A tenant has just 15 days to dispute the claim on the security deposit, and if they do not, you are in the clear - Right? WRONG. The tenant has up to 5 years to sue you for a refund of all or part of the security deposit. This often comes to a surprise to the landlord, as most professional landlords are very familiar with the wording of Florida Statutes and the timing requirements imposed upon the landlord.

The Landlord's Duty

The landlord is required to send the Notice of Intention to Impose Claim on Security Deposit to the tenant by certified mail within 30 days of the tenant vacating the premises. Most landlords know this already. In the old days, the landlord had 15 days, now the landlord has 30 days. The timing requirements are described in detail in our article entitled Security Deposit Timing Review We recommend you read this carefully as a refresher. To understand the tenant dispute procedure, we need to look at the relevant portion of the statute.

Florida Statute 83.49 Deposit money or advance rent; duty of landlord and tenant"¦

The notice shall contain a statement in substantially the following form: This is a notice of my intention to impose a claim for damages in the amount of ____________ upon your security deposit, due to ________. It is sent to you as required by S. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address). If the landlord fails to give the required notice within the 30 day period, he forfeits his right to impose a claim upon the security deposit.
(b) Unless the tenant objects to the imposition of the landlord's claim or the amount thereof within 15 days after receipt of the landlord's notice of intention to impose a claim, the landlord may then deduct the amount of his claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages"¦

An examination of the statute's wording

A careful reading of the statute seems to imply that the landlord is only authorized to deduct the money claimed from the security deposit if the tenant fails to object within 15 days of receipt of the Notice of Intention to Impose Claim on Security Deposit. Does this mean that if the tenant objects, the landlord cannot claim the money? If this were the case, what is the landlord to do with the disputed funds? The law is not clear.

The Landlord receives an objection by the tenant, now what?

1. Property Manager is licensed under a Real Estate Broker.

Many years ago, Florida law required a property manager under a real estate broker's license through the State of Florida to go through certain specific procedures in the event a tenant objected to the landlord's claim. The real estate broker had to report the dispute to FREC and then ask FREC for an Escrow Disbursement Order, file an interpleader, or file a lawsuit against the tenant, if none were already filed by the tenant. This was a cumbersome and frankly ridiculous burden on the property manager and was removed from the law. Now, the property manager is not required to do any of the aforementioned procedures.

2. Landlord/owner is self-managing

Former and current law does not specifically provide what the actual owner/landlord is to do. The law does not require the landlord to file a lawsuit, hold the disputed funds indefinitely or take any action. Only in the wording of the Notice of Intention to Impose Claim on the Security Deposit does it reference the landlord being "authorized" to deduct the funds from the security deposit. Does this mean if the tenant disputes, the landlord is not "authorized"?

Can the Landlord make the deduction and disburse the funds?

1. Property Manager is licensed under a Real Estate Broker

The law specifically allows the property manager who is licensed under a Florida real estate broker to disburse the disputed funds as they see fit. As you can see in the wording of Florida Statutes 475, the FREC reporting, interpleader or lawsuit requirement is not present anymore as it pertains to a disputed security deposit. If the tenant objects, the property manager can disburse the funds pursuant to the Notice of Intention to Impose a Claim on the Security Deposit, after the 15 days have elapsed from the time the tenant has received the Notice by certified mail. The fact that the tenant has objected has lost its relevancy in the law.

83.49 Deposit money or advance rent; duty of landlord and tenant"¦ (d) Compliance with this subsection by an individual or business entity authorized to conduct business in this state, including Florida-licensed real estate brokers and salespersons, shall constitute compliance with all other relevant Florida Statutes pertaining to security deposits held pursuant to a rental agreement or other landlord-tenant relationship. Enforcement personnel shall look solely to this subsection to determine compliance. This subsection prevails over any conflicting provisions in chapter 475 and in other sections of the Florida Statutes, and shall operate to permit licensed real estate brokers to disburse security deposits and deposit money without having to comply with the notice and settlement procedures contained in s. 475.25(1)(d).

2. Landlord/owner is self-managing

Nowhere in the statutes does it impose a penalty on the landlord if the landlord deducts the amount owed from the security deposit per the terms of the Notice of Intention to Impose a Claim on the Security Deposit. It is our opinion that the landlord should simply wait the 15 days after the tenant receives the Notice and then deduct the funds accordingly.

Is it over yet? The tenant has not objected.

Absolutely not. The tenant and the landlord have five years from the date the tenant vacates or the claim is made on the security deposit to institute litigation against each other. This is due to the fact that under Florida law, the parties to a written contract such as a lease have a 5 year statute of limitations, meaning that they have 5 years to sue one another. The common misconception among landlords is that if the tenant does not object, the tenant has implicitly agreed to the landlord's claim, and everything is over. While it would make sense, this is not the case.

Practical Considerations

When a tenant objects to the security deposit claim, you should give your attorney a call. If you have received a call or letter from the tenant's attorney, you should never respond other than to tell the attorney that you have received the message or correspondence and are forwarding it to your attorney. You should then examine the facts of your situation, look carefully at the proof you have to justify the deduction, and either stand firm or consider settlement.

Many new homes have been put on the rental market due to the sales slowdown. Most come with a "Home Warranty" to cover many of the usual items which need repair. The problem? Most home warranty services are terrible, resulting in huge delays and legal ramifications for the owner. What are the tenant's rights and the owner's obligations?

The Landlord's Obligations

The Landlord/Tenant act specifically lays out the landlord's obligations. If these obligations of the landlord are not met, the tenant has remedies under Florida law. These remedies are strong, and they place the landlord under a time limit. This is where home warranty problem begins. Below is FS 83.51 (1) which lays out some of the obligations of the landlord. While the landlord has other obligations under the lease and Florida law, the Section 83.51(1) obligations are those for which if not met, the tenant can break the lease or withhold rent.

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. However, the landlord shall not be required to maintain a mobile home or other structure owned by the tenant. The landlord's obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex.

What if the Landlord fails to meet these aforementioned obligations?

Here we have to jump right back into the Landlord/Tenant Act. Florida law allows the tenant to serve notice upon the landlord, giving the landlord 7 days to correct the problem, OR the tenant has a right to withhold rent OR break the lease agreement without penalty. The service of the notice on the landlord by the tenant will act as a complete defense to an eviction action, so it must be taken seriously, and the problem, if it exists, MUST be remedied within 7 days.

The Tenant's Complete Defense to an eviction

83.60 Defenses to action for rent or possession; procedure. (1) In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent or in an action by the landlord under s. 83.55 seeking to recover unpaid rent, the tenant may defend upon the ground of a material noncompliance with s. 83.51(1), or may raise any other defense, whether legal or equitable, that he may have, including the defense of retaliatory conduct in accordance with s. 83.64. The defense of a material noncompliance with s. 83.51(1) may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. Such notice by the tenant may be given to the landlord, the landlord's representative as designated pursuant to s. 83.50(1), a resident manager, or the person or entity who collects the rent on behalf of the landlord. A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent, and, upon hearing, the court or the jury, as the case may be, shall determine the amount, if any, by which the rent is to be reduced to reflect the diminution in value of the dwelling unit during the period of noncompliance with s. 83.51(1). After consideration of all other relevant issues, the court shall enter appropriate judgment.

As you can see, if the landlord does not comply with the requirements of the law in FS 83.51(1), the tenant can give notice to the landlord, withhold rent and potentially defend the eviction on these grounds.

The Tenant's Right to Terminate the Lease

83.56 Termination of rental agreement. (1) If the landlord materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement.

In this portion of the law, you can see how the tenant is allowed to terminate the lease if the landlord fails to comply with 83.51(1) or material provisions of the lease

How does this relate to a Home Warranty Service?

There are situations in which a property is covered by a home warranty service provided by the builder, or something in the premises is covered by some sort of warranty, where a third party is to repair or replace certain items. Often the landlord will receive notice of a problem and then notify the home warranty service. The problem arises when the problem is NOT fixed, or a good attempt to fix the problem does not occur within 7 days from the time the landlord receives notice. When this occurs, the landlord wants to blame the home warranty service for the inability to get a problem rectified. In court, a judge could not care less that your home warranty service is busy, backed up or just plain inadequate. The blame game and passing the buck just does not work in court.

Practical Considerations

If you get a rent withholding letter from a tenant demanding a repair within 7 days and threatening to withhold rent or break the lease, you need to act immediately. The home warranty excuse or the "I need 3 estimates" excuse will not help you in court. Act immediately, inform the property owner if you are managing for them, and get the problem fixed immediately. If there is a delay due to the home warranty service, it may be necessary to hire another vendor and get the problem fixed to avoid a potentially huge legal problem with the tenant. Remember that not all the tenant's complaints will rise to the level of the tenant being able to withhold rent or break the lease. If you have any questions, give us a call.

Many landlords are now setting aside certain units as "Smoke Free" or renting homes out and prohibiting smoking on all or part of the premises. Many tenants do not want to rent a unit where the prior tenant smoked, and in many units, smoke travels through the premises interfering with the rights of other tenants. Restricting a person's ability to smoke on the rental premises in full or in part is not prohibited by law. The lease needs to clearly spell out the restrictions, and the challenge to the landlord will be enforcement and proof.

Smoking Prohibitions and the law

There are no laws, state or federal, that prevent a landlord from prohibiting smoking in a rental unit, house or designating a building as smoke-free. There are no laws that prohibit a landlord from designating certain areas as "smoking areas" or limiting smoking in the common areas.

Smoking Prohibitions and Fair Housing

It is not illegal discrimination to create a smoke-free policy, smoke-free units or smoke-free areas, as smoking is not protected under law. It is important to note that creating a smoke-free policy should never be used to target a protected class, as this can trigger a discrimination action and potentially be considered illegal. Tenants who are affected by second hand smoke actually may be able to sue your company under the Americans With Disabilities Act and the Fair Housing Act for discrimination, if they have breathing disorders and you do not make accommodations for them in their rental premises, or the common areas in the event they have health issues which are being adversely effected by secondhand smoke.

The Benefits of Smoke-Free Units

1. Reduced risk of fire and injury. Lighted tobacco products cause over 15,000 residential fires, over 500 deaths and over 1300 injuries due to these fires, and over $300 million dollars in property damage each year.

2. Litter reduction. Your maintenance personnel will attest to the fact that cigarette butts accumulate and remain on the premises for a long time. Tenants routinely will throw the cigarette butts on the ground, in the garden areas and all around the common areas. These cigarette butts pose a threat to small children and animals that may place them in their mouths and ingest them.

3. Better health. Cigarette smoke travels through walls, ceilings, floors, electrical conduits and HVAC systems. This exposes other tenants to secondhand smoke, and these tenants then suffer health hazards and inconvenience.

4. Decreased damage to property. Smoking damages walls, ceilings, carpet, furniture and can deposit a layer of tar on just about any surface with which smoke comes in contact, in addition to increasing the likelihood of carpet, flooring and counter burns. Often smoking related damage requires a substantial expenditure of funds to remove staining and odors, and to otherwise repair the unit.

5. Reduced liability. Americans With Disability Act and Fair Housing complaints are rising each year. Accommodating tenants who do not want to be affected by second hand smoke and/or reducing the exposure of a tenant to second hand smoke will reduce your liability. In addition, a tenant has common law remedies, including the implied warranty of habitability and that the peaceful, quiet enjoyment of the premises is being interfered with. Smoke infiltration from another unit may qualify as a violation of the common law rights, and we have seen tenants break their lease due to smoke infiltration.

Creating the Smoke-Free Unit or Building

1. Current tenants. You cannot prohibit a current tenant from smoking, if there is no prohibition in the lease, or the tenant has failed to sign a no smoking addendum after the lease has been signed. A non-smoking tenant who has already signed a lease may be willing to sign a no smoking addendum, and this can speed up the conversion of a building to non-smoking units.

2. New tenants or renewals. If your new lease or addendum prohibits smoking, you can prohibit a new tenant and their occupants from smoking, or refuse to renew a lease if a current tenant refuses to sign the new lease or addendum.

"Tenant agrees that Tenant, guests and/or occupants will not smoke or ignite any tobacco, clove, incense, or other legal or illegal smoking product on the premises. The premises for the purposes of this section includes the interior or the apartment, the breezeway outside the apartment, and any lanai or balcony if provided. Smoking for the purposes of this section is defined as igniting, inhaling, exhaling and/or carrying any lighted legal or illegal smoking product. In the event Tenant, guests or occupants violate this smoking policy, Tenant shall be in breach of the lease agreement and subject to eviction action, in addition to being liable for any damages to the premises cause by smoking or costs incurred by Landlord in removing smoke odor"

Note: The above sample clause is for a complete smoking prohibition. The clause can be modified to allow lanai smoking, smoking areas or other variations.

Practical Considerations

While smoking can be prohibited in the lease agreement or addendum, enforcement is always going to be a problem. We all know that tenants often will not do what they are "supposed" to do or what they "agreed" to do in the lease. A no smoking clause is a start though, if you wish to create a smoke-free unit or building, but proof will become an issue in the event of a violation or violations.

Useful Smoke-Free Websites

Smoke Free For Me
Smoke Free Housing Consultants
Smoke Free Apartments House Registry

A common mistake when renewing a lease is to use a standard lease renewal or draw up a new lease omitting any reference to money that may be owed from the expired or expiring tenancy. Late charges may have accumulated, the tenant may owe for some damage, or there may be NSF charges or some other charges that have been incurred under the prior lease. Once the new lease is executed, while the tenant may still owe you the money, there is no enforcement mechanism to collect it. You cannot evict under the new tenancy for money owed under the prior tenancy, UNLESS the new lease or renewal clearly spells out that there is a balance owed and states how the tenant shall pay this balance.

What might be owed from the prior lease?

A tenant can easily have accumulated late charges, NSF charges, unpaid water, sewer or garbage bills, unpaid repair bills or almost any other amount that could have been incurred over the past year. The landlord will most likely want to collect this money and does not intend to write the amounts off when giving the tenant a new lease. The landlord has a full expectation that the tenant will pay these sums. But will he?

Tying in the old balance to the new lease

When preparing the new lease, it is crucial that terms of the new lease contain the past or accumulated amount due, a definition of this amount as "additional rent" and the payment arrangements. We recommend that the amount is spread out in a reasonable fashion and due with the tenant's rent payment as "additional rent" until paid in full. Done this way, if the tenant fails to pay, the tenant can then be given a Three-Day Notice for non-payment, and an eviction can be instituted if necessary. We do not recommend that you accept the normal monthly rent without the tenant paying the full rent amount and the "additional rent" at that time. If you wish to have a separate form for dealing with the amounts, terms and conditions we recommend a Past Due Amounts Workout Agreement.

The new lease does not reflect the past balance; is the money still owed?

The execution of a new lease does not wipe out the prior debt, but creates two distinct problems. First, if the prior debt was debatable or in dispute, the landlord's actions in entering into a new lease certainly favors the tenant, and secondly, the ability to evict the tenant under the new lease for amounts incurred under the old lease are slim at best. With that said, the tenant still owes the money, and the landlord can at some time attempt to collect this money through litigation or other means, but much of the leverage is gone. Before you renew a lease, always check to see if money is owed, and carefully reflect this in the new lease.

For over two years, property management companies have been sued in huge class action lawsuits for practices that most property management companies have engaged in for years. Common practices and agreed upon terms are under attack, and as a result of a judicial decision, have caused property management companies to incur millions of dollars in fees, costs and loss of the ability to collect sums owed to them. Most property manager companies have not revised their leases or procedures, and as a result, are a huge target for the lawsuits. Currently, the attorney filing these lawsuits is not taking the cases to trial but quickly entering into class action settlements. While this may lessen the effect of a huge, drawn out trial, the companies being sued are still paying small fortunes to settle the suits. Each one of these suits and settlements are costing the companies in excess of $1,000,000. There is no indication that the attorney filing these suits has any intention whatsoever of stopping. Our firm is recommending that you take action immediately to avoid becoming a target. Our recommendations are not our interpretation of the law, and we do not agree with the outcome of the lawsuit which started this incredible chain of events, but we feel that until the law is changed, property management companies need to take heed immediately and change their leases and practices.

IMPORTANT:

If your company has already been sued and is currently under a class action settlement agreement, please follow the advice of your attorney, as special conditions apply per the settlement agreement.

REDECORATING CHARGES

Current Law: Florida Statutes says absolutely nothing about redecorating charges, but are they legal? Are they being disclosed?

Cases: Other states have begun interpreting these fees as a way landlords are making tenants pay for ordinary wear and tear.

Recommendation: Cease charging redecorating charges. If you still insist on charging them, make sure they are disclosed in your advertising and in the first contact.

ADMINISTRATIVE FEES

Current Law: Florida Statutes say absolutely nothing about administrative fees. We fear that they may be challenged as anti-consumer or in some way in violation of Florida's Unfair and Deceptive Trade Practices Act. Florida Statutes include a provision allowing a judge to strike down "unconscionable" provisions in a lease and award damages to the tenant. Often these administrative fees are not being disclosed on first contact with the applicant.

Recommendation: Cease charging administrative fees. If you still insist on charging them, make sure they are disclosed in your advertising and in the first contact.

TERMINATION FEES

Current Law: Florida Statutes gives specific remedies to a landlord when a tenant breaks a lease or gets evicted. Termination fees for a lease break, voluntary or involuntary, are nowhere to be found in Florida law. Common practice for years has been to charge these fees to cover the costs incurred due to the tenant's lease break.

Cases: Recent court cases have held that these fees are unlawful, as they can result in the collection of double rent if the tenant breaks the lease, a new tenant moves in right away, and the termination fee exceeds the actual lost rent. Ridiculous? Yes, but some courts feel otherwise.

Recommendation: Cease charging termination fees

INSUFFICIENT NOTICE FEES

Current Law: Florida Statutes says absolutely nothing about insufficient notice fees for tenants who break their lease.

Cases: Recent cases have stated that these are completely unlawful UNLESS specifically allowed by Florida law for notice prior to lease end.

Recommendation: Cease charging insufficient notice fees UNLESS they are those specifically authorized by law for notice prior to lease end. Click here to see an article on the insufficient notice fees you can legally charge if a tenant fails to give proper notice prior to lease end

AUTOMATIC FORFEITURE OF SECURITY DEPOSITS

Current Law: Florida Statutes do not state that security deposits are automatically forfeited when the tenant breaks the lease. It has been common practice and makes good sense. After all, a security deposit is for the full and faithful performance of the lease.

Cases: The class action cases dealing with termination fees can be construed as prohibiting the automatic forfeiture of a security deposit upon tenant breach

Recommendation: Cease automatically forfeiting a tenant's security deposit upon lease break. Most companies still forfeit the tenant's security deposit if they break the lease AND charge them rent on top of this. This can trigger a lawsuit.

LATE CHARGES

Current Law: Florida Statutes say nothing about late charges.

Cases: Some states are interpreting their usury laws to apply to rent owed.

Recommendation: Cease charging excessive late charges and cap them at 10%.

A final note

Most readers of this article will go away angry and confused. How could these perfectly fair charges and practices be illegal? Law is made two ways: (1) by statute, in which the legislature enacts a bill which becomes law, and (2) by court cases, in which a judge makes a decision interpreting existing statutes, and under the principal of judicial precedent, it becomes law that other courts will follow. In the current cases which have triggered this entire mess, the result is from a Circuit Court case in Palm Beach County, Florida. This case created law for any company which operates in the 15th judicial circuit, which encompasses a large area. When a judge makes a decision in circuit court, that judge will look to circuit court cases and higher. While a circuit court does not make law in another circuit, judges often will base their decision on that court's decision, if there are no other cases in their circuit to the contrary or on point.

You have been warned, AGAIN

There will come a time when a tenant who has vacated the premises owing you money returns and tries to make payments arrangements to pay what is owed to you. In other situations, a current tenant may fall seriously behind or owe you for something due under the lease, such as an accumulated water bill, a bounced security deposit check or some damages they did to the premises. The form you use will determine the action you can take in the event the tenant fails to pay pursuant to the arrangement you have made. Unfortunately, we always need to be prepared for what will occur when the tenant fails to abide by an agreement. An agreement without consequences is useless, and using a wrong agreement can often be worse than using nothing at all. This article will examine a very common form known as a promissory note and a less common form developed by our office called the Past Due Amounts Workout Agreement. These forms are not the same and are to be used in specific situations.

The Promissory Note

A promissory note is simply an agreement when one party agrees to pay another party a particular past due sum or currently due sum on a particular date or dates.

When should it be used?

A promissory note should be used only with a PAST or departing tenant who owes you money and desires to pay you on a certain date or dates according to the payment arrangement spelled out on the promissory note. Never should it be used with a current tenant. The tenant may vacate owing you past due rent, late charges, unpaid utility bills or anything owed under the terms of the lease or Florida law. This will memorialize the debt in writing and can be used later if the past tenant defaults, and you wish to pursue the debt.

When should a promissory note never be used?

A promissory note should not be used with a current tenant who owes you money. This is a common mistake by landlords. This is the scenario: the tenant will be in default for 2 months' rent in the amount of $1600.00. The landlord, thinking that the promissory note is the way to go, will write up the document stating that the tenant owes $1600.00 and will pay $200.00 per week beginning on a particular date until paid in full. Now for the problems. First, unless the promissory note clearly states that the amount is "rent" due under the terms of the lease, the landlord may have unwittingly converted past due rent into simply a monetary obligation for which he will not be able to evict the tenant using a Three Day Notice! The second problem is that if the tenant fails to make a payment, what is owed: the full balance all at once, OR only that missed payment? Without an acceleration clause in the promissory note, the tenant will only be in default for that one payment, rather than the whole amount. This was certainly not the intention of the landlord when the promissory note was created.

Procedural aspects of the promissory note

Filling out a promissory note incorrectly can be worse than not ever having one. Take your time, and fill out all the dates and amounts carefully, have the document signed, preferably with 2 witnesses. If a person other than the actual debtor is going to give you a promissory note, the signature of that person MUST be witnessed by 2 witnesses per Florida law. It is not necessary to have the document notarized, but certainly will not hurt if the debtor tries to say that he or she did not sign the promissory note. The payment plan, if any, dates and amounts should be spelled out with as much particularity as possible. Having the exact date and amount of each payment clearly listed out is preferable to stating "$200.00 per week", and not having a starting date can really cause a problem. You will see that the sample promissory note below has an "acceleration clause". The purpose of this clause is to make the full balance due and owing immediately if a payment is missed. We do not recommend that this acceleration clause ever be used maliciously, but allowing deviation from a payment plan can adversely affect enforceability of the promissory note, much as accepting rent late over and over again can cause a waiver and estoppel issue. You may notice this wording in the promissory note: "In the event the payments are not timely made, the acceptance of the payment(s) late or in partial amounts not according to the above schedule shall not constitute a waiver in any way of the creditors". While you would think that this would prevent a waiver from occurring, in reality, your course of conduct may still create a waiver.

THE UNDERSIGNED HEREBY AGREE THAT AS OF ___________(DATE) THE SUM OF$_______________ IS OWED TO _______________________________________________.(INSERT NAME OF MANAGEMENT COMPANY, APARTMENT COMMUNITY, YOUR NAME)

THE UNDERSIGNED AGREES TO PAY ABOVE DUE AMOUNT OWED IN THE FOLLOWING MANNER :(INSERT EXACT PAYMENT SCHEDULE)

$________ DUE _________
$________ DUE _________
$________ DUE _________
$________ DUE _________

IN THE EVENT THE UNDERSIGNED FAILS TO MAKE THE ABOVE PAYMENTS IN THE MANNER PRESCRIBED, THE FULL AMOUNT OF THE DEBT MINUS ANY AMOUNTS PAID SHALL BE DUE AND PAYABLE IMMEDIATELY. IN THE EVENT THE PAYMENTS ARE NOT TIMELY MADE, THE ACCEPTANCE OF THE PAYMENT(S) LATE OR IN PARTIAL AMOUNTS NOT ACCORDING TO THE ABOVE SCHEDULE SHALL NOT CONSTITUTE A WAIVER IN ANY WAY OF THE CREDITORS. IN ANY LITIGATION, THE PREVAILING PARTY SHALL BE ENTITLED TO AN AWARD OF ATTORNEY'S FEES AND COSTS.

THE UNDERSIGNED AGREES THAT THIS CONSTITUTES THE ENTIRE AGREEMENT REGARDING PAST DUE AMOUNTS, AND ANY MODIFICATION TO THIS AGREEMENT MUST BE IN WRITING TO BE CONSIDERED VALID.

Dated: ___________________

___________________________ NAME

_____________________________
Witness

_____________________________
Witness

The Past Due Amounts Workout Agreement

When should it be used?

This form should be used if a landlord wishes to make payment arrangements with a CURRENT tenant on past or current amounts owed by the tenant. This is a tenant who is currently residing on the premises and intends to stay and pay the amounts owed.

What can be put on the Past Due Amount Workout Agreement

Rent, late charges, bounced security deposit check, damages the tenant has caused, and any other amounts due to the landlord all can be put on this agreement. The major difference here is that the tenant is living on the premises, and the landlord needs to not only memorialize the debt in writing, but also needs to be able to take swift definitive action to REMOVE the tenant in the event the tenant fails to pay according to the agreement. Unlike the promissory note, the Past Due Amounts Workout Agreement converts the amount due completely into RENT. If that "rent" is not paid as per the agreement, the landlord can then put the amount on a Three Day Notice and proceed with an eviction. Again, an acceleration clause is used which will make the full amount owed at once if the tenant fails to make the payments per the agreement. We have seen many situations in which the landlord used a homemade agreement, puts in all the payment amounts and due dates, only to find out that when the tenant defaulted, all the landlord could put on the Three Day Notice was the missed payment, or possibly, was not able to use a Three Day Notice at all, causing confusion and delay.

Procedural aspects of the Past Due Amounts Workout Agreement

The same procedures should be used as with the promissory note. Specific payment dates and amounts should be listed. If there is more than one tenant on the lease or residing on the premises, get ALL tenants to sign. This is crucial.

The undersigned Tenant(s) hereby agree that as of _____________________(DATE) the sum of _______________ is owed to Landlord for the following
__________________________________(List things like past due rent, bounced check, check charges, utilities etc)

In addition to all other amounts which may become due under the terms of the tenancy or Florida law, Tenant(s) agree to pay the past due amounts owed in the following manner: (insert exact payment schedule)

$________ DUE _________
$________ DUE _________
$________ DUE _________
$________ DUE _________

In the event Tenant(s) fail to make the above payments in the manner prescribed, the full amount of the original debt minus any amounts paid shall be due and payable immediately as rent, and Tenant(s) may be served with a Three Day Notice for these amounts owed. Failure by Landlord or its agent to serve a Three Day notice in the event the payment(s) are not timely made, or the acceptance of the payment(s) late or in partial amounts not according to the above schedule shall not constitute a waiver in any way of the Landlord's rights, and Landlord and/or its agent may still serve a Three Day Notice demanding full payment at any time if Tenant(s) are in default.

Tenant(s) agree that this constitutes the entire agreement regarding the above mentioned past due amounts owed, and any modification to this agreement must be in writing to be considered valid.

Dated: ___________________

__________________________
TENANT

_____________________________
Witness

_____________________________
Witness

Every landlord will eventually experience the situation in which the tenant has a family, medical or work issue, and the tenant desires to break the lease. Can the tenant simply break the lease if something either in their control or out of their control occurs? Florida law does not give the tenant any leeway in this area. Unless the lease specifically has a clause or clauses allowing a tenant to be released from the lease obligations if a particular event occurs, the tenant will be held to the lease. In reality, the tenant will most likely walk out on the lease anyway, but may be still obligated to you under the terms of the lease agreement. The question then remains, what will a judge say in court?

The Medical Lease Break

Florida law does not allow a tenant to break a lease due to a medical condition, either preexisting or new, although you may want to allow the tenant to break the lease without penalty in certain circumstances. There are many elderly tenants in Florida who cannot complete their lease terms due to having to be placed in an assisted care facility. Other tenants may have a serious sickness which requires long term care or some condition which does not permit them to reside on the premises on their own. We recommend that with verification from a physician, you allow individuals to break their lease without penalty. If you were to treat the vacating tenant as a typical lease break, and you decide to take the case to Small Claims Court, many judges would probably rule that due to the impossibility of the tenant to perform the lease obligations, through the judge's equitable powers, the tenant will be allowed to break the lease without penalty.

Disabilities and Fair Housing laws

In a hypothetical situation, a tenant tells you she can no longer climb the stairs in your building to her 2nd floor apartment due to a disability, and you have no 1st floor apartments available. Should you allow her to break the lease without penalty? The law requires that you make a "reasonable accommodation" for the tenant. That might mean agreeing to let them transfer to a first floor unit when one becomes available, but it does not mean the tenant can escape the lease obligations altogether. The tenant is not entitled to break the lease because she has become disabled. Think of it this way: Breaking the lease is not a reasonable accommodation, because it does not aid the handicapped person in living at your property. It does just the opposite! Your decision to allow a lease break will decrease the possibility of potential litigation or a discrimination case being filed against you. Discrimination cases are most often decided in favor of the landlord, but at what cost in wasted time and money?

Anticipatory Breaches

If a tenant anticipates prior to lease signing that they may have to terminate their lease early due to a medical condition, wording can be placed in the lease dealing with the terms and conditions of what will be a mutual termination of the lease. We recommend that you ask your attorney to draw up a clause which can be placed in the special stipulation section of the lease to accomplish the wishes of all parties. Ambiguity will cause problems, misunderstanding and potentially litigation. A short statement like "Tenant may terminate the lease early if they must go to an assisted care facility" is not specific enough, as it does not deal with monetary issues, notice issues and is open to interpretation.

The Mutual Termination of Lease

In the event the landlord and tenant agree on a mutual termination of the lease, all terms and conditions should be memorialized in writing and signed by all parties. The security deposit, last month's rent and any other monetary sums should be completely dealt with to effectuate a clean break with no misunderstandings. Below is a sample which you should have reviewed by your attorney before use.

TENANT(S)__________________________

LANDLORD: _______________________ ITS OWNERS, MANAGEMENT, EMPLOYEES AND ASSIGNS

PROPERTY ADDRESS: ________________________________

VACATING/MOVE OUT DATE: ____________________________

TENANT(S) AND LANDLORD, HEREBY AGREE AS FOLLOWS:

1. TENANT and all occupants shall vacate the Property and remove all of their personal property and belongings no later than the above date and the TENANT'S right of occupancy shall cease at that time. Any personal property and belongings remaining on the Property after the Move-Out Date may be disposed of by LANDLORD, and TENANT releases LANDLORD from any and all liability for disposal of any items. If TENANT fails to vacate the premises by the Move-Out Date, TENANT agrees that they will be in breach of this agreement, and eviction proceedings will be instituted without further notice.

2. Prior to and after the Move-Out Date, LANDLORD shall have the right to inspect the Property to determine whether any damage exists which LANDLORD believes is the TENANT'S responsibility under the Lease. TENANT shall be responsible for damages to the premises which exceed ordinary wear and tear and any other unpaid charges due under the lease agreement.

3. Within 30 days following the of Vacating/Move-Out Date, LANDLORD shall provide TENANT with written notice by certified mail of LANDLORD'S intention, if any, to impose a claim on the security deposit and the amount and reasons therefore. If no charges shall be imposed upon the security deposit, said security deposit shall be sent to the TENANT within 15 days of Vacating/Move-Out Date.

4. TENANT shall be responsible for paying rent from _________________, (insert date) through _____________________ (insert date). TENANT shall be required to return all keys, access devices, gate cards, garage door openers, and any other property belonging to OWNER no later than the Vacating/Move-Out Date.

5. Except as otherwise stated herein, each party shall bear their own attorneys' fees and costs, if any, incurred in connection with the Lease and this Agreement. In the event a party is deemd to be in breach of this agreement, the prevailing party in any litigation shall be entitled to an award of reasonable attorney's fees and costs.

6. The PARTIES hereby release, acquit, and forever discharge each other and their past, present, and future shareholders, directors, officers, employees, principals, agents, servants, property managers, realtors, independent contractors, representatives, parent corporations, subsidiaries, affiliates, predecessors, successors, assigns, attorneys, and insurers from any and all actions, causes of action, claims, counterclaims, demands, damages, fines, penalties, assessments, costs, loss of services, expenses, interest, attorney's fees and compensation whatsoever, in any way relating to or arising out of the Lease, tenancy, casualty if any, or this Agreement, as long as this agreement is complied with.

7. The original of this agreement shall be kept by the LANDLORD with copies to be provided to the TENANT. Signature by facsimile shall be deemed as original.

8. The PARTIES acknowledge that this Agreement constitutes the entire agreement between them with respect to the subject matter herein. They further acknowledge that they have read it and understand it, and that the terms and conditions of this Agreement were arrived at in arm's-length negotiations between the Parties.

9. No modification, waiver, amendment, discharge, or change of this agreement shall be valid, unless the same is in writing and signed by the Party against which the enforcement of such modification, waiver, amendment, discharge, or change is sought.

10. Except as otherwise stated in this document, TENANT and LANDLORD HEREBY remise, release, acquit, satisfy and forever discharge each other, the parties, owners, employees, agents and assigns, for and from all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which any party ever had, now have, or which any personal representative, successor, heir or assign of said party hereafter can, shall or may have, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents, if the terms of this agreement are met. TENANT agrees to hold LANDLORD and its employees, agents and representatives harmless from any claims, damages or expenses of any nature in any way relating to the tenancy or this agreement.

11. This Agreement shall be construed, enforced and interpreted in accordance with the laws of the State of Florida. Once the TENANT vacates the premises and complies with the terms of this agreement, the lease agreement TENANT signed when renting the property shall be considered mutually terminated.

12. OTHER AGREEMENTS:

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________ SIGNATURE AREA FOR ALL PARTIES

Consistency and Policy

Feeling sympathetic to one tenant's situation can result in accommodating that one tenant. The problem is knowing where to draw the line. Another tenant may have a slightly different issue, and you might be less apt to oblige. Can this trigger some sort of a discrimination action? Absolutely. If you are going to allow lease breaks for medical situations, we recommend you decide on criteria and place these criteria in your Procedures Manual. Yes, we know most of you do not have a Procedures Manual, and now is the time to start thinking about having one!

The tenant moved out, and you or your maintenance staff begins the fun process of repairing all the damage, painting, replacing carpet, replacing kicked in doors, repairing door frames and filling holes where your resident decided to practice the sport of boxing. The kitchen is an absolute wreck, requiring a deep clean taking hours, and the refrigerator shelves are either broken or missing. The bathroom has deep mold where every bit of caulking ever existed, and the floor is severely stained due to standing water or whatever else. I need not go on, you get the picture.

Should you sue the tenant? Will you be sued?

Tenants who leave the rental premises in deplorable conditions usually are judgment proof. It would be absolutely ridiculous to spend any serious time or money trying to go after persons like this. Most landlords know this, but many still insist on filing a small claims court case and pursuing a judgment. If a landlord is local and has time on their hands, usually there is not much harm in filing a small claims court case, and there is little expense if no attorneys are involved. Unfortunately, the landlord may have no choice in the matter and be the one who gets sued! There is no doubt that the landlord will retain the entire security deposit in a situation in which damages meet or exceed the security deposit amount, and many times, the tenant will seek to get the security deposit returned to him or her.

The seriousness of a small claims court case

Most landlords have no idea how serious a small claims court case can become. The landlord may file the case on his own, and the tenant hires an attorney who invariably files a counterclaim, meaning the landlord now is suing and getting sued at the same time. The prevailing party may be awarded attorney's fees. This means that if the tenant wins and has an attorney, the landlord may end up having to pay thousands of dollars in attorney's fees to the tenant's attorney. The amount of attorney's fees the judge may award has absolutely no relationship to the amount of the dispute. You could easily have a $5000.00 attorney's fee award when the dispute was about a $500.00 security deposit, and the judge felt you overcharged by $50.00.

The proof you will submit in Court

Daytime court television shows probably do the most serious injustice to the court system and lead people to believe that this is indeed how court "works". While some judges in small claims court do indeed play fast and loose with the evidence of the parties, most judges follow the laws, and this means the rules of evidence are followed. Most landlords will have a stack of bills and receipts which they think they will use to convince the judge that the tenant damaged the property. Sounds reasonable. After all, why would the landlord have spent all this money if the tenant left the place in good clean condition with no damage? It would seem to make sense that the judge will look at the bills and receipts, and this will help you convince the judge that you indeed were harmed by the tenant and should be entitled to keeping the security deposit or getting a judgment against the tenant.

The Bills and Receipts Problem

Ready for the big surprise? Bills and receipts cannot be submitted as evidence in court to PROVE the tenant did the damage. Bills and receipts are what is known as "hearsay" and CANNOT be used to prove the tenant did the damages.

What is "hearsay"?

Most people think hearsay means that when someone tells you something, you cannot use that statement in court. This is partly true. If I tell you that "John stole the car", you cannot go into court and say that "Harry told me that John stole the car". Why? Because if I am not in court with you, the defendant will have no way of cross-examining me. This means that what you are saying is "hearsay", and the judge cannot listen to this, and it will not be used as evidence in court. Now on the other hand, if I were also a witness in court, and you told the judge that Harry told me that "John stole the car", I can be called up to the witness stand and be cross-examined. The statement will then be admissible into court.

Other examples of "hearsay"

Besides just statements by people that cannot be cross-examined in court because they are not in court, there are other things which are considered hearsay.

1. Affidavits. Many property managers get the repair people and vendors to sign an affidavit, get it notarized, and then they think they can show it to the judge. It does not work; it is hearsay, because the vendor or repair person cannot be cross-examined in court.

2. Witness Statements. Getting 5 statements signed by people who observed the damages would seem like compelling evidence in court, but again, it is hearsay, unless the person or persons who signed the statements are in court.

3. Estimates. No good. Hearsay, unless the person who wrote up the estimate is in court and based the estimate on personal observation.

4. Bills. This is the classic mistake of the landlord. The stack of bills cannot be admitted into court to prove that the tenant damaged the property, unless the person who did the work is there in court, and a witness which can be cross -examined.

5. Police reports. There are times where properties are so severely damaged that the police are called in to write up a vandalism report. Hearsay again, unless the law enforcement person who wrote up the report is in court with you.

Is there any value to bills, invoices and receipts?

While they cannot be used to prove damages, they can be admitted into court to prove what something cost you, and if you have proof of payment, they can be used to prove that you paid for something like the supplies, the vendor, and the repair person. This certainly limits the usefulness of your bills, invoices and receipts, BUT will help your case in court, if you make it clear to the judge that they are being admitted as business records to prove what you paid.

Our Recommendations

If you end up in small claims court involuntarily, i.e. you have been sued, call your attorney as soon as possible. Don't wait until the last minute when the chances of settling the case are seriously jeopardized. If you decide to file a small claims court case on your own, take the time to talk to everyone who worked on the premises to make sure that they will be there with you in court. You can subpoena these people as well and hope they come to court, but you don't want to have an angry carpet cleaner who had to kill 5 hours waiting in court with you. Examine your evidence carefully, and try to put yourself in the judge's seat for a moment and ask, will my evidence and testimony completely convince a judge that the property was not damaged when the tenant moved in, and was in a damaged state when the tenant moved out? Then expect the tenant to come up with all kinds of lies and stories to make you look like the bad guy.

A property manager is an asset manager. The asset owner turns over the home or condo to the property manager to manage as that manager sees fit. Unlike cash, the asset that the property manager is entrusted with is complex, and to make matters more complicated, sometimes this asset comes complete with a tenant in place. Many property managers, and in particular ones who are newly entering the field of property management, will basically take anything that comes though the door. If that out of state owner calls you to manage his property, the first response is "yes". We believe the first response should be "possibly after we get a little more information". Our office deals with tens of thousands of situations each year. We see many instances in which property managers take over management of a property or a group of properties without asking questions first. The result is early litigation or a nightmare throughout the entire process. Our office files evictions for individual homeowners who are "attempting" to manage their own properties. While some owners are successful and knowledgeable, others have no clue whatsoever and make serious mistakes. If a potential client has made serious mistakes, we often will decline the case, as we do not want to have a situation in which we are in fact losing money because of what a client has done in the past. Since we do not traditionally charge hourly for eviction matters, a major problem results in us losing money, due to our flat fee system and taking up time that can be better spent on clients who have taken the time to know the law. Our firm's philosophy should also be your firm's philosophy. Taking over a nightmare property from a nightmare owner will end up costing you money in the long run and making property management more difficult than it already is. Now for the big question. How do you know what you are getting into?

The Property Owner Questionnaire

When we are asked by an individual homeowner to file an eviction, we first have that homeowner answer a number of questions, so we can get a feel of what has been going on. You should do the same, and preferably in writing, so you have proof. Out of state owners who have gotten themselves into a mess are notorious for leaving out major pieces of information, as desperation has sunk in. The number of these individual homeowners who are trying unsuccessfully to manage their own properties is rapidly increasing. The following are some questions to ask a potential new owner BEFORE accepting the property for management.

Who is the owner of the property?

The owner may be a partnership, trust corporation individual of any other entity. While you are asking this question, you can also be looking at tax records in the computer, as you want to confirm ownership so a property management agreement can be drawn up correctly.

How long have you owned the property, and when were you last at the property?

This will tell you if the owner is new to the property or has had long term dealings with the property and knows his or her property. An owner who bought the property 10 years ago will have you begin to manage the property, then visit Florida and nearly keel over when it does not look like it did when it was purchased. Who gets blamed? The property manager.

Do you own other properties in Florida?

Owners sometimes will dump the problem property on a property manager while continuing to self-manage the other properties that he or she owns. This is a warning sign. It is like when a property manager files the non-payment of rent evictions without an attorney, but then asks us to handle the completely messed up case. Sorry. Time to get another attorney.

Do you have a current tenant in the property, and how is it going?

You will want to get a feel of "why" they are coming to you. These questions are important, as the problems becomes evident almost immediately when you begin managing the property

1. Has the tenant complained of repairs?
2. Are there pending repairs?
3. Have you ever let the tenant do work in exchange for a rent rebate?
4. Has the tenant ever expressed interest in purchasing the property?
5. Is the tenant now in arrears?
6. Have you ever accepted cash from the tenant?
7. Who was accepting rent and posting notices in the past?
8. Are you happy with the tenant?
9. Does the tenant feel you owe anything to him at this time?
10. Is there a current written lease?
11. Do you want to keep the current tenant?
12. Do you know the names of all your tenants?

Is the unit a legal rental unit?

We don't recommend our clients getting involved with illegal units where code enforcement can come in, start fining the owner, and the tenant has a valid lease in an illegal apartment, creating a breach of contract and eviction problem.

Are the mortgage payments, taxes and condo/ homeowners fees up to date and paid?

An owner who is delinquent sometimes gets so desperate they look to you to do all the work, find them a tenant, then fire you. You need to know the financial situation of the owner as it relates to the property. We have seen property managers take over homes and put tenants in, only to find out that the owner has been in foreclosure for months.

What were you hoping to get for monthly rent?

WOW! This is a big problem lately. Thousands of investors have purchased properties at prices where the taxes, mortgage and insurance don't even come close to the potential rent you can get on the property. If the owner is unreasonable or does not want to accept the harsh realities, you do not want to represent this owner.

Are there any code violations on the property?

Absentee owners often have failed to maintain the premises, and there could indeed be active violations on the premises.

What was the problem with the prior property management company?

If the property was being managed by another company and now the owner wants to come over to you, it is important that you investigate exactly why the owner is switching. This may tell you if the owner has unreasonable expectations.

Is this owner engaged in "Management Flipping"

If you are just another property management company in a long chain of management company hiring and firings, this shows that the real problem is not the management company, but the property owner. Don't fool yourself into thinking that you are going to make this owner happy because you do things a "different way" or you are "better". While you may be "different or better", the owner is the same! When we see a client who is obviously attorney flipping, we refuse representation.

Our recommendations

In addition to the questions and issues discussed in this article, we are sure that there are many more questions that you already ask and have implemented in your policies. We would love to hear from you to see what other "screening" questions you ask before accepting the property for management. If you wish, we will amend this article and put your name next to some of the questions or procedures that you recommend! Simply email your info to me at harry@evict.com and let us know if you want the recognition!

Many multi-family unit tenants, and in some cases, tenants of condo units, either have a garage included in the tenancy, or can choose to have a garage at a cost in addition to their apartment. The way the lease agreement and garage addendum is worded can have major consequences in the event of an eviction action. Failure to use the proper wording can result in the unpleasant situation in which the tenant is evicted from the apartment, but the property manager is left trying to deal with a garage full of the tenant's possessions. In a single family home, we do not have these issues, as the garage is usually attached or directly near the premises. In a multi-family setting, the garage is more often detached and may or may not be part of the "premises" .

The typical lease

The typical lease will state the monthly rent and then add a section for garage rent or have a check-off section stating that the garage is included. The garage is never mentioned again in the lease, and there is no garage addendum used. Sounds simple enough, and usually there are no problems

The Sales Tax Issue

Most property managers do not realize that if a garage is rented separately from the residential unit, sales tax must be collected on the garage rental. It is crucial to include the garage within the rental for this purpose to potentially avoid any problems with the DOR and sales tax. We recommend that you have a price stated for units with garages and a price for units without garages. Making a separation of the garage from the rental unit can trigger a sales tax issue. If you ever rent out garages to non-residents, you absolutely MUST collect sales taxes.

The Eviction Problem

As mentioned before, usually the garage is not listed as part of the premises but treated separately. This separate treatment can cause a major problem in an eviction action. Typically, the eviction is served on the rental premises and lists the rental premises as the premises that the tenant is leasing. Have you ever seen a garage listed on the 3-Day Notice or eviction action? It is assumed by many property managers and thankfully many tenants that in the event they get evicted, they need to remove everything from the garage as well, and most do. This assumption though may be false. A property manager could be faced with evicting the tenant but not being able to get the tenant to take items out of the garage. In fact, we have seen cases in which a tenant moved his or her belongings into the garage, actually sleeps there at night, and the traditional eviction action cannot get the tenant or his property removed from the garage.

The Lease Tie In

In the beginning of the lease agreement, we recommend that the lease clearly describes the premises as follows "125 Main Circle Unit 306 and Garage Number 16" We do not recommend separating out the price of the garage from the price of the apartment or condo. Simply add these together to have one amount.

1. ADDENDUM: This is an addendum to the Lease Contract for Apartment No_____ in the ________________________Apartments ___________, Florida and is made between Resident(s) (hereafter referred to as "Resident(s)") and Owner and/or Owner's agent (hereinafter referred to as "Owner").

2. PREMISES: The Premises as defined herein, shall be an enclosed garage, a carport and/or a storage unit (hereinafter referred to as the "Premises").

3. USE: Only those persons whose names appear on this addendum may use the Premises. The Premises may be used solely for private residential storage, and under no circumstances shall any business activity be conducted from or in the Premises. No person shall be permitted to sleep in the Premises at any time or remain in the Premises with the door closed.

4. PETS: No pets or animals may be kept in the Premises.

5. DEFAULT AND REMEDIES: If Resident(s) default in complying with this addendum or the law, Owner has the right to retake possession as provided by Florida law and institute eviction proceedings. If, Resident(s) or invitee(s) engage in criminal activity on the premises, such action will be a default for which this addendum and the apartment tenancy may be immediately terminated. In addition to any of the foregoing, Owner has all other rights and remedies provided by law.

6. RIGHT TO ENTER AND TERMINATE: Resident(s) consent to Owner entering the Premises at any time and for any purpose without notice. Owner reserves the right to terminate this Addendum at any time and for any reason whatsoever, and Resident(s) agree to immediately remove all items from the Premises or face eviction proceedings from the Premises and the apartment unit.

7. REPAIR AND MAINTENANCE:Resident(s) acknowledge that they have inspected the Premises and are fully satisfied and accept it in "as is" condition. Resident(s) agrees to be fully responsible for any damage cause to the interior of the Premises, including but not limited to the walls, ceiling, floor and the door(s).

8. ALTERATIONS: Resident(s) may not make any alterations or additions to the Premises or affix anything to the floor, ceilings or walls.

9 CONTENTS: Nothing may be used or kept in or about the Premises which would in any way affect the terms and conditions of Owner's fire and extended coverage insurance policy, constitute a violation of the law, or otherwise be a hazard in Owner's sole judgment. NO FLAMMABLE OR COMBUSTIBLE LIQUIDS OR GASES, BATTERIES, FIREWORKS, EXPLOSIVES OR ANY OTHER ITEM OR SUBSTANCE, WHICH OWNER DEEMS DANGEROUS OR UNACCEPTABLE, MAY BE KEPT IN THE PREMISES. NO ELECTRICITY MAY BE HOOKED UP TO THE PREMISES, AND NO PLANTS MAY BE GROWN IN THE PREMISES.

10. PEST CONTROL: Owner will in no way whatsoever be providing any pest control for the Premises and shall not be liable for any damages caused by pests to the Premises.

11. LIABILITY: Owner will not be liable for any damage, loss, or injury to persons or property occurring within or about the Premises, whether caused by Owner, someone else, weather, fire, wind, rain, flood or any other acts of god. Resident(s) are responsible for obtaining Resident(s)' own casualty and liability insurance, and, agree to save and hold Owner harmless and indemnify Owner from any liability. OWNER STRONGLY RECOMMENDS THAT RESIDENT(S) SECURE INSURANCE TO PROTECT YOUR PROPERTY. Resident(s) agree to save and hold Owner harmless and indemnify Owner from any liability resulting from injuries arising from the use of the Premises.

12. SECURITY: Owner does not provide and has no duty to provide security services for Resident(s)' protection or the protection of Resident(s)' property in the Premises. Resident(s) must look solely to the public police for such protection. The Premises has a lock, which Owner does not warrant in any way. In the event any locks are broken, Resident(s) shall be responsible for the cost of replacement of the locks.Resident(s) may not change the lock(s) on the Premises.

13. POLICIES: In addition to the policies herewith and the attached rules and regulations or any other attachments, the receipt of which is hereby acknowledged, Resident(s) agree to observe and be bound by any other reasonable policies or rule changes which may be later implemented by Owner.

14. GARAGE SALES: Resident(s) agree that no "garage sales" shall be permitted in or around the Premises, parking areas or common areas, and nothing shall be sold out of or around the Premises, parking areas or common areas without express written permission of the Owner.

15. ABANDONED PROPERTY: Resident(s) agrees that should they vacate leaving any items in the Premises or should Resident(s) fail to vacate the Premises after notice or eviction, Owner is expressly given permission to dispose of the items in any way, holding the Owner harmless, and Resident(s) agree to be liable for any expenses arising out the disposal with regard to any items left in premises after Resident(s) vacate the Premises. Resident(s) expressly agree to waive all rights and procedures regarding the disposition of abandoned property provided in Florida Statutes. BY SIGNING THIS ADDENDUM, RESIDENT(S) AGREE THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY FLORIDA STATUTES, THAT OWNER SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE RESIDENT(S)' PERSONAL PROPERTY.

In December of 2004, a jury in Tampa Florida awarded an individual over $15 million who was abducted from the parking lot of an apartment community and later shot in the head. The jury in the case felt that the apartment management and owners were negligent in not providing security to the tenant and that this resulted in the tenant's injuries from the crime. Is a property management company or owner responsible for providing security to its residents? We don't think so. Is every owner of a rental home responsible for keeping an armed sentry outside the door of the home? Of course not. This case is one in the trend of cases whereby owners and managers of rental property are being held liable for the criminal acts of third parties, parties over which they have no control. Picture a large apartment community that may or may not have fences surrounding the property sprawled across many acres. There could be almost a mile of fence in some communities. If our own government cannot control its borders, can we expect an apartment community to be able to control every access point? Do we need lethal, electrified, razor wire fences surrounding apartment communities now? At what cost would all this security, none of which is foolproof, come? Will residents be willing to pay to live in a maximum-security environment? Can the thousands of existing apartment communities, large and small, or the duplexes and triplexes all throughout Florida, be retrofitted to prevent someone from jumping a fence or climbing through a hole in a fence that someone else made? Will access gates be the answer? Will a full time security force need to be at every corner of the apartment community armed with AK-47's.

Though there is no solid, foolproof solution, there are some steps which owners and management can take.

MARKETING In marketing the property to the public, be it in the print ads, the internet, on the phone or through your on-site leasing staff, never should you imply or suggest in any way that your property is safe or has any type of security features whatsoever. The mention of access gates, courtesy officers, or even worse, the use of the word "security officer" or 24 hour manned gates should never happen. When asked if you provide security, simply state that you do not. This should be your company policy, your staff should be trained in this, and it should be clearly stated as such in your written Policy and Procedure Manual.

ACCESS GATES Access gates give a completely false sense of security to a prospective renter. Who among us has not slipped through a gate by following closely behind the car in front of them? Access gates are not security devices and are often non-operational, most often due to an individual running into the gate, resulting in it being broken for some time. We recommend that all residents sign an Access Gate Addendum which clearly explains that the access gate is by no means a security device, can and will break, and, is simply an amenity that guarantees nothing. We strongly recommend that if you do have an access gate, you invest in the technology whereby the vehicle and license plate is photographed every time a vehicle passes through the gate. Remember that gates are no substitute for actual security on a property.

SECURITY ADDENDUM All residents should sign a SECURITY ADDENDUM (see below) whereby they acknowledge and agree that no security is provided.

PROVIDING A CRIME REPORT We recommend that you speak to your local law enforcement agency and request a periodic report of all crime occurring or reported on the property or within some set distance of the property. This should be provided to all prospective residents and made available to all current residents. When providing it to the prospective resident, provide it before they give you an application fee or begin filling out the application. Do not drop this little bomb on them after they have been approved and it is time to sign the lease. Post a list of all known sexual predators and/or offenders within a 1-mile radius of the apartment community, and update this list on a regular basis

COURTESY OFFICER Never tell a prospect that you have a security officer or even a courtesy officer. Many of these so-called security officers or courtesy officers are merely companies which drive around through multiple apartment communities each night and/or respond to certain resident complaints. Often the courtesy officer is a resident who is a police officer and is given a reduced rent to live on the property and "make the rounds" at night or "be on-call". While it is an excellent idea to have a courtesy officer on-site, never should you imply that this is "security" or even mention it to the prospect. When allowing a local law enforcement officer to live on the property for a reduced or free rent, always make that officer sign a detailed "COURTESY OFFICER ADDENDUM". Many a local law enforcement officer was given a reduced rent or free rent apartment only to work the night shift at the station and have an unmarked car.

SAFETY EVALUATIONS OF THE PROPERTY Your maintenance staff should be fully trained, either by a professional firm or by a local law enforcement agency as to maintaining a property which is not conducive to criminal activity. The type of fencing, lighting, locks, shrubbery, and obstructions all play a part in making your property less likely to be a target. In our opinion, a light that is burned out is an emergency. A light that is continually broken or stolen needs to be replaced with one which is more secure, no matter how expensive. Maintenance needs to check lights on a regular basis and keep a written log of when a light burns out, and when it is replaced. Any steps you take to make your property less welcome to a criminal will be looked upon favorably in court. Doing nothing looks bad.

HIRING ACTUAL SECURITY IN RESPONSE TO CRIME If your property is prone to crime, you have gang activity, unsolved criminal acts are occurring on the property or you are in a high crime area, you just may have to hire true full time or nighttime armed security until such time that the problem is under control, if that ever happens.

NEIGHBORHOOD WATCH MEETINGS Having monthly, or more often if necessary, neighborhood watch meetings on your property will show your commitment to keeping crime off of the property. Encourage residents to report suspicious behavior to you and law enforcement immediately. Contact your local law enforcement agency, as many will assist you in starting, and more importantly, maintaining such a program on the property.

PROPER RESIDENT SCREENING So many apartment communities fall short in conducting criminal background checks on prospective residents. It is crucial that you conduct a criminal background check to the best of your ability, and never fail to have an FDLE Sexual Predator/Offender search performed. This can be easily done by simply going to FLORIDA PREDATORS/SEX OFFENDERS

CONCLUSION: Did you like the recommendations given above? We didn't think so. It all takes time and money, all the while you are trying to provide affordable housing for your residents. The last thing you should do is do nothing. Evaluate your current situation, and chart a course for increased safety on your property. We recommend that you have your attorney review any addendum or form that your may wish to implement. Below is a sample SECURITY ADDENDUM that may give you a start.

In most legal disputes, each party, the plaintiff and the defendant, the winner and the loser, each have to hire an attorney and pay their own attorney's fees to that attorney. An example would be a car crash where I smashed into your car and did $500.00 worth of damages to your fender. If we could not come to an agreement, you might hire an attorney and take me to court. A lawyer who represents himself has a fool for a client, so I go out and hire an attorney to represent me. We go to court, and you can prove that the accident was due to my carelessness. The judge awards you $500.00, which presumably I will go ahead and pay you. Let's assume that each of us paid our attorney the bargain price of $750.00 to represent each of us in court. The end result would be that you would have to pay for your attorney, I would have to pay mine, and we probably should have just settled this out of court, because the attorneys made more money on this than all of us. The reason that I, as the losing party to the lawsuit, did not have to pay you for the attorney's fee that you expended is that under Florida law, the losing party in an automobile accident case does not have to pay the attorney's fees of the winner. Each of us had to bear our own fees and costs, because that is what the law says. Now, let's step into landlord/tenant court. A tenant sues you, because he feels that you took too much of his security deposit. The tenant has an attorney. The tenant's attorney convinces the judge that you are the evil landlord and that you cannot justify the charges you made on the poor tenant's security deposit. The judge awards the tenant $300.00 that the judge feels you took unfairly, but now for the zinger. The judge awards the tenant $900.00 in attorney's fees, meaning that you get a judgment against you for not just the $300.00 but also $900.00. You walk out of the courtroom with your head spinning, holding a $1200.00 judgment against you!!! How did that happen?

THE ATTORNEY'S FEE CONUNDRUM IN FS 83.48 ---- Florida Statutes 83.48 Attorney's Fees states as follows "In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover reasonable court costs, including attorney's fees, from the nonprevailing party". This statute has major ramifications to the landlord and can make a simple couple hundred dollar dispute into a $1000.00 plus nightmare very quickly. The prevailing party, meaning the winning party, in any landlord/tenant dispute can and will get an award of attorney's fees in the event a court case is filed. In most cases the landlord wins, as we see so often in eviction actions, but what good is it if you get an award of attorney's fee against a tenant who can't even pay you the rent? Getting an award of fees certainly does not mean you will ever see the fees. The problem lies in the tenant getting an award against the landlord, as this judgment will attach to the property and become a judgment lien against the property.

EVICTIONS AND ATTORNEYS FEES-- The prevailing party in an eviction action is entitled to an award of attorney's fees and costs. This is authorized by statute and is pled for in the eviction lawsuit. Thus, if you are successful in evicting the tenant, you can ask the court to award you fees and costs. Let's say you lose the eviction. You may have to pay the tenant's fees and costs if the tenant retained an attorney. Now what if you simply filed an eviction in error against a tenant, thinking that she owed you the rent but the tenant had in fact paid the rent and you either misplaced or incorrectly posted the payment. You would of course immediately dismiss the case. No harm done, right? Not if the tenant retained an attorney and filed and answer or Motion to Dismiss. Here you would possibly be on the hook for the tenant's attorney's fees, even though you dropped the case quickly and never pursued it further. You may wonder how you can lose an eviction. There are a number of ways: your Three Day Notice could be wrong, you prepared the notice incorrectly, you served the notice incorrectly, the tenant had a valid defense of payment, you failed to make a repair, you accepted late rent on a regular basis, or you are an apartment community and failed to get your fictitious name registered. There are many other ways you can lose a case. The last thing you want is to be on the hook for attorney's fees of the tenant.

ATTORNEY'S FEES AND SECURITY DEPOSIT DISPUTES-- Few landlords have not experienced a security deposit dispute at one time or another. Routinely, tenants feel that the landlord unfairly took too much of a security deposit from them for damages that the tenant vehemently denies. While most of these disputes should be and are settled prior to any litigation, in the event they end up in court, landlords are often surprised to see how the judge acts quite kindly to the tenant, and looks upon the tenant as the victim and the landlord as the evil person who is trying to rip off the tenant. The landlord must prove that the tenant damaged the premises, there is the uncertainty of whether something is over and above ordinary wear and tear, the landlord often does not have a detailed move-in and move-out inspection sheet, and often the landlord does not have photos to document the property condition before move-in and after move-out. More often than not, the judge ends up ordering the landlord to return some of the security deposit to the tenant. Now suppose the landlord claimed $500.00 of a $750.00 security deposit, and in court the judge feels the landlord was only entitled to $450.00 of the security deposit. Who is the prevailing party? Most of the case law unfortunately says that the tenant is the prevailing party because he or she sued and got something back from the landlord. This does not seem fair, but most judges will consider the tenant in a case such as this the prevailing party. If the tenant had retained an attorney to represent him in court, the landlord will most likely have to pay a significant amount of attorney's fees to the tenant. The amount of the dispute or the amount the tenant wins has no relation to what the attorney can ask the judge for in attorney's fees. If the attorney can convince a judge that 10 hours were spent on the case at $250.00 hour, the landlord could end up having to pay the tenant's attorney $2500.00, when the dispute was only about a $500.00 claim that was made on the security deposit. A word to the wise: if the tenant gets an attorney and is threatening a lawsuit, make darn sure you are going to win before you take a stance that you are not going to budge and settle the case.

WHY WORRY ABOUT ATTORNEY'S FEES-- Up until around 10 years ago, it was rare that a tenant would retain an attorney to defend them in an eviction action or to pursue a security deposit dispute. With close to 100,000 lawyers now in Florida, things have changed. We now have lawyers who are specializing in representing tenants for the sole purpose of extracting attorney's fees out of the landlord. These attorneys are advertising and direct mail marketing to tenants who are under eviction, offering free consultations. The attorney then examines the case, looks for a weakness and next thing you know, you are up against an attorney in court who has filed an Answer, Counterclaim and three Motions to Dismiss. Take your time when preparing your notices, evict cautiously, and when making a claim on the security deposit, document absolutely everything you can. Most losses by landlords in court are completely avoidable.

For further information of the above topic or any other topics contained in this site, feel free to call 1 800 253 8428 or email us atInfo@Evict.com

More and more eviction cases are being contested by attorneys specializing in representing tenants, and a number of new class action lawsuits have been filed in Florida against major management companies and owners of multifamily housing. Items are of major concern right now, due to the increase in attorneys targeting landlords, and particularly a recent court decision which has completely confused what was assumed to be permissible practices. Almost every apartment community in Florida has now become a huge target.

TERMINATION FEES, RE-LET FEES AND LIQUIDATED DAMAGES

Background

Landlords have historically had clauses in the lease agreements which impose a penalty, re-let fee or liquidated damages in the event a tenant breaks a lease before the term is completed or is evicted. A larger problem is that many landlords have been using the lease requirements for a voluntary and agreed upon lease break to impose these fees in the event of a skip or eviction. The recent case out of Palm Beach County has held that these fees or penalties are impermissible and that the remedies provided in Florida Statutes are exclusive and cannot be modified by the lease terms. The main holding of this case states that charging these fees, penalties, or liquidated damages is not allowed by law, and that the ONLY remedy a landlord has when the tenant vacates voluntarily or involuntarily, and the landlord puts the unit back on the market, is for the landlord to charge the tenant ONLY the rent that was lost at the time of the breach and AS IT BECOMES DUE. You cannot accelerate the rent or charge rent on top of a penalty, as this judge feels that this is charging "double rent".

IMMEDIATE ACTION PLAN:

1. REMOVE ALL PENALTIES, LEASE BREAK FEES, And RE-LET CHARGES FROM YOUR LEASE NOW.

2. If you have charged these in the past to a tenant, NOTIFY YOUR COLLECTION AGENCY THAT THESE CHARGES ARE TO BE REMOVED FROM THE TENANT'S COLLECTION FILE.

3. Recompute only your LOST rent UNTIL THE UNIT WAS RERENTED and REVISE THE AMOUNT SENT TO COLLECTIONS if and only if the revised amount is LESS than what was previously sent to collections.

How will this all be resolved? The law needs to clarified to allow the landlord and tenant to contractually agree to these penalties and fees as they should be allowed to do, and in our opinion are allowed to do. Unfortunately the Circuit Court Judge in Palm Beach County disagrees. The case is being appealed by the attorneys handling the case.

SECURITY DEPOSIT CLAIMS

Landlords are required by law to make a claim upon a tenant's security deposit within 30 days of the tenant vacating the premises, if the tenant vacates or is evicted owing the landlord money that the landlord is entitled to per the lease and/or Florida law.

The Security Deposit Problem: Landlords are charging amounts that are only wear and tear, amount that they cannot prove in court, accumulated late charges, fees, termination charges, liquidated damages or excessive amounts based on estimates. Tenants are disputing these charges, and landlords are not notifying the collection agency that the charge is "disputed". Over the ensuing years, the tenant has a black mark on his credit, he retains an attorney and eventually demand that you prove the damages that you charged the tenant. This could be YEARS after the landlord initially made the claim. Most landlords cannot prove the damages in full, and as a result, the landlord's charge now has resulted in a "slander of credit" for which the tenant can now sue. Attorneys are now specializing in representing the ex-tenant debtor and suing!

IMMEDIATE STEPS TO TAKE WHEN MAKING THE SECURITY DEPOSIT CLAIM

1. Do not charge the fees, liquidated damages, reletting charges as referred to earlier in this article.

2. Do not charge the tenant unpaid or accumulated late charges. Judges hate late charges and attorneys are beginning to set their sights on whether late charges are usury.

3. Always perform a DETAILED move in and move out inspection. The tenant should not be permitted to make this inspection. The landlord makes this inspection

4. Document the move in condition with a video and/or photos of the unit, interior and exterior. Leave NOTHING undocumented. Preferably have the tenant sign the "Move in Inspection Form, but if you cannot, take the move in inspection seriously, and do it right.

5. Document the move in condition with a video and/or photos of the unit, interior and exterior. Leave NOTHING undocumented. If you charge the tenant for ANY damage, be prepared to prove this damage in a court of law up to 5 years after the tenant vacates. Our clients who videotape units and videotape the damages RARELY have any security deposit disputes.

6. If something gets disputed, carefully weigh the risks of insisting upon the charge versus the benefits of settling with the tenant. Settlement is NOT a bad word.

7. Never write or call back an attorney who has contacted you regarding a dispute without having your attorney review the situation.

EVICTIONS - LOSE ONE AND GET SUED

The majority of evictions that come into our office have some sort of problem. It may be as blatant as an incorrect Three Day Notice, an error in the lease, an excessive late charge, an unregistered fictitious name or some underlying problem that the landlord failed to disclose to us when sending us the case. If the tenant gets and attorney and you lose, you will have to pay the tenant's attorney. We recently had 2 cases where the landlord lost, and the attorneys are demanding in excess of $4000.00.

IMMEDIATE ACTION PLANS

1. Prepare and Serve your notices correctly. Us the Three Day Notice Checklist. Let your attorney prepare any Seven Day Notices for you. Do not non-renew unless you have carefully read the lease and have good reasons documented.

2. Tell your attorney everything strange about the case. Have you accepted rent late on a regular basis? Have you been accepting partial payments? Has the tenant complained about problems on the property? Has the tenant given you a rent withholding letter? Are you trying to remove the tenant for non-rent reasons but jumped on the tenant when she was late on the rent, and refused the rent from the tenant before filing the case?

3. Is your Fictitious Name filed with the Secretary of State? Do you even know what this means? Get it filed NOW.Click here for Fictitious Name Filing.

4. Do not accept rent during an eviction without calling your attorney first and possibly entering into a Stipulation.

5. Once an eviction is filed, do not take any other action without speaking with your attorney first.

REMINDER: CHECK AND FILE YOUR FICTITIOUS NAME NOW!

The Background

The most common cause for tenant removal is nonpayment of rent. In most cases the facts are limited and not in dispute. Did the tenant pay the rent? If not, a simple eviction usually occurs, with the landlord prevailing in most cases. Unfortunately there are many other non-rent related noncompliances which result in the landlord having a strong desire to have the tenant removed from the property. The problem is that the landlord's desire to remove the tenant is often far greater than the landlord's case or evidence against the tenant.

The Landlord's options - In the event of a noncomplying tenant, the landlord is faced with a number of options: give the proper notices, gather evidence, prove the noncompliances, file an eviction action, and possibly have to prove the case in court. Another option would be to non-renew the tenant if the lease was near completion, and if the tenant failed to vacate, simply file an eviction based on the failure to vacate. Finally, there is the option of coming to an agreement with the tenant to vacate the premises on a fixed date.

Forced Tenant Removal for Noncompliances

In order to legally institute eviction procedures against a tenant for noncompliances, certain prerequisites must be met. Depending on the noncompliance, either a Seven Day Notice of Noncompliance with Opportunity to Cure, a Seven Day Notice of Noncompliance Notice of Termination, or both, must be given to the tenant. These actions entail informing the tenant of the noncompliance, giving the tenant time to cure the problem in most cases, if the offense is of a curable nature, and then terminating the tenant if the offense continues or occurs again. In the event of a serious non-curable type of noncompliance, the tenant is served with a Seven Day Notice of Termination, and an eviction begins right after this notice expires. Eviction cannot even begin until the notices have expired, and in the meantime, you have lost good tenants due to your noncomplying tenant. Once you file the eviction, you then have to win! This is not always guaranteed. While most landlords have served the Notice of Noncompliance with Opportunity to Cure, very few landlords have ever filed an eviction for noncompliance, as most tenants either cure or vacate prior to the eviction. Far fewer landlords have ever filed an eviction and ended up having to prove the noncompliance in court, as many of the tenants vacate shortly after getting served with eviction paperwork. The landlord who files an eviction for a non-rent related noncompliance and has the case contested is in for a real ride. It is amazing how difficult noncompliances are to prove in court, when your witnesses do not show up, or your solid proof melts away in front of a judge who was so tough on non-paying tenants, but now is so sympathetic to the tenant before them on a noncompliance case.

Can you really prove to the judge that there is an unauthorized occupant living in the unit? Did the tenant remove the unauthorized pet right after or before you filed the eviction? Was it a housekeeping issue that the judge just does not feel so strongly about? Did all your constantly complaining tenants who hounded you every Monday morning about the noise from parties suddenly decide not to show up in court? Is the allegation that the strange man who exposed himself by the pool now pretty difficult to prove? Were you surprised that your attorney informed you that affidavits signed by three tenants are not admissible in court? Were you shocked when the police officer that responded to two noise complaints decided not to show up in court? Did you think the tenant would get an attorney to fight the case and demand a jury trial? The bottom line is anything can happen in a noncompliance eviction, and they should be avoided at all costs.

The "Agreement to Vacate" Alternative - Probably the best possible way to have a tenant vacate is to have that tenant do so voluntarily. The tenant and the landlord simply sign an agreement whereby the tenancy is terminated, and the tenant agrees to vacate on a fixed date. The "Agreement to Vacate" is this wonderful form, and landlords who regularly use the form will attest to the fact that their evictions are reduced, their stress is reduced, and most tenants who sign such an agreement vacate on the date they have said that they will vacate.

When is an "Agreement to Vacate" appropriate? - In almost any situation when a noncompliance is occurring or has occurred, including nonpayment of rent, if the landlord and tenant can agree to a fixed vacating date and memorialize this in writing, the Agreement to Vacate is appropriate: suspected drug use, excessive traffic, domestic disputes, unauthorized occupants, unauthorized pets, noise disturbances, the list goes on. Get the tenant to agree to vacate, and you have probably won the battle.

How do you get the Tenant to agree? - This takes some skill and experience. Basically the landlord needs to approach the tenant, explain how things just are not working out, possibly threaten eviction, but give the tenant an easy way out. The easy way out is for the tenant and the landlord to agree to terminate the relationship without the need for further attorney or court intervention. How much time you give the tenant to vacate will depend upon the severity of the problem, if the tenant has paid rent, or any other factor which will assist you and the tenant in just coming to an agreement.

Will the tenant always sign an "Agreement to Vacate"? - Absolutely not, but more often than not. Let's face it, just as the landlord is not completely sure that they will win an eviction, neither is the tenant. Many tenants do not want to go near the courthouse for obvious reasons and will welcome an opportunity to vacate voluntarily. Some of the most belligerent tenants, who will scream at you telling you how it will take you six months to evict them, will after some thought sign an Agreement to Vacate. On the sample form below, there is a date that the tenant must sign the form by in order for it to be valid. This is used when you want to leave the Agreement to Vacate with the tenant, so they can ponder their options, or you feel it would be better for you not to have a face-to-face confrontation with the tenant. Once the tenant signs the agreement and it is returned to you, you will then sign the agreement and this will create a binding contract. An Agreement to Vacate is no good unless you get all the tenants to sign.

What if the tenant signs the "Agreement to Vacate" and fails to vacate? - Fortunately most tenants who sign the Agreement to Vacate actually leave when they say they are going to leave. If the tenant fails to leave, the landlord can then immediately begin an eviction action with no further notice, and the landlord simply has to prove that the tenant has failed to vacate rather than try to prove the underlying reasons why the landlord wants the tenant gone.

What about the money the tenant may owe to the landlord? Our sample Agreement to Vacate states that the agreement does not address money issues unless otherwise noted in the agreement. In the space provided, the parties may agree that the security deposit is forfeited, possibly will be returned if there is no damage, or any other financial arrangements can be dealt with directly in the form.

Advantages of the "Agreement to Vacate" - The main advantage is that it is an "agreement". Emotions do not run as high, eviction may not be necessary, money may be saved, and there is a much higher chance that the tenant will not do any intentional damage, as so often occurs in an angry eviction where your success is by no means guaranteed. The next time you have a noncompliance where you "just want them to go", remember that they just might want to go as well. The Agreement to Vacate is a wonderful form. Help the tenant out the door.

SAMPLE AGREEMENT TO VACATE:

The Background

Occasionally a landlord will be faced with that unfortunate situation where a tenant who has an authorized pet, signed a pet addendum and paid a pet deposit, vacates owing rent, has damaged the premises, but none of the damage is pet related. It is extremely difficult for the landlord to accept that the tenant may be entitled to a refund of the pet deposit, in light of all the other money that is owed by the tenant who breached the lease agreement. Unless the landlord has structured the deposit agreement the correct way, the landlord has no choice but to refund the pet deposit. Having to return a pet deposit to a resident who owes you money, or worse yet, a resident who was evicted, can be frustrating indeed. The problem can be solved simply by proper lease and/or pet addendum wording.

Collecting a Pet Deposit - A pet deposit is by its nature refundable. All "deposits" are refundable, while fees are non-refundable. If something is designated a pet deposit with no other qualifying language, that refundable deposit is for pet damage, and in the event there is no pet damage, the deposit gets refunded. There is no such thing as a non-refundable pet deposit. This is an oxymoron, since all deposits are refundable. If the landlord collects a pet deposit, this amount must be kept in the same account that the landlord keeps the security deposit or any other advanced rent, and the deposit is treated the same as a security deposit. The deposit cannot be used by the landlord while the tenant is residing on the premises, unless the tenant specifically agrees in writing that the landlord is permitted to use this money.

Collecting a "Pet Fee" - A pet fee is an amount paid to the landlord for the tenant to have the privilege of having a pet on the premises. Once paid, this fee belongs to the landlord at the time of payment. It is never refundable, as it would then be a deposit.

Should you collect a Fee or Deposit? - We recommend collecting both a pet fee and a deposit, as there is a high likelihood that even if there is no obvious pet damage, the unit will have fleas which will become evident 1-2 weeks after the tenants and their pet(s) vacate the premises. As most pet owners do not believe that their pets have fleas, but most landlords know what occurs when a pet is taken from the premises, and the flea eggs hatch and do not have an animal on which to live, there is an almost guaranteed problem and dispute with the tenant when the tenant is told that he or she will be charged for flea extermination. Since the damage to the premises could be more substantial than just a flea infestation, taking a deposit in addition to a fee is advisable.

The Pet Addendum problem - Most pet addendums simply make a statement that there will be a pet deposit or a pet fee which will be used for pet damage. Even if it does not specifically state that it will be used for pet damage, there is an implication that a pet deposit will only be used for pet related damages. This prevents the landlord from using the money for anything other than pet related damage.

The easy solution - In your lease or pet addendum, there needs to be a sentence similar to this:"The pet deposit may be used by management/landlord for any damage related to the pet(s) and for ANY other monies owed by resident under the terms of the lease and for physical premises damages, whether pet related or not".

As you can see, this clause allows you to use the pet deposit for non-pet related damages or other monies which the resident may owe. Some property managers avoid the pet deposit issue altogether by simply charging a higher security deposit which can be used for any monies owed under the lease terms. If you make a decision to charge tenants with pets a higher security deposit, make sure that it is clear that the higher security deposit requirement is due to the fact that the tenant has a pet. One of our clients was wrongfully charged with discrimination when a fair housing tester who was a member of a protected class was quoted a higher security deposit by the landlord, and another tester who was not from a protected class was quoted a lower deposit. On its face, it appears that discrimination had indeed occurred, but the facts showed that the first tester stated that they had a pet, and the landlord upped the security deposit accordingly due to the pet. The second tester did not mention the possibility of a pet and thus was quoted a lower security deposit. If you are not currently using a proper pet addendum, you can download one by going to the following link. DOWLOADABLE FORMS AND NOTICES

Who is this "Problem Tenant"?-- The problem tenant is fairly easy to spot. He is complaining about his neighbors, every new neighbor that moves in, constantly has repair issues in his unit, has his door kicked down in the middle of the night by an ex-girlfriend, seems to be hypersensitive to every little noise he hears, is never satisfied with anything, thinks his carpet smells, thinks there is mold in his apartment, does not like the location of his unit, is being stalked by former friends. Have you met him yet? Well, he wants to move to another unit on-site.

Should you move the "Problem Tenant"? -- A natural response by a leasing agent or property manager is to try to accommodate a tenant and not have a vacancy. Some of the tenant's claims may be legitimate, but how many are really caused by the tenant or due to something the tenant has created in his life? Will moving the tenant to another unit really solve anything, or will the problems just continue or possibly escalate?

Examine the tenant's complaints - An experienced property manager will take each and every complaint and objectively examine whether an on-site move is really the solution to the problem. Let's look at some of these complaints. Noise from neighbors: you may have a unit in a very quiet building with no children and assume that this would make him happy. Suppose a family with children move in. Where will you be now? Stalking or damage to the premises due to an ex-girlfriend: do you really think that the ex-girlfriend will not be able to find him once you move him to another building? How many times have we seen knock down drag out relationships get patched up again, only to deteriorate into a problem once again? Odor of the carpet or mold: can you detect any odor in the carpet, or is this guy just imagining an odor? Have you seen any mold? Do you really believe that once he is in the new unit, he will be happy, and everything will be just perfect?

- If the tenant is moving to a larger or smaller unit, and the request to move is not coupled with a myriad of other complaints, this is really a different issue, and usually there is no problem involved. Possibly the family size has changed, or the tenant needs an additional bedroom for a home office. Not all moves on-site are suspect or should be avoided.

The Decision - Careful thought needs to go into relocating a tenant on-site. Our experience has shown that in most cases, the problem follows the tenant and will follow the tenant his entire life. A geographical relocation on the premises usually will do nothing other than cause you a further headache and make it appear that you are giving this resident some sort of special treatment, which could even end up as an issue in a Fair Housing case against you by another resident.

The Mechanics of the Move - A typical property manager simply makes an addendum or new lease with the tenant and sets a moving date. Unfortunately, huge problem can arise when moving a tenant, including but not limited to dealing with damage left behind, the incomplete move, monies owed on the first unit, the list goes on and on. In the September issue of the Email Newsletter, we will be examining the "MECHANICS OF THE ON-SITE TENANT RELOCATION"

A Letter from the Tenant?-- A certified mail or regular mail letter from a tenant, now that is a change. Usually it is the property manager who is sending the letters and notices. You open the letter up expecting the tenant to be breaking his lease, but instead it contains a five page list of demands on you to make repairs to the property. The letter ends by saying that if you do not make the repairs within 7 days, the tenant will either withhold rent or break the lease. Rent is now due, and you have served a Three Day Notice. Can you file an eviction? Can the tenant break the lease? Does this need to be taken seriously? We commonly call this letter a "rent withholding letter" or "7 Day Letter from a tenant".

Does the tenant have an attorney? -- If you receive a rent withholding letter from a tenant or even a letter that implies that the tenant is going to withhold rent, or worse yet, mentions something about you fixing something within 7 days, you can be almost 100% assured that the tenant has gotten legal advice. This means that there is an attorney lurking in the shadows somewhere in a dark alley, waiting to see if you fail to make the repairs within the 7 Day time frame as demanded in the letter.

The Landlord's maintenance responsibilities - -- A landlord is required by the lease and Florida law to maintain the premises. While the lease normally states what the tenant's responsibilities may be, if it is not stated in the lease that the tenant is responsible for a particular item, frequently the implication is that the landlord is the responsible party.

Florida Law and the Landlord's Duties- Florida law states the landlord's responsibilities regarding maintenance in Florida Statutes 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. However, the landlord shall not be required to maintain a mobile home or other structure owned by the tenant. The landlord's obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex
. (2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for: 1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs. When vacation of the premises is required for such extermination, the landlord shall not be liable for damages but shall abate the rent. The tenant shall be required to temporarily vacate the premises for a period of time not to exceed 4 days, on 7 days' written notice, if necessary, for extermination pursuant to this subparagraph
. 2. Locks and keys.
3. The clean and safe condition of common areas.
4. Garbage removal and outside receptacles therefore
. 5. Functioning facilities for heat during winter, running water, and hot water. (b) Unless otherwise agreed in writing, at the commencement of the tenancy of a single-family home or duplex, the landlord shall install working smoke detection devices. As used in this paragraph, the term "smoke detection device" means an electrical or battery operated device which detects visible or invisible particles of combustion and which is listed by Underwriters Laboratories, Inc., Factory Mutual Laboratories, Inc. or any other nationally recognized testing laboratory using nationally accepted testing standards
. (c) Nothing in this part authorizes the tenant to raise a noncompliance by the landlord with this subsection as a defense to an action for possession under s. 83.59
. (d) This subsection shall not apply to a mobile home owned by a tenant.
(e) Nothing contained in this subsection prohibits the landlord from providing in the rental agreement that the tenant is obligated to pay costs or charges for garbage removal, water, fuel, or utilities.
(3) If the duty imposed by subsection (1) is the same or greater than any duty imposed by subsection (2), the landlord's duty is determined by subsection (1).
(4) The landlord is not responsible to the tenant under this section for conditions created or caused by the negligent or wrongful act or omission of the tenant, a member of his family, or other person on the premises with his consent.

The Letter from the Tenant- What does it look like The letter from the tenant will often be a complaint letter listing one or more items and demanding that the landlord fix these items. In order for the tenant to withhold rent or break the lease, first these items must be those that allow the tenant to withhold rent or terminate, and secondly, the letter must give the landlord 7 days to fix the items and state in the letter that failure to repair will result in rent withholding or the tenant breaking the lease. The letter needs to be in writing, but some judges have held that verbal or actual knowledge by the landlord was enough for the tenant to comply with the tenant's obligation of putting the landlord on notice. Here is Florida law pertaining to termination of the rental agreement. FS 83.56 (1) If the landlord materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement. If the failure to comply with s. 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the landlord and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows: (a) If the landlord's failure to comply renders the dwelling unit untenantable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable. (b) If the landlord's failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance

For what items can the tenant legally withhold rent or terminate the lease?

A technical reading of Florida Statute 83.60(1), the section of Florida law specifically addressing the tenant's right to withhold rent, indicates that a tenant's right to withhold rent is restricted to violations of 83.51(1), which essentially involves the landlord's failure to maintain the property up to existing building, housing or health codes. The tenant has the right to terminate the lease when an 83.51(1) violation exists, or if the landlord is failing to provide a material provision of the rental agreement. The right to terminate is actually a more expansive right, and what constitutes a material provision of the lease can be subjective. However, many judges allow the tenant to withhold rent for items that would not technically constitute code violations (for example, a refrigerator problem).

The Letter from the Tenant- What does it do? A letter from the tenant in accordance with Florida law will allow a tenant to break the lease if the problem is not repaired within 7 days AND will create a complete defense to an eviction action IF the problem has not been repaired within 7 Days. This is a very powerful tool the tenant has, and if the landlord receives such a letter, it should NOT be taken lightly, and most importantly, it should not be withheld from the attorney who may be filing the eviction action. Here is Florida law showing how the tenant's letter could be a complete defense to an eviction action and stating the strength of the tenant's letter to you. FS 83.60(1) "¦The defense of a material noncompliance with s. 83.51(1) may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. Such notice by the tenant may be given to the landlord, the landlord's representative as designated pursuant to s. 83.50(1), a resident manager, or the person or entity who collects the rent on behalf of the landlord. A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent"¦

Notifying your attorney

Failure to disclose to your attorney that you have received a rent withholding letter, or 7 Day Letter as we commonly call it, can be deadly. Your attorney will file the eviction, the tenant will post the rent into the court registry and the judge may look at the letter as a complete defense to the eviction action, throwing the case out of court and holding you liable to pay a substantial amount of money in attorney's fees to the tenant's attorney. NEVER hide a letter like this from your attorney.

So you received the letter from the tenant, What should you do? - Notify the property owner, explain the law to the property owner, get the necessary funds and authorization, and get the repair done immediately. Judges are not keen on your excuse that you had no money from the owner to make the repairs, or you had to get 5 bids, or that no one could come out to make the repair. While all repair requests should be taken seriously, a repair request in the form of a 7 Day Letter from a Tenant or a Rent Withholding letter needs to be given the utmost priority.

The Condo/Homeowner Association Attorney Letter-- A letter comes in from the president of the Condo Board of Directors or management company informing you that a tenant has a grill on the lanai in violation of the rules. You speak with the tenant, and the grill disappears. Two months later you receive a bill from the condo association for $500.00 legal fees for the attorney writing a letter to the property owner at the request of the management company for the condo association. Whose responsibility is this? You feel you did the best you could to get the tenant to comply. You thought the tenant complied. Can this be avoided? Should it be paid?

Risks of Managing units in Condo/Homeowners Associations -- A property manager who deals with units in Condo/Homeowners Associations, hereinafter "Association(s)" needs to be well versed in the rules and regulations of the Association. The rules and regulations often change periodically and with no notice to the property manager, so it is crucial that the property manager stays completely on top of the changes to avoid situations such as allowing the tenant to have a pet when they just enacted a "no pets for renters policy", or placing a tenant who has a motorcycle in a unit when there has been a "no motorcycle" rule put in place, or placing 4 unrelated individuals in a unit when recently a "no more than 3 unrelated individuals in a unit" rule has been passed. Property managers often think it is unfair when the Association decides to change or add rules, but unfortunately, that is the right the Association has, and they are under no obligation to notify the property manager. Their notification to the unit owner who may live far away is enough under the law.

It is the responsibility and the duty of the property manager to keep up on ALL the rules and regulations of the Association and especially follow all rules pertaining to Association approval of tenants. Many Associations are easygoing or lax about even requiring tenant approval, but then all of a sudden decide to selectively enforce their rules against you. Many Associations have deep seated resentments against renters in their little fiefdom and will do whatever it takes to keep tenants out. Should you just give up and stop managing in Associations? No, all you need to do is follow the rules and take special care, as not only is your property owner expecting you to do everything properly, but often unreasonable Association members are spending the entire day sitting on their lanais watching your tenant's unit to see if there are any noncompliances.

General practices when managing in Associations - Fair Housing laws prevent you from discriminating by picking and choosing who you decide to rent to in an Association. However, there is nothing wrong with deciding not to rent to a group of individuals who you feel may become a problem if they are not from a protected class. Can you decide not to rent to college students in an Association? Yes, as long as there are no local laws which have made college students a protected class. This needs to be checked with your county or city.

An experienced property manager will have checked all the most recent rules and regulations and have created a checklist so nothing slips through the cracks. Motorcycles, number of vehicles, commercial vehicles, unrelated person rules and all other rules need to be checked before entering into a lease. When renting in Associations, since we know there are more rules than usual, and unit owners are policing the property day and night, a property manager needs to inspect the property frequently, checking vehicles and especially taking notice to visible areas such as the patios, breezeways and lanais. These are frequently the source of complaints by the Association members.

- Often you will receive a letter or call from the management company for the Association or the president of the Association, under which they are stating some complaint about your tenant violating a rule or regulation. It could be as simple as having a grill on the lanai in violation of the rules or more serious, such as loud noises, music or disturbances.

The Most Common Mistakes - The most common mistakes a property manager makes after receiving notice that the tenant may be in some kind of violation is to take sides with the tenant, get defensive with the Association or worse yet, write a letter to the tenant. The tenant should immediately be served a Seven Day Notice of Noncompliance with Opportunity to Cure, whether you believe the Association or not. Your job is to manage the unit and keep it free of noncompliances. If the Association claims there is noise, get as many details as possible, and serve the proper NOTICE. If there are unauthorized occupants alleged, serve the proper NOTICE, if there is a grill on the lanai, serve the proper NOTICE. Letters are useless, legally insignificant wastes of time. Your job is NOT to defend the tenant or be a tenant advocate against an "unreasonable" association. Your job is to protect the owner from the actions the Association can take against the unit owner, if in fact it is proven that your tenant is indeed in non- compliance.

Keeping the Association Informed - After receiving a complaint from the Association and after taking the proper action, which is usually the service of a Seven Day Notice of Noncompliance with Opportunity to Cure, you should immediately copy the Association or its management company with the notice, showing the actions you are taking and asking them to notify you immediately if the problem continues. If the noncompliance is of a nature where it is visible, such as accumulations of trash on a lanai or balcony, or a forbidden grill, you need to get over there and check the unit for compliance, and if compliance does not occur, take further action, all the while keeping the Association and/or the management company informed.

What can the Association do to the unit owner? - The Association usually has the rights under its bylaws to hire its own attorney, deal with the problem and charge the unit owner for the attorney's fees it incurs. Attorneys for Associations routinely deal with these matters, write a couple of letters and hit the unit owner with a $500.00 bill. The unit owner now receives this bill and is outraged that he or she has to pay the bill, and finger pointing begins. Sorry to say, often the finger is pointed directly at you, and often you have not taken the necessary swift action against the tenant. You are now stuck in the middle of the fight between the Association, the unit owner who does not feel responsible and a tenant who may still be in noncompliance. The matter can escalate even further, as the attorney for the Association usually has the power and right under the bylaws to institute an eviction action on behalf of the unit owner WITHOUT the unit owner's permission. Here you will see a $2000-$5000 eviction being filed against the tenant. Most property managers do not realize that a typical eviction fee often far exceeds $1000.00 when performed by a large law firm or by a firm that does not handle volume evictions.

Finally, if you are dealing with a noncompliance by a tenant in an Association, get your attorney involved early on to avoid having a simple problem escalate into a large, expensive issue. Communication early on is the key to success in dealing with the noncomplying tenant and maintaining a good relationship with a condo or homeowner's association.

Evictions are being contested at a record rate. Tenants are hiring attorneys at a record rate. While many tenants have no legal basis for contesting the eviction, they are still able to file an answer with the court and too often get a court hearing, which causes significant delays. Most of the time, the tenant does not win in court, but the resulting delay causes significant financial harm to the landlord. In many cases a tenant will contest the eviction and actually have a legal basis for contesting the case. Some successful defenses to an eviction action include but are not limited to:

1. Late charges on the Three Day Notice which are not considered "additional rent" in the lease.
2. Amounts other than rent on the Three Day Notice.
3. A pattern of late payments.
4. All adults not on the Three Day Notice.
5. Address discrepancies.
6. Notices or letters sent to the tenant AFTER the Three Day Notice given.
7. Verbal agreements or conversations between landlord and tenant.
8. Accumulated late charges.
9. Deficiency or repairs needed on the property.
10. Failure to receive notice
11. "Hard times defense"
12. Denial of noncompliance

EXAMINE! - - Is the Certificate of Service filled out on your 3 day? Are all residents listed?

EXPLAIN! - - Explain any strange amounts that do not match up to your lease rent amount.

FAX! - Send all pages of lease and 3 day notice. Don't forget the back pages!

USE A FAX COVER SHEET - Use your attorney provided transmittal form or fax cover sheet

CONFIRM! - - Call and confirm that your attorney has received all pages. A fax machine can pull through more than one page at a time! A power outage can make it appear that your attorney has received a fax, but in actuality, it was in memory and now is gone forever!

SEND EARLY IN THE DAY!!!! - - Most of the time there is no charge to you if the case is pulled before it is filed with the Court

CALL IF YOU FIND RESIDENT'S PAYMENT IN THE MORNING!!!

__ADDRESS: The address on the notice must be correct. a full and complete address is necessary, i.e., county, unit #, left or right side, upstairs or downstairs, street, road, drive, etc. Note: if notice/lease do not match completely, please confirm the proper address on the cover page.

__DATES: The dating of the notice is crucial. i.e., three full business days, excluding Saturdays, Sundays, legal holidays and the day you serve it. Note: Please make sure the certificate of service is filled out completely prior to faxing the notice to our office.

__AMOUNTS: Only the past due undisputed amount of rent should be on the notice. if there are any other charges on the notice they must be considered "additional rent" Note: if the amount on your notice does not match exact amount of one month rent per the lease please provide us with a breakdown of the total.

__NAMES: All adult occupants should be listed on notice, i.e., those who are on the current lease but may have moved out and those who are not on the lease but have established tenancy. Also, correct spelling and the full names are necessary. Note: If the notice is inconsistent with the lease please give an explanation on cover page.

__DOCUMENTS NEEDED TO BEGIN EVICTION: COVER PAGE Please review the information above, this will help us to speed your request. Include permission to file the eviction(s) and any information and explanations of discrepancies, etc. as stated above if necessary. LEASE Please fax all the pages of the lease, if there is no lease please provide the terms on cover page, (i.e., month to month, week to week, rental amount, the day rent is due, etc.) EXPIRED NOTICE i.e., Three day, non renewal, etc. THREE DAY AMOUNT BREAKDOWN FORM. (Breakdown three day amount only)

REMEMBER! YOU CAN NEVER ALTER A NOTICE AFTER SERVICE

What is a Stipulation?

A Stipulation is an agreement between the parties of an eviction action that sets out when the tenant will pay certain sums, when the tenant will vacate in some situations and what will happen if the tenant fails to pay the sums or vacate. A Stipulation is a legal document that is submitted to the court and signed by the Judge. Once signed, it becomes an Order of the Court and is enforceable by the landlord in the even the tenant fails to comply in any way. A Stipulation is not simply a hollow, unenforceable agreement between the parties. It is in essence a Final Judgment that is deferred. If the tenant complies, no Final Judgment is ever needed. If the tenant fails to comply, a Final Judgment is entered and the tenant is removed. The most common misconception is that stipulating means giving up something or caving in to the tenant's demands. This is the farthest from the truth. The decision to use a Stipulation is made by the landlord, and the landlord calls the shots and sets the terms. If the tenant does not agree, no Stipulation is signed and no harm has been done.

Benefits of Stipulations

Stipulations can be an excellent resident retention tool. If a tenant is under eviction for nonpayment of rent, the tenant has some choices. They can fight the eviction, or they can move out. If a tenant is going to move out, they will need money to move. The tenant sits back and does not pay rent during the eviction, saving money so they may move. Usually, the landlord does not want to play any more games with the tenant, as there have already been a number of broken promises. If the tenant comes to the landlord begging to stay and offering to pay some money, the landlord is usually not sympathetic, and the tenant either fights the eviction or leaves some time during or at the end of the eviction. This is where the Stipulation comes into play. A Stipulation allows the landlord to accept money without jeopardizing the eviction process. A Stipulation also can set a fixed date for the tenant to vacate, and if the tenant fails to do so, the eviction will continue, lessening the time to remove the tenant.

1. Allows the landlord to accept rent without killing the eviction. 2. Puts the tenant on a Court-ordered and enforceable payment plan. 3. Prevents the tenant from contesting the case or contesting the case further if already contested. 4. Sets a fixed date in certain situations for vacating. 5. Allows landlord to collect attorney fees, late fees and any other amount on which the parties can agree. 6. Allows the eviction to start right up again upon noncompliance; i.e. failure to pay or vacate, if applicable. 7. Avoids court hearings or trials 8. Allows any rent that was deposited into the court registry to be released to the landlord. 9. Cuts down on the anger involved with litigation and prevents angry destruction of the property.

When can you Stipulate

You can only Stipulate after an eviction has been filed with the court. You cannot use a blank Stipulation form or imply that an eviction has been filed. This is a serious mistake that some landlords make and can get a landlord in a lot of trouble, as it is simulating legal process. Once the eviction is filed, you can Stipulate at any time during the process even up to the moment the Sheriff is at the door removing the tenant from the premises.

When should you Stipulate

If the tenant's only problem is nonpayment or late payment of rent, the situation is ripe for Stipulation. Ideally, the landlord should only enter into a "Pay and Stay" Stipulation if the tenant shows that they have a good portion of what is owed, or will have a good portion within a few days. If the tenant has filed an answer and posted rent into the court registry, this is usually a prime situation for a Stipulation. If the tenant is asking you for a week or so, or has paid for or wants to pay for an extension, you may want to consider the "Leave at a Fixed Date" Stipulation.

1. The "Pay and Stay Stipulation" - This type of Stipulation should be used only if you are not having any other problems with the tenant other than nonpayment or late payment of rent or other charges. You do not want to use a "Pay and Stay" Stipulation if you are having major problems with the tenant or just want the tenant out. While this Stipulation does not "solve" the tenant's financial problems, it enables you to continue the eviction if any payments are missed. This is an extremely successful Stipulation, and in the vast majority of cases, the tenant complies with the Stipulation and gets back on the normal on- time payment routine. This Stipulation has resulted in many tenants not having to be evicted from the premises and saves all parties a lot of grief. Additionally, if a tenant has posted rent into the court registry, this Stipulation will allow this money to be released to the landlord and avoid a court hearing or trial.

2. The "Leave at a Fixed Date" Stipulation - This is an excellent Stipulation to use if there is a problem with your eviction case such as a defect, the tenant has contested, or the tenant simply is asking for more time to stay. The landlord can agree that a certain sum is paid by a certain time, the tenant can "buy" more time, or the parties can agree on a fixed date for the tenant to vacate with no money being exchanged. Many times a tenant just asks for a week or other short period and promises to vacate. The landlord is often not apt to want to do this and refuses. The tenant the files and answer with the court, the Judge sets a hearing, and the tenant ends up staying for a far longer time than the one week for which the tenant originally asked. The "Leave at a Fixed Date" Stipulation is excellent to use if the tenant has posted rent into the Court registry, or the landlord is holding a last month's rent or advance rent. The Stipulation can address these issues and allow the landlord to access these funds quicker.

The Mechanics of Stipulating

If the tenant comes to you and wants to "cut a deal", pay and stay or leave at a fixed date, the landlord needs to immediately think Stipulation! The landlord should never accept any money, make any agreements or have a Stipulation signed by anything less than ALL the parties to the eviction action. The landlord needs to see how much money the tenant has, how much the balance is and how the balance will be paid. Once this is determined, it is just a matter of filling in the blanks on the Stipulation that the attorney provides.

Avoiding Stipulation Mistakes

An improperly filled out Stipulation can be worse than not stipulating at all. The landlord needs to take their time, read the Stipulation Instruction Form and fill in the blanks step by step. 1. Never accept uncleared funds when stipulating. Insist on money orders. 2. Never stipulate unless all parties are present. 3. Avoid stipulating if tenant has absolutely no money, unless it is a "Leave at a Fixed Date" Stipulation and you want them to leave and do not care about the money. 4. Use the proper Stipulation form, be it the "Pay and Stay" or "Leave at a Fixed Date" 5. Send the ORIGINAL Stipulation to your attorney IMMEDIATELY

Suppose the tenant fails to follow the Stipulation

Unfortunately, people do not always do what they are supposed to do, so there will be times when the Stipulation is not followed. We have found that the majority of Stipulations are adhered to, making for a happy landlord and tenant, but there will be times when a payment plan is not met, or the tenant fails to vacate per the Stipulation. If this occurs, you need to notify your attorney immediately, and an affidavit of noncompliance is prepared. This affidavit is then submitted to the Judge, and in most cases the Judge signs the final judgment without a hearing, and a writ of possession can be issued for removal of the tenant. The entire process of removal of the tenant following a noncompliance with the Stipulation takes approximately 10 days, sometimes more, sometimes less. Court is avoided, the tenant cannot usually contest or stop the process, and the tenant is removed.

Many leases have a clause stating that the tenant must give the landlord a certain number of days notice in writing that they are vacating at the end of the lease. If the tenant fails to give this notice and vacates, the landlord tries to charge the tenant a specific amount for failure to give this notice. While it is our opinion that a landlord should do their best in determining whether a tenant is staying or going through the use of notices to the tenant which require a response by a specific time, landlords still insist on charging for insufficient or nonexistent notice. Florida law now allows this, but if it is not done properly, the landlord can find themselves in serious trouble, especially if they report the amount charged to a collection agency, and it winds up on a credit report.

A careful reading and understanding of the law is crucial if the landlord insists on charging the tenant an amount for failure to give notice. Unfortunately, the law is a bit tricky, as it requires the landlord to give the tenant notice that they will be charging the tenant for failure to give notice. This may seem like a tongue twister, but it simply is a requirement of the landlord to "remind" the tenant that the tenant must give notice so the tenant is not "surprised".

The law enacted in 2004

83.575 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.

How it works: In order to enforce a clause in your lease that requires a tenant to give you notice prior to lease end, you must do the following:

Give the tenant a notice WITHIN 15 days of the beginning of the notice period you are requiring from the tenant.

Example: Your lease requires 30 days notice from the tenant. You must "remind" the tenant of this by giving the tenant notice of this sometime within days 30 and 45 prior to the lease ending.

Your notice must state the following:

1. That 30 days' written notice from the tenant is required if the tenant is leaving at lease end, and 2. Failure of the tenant to give you notice will result in a charge of $_____________

NOTE: We recommend that the amount is no more than one month's rent, and the lease must support this charge.

If you give the tenant notice too far in advance, you will not be able to enforce the notice requirement. It is a STRICT 15 DAY WINDOW.

Common mistakes : The landlord gives the tenant too much notice. Many landlords feel that since the lease states the notice requirement, this is enough or the landlord will give the notice 60 days in advance and the lease only requires 30 days' notice. Remember the notice to the tenant must be given in a specific "window", no more and no less.

Below is a sample notice:

According to your lease agreement, your lease shall expire on _________________. Management would like to give you some options.

Please mark off the appropriate selection below or your lease shall terminate on the above date and you must vacate at that time.

Option 1. _____ We would like to remain on the premises as Month to Month Resident(s) at a rental rate of $______ per month.

Option 2. ____ We will vacate the premises on the above date.

Option 3. ____ We wish to sign a new one year lease agreement at a rental rate of $______ per month.

Please return this to Management no later than 30 days prior to your lease end or your lease shall be deemed terminated at the end of the lease agreement, and you shall owe Management the "failure to give notice fee" in the amount of $__________ as per your lease agreement in addition to any amount due from you at that time according to the lease and/or Florida Law.

This offer by Management may be withdrawn at any time and for any reason by Management prior to Management and Resident(s) written acceptance of this offer by signature of Management below and Resident(s) below and Management fully executing a Lease Renewal or new lease if Resident(s) choose Option 3."

A tenant's security deposit is sacred in the eyes of the law. Specific timing issues are laid out in Florida Statutes which must be followed to avoid the landlord having to refund the entire security deposit to the tenant, even if the tenant owes the landlord money. Many landlords fail to take the law seriously and are surprised when a tenant leaves owing a substantial amount of money to the landlord, only to demand the full security deposit back from the landlord because the landlord failed to send the notice out in time or get the tenant the balance of the deposit if any back in time.

When does the notice have to be sent to the tenant?

The required timing of the Notice of Intention to Impose Claim on Security Deposit, hereinafter "Notice", depends on whether you are making a claim against the deposit or whether you are returning the full deposit to the tenant.

Timing of Notice when making a claim

If making a claim against the deposit, the Notice must be sent out within 30 days from the date that the tenant vacates the unit and not one day later. Failure to send out this Notice within the 30 days will result in the landlord having to refund the full amount of the security deposit to the tenant, regardless of amount owed to the landlord. The is no excuse for failing to send the Notice out within the 30 day timeframe. A number of years ago, the timeframe was 15 days. Now it is 30 days.

Timing of Notice when returning the full security deposit If you are returning the full security deposit, you do not have to send out the Notice at all! Simply get the money in the mail within 15 days of the date that the tenant vacated the premises. Many apartment communities fail to send the money to the tenant within 15 days due to accounting issues and the time delays in requisitioning the money and getting a check from the corporate office. Unfortunately the judge does not care how your system works. The money must be sent out within 15 days period.

Returning a portion of the deposit

If you sent the Notice out and you are returning a portion of the deposit, you must return this portion of the deposit within 30 days from the date you sent out the Notice.

Examples: 1. Tenant vacates September 5 and you are not making a claim against the deposit. You must return the deposit by September 20. The Notice need not be used. Simply send the money.

2. Tenant vacates September 5 and you are returning some but not all of the deposit. You must send out the Notice by October 5 and you must return the balance of the deposit within 30 days from the date you sent out the Notice.

83.49 Deposit money or advance rent; duty of landlord and tenant

(3)(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address of his intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form: This is a notice of my intention to impose a claim for damages in the amount of ____________ upon your security deposit, due to ________. It is sent to you as required by S. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address). If the landlord fails to give the required notice within the 30 day period, he forfeits his right to impose a claim upon the security deposit. (b) Unless the tenant objects to the imposition of the landlord's claim or the amount thereof within 15 days after receipt of the landlord's notice of intention to impose a claim, the landlord may then deduct the amount of his claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages. (c) If either party institutes an action in a court of competent jurisdiction to adjudicate his right to the security deposit, the prevailing party is entitled to receive his court costs plus a reasonable fee for his attorney. The court shall advance the cause on the calendar.

Your tenant skipped out in the middle of the night 3 months into a 12 month lease. No notice given, not even the keys left behind. The only thing the tenant left you with was a mess and a vacant apartment. Your owner or management company is wanting you to sue the tenant for the money owed and collect this money. Can you sue? Should you sue? Is it worth it? Are there risks?

Tenants break their leases on a regular basis. Sometimes they give you notice, but often they just get up and leave. While in some cases you are quite happy to be rid of a problem tenant, in other cases the skip was unexpected, and the landlord is upset at the loss of rental income and the prospect of a vacancy or having to retain a new tenant.

The usual reaction by the landlord is to want to sue the tenant to recover the lost rent. Unfortunately, most landlords are unsuccessful at collecting the rent in this fashion, and in our opinion, it is just not recommended.

For how much can you sue the tenant? You can only sue the tenant for the rent that you lost as it becomes due plus the damages to the property that exceed ordinary wear and tear, and these damages must be proven.

When can you sue the tenant? You can sue at any time after the skip, but you will not know what is owed until you have the unit re-rented. You cannot calculate the rent owed for the remainder of the lease and sue for this amount, as acceleration is not allowed.

Where is the tenant? In order to sue someone, you need to find them. If you cannot find them, you cannot sue them. It is that simple.

So you find the tenant and sue the tenant. Now what? The landlord or the property manager will have to attend a pre-trial which could take hours of waiting. At the pre-trial the tenant may not show up, and you will receive a default judgment. If the tenant shows, the case might be settled, or if it is not settled, the case will be set for trial at a later date. This will require another trip to court where a full fledged trial will be held and all witnesses must attend.

Can an attorney sue the tenant for you? Sure, and you will be throwing good money after bad. A typical small claims suit handled properly will cost between $500.00 to $2500.00 on average in attorney's fees. You still will need the landlord, the property manager and/or witnesses in court at the pre-trial and definitely at the trial.

Doesn't the tenant have to pay your attorney's fees? If you win in court, the judge may award you attorney's fee and costs based on the lease or Florida statute. Collecting them from the tenant is a whole different story.

Can the tenant win in court? A tenant who breaks a lease will come up with all kinds of reasons why the lease was broken, most of these reasons pertaining to the condition of the property, repairs that they claim were not completed, safety issues, noise issues or just about anything under the sun. These can all be LIES, but you will have to defend yourself against these lies. Many tenants can lie more convincingly than you can tell the truth. If the tenant wins, YOU will have to pay the tenant's attorney's fees. Many judges feel a lot of sympathy for a tenant who breaks a lease, if the tenant comes up with a good sob story.

The Counterclaim Risk Any time you file a lawsuit, you run the risk of the tenant, with or without an attorney, filing a counterclaim against you. This means that the tables are turned, and now you are not only a plaintiff, but you are a defendant and must defend yourself against the tenant's alleged claims. This often will require you to hire an attorney and subject you to not only your attorney's fees, but the tenant's attorney's fees in the event he retains an attorney and prevails in court. A simple lawsuit you file against a tenant for rent that he owes you can result in a complex counterclaim filed against you for damages the tenant allegedly suffered due to your actions or inactions. The accusations the tenant may make could be totally false and outrageous, but you will still be required to defend yourself.

ARE YOU CONVINCED YET? Our office does not recommend lawsuits against a tenant unless it is an eviction. If the landlord wishes to pursue a tenant, we recommend that they do this on their own and recommend that the property manager does not file suit for the landlord. Do some landlords win and collect their money? Absolutely. Most do not. We recommend that you take the money you would have spent filing a lawsuit, pay for an extra ad in the newspaper, and re-rent the property as soon as possible.

You see the unauthorized person there every morning. You see their car parked there every night. The unauthorized person even comes into your office complaining about something. Can you force them out? Can you prove your case? It is harder than you think.

To evict a tenant for having an unauthorized occupant, you first need to have served a proper Seven Day Notice of Non Compliance with Opportunity to Cure. In order to serve a Seven Day Notice to Terminate, you must be absolutely certain that you can prove to a judge that the tenant has an unauthorized occupant residing on the premises, not just visiting, and that the occupant was not "authorized" by you, the landlord or prior management's failure to act quickly. If the occupant has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management, and/or you have accepted rent with this knowledge, you will not be successful evicting, as you have "authorized" the occupant by failing to act. This is due to the legal principles of waiver and estoppel.

1. Photos of unauthorized occupant AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

2. 24 hour Video surveillance tapes or written admission by the tenant(s) that they have an unauthorized occupant AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

3. Employees of the apartment community who will testify in court that they know for a fact the unauthorized occupant is still living on the premises AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired and are prepared to show the judge proof.

4. Dates and time the unauthorized occupant was seen on the premises AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

5. 24 hour Video surveillance of the unauthorized occupant's vehicle AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

6. Police report where the unauthorized occupant gives your address as his or her address AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

IF YOU DO NOT HAVE A STRONG CASE, YOU WILL LOSE. EXPECT THE TENANT TO DENY THAT THE PERSON IS LIVING ON THE PREMISES. REMEMBER THE JUDGE WILL NEED TO BE CONVINCED THAT THE PERSON LIVES THERE AND IS NOT JUST VISITING.

Did you ever sign a lease with a tenant for a unit that was currently occupied and the current tenant had given notice to vacate? Of course. Most of the time the tenant vacates as planned, you turn the unit, and the new tenant moves in. What happens if the current tenant decides not to move out as they had told you, and the new tenant is in the parking lot with a truck ready to move in? You give the bad news that you have no other units available, and the would-be new tenant drives away, STRAIGHT TO THE COURTHOUSE!

Common Practice It is common practice among property managers to attempt to rent a unit out once the current tenant has given notice of vacating, you have given notice to the tenant to vacate and/or the lease is expiring. This is not illegal in any way, and the property manager or landlord often will sign a lease with the new tenant, stating the occupancy date which will be some time after the current tenant has vacated. In most cases, the current tenant vacates according to plan, the property manager turns the unit, and the new tenant moves in on the beginning date of the new lease. Often the property manager has the new lease starting a week after the current lease expires, so as to provide time for the necessary cleaning or other work to be done on the unit to make it rent ready for the new tenant.

The Problem> Many tenants fail to move out on the date that they said they would vacate. The tenant could have had a change in circumstances, is building a home which is not ready as expected, or the tenant's new residence may have fell through or is not ready for some reason or another. Can you just kick the tenant out, as you have a new tenant moving in? Of course not. Your only option is to wait for them to leave or file an eviction, which will most likely take 20 to 30 days. The property manager is now faced with a dilemma; in most cases, the tenant will move out within a short period of time, but you have a new tenant who has a fully executed lease who now cannot move into the unit. Another problem may not be related to the current tenant at all. The current tenant may vacate the unit as planned, but you find out that serious work must be performed on the unit to make it rent ready, or something serious like a rewiring job or replumbing job must be performed before a new tenant can move in. In the situation of the current tenant failing to move out, the current tenant is in breach of the lease by not moving, but YOU are now in breach of the lease with the new tenant, as YOU cannot provide the unit to the new tenant according to the terms of the lease. In the situation where major work needs to be done, the current tenant is out, but YOU are still in breach of the agreement with the new tenant.

The Liability If the new tenant cannot move in according to the starting date of the lease, the property manager or landlord has breached the agreement and could be held liable for the damages the new tenant suffers due to the breach. This could include storage costs, the higher rent the tenant may have to pay finding another place, hotel bills, moving bills, and any other possible expense that could arise out of the new tenant now not being able to move in as planned. The tenant may even go as far as suing for infliction of emotional distress or claim some bizarre theory of damages.

The Solution A simple clause in the lease agreement is all that is required to give the property manager and landlord protection in the event the unit is not ready for the new tenant as planned. This clause can provide that the lease may be considered null and void or terminated in the event that possession cannot be granted to the tenant on the expected move in date, or provide that the move in date can be extended to a fixed date not to exceed a particular amount of days. Since nothing is certain in the world of property management, a clause such as this will prove extremely helpful and is really a necessity, if the property manager or landlord intends to enter into a lease with a new tenant while a current unit is occupied. We recommend that this wording is placed in the same paragraph as the start and end date of the lease term.

IF FOR ANY REASON WHATSOEVER LANDLORD CANNOT DELIVER POSSESSION OF THE PREMISES TO TENANT BY THE BEGINNING DATE, THE BEGINNING DATE MAY BE EXTENDED UP TO ____ DAYS OR LEASE VOIDED AT LANDLORD'S OPTION WITHOUT LANDLORD OR PROPERTY MANAGER BEING LIABLE FOR ANY EXPENSES OR DAMAGES CAUSED TO OR INCURRED BY TENANT BY SUCH DELAY OR TERMINATION.

It is a Monday morning, and you receive a certified letter from a law firm. You toss the junk mail to the side, and with trembling hands you tear open the letter. To your amazement, a tenant is accusing you of wrongdoing, and the attorney is demanding that you immediately refund a security deposit or pay a certain sum within 10 days to avoid suit. The letter is full of misrepresentations, and you are furious. The "facts" as the attorney present them seem to have absolutely nothing to do with what actually occurred, and you are ready to get on the computer and fire back a letter or maybe even call the attorney and give him a piece of your mind. Is this the right approach? Absolutely not!

Why do we receive letters from attorneys?

The most common letters a property manager receive from attorneys concern a dispute over the claim you have made on the security deposit, a request for a rent reduction or a request to break the lease agreement. These letters usually come regular mail, sometimes certified mail and often have some sort of deadline for response. This often panics the property manager, leading the property manager to believe that failure to respond within the time period specified by the attorney will result in some major lawsuit being filed against the property manager or the landlord.

Why would an attorney represent a tenant in a Landlord/Tenant Dispute?

Most attorneys do not concentrate on representing tenants and really do not even want to get involved with writing a letter to you. The tenant may be a friend of the attorney, client in another matter or is just writing a $50.00 letter for the tenant, hoping to never see the tenant again. Let's face it, all of us attorneys have done this at one time or another. On the other hand, the attorney may think that you have done something which is actionable and really does wish to pursue a lawsuit against you. You just never know. I have found that the longer the letter from the attorney, the less likely anything will come of the situation. Attorneys are trained to write good, scary demand letters, as this often is successful in achieving the desired results.

Contents of the letter

The letter you receive from an attorney contains a demand or threat based upon the information as the tenant has presented it to that attorney. We must remember that many attorneys will take the information they get from their client, believe it wholeheartedly and act accordingly. This is the job of an attorney. People lie, distort the truth and leave out a lot of information when hiring an attorney, so this is why the content of the letter may have wild, unsubstantiated allegations against you. Often there is a 10 day deadline given to you to refund some money, with the threat that a lawsuit will ensue if you do not act pursuant to the demand. The attorney may accuse you of fraud, theft or incompetence, and this gets you angry, as you know you did the right thing, and the letter is just a pack of lies. Now, take a deep breath, and do not do anything yet.

Should you respond to the attorney?

Attorneys do not like to be ignored. For one, it is an ego thing, and at the same time the attorney's client is calling every day to see if you have responded. We recommend that you never ignore an attorney. Now, how should you respond? Many property managers run to the computer and write a detailed, angry letter back to the attorney, responding to each and every allegation of the attorney, often giving the attorney copies of what is demanded plus other items that the property manager is using to convince the attorney that his client is wrong or a liar. This is exactly what the attorney wants, and you are falling right into the trap. By responding, you are showing the attorney the strengths AND weaknesses of your case. The attorney now has you just where he or she wants you and will eat you alive. It is rare that an individual is a match for a tenant who has an attorney. By responding, you are giving the attorney evidence which can and will be used against you later in a court of law. What you think you did right can be twisted around by the attorney. What you did wrong or did not do at all will be exploited. The attorney will know your weaknesses and capitalize upon them. If there are enough weaknesses in your case, this may cause the attorney to decide to file a lawsuit, knowing that if the suit is successful, there might be a pot of gold at the end of the rainbow called an "attorney's fee award" waiting for that attorney. You NEVER have to provide an attorney with copies of documents, unless it is a demand made pursuant to active litigation, and even then, there are exceptions and protections afforded to you. Now how do we handle this? I have told you not to ignore the attorney, but also have shown the extreme dangers in responding.

Here is the easy solution.

1. Write a letter to the attorney immediately stating the following and nothing more. "We are in receipt of your letter concerning your client John Smith, and my attorney Bob Jones at 555-1212 will be contacting you shortly. Please deal directly with my attorney."

This accomplishes two things. First it lets the attorney know that you have an attorney handling all your matters, and second it now prevents this attorney from calling you up on the phone. The Florida Bar rules prohibit an attorney from contacting another person who he or she knows is represented by counsel. If this attorney then calls you up on the phone, a violation of the Bar rules will have occurred. Many young, inexperienced attorneys will ignore or not be aware of the importance of this Bar rule.

OR

2. Send the information to your attorney immediately, giving your attorney your side of the story, and have your attorney simply write a response letter. The more information you give your attorney, including all the documents relating to the dispute, a truthful synopsis of what occurred, your settlement offer or authority for settlement, the easier it will be for your attorney to write a quick letter to the tenant's attorney or assist you in settling the matter, so it does not grow into a litigation situation.

What if you completely ignore the tenant's attorney?

Completely ignoring a demand letter from an attorney makes the attorney think that you are incompetent and that you will possibly ignore a lawsuit as well, if it is filed against you. It doesn't make you look tough or strong. Refusing certified mail from an attorney is not good either, and no judge appreciates it when a party refuses mail. Completely ignoring a tenant's attorney greatly increases the risk that the next communication you get from the attorney will be a lawsuit.

The attorney letter trick exposed

Sometimes an attorney will make a statement or imply an agreement and then go on to say, "We will assume that you have agreed to this unless we hear otherwise from you within 5 days in writing." This is a little trick to get you to "agree" to an offer or an action by the tenant by you NOT responding. Did the fact that you failed to respond mean that you agreed? Not necessarily, but your failure to respond will be used by the attorney to convince a judge that you in fact "agreed".

So your attorney has responded, now what?

The majority of the time, if your attorney responds in a timely matter to the tenant's attorney, the case simply dies a natural death, and you never hear another thing about the matter again. The tenant's attorney wrote the letter for the client, received your attorney's letter and then dropped the bomb on the tenant that if the matter goes any further, the attorney will want a retainer, or possibly your attorney's response letter convinced the tenant's attorney that the tenant has a weak case. In the vast majority of other cases, the two attorneys go back and forth and the matter gets settled, usually to the satisfaction of all parties involved. Most landlord/tenant disputes are not about large sums of money but hurt feelings, a few hundred dollars or just a couple angry people. Many cases that end up in court could have been settled prior. A large percentage of cases are settled "on the courthouse steps", so why make money for your attorneys? A smart property manger knows that going to court is always the least desirable option, understands the attorney's fee risk and helps their attorney settle the matter. An experienced property manager will also try to convince a reluctant property owner who is often out of state that settlement is the best way to go.

It would be difficult to find a property manager who has not served Three Day Notices for non-payment of rent and Seven Day Notices to Cure for tenant noncompliances. The tenants usually pay the rent, or in the case of noncompliances, they cure the noncompliance or move right out. Most property managers are well versed in notice serving and have filed evictions on their tenants when the notices just did not do the trick. Many property managers have even experienced going to court on contested non-payment of rent cases. The result? Usually the tenant is evicted, or the case gets settled. Now ask yourself: How many times have I actually gone to court on a contested eviction on a Seven Day lease noncompliance case and had to prove the noncompliance in court? Very few property managers have experienced going to court on contested noncompliance cases and do not realize how hard these cases can be to win. Proper preparation, hard core proof and good convincing witnesses are necessary to win these cases. Are you ready to prove your case to a judge who will really put YOU to the test?

Winning and Losing the Seven Day Noncompliance case

Since most property managers have never experienced going to court on a contested noncompliance case, you will just have to trust us here. We have handled many of these cases, and we have LOST many of these cases. You don't want to lose a case in court. Besides the pain of losing with the tenant now getting to stay and smirk at you for the next six months, if that tenant retained an attorney, you may be on the hook for attorney's fees. Recently two cases we lost resulted in around $2000.00 each having to be paid to the tenant's attorney, for which the property manager thought she had a great case, really wanted to get the tenant out and insisted that the eviction be filed against our advice.

Is your attorney a wimp?

Once of the most frustrating things for the landlord's attorney is to try to convince a property manager who thinks he has a great case that there is a high chance of losing in court. The property manager needs to understand that the landlord's attorney may make his or her living filing your evictions and has every incentive in the world to file your eviction, BUT also wants to protect you from losing the case and having to suffer the consequences. The landlord's attorney has probably filed hundreds, thousands or in our case, tens of thousands of evictions, winning the vast majority of the evictions, as most are for non-payment of rent. Trust the experience of your attorney. Your attorney is on your side, feels your frustration, but is also under the legal and ethical duty to warn you of the dangers of losing and guide you in the right approach. Your attorney is not a wimp or lazy. Your attorney has the experience to know what is best for you. There have been situations where an unsuccessful Seven Day Noncompliance case has not only been lost in court, but took on a new life when a Fair Housing Discrimination case was filed against the property later!

The judicial attitude in the Seven Day Noncompliance case

When you go to court on a typical residential tenant eviction, the tenant usually did not pay the rent, did not properly withhold rent or did not post all the money into the court registry. Judges handle thousands of these cases each year, and some of them have no tolerance for listening to the tenant's sad story of losing a job, car breaking down or the myriad other excuses. Most cases for non-payment of rent result in an eviction.

Now we come to the Seven Day Noncompliance eviction. This is far different than the non-payment case. Here the property manager has accused the tenant of doing or not doing something that is spelled out in the lease or Florida Law. Notices have been given, these notices must be correct, and now the property manager is put to the test and has to prove the case. Judges do not take these cases lightly and really make the property manager prove the case. Often it seems that the judge is far more sympathetic to the tenant, but really it is a proof issue. It is much easier to prove someone has not paid the rent. They either paid it or they did not, and the burden of proof of prior payment is on the tenant. Proving a noncompliance is the landlord's burden and can be a real challenge.

How do we prove the case in court?

Before we even get to court, the property manager must have prepared and served a PROPER Seven Day Notice, be it a Seven Day Notice of Termination or a Seven Day Notice to Cure followed by the Seven Day Notice of Termination. We strongly recommend that you have your attorney prepare these notices for you. We prepare all our clients' Seven Day Notices for no charge, as we really want them done the way we feel they would be most effective and successful in court.

Now, proving the noncompliances can be a real challenge. We need witnesses, documentation, solid proof, logs, file notes, notices, photos, videotapes, police reports, incident reports, and anything else to help the judge believe that the noncompliance is occurring or has occurred.

Does the Noncompliance have to be severe?

Remember that you are asking a judge to kick someone out of their home. Often there are children involved. The noncompliance needs to be substantial, and you need to trust your attorney to help you decide if it is indeed substantial enough to sway a judge your way. It is ironic how when the market is strong and the property has a waiting list, there seems to be so many more tenants in noncompliance. Hmm, a coincidence?

I have petitions and statements signed by 5 residents!

Nice try, but no cigar. The complainers or witnesses MUST appear in court. This even includes the police officer who responded and wrote up the police report. How do we get them into court? We need to subpoena them, but often they just do not show up for court, and the case falls apart. We have had situations where many tenants have complained about one tenant. Every day they wrote letters and called the office complaining about the noise that the tenant was creating. We end up in court, one complaining tenant shows up and tells the judge that the problem has stopped. Bang. We lose the case. Never be certain that the complaining tenants will actually come to court. Often they are afraid, were threatened or get cold feet at the last minute and do not want to be involved.

What does your attorney need to win these cases?

The proof that you need is wholly dependent on the type of noncompliance involved and is extremely case specific. Let's go through some of the most common noncompliances and list some of the evidence we may need to potentially prove our case in court.

Unauthorized Occupants - Seems easy, you see the person there all the time. When you go to court, the tenant says they are just visiting. You need to now prove that they are no visiting. Proof you may need includes and is not limited to:

1. Multiple photos of the unauthorized occupant's car morning and night with date and time records; 2. An admission by the tenant to you that the unauthorized person is living there; 3. Proof that the unauthorized person is receiving mail; 4. Unannounced visits to the unit with a witness; 5. Police report that the unauthorized person gives the address as his or her address; 6. FDLE sexual predator or offender registration with your address listed; 7 .A lease clause that is clear as to how long someone can stay.

Unauthorized Pets - First you need to make sure the prior manager did not authorize the pet or the pet has not been there for a long time, which can cause a waiver.

1. Pictures of the pet, date and time stamped; 2. Witnesses who have seen the pet; 3. Pictures of the tenant walking the pet; 4. Maintenance who will testify to pet food or pet bowls in the unit; 5. Recording of barking when you go to the door, if a dog that is; 6. Picture of the pet damage; 7. Picture of the pet coming to the window; 8. Hard proof after the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

Noise Disturbances - These case are tough, as usually there is no police involvement, and the complaints come from other tenants who may just be angry at each other, or a group of tenants have it out for one tenant. Are we really dealing with a tenant versus tenant war?

1. Records of multiple tenant complaints; 2. Police reports; 3. Tenant witnesses who will appear in court; 4. Witnesses who are employees of the landlord; 5. Multiple provable disturbances; 6. Courtesy officer who will appear in court.

Unsanitary Unit - Is the unit really unsanitary or just an extremely cluttered mess? Many times we deal with accumulators who throw nothing out and have piles of newspapers, clothes and books throughout a rental unit, with only a small path in which to walk. Is this unsanitary or just strange?

1. Pictures of unit; 2. Pictures of kitchen, bath and anything "unsanitary"; 3. Pictures of exposed and rotting food; 4. Pest control personnel who will come to court; 5. Infestation of vermin; 6. Strong odor; 7. Maintenance staff that must come to court; 8. Other staff who will come to court.

Emotions and the Seven Day Noncompliance case

We see situations where property managers get angry at a tenant and "just want them out". This is the worst possible situation because the anger and frustration of the property manager is now running the show. That unauthorized occupant who was not a problem for three months all of a sudden becomes a big problem, because he came into your office and was belligerent. That person with the unauthorized pet was left alone until it defecated in front of the office or got loose and scared another tenant. Never let your emotions dictate your actions when deciding to terminate a tenant. Follow the law, get your attorney involved early, and be cautious.

Your tenant has signed a Pet Addendum, but now you received a letter from the insurance company stating that no pets of a particular breed are allowed. Possibly the tenant's pet was aggressive or gets loose too often. Maybe you noticed carpet damage and a foul odor during a recent inspection. Can you just ask the tenant to remove the pet? Will you end up in court having to prove what the tenant's pet did? Will there be a dispute over the breed of the pet? Unless we are dealing with service animals, the fact that a tenant is allowed to have a pet on the premises should be a privilege and not a right. This privilege is granted to the tenant through the lease agreement and particularly the Pet Agreement or Pet Addendum. Problems will arise during a tenancy which may not easily be dealt with due to defects in the Pet Agreement or Pet Addendum, hereinafter the "Agreement."

The typical "Agreement"

The typical Agreement deals with the charges for the pet, number of pets, weight limits, breed, conduct of the pets, and damage due to pets. Most Agreements are clear that a pet must be kept on a leash at all times, use certain areas to do their business, should not disturb neighbors, and limitations are imposed on offspring.

The Pet Problems

Breed - While many Agreements prohibit certain breeds, somehow pets slip though the cracks, because the property manager does not get a letter from a vet as to the breed, the breed is a strange name or the pet is of a breed that is mixed with one of the prohibited breeds. Now we have a dispute as to whether the dog is a prohibited breed. A diligent property manager confirms the breed before taking the pet fee or pet deposit.

Weight - Often the dog's weight is not checked or increases dramatically over time and now is in violation of the weight limit five months into the tenancy. What is the tenant supposed to do, put the dog on a diet?

Aggressive behavior - Many dogs appear to be aggressive or exhibit what we call aggressive behavior. This is extremely subjective, as a dog lover or owner may consider the dog to be affectionate, while someone else may be in fear of her life just upon seeing the dog. How do we gauge or define what aggressive behavior really may be?

Creating unsanitary conditions - Many tenants are just plain lazy and refuse to use the designated areas for the pets to defecate and urinate, or fail to clean up after their pet. Are we going to follow the tenant every time they walk their dog and take a video?

Damage to the premises - Pets can and often do damage carpeting and walls in a short period of time. You could serve a tenant a Seven Day Notice of Noncompliance with Opportunity to Cure for the damage, but is the tenant going to replace the carpet? If they do, will the damage cease?

Barking - Many pets behave like a charm when their owners are home, but the minute the owners leave, howl and bark all day and night. The tenant denies this profusely as they never hear this happening. Are you going to set up recording equipment?

Fact Issues

All the aforementioned problems with pets are factual issues. Factual issues can and are disputed in COURT. In order to win in court, you must prove that the Agreement is violated and present the "facts" which will be disputed in court. Tenants who are asked to remove their pet are not apt to just say OK and will often fight you in court.

A privilege and not a right

We feel that a tenant being able to have a pet on the premises is a privilege and not a right. This privilege should be a revocable one at your sole discretion. However, if your Agreement does not clearly spell this out, you will have a major problem getting a tenant to either remove the pet or vacate the premises. By using the following wording, you will have a better chance of being successful in either getting the tenant to remove the pet, or if this does not occur, evicting the tenant and their pet from the premises. As always, before you serve a Seven Day Notice to Cure to the tenant, we recommend that you call your attorney for the proper wording.

SAMPLE LANGUAGE FOR YOUR PET AGREEMENT OR PET ADDENDUM

Tenant(s) agree that approval, denial, or continuing permission to keep a pet or pets on the premises is at the sole discretion of owner or agent. Landlord, owner or agent reserves the right to withdraw consent at any time by giving the Tenant(s) 7 days written notice to remove pet(s) from the premises for any reason at all including but not limited to noise, barking, biting, odor, damage by pet, unsanitary conditions caused by pets, breed of pet, disturbances, or threatening behavior towards other Tenant(s), employee(s) of owner or agent or any person(s). In the event the pet(s) are not removed after notice, Tenant(s) will be subject to eviction and shall be in breach of the lease and this agreement. Tenant(s) agree that keeping a pet on the premises is a fully revocable privilege and not a right.

A Motion to Stay a Writ of Possession is a document that a tenant files with the court which has the result of "staying" or "stopping" an eviction action after a final judgment for the landlord has already been entered. The Motion to Stay a Writ of Possession is one of the less commonly used legal techniques by tenants to stall or stop an eviction action, but it does occur enough to warrant a better understanding of the process by a landlord. It is probably the least understood and more baffling Motions, so we will start with a brief overview of the eviction process and see where the Motion fits in.

The Eviction Process in a Nutshell

For the purposes of this article, we will explain the eviction process in its most simplest of forms and use the Uncontested Residential Eviction Action as our example. In an uncontested eviction, the tenant is served with the eviction summons and complaint either by the sheriff or a process server. The tenant has 5 business days after being served to "fight" the case by filing an answer with the court. In an uncontested case, the tenant does not file anything with the court, and the clerk of court enters a "default" against the tenant. The file then goes to the judge who after a cursory review of the file will sign the "Final Judgment". The Final Judgment states that the eviction is granted in favor of the landlord, and the Final Judgment orders the clerk of court to "issue" a Writ of Possession, which is a document commanding the sheriff of the county to place the landlord in possession of the premises. NOTE: For an in-depth article on the Writ of Possession click here. The sheriff then takes the Writ of Possession, serves it on the person or the door of the premises if the tenant is not home and on the Writ of Possession it states the date and time that the sheriff will be back on the premises to remove the tenant, this usually being 24 to 48 hours from the time the Writ of Possession is served. The removal of the tenant is called the execution of the Writ of Possession. Theoretically, and in most cases, the sheriff comes back on the stated date and time, and the tenant is removed from the premises. The catch is that the tenant is able to file a motion with the court to derail this entire process at any time after the Final Judgment is signed by the judge and before the sheriff actually physically removes the tenant from the premises. This Motion is called a Motion to Stay the Writ of Possession

What is a Motion to Stay the Writ of Possession?

Simply put, the Motion to Stay the Writ of Possession is a document filed with the court asking the judge to "stay" or "stop" the sheriff from executing the Writ of Possession and removing the tenant. It can be a typed or handwritten document filed by the tenant or the tenant's attorney if one is retained. The Motion to Stay the Writ of Possession may state that the tenant paid the rent, the eviction was unfair, the tenant needs more time, the case is defective or just about anything on earth that the tenant can come up with to convince a judge that the eviction should be stopped or make the judge feel sorry for the tenant. If the judge is swayed, the tenant gets their day in court.

How does the Motion to Stay the Writ of Possession affect the process?

Once this Motion is filed with the court, it is immediately sent to the judge, an emergency hold is put on the case, and the judge reviews the Motion and the reasons why the tenant feels they are entitled to having the Writ of Possession stayed. A Motion to Stay a Writ of Possession is taken very seriously by the court system, and the judge will almost immediately review the Motion. If the judge upon reading the Motion feels that there is some real legal basis why the eviction should be "stayed", the judge will grant the Motion without a hearing and set it for a later hearing, or will set an EMERGENCY hearing to have the landlord and the tenant present evidence as to whether or why the Writ of Possession should or should not be stayed. If the judge upon reading the Motion to Stay the Writ of Possession feels it is completely without merit, the judge will enter an Order denying the motion, and the eviction continues on.

The judge Grants the Motion to Stay the Writ of Possession - Now what?

If the judge grants the Motion to Stay the Writ of Possession, the judge enters an Order Staying the Writ of Possession and will set a hearing, which basically gives the tenant a chance to present evidence as if the case were contested and a hearing were set in the beginning stages of the case. If the tenant has failed to post the rent money into the court registry, it is doubtful that the tenant will prevail, but if the tenant can prove that possibly they paid the rent and it was mis-posted by the landlord, or placed a large sum of money into the court registry, even if late, there always is a chance that the tenant can win the action. Your attorney may file a Motion to Lift the Stay of Writ of Possession if the judge grants the tenants Motion to Stay the Writ of Possession.

The judge Denies the Motion to Stay the Writ of Possession - Now what?

If the judge denies the Motion to Stay the Writ of Possession, the case proceeds on without delay just as if nothing happened. If there is a hearing set, and at that hearing the landlord prevails, the judicial assistant or judge will notify the sheriff's department to execute the Writ of Possession. If your attorney has filed a Motion to Lift the Stay of the Writ of Possession, and the case is heard and decided in the landlord's favor again, the judicial assistant or judge will notify the sheriff's department to execute the Writ of Possession.

Sounds confusing doesn't it? Is it all that bad?

The Motion to Stay the Writ of Possession is a bit confusing, as the landlord thinks they have won the case completely, only to be thrown this curveball at the end of the process. Will the case be delayed? Often, but usually by only a few days if the judge grants a hearing to the tenant. In the vast majority of cases when the tenant files a Motion to Stay the Writ of Possession, the judge reads it and denies it right then and there, and not a moment is lost and no hearing occurs. The worst case scenario is that the judge will grant the Motion to Stay the Writ of Possession, a hearing will be set, and the judge will feel your case is defective or there is a good legal basis why the tenant should not be evicted. Remember what Yogi Berra said: "It's not over until it's over".

Is there anything that can be done to prevent the tenant from filing a Motion to Stay a Writ of Possession?

Absolutely nothing. A landlord's best defense though is to make sure the eviction is filed properly, the notice was done with care, the landlord did not take any rent during the eviction action, and the landlord's records are clear and concise.

Traditionally in apartment communities, water is paid for by the property owner and included in the tenant's rental amount. Most apartment communities do not have separate water meters for each unit. Due to the increasing cost of water and technological advances in water flow measuring and resulting lower costs of retrofitting, many apartment communities are hiring companies to sub-meter their units and handle the billing aspects. This cost shifting results in tremendous savings to the owners of the apartment communities, and most likely also results in water conservation overall. The task of sub-metering is not difficult in most buildings but the legalities of getting the tenant to now pay for the water that was once included in their rent presents some challenges.

The Current Tenant Problem

Most leases simply state that water is included in the rent or it is the owner's responsibility to pay water. In cases like this, if an apartment community decides to sub-meter, there is no way possible to make the current tenant under the current lease pay for the water. If it was not in the contract, they are under no legal obligation to pay for water. The only option the landlord has is to non-renew the tenant's lease at the end of the term and offer a new lease with the proper wording in the lease stating that the water is the tenant's responsibility.

A common lease clause that partially solves the problem

A common provision found in many Florida leases states the following :

"¦Unless separately metered, we supply the water and sewer for normal usage. If separately metered, you must pay the water and sewer as additional rent when rent is due. If you do not have separately metered water, we may add separate metering"¦

As you can see from this clause, it would appear that in the event the unit was sub- metered after the tenant moved in, you would be able to now make the tenant pay for the water as additional rent when rent is due. Unfortunately the clause is not very clear, does not cover all scenarios and we know that ambiguity is construed in favor of the tenant.

Suppose you are going to institute a RUBS program?

Ratio Utility Billing Systems (RUBS) is a system whereby the landlord charges water use by a ratio like the square feet of the unit, bedrooms and/or the number of tenants in a unit. This system avoids the retrofitting necessary to sub-meter an apartment building, but has its own problems as well. Many tenants feel this system is unfair, as it could be inaccurate, as some tenants will invariably overpay for usage, while other tenants will underpay as these systems assume constant and equal water usage. Can an apartment community use the sample clause above if they decide to implement a RUBS program? The answer would be no, as that clause only addresses sub-metering. Therefore, if the lease does not address the possible future implementation of a RUBS program, there is no way you can impose it on a current tenant.

A Possible Lease Clause Based Solution

Even if you have no immediate plans to sub-meter an apartment community or institute a RUBS program, we feel that your lease should allow for the possibility at a later time. Water costs may increase dramatically, you may sell the apartment community, or you may just decide that RUBS or sub-metering is the way to go. Without a proper lease clause, your hands are tied.

Currently water and/or sewer is provided by the Landlord and Tenant agrees to use same in a reasonable manner. Tenant agrees that at some time in the future, Landlord may pass this cost on to the Tenant, and Tenant agrees to pay for water and/or sewer each month upon demand with the monthly rental payments as additional rent, as Landlord may decide to sub-meter the apartment or institute a Ratio Utility Billing System whereby Tenant agrees to pay upon demand the cost of water and/or sewer based upon a formula taking into account factors including but not limited to the unit square feet, number of bedrooms and/or the number of tenants. Tenant shall be given 30 days prior written notice by Landlord if Tenant becomes responsible for paying for water and/or sewer.

The Importance of Disclosure

While a clause potentially making a tenant responsible for water at a future time is legal, when the time comes to implement the clause and begin billing the tenant, sparks will fly. There will be cries of unfairness, surprise and alleged verbal promises. If you intend to use such a clause, we recommend that it is clearly pointed out to the tenant or possibly placed in a separate document as an addendum. A water/sewer bill could substantially increase the rental amount, and we recommend that before you sub-meter or implement a RUBS program you check with your attorney on the plan of action and legalities.

If you were to ask a typical landlord if they would ever engage in a prohibited practice, you would most likely get a resounding "of course not". Most landlords realize that self- help evictions are no longer allowed, and doing drastic things like taking off the tenant's door will certainly result in a lawsuit these days. Florida Statutes Section 83.67 clearly lists out the prohibited practices and imposes a penalty of 3 months' rent to the tenant, plus the landlord will have to pay the tenant's attorney's fees in the event an attorney is involved with the case. Many attorneys will readily take a prohibited practices case if it is clear that the landlord is in violation, and the various legal aid organizations have a list of attorneys in private practice who will take these on a referral basis. Surprisingly, many landlords commit prohibited practices intentionally and unintentionally to this day, and are often found in court having to pay significant sums of money to the tenant. It is not relevant that the tenant may not have paid rent for months or is the world's worst tenant. The case will completely hinge on whether or not the landlord committed a prohibited practice. This article will examine Florida Statutes 83.67 and focus on some common prohibited practices that even the most seasoned professional landlord commits without even realizing it.

Interruption of Services

A common problem that arises is when the tenant is supposed to put the electricity in their own name and either does not do so, or the electric service reverts back into the owner's name if the tenant has service and then fails to pay for such service. The latter situation is extremely common in apartment communities where the arrangement with the electric company is to have the electric service on in the apartment community's name unless it is in the tenant's name. Commonly, the landlord discovers that the electric service is in his or her name, and rightly upset, decides to call the electric company, tell the electric company that is was supposed to be in the tenant's name and then tells the electric company to shut off the electric. In single family home rentals, the tenant's failure to put the electric in their own name is usually discovered when the out of state owner receives a huge electric bill and calls the property manager. The actual landlord or the property manager thinks it is then permissible to call the electric company and tell them to shut it off. In the apartment setting, the on-site property manager usually discovers this when the bill comes in. In both cases, it is a prohibited practice to directly or indirectly shut off the electric. Directly would mean that you called the electric company and told them to take it out of your name; indirectly would be to fail to pay for the service if the landlord received a shut off warning. Our office receives calls concerning this issue on a regular basis, and many of our clients either ask if they can have the electricity shut off or have already done so. As you can see, this prohibited practice is alive and well!! Electricity is not the only utility covered under "service". The statute also includes water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration and although not mentioned, the court may interpret cable, satellite or phone as a service. The key to avoiding the problem is to make sure that the services are not on when the tenant moves into the unit and avoid any situation where the services revert to the landlord in the event the tenant fails to pay.

LAW FS 83.67(1) No landlord of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord.

Lockout of the Tenant

Locking out a tenant as a means of self-help eviction was legal a very long time ago. It is legal no more, and most landlords would never do such a thing, so you may think. Suppose you are trying to get the tenant to come to the office to see you. You change the locks and put a note on the door asking the tenant to come to the office. The tenant comes home at 7 pm, the office is closed, and he is locked out. Prohibited practice? You bet. You can never change the locks on a tenant's door to "get the tenant's attention" or for any reason, unless the tenant requests that the locks are changed. Now what about a situation where one tenant asks you to change the locks? You oblige, and a week later the other tenant on the lease comes to you and says he or she can't get in, as her co tenant/roommate changed the locks. Are you required to let this person in? If they are on the lease, you are, and your failure to let them in could result in a prohibited practices charge against you. We recommend that in any case where a tenant wants a lock changed, all the tenants put this in writing on one request form.

LAW FS 83.67(2)A landlord of any dwelling unit governed by this part shall prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks or using any bootlock or similar device

Armed Forces Discrimination

Is it risky to rent to someone in the United Stated Armed Forces? Absolutely. The laws protecting service members have been broadened not only to allow them to break their lease if they go on active duty, but to allow an active duty service member to break a lease to move onto base housing which could be right down the street. The recent law changes have made many landlords hesitant to rent to service members, and some landlords have decided to try to avoid renting to service members at all costs. A few years ago, this was not considered a prohibited practice, but now it is.

LAW FS 83.67(3) No landlord of any dwelling unit governed by this part may discriminate against a member of the United States Armed Forces in offering a dwelling unit for rent or in any of the term of the rental agreement.

Display of Flags

Most leases have clauses which prohibit hanging any items from the premises. Often landlords have to deal with situations where a tenant hangs clothing, banners or flags from their balcony. These could be anything from a sports related flag or banner to a large flag from the tenant's country of origin. A few years ago, the law was specifically changed to make to a prohibited practice to prohibit a tenant from displaying a United States flag on the premises in accordance with the law. There is no exception in the law for landlords of single family homes or condo in condo associations or homeowner's associations. For an in-depth article on the Flag Law click here.

LAW FS 83.67(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.

Abandoned Property and Removal of Items

Removal of Items: As we mentioned previously, most landlords are keenly aware that you cannot remove a tenant's door in a self-help eviction situation. This prohibition also extends to locks, roof, walls and windows. The only exception to this would be for a landlord to remove such items for the purposes of maintenance or repair. Some unscrupulous landlords remove such items under the guise of making a repair on the item and delay the repair so as to influence the tenant to vacate.

Abandoned Property: Abandoned property removal is one of the most common prohibited practices committed by even the best landlords. The usual cases involve those where the landlord thinks the items are abandoned, when in actuality they are not, and the landlord then disposes of the property, only for the tenant to come back and demand the property. The landlord can be charged with a prohibited practice, conversion, civil theft and even criminally. It is crucial that the landlord knows what abandoned property is and has the proper wording clearly in the lease. The lease wording is as follows:

BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY

Even with the proper lease wording, the unit must be "abandoned" before the landlord can dispose of the "abandoned property". Legal abandonment has nothing to do with what our common sense may tell us. Abandonment is defined in the law, and if all the elements of abandonment are not present, the items left behind are not abandoned property. Click here for a full article on Abandonment .

Self-Help and Personal Property

The tenant has junk outside their door, cars parked on the front lawn, bicycle chained to the railing, chairs in the breezeway and a lanai full of everything, including the prohibited gas grill. Code enforcement is citing the property each day. Can the landlord clean up the place and throw out any of these items? They should be able to, but unfortunately the law would most likely consider this a prohibited practice, subjecting the landlord to the 3 month rent penalty, attorney's fees, conversion charges, civil theft charges and possible criminal charges. The landlord's only recourse is to serve the tenant with a proper 7 Day Notice of Non Compliance with Opportunity to Cure and treat this like any other lease and/or law noncompliance.

LAW FS 83.67(5) A landlord of any dwelling unit governed by this part may not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, repair, or replacement; and the landlord may not remove the tenant's personal property from the dwelling unit unless the action is taken after surrender, abandonment, or a lawful eviction. If provided in the rental agreement or a written agreement separate from the rental agreement, upon surrender or abandonment by the tenant, the landlord is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the tenant's personal property; if provided in the rental agreement there must be printed or clearly stamped on such rental agreement a legend in substantially the following form: BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).

What are the Penalties for Committing a Prohibited Practice?

The easy answer as mentioned before is 3 months' rent plus attorney's fee and court costs in the event the tenant decided to hire an attorney. Unfortunately the penalty could be much higher, and potentially one prohibited practice could contain multiple violations and increase the penalty. We dealt with a case where a landlord had shut off the electricity, which in turn shut off the well pump and the result was a 6 month rent penalty plus attorney's fees. We have seen numerous cases of self-help cleaning up of the property where the tenant's property was thrown away resulting in thousands of dollars being paid out to the tenant. The electric shut off by the landlord when he or she realizes the tenant has not put the electric in the tenant's name is a common occurrence. Prohibited practices are alive and well. Follow the law and exercise caution. Common sense and instinct have absolutely nothing to do with the law.

LAW FS 83.67 (6) A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months' rent, whichever is greater, and costs, including attorney's fees. Subsequent or repeated violations that are not contemporaneous with the initial violation shall be subject to separate awards of damages. (7) A violation of this section constitutes irreparable harm for the purposes of injunctive relief. (8) The remedies provided by this section are not exclusive and do not preclude the tenant from pursuing any other remedy at law or equity which the tenant may have. The remedies provided by this section shall also apply to a service member prospective tenant who has been discriminated against under subsection (3).