial vehicle? Would an unmarked van be considered a commercial vehicle? Is there a difference between an SUV and a pickup truck with a molded cap affixed to the back? The most common problem we see is the situation in which the landlord places a tenant in the unit, only to receive the threatening letter from the Association stating that a vehicle is in some way in violation of the rules and regulation. If the vehicle is in violation, the tenant needs to be served a Seven Day Notice of Noncompliance with Opportunity to Cure. This gives the tenant seven days to get the vehicle off of the premises. If the vehicle is not removed from the premises, the landlord can serve a Seven Day Notice of Termination, wait seven days and begin the eviction process. The main problem we see is that the vehicle the tenant has is often actually listed on the lease agreement and is authorized by the landlord. Is the tenant in violation of the lease? Probably not. This creates a very bad situation, in that the landlord authorized something that the Association prohibits. We have seen situations where the landlord was required to rent a garage for the tenant's prohibited vehicle and then rent a car for the tenant's behalf for the entire term of the lease. There is a huge danger in not fully knowing exactly what the CURRENT Association rules are concerning vehicles.

Practical vehicle tips

1. Examine the most current rules and regulations regarding vehicles.
2. Require the vehicles to be listed in the lease and make them exclusive vehicles.
3. Recite in the lease the restrictions on vehicles.
4. Physically observe all vehicles before signing lease
5. Act immediately if the tenant is in violation

Association Required Security Deposits or Fees

Much to the surprise of both landlords and tenants, the Association can require a distinct and separate security deposit from the tenant not to exceed one month's rent, and often can require fees for gate access cards or pool passes. There is little limiting what other charges the Association can assess against the tenant. Supposedly this "deposit" is to cover damages to the common areas of the premises which could be attributable to the tenant. Some Associations also require a temporary move-in deposit for possible damages to the elevator, doorways, hall ways or stairs due to tenant move in. This type of deposit is returned to the tenant if the move-in does not result in any damages. Make certain that the lease clearly separates the deposits, as the landlord does not want to get charged with violating the security deposit laws if the Association fails to return the money promptly or tries to charge the tenant's deposit improperly. Before signing a lease, make sure that all the funds have been collected and properly accounted for on the lease agreement.

Association required Application Approval

Not only can the Association require approval, they can charge for this as well. Florida law allows the Association to charge up to $100 per single person and $100 total for a married couple. Some Associations run actual credit and criminal checks on the applicant, while others simply require the payment and application as a formality. It is crucial that if the Association requires approval, the steps required are taken exactly as listed, regardless of the fact that the Association may not have enforced its approval process in the past, selectively enforces it, or you receive a verbal OK from the Association. When an Association has a problem with your tenant, it will pull out all the stops, and if you did not get the tenant approved, you WILL have a major problem. Make sure that the application provided by the Association is completely and accurately filled out. NEVER place a tenant in a unit without having the approval from the Association IN WRITING.

Association limits on occupants

Associations can and often do limit the number of occupants in the rentals and also can restrict the number of unrelated members of the household. While this may appear to be a shocking violation of the Fair Housing laws, it is actually not, and many municipalities are also beginning to impose these rules and restrictions. A careful reading of the rules and regulations are a must, as most landlords are not accustomed to these restrictions, and they come as a surprise.

Gas grills, parties, children and other thrills

There is always a chance that a tenant will violate some provision in the lease or the rules and regulations during their tenancy. The tenant will be under the microscope of every owner occupier. Common violations include noise, parties, clutter on balconies, vehicles, junk in breezeways, grills on the lanai, toys, loud children, fighting, working on vehicles, unauthorized pets, failure to pick up after pets: the list goes on and on. Many landlords will feel that the violation may not be occurring or that the Association is going overboard. While both may be true, it is crucial that the landlord serves the proper notice to the tenant immediately, even if the landlord has doubts about the validity of the alleged violation. Let's face it. Usually there is some truth to the violation allegation, and the landlord is usually not present 24 hours a day to see what is happening. Too often the landlord will take sides with the tenant, only to find out that there really was or is a violation occurring on the premises. When you are notified of a violation, take action immediately.

"The Violation Catch 22"

In the event there is a violation, the Association will often discuss the matter at the board meeting or take sudden action against the landlord, and the landlord or the property manager is informed of this in writing. If the landlord is out of state, there is often a time lag in the notification, further cutting the time down that we have to act. Though we may want to immediately remove a tenant from a unit, Florida law has specific ways to deal with a noncomplying tenant. Once the tenant is in violation of a rule or regulation, the landlord needs to immediately use all the tools that Florida Landlord/Tenant law provides and take action. Unfortunately, the tenant is given specific curative time periods, and while the Association can immediately begin fining or assessing the landlord, the landlord cannot immediately remove the tenant or obtain compliance. Typically, the Seven Day Notice to Cure must expire, the Seven Day Notice of Termination must expire, and then the eviction is filed, which can take between 25 to 45 days as a typical time range. As you can see, the Association is not going to be happy with this, much less understand why it is taking so long to accomplish.

Violation Steps

The following steps should be taken as soon as you are notified of a tenant's violation. The violation will usually come in the form of a letter from the Association, or if it has gotten bad, the attorney for the Association will prepare and send the letter

1. Call your attorney, send your attorney the Association letter and your side of the story.
2. Serve the notice that your attorney has recommended.
3. Have your attorney communicate with the Association or its attorney to help them understand the situation and how the process works.
4. Show the Association that you are making every effort to remove the tenant or obtain compliance by the tenant.

The Risks of Failing to Swiftly Act on Violations

Failing to act swiftly when confronted with a notice of a violation by the Association can be extremely costly to the landlord. In addition to the fines or assessments the board can make on the landlord, the landlord may also be responsible for paying the attorney's fees incurred by the Association. Association attorneys are expensive. It is not unusual to see a bill for $500.00 to $1000.00 for the attorney to simply review a situation and write a demand letter to the landlord. Under most Association documents, the landlord has given the power to the Association attorney to actually institute an eviction action on behalf of the landlord, with all the attorney fees and costs being charged to the landlord. While many landlords are used to paying extremely low attorney's fee to their eviction attorney, rest assured that the Association attorney will typically charge between $1000.00 and $5000.00 to file and complete an eviction action.

Discrimination by the Association

Discrimination by an Association? Never happens. Right? Massive amounts of illegal discrimination occur in Associations. The most common is race based discrimination, followed close behind by familial status based discrimination. Often the Association is able to accomplish its discriminatory goals by delaying the approval of applications or requiring an in-person interview with the prospective tenants. If you feel that discrimination is occurring, it is advisable to contact your attorney immediately, and your attorney will contact the Association attorney. If the discrimination is occurring in the approval process, or if there is a serious, unnecessary delay, the landlord needs to protect himself or herself from a discrimination claim being filed by the denied applicant by having a strong paper trail. Commonly, owner occupiers upon finding out that an approved tenant who just moved in has children or are of a race other then their own will harass the tenant in person, put notes on their door or complain to the Association about alleged violations. If you see this occurring, do not ignore it. Call your attorney immediately, as you do not want to be potentially implicated in failing to act to stop your tenant from enduring discriminatory actions.

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THE POWER OF THE MOLD ADDENDUM
by Harry Anthony Heist, Attorney at Law

Most landlords are finally using some sort of Mold Addendum due to the problems related to mold and the press which mold has been getting as of late. The Mold Addendum often addresses the tenant's obligations to keep the premises mold free and the requirements on the tenant in the event there is mold found on the premises. The problem with most mold addendums that are in use is that they really do not address what the landlord can do with regard to the tenant if mold is present on the premises, or if the landlord needs the tenant to vacate to rectify the mold problem. This problem can be solved simply by using a proper Mold Addendum or inserting some wording into the current addendum.

Educating the Tenant

While we in no way wish to put ideas into a tenant's head that there may be mold on the premises, it is important to give the tenant some information about the dangers of mold. Here is a sample clause which can be used. This can give the tenant a basic understanding of mold and the potential dangers.

MOLD: Mold consists of naturally occurring microscopic organisms which reproduce by spores. Mold breaks down and feeds on organic matter in the environment. The mold spores spread through the air, and the combination of excessive moisture and organic matter allows for mold growth. Not all, but certain types and amounts of mold, can lead to adverse health effects and/or allergic reactions. Not all mold is readily visible, but when it is, can often be seen in the form of discoloration, ranging from white to orange and from green to brown and black, and often there is a musty odor present. Reducing moisture and proper housekeeping significantly reduces the chance of mold and mold growth

Mold and the Landlord/Tenant Act

Nowhere in the Landlord/Tenant Act is mold mentioned. Can a tenant break a lease because of mold? Does the landlord have to remove the mold for the tenant? Can the tenant withhold rent due to the mold? Suppose the tenant's actions or inactions cause the mold problem? Can we simply terminate the tenancy because of the mold? These are tough questions in an incredibly grey area.

The Tenant's Responsibilities

In a perfect word, the tenant would do everything they could to live in a mold free environment, but we cannot force a tenant to keep the air conditioning on or be there 24 hours a day to observe the tenant's behavior or actions in the unit. The most we can do is advise a tenant on ways to live in manner that is not conducive to mold growth. A well drafted Mold Addendum will detail the tenant's responsibilities to reduce the amount of moisture present in the unit, and to compel the tenant to report both mold and situations which could create a mold situation. The tenant's obligation to maintain the premises according to Florida law are as follows:

83.52 Tenant's obligation to maintain dwelling unit. The tenant at all times during the tenancy shall:
(1) Comply with all obligations imposed upon tenants by applicable provisions of building, housing, and health codes.
(2) Keep that part of the premises which he occupies and uses clean and sanitary.
(3) Remove from his dwelling unit all garbage in a clean and sanitary manner.
(4) Keep all plumbing fixtures in the dwelling unit or used by the tenant clean and sanitary and in repair.
(5) Use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances, including elevators.
(6) Not destroy, deface, damage, impair, or remove any part of the premises or property therein belonging to the landlord nor permit any person to do so"¦

As you can see, an obligation on the tenant to keep the premises free from mold is not specifically mentioned in the statute. Section 2 states that the tenant shall keep the premises in a clean and sanitary condition. If the tenant lives in a manner that causes mold growth, could this be considered a violation of this section? Section 5 states that the tenant shall use the air conditioning in a reasonable manner. Does this mean they must run it all the time or maintain a particular temperature? We don't know.

The Landlord's Responsibilities

According to Florida law, the landlord is required to comply with all applicable building, housing and health codes. On top of this, there is an implied "warranty of habitability". If a unit has a mold problem, and the mold was not caused by the tenant in any way, the landlord would clearly be responsible, and if the unit were inspected, the unit would probably fail inspection, thus putting the landlord in violation of FS 83.51.

83.51 Landlord's obligation to maintain premises. (1) The landlord at all times during the tenancy shall:
(a) Comply with the requirements of applicable building, housing, and health codes; or
(b) Where there are no applicable building, housing or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition"¦

Mold is discovered, now what?

Once mold is discovered in a unit the landlord needs to take swift action to determine the existence of the mold, the dangers, if any, and the source of the problem. Whether this requires a professional mold remediatior or inspector will depend on the situation. If in fact mold is discovered and it is determined that the tenant must removed from the premises, this is where the fun begins.

The Big Problem

Here is the scenario. The tenant stops paying rent and complains to you about mold, claiming that he is getting sick, has breathing problems, is missing work and his doctor is telling him that mold is the cause. You go check out the unit, and sure enough, in one of the closets where the back of the closet is against an outside wall, there is a strong musty odor. The tenant is demanding that you fix the problem. You have a mold inspector and remediator come in to inspect, and it is recommended that a large portion of the wall be removed and the outside of the building repaired and sealed with a moisture barrier. The mold remediator states that there is no safe way that the job can be done with the tenant living in the unit, that remediation will require establishing a containment area and decontaminating the entire unit, and that the estimated time for the repair is 3 weeks. Now for the real problem. The tenant is refusing to vacate and refusing to pay the rent. Has the tenant violated the law? Maybe not. Is this mold problem the fault of the tenant? No. Is the landlord required to provide a habitable place to live, complying with all building and health codes? Yes. Is the landlord required to get rid of the mold problem and fix the unit? Yes. Florida statutes would require the landlord to make the unit habitable and presumably free from a mold problem, but the tenant is refusing to vacate the premises and is now withholding rent as potentially allowed by law. What can we do?

The Solution

Proper wording in a Mold Addendum could be the answer to our dilemma. Since mold can be a serious problem requiring the landlord to terminate the tenancy, we recommend that the parties agree by way of the Mold Addendum that the tenancy can be terminated in the event of a mold situation. Many leases have clauses which allow termination in the event of damage to or destruction of the premises. The Mold Addendum clause deals exclusively and specifically with termination due to mold. Can the tenant terminate if there is mold? While it is not mentioned in our sample clause, the answer is yes. If a landlord receives notice of mold from the tenant and the landlord does not rectify the situation within 7 days, the tenant by law can most likely terminate the tenancy or withhold rent. Our recommendation is to use a Mold Addendum which includes the sample clause below, and ALWAYS get your attorney involved early on in any mold situation.

SAMPLE MOLD ADDENDUM CLAUSE

TERMINATION OF TENANCY: Owner or agent reserves the right to terminate the tenancy, and TENANT(S) agree to vacate the premises in the event owner or agent in its sole judgment feels that either there is mold or mildew present in the dwelling unit which may pose a safety or health hazard to TENANT(S) or other persons, and/or TENANT(S) actions or inactions are causing a condition which is conducive to mold growth. CLICK HERE to download your forms and notices including the Mold Addendum.

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DAYCARE AND BABYSITTING SERVICES IN THE RESIDENTIAL PROPERTY
by Harry Anthony Heist, Attorney at Law

Most landlords prohibit a tenant from conducting business in the residential unit. In most cases the lease clearly states or should state that the premises are to be used only for residential purposes, and that commercial activity is prohibited. It is usually clear when commercial activity begins to occur in a residential unit, as customers will be showing up, traffic in and out of the unit will increase, and the tenant may be so bold as to advertise his or her services or products using the address of the residential unit. What about babysitting? Is this a commercial activity? While many people love children, it is doubtful that an individual will voluntarily take on the responsibility of watching another person's child or children on a regular basis for no compensation.

Babysitting and Daycare Services

In both apartment communities and single family homes, babysitting and daycare services are being conducted for compensation. It starts out with one child, and then the babysitter begins to realize that more money can be made by watching more children, and soon you have a unit full of children with their parents or guardians dropping the child off and picking the child up. Money is exchanged, and often this is "under the table" or cash. Seems harmless enough right? Wrong. What is occurring here is a commercial activity on a residential property. This is a lease violation and may or may not be a violation of law.

Legal Daycare Services in a residential home

Many counties and municipalities actually allow small scale day care services to operate legally and with a permit in a completely residential area. In response to the need for affordable child care or child watching, these activities are in many cases permitted with some limits, but often without many regulations. Do you want to allow a tenant to conduct a babysitting or daycare service in the rental home? ABSOLUTELY NOT.

The Liability

Massive liability to both the caregiver and the owner of the premises can be created in the care of children. Now you may wonder why a daycare center would ever operate at all. Simple. Insurance. A legitimate daycare or babysitting service will have liability insurance to cover just about anything that could occur that may cause the injury or death of the child. Not only will the business be carrying insurance, but the property owner, if separate from the business owner, will also be carrying insurance, and the insurance company will be put on notice as to what type of business is being conducted on the premises. Everything is disclosed, proper permits and licensing are in place, and the insurance is tailored to the activity which is being conducted on the premises.

The "No Insurance" Problem

In many cases of babysitting or small scale daycare services, these activities are occurring in the residential unit with no license, no permission from the landlord and NO INSURANCE. The property owner may have the normal liability insurance coverage, but you can rest assured that this insurance does NOT cover a business being conducted on the premises, and in the event there is a claim, the insurance company will fight all the way to prove that they did not cover commercial activity on the residential premises.

What "bad" things can happen?

We have seen cases in which children have nearly drowned in the pool of the babysitter's home, been molested by a boyfriend of the babysitting tenant, overdosed on medicines the child found in the babysitter's medicine cabinet, and most recently a situation in which a child climbed on a table near a window and fell three stories to the ground below. As you can see, the potential dangers are limitless. Is the landlord liable? Possibly, especially if the landlord had knowledge that the babysitting was occurring on the premises.

Did the landlord have knowledge that babysitting was occurring?

Whether or not the landlord had knowledge that babysitting was occurring on the premises can be a crucial factor in whether the landlord can be held liable for the injury or death suffered by a child, or whether the insurance carrier will in fact cover a potential claim. Some of our clients actually have knowledge that babysitting is occurring on the premises, because they have personally observed it, and some have even encouraged it! Recently while giving an in-house legal class, we observed a number of notices on the community bulletin board in the clubhouse where tenants were advertising their services for babysitting on the premises. This knowledge by the landlord and the failure to act swiftly to stop the activity can result in serious liability to the landlord.

You discover babysitting, now what?

If a landlord is made aware that babysitting and or daycare type activities are occurring on the premises, the tenant needs to be immediately served with a Seven Day Notice of Noncompliance With Opportunity to Cure, which your attorney will assist in drawing up for you. Follow-up is crucial, and it needs to be determined if the activity has stopped or is still occurring. There is nothing wrong with observing the premises and asking a parent if in fact the tenant is babysitting their child. If you observe children and parents coming and going on a regular basis, it can be safely assumed that babysitting and or daycare is occurring. This assumption will not be enough for termination and eviction, so we recommend that you document the unit carefully, and if necessary, take video surveillance of the entrance to the premises. If you feel that the authorities need to be notified that an illegal daycare or babysitting service is occurring, reporting and follow-up is crucial.

Fair Housing Considerations

You must have a written policy regarding babysitting and a strong clause in your lease prohibiting such activity, but you do not want to be accused of familial status discrimination. We recommend that you post a sign in the common area clearly stating that no commercial activity is permitted on the premises, and that this includes running a daycare or babysitting service. Monitor the community bulletin board regularly, as this is where advertisements for babysitting frequently occur. A tenant could say that you are preventing their child from having friends come over to play, or that you are trying to only have tenants who have no children. You will need to counter such accusations by clear proof that the tenant was actively engaged in babysitting on the premises, and better yet, be able to prove that the tenant was receiving compensation for doing so.

You suspect your tenant is engaged in babysitting or running a daycare service?

Call your attorney as soon as possible

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WHEN A TENANT DIES
by Cathy L. Lucrezi, Attorney at Law

A tenant's death does not mean the tenancy is at an end. Instead, the "occupant" of the premises and the entity liable under the lease is the "estate" of the tenant.

What is an "Estate"?

The "Estate of John Doe" is everything owned - all assets and all liabilities - by the tenant John Doe. The estate is created when someone files a "probate" case. Although that is usually done by a family member, it can be done by anyone with an interest in the estate. That includes you, because you have an "interest" in collecting rent and regaining possession of the rental premises. You can deal with the "Estate of John Doe" by dealing with the estate's personal representative.

What is a personal representative?

The personal representative is the person, bank or trust company appointed by the Court to be in charge of the administration of the estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix". The personal representative is appointed by the Circuit Court and always has a court order to prove it. You can give keys to the unit to the personal representative. You can serve notices to the personal representative. Anything you could do with John Doe, you can do with the personal representative of the Estate of John Doe.The following are NOT substitutes for a personal representative of the Estate:

1.The spouse or ex-spouse.
2.The "only" child of the deceased tenant.
3. A person with a Power of Attorney signed by the deceased tenant
4. A person with a copy of the death certificate or will.
5. The folks from the rent-a-piece-of-furniture place

Is a Probate always filed

Occasionally, a deceased tenant has no apparent family or friends. No probate case is filed, and so there is no personal representative with whom you can transact business. In that situation, you can consult an attorney who specializes in wills and estates for his or her assistance. The attorney can assist in opening a probate case so that you can serve a notice to the estate and then sue the estate for eviction.

The request to enter into the unit

A family member or friend may ask for access to John Doe's unit to look for a will, or to get clothes for the funeral. Technically, only the personal representative can have access. However, it is a growing custom to permit limited access to the unit for these two purposes. If that access is allowed by management, a representative of management should be present at the unit to assure that the decedent's personal property is not unnecessarily disturbed or removed.

The Pitfalls

Take care of the pitfalls. If you improperly dispose of John Doe's personal property, or if you assist someone other than the personal representative of the Estate to dispose of the personal property, John Doe's long-lost illegitimate child may someday show up to claim his inheritance.

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HAVING A TENANT SIGN A PET ADDENDUM WHEN THERE IS NO CURRENT PET by David R. Weisse, Attorney at Law

The Pet Addendum

When a tenant moves in with one or more pets, we strongly recommend that the landlord use a pet addendum, an agreement that can provide for the collection of pet fees and/or pet deposits, and also lays out the full regulations concerning pet conduct. We also strongly recommend that the landlord "interview" the pet before authorizing it, to make sure the pet is friendly enough, not excessively loud, and does not violate any breed or weight restrictions in place.

No current pets, but a Pet addendum is signed?

Some landlords have all tenants at move-in sign a pet addendum, even if the tenant does not have a pet a move-in. This is a practice we strongly discourage. Typically, when a tenant at move-in does not have a pet, the pet addendum will indicate zero pet fee and/or zero pet deposit. Although there may be a reference on the addendum to "no pet at this time", the tenant may be able to successfully argue that the agreement was an implied authorization to obtain a pet at a later date, and at no charge(!). This use of the pet addendum at move-in may also hamstring your ability to screen out an undesirable pet, particularly if some dollar amount is referenced in the pet fee or pet deposit section. The Lease

The landlord's standard lease should simply indicate that no pets are allowed without prior written authorization. If you then become aware of a tenant obtaining a pet after move-in, you can give a 7-day notice of noncompliance with opportunity to cure for an unauthorized pet on the premises. You can explain to that tenant the only way you will authorize the pet will be conditioned upon a pet agreement being signed, along with collection of charges you normally would assess for a pet. Otherwise, you will continue to view the pet as unauthorized, and will terminate the tenancy, if necessary.

The common pet discovery mistake

A common mistake made by landlords when discovering an unauthorized pet is to cite unpaid pet fees or pet deposits on a 7-day cure notice, particularly if the landlord is not even willing to authorize the pet because of breed, weight or disturbance issues. If you actually collect some pet fee or deposit, you are authorizing the pet. Even if the unauthorized pet is one the landlord would be willing to authorize, the tenant has typically not yet agreed in writing to pay the pet fee and/or pet deposit. The tenant has failed to comply with the lease by not getting prior written authorization for the pet, and that is what the cure notice should cite.

The Pet Interview

One last point about pet interviews: frequently, we have clients tell us they believe a tenant has an unauthorized breed, or that a pet appears to be over the allowed weight limit. It is usually much more difficult to deal with this problem after the pet has been authorized, as opposed to simply denying authorization of the pet initially.

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Law Offices of Heist, Weisse & Wolk, P.A.
Phone: 1-800-253-8428 Fax: 1-800-367-9038

Serving Florida's Property Managers with offices in Orlando, Clearwater, and Fort Myers Beach, Principal Office


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