VOLUME 3 - ISSUE 1 LEGAL UPDATE
- The Verification of Non-Military Status
- The Court Hearing When there is No Money in the Court Registry
- Terminating a Tenant Without Opportunity to Cure
- Hot Lease Tip – Terminating Due to Damages
- Application Criteria Considerations
THE VERIFICATION OF NON-MILITARY STATUS
by Harry Anthony Heist, Attorney at Law and
Irena Nikolova, Legal Assistant
Under federal law, a landlord technically must inform the state court of a tenant’s military status when seeking a default. Some Florida Counties strictly enforce this law, particularly in those counties in which a natural military presence exists, such as counties in which military bases are located, or are nearby. Before a judge will enter a Final Judgment, he or she wants to be certain that the tenant is not in the military, as military status has a potential delaying effect upon the process. The judge needs to see a document which verifies that the person you are evicting is not in the military service. If a judge is informed that the tenant is in the military, the judge has the discretion to significantly delay the eviction. If you know your tenant under eviction is in the military, you must notify your attorney, who will then prepare an affidavit accordingly for the court. Depending upon the county and the judge, a non-military affidavit may be signed by the attorney or sometimes must be signed by the landlord. Most landlords have seen this form and know that the attorney needs the form back, but unfortunately many landlords delay in getting this back to the attorney, and the case stops dead in its tracks. Why delay your eviction? Don’t you have enough problems to deal with?
The History of the SSCRA
The Soldiers’ and Sailors’ Civil Relief Act (SSCRA) was adopted in 1940 to assist military personnel who are unexpectedly transferred or recalled to active duty. Its purpose is to give certain protection to military personnel when their legal rights or financial obligations are “materially affected” (creates a hardship) by the unforeseen recall to active duty. SSCRA is not intended to cancel or discharge lawful obligations; it only allows certain delays for appearing in court or paying off debts.
What this Act has to do with the eviction process?
In accordance with SSCRA, after an eviction has been filed and the landlord is seeking a default for the tenant’s failure to respond to the lawsuit, some counties in Florida strictly enforce the requirement that the Landlord to file an Affidavit as to military status setting forth facts showing that the defendant or respondent is not in military service before a default judgment may be entered.
What counties strictly enforce the requirement of proof of military status?
Our office files evictions in 28 counties only and of these counties, those that strictly enforce the requirement of an Affidavit of Non-Military Service to be filed are Hillsborough, Flagler, Martin, Orange, Osceola, Palm Beach, Pasco, Pinellas, and Sarasota. There are 67 counties in Florida so if you are not in one of our 28, you need to check with your attorney to see if this is required.
How the process works
In order to for the evictions to be processed in timely manner, when our office prepares an eviction action we mail the Non-military Affidavit to our clients in the above counties the very same day the eviction is filed in an envelope stamped “Time Sensitive Document Enclosed”. The Affidavits are mailed with instructions printed on a bright sheet of paper and stapled to them. Self-addressed envelopes are also attached to expedite the process.
What does the Landlord need to do?
All Non-Military Affidavits have to be signed, dated, faxed back to us, and mailed in the attached self-addressed envelope as soon as possible after you receive them in the mail. Although we immediately file the evictions, we cannot get a Final Judgment of Eviction in the above counties until we receive the Non-Military Affidavits to submit to the court with the default papers.
Specific county requirements :
Orange, Osceola, Pasco, Pinellas, Sarasota – require a Verification of Non-Military Service. Fax copies of the dated and Verification signed by you are accepted by the clerks of the court.
Flagler, Martin – Only an original Affidavit of Non-Military Service can be filed with the court. The Affidavit must be dated, signed and notarized. Fax copies are not accepted by the clerks.
Hillsborough – Original Verifications of Non-Military Service have to be filed.
Palm Beach – An original Affidavit of Military Status must be dated, signed, notarized and must have attached to it a statement from the Department of Defense that the defendant is not in military service. Such a statement is available from the Defense Manpower Data Center (DMDC), which allows verification of non-military status for defense branches of armed services through its website at CLICK HERE . The statement is provided electronically in a form with the seal of the Department of Defense and the signature of the Center’s Director.
How do you verify if the tenants are in the military?
1. Verify the military status through the DMDC at CLICK HERE (you will need tenant’s Social Security Number or Date of Birth)
2. Ask the tenant personally
3. Look up tenant’s records – rental application, other records in the file
4. Speak to neighbors who know the tenant personally, but do not tell them you are collecting a debt or filing an eviction
5. Speak to tenant’s employer or co-workers, but do not tell them you are collecting a debt or filing an eviction
6. Other – observe if tenant is wearing a uniform, etc.
The Big Unnecessary Eviction Delay Caused by the Landlord
If your county requires verification of non-military service, it is imperative that you get the information your attorney requests to the law firm immediately. Every day, evictions are delayed because the landlord fails to take the military status request seriously, and it languishes on the landlord’s desk. This delay is completely unnecessary and totally within the landlord's control. Perhaps more importantly, if your county does not strictly enforce the military affidavit requirement, the landlord is still required to notify the state court judge of a tenant’s military status. Whenever sending an eviction request to your attorney, please notify your attorney if you know one or more of the tenants involved in the case is in the military.
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The Court Hearing When there is
No Money in the Court Registry
by Harry Anthony Heist, Attorney at Law
In order for a tenant to have his or her day in court, the tenant must place the rent money that is owed into the Court Registry, right? You would think so, because it is the law. Unfortunately, many judges do not follow the law and set eviction trials when no money at all is deposited in the Court Registry or fail to require accruing rent to be deposited into the court registry. The result? More time wasted and more money lost to the landlord. How does this happen?
Law regarding Court Registry Deposits
Florida Statutes clearly state that if a tenant is contesting an eviction, the tenant must place the rent money as alleged in the eviction complaint and money as it becomes due during the time period from when the case is filed into the Court Registry until a final hearing, or file a Motion to Determine Rent, which will often allow the tenant to get into court without placing any money into the Court Registry. This article will only deal with the tenant filing an answer with the court, not the Motion to Determine rent, which is dealt with in the article entitled Motion to Stay Writ . If the tenant claims that he or she has PAID the rent to you in full, or has paid you rent after you after you served the Three Day Notice, most judges will set the case for a hearing. Payment of rent is a complete defense to an eviction, and a judge will not take any chances or require the tenant put up more money into the court registry other than money which may become due as the case progresses into the next month. While it is not too common that a tenant will outright lie and say they have paid the rent, this tenant delay tactic will be dealt with in a future article.
Florida Statutes section 83.60 Defenses to action for rent or possession (2) In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon…
Purpose of the law
The purpose behind the law is to protect the landlord from a potential greater loss of rent by the tenant filing an answer to the complaint, delaying the action while the rent owed continues to build up. It also is meant to cut down on unnecessary court hearings in which the tenant has no real defenses to the law. Basically the law says to the tenant, ‘PUT YOUR MONEY WHERE YOUR MOUTH IS,” or you will not be entitled to a hearing. There is no surprise here to the tenant, as this requirement is clearly stated in the eviction summons as required by the law. A number of years ago, this statute only stated that the landlord was entitled to a “default” if the tenant failed to place the rent money into the court registry. This gave an easy “out” for judges, and many would enter a default but still set the case for a hearing or eviction trial, allowing for a further delay and loss of rent to the landlord. The statute was modified and now states that the landlord is entitled to an “immediate default judgment”, which made it clear that if the money was not in the Court Registry, a final judgment of eviction would be entered against the tenant and a writ of possession could issue.
Suppose the tenant files an answer and places the rent into the court registry?
1. ALL RENT DEPOSITED Under current law, if the tenant places ALL the rent into the court registry as it is alleged due in the complaint that your attorney files, the tenant has an absolute right to be heard in court, at which time the tenant can bring forth any and all defenses to the eviction action. This is assuming that no more rent has accumulated during the eviction action, i.e., we have not gone into another month and more rent is owed.
2. PARTIAL RENT DEPOSITED If the tenant only places a partial amount into the court registry, not the full amount, some judges will set the case for a hearing. For instance, the complaint when filed states that $600.00 is owed, but the tenant only places half this much into the Court Registry. The law states that the judge should enter a default judgment against the tenant. Unfortunately the partial rent deposit can trigger a court hearing even though it DOES NOT comply with the law.
3. ALL RENT DEPOSITED BUT NOW MORE RENT IS OWED An eviction is commonly filed some time in the middle or towards the end of the month. Often the tenant will place the amount of money owed as alleged in the complaint into the Court Registry, but NOW another month is owed. Under the law, the judge should enter a default judgment against the tenant, but often this does not happen, and again a hearing is set.
The Law Versus Reality
As you can see, the law says one thing, but in reality often another thing occurs. How can this happen? Some judges are not aware of the law. This can occur when a judge is new and has just been put on the bench, or another judge who does not handle evictions may be sitting in for a judge on vacation or home ill. Other judges simply are more lenient to the tenant and have taken a stance that they will do what they will. A judge new to the bench is often lenient in the beginning, then as times goes on, they realize why the law was written and how the failure to follow the law results in unnecessary hearings, a burden on the court and a greater loss of rent to the landlord.
Your attorney’s role
When a tenant files an answer with the court and has not complied with the law requiring the deposit of the rent money into the Court Registry, your attorney will file a Motion for Default for Failure to Post Rent Into the Court Registry. Our firm files detailed motions in these cases, and we never fail to remind the judge what the law is in the matter. If the eviction rolls into another month and the accrued rent is not deposited as required by law, we file another Motion for Default for Failure to Post Rent Into the Court Registry to again show the judge what the law is, in hopes that he or she will sign the judgment. Will the judge sign the default judgment after receiving the motion? Yes, in most cases. In the other cases, the judge will require a hearing, and unfortunately you will end up in court. Your attorney will often know the particular judge’s stance in these cases and may be able to advise you whether there will be a high chance of a hearing, or whether the judge will most likely sign the judgment.
The Landlord’s Role
There is not much the landlord can do when the judge requires a hearing, but there are some things that increase the risk of the judge setting a hearing when a tenant files an answer. A Three Day Notice with odd amounts will often raise the suspicion of a judge that something may be improper on the Three Day Notice. Strange amounts can be due to late charges, acceptance of partial payments in the past, a running balance, accumulated late charges, excessive rent owed or many other reasons. If the Three Day Notice clearly states how you arrived at the amount you are demanding, this makes a judge more comfortable in entering a default if no money has been placed in the Court Registry. Many landlords who file their own evictions do not know that only rent or amounts defined as rent in the lease can be placed on a Three Day Notice. Judges see improper Three Day Notices all day long. Take your time, prepare your Three Day Notice with care, and always ask your attorney what can or cannot be put on the Three Day Notice.
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Terminating a Tenant Without Opportunity to Cure
by Harry Anthony Heist, Attorney at Law
Just about every landlord will at one time have to deal with a tenant’s noncompliance. The usual culprits are the unauthorized person or pet, failure to maintain the premises, noise and parties, among many other possible lease violations. Almost all tenant noncompliances are of a curable nature, and the landlord knows that they must first give the tenant a Notice of Noncompliance With Opportunity to Cure. After service of this notice, usually the tenant cures the noncompliance and life goes on. There are limited circumstances where the tenant is NOT given an opportunity to cure a noncompliance, and the landlord is able to go straight to the Seven Day Notice of Termination. It is imperative that the landlord knows when and how to use this notice, as this notice is drastic. The landlord is taking the unilateral step to terminate an important and valuable property use right of a tenant.
The law regarding the Seven Day Notice of Termination
Florida law gives the landlord the authority to terminate a tenancy in FS 83.56(2) (2) If the tenant materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the landlord may:
(a) If such noncompliance is of a nature that the tenant should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the landlord of a similar violation, deliver a written notice to the tenant specifying the non-compliance and the landlord's intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the tenant should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord's or other tenants' property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the landlord may terminate the rental agreement, and the tenant shall have 7 days from the date that the notice is delivered to vacate the premises…
When is a noncompliance not of a curable nature?
The examples Florida law gives us are destruction, damage, or misuse of the landlord's or other tenants' property by intentional act or a subsequent or continued unreasonable disturbance. The law also states that the landlord is not limited to these specific items but does not elaborate any further. This creates a problem, since we are not sure whether a noncompliance which is not listed in the statute is to be considered of a curable nature or a non-curable nature.
Destruction, damage, or misuse of the landlord's or other tenants' property by intentional act
If a tenant were to break out all the windows in the unit, intentionally set a fire on the premises or smash the windshield of another tenant’s vehicle, it would be fairly clear that the landlord could go straight to termination. In most situations, it is not so clear. Tenants often have fights and end up breaking a window in the unit. They claim it was an accident. You now have to prove it was intentional. Were you there at the time? Probably not. The tenant’s door is kicked in, and there is a fight on the premises. It looks like intentional damage, but the tenant claims some unknown person came to the unit and kicked in the door. You inspect a unit and there are stains all over the carpet and writing on the walls. It doesn’t look like an accident, but will a judge evict someone for this, or expect you to take the damages out of the security deposit when the tenant vacates? The tenant has a fire in the unit resulting in severe smoke and water damage. They claim it was an accident. Can you prove otherwise?
Criminal acts on the premises
Most landlords feel that if a tenant commits a crime on the property, this is cause for immediate termination. These crimes may include, but are not limited to, a weapons offense, molestation, battery, sexual offense, domestic violence or a drug offense. It would seem clear that if the tenant commits a crime, this is not a situation where the tenant should be given the opportunity to cure. The big problem though is that the tenant is considered innocent until proven guilty in a court of law. The same tenant who got hauled off to jail last night for a serious crime is considered completely innocent in the eyes of the law and most likely will be out on bail in a short period of time. It is interesting that the statute does not mention the commission of a crime as a basis for immediate termination. However, the statute does indicate that the listed immediate termination items are not an exclusive list, so it may be possible in some circumstances to go straight to termination, even though the tenant has not been and will not be convicted of any crime by the time you file the eviction.
The Drug and Crime Free Addendum
Many landlords wonder why it is necessary to use a Drug and Crime Free Addendum. The Drug and Crime Free Addendum specifically states that in the event of a commission of a crime on the property, the tenancy may be immediately terminated. Here the tenant is contractually agreeing to the termination of the tenancy without being given the opportunity to cure.
Falsification of information on a rental application
Most applications and leases have or should have a clause dealing with the ability to terminate a tenant if the tenant falsifies information on the rental application. In most cases, if it was a material falsification, you can go straight to termination. Here again, we see a contractual agreement by the tenant that in the event of falsification, immediate termination will be the consequence.
Continued unreasonable disturbances
The law allows for immediate termination in the event of “continued unreasonable disturbances” on the premises, which likely include constant fighting, police responses, multiple parties and other disturbance type activities. The first element is that they have to be continual, meaning they have to either be repeated on different occasions or non-stop. The second element states that they must be “unreasonable” disturbances. This is where most cases will fall apart. While the tenant’s actions may be unreasonable to the surrounding tenants, you must be able to convince a judge that they were indeed unreasonable. This will require heavy proof, neighboring residents testifying in court, and often testimony from a law enforcement officer. The judge may feel that the tenant should have been given an opportunity to cure the problem rather than the immediate resort to a termination notice.
When should you decide to serve a Seven Day Notice of Termination?
In our opinion, you should NEVER make the decision to go straight to termination. Your attorney will want to be certain that there is a solid case established, and your attorney should not only make the decision for you but also prepare the wording for the notice. A solid case can be lost on the basis that the notice is worded improperly. Most landlords have never been in court on a contested Seven Day Notice termination case and do not realize that it is far different than your typical nonpayment of rent case. As in any eviction, the prevailing party is entitled to an award of attorney fees and costs. Typically if you lose a Seven Day Notice termination case, and the tenant has an attorney, you will be faced with paying a substantial amount of attorney fees to the tenant’s attorney, and you will have a higher chance of being hit with a Fair Housing complaint in the event the person you unsuccessfully attempted to evict is of a protected class.
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HOT LEASE TIP – TERMINATING DUE TO DAMAGES
by Harry Anthony Heist, Attorney at Law
A simple lease clause can allow the landlord the ability to terminate a lease in the event the property is damaged by fire, flood, wind, hurricane, tornado, or any act of god. Without this clause, a landlord can be faced with dealing with a rent withholding tenant who will not move, even when you need them to move just to make the necessary repairs. Florida law allocates repair responsibilities, but does not take into account situations where the tenant needs to be out of the premises. Since Florida law does not cover what to do in many of these events, a clear and encompassing lease clause is a must.
The use of this clause should allow the landlord to terminate the tenancy and evict the tenant if necessary, should the premises be put in a condition whereby it has become unsafe or unusable, or the tenants need to vacate the premises for a repair to be properly effectuated.
Recommended Lease Clause
CONDEMNATION, DAMAGE TO PREMISES, ACTS OF GOD and TERMINATION: If for any reason the premises are condemned by any governmental authority, destroyed, rendered uninhabitable, rendered dangerous to persons or property, and/or damaged through fire, water, smoke, wind, flood, act of God, nature or accident, or if it becomes necessary, in the opinion of LANDLORD or its agent, that TENANT must vacate the premises in order for repairs to the premises to be undertaken, this lease shall, at LANDLORD'S option and upon 7 days written notice to TENANT, cease and shall terminate and TENANT, if not in default of the lease, shall owe no further rent due under the terms of the lease. In such case, TENANT hereby waives all claims against LANDLORD for any damages suffered by such condemnation, damage, destruction or lease termination.
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by Cathy L. Lucrezi, Attorney at Law
Every property manager should have a policy for deciding who qualifies for a tenancy. The value of such a policy lies in its ability to avoid differential treatment of applicants and thus shield the owner and property manager from a fair housing complaint.
Income criteria Application criteria should reflect what it takes to be a successful tenant at your property. For instance, most properties require that a household’s income exceed a pre-determined minimum, so as to reduce the risk of a default in rent. Your application criteria should never rely solely upon “income from employment” since that discourages disabled people from applying. Instead, household income from any source (including disability payments) should be considered.
Many properties also seek to exclude individuals who have drug convictions or a criminal record of violent crimes. How should these be assessed?
First, consider that not all past crimes may impact a person’s tenancy at your property. A person whose criminal record shows a conviction for a trespass arising from a protest at a nuclear plant eight years ago, may nonetheless be a terrific tenant. The same goes for a person who stole a car at the age of 19, but who is now a 34 year old church pastor.
Then, tailor your criteria to identify only the factors that are important to predicting whether the applicant will be a successful tenant.
Make sure the application asks the right questions
Review the application to make sure it is asking the right questions. It should not ask whether the person was ever arrested. An arrest is not the same as guilt. Your application might ask whether the applicant has been convicted of a felony within the last seven years. Or, whether there were ever any sexual offenses.
Avoid “stale” information
Keep your criteria relevant. Avoid making decisions on “stale” events that do not relate to how the person will act as your tenant now.
Unfortunately, there is no clear rule about what is “stale” or otherwise irrelevant. Instead, when courts review these types of things, they look for whether the criteria have a relevant business purpose. If any of the criteria do not have a relevant business purpose, then a presumption may arise that the criteria unfairly exclude individuals who are protected by fair housing laws.
Consistent and fair use
Of course, the criteria must be applied to everyone. Once exceptions are made, the policy loses its value. If you feel that your criteria are causing you to turn away applicants that you think would be great at your property, that may be a sign that the criteria need to reviewed for some “fine tuning”. Such revisions are good if they are based on business reasons and if the revision is evenly applied from that point forward.
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