Missing the Obvious
By Michael Geo. F. Davis, Attorney at Law
At the outset I want to make a few points. Most leases have various clauses designed to protect the landlord when he contacts the resident. The clauses allow the landlord multiple ways to contact the residents, indicate whom he can contact if there is more than one resident, etc. In any given notice required by Florida law, if the statute dictates the method to contact the tenant, the statute is controlling over the lease. Further, since the purpose of some notices is to warn the resident that the failure to comply with the notice will result in the loss of her home, the judges often strictly interpret the statutes. Very little deviation, if any, is permitted. Finally, the court system's resources -judges, staff, equipment - are increasingly strained to cope with the growing case loads. The fact that you have successfully filed notices, which your attorney feels are marginal, may mean nothing more than your cases have been hidden in the volume of cases flowing through the system. It is risky to trust your eviction to luck.
Now we turn our attention to missing the obvious on 3-Day, 7-Day and Nonrenewal Notices.
All tenants should be named
Names - all adult tenants should be named. This is obvious, universal, fail-safe advice. Just as obvious is that the tenant's name is both his first and last names, not just his last name, i.e., "Mr. LastName". If you want to know who "all the tenants" are, check to see who signed the lease. Two bad notices with one tenant named on each are not a substitute for one good notice with all the names. Spell the names correctly on the notice.
There are a few counties that permit some notices to name only one tenant in multiple tenant leases. Some counties require that some notices add a catch-all phrase such as "and all other occupants" to the names, if only one tenant is named in multiple tenant leases. Before deviating from the safe harbor of naming all tenants, you should consult with your eviction attorney. It is foolish for you to guess or base your notices on your experience in another county. Even if one name sufficed in the past in a county, there is the risk that a new judge or visiting judge may decide that strict statutory compliance requires all tenants to be named.
Include the full address.
Address - include the full address under the tenant name(s). The statutes require it. The full street name includes the right directional (north, south, east, west) and the right ending (court, road, lane, etc.). To miss this obvious point is to obtain a judgment and writ, only to find that the deputy will refuse to serve the writ because the address is wrong.
The statute provides that the county should be listed on the notice. While most judges will overlook omitting the county, do you want to be the landlord who discovers the hard way that some judges are meticulous and require strict compliance?
Despite the obvious, landlords will argue that it is unnecessary to include the complete address, because both the landlord and the tenant know where the rental is located, because the landlord didn't mail the notice so the address wasn't needed, because the landlord included only the apartment complex name under the tenant name and there is only one "XYZ Apartments", etc. All are fine arguments, but they are legally insufficient.
Date the day that you are serving.
Date - date the notice the day that you are serving the notice. Watch out for the word processing software auto-entering the date. It can be confusing to both you and the tenant to have different dates for preparation of the notice and for the delivery of the notice. Worse, since it is the delivery date that begins the time period for compliance, counting from a notice date which is different from the delivery date will often result in an invalid notice.
Include your name, address and telephone number
Landlord's or agent's name, address and telephone number - print these at the end of the body of the notice. Your firm belief that the tenant already knows this information is not a good defense to failing to comply with the statute. If the landlord's or agent's address has changed from the one listed on the lease, follow the notice of new address procedure in the lease. Although it is obvious that the new address is on the notice, there may not be a legally sufficient notification of a change of address.
Complete the certificate of service completely
Certificate of service - complete it correctly and thoroughly. It is not obvious to a judge that the delivery date is a typo. If it's wrong, it's wrong. Just because the date is on the top of the notice does not mean the judge will assume that you served it the day it is dated. Your signature on the body of the notice does not substitute for your signature on the certificate. If the date or signature is missing, the notice is flawed.
Altering a notice
Never alter a notice after you have delivered it, even if it is an obvious typo. If it is later used in an eviction, it is a misrepresentation to the judge that the notice submitted to the court is the same as the one given to the tenant.
3-Day demand date counted correctly
3-Day demand date - the days are correctly counted. Do not include the day of delivery as one of the three days. Did you remember the holidays this month? If you were going to hand deliver the 3-Day Notice, but mailed it instead, the demand day is wrong, unless five days were added for mailing. If you printed it out yesterday, but got busy and did not deliver it until today, the expiration date will often be short, making the notice invalid.
3-Day demand amount is only rent
3-Day demand amount - rent, rent and only rent. The 3-Day Notice says "the sum of _____ FOR RENT", so it's obvious that you can include only rent and amounts that are defined as additional rent under the written lease. Before you complete the 3-Day Notice check the file. Is there some justification to consider late charges, utility charges, pest control charges and anything else included in the 3-Day Notice as "additional rent"? If the charge is created under the utility addendum, did the tenant sign the addendum? Is it in the file?
This is so obvious that I almost did not include it. Did you add the amounts for the 3-Day correctly? Checking your addition will not hurt.
3-Day late charges
3-Day late charges - calculate as of the notice date. Assuming that late charges are "additional rent", they cannot be included unless the rent is late as of the delivery date of the Notice (not as of the expiration date). If there are daily late charges, then calculate them through the delivery date of the Notice (not through the expiration date).
Our law firm prepares 7-Day Notices, both to Cure and to Terminate, for our clients; there's no reason to miss the obvious if you use our free 7-Day Notice preparation service.
Non-renewal notice - adequate notice of non-renewal is required. If the lease requires X days' notification to the tenant of non-renewal, then "almost X" is not enough. If you mailed the Non-renewal Notice, then you were required to add five days to the notification time. The fact that the tenant obviously already knew of the non-renewal does not relieve you of the obligation to comply with the lease and the statutes. If the date is an obvious typo, it is still wrong.
Missing the obvious can hurt you. Do not assume that everybody will know what you mean. Take time to think, and review your notice before you send it. There are enough factors that you cannot control in an eviction. Missing the obvious is something that you can control. Why make the process any harder than it has to be?
(Back to Top)
Responding Properly to the Tenant
by Harry A. Heist, Attorney at Law
"Anything you say (or write) can and will be used against you in a court of law". You have heard the saying, and it applies ever so much in property management. How you respond to a tenant can make a big difference in the outcome of a dispute. Our natural tendency to defend ourselves, explain ourselves, apologize or get into a fight when falsely accused, can make a small matter big in no time and create a damaging paper trail. Paper trails are excellent, but we must exercise care in what we write, what we say and what we email. If the burden of proof is on the tenant in a particular dispute, there is no reason to give them the "proof "they can possibly use to make their case. This by no means indicates you should lie in court to get out of a situation, but if the tenant has the burden of proof with regard to some issue, sometimes it is better to stand by and force them to prove you are in the wrong. The more you write, say or email, the more you may have to explain what you meant.
We are all taught that a prompt, sincere apology is the right thing to do in life. In property management, an apology takes on a completely different meaning. Your saying, "I'm sorry about the flood in your apartment," means, "The apartment manager admitted fault and now owes me money". The truth of the matter is that the flood may have been caused by the upstairs neighbor, is not the fault of the apartment community, and that the tenants are not going to be reimbursed a dime for their damaged items. Why apologize for something that is not your fault?
"We are doing the best we can"
You may be waiting for a particular part, your maintenance tech is out sick or just got fired, and you are not able to promptly repair something in the unit or possibly get the access gate repaired that seems to break each week. Saying that you are doing the "best you can" is interpreted as, "The property manager is not doing as good as someone else may be able to do". This means that your "best" is simply not enough for them, and the tenant latches onto the statement as an admission of weakness. Saying, "We have rush ordered the part, are handling the issue as a top priority, and will be in the unit immediately when we receive the part" is a better approach.
"The leasing agent had no authority to tell you that"
The desperate leasing agent "possibly" tells a prospective tenant that the carpeting is set to be replaced in a month. The tenant moves in expecting full well that they will be getting new carpeting, and the current carpeting is really bad. When the carpeting is not installed, the tenant begins to demand that they get the new carpeting. Your leasing agent has since been fired, or your owner just informed you that she is filing bankruptcy and that no non-essential improvements will be been made. You then try to tell the tenant that the leasing agent had no authority to make that promise. The problem is that the leasing agent DID have what is known in law as "apparent" authority to BIND the principal, the management company or the owner of the property to install new carpeting. By telling the tenant the leasing agent had "no authority", you may be admitting the leasing agent indeed did make the promise, when possibly the leasing agent did not make such a promise; with the former leasing agent no longer around, it is a big mistake to acknowledge statements you do not know were made. If the tenant is not going to get new carpeting and you know for a fact the leasing agent did not promise the carpeting, the proper response would be, "New carpeting is not scheduled to be installed in your unit, and there is nothing in the lease to indicate that your unit was to get new carpeting."
Responding to the Security Deposit Dispute
The classic mistake is to respond to a tenant's security deposit dispute by giving them (or worse yet, their attorney) a long drawn out explanation for what they were charged, why, and for what they were not charged, and how you were giving them a break on things for which you could have charged them. In the first place, you are NOT required by law to respond to a tenant's security deposit dispute, and secondly, if you feel your charges were legitimate, have good documentation including your inspection reports and photos, and followed all the correct procedures required by law, you can simply respond to the former tenant in writing with a short statement such as, "We have reviewed your file, the inspection reports, photos and documentation, and all charges stand". If you do have problems with your proof that the former tenant owes you money, you don't have pictures or have some weakness in the documentation, you may want to call your attorney and see if you can settle.
Dealing with dueling tenants
Have you ever seen two units at war with each other, or had complaints by one against the other for noise? Sometimes you want to take sides with one or the other. You receive incessant complaints by one tenant, saying the other is making too much noise. You feel that the complaints are unwarranted, or the complainer is hearing things or making a big deal about nothing. Your response may be, "There is nothing we can do, as we have not witnessed the noise", but rather should be, "As soon as you hear the excessive noise, call us immediately so we can listen ourselves."
You should have gotten "Renter's Insurance"
This is a classic response the manager makes to the tenant when the tenant comes in demanding $250 for the dry cleaning bill due to the pipe break in the ceiling above their closet. The manager feels that the apartment community is not liable for the damages, BUT are they? Just because the lease states that you are not responsible for damages to a tenant's personal property, a judge may find that you are and ignore the clause in your lease. The next time a tenant complains about damages to their personal property, tell them, "Sit down and fill out this Incident Report, and we will take it to the regional manager or owner". Telling the tenant right off the bat that they should have purchased renter's insurance is a sure way to see a $250 demand magically inflate to a $2500 demand when the infuriated tenant goes to an attorney.
Implying you will give the tenant an extension to pay rent
Your tenant comes into the office and tells the leasing agent that he will be in next Monday with the rent check. However, the rent is due today. Your leasing agent then simply says, "OK". Four days later you file an eviction, and the tenant defends the case, saying he was "told" by the leasing agent that it would be okay to pay the rent on the Monday. Could this be a good defense? It certainly complicates matters. Always tell your employees to NEVER discuss extensions or rent payment arrangements with the tenant, as an inference can be drawn that could end with you losing an eviction.
Telling a tenant to "pay what they can when they can".
In these troubled times, partial payments are being accepted at a much higher rate. If you are not specific or have written policies that you follow when accepting partial payments, you could end up with a tenant continually bringing in small rent payments. This can create a waiver situation and cause you to lose an eviction. If you decide to take partial payments, you will have to live with the potential consequences.
Telling a tenant the repair will be made when the rent is paid
The tenant is delinquent and owes 2 months' rent. He calls you up demanding that his a/c be fixed. Your response? "Pay the rent, and then we will fix the a/c". This response will almost assuredly give the tenant a defense to an eviction action, and frequently will turn the judge against the owner in the process. The fact that the tenant owes you money has NOTHING to do with your responsibility to maintain the premises.
Telling the tenant the owner is in financial distress
The property owner may be in financial distress, and this is why certain things just are not being maintained properly; a/c units are being fixed rather than replaced, or cosmetic things are not being handled like before. It may be true that the owner is in financial distress, BUT the tenant does not need to have this information. When the tenant asks you why something is being repaired rather than replaced, never respond by revealing the owner's financial condition.
Telling the tenant why they are being non-renewed
You have no legal duty in conventional housing to tell a tenant why he is being non-renewed. If you decide to discuss your decision, it will just result in the tenant trying to defend himself or argue with you about the facts. A good response would be, "Just like you have the ability to non-renew your lease at the end of the lease term, we also have the ability to nonrenew your lease at the end of the lease term."
There are too many situations to describe when a tenant will tell you something, and you will respond. It is what we do; it is human nature. Try as hard as you can to avoid the sudden or improper response. Hold off on an answer or response, be it verbal or written. Get to the phone or computer immediately, and ask your attorney how you should respond, and what you should say in the response.
(Back to Top)
COA/HOA and Service/Amenity removals
by Harry A. Heist, Attorney at Law
The economic downturn has not only hit the owners of units in condo and homeowner associations, but has hit the associations themselves. Typically, a condo or homeowner association, for the purposes of this article, "association," charges dues and assessments to the members who are the unit owners. These charges are sometimes due monthly, or more commonly, quarterly, and are used to pay for those services or amenities that the particular association has decided are included for the owner. Depending upon the set up, the fee may be fairly low, and just pay for the lawn service, or the fee can be much higher and cover all kinds of amenities, utilities and maintenance of the units, roofs, streetlights, streets or buildings. What the fee covers is all set out in the association documents which govern the duties and responsibilities of the association and the cost to the unit owners. When the unit is rented to a tenant, the tenant does not pay this separately, but it is built into the rental rate, and the unit owner remits the payment of the association dues or assessments when due. Historically, this has been the norm, and for many years, the same amenities, maintenance and utilities were included in the fee. Each year they would invariably rise some, due to inflation, special assessments or general price increases of goods and services. The owner would then raise the rent accordingly and hopefully be able to recoup the additional amount due through increased rent. Most of the units in the association were owned by people who diligently paid their mortgage each month, taxes each year and association dues and assessments.
You probably already know what the problem is, but let's lay it out. Many units are now in or near foreclosure, the taxes are not being paid, the unit owners are walking away from their investment, and the association is not able to collect these dues or assessments. While the units can have liens placed on them by the association, often the bank ends up foreclosing on the units, leaving a shortfall in collections to the association. Now who is going to pay for the guard at the gate, the pool maintenance, the community director, the included cable TV, the included internet, the included water, the lawn cutting, the roof replacements, the exterior of the buildings, the roads within the complex, the insurance for the association, the management company fees and all the other costs usually paid for by the association?
The Tough Decision
Faced with this daunting problem the board of directors of the associations and the unit owners are now being forced to make tough, hard choices. They can either choose to raise the association dues or assessments OR eliminate some services and slash expenses. Possibly the guard at the gate can no longer be afforded, the pool hours may be cut, the unit owners will now be responsible for hiring and paying for their own lawn service, the community center's hours will be cut, the pool will no longer be heated, the bus trips to the mall stopped, the cable TV or internet will no longer be included, and the unit owners now must pay for their own water bill. While unheard of in the past, it is happening all the time out of sheer necessity, and is perfectly legal for the association to take such drastic actions. After all, the unit owners are all in this together and have to take the good with the bad. That is the nature of living in a unit governed by an association. By now, you may or may not be wondering what this may have to do with the rented unit. It has a LOT to do with the rented unit, as the lease agreement never anticipated any of this happening, and the lease agreement is between the tenant and the unit owner. If the owner now has to pay for these formerly included services, how can the cost be passed onto the tenant DURING the tenancy? Can you just inform the tenants that things have changed, and now they have to pay for their owner cable bill or internet is no longer provided?
The lease agreement clearly states what the tenant is receiving and who pays for it. Even beyond the lease, the tenant has an expectation that things will not change for him in terms of services or amenities being provided to them. Traditionally the tenant pays for electricity. This is almost always a given in an annual rental. In submetered or separately/city metered associations, the water is also paid for by the tenant. If the association provided lawn service, this is included in the dues that the owner pays. Quite often, the cable and internet is included as well as part of a master contract the association has with the provider. What happens though, when now you have to tell the tenant that cable and internet is no longer provided by the association, or water is no longer included in the rent? The bottom line is that the tenant does not have to pay for anything unless the lease clearly states this. If the lease states that the tenant is being provided these services or amenities, the tenant must be provided the services and CANNOT be forced to pay. Now the owner is furious. The OWNER must now pay for the cable, the internet, the lawn, the water or anything else that the tenant was not required to pay for in the lease agreement. To complicate matters even worse, a tenant may try to say that she rented the unit because it had a guard at the gate, or because the pool was heated, or because the community center was open late in the evening. Can the tenant break the lease now, as she is now not getting what she expected or bargained for when she made the deal, signed the lease and moved in? Can the owner afford to pay for these services now? It is bad enough that the owner was losing money each month on the rental, as the rent did not come near to covering the insurance, taxes and association dues and assessments. Now the owner is faced with an even greater hit that may put that owner into foreclosure, and the snowball just keeps rolling done the hill.
The Partial Solution
If the above situation occurs to you, most likely you will be the property manager and must tell the owner the bad news that the tenant cannot be forced to pay the additional sums due, AND the owner may have to now provide the internet, cable, water, etc. that was formerly all included in the rent, adding to the monthly expenses of the owner. This is not going to go over well, but has to be done. If the owner refuses to pay the additional sums needed to not be in breach of the lease agreement with the tenant, the tenant may withhold rent or simply walk out on the lease. While there is not much you can do with a current lease, if a lease is renewing or you are going to enter into a new lease with the current or new tenant, there is wording which can be placed in the lease agreement which could address the situation and help to protect the owner's financial interest. Here is some sample wording you may want in your new leases:
In the event a condominium association or homeowner's association is currently providing any services to the unit such as cable, satellite TV, alarm monitoring, internet, water, sewer, trash, guarded security gate or other services, and the association decides these services will no longer be provided, Tenant agrees and understands that Landlord and/or Agent shall not be required to replace, provide or pay for these removed services for Tenant. Tenant may opt to pay for non-essential services, but shall be required to pay for essential services including but not limited to water, sewer and trash, if the association no longer provides these services. The discontinuation of any such services by the association shall not be construed as a prohibited practice by Landlord or Agent, nor shall it constitute a default under the lease. The failure of Tenant to retain and pay for essential services upon notice and demand by the Landlord or Agent shall constitute a material breach of the lease.
Think about whether you may want such a clause in your lease agreement if you feel a COA or HOA may be in financial distress. Knowing the health of the COA or HOA is crucial to avoiding problems later, after the tenant has moved in.
(Back to Top)
Evictions and the Mediation Process
by Brian P. Wolk, Attorney at Law
Often a landlord or property manager will be ordered to attend mediation in an eviction action. Depending on the complexity of the case, the mediation could last anywhere from minutes to hours, although most will take 30-60 minutes to complete. On some occasions the mediation will be scheduled so that a court hearing will take place on the same day in the event that the mediation is unsuccessful. Usually the mediation will take place in a room located in the courthouse. Please keep in mind that if you have been ORDERED to attend the mediation by the judge in your case, then you MUST attend. If you fail to attend, the judge may and likely will enter a default against you. You should NOT treat this as a voluntary process.
The basics of the mediation
Mediation is a process in which a person who does not have an interest in the outcome of the case, the mediator, attempts to promote understanding between the parties to a lawsuit. The ultimate goal of the mediator is for the landlord/property manager and tenant to resolve their differences by reaching a settlement. The mediator has no power to force the parties to settle. In most Florida Counties there is no charge for an eviction-related court ordered mediation, if the County Court has jurisdiction in the case. For cases which are filed in Circuit Court, a fee may apply. Some counties pay their mediators, while others only use volunteers. Most mediators are not landlord/tenant attorneys. In fact, most are not lawyers! Some mediators may have little or no experience in property management matters. You should keep that in mind, so you are not frustrated at the mediation. Being disrespectful towards a mediator can only lead to trouble for you, as you want the mediator to persuade your opponents that their case is weak. If you do not treat the mediator in a dignified manner, they may reverse the tables on you and go out of their way to portray to the other parties that your case is weak.
Why you have been sent to mediation
Judges typically order parties to mediation for a number of reasons. First, if the tenants' answer to your lawsuit raises some issues, then your case may be a candidate for mediation. Next, most judges have a very full schedule of cases and would prefer to avoid placing a trial or hearing on their docket without encouraging the parties to settle their outstanding disputes. Finally, you have been sent to mediation, because they WORK. More often than not, the mediation process does encourage settlement. Some judges may require the tenants to place fully accrued rent money in the court registry as a condition of mediation. Other judges may require that some money be deposited, and some judges may ignore this requirement.
Benefits of the mediation
For many landlords or property managers, the thought of losing a lawsuit can be quite stressful. A loss in court can mean long delays before your problem tenant is removed, wasted legal fees and perhaps responsibility to pay the tenants' attorney's fees. Additional time spent in court also prevents the landlord or property manager from devoting valuable time to his or her property. Energies that could be directed towards other aspects of the real estate business, marketing for example, instead must be used to deal with the problem tenants. It is also comforting to know that if you settle your case, then you have retained greater control of your destiny, eliminating the uncertainty of a judicial determination. Once you leave the outcome of your case in the hands of the judge, then only one thing is almost CERTAIN: there will be a LOSER and a winner. It is usually all or nothing! It is very hard to get inside the mind of a judge, and different judges may give very different rulings when presented with essentially the same set of facts. In fairness to judges, they often do not have the authority to "split the baby" and make all parties feel good. Going to court is always a gamble, even when both the facts and law appear to be in your favor. With the proper attorney representing you, the odds should be even more in your favor, but there is ALWAYS the possibility that you may NOT win your case. Mediation can also be used to effectively keep the landlord or property manager's accounts receivables in line. For example, during a tenant eviction, if the tenants place money in the court registry, you can obtain that money faster by settling, if the tenants agree to turn that money over to you. Waiting until a hearing is scheduled if the mediation is unsuccessful can cause the landlord or property manager to wait weeks until the registry money can be obtained, and this assumes the judge's ultimate ruling will be favorable regarding a disbursement to the landlord. Also, while your tenants who are under eviction are living in the premises, the rental delinquency amount continues to rise, which could cause a very ugly accounts receivables report. If you manage to work things out at mediation such that your tenants agree to move out, then you can turn your attention to finding a paying tenant instead of a waiting for a trial or hearing. Finally, if your mediation is successful, you can have "PEACE OF MIND" that your case has been resolved, and that you can move on! It cannot be overstated how stressful ongoing, contentious litigation can be, and the toll certain cases can take on one's ability to enjoy life.
Action to be taken before the mediation
It is very important to have all of your "ducks in a row" prior to your scheduled mediation. First, make sure that you are very familiar with not only your version of the dispute, but the argument made by your opponent. If it is an eviction matter which is being litigated then the landlord or property manager should bring copies of the payment ledger, lease and Three Day Notice. You should review the tenants' answer or motion sent to the court, so that you can persuade the mediator of your position and downplay the merits of your opponent's position. Also, by reviewing the tenants' response with your attorney, you are less likely to get caught off guard at the mediation by last minute surprises. For example, If the landlord or property manager accidentally accepted payment from the tenants after the eviction complaint was filed in court, and the tenants noted this in their written response to the court, then you would likely be wasting your time at the mediation, since you would probably lose your case under Florida law because of a waiver problem. Maybe you did not accept payment in the above example, but somebody else in your office held on to the check for 3 weeks before sending it back to the tenants placed under eviction. If the information contained within the tenants' answer turns out to be true, you may be willing to compromise more in the mediation process, since the odds of losing at trial have just increased. Make sure you know the exact location of the room number and full address of the location of the mediation. DO NOT BE LATE! Remember, if you do not appear, the judge assigned to your case may treat your non-appearance as a default and DISMISS your case. Be clear on what your settlement authority is.
The mechanics of the mediation
At the start of the mediation, the mediator will introduce himself. The party that filed the lawsuit (the plaintiff) will then be invited to verbally lay out their case. The defendant will then be given a chance to respond. After that, the mediator will likely ask both the property manager and the tenants questions, so that they can determine the strength and weaknesses of the lawsuits. DO NOT INTERRUPT the tenants or mediator when they speak. You will come across as overly emotional, and it is very disrespectful to the mediator and the process. Next, the mediator may want to caucus. This simply means that the mediator will speak in private with each party and attempt to move them closer to settlement. Now you will better understand why being prepared and respectful towards the mediator is vital to your success. It is very often at the caucus stage that the mediator will make their strongest presentation to the tenant as to why the tenant should settle, if the mediator believes that your case is strong. Having the mediator do this has a very profound psychological effect on the tenants. In fact, since the tenants understand that the mediator is unbiased, it can be devastating for them to hear that they will likely lose their case. It is a very useful strategy to utilize the "caucus". If you see that progress is not being made at your mediation, it may be wise to suggest to the mediator that he or she caucus with the tenants, if you sincerely feel that you have a strong case. Another useful strategy to keep in mind, especially if you are in a mediation regarding an eviction, is to remind the tenants that by settling the case prior to a potential final judgment, the tenants can protect their rental history from reflecting a final judgment. Having a final judgment of eviction on their rental history can make it extremely difficult for the tenants to rent elsewhere. If you and the tenants cannot come to a settlement over the amount owed, then another useful tactic is to try and convince the tenants to turn in keys and VACATE, especially, if you can lease the property sooner than later. Finally, if you can reach a settlement, the mediator will have the parties sign a legally binding document, and then the judge may approve the agreement in private, or call the parties into court to verify that they understand the terms of the settlement. If monies are to be paid to you by the tenants as reflected in the agreement, then you should request that the payments be made in money orders or cashier's checks, and the settlement agreement can reflect that condition. The agreement should also state that the landlord or property manager is entitled to a final judgment of eviction should the tenants fail to meet any of their obligations listed in the settlement agreement. One final word: the types of stipulation forms used at mediation can be provided by our firm prior to the mediation date. If the case can be settled at mediation, it can often be settled prior to mediation. This can really cut down on time spent away from the office and additional expenses, when all tenants who signed the lease sign a stipulation in the comfort of your own office, early in the eviction process.
(Back to Top)
Security Deposit Claim Form Preparation Basics
By Michael Geo. F. Davis, Attorney at Law
One of the basic documents used in real property management, whether apartment complex, single family home or condominium, is the Notice of Claim against Security Deposit, referred to in this article as the "Notice". It is called other names such as Statement of Account (SODA) or Move-Out Reconciliation. It ranges from a standard form used by many owners and management companies to a letter individually drafted for each rental. A suggested form is at the end of this article.
The statutory duty
Florida Statutes 83.49(3)(a) states: 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 or her intention to impose a claim on the deposit and the reason for imposing the claim.
When to use the Notice
The landlord only uses the Notice if he is making a claim against the security deposit, other deposits (pet deposit), or any other unused pre-paid amounts (unapplied last month's rent in case of a tenant skip). All of these together will for purposes of this article be referred to as the "deposit". If the landlord is returning the entire deposit, then there is no need to use the Notice. The landlord can simply return the entire deposit by first class mail with a cover letter to the last known address. If the landlord is claiming any part of the deposit, then the landlord must use the Notice. Technically, a good argument can be made that if the only escrow money held by the landlord is last month's rent, then no Notice has to be sent. Nonetheless, we still recommend notifying tenants when any escrow money is retained. If the landlord is returning part of the deposit, we suggest that the landlord send a check for the balance with the Notice, because it provides a certified mail record of the refund check being received (since the Notice must be sent by certified mail), and the check demonstrates to the tenant the landlord is genuine about returning the portion of the deposit not claimed. If the tenant does not get the check with the Notice, then there is a greater chance that he will object to the Notice. One downside to sending the refund check with the initial claim letter occurs when subsequent damages are discovered within the 30-day notice period, and the landlord seeks to send a revised claim letter for a greater amount.
If the landlord is returning all or a part of the deposit, he should return it to the last known address. In the case of multiple tenants, the check should be made payable to all the tenants jointly (A, B and C). In the case of a deceased tenant, the check should be made payable to "The estate of A".
The statute requires that the Notice be sent by certified mail. Use of a return receipt (the green card) is not required, but we have traditionally advised landlords to obtain a return receipt. Since landlords now have the ability to track receipt of the Notice online, this position can be reconsidered. However, the green card is powerful evidence in court when the tenant denies receiving notice. There is an exception to the rule requiring that you send the Notice. We recommend that you not rely upon this exception, unless you have forgotten to send the Notice within 30 days and are now forced to see if you fit within the exception. See our article entitled Forgetting to Send the Security Deposit Claim.
The landlord may not charge the tenant for the cost of the certified mail. It is a duty imposed on the landlord by the statute and is not chargeable to the tenant.
Last known address
The Notice must be addressed to all the tenants. It must be sent to the last known address. If no forwarding address is given, then the "last known address" is the rental, and it is sent to the rental. If the lease contains an address for notice to the tenant, then that is the address to use, unless there is a later forwarding address. In the case of multiple tenants who may give multiple forwarding addresses, the notice goes to each of the forwarding addresses. If one of the multiple tenants gave no forwarding address, that tenant's Notice goes to the rental address. If multiple tenants cannot agree in writing to the forwarding address and a check is being sent to them, the landlord should send the check to the last agreed address, probably the rental address or the tenant notice address in the lease, with copies of the check and the Notice to the tenant's individual forwarding addresses.
FS 83.49(3)(a) states: If the landlord fails to give the required notice within the 30-day period, he or she forfeits the right to impose a claim upon the security deposit. Whatever the date on the Notice, the postmark date is conclusive. If the postmark is not within 30 days of vacating, then the Notice is late. The courts accept no excuses. For more information on timing, see our article entitled Security Deposit Claim and Refund Timing. Note that the failure to timely comply with the statute only bars claiming the deposit. It does not release the tenant from his financial obligation to pay the damages. The landlord must return the deposit, but the tenant can be sent to collections or sued for the damages.
Required statutory language
FS 83.49(3)(a) states: 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) .
Judges are familiar with this wording. While the statute permits some wording changes by only requiring a "substantially" similar statement, you are advised to consult with your attorney before making changes. As you can see, the above wording contains a provision that the landlord's address be included in the Notice. This is the complete landlord's (or agent's) address, where any tenant's objection should be sent, including P.O. Box/street, city, state and zip.
Listing the damages
The Notice only deals with the deposit. It is not required by law to be the complete listing of all the damages but it is highly recommended. Confusion can be avoided if the Notice contains a statement to the effect that the Notice does not waive or limit any of the landlord's rights to damages or amounts due, which may exceed the security deposit or the amounts listed on the Notice. The landlord may later send the tenant a statement of additional amounts due as a result of further damages found or incurred. It is best to send a statement and not a second Notice form, as sending a second Notice may unnecessarily lead the tenant to think that the landlord was required to send the second Notice within 30 days also.
As used in this article "damages" means physical damages to the premises, cleaning charges, unpaid rent or other accrued charges, and any other amounts charged to the tenant. It is good practice to list all known damages at the time the Notice is sent. If the damages exceed the deposit, the tenant will have a clearer idea of the true status of the account.
We advise against accelerating rent owed through the lease expiration date. This is not a right created by Florida Statute 83.595, the statutory section outlining a landlord's collection rights. The disclaimer on the Notice indicating that amounts not listed are not waived should eliminate any doubt that future rents will later become a valid, additional claim if the landlord is unable to relet the premises prior to the lease expiration date.
For more information on what the tenant owes see our articles entitled The Security Deposit Claim and What the Tenant Owes and Carpet Damage.
The purpose of the statute is to give notice to the tenant of the disposition of his deposit. To effectuate that purpose, the courts require that the Notice contain sufficient detail to apprise a reasonable person such that he could make an informed decision as to objecting to a damage item claimed or the charge for that damage. A landlord should ask the question, "If this Notice is given to a judge, will he be able to ascertain what was damaged and how much it cost?"
The following represent bad practice claims: claiming the deposit without listing any damages; listing the damages without amounts; lump-sum damages, such as "rent, damages and cleaning: $900.00"; and summary listings, such as a long paragraph of the individual itemized damages followed by a total amount. If you are considering referencing an automatic deposit forfeiture on the Notice, please first review our article entitled Forfeiture of the Security Deposit.
The Notice can refer to another attached or enclosed list that itemizes the damages and amounts, such as a move-out reconciliation or a final inspection form.
All too often the math is wrong. Check and re-check your math. Most importantly, is the balance owed the landlord or the refund to the tenant correct?
An incorrect Notice
If you find that you have made a mistake on the Notice, see our article entitled Revising the Security Deposit Claim.
FS 83.49(3)(b) states: 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 or her 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.
The tenant has 15 days from receipt of the Notice within which to object to the Notice. Prudent landlords wait 20 days, adding another 5 days in case the tenant mails his objection on the last day. Since the Notice is sent certified, the landlord can track it on-line at the post office website (www.usps.com\). The landlord can see when the certified mail is delivered. If it remains undelivered, it will be returned to the landlord, who has fulfilled his statutory duty regardless that the mail has been returned. For more information on the tenant's objection time, especially for realtors disbursing the funds, see our article entitled The 15 Day security Deposit Dispute Period.
Although not covered in this article, in case of a tenant objection, see our article entitled The Tenant Security Deposit Dispute. Note that the debt is now "disputed", and it must be referred to as "disputed" in any communications. If the debt has been sent to collections or reported to a credit bureau, they must be informed that it is now "disputed".
Click here to download the recommended Notice of Intention to Impose Claim on Security Deposit
(Back to Top)
Dogs and Insurance
by Harry A. Heist, Attorney at Law
Many property managers have improved the way they are dealing with pets. They know to always use a pet addendum, confirm with the COA or HOA that pets are permitted for tenants, collect their pet fee and/or pet deposit, use a pet application, visually observe the pet before approval, and inspect the premises more often to make sure there are no pet damages. The aforementioned are all best practices, and if you are not doing all of them, you need to begin now. However, the real issue to ponder is whether you are going to accept pets at all. Potential liability exposure increases dramatically when pets, especially dogs, are allowed on the premises. There are massive occurrences of dog bite injuries and other injuries attributable to dogs each year, and many millions of dollars are paid out each year by insurance companies or as judgments against property owners, due to injuries and even death relating to dogs, not to forget all the physical property damages that is attributable to dogs.
The economy is such that a landlord who might otherwise wish not to allow their tenants to have dogs is now accepting dogs. When the choice is an empty unit and foreclosure or accepting that tenant with the dog and keeping the home, the choice becomes clear for many landlords. Each landlord must make the decision whether to accept the risk, and each property manager must also decide whether they wish to assume the potential liability and additional work involved in managing a home with a dog or dogs.
The common misconception is that in the event of a dog bite on or near the premises, the owner's liability insurance will cover the damages in a resulting lawsuit or settlement of the case. While in the days of old, insurance companies routinely paid out the sums for medical bills and pain and suffering, times have changed, and these old assumptions are incorrect. The cold, hard truth is that many, if not most, insurance companies are specifically NOT covering dog bite injuries in their liability insurance coverage on the premises, and more importantly, most are not covering dog bites due to a tenant's dog on the premises. Owners may assume they do indeed have coverage when over the years, the insurance policy has changed, and although the insurance company notified the owner, it was typically in the policy renewal paperwork and overlooked by the policyholder. Insurance companies routinely do "drive bys" of their insured's property and have been known to threaten to and then cancel the insurance if they observe a dog on the premises. Insurance companies take this matter seriously, and some use it as a convenient excuse to cancel their Florida policyholders.
Are dogs permitted?
At the outset, the property manager needs to know for sure that pets are permitted in the home they are managing. You have been managing units in a particular condo for years and have seen pets, but are they only various owners' pets? It is becoming more common that the rules and regulations of the COA or HOA are allowing unit owners to have dogs, but NOT tenants. It is crucial to check these rules and regulations and not depend upon your visual observations or the representations made by the unit owner that dogs are allowed. In some cases, you may even observe tenants with dogs and assume they are allowed, not knowing that possibly they have been grandfathered in by the COA/HOA, that they are in fact unauthorized, that they are pets of visitors, or that selective enforcement is occurring. The fact that you observe dogs, or that tenants have been allowed to have them in the past, means nothing. In every COA/HOA rental, you MUST make sure you know the rules and regulations, and clear this with the association, especially if there is an approval process. You are expected to know the rules and regulations if you are going to conduct business in a COA/HOA. In most private, non-COA/HOA homes, pets are usually allowed, but local, county or municipal ordinances may prohibit certain breeds, and this can lead to unpleasant surprises. More counties and municipalities are implementing rules and ordinances each year, so this is one more thing to check before allowing the tenant to have a dog. Once those tenants are approved and you move them in, finding out that they cannot have their beloved dog will cause you or the owner major problems, as you or the owner are now potentially in breach of contract with the tenant.
Are you covered by insurance?
This one is easy. To determine if injuries due to dogs are in fact covered by the owner's insurance, one simply needs to ask the insurance agent and examine a copy of the policy. This is assuming of course that the property owner has liability insurance on the premises. Many distressed property owners are allowing coverage to lapse or not getting coverage at all, leaving themselves and the property manager at great risk. When taking over management of a home, the property manager, as part of their due diligence and checklist procedure needs to check the following:
1. Does the owner have liability insurance? 2. Who does the insurance cover? 3. What are the limits of liability? 4. Does the liability insurance cover injuries due to dogs? 5. Did it cover at one time and now does not? 6. Does the liability insurance cover injuries due to a tenant's dog? 7. If the insurance does cover dogs, are there any excluded dogs or "dangerous dogs" that are not covered? 8. If there is a COA or HOA involved, do they allow tenants to have dogs?
Florida Law and Dogs
Florida Statute Chapter 767 specifically deals with "damage" by dogs. By statute, a dog owner is liable for damage to persons caused by a dog. It is a strict liability statute, meaning that no negligence needs to be proven in the event of a "bite". If the dog "bites" someone, the owner is responsible. Remember that injury or damage is not always from an actual dog bite, but could be due to a dog knocking down an individual or otherwise causing injury to that person. In Florida, due to the higher amount of elderly individuals, there are large numbers of non-bite injuries due to falls by persons attacked by a dog, simply knocked over by a friendly dog, or tripped by a dog or dog leash. Property damage is neither discussed, nor is injury or death to another animal addressed in Florida's dog bite statute. However, in the event a dog causes damage to the rental premises, liability is clear, as the tenant is under a legal obligation not to damage or allow damage to be caused to the rental property under the landlord tenant laws and usually the lease agreement. A dog owner in Florida is liable to any persons injured by a dog, regardless of whether the dog had a propensity towards viciousness or injured a person previously. This liability becomes stronger when the dog owner knew of previous aggressive or vicious behavior of the dog, jumping on people by the dog, or fighting, growling, or other aggressive behavior towards persons or other pets.
In Florida, there is no "One Bite Rule", meaning there is no free ride for the dog owner for the first bite, just because the owner was not aware the dog was dangerous. Since the statute covers dog bites only, a dog owner may be able to try to defend themselves by proving they did not know or had no reason to know that the dog was in fact dangerous if it causes an injury not related to a "bite", but in any event, an injury can result in liability and a possible lawsuit. A dog owner can be considered negligent if he or she was careless and an injury occurs. Carelessness could easily be shown if those persons who allow their dog to run free on the premises or fails to adequately control the dog from injuring guests or invitees. Just because Florida statute 767 is limited to dog "bites", a dog owner is not in the clear and can easily be held negligent for ANY injury due to a dog.
Is the landlord or property manager liable?
While it is clear that the owner of a dog will be held liable in most cases for dog bites or other injuries to a person, is the landlord or property manager liable? We are not sure. If the property owner had no knowledge that the tenant's dog was dangerous, the injured person will have a tougher time holding the owner or property manager liable under Florida Statutes or under a negligence theory. The question then arises, should the owner or property manager have known that the dog was dangerous, aggressive, had a history of causing problems, bit another person or pet before, etc.? This especially becomes a problem when the property manager or owner failed to check out the pet, ask the proper questions on the pet application, find out its true breed, or observe its demeanor in the application process. Unfortunately, most property managers never even see the dog they approve. The applicant fills out the application, pays the fee or deposit, and the first time the property manager even sees the dog is when they do an inspection of the property 6 months or a year later.
As stated previously, most liability insurance policies are not covering dogs but rather are specifically excluding them, and very few will cover a tenant's dog. If this is the case, is it worth the risk to allow a tenant to have a dog? We feel if there is no insurance available, there should be no dogs allowed. There is a possible solution though, and that is for the owner to purchase supplemental insurance to cover the dog. There are insurance companies now that will provide this supplemental insurance, and this should be looked into by the owner to determine if the cost is not too prohibitive.
Florida law is silent on whether a landlord can REQUIRE the tenant to purchase renter's insurance. We feel it is perfectly reasonable and legal to require renter's insurance from a tenant who will have a dog, and to require that renter's insurance to cover any injuries that dog may cause. We urge you to check around and find renter's insurance policies that do in fact cover dog injuries, and provide your tenants or applicants with this information. If you are going to require renter's insurance though, you MUST make sure the tenant has purchased it, pays her premium, and that you are notified by the insurance company if the policy lapses for nonpayment or is canceled. When renewing the tenant, check again to see if the renter's insurance policy has been renewed.
What is the "dangerous dog list"?
There is no such thing as a "dangerous dog" list, but there are a number of breeds and mixtures of breeds that insurance companies, counties and municipalities have considered to be or classified as "dangerous dogs". The mixed breed really causes you a problem, as you cannot tell if the dog is in fact on the list. It is perfectly reasonable for you to require the dog owner to verify the breed by providing proof from their veterinarian, and remember, dogs are NOT a protected class, and you CAN decide not to accept a dog, even if it is not on your "dangerous dog" list. As long as you are not denying or approving a tenant's dog in an illegal, discriminatory manner, there should be no fair housing implications. Some examples of dogs that have been considered "dangerous" include Dalmatians, Boxers, Presa Canario, Chow Chow, Alaskan Malamutes, St. Bernards, Huskies, Siberian Huskies, German Shepherds, Pit Bulls, Rottweilers, Doberman Pinschers, Akitas, American Staffordshire Terriers, Great Danes, Wolf-Hybrids and Rhodesian Ridgebacks. Note that this list is not all inclusive, and you can make your own rules as to size, breed, weight, or any other criteria you desire.
We could not finish this article without mentioning service dogs, companion dogs, therapy dogs or any other dog that might be used by a person suffering a handicap. If your tenant or applicant is handicapped, most of this article will NOT apply. We recommend you call your attorney and get advice on this on a case by case basis. If you have a written dog policy, make sure you always place a disclaimer on the policy sheet that you comply with all fair housing laws, and that your dog policy, including any requirement to pay a pet fee or deposit do NOT apply to service animals or animals for the use of a handicapped individual.
(Back to Top)
Understanding Constructive and Retaliatory Evictions
by Brian P. Wolk, Attorney at Law
The vast majority of landlords understand that a tenant who vacates prior to the lease end date may be liable to some extent for future rent. Likewise, most landlords have comfort that if they comply with all of the terms of the lease, then they will prevail if sued by the tenant at a later date. While there is some truth to the above assumptions, it is definitely not the whole truth. Let's see why a landlord can get in to "hot water" if they fail to look past the obvious.
The Constructive Eviction Scenario
Larry appeared to be the ideal prospect. His application was approved, and he paid all of his deposits and moved in. After being in the unit for only three days you received his first work order. The washing machine was leaking. Soon after, you fixed the problem. However, two weeks later, the pipe below the washing machine bursts, and the kitchen and living room is flooded. Your maintenance staff responds and the pipe is fixed. Soon after, you start receiving repeated calls from Larry that his carpet has a strong foul odor. Larry then sends in another work order stating that the apartment home has a bed bug issue. Your exterminator confirms the existence of bed bugs inside the unit. Larry has nine months left on his lease and had already written to you two weeks earlier that he is withholding the rent until the landlord remedies the situation. You figure that it will cost a substantial amount of money to fix the apartment, and you cannot bear to think about dealing with Larry for nine more months. The next day you receive keys from Larry and a note which says, "I HAVE VACATED". "Good riddance", you say to yourself. You plan to sue Larry for breaking his lease and will hold him responsible for future rent until the property is leased. Good news? Nope! The landlord is now vulnerable to a constructive eviction claim by the tenant.
What is a Constructive Eviction?
Did you know that you can end up illegally evicting one of your residents who voluntarily vacated the premises even if you never posted any notices on their door and never requested that your attorney file an eviction action in court. Florida Courts will allow a tenant to break their lease and move out of the premises if the judge rules that a constructive eviction took place. A constructive eviction may occur if the landlord has neglected the leased premises to the point where it is unsafe or unfit for use by the tenant for the purposes for which they were leased. There is also Florida Statute 83.63 below:
"Casualty damage.--If the premises are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the premises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case the tenant's liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the landlord shall comply with s. 83.49(3).
A judge may rule that a tenant is constructively evicted if the landlord turned off the utilities or was cited for health or housing code violations, such as mold or roach infestation. In one court case, the landlord was unable to remedy excessive noise disturbances by other tenants. The judge ruled that there was a constructive eviction. Although threats of a future eviction usually would not constitute a constructive eviction, a court allowed a tenant to assert a constructive eviction defense when the tenant reasonably believed that the landlord was about to lock out the tenant after refusing the rent and threatening the tenant with an eviction. The landlord may also be liable for a partial constructive eviction if part of the premises is unusable.
You should also keep in mind that tenants can sue for damages for the fair market value of the apartment for the period that the unit was not habitable. If they prevail, you would have to pay their attorney's fees and court costs, or the tenants can elect to remain on the premises by sending a notice to withhold rent as specified in Florida Statute 83.56 (1).
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.
The Retaliatory Eviction Scenario
Before Moe leased a unit, your tenants all thought that you were a strong property manager. Well those days are over! Ever since Moe discovered that other tenants along with himself had faulty air conditioning and heating units, he has created havoc for the property management office.
Moe started a tenant association at your apartment community. They have meetings every Monday night. As a result, work orders have increased by over 80%! The landlord is beside herself that she has incurred all of those maintenance costs. Every day it seems like you are receiving complaints from residents covering all aspects of the apartment community. You definitely feel that this unwanted attention brought on by Moe will cause your tenants to decide not to renew their leases.
You want to resolve this situation. You feel that the only way to do this is for Moe to live somewhere else where he can be another property manager's nightmare. What can you do? Moe has paid his rent on time. He lives very quietly; in fact, you have never issued to him a Seven Day Notice to Cure. Then your idea hits like a bolt of lightning!
Moe's lease expires in two months. The landlord's lease stated that renewal is at the discretion of the landlord. Moe is sent a letter stating that he will not be allowed to renew his lease. Moe walks in to your office and tells you he would like to renew at the market rate. Moe does not vacate as of the lease expiration date. You have your attorney file a holdover eviction action. Now you just had a phone call with your attorney, in which it is revealed that Moe has hired an attorney. He also tells you that you may very well end up losing the eviction action, and that you will likely have to pony up money to Moe's lawyer as well to cover legal fees and costs. You wish that you had understood the term "retaliatory eviction".
What Is a Retaliatory Eviction?
Since 1983, the Florida Statutes have protected tenants from being evicted for retaliatory reasons. Thus, retaliatory evictions are illegal in Florida! The Statute is below: 83.64 Retaliatory conduct.-- (1) It is unlawful for a landlord to discriminatorily increase a tenant's rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant. In order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith. Examples of conduct for which the landlord may not retaliate include, but are not limited to, situations where: (a) The tenant has complained to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises; (b) The tenant has organized, encouraged, or participated in a tenants' organization; (c) The tenant has complained to the landlord pursuant to s. 83.56(1); or (d) The tenant is a servicemember who has terminated a rental agreement pursuant to s. 83.682. (2) Evidence of retaliatory conduct may be raised by the tenant as a defense in any action brought against him or her for possession. (3) In any event, this section does not apply if the landlord proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter. (4) "Discrimination" under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.
As you can see, there is much conduct on the part of the tenant that is protected. The statute prohibits the landlord from retaliating against a wide range of tenant related activities, including but not limited to: tenants that make written complaints regarding the landlord's noncompliance with the lease, tenants that make complaints to government agencies to report building or health code violations, or members of the military who terminate their lease in accordance with Section 83.682.
Section 83.64(1) (b), shown above, will protect Moe from being evicted due his activities related to the tenant's group that he founded. In fact, the statute specifically makes even the THREAT of eviction unlawful.
Acts that will get the landlord in to "Hot Water".
The Florida retaliation statute prohibits the landlord from treating the tenant who takes part in the conduct above, differently then other tenants with regards to services provided, rent charged or other actions on the part of the landlord. The landlord may not retaliate by cutting or reducing services such as utilities, raising the rent, threaten to or file eviction or other civil lawsuits.
What were they thinking?
Courts will attempt to get inside the heads of landlords to see if they were acting in a retaliatory manner. In the case of Moe, the landlord will need to convince the court that the eviction was not primarily related to Moe's tenant association activities. You should not feel that the landlord is powerless over a tenant who complains. The key question to ask is this: what was the real reason behind the landlord's action? To change the facts of our above example, if the landlord's primary reason for evicting Moe was related to a history of paying the rent late, then there would likely not be a violation of the statute. Why? Because the main reason for the eviction was NOT related to Moe's tenant group activities.
A final word of caution
A common trait shared by many landlords who are successfully sued by tenants due to constructive or retaliatory eviction related conduct is one that you have probably already figured out. They are landlords who fail to maintain the premises in accordance with their lease and Florida law. If one decides to become a landlord, then there are many responsibilities the go along with that title. Those responsibilities should be taken very seriously! If not, then only bad things will be in store for them, including being tagged with large money judgments against them obtained by tenants and their attorneys.
(Back to Top)
Lease Cancellations by the Resident
By Michael Geo. F. Davis, Attorney at Law
Given the huge amount of information that we are bombarded with, it's amazing that we can keep as many things factually correct as we do. It's not surprising that the three-day lease cancellation myth has become established in so many residents' minds. While Florida law does not provide a cancellation period, the careless landlord may provide the applicant with the ability to cancel the lease by failing to deliver the lease.
Rescission is the correct term
Technically, the legal term is "rescission". A rescission is the unmaking of a contract. There is no contract. It is a nullity. A cancellation is the abandonment or repeal of a contract. Since the common usage is "cancellation", I will use it in this article.
No three-day cancellation period
There is no three-day cancellation period for residential leases in Florida. It doesn't matter whether the lease is for only one month's duration or for a period of years, or for any term in between. It doesn't matter what the monthly rent is or how it is payable. It doesn't matter if it's a single-family home, a duplex, a condominium or an apartment. It doesn't matter if the property is in the city or outside city limits. It doesn't matter. It can't be cancelled within three days. Although there is no right to cancel residential leases, there is a right of cancellation that applies to certain other types of contracts, for example door to door sales or home equity mortgages. This is what probably led to its mistaken application to leases.
Giving the resident a copy of the lease
We recommend personally giving a copy of the completely executed lease to the resident as soon as the landlord or his agent signs the lease. This prevents any dispute as to whether the resident knows that there is a binding lease in effect. If the landlord cannot give the lease to the resident personally, then other possible methods are an email attachment with a delivery receipt, fax with a delivery confirmation or a certified letter to track the receipt.
Bad landlord practices
It is an all too common landlord practice to hold the resident's copy of the lease until move-in. A landlord does this at her own risk. Another frequent landlord excuse is that a copy of the lease was available for the resident to pick up or that the resident didn't keep his appointment to pick up the copy. Judges are unimpressed with these excuses. That being said, a resident cannot intentionally frustrate delivery of the lease by such actions as refusing certified mail.
If the landlord has forgotten to give the resident a copy of the lease, but the landlord and resident are performing under the lease, can the resident cancel? The resident's performance may include, for example, accepting the keys, obtaining utilities in his name, moving in some personal items, or actually occupying the premises. The landlord's performance may include complying with the resident's preparation requests (using paint of a requested color, installing new appliances, etc.) or actually giving possession. Resident cancellations after partial performance by either the resident or landlord are legally problematic. Partial performance of a lease may make the lease binding. The more extensive the performance by the resident or the landlord in reliance upon the lease, the less available the right of cancellation is to either the landlord or the resident. The landlord should consult her attorney for advice in such situations. (Note that partial performance applies to an unsigned lease also, but with significant differences not discussed here.)
I caution that it is dangerous to rely on partial performance, as it may not save the landlord's entire lease. A landlord may be found entitled to only her out-of-pocket expenses as damages. "Out-of-pocket" expenses are her actual cash outlays, such as the costs to turn the apartment again, to re-advertise it, etc., as opposed to her "statutory or contract damages", such as rent to relet under Florida statutes or liquidated damages under an early termination addendum.
So much work is involved in guiding an applicant through the rental process to the signing of the lease; it is a shame to see it fail at the finish line. The final important step is the delivery of a copy of the completely executed lease.
(Back to Top)
Time for a Year End Review
by Harry A. Heist, Attorney at Law
There is probably no person who sees more legal mistakes than your own attorney. Your attorney sees your lease, your notices, your procedures, is asked questions by management, fixes your problems, fights for you against other lawyers or residents, gets you out of messes, has to train new managers, goes to court with you: the list goes on and on. Very few companies have in-house attorneys, and even when they do, that in-house attorney is often out of state, and it is almost impossible for him or her to know all the laws or intricacies of Florida property management law. Often policies or procedures are set by the home offices, notices are sent out to the field, or leases are modified by companies to make a one size fits all lease and set of procedures for their properties all throughout the country. The time is now for companies large and small to evaluate their forms, notices, procedures and policies, or face potential lawsuits or time and money wasting disputes that could have been easily avoided. While we may have no control over the overall economy, there are steps we can and must take, sooner rather than later. We have all violated traffic laws, exceeded the speed limit or rolled through that right on red and have done so for years, rarely getting caught. Fortunately we are not followed all day long by the police watching our every move. The truth though, is that over 87,000 attorneys are members of the Florida Bar, and many are concentrating on consumer law and looking closely at industry practices. Just because you did not have a problem in the past does not mean you will not be hit by a class action lawsuit or some expensive litigation by a current or former resident.
The Lease Agreement
There are literally thousands of different lease agreements in use in Florida. Some are blatantly defective; others have subtle problems that slip under the radar. When your attorney brings something to the attention of a management company, it seems to take an eternity for that management company to make the necessary lease change, and often the advice of the attorney is ignored. While a judge may evict a resident who has signed the lease, this does not mean the lease is 100% legal. It simply means that the problematic issue was not a part of the eviction action. On top of using a defective lease, managers often forget to have all the residents on the lease sign the lease agreement or forget to give the residents a copy of the executed lease, resulting in problems later: simple, avoidable issues. We constantly see leases which do not have the updated Abandoned Property Clause which facilitates the manager getting possession of the unit in the event of a resident's death. Without this simple clause, the unit may be tied up fro many months, and significant amounts of money must be expended to gain possession of the unit.
a. Late Charges - Unlike some states, Florida law does not have any specific rules or statutes on how much a late charge can be assessed to a delinquent resident. It seems that late charges are being looked upon as more of a revenue generator by many management companies, and we see late charges being piled upon late charges and small past due balances. At what point do these late charges become so excessive that a judge or jury will decide they are illegal? With the increase in acceptance of partial rent payments, residents are increasingly being hit with accumulating late charges that may be deemed excessive. How does this occur? The software simply keeps piling on the late charges.
b. Charges not considered rent.- Almost every property manager knows that you can only put "rent" on a Three Day Notice. If a particular charge such as a utility bill, water, cable, electric, etc. is not defined as "rent' in the lease or an addendum to the lease, it cannot be put on the Three Day Notice. If it is put on the Three Day Notice, the notice is defective, and the manager must either redo the notice or take a gamble that the judge will not rule adversely because of the defect. We see many companies that submeter their units, use a submetering addendum and fail to address the water bill as "rent" in the lease or utility addendum. Why did this happen? The manager used a submetering addendum from the submetering company or from another property in another state. An easy problem to fix, but often it is ignored until you lose a case in court and have to pay the resident's attorney $3000.00.
c. Fictitious Names - The majority of apartment communities operate under a fictitious name. The name of the property is Mountain View Apartments, but it is owned by the XYZ Limited Partnership. This makes Mountain View Apartments a fictitious name. Is this illegal? Of course not, BUT if the fictitious name is not registered with the Secretary of State, the apartment community cannot technically maintain a legal action against someone and is not operating legally in Florida. Yes, that means the apartment cannot file an eviction legally unless they register the fictitious name. How is that problem solved? Simply go to sunbiz.org and register. It is that easy. Is your property registered? Check it right now.
d. Termination Fees and Penalties
So many management companies and owners have forgotten about the Circuit Court case in 2003 which ended up costing property management companies and owner millions of dollars, because the judge held that certain termination fees and penalties were illegal. Why are these fees and penalties popping up again in the leases? Management companies and owners are just waiting for the next round of lawsuits which could result in millions of dollars of losses. How to solve the problem? Remove them from the lease immediately, and examine any new leases that your company may decide to use. That great idea by the corporate attorney in Texas might be completely illegal in Florida. Special statutes and procedures now apply regarding liquidated damages and early termination fees, and if they are not followed properly can open you up to litigation.
We can never forget that the security deposit belongs to the resident until such time as it is taken from the resident through the proper use of the Notice of Intention to Impose Claim on Security Deposit. The property manager has 30 days to do this when the resident vacates, and often waits until the last minute or forgets altogether. Many residents know the law, and the manager is faced with having to return the security deposit in full and not being able to deduct for damages because the time slipped by. We have written many articles on Security Deposits, just read them! When making the claim, the manager needs to understand that there are only some things for which they can charge the resident, and the manager needs proof. Where's the proof? Do you have pictures? Videos? Proper Move-in and Move-out inspection forms? We have seen cases drag on for years due to poor documentation by the property manager, and it is all completely unnecessary. Some managers have decided that spending over $5.00 to send the Notice out is too much and are using regular first class mail. This violates Florida law.
Crimes and Safety
Could your company be held liable for crimes committed by third parties on your property? You bet. If you have not taken reasonable steps to make your property safe or remove dangerous conditions, a jury could hold that you are indeed liable. We urge you to screen your residents carefully and look into the Multi Family Crime Free Programs that are available to you at no charge. A safe property is not only beneficial to you and your resident, but is crucial for resident retention.
Education and knowledge is the key to success in property management. Where do you get the information you need? Our legal articles are certainly a start. As of this writing, there are over 200 legal articles on our website which should be mandatory reading for every property manager. Apartment associations and property management associations all throughout Florida put on hundreds of education programs each year to help you stay out of trouble and hopefully become profitable. Too busy to go to the classes? Miss them at your own peril. Nothing is more amazing to us than to see an industry that places property managers, assistant managers or leasing agents on a property worth millions of dollars with no prior training. It is indeed scary, and we see the results of this every day. Want to find some associations? Click Here
What can you do right now to get on the proper path? Join your local apartment association or property manager's association, and become active. Don't just go to the lunch or dinner meetings; join a committee, go to the education classes, get on the board, go to the conventions, get your certifications and designations, and get involved. Speak to your regional managers if you see your company going astray. Remember your regional manager may be dealing with completely different, big issues, and they rely on YOU to keep them informed. Will 2010 be much different than 2009? Probably not, but YOU can be different and set yourself apart from the rest and be the absolute best you can be in your profession. It is in your hands, and the resources are at your fingertips. Best of success in 2010 and beyond.
(Back to Top)
Roommate Disputes and the Property Manager
by Harry A. Heist, Attorney at Law
More often than ever before, residents are having roommates move into their rental houses or apartments for a myriad of reasons, the most common being to help with expenses and contribute to the rent. More residents are taking in roommates that they do not know very well through the use of classified services, roommate services or referrals from friends. Sometimes it works out for them; sometimes it becomes the nightmare roommate situation. Many landlords really are not too concerned about who is living in a unit these days if the rent is flowing in and there are no complaints by neighbors or police, so even if the landlord becomes aware of the roommate, they will generally ignore the situation. In conventional housing when most often there are no restrictions on occupancy or number of unrelated persons in a unit, one additional roommate does not pose a problem legally. In tax credit properties, subsidized properties or in units where the resident is receiving state or federal funds, the mere presence of the roommate residing on the premises could result in the landlord and the resident being out of compliance with the laws governing the tax credits or subsidies, and cause a serious risk to the landlord's business, or the resident could end up losing her subsidy, resulting in the landlord not receiving the subsidy payment. In these cases, it is crucial that the landlord takes action immediately to have the resident have the roommate removed from the premises or the resident on the lease evicted. This article will deal with a different situation, that being the case when the resident comes to you asking you to help remove the roommate for them.
Your resident comes to you at her wit's end. She tells you that she took in a roommate and the roommate is causing her serious problems. These problems may include drug use, alcohol, parties, things disappearing, unruly guests, or possibly the roommate simply is not paying his share of the rent. The resident wants the roommate out, but the roommate simply refuses to leave. In some cases the situation is so bad, the resident has had to move out temporarily, as she is being terrorized by the roommate, and now sheepishly is asking you, the landlord, to get the roommate out. Your resident has called the police, and the police told her, "It is a civil matter," and to consult an attorney. You may or may not have known of the roommate, but now you know for sure and are being pulled into a mess that was created by the resident taking in the unauthorized roommate.
The Request and the Problem.
Your resident is now asking you, the landlord, to remove a person with whom you have no legal relationship. She may ask you to "evict" the roommate, thinking that somehow you have to power to do so, being that you are indeed the landlord. The fact that you have no legal relationship with the roommate will make it impossible to remove the roommate alone. You cannot file an eviction against that roommate. Rather, the resident must, as she has the legal or quasi- legal relationship with the roommate, and most likely it was not in writing. If there was indeed a lease between the roommate and the resident in writing, the resident has become the "landlord", and although she may be illegally subletting the unit, the resident would need to file an eviction against the roommate as the landlord. It is rare that residents have any written agreements in place with acquired roommates.
The initial reaction
Your initial reaction may be to tell the resident that it is her problem, and she has to deal with it, and you would be mostly correct. Your resident caused this problem by taking in the roommate, and your resident needs to deal with it. The larger problem is that your resident is telling you that if she cannot get the roommate out, the resident will have to vacate. This will leave you with a person in your unit who has not signed a lease, and with whom you have no legal relationship. If you were to call the police, they would give you the same response, which would be, "It is a civil matter; you need to hire an attorney".
Feeling sorry for the resident
Since you have been getting your rent on time, and let's face it, you are a bit desperate and do not want a vacancy, you may be tempted to feel sorry for your resident because of this roommate problem. Stop right there. Your resident violated the terms and conditions of the lease by taking in this roommate. This roommate is an unauthorized occupant, plain and simple. Your resident has and is violating YOUR lease. The roommate may even be a sexual offender or predator who would in no way have passed your criminal background check, thus causing liability to you or your company and possible danger to other residents or their guests.
Moving the Resident
One request that may come from your resident is for you to move her into another unit on your property. That seems like a simple way to help out your resident and solve your resident's problem. Just move her to another unit. That's great. Now you have your resident who violated her lease in one unit and the roommate in another unit. Never even think about doing this.
Actions to Take
1. Action by Resident: If your resident is having serious problems with the roommate that rise to the level of criminal activity, the roommate has injured or threatened to injure the resident, or the resident is in fear of her life, the resident should immediately go to the county courthouse and see if she can obtain a restraining order against the roommate or a temporary injunction against the roommate, which may require the roommate to vacate. Each county courthouse has a department dedicated solely to injunctions and restraining orders. If the problem is severe enough, the roommate may be required to immediately vacate by force of law, and if he returns, could end up being arrested. Residents routinely are able to get retraining orders and injunctions against one another, essentially kicking one resident out of the unit, and the courts generally do not care whether one or both are actually on the lease agreement. This is an option for your resident, but you should not advise the resident beyond the suggestion of pursuing this option.
2. Action by Property Manager
Your resident has an unauthorized occupant residing on the premises in violation of the terms of your lease. Your resident needs to be served a Seven Day Notice of Noncompliance With Opportunity to Cure immediately stating the following:
"You are in violation of the terms and conditions of your lease agreement due to having an unauthorized occupant residing on the premises. This occupant must be removed."
Serve this notice and refuse any more rent unless you know for a fact the roommate has vacated, and possibly get something in writing from the resident stating that she has removed the unauthorized occupant.
The roommate fails to vacate
If the roommate fails to vacate and your Seven Day Notice of Noncompliance with Opportunity to Cure has expired, you will then serve a Seven Day Notice of Noncompliance Notice of Termination, and upon expiration of that notice, your attorney will file an eviction. Proving the roommate is still there is often difficult, and your attorney will help you decide if you have a strong enough case. Your attorney will file an eviction against your resident. Your resident and the roommate will need to be evicted. There is no choice. We have seen some situations in which the landlord and the resident make a deal under which the resident will not fight the eviction, allow herself to get evicted, and the landlord allows the former, now evicted resident to move back in. Big mistake. The roommate may reappear, and the problem starts all over again. Additionally, who paid for the eviction?
Some final words
In tough economic times, the temptation to "help out a resident" so as to not lose the resident can have disastrous results. Do not make someone else's problem that she herself caused become your problem that can be costly for you to solve. A resident who gets an unauthorized roommate is a lease violator and should be treated as such.
(Back to Top)
Guarantors and Renewals
by Brian P. Wolk, Attorney at Law
In these tough economic times, landlords and property managers have a vested interest in working together during the application approval process. As occupancy rates decrease, and the pool of applicants with strong credit histories shrinks, creative leasing tools must be utilized by landlords and property managers. One such tool is allowing the applicant to obtain a guarantor in order to pass the lease approval process. It is usually cut and dry that the guarantor of an initial lease term can be held responsible for the rent during the term of the lease. However, as you will see, the law may not be on the side of the landlord who is attempting to enforce a guarantee agreement for any lease extension or renewal term.
What are guarantee agreements?
The typical guarantee agreement involves somebody who agrees to be responsible for the financial obligations of a resident, including the rent as provided under the lease. This person is known as the guarantor. The guarantor is usually not listed on the lease as the resident or occupant of the apartment. Often, but not always, the guarantor is a close relative such as a parent or uncle. If the resident fails to pay rent, the landlord has recourse against the guarantor and can recover money damages owed to the landlord by the resident.
Are guarantee agreements enforceable?
Florida courts enforce guarantee agreements if the document is worded correctly. While the promise of one person to meet the financial obligations of another is allowed in Florida, the agreement must be in writing according to Sec 725.01 of the Florida Statutes. Therefore, never believe that an oral guarantee agreement will be enforced by a judge, because it will not!
How should the guarantee agreement be worded
Be very specific. Courts attempt to look at what the intentions of the parties were at the time of entering in to the contract or agreement. Since it is usually the landlord that has drafted the agreement, any ambiguity in regards to the terms of the guarantee will be construed against the landlord. What does that mean? If the terms of the agreement are vague enough that there could be multiple meanings, then the resident will "get the benefit of the doubt," and the court will likely enforce the resident's belief as to the meaning of the disputed term. Among other things, you should list the names of the parties, reference the lease that the guarantee applies to, and of course the guarantee agreement should spell out in detailed fashion the obligations for which the guarantor will be responsible.
The lease renewal scenario
Bob moved to your apartment community ten years ago from Kansas in order to attend college. Bob, like most college students, was short on cash at the time. Based on his situation, he was advised that he needed to obtain a guarantor in order to have his rental application approved. Lucky for Bob, Uncle Jeb agreed to be the guarantor. As it turns out, Bob was timely in making all of his rental payments for the first nine years and ten months of his tenancy. Bob failed to make his final two rent payments and hopped on a plane for Jakarta, Indonesia, never to be heard from again! You decide to go after Uncle Jeb for the balance of the rent owed by Bob. Uncle Jeb is upset and does not believe that he should be held responsible for nine renewal terms, and claims he should have been notified of each renewal transaction. Your regional manager receives an email from Uncle Jeb's attorney threatening legal action.
Is Uncle Jeb responsible under the guarantee agreement for the lease renewal term?
The answer to the above question will depend on how the guarantee agreement was worded. Under Florida law, a guarantee for a lease can be continuing, but it mustexpressly state that it is intended to cover future transactions for the guarantor to be liable for extensions and renewals. The terms should contemplate a future course of dealing during an indefinite period. If the above conditions are met, the landlord would not have a legal duty to notify the guarantor of each transaction between the landlord and resident, provided that the particular transactions fall within the description of the terms of the guarantee agreement. Therefore, if there is no mention of the lease renewal in the guarantee agreement, then Uncle Jeb would not have liability in the above fact pattern, because the agreement did not expressly state that he would be responsible for the renewal terms."
Is Uncle Jeb financially responsible if the lease guarantee agreement specifies that it applies to lease renewals?
As a general rule, if the renewal period mirrors the lease term in every manner, then the guarantee would be enforceable against the guarantor, if the agreement specified that the agreement applied to renewal terms. However, if the renewal lease contains different provisions other than the original lease term, a court may not enforce the guarantee agreement. For example, if the rent has been increased during the renewal term, the court may possibly hold that the lease is not a true "renewal lease", because not all of the terms were "renewed". Instead the court may treat the "renewal" lease as a new lease, thereby extinguishing the obligations of the guarantor. The court may refuse to enforce the guarantee agreement in that situation, on the premise that the guarantor never intended to be liable for the higher rent amount. It is possible that a court may enforce the guarantee, if the terms expressly state that the guarantor will remain responsible for any changes, renewals or amendments to the lease that would increase the guarantor's risk, such as rental increases.
The main point is that courts really prefer to err on the side of caution if the terms of a guarantee agreement are ambiguous and are reluctant to hold the guarantor liable.
What do we recommend?
Our firm's recommendation is both very practical and very simple!
You should update each guarantee agreement for each renewal or lease extension period. Have the guarantor sign again, so that it is clear as to exactly what his financial obligations are to you.
If you really are banking on the guarantor to pay you, it would be risky to leave it in the hands of the courts, when you have the ability to firm up your guarantee agreement by updating it each renewal or lease extension period.
(Back to Top)
Raising and Lowering the Rent
By Michael Geo. F. Davis, Attorney at Law
Since it is unlikely that the resident, who will readily agree to lower the rent, will voluntarily agree to a rent increase, this article will mainly focus on some of the landlord's available avenues for raising the rent. The final section will discuss the landlord's agreement to lower the rent.
The lease is paramount
When a lease is in force, the rent provided in the lease is controlling. It may not be unilaterally changed by either the landlord or the resident. When the lease provides for periodic changes to the rent, again the lease is controlling. For instance, a one year lease may provide for a lower rent (a rent discount or concession) for the first month or months to induce a rental. A yearly lease may provide for higher rent with an automatic annual renewal or a roll over to month to month tenancy. A multi-year lease may provide for a rent increase at the start of each new lease year.
Clarity and notice
Two common problem areas, when leases provide for periodic changes to the rent, are clarity and notice. Since it is probably the landlord's lease form, any ambiguity will be decided in favor of the resident. The lease must clearly provide when and how the rent is to be changed. If the rent increase is subject to calculation (i.e., a 10% increase), then the calculation method must be clear. If the lease provides that notice of any rent change be given to the resident, then that notice must be strictly followed. Even if the lease unambiguously provides for a rent increase without notice to the resident, a landlord would be wise to give a resident adequate warning. It is only inviting trouble to rely on the resident to remember to review the lease, assuming the resident can still find his copy.
If the rent change is based on something other than a dollar amount (e.g., the monthly rent shall increase to market rent), then the terminology (market rent) must be clearly defined. We advise that reasonable notice be given to the resident of the actual new rent dollar amount. Reasonable notice would be at least thirty days, but can be longer if the resident has to give notice to terminate the lease.
A lease providing for an initially lower rent should clearly state if it is a one time or continuing concession, if the total concession amount is applicable to the initial month(s) or spread over the entire lease, and if it is recoverable if the lease is breached. A poorly drafted rent concession or a hurriedly completed concession addendum can result in making what was intended to be a one-time concession a permanent, reoccurring concession. Florida law on the recovery of concessions is not settled, but it is certain that in the absence of explicit language mandating recovery of any concession, the rent is considered to be the lower amount, and any difference is not recoverable on lease breach.
Lease expiration and the month to month rent
The resident may be unwilling to renew the lease. If a lease term expires and the resident remains in possession and continues to pay rent that is accepted by the landlord, then a month to month tenancy is established at the old lease rent amount. Landlords should avoid this type of "unwritten" month to month tenancy. The form, Month To Month Agreement, may be used to establish a written month to month tenancy based on the terms of the expired lease but with a new rent amount. (All forms herein may be found at our firm's website, www.evict.com.) Before the lease expires, the landlord should notify the resident that he is non-renewing the lease and offering a month-to-month tenancy at a new monthly rent. To offer the resident a month-to-month tenancy, use the form, Month To Month Rent Increase Lease Ending. To offer the resident the option of a new lease or month to month tenancy, use the form Nonrenewal And Offer To Lease.
Lease expiration and the roll over to month to month
A landlord may want a lease upon expiration to roll to month to month with an increase in rent. The form Month To Month Addendum may be used to establish a rent increase when a lease rolls to month to month.
Changing the month to month rent
When a landlord changes the amount of rent, she may consider terminating the current monthly tenancy at the current rent and offering a new monthly tenancy at the new rent. Unless the prior lease or the month to month agreement/addendum provides for a longer notice, a month to month tenancy may be terminated (changed) upon 15 days' notice by the landlord to the resident prior to the end of the month. Since we are considering month to month tenancies after a lease has expired, be sure to read the lease. If the lease requires 30 days to terminate (change) a month to month tenancy, then the landlord is required to give 30 days' notice. (Note that Florida Statutes provides that the tenant has to give only 15 days' notice to terminate a month to month tenancy, but that is discussed in another article.)
The resident can reject the offer by simply vacating without further notice to the landlord, since the landlord terminated the tenancy. Therefore, the landlord should include a deadline for acceptance by the resident in the notice of nonrenewal/offer of new tenancy. This will give the landlord some indication if he is going to have a vacancy. To continue the month to month tenancy, use the form, Month To Month Rent Increase Month To Month. To offer a lease instead of continuing the month to month tenancy, use the form Month To Month Nonrenewal And Offer To Lease.
Resident holds over
If the resident remains in possession without accepting and returning the landlord's offer, then the resident is a holdover tenant subject to eviction. The landlord must be sure to return any new rental payment by the resident. Accepting any resident payment can result in reinstating the old month to month tenancy and the old lower rent.
Holding the last month's rent
Special care must be used if the landlord is holding the last month's rent. Whatever form is used, the landlord must indicate that he is applying the last month's rent to the last month of the lease or to the last month of the month to month tenancy. If the resident attempts to pay the last month, the landlord should refuse and return the payment. This action is taken to avoid the resident claiming that the old month to month tenancy continues, since the landlord still is holding a month's rent.
Pointers when giving notice
With regard to any notice from the landlord, there are some pointers to remember. First, don't wait until the last minute. The day of the notice cannot be counted in the notice time. So depending on the lease language and the number of days in the month, if a landlord waits to give the notice on the first of a month, as many do, it may not be effective for the first of next month. Second, if the lease requires mailing of notices, then notices must be mailed. The lease may require that the notice be sent by certified mail. If certified mail is required, we recommend also sending the notice by regular mail, since the resident may attempt to deny receiving notice by failing to pick up the certified mail. Third, serve the notice multiple ways: hand-delivery and posting, and regular mail if the landlord has left himself sufficient time. Fourth, if a notice requires mailing, a landlord must add five days to the notice time for mailing. If mailing is a courtesy, adding five days for mailing is prudent to avoid any potential judicial misunderstanding.
Lowering the rent
The only secret to lowering the rent is to focus on clarity. The agreement must be unambiguous and clear - how much for how long? Any change in the rent, even a one month reduction, should be done in writing. Any writing (letter, note, possibly even an email) signed by only the landlord is technically all that's needed. Knowing that, a landlord should be careful of her correspondence, including email, with the resident. We recommend that any agreement to lower the rent in a lease be in the form of an addendum to the lease signed by both the landlord and the resident. The formality of an addendum avoids the loose language used in a less formal writing. The landlord doesn't want her generosity to be the source of ill will over an unintended misunderstanding.
Avoid oral agreements
Landlords should avoid oral agreements. Despite this warning, landlords continue to agree on the telephone or in casual conversation to modify the rent "just one time", or to waive the rent or the full amount of the rent "for just this month", without putting it in writing. Almost every lease contains a clause prohibiting any oral modification of the lease. Despite this protection, landlords orally modify the lease "just this time" and regret it later, when a judge is asked to decide the extent of the oral modification.
Your landlord/tenant attorney can help you with the right form for any rent modification. Our firm is always available to assist you.
(Back to Top)
Discovery of the Sexual Predator/Offender
by Harry A. Heist
Your worst nightmare has come true. One of your residents comes into your office with a print out from the Florida Department of Law Enforcement (FDLE) website showing a sexual predator or offender, hereinafter SP/SO, is registered at your property. He looks familiar to you. You look up the lease for the unit, and he is not on the lease. Whew, an unauthorized occupant. What if he is on the lease? Possibly he slipped through the cracks in the application process. How do you get him out fast?
Confirming Status and Address
Simply go to the Florida Department of Law Enforcement website and look up the individual in question. If the person is a SP/SO, it will show up and give a brief description of the offense along with a physical description of the individual and a photo. An important aspect of the information will be the address that the individual has registered with the FDLE. This address may be the address of the rental unit or some completely different address. If it is the address of the rental unit, you can contact the FDLE, as possibly the SP/SO is in violation of the rules regarding the terms of his probation if he is in too close proximity to children. If it is not the address of the rental unit, we urge you to call the FDLE and report the fact that the SP/SO appears to be living at your property, and that your address is NOT what is listed on the website. It is possible that the SP/SO has registered the new address but the website is not yet updated.
Contacting the resident
You immediately should contact your resident, making her aware that you know of the presence of an unauthorized person living with her on the premises and that the SP/SO needs to leave. If you get any pushback from the resident, feel free to let her know that you are fully aware this person is a registered SP/SO, not that it really makes much difference. Note that we call this person an "unauthorized person" or "unauthorized occupant". Many property managers think that just because the person is a SP/SO, this somehow makes the offense by the resident in having an unauthorized person worse, or that it will make it easier to evict the person. It makes no difference. An unauthorized poodle may be an unauthorized pet as much as an unauthorized pit bull, the latter of which may be a breed you restrict. The breed of the pet or the status of the person will not have much relevance at all on your ability to take action. The unauthorized occupant is an unauthorized occupant plain and simple, and your resident is in violation of the terms of the lease agreement if that person resides in the unit for a period longer than the lease allows. Most leases allow guests or visitors for period of 72 hours to 2 weeks, and then require the resident to get your permission for the "guest extension", thus the person does not become unauthorized until such time as the allowed guest period under the lease is exceeded. Once you contact the resident, you will most likely get the usual story, "The person is just visiting". If the person is indeed "visiting", they will be allowed to visit. "Residing" there is another story. Once you can prove the person is not simply "visiting" but is residing on the premises, you will need to put in motion your usual procedure for dealing with the unauthorized occupancy lease noncompliance, by giving notice and proving the person is in fact residing on the premises and not just visiting.
The SP/SO has your address registered
Although this is unnerving to you and your other residents or neighbors, this makes our job easier. We do not have much to prove here. The SP/SO registered his address as your property address. You serve the proper notices, and if you do not get compliance, eviction can begin. The first notice is of course the Seven Day Notice of Noncompliance with Opportunity to Cure. This gives the resident 7 straight days, INCLUDING Saturdays, Sundays and legal holidays, to get the unauthorized occupant removed. If the person is not removed and you can prove it, a Seven Day Notice of Termination is then served, and after 7 more days elapse, an eviction can be filed if you can prove the SP/SO failed to timely vacate pursuant to the original cure notice. One of the ways you can prove this is to contact the FDLE and see if the address the SP/SO registered with it is still the unit address.
Visitor or resident?
While we have dealt with this in other articles regarding unauthorized occupants, as a review, you will need to PROVE the person is not just visiting. A SP/SO is allowed to be a visitor, like it or not. Proving occupancy can be extremely difficult, because few if any property managers have 24 hour surveillance of the premises to definitively prove the person is occupying the unit as a resident and not simply coming and going occasionally or staying overnight once in a while. Ironically, if you saw a person coming each day to the unit at 9 a.m. and leaving at 3 p.m., you might assume he visits each day. If the same person came at midnight and left at 6 a.m., you would assume he is living there. These are all just assumptions and not solid evidence, and circumstantial evidence can make for tough proof cases.
Notification to other residents
Under Florida law, you are under no legal obligation to notify the other residents that a SP/SO is on the property. Much to your dismay, most will find out fairly quickly, as the word spreads fast. Some residents upon becoming aware that there is a SP/SO living near them will copy the FDLE printout and plaster your property or surrounding residences with the flyer. If you are approached by angry residents demanding what action will be taken, you simply tell them you are completely on top of the situation and are taking all legal steps to have the person removed, and that it is a legal process that takes some time.
The SP/SO is on the lease!
There are times where you run a criminal background check and a particular offense will not show up. The applicant is approved and moves in. How do we handle this situation when this person turns out to be a registered SP/SO? Suppose the person is not listed on the lease as a "resident", but is listed as an occupant. Listing an adult as an occupant is a major mistake that many property managers make. For some strange reason, property managers think that if someone does not qualify, he should just be listed as an occupant. Sometimes the applicant who is approved will ask you to list her spouse or friend as an occupant, not as a lease signer. ALWAYS have all adults who will be occupying the unit go through the entire application process and sign the lease.
The first thing you need to do if you realize that the actual lease signer or occupant is a SP/SO is to get out the application and examine if there was a misrepresentation made on the application. Go straight to the question where you ask if the applicant was convicted of a felony, and see what the answer is. If the applicant lied on the application, and your lease and/or the application has the proper wording that allows you to terminate the tenancy if a misrepresentation was made, you are in good shape. A Seven Day Notice of Termination will be given to the resident, and an eviction can be filed.
One problem we see in the question you ask of the applicant is that on most applications, you are only asking if the "applicant" was convicted of a felony. What about the "occupant"? Make sure your question always asks if the "applicant or any occupant" was convicted of a felony. This will help protect you if you made the additional mistake of not having all adults sign the lease. Check your application wording right now!
Unfortunately, there are some real, worst case scenarios due to mistakes made by the property manager. Suppose in the answer section of your criminal background question section, the applicant failed to circle either "yes" or "no". Did the applicant lie or make a misrepresentation? The argument can be made that they did not lie, and you will be in a world of trouble. ALWAYS make sure that an application is completely filled out and no spaces are left bank or questions left unanswered. Not answering a question with the hopes that it will slip through the cracks is a clever technique by an applicant to trick an unwary property manager.
Some practical tips
Get an "admission" -- If your resident "admits" to you that she has this unauthorized occupant, SP/SO or not, this "admission" can be used in court. If the resident tells you and your leasing agent, "Yes, I know, he is looking for a place to live", you and your leasing agent can testify to this in court. Of course the judge may not believe you, but it is part of our evidence we use.
Log your evidence -- Create a log of when the SP/SO's car is parked on the property, when it comes and goes, and take pictures. This type of detective work helps you win cases.
Try the "Agreement to Vacate" - If your resident is "in love" enough with this SP/SO, the resident may agree to just move out. Get the resident to sign an Agreement to Vacate, and in our opinion, release her from the lease so you can get them out as soon as possible.
Try a written promise -- It may be possible to get your resident to sign a form stating that they will have the SP/SO removed at a date certain, and if the SP/SO returns after that date, she agrees that her tenancy is terminated. This memorializes the fact that the SP/SO is actually living there, and makes it more difficult for the resident to fight you.
Call your attorney -- The last thing you need is a revolt on your property and residents wanting to break their leases because of the presence of a SP/SO on the property. Many residents, especially those with children, will want to use this as a way to break their leases, and if the matter were to be litigated, a sympathetic judge may feel that particular residents were justified in breaking their lease. The minute you find out that a SP/SO is on the property, call your attorney immediately, so you and your attorney can develop a strategy for removal of the SP/SO, resident or both.
(Back to Top)
Waiver and Estoppel
by Brian P. Wolk, Attorney at Law
There are two legal doctrines that every property manager must understand. Those two legal doctrines are waiver and estoppel. Why? The outcome of your case may be decided based on these concepts. In short, they can operate as a "death penalty" to your case. Unfortunately, many property managers hear the words "waiver" and "estoppel" for the first time after they have lost an eviction case. The legal doctrines of waiver and estoppel show up in many landlord/tenant related matters. Our firm has written a number of articles on related topics in the past, which we encourage you to check out on our EVICT.COM website. In the current economic climate, property managers need to be "on their toes," as tenants are become more desperate and at the same time, more sophisticated, in terms of their knowledge of Florida landlord/tenant law.
What does the legal term "Waiver" mean?
Waiver occurs when a person relinquishes or surrenders his rights or privileges. It can be voluntary or involuntary. The "voluntary" waiver situation occurs when a person signs an agreement relinquishing his rights or privileges. Courts will generally uphold voluntary waiver agreements outside of the landlord tenant context, if the agreement is very specific as to the nature of the rights being waived" by the parties. However, as you will see later in this article, waiver provisions in leases by no means assure you that tenant cannot bring forward a "waiver' claim. By contrast, the "involuntary" waiver scenario takes place when the law deems that you have lost your right to defend a legal action or sue to enforce your rights because of some prior action on your part. The concept of "waiver" is explicitly written into the Florida Landlord Tenant Act. Even in cases when waiver is not addressed in the Florida Statutes, there is law resulting from previous judicial decisions, otherwise known as "legal precedent". That simply means that a prior legal decision finding "waiver" on the part of a landlord or tenant, was the basis for a later decision finding "waiver" on the part of a landlord or tenant. Usually, the facts of the prior case and the later case would be similar, but would not need to be exactly the same.
Common Waiver Scenario # 1 (Rent acceptance after seven day notice)
Ricardo, the property manager at XYZ apartments, observed one of his tenants, Betsy, brandishing a gun on the premises. Ricardo called the police, and Betsy was subsequently arrested for felonies involving firearms, an obvious violation of Betsy's lease with XYZ Apartments. After receiving the police report detailing Betsy's arrest, Ricardo instructed his attorney to draft a seven day notice of termination of lease based upon Betsy's noncompliance with her lease. Ricardo posted the seven day notice, but Betsy failed to vacate. Ricardo was left with no choice but to file an eviction action against Betsy. In Court, Betsy pointed out to the judge that a check for $700 was accepted by Ricardo the day after the seven day notice was posted. The judge dismissed the case on the spot! Why? One only needs to look at Section 83.56 (5) of the Florida Statutes: "If the landlord accepts rent with actual knowledge of a noncompliance by the tenant or accepts performance by the tenant of any other provision of the rental agreement that is at variance with its provisions, or if the tenant pays rent with actual knowledge of a noncompliance by the landlord or accepts performance by the landlord of any other provision of the rental agreement that is at variance with its provisions, the landlord or tenant waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance."
In this case, Ricardo in fact, accepted the rent (the $700 check) with knowledge on the noncompliance (the felony firearm arrest). Is this fair? The answer to that question has no bearing on how you should conduct yourself if you aspire to be a successful property manager. Successful property managers do not waste time "second guessing" the law. They make a conscious attempt to learn the law! One of your goals should be to understand how your actions can adversely impact your court cases if you do not understand the law in this area. It is vital that you review our article on this subject Accepting Rent and the Seven Day Notice
Common Waiver Scenario #2 (Rent acceptance after 3 day notice)
Samantha, the property manager, issued a valid Three Day Notice to Pay Rent to Esmeralda. The amount owed to the landlord by Esmeralda was $2500. Samantha requested that her attorney file an eviction action after Esmeralda's three day notice expired. Four days after the eviction was filed. Esmeralda dropped off money orders totaling $250. That day, Samantha was understaffed at her management office and mistakenly deposited the money orders. Was there a happy ending to this story from Samantha's perspective? Of course not! If rent is accepted, whether in full or in part, (notice that only 10% of the amount owed was paid), by a landlord subsequent to the service of a Three Day Notice To Pay Rent , then the landlord is deemed to have waived its right to evict the resident based on that Three Day Notice to Pay Rent. This is based on the same reasoning as in Scenario #1 above - Section 83.56 (5) of the Florida Statutes. Even though Samantha may argue that she deposited the partial payment without realizing that Esmeralda was out of compliance with the lease, judges will universally consider the deposit into the landlord's bank as acceptance, and most will charge the landlord with knowledge of the tenant's noncompliance. Some judges will still grant the eviction based upon the tenant's failure to deposit into the Court Registry the remaining 90% rent balance, but don't count on it. You should also review our article regarding the return of rent during the eviction process in order to avoid the waiver issue Returning Rent During an Eviction and xxxxxxxAvoiding Acceptance of Rent
Common Waiver Scenario #3 (Rental assistance forms)
Tim, your tenant, is behind in rent for the month of September. "Great news" he tells you. The county housing assistance agency will pay for that month. You gladly sign Tim's housing assistance application. A few weeks later you receive the September rent check from the housing agency. The October rent, however, is not paid by Tim, and you request that an eviction action commence. At court, Tim's attorney enters his rental assistance application into evidence. You were so happy that Tim was receiving help back in September that you did not carefully review the agreement. It turns out that the assistance form is rigged with conditions. The housing assistance application stated that, "The landlord agrees not institute an eviction action for 45 days from the time payment is received". Therefore in this case, the landlord waived their right to evict Tim, because the eviction action was filed prior to the 45 day grace period expiring. These forms frequently limit the rights of property managers and landlords and can be very dangerous. Our firm advises our clients not to sign those forms. For much more detailed analysis I would strongly recommend that you read our article on this subject The Dangers of Rental Assistance Forms
Common Waiver Scenario #4 (Partial or late payment of rent )
This is the "classic" Estoppel case. Charlie paid rent late every month for 6 months. In fact, he paid his rent on the last day of the month. On the seventh month, the property manager decided that she had enough of this nonsense and instituted an eviction action against Charlie. In court, Charlie's lawyer asks the judge to throw out the case based on the doctrine of Estoppel. The judge agrees. The same result often happens when the property manager constantly accepts partial payments. As we have pointed out numerous times in this newsletter and in seminars, the tenant is actually being rewarded for bad behavior in these cases. Why? Courts will rule that the doctrine of estoppel will apply if : 1. Words and admissions, or conduct, acts, or all combined cause another person to believe the existence of a certain state of things 2. In which the person speaking, admitting, acting and acquiescing did so willfully, culpably, or negligently, 3. By which such other person is or may be induced to act so as to change her own previous position injuriously. What does that mean? If the property manager is giving the impression to the tenant that the terms of the lease need not be followed, then the landlord seriously jeopardizes her ability to enforce the terms of the lease. Our article in the November 2008 Newsletter is a must read! Partial Rent Acceptance This situation also comes into play when you do not act promptly to remove an unauthorized resident (link to our article "authorizing the unauthorized resident) or when the property manager serves notices after a non-renewal notice is issued (link to our article "No more notices after Non-Renewal). You should also be aware that under Florida case law, some judges have ruled that serving a Three Day Notice upon a tenant voids all earlier Three Day Notices. You should not give the tenants any Three Day Notices while an eviction action is ongoing!
Does the "No Waiver" provision in my lease protect me?
It may not! Courts will often not allow a landlord to defeat potential waiver defenses by including favorable language in their leases. Many courts take the view that these provisions are against public policy. In addition, many judges may determine that such a clause violates Section 83.45 of the Florida Statutes (Unconscionable Rental Agreement) or Section 83.47 (prohibited lease provision) if those judges believe that you are attempting to take away from the tenants protections already granted to them by the Florida Landlord Tenant Act (Chapter 83 of the Florida Statutes).
(Back to Top)
The Corporation as a Tenant
by Harry Anthony Heist, Attorney at Law
While we strongly recommend against having corporations as tenants in residential leases, sometimes it is necessary and often actually works out fine. How the lease is executed with the corporation becomes a big problem, and rarely do we see leases with corporations executed correctly. The name of the corporation, who signs, the personal guarantee and how it is signed will determine if you will potentially have a successful lease or major problems later. This article will not address the dangers of the corporate tenant, but will rather show you how to enter into a lease with the corporate tenant in the proper legal fashion.
The "Corporation Only" as a Tenant
There will be times when the tenant will be the corporation. Granted, a human being will be the occupant in the residential property, but the lease named tenant will be a corporation and nothing more. This means that the corporation as tenant is responsible for paying the rent, is bound to the lease and incurs all the obligations and benefits as a leaseholder. If the leaseholder corporation is in default of the lease, the landlord's only recourse will be to sue the corporation as the tenant, and the landlord will be bound by all the legal requirements and procedures necessary to sue a corporation. No individual person is responsible for payment of the rent or liable for failure to pay the rent.
Why would a lease only be in the Corporate tenant's name?
In the case of a medium to large corporation, no one is going to personally sign or guarantee a corporate lease in most situations. Usually the corporation is placing employees, officers or directors in the rental unit. The landlord deals directly with the employee, officer or director of the corporation. Neither the occupant nor the corporation, officers, employees of directors will have any individual being liable under the lease. The corporation is the only liable party.
Who is the Corporation?
Before you can even think of entering into a lease with a corporation, it is crucial to know the exact legal entity's name as it is registered with the Florida Secretary of State or the state in which it is incorporated. "Joe's Painting Company" is not the proper corporate name, if in fact the corporate name filed with the Secretary of State indicates, "Joe's Painting and Contracting, Incorporated". We see a massive amount of sloppiness in how the name appears on the lease. We recommend you always get a printout from the internet, and even possibly get a copy of the Articles of Incorporation. While you may not think this is important, when it comes time for the corporation to break a lease, skip out on you or get evicted, this sloppiness can really cause serious complications. Never assume that the name of the corporation that is being provided to you is in fact the exact legal name of the corporation. Always investigate and confirm.
How is the pure Corporate Tenant Lease drafted?
The corporate tenant should be on the lease exactly as it appears in the Secretary of State records. The lease should clearly state who the occupants will be, and if you routinely do criminal background checks on your tenants, failing to do criminal background checks on the occupants could be a Fair Housing violation. Years ago, a client found out that one of the occupants in a unit rented under a corporate name was in fact a registered sexual offender. Since the occupant never filled out an application and the landlord never did a criminal background check, the occupant could not be evicted.
How does the pure Corporate Tenant Sign?
In the signature section of the lease, the corporate name needs to be listed as the tenant along with the name of the person signing the lease on behalf of the corporation.
Example: XYZ Engineering and Surveying, Inc., by John Smith, President.
Is John Smith now liable at all if the corporation fails to pay the rent or gets evicted? No. John Smith is simply signing as his authorized capacity as president of the corporation.
Who is authorized to sign on behalf of the corporation?
This is not an easy question to answer. Someone may have apparent authority, but due to the bylaws of the corporation, only certain people or persons can actually bind the corporation. Your attorney can help you investigate this. Never assume that the person signing the lease is in fact authorized. You will sadly find out that he was not authorized to sign when the corporation is trying to get out of the lease, and the corporation's attorneys can prove that this person had no actual authority.
The Corporate Tenant and the person with individual liability
Unless you are dealing with a solid corporation with a proven track record and know for sure that the person signing the lease has the absolute authority to bind the corporation, you will want to have someone sign "individually" in addition to signing in a corporate capacity. This person signing "individually" is actually bound to the terms, conditions and all obligations of the lease as if there were no corporation in the picture at all. This is the best possible way you can execute a corporate lease.
Example: In the beginning of the lease, it will state that something like "Bill Jones and Mary Jones, Landlord and XYZ Engineering and Surveying Corporation, through its agent John Smith, President AND John Smith Individually"
At the signatory section of the lease, you will have a place for Bill and Mary Jones to sign (unless you are signing on their behalf with a Power of attorney) and 2 more places for signatures:
XYZ Engineering and Surveying Corporation, by John Smith President _______________________ (sign here)
John Smith, Individually ______________________ (sign here)
Common mistakes we see
1. The corporate name is incorrect or incomplete. 2. The lease is signed by a person in the corporation that has no authority. 3. The lease fails to include a signature line creating individual liability. 4. There is a signature line, but it fails to state whether the person signing is doing so individually or on behalf of the corporation, causing legal confusion.
Besides all the dangers of entering into corporate leases in residential units which we promised not to address in this article, we strongly recommend that unless you are sure you know how to enter into a corporate lease, give your attorney a call so that you will know how to draft the lease correctly.
(Back to Top)
Your "Work Order Policy" and the Law
by Harry Anthony Heist, Attorney at Law
Most companies have a written policy under which the tenant is instructed to put all work orders for repairs in writing. No work order, no repair. In a typical situation though, your maintenance person is verbally notified of a repair need while on the property. The most common response by your maintenance person is "You need to go to the office and put in a work order". The maintenance person then goes about his or her day doing the normal repairs and maintenance on the property and following the work orders that have been provided by the office. In other words, the maintenance person is doing the jobs as dictated by the office and office policies. The tenant who gave verbal notice is ignored.
Your Company "Work Order Policy"
A typical company policy as outlined in the lease or the Resident Manual dealing with repair requests states that in the event a repair needs to be done in a unit or there is some sort of a problem that needs attention, the tenant is to come to the office and fill out a work order request. There are obvious reasons for this type of policy, as it documents the work order, alerts management and maintenance to the problem, provides evidence why and when maintenance entered an apartment, and establishes that all important paper trail which we are always recommending be created. Generally, if a tenant fails to put in a written work order, maintenance staff will not voluntarily go out to the unit until such time as the work order is in place, unless a true emergency exists.
The Reality of the Tenant's Expectations
The tenant sees Mike the maintenance person driving the golf cart, flags him down and notifies him that the A/C is not cooling properly. Although Mike tells the tenant that she needs to put in a written work order, the tenant expects this to be a mere formality and that Mike will be out nonetheless as soon as possible to fix the problem. Mike, following company policy, fails to go out. A few days go by, and then the tenant calls the office, wondering why the A/C is not being fixed. As far as the tenant is concerned, she put management, through Mike, on notice of a repair need, and Mike did not make the repair. The tenant now begins the process of trying to break their lease, withhold rent or completely badmouthing the property, plastering notices on every resident's door.
Is the Tenant Correct?
Most property managers will feel that the tenant is completely wrong, as the tenant did not follow company policy or procedure. The tenant did not put the work order in writing; therefore, the company is off the hook as far as the property manager is concerned. The tenant withholds rent, breaks the lease or somehow the situation ends up in court. At court, the tenant will testify that she told Mike the maintenance person that a repair was necessary and Mike failed to make the repair. You and Mike will then tell the judge that the tenant never put in a written work order, and that is why the repair was not made. Now for the tough questions. The judge may ask you or maintenance whether the tenant did in fact notify Mike that a repair was needed. If Mike answers "yes", which he would have to do if he were telling the truth, the judge will not be happy with Mike or management. Possibly the tenant was justified in withholding rent or breaking the lease. While we all know that a tenant is required to give a landlord 7 days written notice if they intend to withhold rent or break a lease, some judges will ignore this requirement by Florida law.
Actual Notice Versus Company Policy
In the foregoing example and possible court case, the tenant shows to the judge, a point confirmed by maintenance, that the tenant gave ACTUAL NOTICE of a repair need which was not performed. The fact that the tenant gave actual notice, while not according to company policy, will result in the judge being very unsympathetic to management and maintenance, and could cause you to lose a case in court. Judges are not big on your company policies or procedures. There is nothing in the law that states that a tenant must put a routine repair request in writing. The judge will be more concerned whether the tenant gave some sort of notice, and in this example, the tenant did give notice, corroborated by the maintenance person's testimony.
Do we now ignore company "Work Order Policy"?
As we have seen, requiring a tenant to provide you with a written work order is a good policy and should be continued, pushed and encouraged by all means. On the other hand, if maintenance is notified of a problem by a tenant, be it at the pool, while doing another repair in the apartment, or anywhere on the grounds, that maintenance person needs to be proactive, write a note down on the pad that he will carry at all times, and create a work order from that. Once that work order is created, the scheduling should be done with the tenant to avoid any accusations by a tenant that maintenance entered a unit without authorization or notice. Remember, when you are in court, about the last thing a judge cares about is your "company policy".
(Back to Top)
NSF Payments - Checks Drawn on Insufficient Funds
By Michael Geo. F. Davis, Attorney at Law
The problem of checks returned on insufficient funds (NSF checks) is often compounded by the manager's subsequent actions. What starts out as a frustrating nonpayment event can become an eviction case lost with liability for the resident's attorney fees. Every NSF check forces the manager to spend additional administrative time with such tasks as reversing the payment on the resident's ledger and collecting the balance owed. It seems reasonable that the landlord should be compensated for this additional time and work in the form of appropriate service charges. Yet not all landlords are properly set up to pursue such charges.
Dealing with a NSF check will depend on whether the resident remains in possession or has vacated.
Resident vacated - collection
If the resident has vacated, then the NSF check is simply a collection issue. The landlord adjusts the resident's ledger to reflect the returned payment. The landlord can address NSF checks just as she addresses any other amounts owed. She can pursue collection on her own (send balance due letters and sue) or send the account to a collection agency. The resident is liable for the face amount of the check, any bank fees incurred by the landlord and court costs, and attorney's fees, if suit is filed. The landlord may also pursue other civil and criminal penalties, as detailed later in this article.
Resident vacated - notice of claim
If a Notice of Intent to Impose Claim on Security Deposit has been sent, and the landlord is still in possession of the security deposit, and the 30 day period after vacating has not expired, the landlord can make an additional claim against the security deposit. She sends an amended notice of claim by certified mail. If a notice of claim has been sent and it already claimed the entire security deposit, then there is no point in sending an amended notice. A balance due letter adding the NSF amount to the outstanding balance is all that's needed.
Resident in possession - 3-Day Notice
If the resident is still occupying the rental premises, the landlord can serve a 3-Day Notice if the amount still owed is rent or additional rent. In calculating the amount for the 3-Day Notice, the landlord should confirm that all amounts on the Notice, including any additional NSF service charges, are designated as rent or additional rent in the lease. The landlord should serve a 7-Day Cure Notice for any amount owed that is not rent or additional rent. If the NSF check was tendered for payment of an outstanding 3-Day Notice or 7-Day Cure Notice, then the prior Notice is still viable. A NSF payment is not a valid payment and will not count as "payment" toward the Notice.
Resident in possession - the demand letter.
A common mistake made by landlords is to send a demand letter for payment of the NSF check. Almost universally, the demand letter gives the resident so many days to pay. The landlord also serves a 3-Day Notice or a 7-Day Notice at or around the same time. If the demand letter and the Notice have different response dates or time periods, the landlord has arguably voided her Notice. Of course, the landlord's attorney doesn't discover this legal flaw until the eviction hearing, and may not be able to extricate the landlord from the strong defense competing notices can provide. If the landlord loses the eviction case, he will likely be responsible for the resident's attorney fees, if the tenant is formally represented. NEVER SEND A DEMAND LETTER FOR AN NSF CHECK. IF IT IS RENT, SERVE A 3-DAY NOTICE. IF IT ISN'T RENT, SERVE A 7-DAY CURE NOTICE.
Resident in possession - the NSF statutory notice
Many landlords are aware that Florida provides for civil penalties under a NSF civil statute. The best advice is to forego this statute and its penalties while the resident is in possession. To invoke the statute, you must send a statutory form and give the person writing the bad check (usually the tenant) 30 days to pay. While the 30-day period is running, any 3-Day Notice or 7-Day Cure Notice given may be invalidated, as the payment dates or time periods of such a Notice conflict with the statutory notice.
Florida statutes provide for criminal penalties for intentionally writing an NSF check. If a landlord is thinking of pursuing criminal penalties for NSF checks, he should first call the state attorney's office for the county, in which the rental is located. Some offices have established procedures and particular forms for their county. A review of the appropriate websites may also provide the needed information and forms. Just as with informal demand letters or statutory demand letters attempting to pursue civil remedies, the pursuit of criminal prosecution involves sending a formal demand letter to the person writing the bad check (again, usually the tenant), which demand will likely conflict with a 3-Day Notice or 7-Day Cure Notice, so we strongly recommend foregoing the criminal prosecution route while the tenant is in possession of the rental premises.
NSF service charges
If the lease provides for NSF service charges, then those charges will be applicable. Florida law frowns upon imposing penalties upon residents. Landlords are cautioned that service charges should approximate recovery of the economic loss caused by the NSF check for additional administration, loss of the use of the funds, etc. Many leases follow the NSF statutory service charges, on the premise that these charges are a legislative indication of reasonable service charges. As of January 2010 the statutory service charges are: $25 if the check is $50 or less, $30 if $51 to $300, $40 if $301 to $800 and 5% of the check amount if the check is over $800. Absent lease authorization or following cumbersome statutory procedures, the statutory service charges cannot be imposed.
Almost all banks impose a fee on the landlord/depositor if a check bounces. If the lease permits, than these fees are chargeable to the resident. If the lease is silent or there is no lease, the landlord may still seek reimbursement of the fees from the resident, but may have to resort to litigation to establish his right to reimbursement.
The landlord's checks bounce
What about the fees charged by the bank for the checks that the landlord wrote in reliance on the NSF check? Because the resident's check bounced, now the landlord's checks may be bouncing. It is unlikely that these bank fees are chargeable to the resident. Absent some extraordinary circumstances, the landlord is responsible for giving a deposited check sufficient time to clear before relying on it.
Keep the lease up to date
As a final point, landlords should check their leases to insure that NSF charges are assessed, and that these charges approximate current statutory service charges. Leases should provide for reimbursement of bank service charges, and should include clauses providing for recovery of any collection fees or charges, including attorney fees and court costs.
(Back to Top)
Stopping the Eviction
by Harry A. Heist, Attorney at Law
Almost every day we get a request by phone, email or fax to "stop" an eviction. We don't mind it, as it is less work for us to stop an eviction than to bring it to completion. However, we immediately ask the property manager why the eviction is being stopped. It is important that we know the answer, as often property managers improperly stop evictions for wrong reasons and find themselves in trouble later, possibly having to file another eviction needlessly. While we don't mind filing evictions multiple times on the same resident, your company might not like the fact that money is needlessly wasted on attorney's fees and costs. If the property manager does not completely understand the eviction process or is desperate to collect any money he can, he often will stop an eviction and end up paying a big price later. Do you really want to make your attorney wealthy?
Why stop an eviction?
The eviction has been filed, and the property manager subsequently receives the keys, or it appears the resident has vacated. This is a common reason. The resident may come into the office with $1000, representing the rent amount owed, and the manager accepts the rent and figures that the eviction should be stopped. This is another common reason. Sometimes the resident makes a significant partial payment and has promised to come in 5 days later and pay the rest. We hear it all the time. You call and want to stop the eviction. The eviction was filed in error, and the property manager hastily wants the eviction stopped. Whoops. It happens. In this article we are going to examine the reasons why property managers stop evictions and how the eviction should be stopped, if it all.
The resident has all of the rent
The Three Day Notice demanded $750, and since the eviction started, the resident now owes another $750, as you are into the next month. He has a cashier's check or money order for $1500 and has come into your office. Do you take it or refuse it? The first inclination, especially in these tough economic conditions, is to take the resident's rent money. Sounds good, right? But Wait! What about the attorney's fees and costs? A typical eviction attorney who does volume evictions will charge between $125 and $150 in attorney's fees for the basic eviction, PLUS you have to pay the costs, which at a bare minimum (depending upon how many residents are being evicted) will run you at least $200. Who is going to pay that money? Some property managers think the resident will pay it. Good luck. Not only do they rarely voluntarily pay, but you cannot force them to pay it. By accepting the $1500, the eviction is dead and gone, and the resident cannot be forced to pay the attorney's fees and costs. Can you deduct it from the security deposit when they vacate? Possibly, but the landlord is not really the prevailing party in the eviction lawsuit, as the eviction has been stopped before a judge made a decision, and there probably is not enough money in the security deposit to cover the attorneys fees, costs and possible damages to the premises or rent owed. The lease may state that the resident is liable for all attorney's fees and costs, but by accepting the rent and voiding the eviction, a resident can fight you on this, especially if she did not realize that you would be trying to take the money owed from the security deposit when she vacated.
The resident has a partial amount of rent owed
In some instances, the resident does not have the full rent but a good portion of the rent owed. The temptation is great, the pressure to collect rent is on, and the property manager accepts the payment. The result? Same as above. The eviction is dead and gone. Good luck collecting attorney's fees and the remaining rent balance. Hopefully the regional manager or the property owner gave the property manager authorization to "eat" the attorney's fees and costs and possibly have to incur them again in the next eviction which may have to be filed.
The resident has turned in keys
The majority of residents under eviction vacate before the process is completed. This is a good thing. Many begin looking for new accommodations the day after they are served with the eviction papers if they have not already begun looking, knowing than an eviction is imminent. The result is that the resident packs up and leaves. In some cases they turn in keys, clean the unit and surrender the premises to the landlord. This is the ideal situation. Why not stop the eviction action at this point? Our question we have is why stop it at all? Our attorney's fees cover the entire eviction from beginning to end. If the tenant vacates a day after we file the case or has to be forcibly removed, our fee stays the same. The only additional cost involved is the fee that the Sheriff's department charges, and the Sheriff is not needed in all cases, especially those where the residents have turned in their keys and fully vacated the unit. Stopping the eviction will result in the resident NOT getting a Final Judgment of Eviction on his or her permanent record. The manager needs to make a decision whether they want the tenant to just have an eviction filing on their record or whether they want the tenant to have an actual Final Judgment of Eviction on their record. Just because the resident has turned in the keys does NOT mean they have completely surrendered the unit to you. You can never be completely sure. There will come a day when you receive keys from a resident and then will be surprised to find another person living in the unit who tells you they are there with the permission of the resident who turned in the keys to you. The result is that the unit has NOT been completely surrendered and you do NOT have possession. You can see how stopping the eviction at this point will result in you not being able to remove this person.
The resident has "abandoned"
Your maintenance tech goes to the unit under eviction, and it appears that the residents have "abandoned". The electric is off, the next door neighbor said they saw them driving off in a truck in the middle of the night, and the unit is trashed. Looks abandoned, smells abandoned and probably is abandoned, BUT by law it may not be. Abandonment is defined by Florida law, and we urge you to read the ARTICLE ON ABANDONMENT before you ever assume a unit is abandoned. Our recommendation in cases where all the residents have not given you possession, but rather have seemingly abandoned, would be to continue on with the eviction if you are worried at all that the resident is going to come back, or if there is anything left in the unit. Carry the eviction to completion, get the writ of possession, and have the Sheriff execute the writ of possession. This will assure you that the eviction is completed. If the residents were to return, they are not able to retake possession, and you are not liable for any personal property which was put to the property line after the writ of possession was executed. It is the safest route.
The proper way to "stop" an eviction
The proper way to "stop" an eviction is to not really "stop" it at all. In situations when the property manager is going to accept rent, in full or part, a Stipulation should be used. The Stipulation is the document under which the property manager agrees to take a specific sum, and the resident agrees to pay the balance if any, including the attorney's fees, costs, late charges or any other amounts owed according to a written "payment plan". This "payment plan" should not be confused with any other type of payment plan or workout agreement you may enter into with your residents. A "Stipulation" is an actual court document that becomes a "court order" once the judge signs an order approving the Stipulation. This court order will authorize you to obtain a Final Judgment of Eviction if the tenant fails to comply with the terms of the Stipulation. Most judges approve Stipulations under which the resident must pay according to the Stipulation AND pay the rent on time for a period of up to 6 months. You see, the eviction is not really "stopped", but rather it is suspended or deferred by the Court. If the resident pays according to the Stipulation, the resident can stay. If the resident fails to make one or more payments on the past balance owed or the rent as it becomes due, the eviction is revived and your attorney can request a Final Judgment from the judge without having to file an eviction all over again.
Should you always use a Stipulation?
We feel that in most cases if you are going to accept a partial or even full payment from the resident, a Stipulation should be used. Obviously, in many cases the resident does not have a significant amount of money, and you should not stipulate, but rather just refuse the rent and continue on with the eviction. If a resident owes $1500 and only can offer you $100, it usually is not appropriate to enter into a Stipulation. The amount you decide to accept in order to enter into a Stipulation is up to your company policy, and this should be established and written down, if not already in place, to avoid inconsistent actions which could result in Fair Housing issues. If you are not stipulating, make sure the resident does not try to slip in a payment without your knowledge, since if this payment is accepted, the resident has essentially paid rent during the eviction, and the eviction may have to be dismissed. It is crucial that you have a system in place to prevent inadvertent acceptance of rent from a resident once an eviction is filed.
The resident pays EVERYTHING including attorney's fees and costs
You might wonder why you should not stop an eviction if the resident is paying you absolutely everything they owe. It happens. The resident comes into some money, receives a tax refund, settlement or begs, borrows and steals to be sure they can pay and stay. We once had a resident rob a bank and then pay the rent to stop his eviction. If the resident pays you EVERYTHING in full, a Stipulation is not necessary, BUT what about next month's rent? Will the resident be in the same position of nonpayment next month? If so, you may have to file another eviction on that resident and go through the entire process again. You need to make a decision whether you just will stop the eviction OR enter into a Stipulation under which the resident is ordered by the Court to pay the rent as it becomes due on time for the next 6 months. This is a judgment call on the property manager's part, and also will depend upon where your property is located. Some judges will only allow Stipulations on past balances owed, but most will allow Stipulations on future payments as well. Your attorney can tell you whether the judge will allow a future rent payment Stipulation. Our recommendation? Stipulate whenever possible, so you can avoid filing an eviction on the resident again within the next 6 months.
The eviction is proceeding, the resident wants to pay, and you are confused!
Call your attorney! Many property managers only have one or two evictions in a year, and if you are in that lucky category, you are more apt to be confused or make mistakes during your eviction. In a way, it is a good problem. Call your attorney right away if a resident want to pay and stay, or you are thinking about stopping an eviction for whatever reason. Your attorney is not hired to just file your eviction, but is there to assist you throughout the entire process. Many things can happen during the eviction process, and your attorney will know exactly how to guide you. Take advantage of the availability and willingness of your attorney to help you. It's your attorney's job.
(Back to Top)
Guide to Florida Eviction Motions
by Brian P. Wolk, Attorney at Law
Most property managers understand the eviction process in very general terms. They know that a Three Day Notice to Pay rent must be served upon the tenant prior to filing a nonpayment eviction action. Likewise, virtually all property managers understand that the final stage of the eviction process involves the sheriff executing the writ of possession. Unfortunately, many property managers do not have a real clue as to what takes place during the time in between the time an eviction starts and is completed. Why is this "in between time" so important? If your eviction attorney navigates through this process skillfully, they not only help you prevail in court, they can shorten the eviction process, so that you can place somebody in a unit who is not living rent free. It is not enough for a property manager to grasp that there is important work to be performed by your eviction attorney in the period after an eviction action is started. A property manager should also have a solid grasp as to what goes on during this "in between period".
Why, you ask? First, you will be better able manage your property, because the timing of the eviction process will not be a mystery to you. This knowledge will allow you to plan ahead and better organize and budget for your property accordingly. Your boss or owner and those you deal with at the corporate headquarters will also appreciate that you are able to explain to them in detailed terms the status of the eviction case against your tenants. They will have comfort that their property manager is on top of things, and it will please them that you have made it a priority to remove the tenants who are living "rent free". Central to understanding the "in between" period of the eviction process is learning how motions are strategically used to advance the eviction effort.
The Motion for Default
Lou missed his February rent payment. You served him a proper Three Day Notice to Pay Rent which has expired. You have now asked your attorney to file an eviction action. The eviction is filed in court on Monday, February 8th. The Clerk of the Court mails Lou a copy of the eviction complaint and summons which Lou receives on Tuesday, February 9th. The process server delivers the eviction complaint and summons to Lou on Wednesday, February 10. In the meantime, Lou has decided not to respond to the eviction complaint and has tossed his copies in to the waste basket. Florida law requires that the tenant respond to the eviction complaint within 5 business days after being served with the eviction complaint. Failure on the part of Lou to respond within the allotted time will subject Lou to a "Default", which may be entered Clerk of the Court after the submission of the Landlord's Motion for Default. The word "default" sounds like a mysterious legal term to many. It is not! A default simply means that one has failed to perform an obligation. In the context of an eviction, the tenant's obligation is to respond to the Clerk of the Court within five business days after being served with the eviction complaint. If not, the tenant will then be in default. In fact, on the eviction summons, the tenant is instructed to send the Clerk of the Court reasons why they should not be evicted.
Now what? The answer is simple. Your attorney may file a Motion for Default on February 18th (the sixth business day after service of process). With the exception of a few counties in Florida, the date the tenant is sent a mailed copy of the eviction complaint from the Clerk of the Court is irrelevant. The key date for purposes of when the Motion for Default will be ripe is the date the tenant was served with the eviction complaint and summons by the process server. In the case of Lou, the key date for timing purposes is February 10th, the date Lou was served with the eviction papers. On February 18th, five business days have passed without Lou responding to the Clerk of the Court. Now your attorney should file a Motion for Default with the following language: "Plaintiff moves for an entry of a Default by the Clerk against Defendant for failure to serve any paper on the undersigned or file any paper as required by law. I do hereby certify that no copy of the answer or other pleading of the Defendant in the above styled cause has been served upon the Plaintiff or his/her attorney, to the time of the filing of the above Motion For Default". Once the Clerk of the Court enters the Default, the Judge will then sign the Final Judgment for Eviction, which will authorize the Clerk to issue the writ of possession to the Sheriff.
Motion for Default and Default Judgment
The tenant has answered the eviction complaint. What does your eviction attorney do now? Section 83.60 (2) of the Florida Statutes answers that question. Before discussing Section 83.60 (2), our article, Motion to Determine Rent, a Tenant Delay Tactic http://evict.com/?page=articles_2#motdet is a must read. Section 83.60 (2) contains the following:"In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon. In the event a motion to determine rent is filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies shall be required to deposit only that portion of the full rent for which the tenant is responsible pursuant to federal, state, or local program in which they are participating".
The above statutory language requires conventional property tenants to deposit into the Court Registry the rent alleged in the eviction complaint and all rent that becomes due in the future while the lawsuit is ongoing. According to Section 83.60 (2), if the tenant files a motion to determine rent, they must attach sufficient documentation supporting the position that the rent owed as alleged in the complaint is wrong. Consider the following scenario: Arthur is served with his eviction papers on March 14th. The landlord alleges that one full month of rent has not been paid. On March 18th Arthur files his answer with the court. Arthur deposits no money into the Court Registry and briefly writes that that he will receive his tax refund check soon and requests a court hearing. Arthur responded in time to avoid a default being entered against him by the Clerk of the Court. What course of action will your attorney take in this case? After five business days have elapsed from the date of service or process, your attorney will file with the Court a Motion for Default and Default Judgment. Your attorney in that motion should request that the Judge enter the default and enter a default final judgment for eviction. The motion may read in part like the following: Plaintiff moves for entry of a default and default judgment by the Court against Defendant for failure to deposit the rent amount alleged in the complaint into the Court Registry as required by Florida Statute 83.60(2)". Likewise, in the above example, If Arthur had written that he is requesting a hearing to determine rent because he disagreed with the amount owed, but gave no reasons why he believed that to be true, then your attorney would add the following language to the above mentioned Motion for Default and Default Judgment: "Defendant has attached no documentation showing the rent amount alleged in the complaint to be in error, as required by Florida Statute 83.60(2)". It is also important to note that some judges prefer that the eviction attorney file a Motion To Strike Defendant's Answer and For Order Entering Default and Default Judgment instead of the motion for default and default judgment. Both motions have the same basic language, except that the Motion to Strike requests the Judge to "strike" the tenant's pleading because they are defective. If the above motions are granted, then the judge will sign the final judgment of eviction, authorizing the Clerk of the Court to issue the writ of possession to the Sheriff. These motions are vital, because you can often navigate through the eviction process without the need to attend mediation and/or court hearings, which saves you time and money!
Motion for Default and Default Judgment for Failure to Deposit the accrued rent into the Court Registry
Elvis, your tenant, was served with an eviction complaint on July 28th because he has not paid the July rent. The next day Elvis files an answer to the eviction complaint with the Clerk of the Courts. He points out that the Three Day Notice to Pay rent was not prepared properly, and he deposits the July rent into the Court Registry. It is now August 10th, and rent is due on the first of each month according to the lease. No additional monies have been deposited by Elvis into the Court registry. At this point a seasoned eviction attorney will file a Motion for Default for Failure to Deposit the Accrued Rent into the Court Registry. While sounding technical, this motion is easy enough to understand. Florida Statute 83.60 (2) requires the tenants who are defending their evictions to deposit not only the rent alleged in the complaint, but all future rents as it comes due while the lawsuit is pending.
Under this scenario, many judges will grant the eviction without a hearing (forcing Elvis to leave the building), since his failure to deposit accrued August rent into the Court Registry resulted in a WAIVER OF ALL DEFENSES other than payment, according to Section 83.60(2). Elvis' defective Three day notice defense is not a defense of payment, and therefore, that defense will not be available for use by Elvis. The motion may contain language like this: "Plaintiff moves for entry of a default and default judgment by the Court against Defendant for failure to deposit the accrued August-2010 rent into the Court Registry as required by Florida Statute 83.60 (2).
A motion for disbursement of the Court Registry funds is also usually filed at the same time the motion for default is filed. Unless there is some real dispute as to whether the money deposited into the Court Registry is actually owing, the disbursement order will also often be granted without a hearing. However, a judge will sometimes grant the eviction without a hearing, but withhold ruling on disbursement of the Court Registry funds until a future hearing is held, particularly if the tenant is complaining about alleged problems with the apartment or indicating other disputes.
(Back to Top)
The Demand for Insurance Information
by Harry A. Heist, Attorney at Law
You go to the post office, pick up the mail and while thumbing through it see a letter from a personal injury attorney whose name you saw on a billboard. Of course you become nervous, and it is the first letter you open. Reading it, you determine that an attorney is representing one of your residents in a slip and fall on the rental property, and the attorney is demanding insurance information. What should you do?
Sooner or later you will be faced with the situation of an attorney for your current or past resident demanding insurance information from you. This is standard procedure for the personal injury attorney, and it should not worry you. It does not matter what the attorney is alleging, if anything, in his or her demand letter. The tenant may be suing on a slip and fall, mold related claim or any possible injury she may claim has been sustained on the property you manage or managed. The key is to comply or make sure the property owner complies with the demand letter as required by Florida law.
Florida Statutes 627.4137 is called Disclosure of Certain Information Required" and sets out what the insurance company and the insured must disclose to an attorney who is representing an injured party. While you may feel this does not apply to you, the statute requires the "insured," i.e., the owner of the property you are managing, or maybe even your company, to disclose certain information. Although you most likely are not the "insured", you are the agent of the insured, and need to communicate with the owner of the property and make sure that either you or the owner complies with the law and provides the information to the lawyer. It may be as simple as making a phone call to the owner's insurance agency or faxing them the demand letter received from the attorney, and the information will begin to flow. If it does not, follow up.
The resident is a fraud!
You might be flabbergasted or angered at the allegations the resident's personal injury attorney makes in his demand letter. You may know for a fact that the resident is committing a fraud or has completely made up a story about getting injured on the property. None of this matters. What matters is that you get the information to the attorney, or at a minimum, make sure the owner of the property complies with the law.
What does the letter demand?
The letter you received from the attorney most likely quotes all or part of Florida Statute 627.4137 and demands the name of the insurer, the name of each insured, the limits of liability coverage, a statement of any policy or coverage defense and a copy of the policy. Most of this information may not be readily available to you or the property owner, but the owner's insurance company will have everything. Usually all it takes is a call to the insurance agent, and they will get the ball rolling. The information must be provided to the attorney within 30 days of receipt of the demand. Additionally, the statute requires that the insured disclose the names of all known insurers. The owner may have insurance with one company and umbrella insurance with another. All this must be disclosed. Read the letter carefully to see if the attorney is demanding insurance information from you, the owner or both.
The purpose of the insurance information demand
The insurance information demand and the law requiring the disclosure of information allows the attorney to deal directly with the insurance company if one exists. Hiding this information from an attorney or ignoring the demand will result in greater problems for the property owner, as the attorney may directly file a lawsuit against the owner, rather than dealing with and possibly settling with the insurance company.
Notification to the Insurance Company
Besides complying with the law under the statute, it is crucial that the owner's insurance company is notified whenever an attorney is indicating that he or she will make a claim. Many insurance carriers will try to refuse coverage of a claim if it is not reported to the insurance company within a certain amount of time as required under the policy. Once you receive the letter from the attorney, you are fully put on notice that there is some sort of claim, and this needs to be reported. If the claim is against you or your company, make sure you notify your insurance company immediately. If the claim is against the owner of the property you manage, take swift action to notify the owner, and most importantly, be able to prove you did.
Notification of the property owner
In these days of email communication and faxes, it is easy to fall into the trap of just scanning the letter and emailing the owner. Is the owner now on notice? We recommend you not only email the insurance information demand letter to the owner, but also send it to him by certified and regular mail following up with a phone call. The last thing you want is to be accused by an owner of not notifying him of a possible claim, having his insurance company deny the claim for failure to notify according to the policy rules, and have the property owner try to say that you were at fault. It is bad enough that many owners who receive the insurance information demand letter do not take the matter seriously, but to be accused of not notifying the owner is an avoidable problem. Questions? Call your attorney if you receive the insurance information demand letter.
(Back to Top)
Security Deposit Deductions
By Michael Geo. F. Davis, Attorney at Law
A security deposit is collected under most residential leases, and in most of those situations, the landlord will seek to make at least some claim against the security deposit after the tenancy has concluded.
Florida Statutes 83.43(12) defines security deposits to mean "any moneys held by the landlord as security for the performance of the rental agreement, including, but not limited to, monetary damage to the landlord caused by the resident's breach of lease prior to the expiration thereof." Florida Statutes 83.49 permits the landlord to impose a claim on the security deposit and sets forth the procedure to do so. Thus, the landlord can impose a claim on the security deposit, not only for physical damage claims, but for any failure in the performance of the rental agreement by the resident.
There is a lot of confusion surrounding the term "damages". As FS 83.43(12) clearly states the term isn't limited to just monetary damage, such as the lost rent. Damages are the compensation recoverable for any loss suffered by the landlord due to the resident's breach of the lease. In the following paragraphs I have listed some of the common items for which deductions are made. The listings are examples only and are not intended to be exhaustive.
Most common damages
The most common damages chargeable against the security deposit are rent (the unpaid rent for the month of vacating: the entire month can be claimed, not just the prorated rent through the vacating date), late charges, NSF fees, accrued utilities, including water, sewer, gas, electric and garbage (utilities are often billed in arrears), pest control, valet trash service, eviction court costs and attorney's fees. Court Registry funds which are already the subject of a court order in the landlord's favor should not be listed.
Concession recapture is not permitted without clear authorization under the lease. Even then, there may not be a clear answer as to whether a concession can be recaptured. Our firm believes that the recapture should be allowed, since the statute places no prohibition on this. However, a judge could take the position that the statute does not directly provide the landlord with this remedy, and therefore the recapture of the concession is prohibited.
Our firm advises against accelerating rent or any other charges in order to deduct them against the security deposit. If after deducting all the current damages, a security deposit balance remains and the lease term has not expired, the landlord should contact his attorney to discuss his options.
Physical damages to the rental in excess of ordinary wear and tear are valid claims against the security deposit. The landlord should remember that after a year or more of use, there will be some ordinary wear which should not be charged to the resident. The landlord should also remember that many judges will build in a depreciation factor to many items supposedly needing repair or replacement. Thus, a landlord should not attempt to charge a resident for the full cost of carpet replacement, when the useful life of the carpet was already 90% exhausted prior to that resident taking occupancy. The term "ordinary wear and tear" does not appear in the Landlord/Tenant Act, but most judges will enforce a variation of this concept. Particularly with regard to physical damage claims, landlords would be well advised to settle with residents, if possible, rather than risk an adverse court decision. The amount in dispute is usually small compared to the liability for the prevailing party's attorney fees.
When the unit has not been left clean, cleaning charges can be deducted. Like ordinary wear and tear, "clean" has no statutory definition, and resident disputes are better settled then litigated. If the landlord imposes a standard nonrefundable redecorating or cleaning fee, then the landlord may have waived the right to charge for any further painting or cleaning, as the case may be.
If the resident has made unauthorized alterations to the rental, then the removal of the alterations and restoration charges are valid deductions from the security deposit. If the resident has made authorized alterations, which the landlord is leaving in place, then there should be no deduction from the security deposit. If the landlord is removing the authorized alterations, then the lease should indicate that it is the resident's duty to restore the premises to the original condition. If the lease is silent or unclear on this duty, then the authorization may be seen as a waiver of any resident obligation to restore.
Most capital improvements are the landlord's responsibility, such as roof, plumping pipes, outside or patio painting. Unless the damage is the result of the resident's intentional act or negligence, it is inappropriate to charge the resident for these repairs or repainting. Claims based upon the resident's intentional act or negligence are often difficult to prove.
Landlords, who are placing the rental for sale or re-occupying the rental, are tempted to overreach when charging the resident for cleaning and repairs, and judges are very aware of this dynamic. Another issue arises when a deduction is made without an actual repair subsequently being conducted. There is no legal requirement that a particular damage be repaired in order to entitle the landlord to a deduction from the security deposit. However, claiming damages without making the repair will require clear and convincing proof. Landlords should have particularly well documented files for any charges in the above scenarios.
Courts have held that certain damages are chargeable against the security deposit only if the lease provides for them in explicit, unambiguous language. Leases can maximize the claims against the security deposit by identifying these items as damages. If the lease isn't specific, a general catch-all clause may suffice. However, reliance on general language is risky. Examples of these damages are often found when a single family home, townhome or condo lease is breached by a tenant vacating early: continuing lawn care and pool service, continuing electric or gas for the fan, air conditioning or heat (to prevent mold or freezing damage to pipes), commissions, re-leasing fees, advertising charges, and administrative or delivery charges for the delivery of Three-Day or Seven-Day Notices. Even if the lease language clearly provides deductions for certain types of damages, a judge can decide not to enforce these charges against the resident, but rather make the landlord bear the cost, such as administrative fees of the landlord's agent.
Charge lists for repairs or replacements, when reasonable, will likely be upheld. It is overreaching that leads to judicial skepticism. If a landlord doesn't buy at retail, the charge sheets shouldn't be at retail.
Some damages are not chargeable against the security deposit regardless of a lease provision permitting the charge. Any administrative charge for preparing the notice of claim against the security deposit or the certified mail postage on the notice of claim are the landlord's statutory duties and are not chargeable to the resident.
Notice of claim
The landlord must account on the Notice of Intention to Impose Claim on Security Deposit not only for the security deposit, but also for any pet deposit or other deposits, such as appliance, utility, garage or common area deposits. Although not technically required under Florida Statutes, it is good practice to account for the last month's rent on the notice of claim.
(Back to Top)
Back to Basics Series - "The Application Process"
by Harry A. Heist, Attorney at Law
The application process is arguably one of the most important parts of the landlord/tenant relationship. It is here that you are investigating your prospective resident for approval. The information you glean from this process will be the main factor in your making the determination to rent a significantly valuable asset to a perfect stranger for a period of at least a year in most instances, and the application will have ramifications after the applicant is approved and moved into the unit. We see so many mistakes made in the process, and these mistakes usually manifest themselves into problems later on in the tenancy after it is too late. Once the application is approved and the lease is executed by all parties, the real problems begin. This back to basics article will examine some of the techniques, tips and trick used by successful property managers to properly navigate the application process waters.
Providing the applicant with a Sample Lease
To avoid any misunderstanding or to forestall a claim by approved applicants that they have changed their minds because they did not agree with the lease terms, we recommend all applicants are provided with a sample of the lease early in the application process, and an information sheet detailing all the charges that will be due and payable in the event of approval. This information sheet should leave nothing out. All charges, deposits, and fees should be clearly listed. In order to hold or bind an approved applicant to signing a lease, the least you must do is make sure they know and understand exactly what they are getting into. The sample lease does not have to be the actual lease they will sign, but a sample that represents the lease all your residents sign. The monetary terms can be on the information sheet.
The Application Form
There are literally thousands of different applications in use in Florida. Each company it seems has created its own preferred application to suit its needs, and often we see problems in the application form itself. If your application form is defective or insufficient in some way, it needs to be fixed. This takes examining your form carefully and seeing if it suits your needs and achieves your desired goals.
The Application Form Layout: The application should be easy to fill out. Too many fill-in-the-blank forms are created where it is nearly impossible to properly fill out each section legibly. Not only is such an application hard to read, but this opens the door up for an applicant to conveniently leave something out or intentionally make something so hard to read that you cannot adequately and accurately process the application. This is often no mistake on the part of an applicant who has a problem in his past or current rental history. Take your own application and pretend you are the applicant, and fill out each and every section. Was it easy? Hard? How was your handwriting? You will probably find parts of the application that need to be made larger or longer so it is easy to fill out completely and read. We are all getting older, so larger spaces never hurt.
All adults fill out and sign their own application:We strongly recommend that each adult who will be residing in your unit fills out his or her own application and pays the required fee. Since we always recommend that all adult occupants are lease signers, with some limited exceptions, this means both John and Mary complete individual applications, regardless of the fact that they may be married. Using one application is a lazy shortcut and can result in a messy, confusing application. While it is legal in most places in Florida to charge two single people each a certain fee for processing the application and a married couple less, we recommend you avoid this and charge each person the same to process the application regardless for marriage status. If you were in a municipality that decided to make single status a protected class, charging a lesser amount to a married couple would constitute discrimination against single persons.
Confirm who is filling out the Application: Here is the picture. The applicant comes in, sits down in your comfortable chair, and you give her a clipboard and the application. She carefully and neatly provides his name, Social Security number, driver's license number, present address, and former address information, and all the other questions are answered and spaces neatly filled out. You send the application off to your screening company, and within minutes you have an approval. The applicant passes with flying colors. A few days later she fills out and executes a lease and moves in. Three months later, you receive a call from someone who stated that his identity was stolen, and coincidentally the person who stole it is your resident who you approved. What happened here? You probably failed to look at the identification and just looked at the application. Maybe the applicant told you she couldn't find his driver's license that day or brought the wrong pocket book or wallet, so you let your guard down. Oh YOU would never let this happen. Yes you would! It happens all the time, and we see it.
Is everything filled out?
We are amazed to see how many approved applications are not completely filled out, with questions not answered and spaces left blank. This absolute sloppiness on the part of the property manager allows an applicant who would have otherwise been denied to slip through the cracks. If an applicant were to fail to answer a simple "yes or no question", did he lie on their application? Probably not. Suppose that question pertained to a criminal background; the applicant was approved and moved in. You later find out that your screening company missed a serious felony, and now you want the person removed from the property. Can he be removed because he lied on their application? No, because he really did not lie. He just conveniently forgot to answer a question, and you failed to catch it.
Asking the right questions on the Application
The Eviction Question: Almost every application asks the following question: "Have you ever been evicted?" The applicant usually answers "no", and many screening companies will not catch this anyway, especially if the eviction has been recently filed. So the applicant is approved and moves in. You then get a call from a neighboring property or an "anonymous" call informing you that your tenant was evicted from their property. You decide to check out the public records, and sure enough, you find 3 evictions filed on the person. The key word here is "filed". Most people who have evictions filed against them move out before actually getting formally "evicted". Does this constitute a lie on the application? Possibly not. You see, your question is wrong. Ask the following question instead: "Have you ever had an eviction filed against you, or have you ever been asked to leave by a current or former landlord?" . As you can see, this question encompasses far more scenarios.
The Criminal Background Question:The other most common question that is often framed incorrectly pertains to the applicant's criminal background. The question usually is as follows: "Have you ever been convicted of a felony?" The applicant answers "no" and is approved through your screening process, and 2 months later you find out that your resident was arrested 3 times for trafficking cocaine, a felony, but each time "adjudication was withheld". What does this mean? Did he commit the crime? Of course. Do you want this person living on your property? No, but did he lie? No. The problem here is that your question only asks about "convictions". Many people are arrested, and for whatever reason, be it good lawyers, first time offenses, cooperating with police or some "deal", they receive "adjudication withheld", "adjudication deferred" or "nolle process" . This happens all the time. In an overburdened legal system many people who are arrested are placed into diversion programs or probation type programs rather than jail, even for serious felonies. You must rephrase your application question to something closer to: "Have you or any occupants ever been convicted of a felony or had adjudication withheld or deferred for a felony offense?" As you can see, this question will pertain to far more of your applicants, and you can then question them further and make a decision based upon your criteria. Remember, your criteria is just as important as your application form and must work for your needs as well.
The Bankruptcy Question: Renting to a person who has filed bankruptcy in the past is certainly legal and not necessarily dangerous. While a person who has filed bankruptcy in the past may file again, if the bankruptcy was fully discharged, the chances are relatively low. A person who has had all their debts discharged in bankruptcy may actually be a lower risk, since if the bankruptcy was recent, that person most likely has little debt. The question though should be asked nonetheless. If your screening reveals a pattern of bankruptcy filing and dismissals, this may indicate the applicant has used bankruptcy filing and dismissal as a way to stall an eviction, foreclosure or other collection activity. It is important to see if the bankruptcy was dismissed or discharged. Dismissal means that for some reason the bankruptcy was stopped or not pursued any further, while discharge means that the applicant's listed debts in the bankruptcy petition have likely been permanently wiped out. If an applicant is currently in an open bankruptcy case, we strongly recommend that you do not approve the application, as you may be pulled into the bankruptcy through a conversion or dismissal and subsequent refiling.
Checking past and current landlords
Often you are unable to find any credit problems possibly due to an applicant's lack of credit history, or possibly he has good credit but has current or past problems with landlords. There seems to be a growing and troubling trend for property managers to want only to look at a credit report or screening report, and not delve into the applicant's rental history by calling present or prior landlords. The idea that someone with poor credit will make for a poor resident is a complete fallacy. Many residents have horrendous credit histories but make exemplary residents. Some applicants with good credit may be nightmarish tenants in other regards. What is more important in our opinion is the information that you get from the current or past landlord. The problem is that some landlords, either by company policy or for fear of getting in some sort of trouble with privacy issues, are reluctant to tell the truth to you or to give any information out whatsoever. Many property managers (hopefully none reading this article) have given a glowing recommendation to an inquiring landlord only to hasten the resident's departure from their own rental or apartment community. Another classic move is for the applicant to make the phone number of their current or past landlord difficult to read so you try to call, but then give up as the number is wrong. This then slips through the cracks and you end up forgoing a proper check of the current or prior landlord.
A classic trick by an applicant who is having a problem with her current landlord is to provide a phone number on the application that is not that of her real landlord, but to a friend or even herself. You then call the number and identify yourself as a property manager with XYZ Property Management Company. The fake landlord is ready for the call and proceeds to say wonderful things about your applicant. This trick is played on property managers all the time. If the applicant gives a private property owner as her current landlord, take the time to check the public records and see who in fact owns the place where the applicant is living. Really confirm to whom you are talking, even if it means calling the number given on the application from someone else's cell phone and asking innocuous questions, such as, "Do you have any rentals available?", or "Do you accept pets?" If the call is placed to a fake landlord, you will fake them out and trick them at his or her own game, as the response will most likely be, "Rentals? We have no rentals, you have the wrong number." Property managers who fail to verify current or prior landlords are sure to have problems.
The "foreclosure story" is extremely common right now. The applicants either tell you that the owner of the home where they were living was foreclosed upon, and they had to move, or the applicants actually owned a home which was foreclosed upon. In both cases, you then really will have a tough time verifying their rental history, or you will believe them that they were former homeowners. It is amazing how the "foreclosure story" is easily sold to a property manager. For some reason, property managers feel sympathetic or sorry for applicants when they hear the "foreclosure story". Use the public records to your advantage, and dig around. If you can't figure out how to do it, ask your attorney, because your attorney will know how to do it. Again, don't let your guard down.
Taking a good faith or holding deposit
Most applications provide for some sort of good faith or holding deposit to be paid by the applicant, such deposit to be refunded if the applicant is not approved or to be applied to the security deposit if approved. Many applicants simply change their minds and want their money back. Whether or not you should return the money is the stuff of an entirely different article, but ALWAYS make sure that if you return the deposit money to the applicant, whether their payment was by check or money order, that the payment has in fact cleared the bank. Many people do not realize that a stop payment order can be placed on money orders, similar to a check, and applicants who are told they will forfeit money will often quickly stop payment on a check or even a money order. In the meantime, you may have a change of heart and end up sending them a check which they take and cash, only for you to find out the payment they gave you has been dishonored. Have we seen it? You bet.
How long will it take to approve an applicant?
You need to set a time frame in which to approve or deny an applicant. Just as you do not want them to keep you hanging when deciding to sign a lease, you cannot keep applicants hanging too long, or they can change their minds. Applicants can change their minds at any time before they are in fact approved. Some applications even give applicants 72 hours to change their minds, and while this is not the law but simply something that is placed in an application, it is nonetheless legally binding. If you are dealing with a condo or homeowners association situation when association approval is required, you need to make this real clear to applicants that there may be delays, and set some timeframes.
Once approved, when is the lease signed?
Your application and your Application Approval Letter should clearly give a deadline to the applicant as to lease signing. Whether this period is 3 days or 2 weeks, it depends on your own policy, but you do not want a situation when an applicant is approved and then continues to stall coming in to sign the lease agreement, while you are turning away prospective renters for the unit. The Application Approval Letter should clearly indicate that the applicant is approved and provide a firm deadline for lease signing. After that, it is fair game for you to rent the unit to someone else if the approved applicant has failed to execute a lease. Up until the time the approved applicant or resident takes possession, keep close track of inquiries for the unit, as you may need to be able to prove your were damaged in the event the approved applicant fails to take possession. Do not assume just because the applicant is approved and/or the lease is signed, the deal will actually happen.
The applications you are presumably holding in your office in a filing cabinet represent a virtual treasure trove of information that can be used by someone who wishes to engage in identity theft or use the information to obtain credit cards in the applicant's name. It is absolutely crucial that you guard these applications and create a plan and procedure under which you will keep them out of the reach of any unauthorized persons, including other staff members. While we all like advertising, having your company's name on the front page of the newspaper because 50 people had their identities stolen, or credit card fraud was committed due to applications taken out of your insecure or unlocked filing cabinet, is not effective advertising in our opinion.
Are you all set?
Take a look at your application and your procedures and see if there is any room for improvement. Remember that this is the beginning of a long relationship, and you want to get it correct from the start. If you have a question about your application, feel free to give us a call.
(Back to Top)
The Resident in the Military and Evictions
by Brian P. Wolk, Attorney at Law
Each day it seems as if there is another spot in the world where there is conflict, or where destruction due to a natural disaster has occurred. Members of the armed forces are being deployed in large numbers to areas all around the globe. The event triggering the deployment may be obvious. For example, a war in the Middle East may be the cause of increasing the number of active duty military servicemembers. The event triggering the deployment can also be one that is less obvious, such as an earthquake in a foreign country where the military mission is to distribute massive relief aid. The increased military presence has also created more questions for property managers from residents who are servicembers and family members of servicemembers who are unclear as to their lease obligations.
Background to the Servicemembers' Civil Relief Act
The Servicemembers' Civil Relief Act, also known as "SCRA", is a federal law which affords servicemembers numerous protections in civil lawsuits. Some of these protections allow servicemembers or their family members, or dependents in some cases, to delay or suspend civil liabilities. The act was signed in to law by President Bush in 2003. However, the earlier version of the law was enacted during World War I and re-enacted in 1940 during World War II, and previously was known as The Soldiers' and Sailors' Civil Relief Act. Why were these laws created? The answer to that question is simple. Lawmakers wanted those who are serving in the military to remain focused regarding their mission to protect our country and did not want the servicemembers being distracted by civil lawsuits involving them. It is also the belief that servicemembers are at a distinct disadvantage in terms of defending themselves from a civil lawsuit while being stationed in a far away land. Judges take this law very seriously and will in many cases "give the benefit of the doubt" to the military resident, if the outcome of the case is a close call. The United States Supreme Court in a 1948 opinion stated that the law should be interpreted "with an eye friendly to those who dropped their affairs to answer their country's call". The property manager attempting to evict a resident on active duty in the military or a resident in the process of reporting for active duty often encounters the following two areas that the Servicemembers' Civil Relief Act covers: protection against the entry of default judgments, and a stay of proceedings when the servicemember has notice of the proceeding. "SCRA" covers residential evictions of servicemembers or their dependents during the period of military service, unless the monthly rent is unusually high (currently an amount exceeding $2900.00; this amount is adjusted each year for inflation). "Dependents" are defined under the Act as the spouse of the servicemember, a child of the servicemember or an individual for whom the servicemember provided more than one-half of the individual's support for 180 days immediately preceding an application for relief under "SCRA".
Does the "SCRA" apply to the residents that I intend to evict?
Your three bedroom units are in hot demand because there are so few available in your market. Charlie, Wilma and Andrew are roommates and have stopped paying the monthly $2400 rent. You know that you can relet the unit the minute that the residents are evicted. You are very anxious to take back possession of the apartment. Yesterday, Charlie was called to active duty by the Coast Guard. Wilma is Charlie's girlfriend, and up until 7 months ago when Charlie was laid off, she was supported entirely by Charlie for the last 27 years. He had paid for all of her living expenses. Much to Wilma's dismay, Charlie has continued to pay for Andrew's college expenses, even though Andrew is not a relative. In fact, Charlie has provided Andrew with 55% of his living expenses over the course of the last six months. Are Charlie, Wilma and Andrew covered by "SCRA"? The rent amount is low enough to fall under the act. It is clear that as a member of the Coast Guard on active duty, "SCRA" will apply to an eviction action filed against Charlie. With regard to Wilma and Andrew, they may have coverage if they are treated as "dependents" of a servicemember. Unfortunately for Wilma, she is neither the spouse of Charlie, nor has she received enough living expenses in the recent past, since the servicemember must provide more than half of the support during the preceding six months. Andrew, on the other hand, is considered a "dependent", because he received 55% of his living expenses from Charlie during the last six months.
Obtaining a default against the servicemember or dependent of the servicemember.
During the normal eviction scenario, if the resident does not answer the complaint after 5 business days, the landlord is entitled to a default which is entered by the clerk of the court. The judge then will sign the final judgment of eviction. In the case of a servicemember or dependent of a servicemember, the process to obtain a default is more complicated. The judge, not the clerk of courts, must enter the default. To obtain the default, the landlord must first provide the judge with an affidavit regarding the resident's military service or the servicemember who is a father, husband or financial supporter. The article written by our firm THE VERIFICATION OF NON-MILITARY STATUS IS A MUST READ: http://www.evict.com/?page=articles_2#verification. If the verification is inconclusive as to military status, the judge may enter a default but also require the landlord to post a bond in a certain amount to protect the residents from damage, if the judgment is set aside at a later date because it turns out that one of the residents was a servicemember. If the military verification shows that the resident, parent, or financial supporter is in the military, then the judge will order that an attorney be appointed to represent the resident. This attorney is called a military ad litem attorney. Extra costs are involved in this process, and courts may pass this cost on to the landlord. The military ad litem attorney will attempt to locate the servicemember and will review the case file to determine if there are any valid defenses that the servicemember may assert. If the military ad litem attorney submits a report to the court that he does not believe that the resident has any valid legal defenses, the court then may enter a default and subsequently award possession back to the landlord. Remember this: The Act calls for those who knowingly file false military verification affidavits to be fined and IMPRISONED FOR UP TO ONE YEAR. You read that right! You can end up in jail if you mislead the court here.
Potential 90 day stay
Cletus, one of your residents, has been called up for active duty in the Navy. Cletus did not pay the March rent. You deliver a three day notice, and subsequently file an eviction against Cletus after his continued failure to pay the owing rent. Cletus answers the complaint with an admission that he has not paid rent, but claims that there was some sort of oral agreement made with your assistant property manager, allowing him to pay late, and that he has been struggling with his bills since his deployment. Now that Cletus has responded, your attorney tells you that the military ad litem attorney is not required here, since the military resident filed an answer with the court and has therefore appeared in the action. You are happy to hear that, but your happiness is short-lived, because your attorney informs you that Cletus is likely entitled to a stay of the proceedings for at least 90 days. The Act will often entitle Cletus to a stay of at least 90 days, no matter how weak his legal defenses, if he can simply convince the judge his military service is adversely affecting his ability to timely pay the rent. The judge can stay the proceedings for a lesser period of time, but often judges will exercise their considerable discretion in favor of the servicemember. The judge also has power to restructure terms of the lease, and has discretion to award a longer stay depending on the facts and circumstances.
Waiver by the servicemember
A property manager should still keep in mind that "SCRA" allows the service member to waive protections afforded under the act. Therefore, entering into a stipulation with the military resident is often a good idea. However, you should consult with your attorney to make sure the waiver wording listed on the stipulation is legally enforceable.
(Back to Top)
The Census and the Landlord
By Michael Geo. F. Davis, Attorney at Law
The 2010 Census is upon us. It is the legally mandated counting of people in the United States and its territories. It fulfills an important constitutional purpose. While each state has two Senators to represent it in the United States Senate, the number of Representatives in the United States House of Representatives is based upon the population of the state: the greater the population, the greater the number of Representatives. The power of any state to advance its legislative agenda and to secure benefits for its citizens increases with the number of Representatives which it has. In addition, the census is the basis for distribution of many government benefits and programs for schools, hospitals, transportation, and most importantly to landlords, housing. It is particularly important for Florida, whose population has increased since the last census, to get every person counted.
National Census Day
April 1, 2010 is National Census Day - the day on which the "count" is fixed. April 1st is the relevant day, whether the questionnaire is completed or the census worker visits before or after April 1st. Census takers are more properly called "enumerators". During March of 2010, questionnaires were mailed to residences to be returned in April. From April through July, enumerators will visit homes that did not return the questionnaires. In an accommodation to America's multi-lingual nature, enumerators will carry cards in numerous languages. The cards will inform non-English speaking interviewees that they should tell the enumerators their language, and the Census Bureau will follow up with someone speaking their language. If the resident is not home at the time of the enumerator's visit, the enumerator will leave a notice of visit on the resident's door. The resident can use the contact information to arrange a convenient time for the re-visit. The personal interviews take less than half an hour.
The census is "legally mandated". Enumerators have the legal right to have access to individual homes and multi-family properties to collect census information. Enumerators may have to return several times to collect the information. Various other census workers may seek access to the residents for census related operations, such as non-response follow-up re-interviews (quality check of an enumerator's prior interview), census coverage follow-up (check possible double counting or clarify responses to prior questions), and field verification of mismatching addresses. There is the possibility that enumerators will contact some residents several times in the various follow-up and verification interviews. Landlords should recognize this and expect some resident complaints about multiple interviews. Residents should be told to direct any complaints or comments to the Census Bureau, as the landlord cannot prevent, limit or interfere with enumerators.
As part of the census the Census Bureau is performing another mandatory survey: the American Community Survey. The ACS collects population and housing information. Landlords are required to cooperate in the ACS, as it is part of the 2010 Census.
Landlords' cooperation required
Landlords and their agents are required to cooperate and take reasonable steps to assist the enumerators by permitting access. If the enumerator is unable to make contact, the landlord/agent should also assist by indicating the best time to contact residents, if known to the landlord/agent. Finally, the enumerator may not be able to establish contact, and request the landlord/agent to compile certain information on the occupants. The law does not provide for the option to demand written notice or written requests from enumerators as to what they want. So, landlords/agents should neither expect nor require that enumerators give written demands for information. Enumerators will attempt to schedule mutually convenient times for meetings and allow landlords/agents adequate time to gather and respond to information requests. However, given the deadlines imposed on the Census Bureau for completion of the census, the enumerators will expect a quick response.
The Census Bureau's position
In a letter dated March 2, 2010, the U.S. Census Bureau has advised the National Multi-Housing Council as follows:
If the enumerator is unable to contact the occupant within the specified number of attempts, the enumerator may ask for as much information as the owner/manager can provide for an occupied unit. However, if the owner/manager states that the unit was not occupied on April 1, 2010, the enumerator will complete the questionnaire using the owner/manager as a knowledgeable respondent for the vacant unit.
The owner/manager should provide the information necessary to complete the census questionnaire, to the best of his or her knowledge. Questions on the census questionnaire have been approved by law, and the owner/manager is not in violation of any privacy laws if he or she provides the requested information. Although the owner/manager may not be able to answer all questions, such as race or ethnicity, an attempt by the owner/manager to provide available information should be made.
Landlords/agents can demand to see the enumerator's identification. The Census Bureau indicates that all enumerators will have official government ID badges and may be carrying "US Census Bureau" bags. Landlords/agents can request that the enumerator present his government ID badge and another picture ID badge. If a Florida landlord/agent wants further verification, he can contact the Regional Census Center for Florida in Atlanta, Georgia at 404-335-1555. Enumerators are not permitted to enter the residents' homes, and therefore, they should never request to do so.
Since landlords and their agents will be the secondary source of information, the more residents that the enumerators contact, the less time and work will be needed by landlords/agents with enumerators. Landlords may wish to alert their residents that census workers will be on the property. Landlords may also want to inform residents that census workers may not request to enter residences, and that residents can verify their identity by requesting to see their ID badges, and if in doubt, they can contact the Regional Census Center. Follow-up notices will be left on a resident's door, if the resident is not home at the time of the census worker's visit. (For simplicity in notice to residents, we advise referring to them as "census workers" rather than "enumerators".)
Landlords should be aware that like any other government program, the census will have its fair share of scams and scam artists impersonating enumerators. Enumerators do not use email or the internet to contact anyone. Enumerators will not ask to enter the home "to go to the bathroom" or for any other reason. Enumerators or census forms do not request donations, social security numbers, or detailed financial, banking or credit card information. Enumerators may use the phone to follow up on questions on a returned questionnaire, but will never ask questions beyond the ones on the census questionnaire. Be careful of relying on caller-id as proof of the caller's identity, as scam artists can make it appear to be from the "Census Bureau".
Landlords are not violating the privacy of their residents, as landlords are required by law (Section 223 of Title 13, United States Code) to comply, and are subject to a fine for failure to comply. Enumerators should have available for landlords/agents a Confidentiality Notice. The Census Bureau only collects the information required by the law and imposes strict confidentiality requirements on those collecting and processing the census information. Federal law provides penalties of up to five years in prison and a $25,000 fine for the unauthorized disclosure of personal data by any enumerator or other census worker. Anyone who suspects an unauthorized disclosure can contact the Chief Privacy Officer for the Census Bureau, who is responsible for implementing privacy policies.
Landlords/agents should expect that their files may very well lack some information sought. Fair Housing concerns have limited landlords from acquiring information on ethnicity or race. Landlords/agents are only required to supply the information that they have. The questionnaire consists of only 10 questions, but 5 of the questions have to be answered and re-answered for each occupant of the residence. The enumerator will assist the landlord/agent with any interpretations of what a question is seeking.
In conclusion, landlords have a vested interest in cooperating in the census. It brings some of those hard-earned tax dollars back to Florida and the landlord's community. Landlords have a legal obligation and an economic incentive to see that every person in their apartment communities or rentals is counted. For more information on the 2010 census, visit the US Census Bureau or the National Apartment Association's website.
(Back to Top)
Complying With The Truss Marking Rule
by Harry A. Heist, Attorney at Law
Do you own or manage buildings that consist of 3 units or greater? If so, new Fire Code rules will affect you. On December 13, 2009, new regulations were passed which require special signage to be affixed to buildings, and failure to comply could result in substantial fines. Compliance is easy. Just purchase your signs and affix them to the building. There are three different signs though, and you need to know which one you need and where to place them. The most important thing is to make sure you are in compliance, as your deadline was March 13, 2010, which is already past. The local Fire Marshals are just beginning their inspections, and you are now on notice! There is no grandfathering, and if you are not in compliance, it will be up to the local Fire Marshal to determine whether fines are imposed.
The Aldridge-Benge Firefighter Safety Act
The Act which was signed into law on December 13 by Governor Crist is in honor of 2 Orange County Florida firefighters, Todd Aldridge and Mark Benge, who were killed when the roof of a burning gift shop collapsed. The purpose of the law is to alert firefighters to the construction type of a structure they may enter in the event of a fire or other emergency operations they may be conducting requiring entry into the building, so they can better prepare for the hazards involved. The State of Florida Fire Marshal's Office implemented Rule 69-A-60.0081 under the authority of Florida Statutes Section 633.027.
The Type of Construction the Rule Covers
The construction type that is at issue is known as "light frame", which means construction in which repetitive wood such as beams or trusses are used, or light gauge steel is used, for either roofs, floors or walls. This pretty much covers almost all the construction in Florida with the exception of a concrete building with concrete floors and a heavy gauge steel roofing system. Trusses are prone to failure in a fire, and once one truss fails, the load is shifted to the other remaining trusses, which in turn can cause a catastrophic failure and collapse. Compounding the problem are heavy items which are often placed on floors and roofs, such as air conditioning units, which further contribute to potential roof and/or floor failure.
Are all structures covered?
The Rule covers all "commercial structures" of 3 units or more. From a triplex to large multifamily buildings, the Rule would apply. Although you may not look at a triplex as a "commercial" structure, for the purposes of the Rule, it will be considered commercial and covered. In addition to the typical structures where your residents may live, the Rule also possibly covers your clubhouses, maintenance shops, laundry rooms, fitness centers and any other structure which may be on the multifamily property. Interestingly, townhouses are not considered multi-unit residential structures, so they do not need to comply with the rules.
What are these "signs"
The signs required, or "approved symbols" as referred to in the Rule, must be a Maltese Cross which measures 8 inches horizontally and 8 inches vertically of a bright red reflective color. The signs may be as simple as a vinyl stick-on sign, or a more substantial, aluminum or composite type of sign. If the structure has light frame truss roofs, it must be marked with the letter "R". If the building is constructed with a light frame truss floor system, it must be marked with the letter "F", and if both light frame truss floors and roof are present, the building should be marked with the letters "RF".
Where do you obtain the signs?
Many sign makers and supply companies for the multifamily housing industry are providing these signs. They are not cost prohibitive, and most companies have them in stock or can have them made in an extremely short period of time. One such company, Giglio Signs, can assist you, keep the signs in stock and have been providing the signs to hundreds of properties throughout Florida.
Placement of the signs
As is often the case, some laws or rules create more questions than answers, so the following explanation should be a starting point only and not relied on completely. According to the rule, the "symbol" must be placed within 24 inches of the left of the main entry door of the unit and must be placed no less than 4 feet from the bottom of the symbol to the grade, walking surface or finished floor, and no more than 6 feet from grade to the top of the symbol. Does the rule mean the edge of the symbol or the middle of the symbol? We don't know. The Fire Marshal can get very picky at times, so we urge you to measure carefully and not try to be too close to the upper or lower limits. You can be sure that they will have their measuring tape with them. Remember that we are talking about the symbol, not the actual sign to which the symbol may be affixed, and this will affect the measurements. The symbol itself must be permanently attached to the structure on a contrasting background, or be mounted on a contrasting base material which is permanently attached to the structure. If you are unsure of the placement of the signs or whether your signs are in compliance, we recommend that you call your local Fire Marshal and have them come out to the property to meet and advise you.
Some final Notes
Due to the importance of compliance with the new Rule and the possibility of serious multiple fines for noncompliance, we urge you to take this matter seriously. If you have not done so already, purchase your signs and call the local Fire Marshal. Many of the local Fire Marshals are overwhelmed right now with these calls, and some are not sure of the sign placement in unique circumstances. Once you have them come to the property, try to retain some kind of proof that you were told where to place the sign by the Fire Marshal and that you complied. It would be unfortunate indeed if you followed the direction of a person from the Fire Marshal's office who came out to the property, only to have one next year state that you did not comply. See if you can get something from the Fire Marshal in writing once the signs are affixed to the building stating that you are in compliance. When shopping for the signs, you are going to find a wide range of quality and materials used. There is no prohibition on a simple stick on vinyl sign, but will the sign last, or will it be peeled off by a resident or guest? Look around and see what is available, and finally, once you have the signs affixed to the premises, make sure your maintenance staff routinely checks on the signs to see if they are damaged or missing. The local Fire Marshal will not have sympathy for you if you fail to make sure the signs stay on the premises, so keep spare signs handy, and affix them to the premises in a fashion where they are not easily removed or vandalized. Click here for a full copy of the rule and images of the required symbols. Get into compliance now. Not only is it the law, but it can help save a life.
(Back to Top)
Fighting Crime at Your Property
by Brian P. Wolk, Attorney at Law
As unemployment rates rise in this tough economy, many studies have shown that criminal activity will also increase. Even worse, as property owners face difficulties with their mortgage payments, they may skimp on spending money on security related maintenance or criminal background checks. They may also be so anxious to rent the property that they approve renters who fail applicant screening tests. This type of thinking will cost the property owner more money in the long run, as resident retention will plummet, and the property value will spiral downward, while civil liability for crimes committed on your property could zoom out of control.
The Starting Point: Screen your residents!
Elizabeth has just arrived at your leasing office. She fills out the rental application and lists her previous landlord as a reference. She also represents on the application that she has never been convicted of a felony and has never been evicted. You verify that there has been no felony conviction, and that the resident has never been evicted. Is this a strong screening process? We say no! Why, you ask? To start with, no telephone call or other contact was made with the former landlord. Maybe that "reference" would have turned out to be anything but a "reference". Perhaps they would have told you about prior conduct problems that the tenant had. Make sure your application contains language authorizing the prior landlord to divulge all information in its residential file to you. If Elizabeth was served with a Seven Day Termination Notice for drug possession by the prior landlord, it is possible that you would have learned of it by simply making a phone call. We always advise our clients to use diligence to determine whether the prior landlord is real, and not just a friend of the applicant, so that you are not "conned" by the applicant. Suppose that the prior landlord discovered "crystal meth" inside Elizabeth's apartment and issued her a Seven Day Termination Notice. If Elizabeth bailed from the unit before an eviction was started, the eviction action would not have shown up on the prior eviction screening report that you ran, because there was no eviction in the first place; the resident skipped out. In fact, even if an eviction lawsuit is commenced, if there is no final judgment of eviction, the tenant's prior eviction action may not show up at all on the report. At our seminars, we also urge all property managers to access to public records to see if there have been prior eviction actions started. Maybe your "hot" prospect is under eviction now! Another mistake you made here is not requiring Elizabeth to inform you if there has ever been an "Adjudication Withheld". While this might sound like some fancy legal language, it is easy enough to understand. "Adjudication Withheld" simply means that the criminal conduct likely took place, but the court is not entering a conviction. The judge sets forth conditions that must be met, and if those terms are satisfied, the conviction is not entered. For example, Elizabeth was arrested for drug possession. The judge may order her to attend a treatment program. As a property manager, you want to have the right to exclude from your community applicants who have had an "Adjudication Withheld" on their record. You also should have checked the website of the Florida Department of Law Enforcement "'FDLE"to see if there is a criminal history. You should also be very diligent in researching whether any sexual offenders or predators are living on the premises. You can access that information on the FDLE website. Our article about sexual predator or offender laws should be reviewed carefully.
Enforce your lease, and team up with your attorney
Word travels quickly through an apartment community if the property manager is reluctant to enforce the terms of the lease regarding conduct because the manager does not like confrontation. Do not let the "inmates run the asylum". A property manager needs to fight crime head on and evict the "rotten apples" from the community. If the property manager is aggressively fighting crime, that message will also spread fast, and some of your problem residents may move out on their own without the time or expense involved in an eviction. When a resident engages in criminal conduct in violation of your lease, you should already have an attorney in place that works fast, efficiently and is very reachable, so that you can respond swiftly to the situation. Work with your attorney to build your case, so that the appropriate seven day notice of lease termination can be issued to the resident. You will need PROOF! Often police reports will be needed, along with a list of residents who are willing to testify against the resident, in the event an eviction action is contested and a hearing is scheduled. The important thing is not to act impulsively. Disregarding your attorney's advice will only enable the criminal resident to remain on your property longer, and even may make you accountable and liable to pay the resident's attorney's fees and costs in the event that the judge rules against you in court. When it comes to lease enforcement, the property manager should regularly inspect. You would be surprised how many criminal violations are discovered in this way. You should also have an "open door" policy for your other residents, so that they report criminal behavior to you. You want to learn about all lease noncompliances, not just ones that you discover. Neighborhood Watch programs may also be an effective way for your residents to take back control of your community.
Use Courtesy Officers.
A property manager should consider using a "Courtesy Officer", as that may have a positive impact on the crime rate at your community. Criminals usually do not like additional people looking over their shoulders and may end up leaving your community voluntarily. The "Courtesy Officer" can respond to many types of prohibited conduct, including but not limited to late night/early morning disturbances. They can also contact police to report criminal activity, monitor your pool area and can tag illegally parked cars. There are many other security measures that a proactive property manager can take. To learn more, our article is a must read. With regard to "Courtesy Officers", never give the impression to your residents that you "have security", as a judge could find that you gave the resident a false representation, since "Courtesy Officers" have limited responsibilities. For instance, they might just roam around the apartment community or answer complaints. It is vital that you sign a written agreement with the "Courtesy Officer" which sets forth the understanding of all parties. Your "Courtesy Officer" agreement should list the responsibilities of the "Courtesy Officer". It should contain something similar to this: " The Courtesy Officer's responsibilities are the enforcement of federal, state and local laws, to protect life and property, to keep the peace, and to notify the property manager as soon as possible after learning of any safety or security issues, even if unrelated to law enforcement". You should also have the "Courtesy Officer" acknowledge that there is no employer-employee relationship, and not treat the officer like an employee. The "Courtesy Officer" should be listed as a vendor in your records. Your company should also have language in the agreement allowing the "Courtesy Officer" and property manager to terminate the agreement at any time. If the "Courtesy Officer" is living in your apartment community, then you should be using a normal market rent lease along with a Courtesy Officer Addendum.
Crime-Free Lease Addendum
Florida Statutes surprisingly do not specifically state that a resident who commits a crime on or near the premises is subject to termination. If the resident has signed a Crime-Free Lease addendum in which he agrees not to participate in any criminal conduct or allow any criminal activities to occur on or near your property, a judge will likely be more inclined to approve the eviction of the resident who has committed a crime on or near your property. There are Multi-Family crime free programs available that are free of charge. The International Crime Fee Association is one of them. Both the property and the property manager can receive certification under the program if certain requirements are met. As part of your crime free program, it may be advisable to contact your local police department to take advantage of free services that they may have. For example, a police department may agree to hold a "SWAT" training exercise in the parking lot one night in front of a building where you suspect drug activity is taking place. Now, that is one great message to send to your criminal resident!
(Back to Top)