VOLUME 2 - ISSUE 2 LEGAL UPDATE
- Is a Unit Abandoned
- Notifying the Tenant of New Management
- Trampolines - Fun or Fatal
- Legislative Days Here Again
- FAA names Gary Scarboro as Governmental Affairs Director
Is a Unit Abandoned?
The electric is off, the water is off, the unit is filthy and filled with trash, empty beer cans, some clothes, piled up unclaimed mail, and the neighbor tells you that they saw the tenant pack up and leave last week. Is the unit abandoned? Can you take possession of the unit and get it ready for the new tenant? Not if you want to follow the law and protect yourself from liability!
The 3 ways to legally gain possession of a rental unit are surrender, eviction or abandonment. When it comes to determining whether a unit is abandoned, we have to ignore logic, common sense and intuition and look solely to the law.
FS 83.59 states “ When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he is absent from the premises for a period of time and equal to one-half the time for periodic rental payments. However, this presumption shall not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence”
Basically this means that the appearance of the unit, the fact that the electric was off or a neighbor’s observations are all irrelevant. We just have to ask some simple questions: 1. Were the tenants (all tenants!) absent for 15 days? 2. Is the rent unpaid? 3. Did the tenants tell us in writing that they were coming back? These are the legal requirements of abandonment. Failure to follow this can result in costly lawsuits in which the judge will be sympathetic to the tenant because you failed to follow the law. The burden of proof imposed on the wronged tenant is extremely low, and the tenant can easily fabricate the alleged missing contents of the unit, resulting in a large judgment and liability to pay the tenant’s attorneys fees, which could be substantial. When a property manager “jumps the gun” and takes possession too soon, many attorneys will readily take a case like this on a contingency fee basis, making it easy for the tenant to have access to the legal system. The tenant can sue for the lock out prohibited practices and of course the claimed value of the items he or she claims are missing. The property manager could face other serious consequences in court, including criminal charges, charges of wrongful eviction, conversion, and liability for anything the tenant claimed was in the unit!!
In some cases, the property manager has knowledge that the tenant is gone, but someone else is living in the unit. Is this person a squatter or trespasser? You would think so, but if this person states that he is in there with the permission of the tenant or is renting from the tenant, it does not matter whether the original tenant is gone. The unit is simply NOT abandoned. Some property managers attempt to call the police when an unknown person is remaining in the unit, but usually the police will state to the property manager that it is a “civil matter” and tell you that you must evict the person. Calling the police is always worth a try, because the person in the unit may in fact be a trespasser or squatter completely unknown to the original tenant and if so will often readily leave.
In the event you accidentally take possession too soon and the tenant returns, try to calm the tenant, call your attorney immediately, and get the tenant to write down what he or she says is missing and the approximate value. If you have only changed the locks and have not removed any belongings, you will need to let the tenant back in, regardless of how much money, if any, the tenant owes you. After this you can proceed with the normal route of eviction after proper notice, or possibly the tenant will surrender the premises.
Remember that A UNIT IS LEGALLY ABANDONED UNDER FLORIDA LAW IF ALL OF THE FOLLOWING IS IN PLACE:
1. NO ONE HAS BEEN IN THE RENTAL UNIT FOR A FULL 15 DAYS AND YOU CAN PROVE IT.
2. THE RENT IS UNPAID.
3. NO TENANT OR OCCUPANT HAS GIVEN YOU ANY NOTICE, VERBAL OR WRITTEN STATING THAT THEY ARE GOING TO PAY THE RENT OR COME BACK AT A LATER TIME.
If you have followed the aforementioned 3 standards of abandonment, you will probably be safe in taking possession. We recommend that you take pictures or videotape each room of the rental unit prior to taking possession. Training your staff, especially maintenance staff, is crucial to avoiding mistakes in taking possession. Lastly if a unit is chock full of personal belongings and other items and you are baffled as to why a person would up and leave all these items behind, we strongly recommend that you give notice if you have not done so already and file an eviction as this will be your absolute safest route. The tenant could be in jail or have been Baker Acted to a mental facility and the last thing you need is to deal with that tenant when he or she gets out and finds out that you have taken full possession of the unit. If you are ever unsure, always give your attorney a call to get an opinion on the matter. (Back to Top)
Notifying the Tenant of New Management
You just took over management of a unit from another property management company or a homeowner who was self-managing. You send the tenant a letter announcing that you are the new manager and that he needs to send you the rent from this point on. Does the tenant have to send you the rent now? Not according to some judges.
Common practice when taking over a rental unit that is occupied by a preexisting tenant is for the new property manager to send a nice letter advising the tenant that they are the new managers of the premises and instructing the tenant where to pay rent from this point on. The letter from the new property manager often goes further and tells the tenant who to call for maintenance requests, who the property manager will be and gives other relevant and important information the tenant needs to know.
Does the tenant have to abide by this letter? You would think so, because after all, you are the new property manager. But who are you to the tenant? The tenant may never have heard of your company. The tenant may be also embroiled in the disputes that often occur between the property owner and the property management company that the owner is firing! The old property management company may be telling the tenant to continue paying the rent to them, the owner is telling the tenant that the old property management company is being fired, and the tenant is in the middle of the whole mess. The tenant’s response to this? The tenant refuses to pay the rent to anyone, and the new property management company, with the permission of the property owner, institutes an eviction action. The tenant can successfully defend the case by saying that she was not sure to whom to pay the rent and therefore did not pay the rent to anyone. This may seem absurd that a judge would buy such a defense, but it actually happens. So what is the solution? Does a tenant just get a free ride if the property management company changes? Is there a solution to this dilemma?
The solution is simple. The property OWNER needs to notify the tenant in writing that you are the new property manager. While your letter was informative, the owner is changing agents, and the owner needs to inform the tenant who the new property management company will be. The letter from the owner to the tenant can be prepared by the property manager but should be signed by the owner. A sample notification letter could be as simple as the following:
Please be advised that we have hired XYZ PROPERTY MANAGEMENT to manage our property in which you reside. ABC PROPERTY MANAGEMENT is no longer managing the property for us.
From this point on, all rent payments and all payments due under your lease and Florida Law, inquiries and maintenance reports and requests are to be made to our new property manager. We have attached the information sheet provided to us by the management company. You will be receiving correspondence from XYZ.
Please make no further payments to ABC PROPERTY MANAGEMENT, and all payments must be received by XYZ PROPERTY MANAGEMENT on or before the due date in your lease.
Please feel free to call our new property manager MARY JONES at 555-1212 should you have any questions or concerns. (Back to Top)
Trampolines - Fun or Fatal
Are you aware that most insurance companies do not cover injuries sustained by people using trampolines, and the mere presence of a trampoline on the property could result in the insurance company canceling the insurance on the premises? Does your lease adequately address this issue? Can you force the tenant to remove the trampoline?
Injuries to individuals using trampolines are rising at a dramatic pace, as trampolines are becoming less expensive and easily obtainable at the mega-stores such as Wal-Mart and K-Mart. Serious injuries occur every year to the neck, legs, spine, face and head of users. Over 89,000 people sustained injuries last year alone, many included paralysis, and some even death due to the use of trampolines. The insurance companies are taking swift action!
In our opinion, trampolines should be expressly prohibited on residential rental property, and according to many insurance companies, the mere presence of a trampoline on a rental property will result in the loss of insurance coverage. Does your owner’s insurance coverage permit or prohibit trampolines? If the insurance company decides to prohibit them, can you make the tenant remove the trampoline?
Your first step needs to be to create a policy that trampolines are prohibited, and this needs to be clearly stated in the lease agreement. By failing to state this in the lease agreement, it becomes difficult to make a tenant remove the trampoline and could even appear that the property owner or manager is discriminating against children by making them remove a trampoline. If you discover that trampolines are prohibited by the insurance company, and your lease fails to address the issue, we still recommend that you give a Seven Day Notice of Noncompliance With Opportunity to Cure, and attempt to force the tenant to remove the trampoline. The tenant’s use or possession of the trampoline is thus affecting the insurance coverage the owner has on the property, so this may be grounds for enforcing the removal of the trampoline and even the tenant if the tenant fails to comply.
What about swing sets, above-ground pools or other toys or recreational equipment that may be prohibited by an insurance company now or in the future. Do you need to list out every possible item and prohibit it all? You simply need to have a clause in your lease which makes the tenant agree to not engage in any activities which can affect insurance coverage.
Here is a “Sample Lease Clause which may be helpful:
“No trampolines, athletic equipment, recreational equipment, or any items or activities which can cause interference with or affect the insurance coverage on the premises will be permitted. Tenant agrees to cease any activity and/or remove any items which causes interference with or affects the insurance coverage on the premises immediately upon notice from Landlord or Landlord’s agent” (Back to Top)
Legislative Days Here Again
FLORIDA APARTMENT ASSOCIATION
DATE: Wednesday March 30 and Thursday March 31
SCHEDULE: March 30 5 PM-6PM Legislative Lobbying 101
March 30 6 PM-7PM Dinner and Issues Briefing with Jodi Chase, FAA Lobbyist
March 31 – Meet the Legislators – Capitol Building Tallahassee
ACCOMMODATIONS: Radisson Hotel Downtown Tallahassee
Room Rate: $153 Single or Double Occupancy
Room Reservation Deadline: March 4.
Call 850-224-6000 and identify yourself with FAA to receive the FAA room rate.
COST: Legislative Lobbying 101 – FREE
Dinner and Issues Briefing - $30.00
FLORIDA ASSOCIATION OF RESIDENTIAL PROPERTY MANAGERS
DATE: Wednesday March 30 and Thursday March 31
SCHEDULE: March 30 – Cocktail Reception at the Governor’s Inn 209 S Adams St, Tallahassee 6 PM-7 PM
March 31 – Meet the Legislators – Capitol Building Tallahassee
REGISTRATION: Email Jeanie Croes at email@example.com
FLORIDA APARTMENT ASSOCIATION NAMES GARY SCARBORO AS GOVERNMENTAL AFFAIRS DIRECTOR
FLORIDA APARTMENT ASSOCIATION
News Release dated February 2, 2005
For More Information Contact: Mark Smith, FAA President, 407-422-0704
Phil Pyster, Interim FAA Association Executive, 407-647-8839
Gary Scarboro, Government Affairs Director, 407-644-0539
The Florida Apartment Association (FAA) has retained Gary Scarboro, Director of Education and Government Affairs at the Apartment Association of Greater Orlando (AAGO), to serve also as FAA Government Affairs Director. As FAA’s first Government Affairs Director, Scarboro will build the government affairs program for FAA from the ground up. Scarboro also pioneered the AAGO Government Affairs program four years ago and currently directs the AAGO Education Department as well.
Gary Scarboro is a veteran public affairs volunteer who currently serves on the Seminole County Industrial Development Authority and has served on numerous government and non-profit governing boards. A University of South Florida graduate, Scarboro is degreed in Political Science, Sociology and Geography. He also holds the Certified Apartment Property Supervisor designation from the National Apartment Association.
Scarboro’s key objectives for the new department will be to coordinate communications with the 12 local affiliates of FAA and to help mobilize the membership on issues that are critical to the multifamily housing industry in Florida. The Government Affairs Director will assist the FAA Legislative Committee and lobbyist in the preparation and implementation of a legislative program that addresses long-term and emerging industry issues, concerns and positions. He will also represent FAA’s and the apartment industry’s positions at public hearings, in private legislative meetings, and in public forums.
Additionally, the new position will coordinate the management of the Apartment Political Action Committee (APAC), including fundraising, reporting, compliance, budget and distribution issues. Scarboro will also be charged with maintaining and enhancing legislative e-mail communications and beefing up the government affairs components of the Florida Apartment Association Web site FLORIDA APARTMENT ASSOCIATION.
(Back to Top)