VOLUME 3 - ISSUE 3 LEGAL UPDATE
- Managing In Condo or Homeowner Associations
- The Power of the Mold Addendum
- Protecting Yourself From Fair Housing Claims
MANAGING IN CONDO OR HOMEOWNER ASSOCIATIONS
by Harry Anthony Heist, Attorney at Law
The tenant just moved in, and now the condo association is demanding that the tenant remove the prohibited truck from the premises. Prohibited? Whoops. The condo association never required that you get board approval of the tenant, but now all of a sudden says you failed to get approval, wants the tenant out, and this has been the rule for years. Approval? Whoops. You put four tenants into a home, and the homeowners association informs you that no more than 3 unrelated people can live in the home. Unrelated? Whoops. There are so many pitfalls that await a careless landlord who fails to do the homework necessary when renting units controlled by condo or homeowners associations. Have you done your homework?
The landlord managing property governed by a condominium association or homeowners association, hereinafter “Association” has unique challenges and requirements. Not only do the Florida Landlord/Tenant laws apply to the relationship, but the Declaration of Condominium and the rules and regulations of the Association apply to the relationship. Often these rules and regulations change, and if the landlord or property manager is not alert and keeping up with these changes, major problems can occur. This article will deal with the most common areas in which the landlord needs to carefully understand the relationship with the Association and the rules and regulations, and act accordingly.
The Power of the Association
The Association has the power to limit and restrict rentals, create rules and regulations, impose fees, and even create rules and regulations that apply only to the tenants while not an owner in an owner occupied unit. While many of these rules and regulations seem unfair, arbitrary and even “anti-tenant”, when an individual buys a property governed by an Association, there are certain rights which the owner must give up to the declarations, rules and regulations and decisions made by the Board of Directors.
The Association’s attitude towards tenants
To put it bluntly, many owner occupiers in Associations do not like tenants. Owner occupiers often do not appreciate tenants as their neighbors and will do whatever it takes to create problems for the tenants and the owner of the tenant occupied unit. Owner occupiers will often complain to the Association over minor violations, slight noise, children playing or almost anything that could potentially get the unit owner in trouble with the Association. Do tenants cause problems and violate the rules? Yes, and so do owner occupiers, but the action taken against a unit owner who is renting out a unit is often swift and harsh.
Restrictions on vehicles
The Association is able to restrict the number of and types of vehicles that an owner or tenant may bring onto the property. The restrictions may differ and be more restrictive for the tenant. Many Associations restrict commercial vehicles, motorcycles, trucks, pickup trucks, vans or vehicles with any signage. While we all know what a motorcycle is, do we know what a commercial vehicle is? Would a car used for a tenant’s work that has a sign painted on the door qualify as a commercial vehicle? Would an unmarked van be considered a commercial vehicle? Is there a difference between an SUV and a pickup truck with a molded cap affixed to the back? The most common problem we see is the situation in which the landlord places a tenant in the unit, only to receive the threatening letter from the Association stating that a vehicle is in some way in violation of the rules and regulation. If the vehicle is in violation, the tenant needs to be served a Seven Day Notice of Noncompliance with Opportunity to Cure. This gives the tenant seven days to get the vehicle off of the premises. If the vehicle is not removed from the premises, the landlord can serve a Seven Day Notice of Termination, wait seven days and begin the eviction process. The main problem we see is that the vehicle the tenant has is often actually listed on the lease agreement and is authorized by the landlord. Is the tenant in violation of the lease? Probably not. This creates a very bad situation, in that the landlord authorized something that the Association prohibits. We have seen situations where the landlord was required to rent a garage for the tenant’s prohibited vehicle and then rent a car for the tenant’s behalf for the entire term of the lease. There is a huge danger in not fully knowing exactly what the CURRENT Association rules are concerning vehicles.
Practical vehicle tips
1. Examine the most current rules and regulations regarding vehicles.
2. Require the vehicles to be listed in the lease and make them exclusive vehicles.
3. Recite in the lease the restrictions on vehicles.
4. Physically observe all vehicles before signing lease
5. Act immediately if the tenant is in violation
Association Required Security Deposits or Fees
Much to the surprise of both landlords and tenants, the Association can require a distinct and separate security deposit from the tenant not to exceed one month’s rent, and often can require fees for gate access cards or pool passes. There is little limiting what other charges the Association can assess against the tenant. Supposedly this “deposit” is to cover damages to the common areas of the premises which could be attributable to the tenant. Some Associations also require a temporary move-in deposit for possible damages to the elevator, doorways, hall ways or stairs due to tenant move in. This type of deposit is returned to the tenant if the move-in does not result in any damages. Make certain that the lease clearly separates the deposits, as the landlord does not want to get charged with violating the security deposit laws if the Association fails to return the money promptly or tries to charge the tenant’s deposit improperly. Before signing a lease, make sure that all the funds have been collected and properly accounted for on the lease agreement.
Association required Application Approval
Not only can the Association require approval, they can charge for this as well. Florida law allows the Association to charge up to $100 per single person and $100 total for a married couple. Some Associations run actual credit and criminal checks on the applicant, while others simply require the payment and application as a formality. It is crucial that if the Association requires approval, the steps required are taken exactly as listed, regardless of the fact that the Association may not have enforced its approval process in the past, selectively enforces it, or you receive a verbal OK from the Association. When an Association has a problem with your tenant, it will pull out all the stops, and if you did not get the tenant approved, you WILL have a major problem. Make sure that the application provided by the Association is completely and accurately filled out. NEVER place a tenant in a unit without having the approval from the Association IN WRITING.
Association limits on occupants
Associations can and often do limit the number of occupants in the rentals and also can restrict the number of unrelated members of the household. While this may appear to be a shocking violation of the Fair Housing laws, it is actually not, and many municipalities are also beginning to impose these rules and restrictions. A careful reading of the rules and regulations are a must, as most landlords are not accustomed to these restrictions, and they come as a surprise.
Gas grills, parties, children and other thrills
There is always a chance that a tenant will violate some provision in the lease or the rules and regulations during their tenancy. The tenant will be under the microscope of every owner occupier. Common violations include noise, parties, clutter on balconies, vehicles, junk in breezeways, grills on the lanai, toys, loud children, fighting, working on vehicles, unauthorized pets, failure to pick up after pets: the list goes on and on. Many landlords will feel that the violation may not be occurring or that the Association is going overboard. While both may be true, it is crucial that the landlord serves the proper notice to the tenant immediately, even if the landlord has doubts about the validity of the alleged violation. Let’s face it. Usually there is some truth to the violation allegation, and the landlord is usually not present 24 hours a day to see what is happening. Too often the landlord will take sides with the tenant, only to find out that there really was or is a violation occurring on the premises. When you are notified of a violation, take action immediately.
“The Violation Catch 22”
In the event there is a violation, the Association will often discuss the matter at the board meeting or take sudden action against the landlord, and the landlord or the property manager is informed of this in writing. If the landlord is out of state, there is often a time lag in the notification, further cutting the time down that we have to act. Though we may want to immediately remove a tenant from a unit, Florida law has specific ways to deal with a noncomplying tenant. Once the tenant is in violation of a rule or regulation, the landlord needs to immediately use all the tools that Florida Landlord/Tenant law provides and take action. Unfortunately, the tenant is given specific curative time periods, and while the Association can immediately begin fining or assessing the landlord, the landlord cannot immediately remove the tenant or obtain compliance. Typically, the Seven Day Notice to Cure must expire, the Seven Day Notice of Termination must expire, and then the eviction is filed, which can take between 25 to 45 days as a typical time range. As you can see, the Association is not going to be happy with this, much less understand why it is taking so long to accomplish.
The following steps should be taken as soon as you are notified of a tenant’s violation. The violation will usually come in the form of a letter from the Association, or if it has gotten bad, the attorney for the Association will prepare and send the letter
1. Call your attorney, send your attorney the Association letter and your side of the story.
2. Serve the notice that your attorney has recommended.
3. Have your attorney communicate with the Association or its attorney to help them understand the situation and how the process works.
4. Show the Association that you are making every effort to remove the tenant or obtain compliance by the tenant.
The Risks of Failing to Swiftly Act on Violations
Failing to act swiftly when confronted with a notice of a violation by the Association can be extremely costly to the landlord. In addition to the fines or assessments the board can make on the landlord, the landlord may also be responsible for paying the attorney’s fees incurred by the Association. Association attorneys are expensive. It is not unusual to see a bill for $500.00 to $1000.00 for the attorney to simply review a situation and write a demand letter to the landlord. Under most Association documents, the landlord has given the power to the Association attorney to actually institute an eviction action on behalf of the landlord, with all the attorney fees and costs being charged to the landlord. While many landlords are used to paying extremely low attorney’s fee to their eviction attorney, rest assured that the Association attorney will typically charge between $1000.00 and $5000.00 to file and complete an eviction action.
Discrimination by the Association
Discrimination by an Association? Never happens. Right? Massive amounts of illegal discrimination occur in Associations. The most common is race based discrimination, followed close behind by familial status based discrimination. Often the Association is able to accomplish its discriminatory goals by delaying the approval of applications or requiring an in-person interview with the prospective tenants. If you feel that discrimination is occurring, it is advisable to contact your attorney immediately, and your attorney will contact the Association attorney. If the discrimination is occurring in the approval process, or if there is a serious, unnecessary delay, the landlord needs to protect himself or herself from a discrimination claim being filed by the denied applicant by having a strong paper trail. Commonly, owner occupiers upon finding out that an approved tenant who just moved in has children or are of a race other then their own will harass the tenant in person, put notes on their door or complain to the Association about alleged violations. If you see this occurring, do not ignore it. Call your attorney immediately, as you do not want to be potentially implicated in failing to act to stop your tenant from enduring discriminatory actions.
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THE POWER OF THE MOLD ADDENDUM
by Harry Anthony Heist, Attorney at Law
Most landlords are finally using some sort of Mold Addendum due to the problems related to mold and the press which mold has been getting as of late. The Mold Addendum often addresses the tenant’s obligations to keep the premises mold free and the requirements on the tenant in the event there is mold found on the premises. The problem with most mold addendums that are in use is that they really do not address what the landlord can do with regard to the tenant if mold is present on the premises, or if the landlord needs the tenant to vacate to rectify the mold problem. This problem can be solved simply by using a proper Mold Addendum or inserting some wording into the current addendum.
Educating the Tenant
While we in no way wish to put ideas into a tenant’s head that there may be mold on the premises, it is important to give the tenant some information about the dangers of mold. Here is a sample clause which can be used. This can give the tenant a basic understanding of mold and the potential dangers.
MOLD: Mold consists of naturally occurring microscopic organisms which reproduce by spores. Mold breaks down and feeds on organic matter in the environment. The mold spores spread through the air, and the combination of excessive moisture and organic matter allows for mold growth. Not all, but certain types and amounts of mold, can lead to adverse health effects and/or allergic reactions. Not all mold is readily visible, but when it is, can often be seen in the form of discoloration, ranging from white to orange and from green to brown and black, and often there is a musty odor present. Reducing moisture and proper housekeeping significantly reduces the chance of mold and mold growth
Mold and the Landlord/Tenant Act
Nowhere in the Landlord/Tenant Act is mold mentioned. Can a tenant break a lease because of mold? Does the landlord have to remove the mold for the tenant? Can the tenant withhold rent due to the mold? Suppose the tenant’s actions or inactions cause the mold problem? Can we simply terminate the tenancy because of the mold? These are tough questions in an incredibly grey area.
The Tenant’s Responsibilities
In a perfect word, the tenant would do everything they could to live in a mold free environment, but we cannot force a tenant to keep the air conditioning on or be there 24 hours a day to observe the tenant’s behavior or actions in the unit. The most we can do is advise a tenant on ways to live in manner that is not conducive to mold growth. A well drafted Mold Addendum will detail the tenant’s responsibilities to reduce the amount of moisture present in the unit, and to compel the tenant to report both mold and situations which could create a mold situation. The tenant’s obligation to maintain the premises according to Florida law are as follows:
83.52 Tenant's obligation to maintain dwelling unit. The tenant at all times during the tenancy shall:
(1) Comply with all obligations imposed upon tenants by applicable provisions of building, housing, and health codes.
(2) Keep that part of the premises which he occupies and uses clean and sanitary.
(3) Remove from his dwelling unit all garbage in a clean and sanitary manner.
(4) Keep all plumbing fixtures in the dwelling unit or used by the tenant clean and sanitary and in repair.
(5) Use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances, including elevators.
(6) 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…
As you can see, an obligation on the tenant to keep the premises free from mold is not specifically mentioned in the statute. Section 2 states that the tenant shall keep the premises in a clean and sanitary condition. If the tenant lives in a manner that causes mold growth, could this be considered a violation of this section? Section 5 states that the tenant shall use the air conditioning in a reasonable manner. Does this mean they must run it all the time or maintain a particular temperature? We don’t know.
The Landlord’s Responsibilities
According to Florida law, the landlord is required to comply with all applicable building, housing and health codes. On top of this, there is an implied “warranty of habitability”. If a unit has a mold problem, and the mold was not caused by the tenant in any way, the landlord would clearly be responsible, and if the unit were inspected, the unit would probably fail inspection, thus putting the landlord in violation of FS 83.51.
83.51 Landlord's obligation to maintain premises. (1) The landlord at all times during the tenancy shall:
(a) Comply with the requirements of applicable building, housing, and health codes; or
(b) Where there are no applicable building, housing or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition…
Mold is discovered, now what?
Once mold is discovered in a unit the landlord needs to take swift action to determine the existence of the mold, the dangers, if any, and the source of the problem. Whether this requires a professional mold remediatior or inspector will depend on the situation. If in fact mold is discovered and it is determined that the tenant must removed from the premises, this is where the fun begins.
The Big Problem
Here is the scenario. The tenant stops paying rent and complains to you about mold, claiming that he is getting sick, has breathing problems, is missing work and his doctor is telling him that mold is the cause. You go check out the unit, and sure enough, in one of the closets where the back of the closet is against an outside wall, there is a strong musty odor. The tenant is demanding that you fix the problem. You have a mold inspector and remediator come in to inspect, and it is recommended that a large portion of the wall be removed and the outside of the building repaired and sealed with a moisture barrier. The mold remediator states that there is no safe way that the job can be done with the tenant living in the unit, that remediation will require establishing a containment area and decontaminating the entire unit, and that the estimated time for the repair is 3 weeks. Now for the real problem. The tenant is refusing to vacate and refusing to pay the rent. Has the tenant violated the law? Maybe not. Is this mold problem the fault of the tenant? No. Is the landlord required to provide a habitable place to live, complying with all building and health codes? Yes. Is the landlord required to get rid of the mold problem and fix the unit? Yes. Florida statutes would require the landlord to make the unit habitable and presumably free from a mold problem, but the tenant is refusing to vacate the premises and is now withholding rent as potentially allowed by law. What can we do?
Proper wording in a Mold Addendum could be the answer to our dilemma. Since mold can be a serious problem requiring the landlord to terminate the tenancy, we recommend that the parties agree by way of the Mold Addendum that the tenancy can be terminated in the event of a mold situation. Many leases have clauses which allow termination in the event of damage to or destruction of the premises. The Mold Addendum clause deals exclusively and specifically with termination due to mold. Can the tenant terminate if there is mold? While it is not mentioned in our sample clause, the answer is yes. If a landlord receives notice of mold from the tenant and the landlord does not rectify the situation within 7 days, the tenant by law can most likely terminate the tenancy or withhold rent. Our recommendation is to use a Mold Addendum which includes the sample clause below, and ALWAYS get your attorney involved early on in any mold situation.
SAMPLE MOLD ADDENDUM CLAUSE
TERMINATION OF TENANCY: Owner or agent reserves the right to terminate the tenancy, and TENANT(S) agree to vacate the premises in the event owner or agent in its sole judgment feels that either there is mold or mildew present in the dwelling unit which may pose a safety or health hazard to TENANT(S) or other persons, and/or TENANT(S) actions or inactions are causing a condition which is conducive to mold growth. CLICK HERE to download your forms and notices including the Mold Addendum.
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PROTECTING YOURSELF FROM FAIR HOUSING CLAIMS
by Cathy L. Lucrezi, Attorney at Law
“What can we do to avoid being sued for fair housing?” The easy answer: “Don’t discriminate”.
Unfortunately, the answer begs the question. More advice is needed in order to truly reduce the likelihood of being on the receiving end of a fair housing complaint. Here are a few tips:
1. Educate yourself. Go to trainings on fair housing. Be sure that all staff gets trained. Even maintenance staff should be trained on the rudiments of fair housing.
2. Post fair housing posters in your management office. This lets the public (and your own staff) know that you support fair housing. You can find them at HUD’s website or your local equal opportunity office.
3. Document your actions. This means making a copy of every piece of paper you give to a tenant or applicant. Keep a log or file diary of every conversation and contact with a tenant or applicant. This might be a tough habit to develop but it will pay off in the long run.
4. Adopt policies and stick to them. You should have criteria for applicants and criteria for renewals. There should be a policy for how you will handle requests for reasonable accommodations. Keep them handy. Be sure every staff person knows them.
5. When necessary, get advice from legal counsel. Don’t attempt to deal with a HUD complaint or a lawsuit on your own.
6. Become personally committed to fostering fair housing. Embrace the goals of fair housing and welcome all individuals to live in your properties. Quit expressing any negative generalizations about people. You set the model for staff. Jokes about people’s heritage are never a joke.
7.We live in a litigious world, and it is a reality of business that everyone becomes a defendant at some point. You may not have control over a tenant naming you in a complaint, but you do have control over how well you come out of it. By following the tips above, you will reduce your chances of being liable for a violation of fair housing laws.
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