VOLUME 5 - ISSUE 2 LEGAL UPDATE

- AAGO Press Release
- Lease Renewals And Money Owed
- The Importance Of Accuracy
- Inheriting The Bad Lease
- Evictions and Fair Housing

 

 

AAGO PRESS RELEASE
---For Immediate Release---


For more information please contact: Lennon "Chip" Tatum NALP, CAM, NAAEI Faculty Director of Education and Government Affairs 407-644-0539 or chip@aago.org

 

AAGO Opposes Winter Springs Fee Ordinance
Thursday, February 07, 2008

The Apartment Association of Greater Orlando (AAGO) announced today that it will oppose a pending Fire Assessment (fee) ordinance at the City of Winter Springs' commission meeting on Monday, February 11th, 2008 at 5:15 pm. Chip Tatum, Director of Education & Government Affairs, commented that the new ordinance would put an undue burden on the apartment industry and would further exacerbate the affordable housing crisis in central Florida. Tatum stated, "This ordinance could cost our members in Winter Springs tens of thousands of dollars each year. The city is looking to completely subsidize their fire services with these fees, and they will negatively impact homeowners, businesses, and rental housing providers." City officials have commented that this ordinance is being introduced to get back to a "revenue neutral" position following last year's millage rollbacks. Tatum also stated, "If this passes, then homeowners and businesses will see no benefit from recent tax cuts. The rollbacks and Amendment 1 were designed to force our local governments to act more fiscally responsible, not to find creative new ways of spending and collecting the same amount of revenue."

The Apartment Association of Greater Orlando (AAGO) is a non-profit trade association representing owners, developers, investors, managers and employees of apartment communities in the Greater Orlando metro area. AAGO membership also includes vendors, suppliers and contractors who provide valuable services to the apartment industry. AAGO members own and manage nearly 120,000 apartment units in over 450 apartment communities.

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Lease Renewals And Money Owed
by Harry Anthony Heist, Attorney at Law

 

Your tenant's lease is nearly up. You offer a renewal, even though there are outstanding late charges, past due water bills, a security deposit that was never fully paid off and some monies owed for a repair that was due to the negligence of the tenant. You prepare a lease, but none of these delinquencies are reflected in the new lease. The tenant signs the renewal lease and continues to pay rent, but refuses to pay the past money owed. The problem now is collecting the money owed on the prior lease.

The Prior Lease

The prior lease represents a tenancy. It is a specific contract for the rental of the premises for a specific period of time. The lease obligations began with this lease and ended upon the termination of this lease, pursuant to the lease terms. The lease represents the "bundle of rights" bestowed upon the tenant in exchange for payment under the terms of the lease agreement. The lease is specific to the property, the landlord and the tenant.

Money owed under the lease terms

During a tenancy, money may be owed and not paid. There may be accumulated late charges, bad check fees, unpaid utility charges, unpaid deposits, charges for damage to the premises or unpaid rent, among many other things that may be owed under the lease or Florida law. The tenant is often allowed to live on the premises without paying these sums, as the landlord is satisfied in just receiving the monthly rent. The landlord has a hope of someday receiving the full amount owed and may even periodically demand payment from the tenant, getting hollow promises in return. The landlord then continues to accept rent and "work with" the tenant.

Why renew the lease?

Landlords will often renew a lease agreement, even though the tenant is technically in default of the current lease terms. Rather than lose the tenant, the landlord decides that it is beneficial to retain the tenant and try to collect the past amount owed at a later time. The problem is the inability of the landlord now to collect the past amount owed.

Collecting money owed

The only real leverage a landlord has for collection of money is the threat of eviction. During the tenancy, if the tenant fails to pay amounts due under the terms of the lease agreement or Florida law, a proper notice is given to the tenant, and if the tenant fails to comply, an eviction may be started. An eviction action is a strong, effective collection tool, as failure to comply with payment of the sums owed can and usually does result in the tenant being removed from the premises. However, it becomes problematic when the money owed is from a past lease agreement, not the current lease agreement. Many judges will take the position that a landlord can only evict the tenant for money which is owed under the current lease agreement. Does the tenant still owe the money from the prior lease? Yes, but the eviction leverage may now be gone. The prior amount owed may simply be a debt that the tenant owes, not a debt for which the landlord can evict. Sending a current tenant to collections is certainly not practical or suggested.

The New Lease Solution

Since a landlord's ability to evict a tenant for money owed under a prior lease agreement may be seriously compromised, the landlord simply needs to address the prior money owed as one of the monetary obligations of the new lease. The new lease should clearly indicate the amount owed by the tenant, define this amount as additional rent, and provide how this amount is to be paid by the tenant. The payment may be required in a lump sum, added to the monthly rent or paid according to a schedule. If a schedule is made, it is imperative that the verbiage clearly states that in the event a payment is missed, the entire balance is due and payable as rent. Should a landlord renew a lease when there is a balance owed on a prior lease? We don't recommend it, but we know that it will happen. If you are the landlord or managing the property for the landlord, make certain that you tie in the past amount owed into the new lease to avoid any unpleasant surprises.

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The Importance Of Accuracy
by Harry Anthony Heist, Attorney at Law

 

With the increase in eviction filings by pro se landlords, judges are seeing more problems than ever before. Pro se of course means "without an attorney". In an attempt to save money, many private landlords decide to file their own evictions and in the process make huge mistakes. The large number of mistakes have resulted in many judges being more cautious, so as not to evict tenants where the Three Day Notice, summons or complaint is improper. Whereas in the past some judges would have signed Final Judgments without a rigorous look at the Court file, now these same judges are scrutinizing the paperwork. In order to avoid the most common mistakes, the landlord needs to know how to spot them. Knowledge of the law combined with a checklist procedure will minimize costly mistakes. The key is getting the Three Day Notice correct.

 

Common notice problems

The notice required as a prerequisite to an eviction action must be done properly and accurately. While a judge will not read a lease in its entirely in most cases, the notice is often reviewed. Judges are fully aware of the legal requirements of the notices and know how to spot the common mistakes.

Form of notice: Some landlords insist on using the FAR/BAR notices, which do not have a spot for the date the notice is being served. We recommend that the FAR/BAR notices are avoided whenever possible, and that the landlord use the notice provided by us. Some notices are titled improperly. For instance, in a nonpayment of rent situation, the tenant is to be given a Three Day Notice to Pay or Vacate", not a "Notice to Vacate", "Notice to Quit" or other variation.

Service of Notices: Notices should be served by posting on the premises in the absence of the tenant, or by hand delivery to the tenant or occupant. Notices should not be sent by overnight mail or other delivery method. If a notice is mailed, there are timing issues which affect the form and expiration date of the notice. If you must mail a Three Day Notice, contact your attorney first.

Handwriting: Avoid writing notices by hand. Whenever possible, generate them from your computer to insure legibility. Any ambiguity in a notice is construed in favor of the tenant.

Paper color: While a bright orange notice may get the tenant's attention, it will not fax well. Stick to plain white paper and black print.

Making corrections: Often a notice is prepared but served on a different day, requiring the landlord to make a correction on the notice. Making corrections on a notice by scratching out the old date or amount and changing a date makes a notice look suspicious, and a judge may think that the notice was altered after it was served.

Spelling errors: If the tenant's name or property address does not exactly match up to that on the lease, questions arise. What is the correct name or address? While a lease may be incorrect, it is important that the notice is correct. In preparing the correct notice, it is advisable to use an AKA when stating the tenant's name. If a name or address has changed during the tenancy, it must be clear on the notice.

Omission of a tenant's name on the notice: All tenants that are lease signers should be listed on the notice. Never just put "John Smith and all others", if you know who the others are.

Incorrect amounts: An incorrect amount can result in an eviction being dismissed and an attorney's fee award to the tenant's attorney. If there is any question as to the amount owed or the amount that should be put on a notice, your attorney should be consulted.

Inconsistent rent demands: The Three Day Notice should be clear as to the amount owed. When looking at the notice, there should not be any question as to the exact amount owed. Putting statements that increase the amount owed per day due to a late charge or writing conflicting amounts on the notice can render the notice defective.

Incorrect dates: Incorrect dates will cause a notice to be defective. While a notice given in January with the prior year incorrectly stated is an obvious scrivener's error, it will open the door to a defective notice defense.

Incorrect or missing county: Many landlords have properties in multiple counties with resulting incorrect notices listing the wrong county. Some city boundaries are in 2 counties. These errors have sometimes resulted in an eviction actually being filed in the wrong county with the error being detected at the end of the eviction when the sheriff cannot serve the Writ of Possession, and the case must be dismissed and filed all over from the beginning.

Failure to list landlord's phone number: The Three Day Notice provided for in Florida Statutes states the landlord's phone number. As your notice must be substantially the same as that in the statute, the phone number should be listed on the notice.

Extraneous writing on the notice:Messages or notes should never be written on the notice. The notice should be limited to the rent due. Non-rent items should never appear on a Three Day Notice.

Demands for legal fees or costs: A tenant cannot be assessed past, present or future legal fees on a Three Day Notice, even if the lease considers such sums as additional rent.

Demands for payment by cashier's check, money order or certified funds: Once a landlord receives a bad check, there is a hesitancy to accept checks anymore. Many landlords have a policy that if the rent is late, it must be paid by cashier's check or money order. While this certainly is a good policy and highly recommended, the lease agreement must state the landlord's ability to demand this form of payment. Never demand a particular form of payment unless specifically allowed by the lease.

Using the words" See Attached" on the notice:Nothing should be attached to a Three Day Notice. It should not refer to any other document or schedule. Any attachment or separate notice may void out the Three Day Notice completely.

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Inheriting the Bad Lease
by Harry A. Heist, Attorney at Law

 

A landlord or property manger will often inherit leases from the prior landlord or manager. These leases are usually store bought leases, a lease out of a self help guide or something the landlord printed out from an internet site. Then landlord files an eviction a month later only to realize that the lease required all notices to be sent by certified mail. Surprise! The landlord now has to start over again. Can this have been avoided? Yes, but it takes some work and knowledge of what to look for. An odd notice service clause is just one of many things to look for when inheriting a lease agreement. Many leases are from other states or written by Florida attorneys who do not concentrate in landlord/tenant law. The first thing a landlord should do upon inheriting a lease is to sit down and examine the lease line by line. While no one likes to read a lease agreement, this is a necessity, not an option. The clauses in a lease agreement often conflict with Florida law or can impose additional burdensome obligations.

Who are the tenants? Confirm who the tenants are in the property. While the lease may list one party, a completely different party may be living on the premises and paying rent. They may indeed be your tenants. An eviction cannot be filed unless the names of the tenants are known.

Notice serving: Under the Landlord/Tenant Act, the usual default notices, such as the Three Day Notice and Seven Day Notices, do not need to be served by certified mail or any form of mailing for that matter. The only notice which must be sent certified mail is the Notice of Intention to Impose Claim on Security Deposit as per Florida Statutes 83.49. Some leases have clauses requiring the mailing of notices by regular or certified mail. A typical landlord is accustomed to serving a notice by posting on the premises or hand delivery as allowed by Florida law and does not think to mail a notice. An eviction is filed, only to have the case dismissed, and if there is an attorney representing the tenant, a substantial attorney's fee award may be given to the tenant. How did this silly mailing requirement even get in the lease in the first place? Most likely because it seemed like a good idea to the lease drafter. Many attorneys feel that certified mail is the proper way to get an important notice to an individual, but the experienced landlord knows that this is probably the worst way, as we have no control over when or even if the tenant picks the notice up. Look at the inherited lease carefully before serving any notices.

How long to cure a default?: A common clause in many leases deals with the amount of time the tenant has to cure a default. Often there is a spot for the landlord to fill in the number of days. While sometimes the section is left completely blank, other times bizarre numbers of days are inserted in the default section. We routinely see 7 to 30 days as being the amount of time given the tenant to cure a default. What does this mean? The tenant may have 7 to 30 days to pay rent, and the landlord cannot give the tenant a traditional Three Day Notice. The default clause is often buried in the inherited lease and can be missed.

Arbitration or Mediation Clauses: Florida law does not require arbitration or mediation in landlord/tenant law cases, but a clause inserted in a lease could trigger these procedures. While this might not be such a bad thing for a security deposit dispute, does this mean that potentially you will have to go to arbitration or mediation for an eviction case? These potentially dangerous clauses are sometimes found in the store bought, out of state or even Florida attorney prepared lease!

Security Deposit Timing Procedures: Many old leases state that the landlord has 15 days to make a claim on a security deposit but we all know that the law now says we have 30 days. So, what is it, 15 days per the lease contract or 30 days per present law? We recommend that if the lease references the old statute and requires the claim letter to be sent in 15 days, make the claim in 15 days. A clause like this is easy to overlook.

Abandoned Property: Prior to the Florida law change, a landlord was required to follow Florida Statutes 715 when dealing with a tenant's abandoned personal property. This statute requires that the tenant be sent a notice and property held by the landlord for a specific period of time before disposition. Disposition procedures under this statute depends upon the value of the property. This burdensome procedure can be avoided if the lease has certain specific wording regarding the non-liability of the landlord as it pertains to abandoned property. Without this specific wording, the landlord must follow the abandoned property procedures as outlined in Florida Statutes 715. A landlord can easily run afoul of the law if the inherited lease does not have the abandoned property wording provided in Florida Statute 83.67.

General lease clauses: Is the rent on the lease the same as what the tenant is paying? Are there other agreements out there? Is the lease old and expired? Are there blanks in important sections of the lease? Take your time and examine every clause thoroughly.

The Expired Lease: You inherited an expired lease. Can you force the tenant to sign a new one? No, but you can give the tenant a Notice of Non-Renewal as a way to either make them leave or sign a new lease. If they refuse to leave or sign, you simply evict them. How many days' notice do you need to give to non-renew the tenant? Who knows? You must look at the lease!!

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EVICTIONS AND FAIR HOUSING
by Cathy L. Lucrezi, Attorney at Law

 

A proper notice and a risk of eviction often make a tenant comply with the lease. However, that notice and risk of eviction can sometimes be perceived as a fair housing violation. How can a landlord figure out how to enforce the lease without looking like he is violating the law? Is there really such a tightrope to walk?

If a tenant is violating the lease, the landlord serves a notice. Sometimes it's a three day notice to pay rent or move. Sometimes it's a seven day notice to correct a problem and not do it again. Sometimes it's a notice to vacate.

Landlords often worry that the tenant who receives such a notice will claim a violation of fair housing law. It is thus not surprising that some landlords hesitate to take any action, even though the noncompliance persists.

A landlord protects himself by being sure that his decision to serve a notice or to start an eviction is based solely on non-discriminatory reasons. The decision can never be based, even in part, on the tenant's race, color, religion, sex, national origin, familial status, or handicap. [Don't forget "“ Your local government may have added one or two to that list.]

As long as the landlord is not considering the tenant's protected class, it is okay to evict a tenant. There must be valid, nondiscriminatory reasons for the eviction. It is okay to evict a tenant who fails to pay rent regardless of the tenant's protected status. A landlord could cross the line, though, if he treats one group of non-payers differently from another group of non-payers. For instance, if the landlord generally serves three day notices on the 10th of each month, but serves three day notices to families with children on the 5th of each month, then the landlord should expect a fair housing complaint to be made.

Here are some other situations that can result in discrimination complaints:

A single woman is told that her partner is approved to move in with her, and then is evicted when management learns her partner is of a different race.

A married couple who lives in a one bedroom apartment is asked to vacate after management learns the wife is pregnant.

Tenants who invited guests of a particular racial, ethnic or religious group for dinner or an afternoon at the pool are asked to vacate.

A tenant with epilepsy falls at the property and has a seizure. The ensuing flurry of emergency personnel causes the landlord to issue a disturbance notice.

 

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

Serving Florida's Property Managers with offices in Orlando, Clearwater, and Fort Myers Beach, Principal Office


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