- Evictions and Repair Requests
- Who Do You Work for?
- Desperate Landlord Actions
- Foreclosure Scams
- An Agent's Liability



by Harry A. Heist, Attorney at Law

Your tenant owes you 3 months' rent and is currently under eviction. The air-conditioning breaks, and the tenant places a work order. The eviction is almost completed. Must you make the repair? The answer is a simple "yes". The tenant has three unauthorized occupants living in your apartment, and his garbage disposal is broken. Do you need to get it fixed? You bet. The rent delinquency, noncompliance or eviction status has nothing to do with your obligations under the lease and Florida law to maintain the premises and make necessary repairs. No matter how angry you are at the tenant or how delinquent the tenant may be in rent or other monetary obligations, the landlord must proceed as if the tenant is completely current and not in violation of any of the lease terms or under eviction.

The Landlord's Obligations

The landlord's obligations are many. Florida Law Section 83.51 clearly states the landlord's obligations, and they must be followed unless specifically excluded in the lease agreement. The lease agreement may add further obligations on the landlord, and finally there is the common law implied warranty of habitability.

1. The Landlord's Obligations under the law

83.51 Landlord's obligation to maintain premises. (annotated) (1) The landlord at all times during the tenancy shall:

As you can see, there is no exception here for evictions or when the tenant is in default. The landlord's obligations are "at all times during the tenancy"

(a)Comply with the requirements of applicable building, housing, and health codes; or

All state and local building housing and health codes are included here. These can be obtained by the landlord ahead of time, or you can wait until you get an inspection by the DBPR if you are an apartment community, or local code enforcement office for single family homes, and you will surely find out!

(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"¦ The landlord's obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex.

The above requirements apply to all housing. In the event you are renting out a single family home or duplex, you may shift these obligations to the tenant, but this must be done clearly in the lease agreement or addenda. For example, a single-family landlord or duplex owner or manager may wish to make the tenant responsible for plumbing issues, and this would be allowed.

(2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for:

This wording is a bit confusing, but the following obligations apply to apartment communities but do not apply to single family homes or duplexes IF these obligations are placed on the tenant by the lease agreement or addenda.

1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs"¦
2. Locks and keys.

This does not require that the landlord re-key after each move-out, but we recommend it.

3. The clean and safe condition of common areas.

This is a very serious obligation, especially in light of the "safe condition" requirement.

4. Garbage removal and outside receptacles therefore. 5. Functioning facilities for heat during winter, running water, and hot water.

Note that air conditioning is not mentioned here. This is an example in which the lease will govern and/or if there is air conditioning provided, the landlord must keep it working. Also, many local building codes do contain provisions requiring central air conditioning or screens on windows.

(b) Unless otherwise agreed in writing, at the commencement of the tenancy of a single-family home or duplex, the landlord shall install working smoke detection devices. As used in this paragraph, the term "smoke detection device" means an electrical or battery operated device which detects visible or invisible particles of combustion and which is listed by Underwriters Laboratories, Inc., Factory Mutual Laboratories, Inc. or any other nationally recognized testing laboratory using nationally accepted testing standards. (4) The landlord is not responsible to the tenant under this section for conditions created or caused by the negligent or wrongful act or omission of the tenant, a member of his family, or other person on the premises with his consent.

In the event a tenant intentionally or negligently breaks or damages something that would normally be the landlord's obligation, the landlord does not need to take action. However, the problem is proving the tenant's actions or negligence. Always document and photograph a repair after it is completed, as some tenants will intentionally break something again in an attempt to withhold rent.

Common repair requests

Some common requests by a tenant during an eviction would be items such as pest infestation problems, plumbing problems, garbage disposal repair, water heater repair, and quite often, air-conditioner repair. We recommend that unless you are dealing with a situation in a single family home or duplex in which these obligations may be shifted to the tenant by the lease or addenda, the items are dealt with immediately, just as you would for any other tenant. The property manager or landlord must completely put out of his or her mind the fact that the tenant may be delinquent or under eviction.

2. The landlord's obligations under the lease

The landlord may have further obligations to the tenant for repairs or maintenance under the terms of the lease. We always recommend shifting as much of this as practical, but there will be many situations where the landlord is contractually liable to maintain or repair something on the premises, or this liability is implied. An example of this might be a hot tub or pool. While we doubt that either of these are a necessity of life, if they exist on the premises and are not excluded from the landlord's obligations, these items would need to be fixed and put in working condition just like any other item, regardless of the tenant's delinquent rent or eviction status.

The consequences of not making a repair

The landlord may have filed a typical eviction for nonpayment of rent. During the eviction, the tenant requests a maintenance issue be attended to. The landlord refuses to deal with the problem, and a hearing is set by the court. Even though the landlord's failure to make a repair after an eviction action is filed or after the tenant is delinquent should not become a part of the testimony put forth in an eviction trial, this type of thing invariably will come out in court, causing the judge to possibly not look kindly on the landlord. The landlord may be placed in a position in which he or she will have to explain to the judge why something that was indeed the landlord's obligation was not fixed. If the judge is not satisfied with this reason, the sympathy factor for the tenant increases dramatically, and if the tenant had other repair or maintenance issues prior to the eviction which he or she is using as an eviction defense as the reason for rent withholding, the landlord will definitely not look good.

Once you pay the rent, I will make the repair!

Unfortunately, we hear that landlords say this to their tenants on occasion. This is probably one of the worst things you can say to a tenant, and if a judge knew you did, you would be in some hot water in court. This is clearly not allowed under Florida law.

The dangerous, threatening or belligerent tenant

A tenant under eviction or delinquent in rent may be a danger to the landlord. Tempers may flare during a repair which could result in a serious altercation involving injury or even death. If necessary, retain the services of the police when going to the rental premises if you feel in any way that you are in danger, and refrain from discussing the eviction or delinquency at all costs.

(Back to Top)



by Harry Anthony Heist, Attorney at Law


You have been diligently managing a rental property, but the property owner is in deep financial trouble and is not giving you money to make repairs or is going into foreclosure. You feel sorry for the tenant, who has told you that he is going to break his lease. You then begin trying to find another property for the tenant. Anything wrong? Yes. In most cases you work for the property owner and have a fiduciary duty to that owner. Helping the tenant who is breaking a lease with your owner may seem like the right thing to do, but can constitute a serious conflict of interest and breach of fiduciary duty, resulting in a nice, big, complicated FREC complaint or lawsuit against the property owner. Many situations will arise in property management in which the relationship between the property owner and the property manager breaks down to a point that the property manager forgets the fiduciary duty they have toward the owner and takes actions which seem to be proper but are not.

The owner is not reimbursing you

Property managers often incur expenses which must be reimbursed by the property owner. While we strongly recommend that you never make an expenditure with your own money, but rather use the funds held for such repairs or expenditures, we realize there are times when this fund is not adequate and the expenditure occurs. If the owner is refusing to reimburse you, never pay yourself from any funds, unless specifically authorized by the owner or your property management agreement. Of course, you can never tap into prepaid/advance rent or a tenant's security deposit.

The owner is not making repairs

While you can overlook certain repair refusals by a property owner and continue managing the property, there will be times when there are safety issues or serious repairs which must be made and for which the owner refuses to fund or allow. This puts a property manager in a very bad position, because the manager knows that the repair must be made, the tenant is demanding the repair, but the owner is refusing to allow or pay for the repair. Invariably, the property manager will sympathize for the tenant. Whether the tenant can break the lease, withhold rent, or move is not relevant. You manage the property, and you must not tell tenants their rights or advise them in any way. Never tell a tenant that the owner does not have the money to make repairs, even if this is true.

The owner is harassing the tenant

Some property managers are "blessed" with the property owner living in Florida or visiting often. The owner will sometimes go to the property and "harass" the tenant. The tenant will then complain to you about his. All you can do in such a situation is advise the owner on how unwise it is to have tenant contact, and how such contact can result in the owner having to come to court in the event of any litigation. If the owner returns up north, coming to court on short notice will be a serious burden.

Excessive sales traffic

If an owner is desperate to sell and the price is right, this can dramatically increase traffic from local real estate sales associates and their clients to the unit. Most tenants fear a sale, thinking that their lease will be terminated, or they simply get tired of having to keep the unit clean or tidy, knowing that people will be traipsing through the unit while they are at work. The property owner will have no sympathy for this, and again you should show no sympathy to the tenant. A sale of the unit is an unfortunate part of rental living, and the tenant must put up with this. Florida law specifically states that the tenant must allow access for showings. It is advisable to make it convenient to the tenant or attempt to minimize the tenant's disruption of tenancy, but never do anything to prevent the property from being shown. In the event the owner's agent wishes to place a lock box on the door, we recommend you call your attorney to see if this will be allowed.

The owner is in foreclosure

The owner in foreclosure is a common theme at the moment. Can the tenant break the lease? Do they have to continue paying rent? When asked by the tenant, your answer should be simple: "You still must pay your rent to us as before. Until the foreclosure actually goes through and a sale occurs, the property belongs to the owner. At any time your owner may be able to pull out of the foreclosure." Is there a good chance the tenant will end up having to leave if the property is foreclosed? Absolutely, but you cannot take any action based on this uncertainty. If the tenant wishes to break the lease, do not put them into another one of your properties without the express written permission from the property owner whose property is being foreclosed. Some owners may actually give you this permission.

Your owner fired you

For whatever reason or no reason at all, your owner may fire you. You may feel this is unfair or unjust. You may be extremely angry with this owner, as money may be owed to you. Getting the commission due to you should never be done in a self-help fashion. You should call your attorney and weigh the benefits of litigation or legal action versus the dangers of a FREC complaint, in which this owner who fired you for no reason will come up with some excellent reasons that you now will have to counter. If the tenant comes to you asking if you have another place for them to rent, and in the process the tenant will be breaking the lease with your former owner, resist the temptation.


(Back to Top)



by Harry Anthony Heist, Attorney at Law


Never in 17 years have we seen so many desperate moves on the part of landlords when trying to get or retain a tenant: failure to perform background checks, accepting sexual predators or offenders, accepting tenants with foreclosures, allowing tenants to move in with no money paid or uncleared funds, allowing work in exchange for rent, waiving deposits, free rent during the lease, renewal leases with past delinquencies, promissory notes, and overlooking noncompliances are just a few. While flexibility is necessary in uncertain economic times, landlords need to look at potential dangers to protect themselves when doing things novel or out of the ordinary and act accordingly.

Security Deposit payment plans

The tenant does not have the full security deposit and wants to make payments. This should be a warning sign. but we see this arrangement accepted often. Usually, the tenant decides once he is in, there is really no need to pay the security deposit, and the landlord spends the next few months chasing after the tenant only for the tenant to skip out. If a tenant is allowed to make the security deposit in payments, the tenant should sign an agreement which makes it clear when the payments are to be made, converts the payments into rent and accelerates the payments upon default. If a landlord wishes to do this, we can prepare the proper form, but we will urge the landlord to resist.


Concessions are rampant right now. The tenant is often given a deep discount on the first few months' rent. Sounds good, and the tenant loves it. The landlord is fine with it until the tenant skips out, and the landlord realizes he got $250.00 per month rent for the past 3 months. It is possible to charge back the tenant for the concession, but the concession addendum (which probably was not used) clearly needs to state the terms, and currently Florida case law is putting into question the legality of requiring a concession payback. We recommend a clear, concise concession addendum is used and followed. The moment the tenant defaults, action should be taken to evict.

Partial Payments

Accepting partial payments is an extremely common act of desperation on the part of the landlord. Faced with foreclosure or financial ruin, the attitude is to take something rather than nothing right now, because maybe the rest will never be paid. Accepting partial payments can create an unexpected modification of the lease agreement which can haunt the landlord later when a Three Day Notice is given, and the tenant defends the eviction based upon the history of partial payment acceptance. If you are a property manager, you will be doing a serious disservice to your owner if partial payments are accepted, unless you are authorized to do this in writing by the property owner.

Accepting cash

Accepting cash is fraught with danger. Tenants who pay by cash sometimes do not receive receipts, misrepresent how much was paid, or claim to place cash in a drop box or mail slot. Landlords need to have a strict no cash policy and NEVER deviate. One deviation can open the door to a tenant's claim of paying cash when in fact nothing was paid. This creates a factual dispute which could trigger a payment defense and a court hearing.

Split rent checks

The lease states that only one rent check will be allowed, but one roommate decides to pay her share to the landlord. This continues for the next month, or the two separate payments are made at different times, triggering a late charge. The landlord's acceptance of partial payment can now potentially unwittingly establish a separate tenancy with the paying tenant. In the event of an eviction, the paying tenant feels she has paid her share. A dispute now arises as to what the rent really is, and if the late charge applies. What is the rent: the full amount or 50%? One check or money order should be demanded from the tenants. Never allow split payments, no matter how desperate the situation.

Work in exchange for rent

The tenant does not have a full security deposit but happens to be a painting contractor. The home needs painting, and the tenant offers to paint in exchange for the security deposit or rent. The owner will buy the paint, and the tenant will paint. The tenant will potentially do the job correctly as per the owner's wishes, keep painting other things and remodeling the entire house while deducting from the rent, do a mediocre job, simply not paint at all or fall off a ladder and sue the owner. Maybe as a bonus, the tenant will place a lien on the landlord's property. Now when in court, the whole painting and paint reimbursement arrangement complicates the eviction immensely. Stay far away from allowing a tenant do any work whatsoever on the property.

No criminal background checking

He seemed like such a nice guy. Saving some money by skipping a criminal background check, the landlord allows the tenant to move in, only for the landlord to later find out that the tenant is a sexual predator. The neighbors love this and spray paint "Child Molester" on the front of the house multiple times. While a criminal background check is not required by law, at least the FDLE website should be checked. It is free.

Free rent during term

Pay rent for the first 5 months, and the 6th month is free. Problem is that the tenant has not paid the pet deposit, the electric was not placed in the tenant's name for 2 months, the security deposit is not paid in full, and the property has been damaged. The lease says nothing about this, other than pay the first 5 months and the 6th is free. A landlord could be faced with giving free rent to a tenant in default if the lease is not worded properly.

Allowing significant delinquency

4 months in the hole? We see this all the time. There is no reason to allow someone to become this delinquent. The tenant will usually not get out of such a situation, and the landlord has simply helped out a deadbeat. Eventually, the tenant will fall even further behind and end up being evicted. No, the tenant will not pay you when the tax refund comes in or the lawsuit with his employer gets settled.

Accepting personal checks for late rent

The landlord should have a strict policy that late rent will not be accepted in the form of a personal check. Make one exception and the next time, the tenant will be able to argue that it is allowed, and the landlord will be seen as refusing rent. Accepting personal checks on late rent increases the risk that when the check bounces, the landlord will be deep into the next month.

Renewing leases with delinquencies

Renewing a lease with a tenant that has delinquencies on the prior lease can result in the landlord not being able to use the leverage of eviction to collect from the tenant. A new lease is a new contract, and a good argument can be made that if the new lease does not refer to the past delinquency and does not have a payment plan stated clearly in the new lease, the landlord loses.

Accepting a tenant who claims to be in foreclosure

Who does not feel sorry for a person in foreclosure? I don't, unless I can verify it. The "I was foreclosed on" story is the latest in the ploys that play on the sympathy and desperation of the landlord. If an applicant claims to have been foreclosed on, make sure you confirm this by looking up the case on the website of the county court where the alleged foreclosed property is located. If in fact there is a foreclosure action pending or finished, the information will appear on the site.

I can move in right away!

All the landlord's problems are suddenly solved! There is no bigger red flag then a tenant who needs to move quickly. Very few people MUST move quickly, unless there is some problem such as an eviction, domestic violence situation or someone skipping from a prior landlord. Exercise extreme care. If the applicant wishes to move fast, the landlord should move slowly.

A word to the property manager

When managing property for another, the manager may be asked to engage in one or more of the aforementioned risky behaviors common to the desperate landlord. Should you oblige? Only do so if you have advised the owner against the course of action in writing, and the owner has authorized you in writing to proceed nonetheless.

(Back to Top)



by Harry A. Heist, Attorney at Law


With any financial crisis, there always seem to be individuals who will capitalize on someone's misfortunes and drain them of even more money. The latest scams have to do with foreclosures and services who claim to be able to help the property owner either get out of foreclosure or somehow save their homes. As many of your owners are going into foreclosure, you have a duty to keep them from making some serious mistakes which will cause them to be further harmed and cause you to lose the account.

How are your owners solicited?

While we all know that a foreclosure action, once it is filed, becomes public record which can be found online at the County Courthouse, you might wonder how people can find out that your property owner is in financial distress even prior to a foreclosure action being filed. Prior to the foreclosure actually being filed, the mortgage company or bank files a Notice of Lis Pendens, which is putting the public on notice that a foreclosure or something else bad is on the way. Individuals are at the courthouse every day looking up these filings and looking up foreclosures, and the information they gather is purchased by legitimate foreclosure buyers and scammers alike. Once the Notice of Lis Pendens is filed, there is a good chance that the next filing will be the actual foreclosure action against the property owner, thus making your financially troubled property owner a hot prospect for a scam.

The House Sign over Scam

An owner under foreclosure these days often has little to no equity in the home. While they may have put $20,000 down on the house when purchased, the appraised value of the home has dropped significantly, and the sale price now, if they are lucky enough to sell it, could be 50% of the purchase price. These owners would like to simply walk away from the property. Scammers will approach such an owner and offer to "purchase" the property. This sounds attractive to the property owner. The property owner then signs a quitclaim deed over to the "purchaser", who is supposed to continue to make payments on the mortgage that stays in the owner's name. Besides the fact that the quitclaim deed probably violated the due on sale clause in the mortgage, the new "owner" then quickly rents the house out at a below market price, takes the rent money for as long as possible and does not pay a dime to the mortgage company. Your client ends up getting foreclosed on, but has lost more in the process.

The Sale/Leaseback Scam

In this scam, the distressed owner sells the property to an individual who claims they will make the payments current. The owner then becomes a tenant and rents the property from the individual. In the rental agreement, the new owner gives the tenant an option to purchase the property back. Often the tenant actually pays the scammer for this option, and this could be the money that the scammer paid the property owner for the property. When the original property owner now wishes to exercise this option, the price to buy the property back is too high or the payments are too much for the owner to handle, and the property is foreclosed with the tenant/former owner still on the mortgage.

The new loan

Your property owner may have some significant equity in the property and is approached by a company who offers to give the owner a new loan to refinance the property. This new loan may have an incredibly good teaser rate and a huge adjustment set for the future. This deal simply postpones the inevitable and sucks more money out of your property owner in the meantime.

The Bankruptcy Delay

Filing a bankruptcy will delay a foreclosure action, but not for long. Your desperate owner may try this approach, only to find out that they have only gained a few months but in the process have ruined their credit even further. While it is possible that the bankruptcy judge will restructure the terms of the mortgage, the owner should not count on this. Never should your owner try to file a bankruptcy himself or use a non-lawyer document preparing company.

The Pure Credit Saving Scam

The purest of all scams is simply when the property owner is approached by someone who claims that if the owner pays them a fee and signs the property over to them, all will be well. This scammer claims to have bad credit already, and for a fee will allow a foreclosure to be filed against them, because they have nothing to lose. The owner is told that they will no longer be responsible for the mortgage and the foreclosure will go against this person. Unfortunately, your owner pays the fee, the mortgage remains in the name of the owner, and the foreclosure simply will be filed against the owner.

Some advice for your owners

Just about every property manager has dealt with or is dealing with an owner in foreclosure. Your best advice to your owner will be to encourage them to contact a real estate attorney. Our office strictly handles landlord/tenant law, so we are not the ones for the job, but an attorney experienced in real estate law will be your best bet.

(Back to Top)



by Cathy L. Lucrezi, Attorney at Law


A property manager can fall into a dilemma when an owner's wishes conflict with what the law requires. This can happen in many, many ways. When it involves denying applicants who fall into a protected class, the dilemma can become a federal court case.

The problem.

The owner wants the agent to lease the property, but he has some ideas about the tenant you are to find. The owner says he does not want to rent to a family with small children. Or, he wants to reject applicants who need modifications for a disability. Perhaps the owner only wants tenants who are U.S. citizens. The agent's internal warning system goes off, and she calls the attorney. When the attorney says each of those things violate the fair housing laws, what can the agent do?


(Can you pick out the one that is spelled B-A-D-A-N-D-E-X-P-E-N-S-I-V-E?): One. Talk to the owner and let him know his "requirement" is a violation of fair housing laws. Persuade the owner to drop the requirement, and allow you to place a tenant who qualifies financially and who meets other non-discriminatory criteria. If the owner sees the wisdom of the agent's advice, then all should be fine. The agent should make good notes of the conversation, including a note she alerted the owner to the fair housing issue and she will not engage in unfair discrimination.

Two. Go along with what the owner wants to do, but be sure you have your checkbook ready. [This is the BAD choice.] By acceding to the owner's discriminatory desires, the agent becomes part of the violation. The agent will be liable to the rejected applicant for damages, attorney fees, and court costs. The agent, just like the ne'er-do-well owner, can be made subject to court-ordered injunctions and fines. FREC can initiate license revocation or suspension proceedings. It is NOT a defense to say "I was only doing what the owner told me to do".

Three. End the property management agreement. If the owner will not agree to do the right thing, the agent should end the property management for this owner. This is a bitter pill to swallow, since it means giving up business, but it is a far better choice than being a co-defendant in a fair housing lawsuit.

This creates an awkward situation, because the agent must follow up with the applicant. What can the agent say? The agent cannot tell the applicant what the owner said. That would be breaching a fiduciary duty to the owner. The agent should tell the applicant she no longer acts as property manager for the owner, and she cannot say anything more. The agent can offer to help the applicant ("Is there some other way I can help you?"), but she should not offer another property unless the applicant asks.

Check your property management agreement.

Be sure your owners know you will not engage in unfair housing practices. This should be reflected in your property management agreement. It should include something along the following lines: Please do not ask or expect us to place any restrictions on your property based on an individual's racial, religious, handicap, sex, national origin, familial status or other group protected by federal, state or local law.


(Back to Top)

revs'd 1/24

Law Offices of Heist, Weisse & Wolk, P.A.
Phone: 1-800-253-8428 Fax: 1-800-367-9038

Serving Florida's Property Managers with main office in Fort Myers Beach. Available by appointment in Orlando and Clearwater

|     Home Page     |     Firm Profile     |     Attorney Profiles     |     General Services     |     Apartment Communities     |     Residential Managers     |     Apartment Communities     |     Residential Managers     |     Homeowners/Investors     |     Eviction Q & A     |     Legal Articles     |     Training/Events     |     Contact Us     |