VOLUME 1 - ISSUE 1 LEGAL UPDATE
- Requiring notice from tenants prior to lease end
- Display of United States flag by tenants
- Eviction filing fees, some good news!
- Post hurricane considerations! Now what?
REQUIRING NOTICE FROM TENANTS PRIOR TO LEASE END
Landlords must now give notice to tenants in a specific fashion and in a specific time frame or will not be able to enforce notice provisions in lease.
PRIOR LAW: Prior to July 1, 2004, a landlord could require the tenant to give a specific amount of notice of vacating the premises. This had to be stated in the lease and could not exceed a requirement of 60 days' notice from the tenant. Most leases required a 30 day notice from the tenant, and failure to give such notice resulted in the tenant forfeiting their security deposit or having to pay an additional month's rent. The landlord was not required to notify the tenant in any way other than to state the notice requirements in the lease. Failure of the tenant to give notice would result in a forfeiture of money up to the amount of rent that the notice period required and/or the security deposit.
NEW LAW:Landlord can still require notice from the tenant of up to 60 days BUT MUST give tenant written notice of the tenant's notice obligation within 15 days of the beginning of the required notice period. This NEW notice from the landlord must contain information regarding the notice requirement, how the notice needs to be given, and the fees, penalties or other charges imposed upon the tenant if the tenant does not give the notice.
EXAMPLE: Lease requires tenant to give landlord 30 days' notice prior to lease end. Landlord NOW must inform tenant of this requirement by giving tenant written notice per FS 83.575 45 to 31 days prior to the beginning of the 30 day notice period. If the landlord fails to give this notice, and the tenant vacates without notice at the end of the lease, the landlord will not be permitted to charge tenant for failure to give notice. The new law does not specify HOW this notice must be given. We recommend giving the notice according to the terms of your lease, hand delivering the notice or posting on the tenant's door if your lease allows this type of delivery. If you are going to mail the notice, it is crucial that you ADD 5 BUSINESS DAYS for mailing, and avoid certified mail as often the certified mail is not picked up.
Place this in your Renewal Letter along with your other usual information.
"According to your lease, you are required to give us ______ days notice in writing if you are vacating the premise at the end of your lease term. Failure to give us this notice in writing will result in __________ Forfeiture of your security Deposit __________ You will owe us an additional _________ month rent."
PRACTICAL IMPLICATIONS: A property manager should always be diligent in determining whether a tenant is staying or leaving at the end of the lease term. Most property managers send out their renewal letters 30 to 60 days prior to the end of the lease as a standard procedure and should continue to do so just as in the past. The only difference is that NOW, a letter needs to get to the tenant within that 15 day timeframe before your required notice period. It is important to create a tickler file, mark your calendar, create a reminder on your computer, etc., to make sure that you do not miss this 15 day "window".
PLEASE DO NOT FORGET TO DO THIS!!!!
TEXT OF THE NEW NOTICE LAW
83.575 AS AMENDED Termination of tenancy with specific duration.--
(1) A rental agreement with a specific duration may contain a provision requiring the tenant to notify the landlord before vacating the premises at the end of the rental agreement; however, a rental agreement may not require more than 60 days' notice before vacating the premises.
(2) A rental agreement with a specific duration may provide that if a tenant fails to give the required notice before vacating the premises at the end of the rental agreement, the tenant may be liable for liquidated damages as specified in the rental agreement if the landlord provides written notice to the tenant specifying the tenant's obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The landlord must provide such written notice to the tenant within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the tenant under this subsection.
(3) If the tenant remains on the premises with the permission of the landlord after the rental agreement has terminated and fails to give notice required under s. 83.57 the tenant is liable to the landlord for an additional 1 month's rent. (Back to Top)
DISPLAY OF UNITED STATES FLAG BY TENANTS
Landlord may not prohibit tenant from displaying United States Flag on premises
PRIOR LAW: Prior to July 1, 2004 a landlord could prohibit tenant by the lease terms from displaying or hanging a flag or any other item from or on the premises.
NEW LAW: A landlord may not prohibit a tenant from displaying a United States flag on the premises as long as it meets certain requirements.
SAMPLE LEASE WORDING: "Tenant may display a "United States Flag", commonly known as the "Stars and Stripes", as long as this flag is portable, removable, cloth or plastic with a size not larger than 4.5 feet by 6 feet and is displayed in a respectful manner. This flag may not infringe on any other tenant's area or space rented by another tenant, including but not limited to a downstairs tenant's lanai space if any. This flag, its pole or its base may not constitute a safety hazard to any person or property. In displaying the flag, tenant shall not destroy, deface, damage, impair, or remove any part of the premises or property therein belonging to the landlord nor permit any person to do so".
TEXT OF THE NEW FLAG LAW
FS 83.67 AS AMENDED
4) A landlord may not prohibit a tenant from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and one-half feet by 6 feet, in a respectful manner in or on the dwelling unit, regardless of any provision in the rental agreement dealing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The landlord is not liable for damages caused by a United States flag displayed by a tenant. Any United States flag may not infringe upon the space rented by any other tenant. (Back to Top)
EVICTION COUNTY FILING FEES GOOD NEWS!!
A change in the Florida State Constitution approved by voters in 1998 will be fully implemented on July 1, 2004. As a result of this constitutional change, fees charged by all of the Clerks of Court in Florida will be increasing. The great news is that in most counties, the fees for filing an eviction action will be decreasing!
In almost every county, the filing fees for filing an eviction action will be $80.00. In some counties they were over $160.00!!
PRACTICAL IMPLICATIONS: While the filing fee is now set at $80.00, already some county clerks are imposing other small fees such as fees to issue summonses etc. which will be their way of raising revenue. Always check with your attorney when stipulating with a tenant or accepting payment in full so you have the exact figure from your attorney. (Back to Top)
POST HURRICANE CONSIDERATIONS
Many legal issues arise after there is damage or destruction of occupied premises. All situations should be dealt with on a case by case basis and you should get your attorney involved immediately. Often your compassionate accommodation of a tenant will result in greater problems and liability to you and the property owner if not done properly.
RELEASING TENANTS FROM THE LEASE: It is imperative when releasing a tenant from a lease that a proper release form is used which deals with the security deposit, prepaid rents, damages to the premises, date of vacating and abandoned property. We recommend the CANCELLATION OF LEASE, AGREEMENT AND MUTUAL RELEASE.
TERMINATING THE TENANCY: If your lease agreement has a clause which states that the lease may be terminated at the landlord’s option upon the damage or destruction of the premises, you are probably safe to give a Seven Day Notice of Termination to the tenant. If the lease fails to have a clause allowing such termination, we advise that you call your attorney immediately to see what options you may have. Check your lease carefully. Most leases only give the landlord the option to terminate the tenancy if the premises are “destroyed”. This is a major problem as more often a property is not “destroyed” but is “damaged” to the point where you want the tenant to vacate. Review and have your lease revised immediately.
TRANSFERRING A TENANT: It is not advisable to transfer a tenant to another unit unless a Resident Transfer Addendum is signed by all parties. Failure to use such addendum can result in you having two units occupied by the tenant and/or their belongings. If a tenant is transferred, all items should be removed from the original premises before the tenant is allowed to take possession of the new premises.
RENT REDUCTIONS AND CONCESSIONS: No rent reductions should be given or offered unless and until such time as you have consulted with your attorney and have written permission from the property owner. If the property is damaged and the tenant is demanding a rent reduction or concession, please remember that if you and the tenant cannot come to an agreement, a judge may eventually make the agreement for you with less than desirable results. Once an agreement is made, your attorney will write up a contract detailing all the terms. Nothing should be done verbally.
SECURITY DEPOSIT AND ADVANCE RENT: Once a tenant has vacated the premises, you have 30 days to make the claim upon the security deposit. If you are not making any claim, you have 15 days to refund the entire security deposit and last month’s rent if applicable. If you are refunding the security deposit or prepaid rents in an emergency fashion, it is imperative that you use the proper form. Call your attorney immediately.
MOLD AND MILDEW: There is an incredible increase in mold and mildew situations due to water intrusion and power outages. Over the next year, this will worsen as properties have suffered severe water intrusion and attorneys will be capitalizing on mold litigation. If you have a proper Mold Addendum, you will be able to terminate the tenancy if there is mold or mildew present. Call your attorney immediately if you receive complaints of mold or mildew and check each property carefully for mold and mildew. (Back to Top)