- Truss Marking Rule
- Home Based Businesses
- The Early Termination Law



Home Based Businesses
by Harry Heist, Attorney at Law


When a typical property manager is asked if a resident can conduct business out of the apartment, the answer is usually a resounding "no". The concept of a person turning the apartment into a store where people are coming and going would never be allowed of course. Upon further discussion, if an applicant explains that he has a home based business or works from home where he uses his computer to sell a particular product or provide a service, and the applicant also has excellent credit, proof of income, good rental history, etc., the answer begins to change and the lines blurred. Since more people are working from home, and many have computer related home based businesses, it is a fact that some of your residents will not be working in the traditional office, but rather will be working out of their apartments. Allowing a resident to operate a home based business or work from home now is almost a necessity, but lines need to be drawn, policies created, and a Home Based Business Agreement used. Failure to properly handle the resident working from home could result in great liability to the apartment community.

LEASE PROHIBITIONS - Most leases have a prohibition against conducting a business from the residential unit. The reasons for this prohibition include liability, zoning, insurance, and traffic, just to name a few. However, most lease drafters did not anticipate the home based business where the resident does not have any foot traffic to the unit, and is simply using a computer and phone to provide a service or sell a product that may or may not be kept in the unit. Since the lease prohibits conducting business in the residential unit, the Home Based Business Agreement must be used; otherwise, you will be allowing a lease violation.

LIABILITY - While there may seem to be no extra liability in allowing someone to simply work from home, conduct a computer based business, or sell a small product or products that may be kept in the apartment , there actually is. In the event the resident's ability to conduct his or her business is interrupted, the resident may attempt to hold you liable for the monetary damages suffered as a result. If there were a flood in an apartment or a cable or phone line was accidentally cut by one of the maintenance techs who was trimming the palm fronds, the typical resident certainly may have a problem with this, as inconvenience occurs and possible property damage. Most of the time, the lease agreement provides that the landlord is not responsible for damage to the resident's personal property, a clause which may or not be upheld in court. The problem is that now the potential stakes are higher and the problem magnified when a resident is working from home or conducting a business. That cut cable line to the building could result in a serious disruption of the resident's home based business or the ability of the resident to work remotely at her personal business or for an employer. That water heater that failed upstairs through no fault of your resident could result in damages in the amount of thousands of dollars to the resident's inventory of collectible baseball cards. Could your company be held liable? Possibly. The goal is to anticipate this problem and reduce this liability. Do NOT depend upon the clause in your lease that purports to relieve your company of liability for loss to a resident's personal property, as this clause may not hold up in court. These clauses are usually upheld in the event of a loss caused by the resident or another resident, for example in cases when another resident causes a fire or flood due to overflowing a tub, but if the loss is caused by a broken pipe or any negligence on the part of your staff, these clauses may afford little protection regardless of what they appear to provide.

SETTING THE RULES - If you are going to allow a person to conduct a home based business, you need to set the rules. You cannot have people coming and going, employees on the premises, constant deliveries, signs or advertising. The business must be conducted in a quiet, legal manner that in no way disturbs the peaceful quiet enjoyment of the premises for other residents. Many residents will use their apartment address as the business address, which could trigger an issue with your insurance company, zoning or code enforcement. If a piece of equipment, such as a copy machine, were to cause a fire, you can rest assured that your insurance company will try to deny coverage based on the fact that business or commercial activity was being conducted in the residential unit. If any equipment were to create noise or noxious odors, you may have a problem on your hands.

CHECK WITH RISK MANAGEMENT - Prior to allowing a resident to conduct a home based business, your risk management department should be advised, so they can check to see if your company's insurance policy will cover resident business related losses, or if you are self insured or have a high deductible, if your company is willing to increase its risk. Since many companies now are indeed self insured or have extremely high deductibles on their insurance policies, you cannot take any chances in allowing the resident to conduct the home based business and always must conduct a risk/benefit analysis.

THE HOME BASED BUSINESS AGREEMENT AND WAIVER - The purpose of the Home Based Business Agreement and Waiver is to set the guidelines for the operation of a home based business and to have the resident relieve you of liability for damage to their inventory, equipment, and to protect your company against any claims by the resident for loss or interruption to business activity. The Home Based Business Agreement and Waiver will also allow you to ask the resident to cease the business activity if the guidelines are violated. If the resident fails to do so, this failure will be a material breach of the Home Based Business Agreement and Waiver which has been made part of the Lease Agreement, and subject the resident to an eviction action. In other words, you are conditionally allowing the resident to conduct this business activity, but retain the full power to make it cease or file an eviction if the resident continues after being told to cease. The waiver section of the agreement clarifies that in the event there is any interruption to the business or damage to any business property, your company is not liable. Will this waiver hold up completely in court? It is a risk your company takes if it decides to allow the home based business.

BUSINESSES TO PROHIBIT - Some businesses need to be flat out prohibited. Any business that will involve customers coming to the apartment to purchase a product, drop off or pick up a product, or to receive a service, will not only increase your liability, but most likely will be in violation of local zoning or code ordinances. Examples of prohibited businesses that are services could include, but certainly are not limited to, massage services, nail treatments, and hair cutting. Additionally, your company's insurance coverage would not cover any injuries to the resident's customers or invitees if it were for business purposes. Any business which requires any sort of manufacturing, use of chemicals, or noise or odor emitting equipment should be strictly prohibited. A business which results in excessive deliveries or pick ups by UPS, FedEx or any other delivery service should be prohibited. In conjunction with the Home Based Business Agreement and Waiver, you should be using the Delivery Agreement, as the chances of excessive deliveries will immediately increase.

BABYSITTING AND CHILD WATCHING - Often, stay at home parents become babysitters of the children of their friends and acquaintances who are working or otherwise occupied. Some residents may even advertise these services on your community bulletin board or community cable channel. Some go as far as advertising online on Craig's List. Sometimes you discover by accident that a babysitting or child watching service is occurring on the property. When asked, a resident will often say she is just "watching a friend's child". The problem is that this often goes beyond the altruistic act of watching a friend's child once in a while, and becomes a paid babysitting service, sometimes servicing parents who do not even live on the property. Few people will voluntarily baby sit the children of others for any length of time "for free". Babysitter and child watching services need to be strictly prohibited, and stopped when discovered by the use of a Seven Day Notice to Cure, and potentially eventual termination of the lease if your attorney feels you have proof that the activity has not stopped. The liability for your company if paid babysitting is occurring on your property is severe, especially if you have knowledge of it and do nothing to stop the activity. We have seen cases when children have been severely injured due to accidents, fell out windows or were molested by babysitters or visitors of the baby sitter. An apartment is NOT appropriate for a day care service.

Best Practices
1. Make sure your lease prohibits business or commercial activity.
2. Develop a plan and written guidelines on what business activities you may allow, if any.
3. Check with Risk Management and your insurance carrier.
4. If you will allow a business, always use the Home Based Business Agreement and Waiver.
5. Never allow paid babysitting or child watching services.
6. Take swift action if you discover any prohibited business activity or business activity where the Home based Business Agreement and Waiver is not in use.


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Truss Marking Rule
by Brian P. Wolk, Attorney at Law


Driving through Florida, one can see odd looking signage appearing on many structures, including apartment community buildings. These particular signs help to alert firefighters to potential danger as a result of a building's design. Of special importance to property managers is that the signage is not voluntary. It is mandatory under Florida law. A fire typically doubles in size every thirty seconds, so it is imperative that firefighters understand the risks involved if they enter a burning building. Buildings with lightweight trusses can easily collapse during an intense fire. These structures, even when they are built to code, pose a special danger to firefighters. Thus, Florida requires all multi-family residential structures which consist of lightweight trusses to place proper signage near the entrance. These rules are contained in The Aldridge-Benge Firefighter Safety Act. The property manager who is not in compliance with this law will subject the property owner to severe penalties, including fines. Compliance is not difficult. The property manager must purchase the signage and place it on the building. The key is to purchase the correct signage and to place the signs in the proper location.

History of The Aldridge-Benge Firefighter Safety Act

On December 13, 2009, then Governor Charlie Crist signed the Act into law in honor of two Orange County Firefighters, Todd Aldridge and Mark Benge, who died when a roof of a burning gift shop collapsed while they were responding to the fire. The Florida Legislature along with the Governor took action, so that those types of tragedies could be avoided in the future. The State of Florida Fire Marshal's Office implemented Rule 69-A-60.0081 under the authority of Florida Statute Section 633.027.

The purpose of the Act

The law is intended to better prepare firefighters for the hazards involved when they enter a burning building. The purpose of Rule 69-A-60.0081 is to require the placement of an identifying symbol on structures constructed with a light-frame truss component in a manner sufficient to warn persons conducting fire control and other emergency operations of the existence of light-frame truss-type construction in the structure.

Explanation of light-frame truss-type construction

The Rule covers light frame construction. That simply means that repetitive wood such as beams or trusses are used, or light gauge steel is used, for either roofs, floors or walls. Virtually all construction in Florida falls under this category except concrete building with concrete floors and a heavy gauge steel roofing system. The inherent dangers with truss type construction

Trusses are subject to failure in a fire. If that occurs, the load is shifted to other remaining trusses, which in turn can cause complete failure, and ultimately the collapse of the entire building. Making this problem even worse, the heavy items which are often placed on roofs and floors, such as air conditioning units and furniture, increase the likelihood of potential roof and/or floor failure.

Structures covered under the Rule

The Rule covers all commercial structures of three or more units. A small triplex or a large apartment building would be considered a commercial structure under the Rule, and both must be in compliance with the Rule. It should be noted that townhouses are not considered multi-family residential structures, and therefore are exempt from the Rule.

Structures possibly covered under the Rule

In an abundance of caution, property managers should make sure that all structures within the apartment community are in compliance with the rule. For example, it is very possible that fitness centers, maintenance shops, clubhouses and laundry rooms are also covered by the Rule.

Required signage

The Rule sets forth approved symbols which must be placed on the signs, as well as the dimensions of the signage. The Maltese Cross is the approved symbol. It must contain a bright red, reflective color and measure eight inches horizontally and eight inches vertically. The signage can be as simple a vinyl stick-on sign, or a more substantial, aluminum or composite type of sign.

Specific marking requirements

If the building is constructed with a light frame truss roof, it must be marked with the letter "R". If the building is constructed with a light frame truss floor system. It must be marked with the letter "F". If both light frame truss floors and roof are present, the building must be marked with the letters "RF".

Placement of the signs

The symbol must be placed within 24 inches to the left of the main entry door of the unit and must be placed no less than 4 feet from the bottom of the symbol to the grade, walking surface or finished floor, and no more than 6 feet from grade to the top of the symbol. The property manager should be sure to use measuring tape, and must keep in mind that the above requirements pertain to the symbol, not the actual sign to which the symbol is affixed, and this will affect the measurements. The symbol itself must be permanently attached to the structure on a contrasting background, or be mounted on a contrasting base material which is permanently attached to the structure.

The Rule is vague in some respects

Many rules and laws create more questions than answers. For instance, how does one measure the distance the symbol is from the edge of the floor? Is it from the middle of the symbol or the edge of the symbol? The Rule does not specify. It is recommended that the property manager invite the local fire marshal out to the apartment community to make sure the apartment community is in compliance with the Truss Marking Rule.

Disagreement between the owner and the fire marshal

The Truss Marking Rule does create a mechanism if the owner does not believe the structure contains light frame truss type construction. In that case, the property owner shall be granted not more than 45 days to provide written verification from a licensed engineer or licensed architect, or otherwise the owner must comply with the Rule.

Avoidance of serious fines

The Truss Marking Rule subjects the property owner to serious penalties for non-compliance, including fines. In fact, there can be multiple fines depending on the nature of the failure to comply with the Rule. The property manager must be diligent to ensure compliance by the apartment community.

Recommendations to assist the property manager to remain in compliance with the Rule

While the Rule does allow simple stick-on signage, it will defeat your purpose for obtaining the signage if a resident or guest can easily peel it off. Signage of good quality built to last should be purchased. Property managers should have maintenance staff members routinely inspect to make sure that the signage is not missing or damaged. Spare signage should also be kept on hand in the event a sign is missing, as you never know when the fire marshal will be stopping by the apartment community to conduct an inspection. Finally, when the apartment community has passed its inspection by the fire marshal, a written record must be kept, as a different inspector could come out the following year, so you should have clear documentation that the present signage was approved by the fire marshal.


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The Early Termination Law
by Brian P. Wolk Attorney at Law

Florida Statute 83.595 (4) is a law that is commonly misunderstood by many property managers. Many property managers have never read the law. To make matters worse, many property managers who have read the law find it incredibly difficult to interpret. The statute contains language authorizing a landlord in certain circumstances to charge a resident liquidated damages or an early termination fee in limited amounts if the resident breaches the rental agreement by surrendering possession of the rental unit prior to the end of the lease term, or abandoning the apartment home prior to the end of the lease term.

The law prior to the enactment of Florida Statute 83.595 (4)

Prior to the amending of Florida Statute 83.595 in 2008, when a resident decided to break a lease by permanently leaving prior to the end of the lease term, commonly referred to by property managers as vacating early or skipping, the landlord in accordance with Chapter 83 of the Florida Statutes, could only charge the resident rent through the earlier of the lease expiration date or the date a replacement resident was placed in possession of the premises if there were no rent shortfall. For example, if the replacement resident was paying a lower rental amount, the landlord could have still charged the resident who broke the lease the difference in the rent through the end of that resident's lease term.

Florida Class Action Lawsuit

In addition to the remedies provided in Florida Statute 83.595 prior to the amending of the statute in 2008, many property management companies charged the resident who vacated early termination penalties, insufficient notice fees, liquidated damage charges or termination fees. In 2002, a class action suit, a lawsuit filed consisting of multiple plaintiffs, was filed in Palm Beach County Circuit Court against a property management company, alleging that the company's termination fee policy resulted in excessive charges. The company charged a termination fee of two months' rent if proper notice regarding the early termination was not given by the resident.

Ruling of the Court in the Class Action Lawsuit

The Court ruled in favor of the plaintiffs who were former residents. The Court based it decision in part on Florida Statute 83.47, Prohibited provisions in rental agreements."” (1) A provision in a rental agreement is void and unenforceable to the extent that it: (a) Purports to waive or preclude the rights, remedies, or requirements set forth in this part. (b) Purports to limit or preclude any liability of the landlord to the tenant or of the tenant to the landlord, arising under law. The Court held that Chapter 83 governs the landlord's legally available remedies for charging rent and related fees to residents. The Court then reasoned that the termination fee charged by the property management company violated Florida Statute 83.47, because the charge was an attempt by the landlord to waive, or preclude the rights, remedies or requirements of Chapter 83, as the termination fees were not explicitly listed in the statute as an available remedy for the landlord when the resident vacates early and breaks the lease.

The 2008 Amendment to Chapter 83

As a direct result of the Court's ruling in the class action lawsuit, property managers pushed the Florida Legislature and Governor to make liquidated damage charges or early termination fees lawful and enforceable. In 2008, Chapter 83 was amended to include Florida Statute 83.595 (4), which authorizes a limited amount of early termination fees or liquidated damage charges in certain circumstances.

The wording contained in Florida Statute 83.595 (4)

Section 4 of 83.595 reads as follows:(4) Charge liquidated damages, as provided in the rental agreement, or an early termination fee to the tenant if the landlord and tenant have agreed to liquidated damages or an early termination fee, if the amount does not exceed 2 months' rent, and if, in the case of an early termination fee, the tenant is required to give no more than 60 days' notice, as provided in the rental agreement, prior to the proposed date of early termination. This remedy is available only if the tenant and the landlord, at the time the rental agreement was made, indicated acceptance of liquidated damages or an early termination fee. The tenant must indicate acceptance of liquidated damages or an early termination fee by signing a separate addendum to the rental agreement containing a provision in substantially the following form:

__ I agree, as provided in the rental agreement, to pay $ (an amount that does not exceed 2 months' rent) as liquidated damages or an early termination fee if I elect to terminate the rental agreement, and the landlord waives the right to seek additional rent beyond the month in which the landlord retakes possession.

__ I do not agree to liquidated damages or an early termination fee, and I acknowledge that the landlord may seek damages as provided by law. (a) In addition to liquidated damages or an early termination fee, the landlord is entitled to the rent and other charges accrued through the end of the month in which the landlord retakes possession of the dwelling unit and charges for damages to the dwelling unit. (b) This subsection does not apply if the breach is failure to give notice as provided in s. 83.575.

Initial steps to be taken by the property manager

First, the property manager must decide if the landlord is going to offer the resident the option to select a liquidated or early termination fee. If so, then the property manager must decide the monetary amount of the early termination or liquidated damage fee. However, that amount cannot exceed two months' rent. The property manager must also determine how much notice the resident will be required to provide to terminate the lease early, 60 days' notice being the maximum amount of notice the landlord can require. The property manager must offer an addendum with substantially the same language as contained in Florida Statute 83.595 (4). The property manager must make sure that the language containing the options for the resident is in the form of a separate addendum. If not, then the early termination fee or liquidated damages amount will not be enforceable.

The addendum must be signed during lease execution

Florida Statute 83.595 (4) is very clear that the addendum will only be enforceable if it is executed at the time the rental agreement is made. Therefore, the addendum will be null and void if, for example, the property manager offers the addendum to the resident three days after lease execution.

Who chooses the option

Under Florida Statute 83.595 (4) it is the resident, not the landlord, who chooses whether to be subject to liquidated damages or early termination fees in the event the rental unit is vacated prior to the end of the lease term. Former Governor Charlie Crist threatened to veto the bill unless the resident was given the choice, so the bill was amended late in the legislative session in order for the bill to be passed.

The landlord is not required to offer the early termination fee addendum to the resident

The decision to offer the addendum to the resident is strictly a business decision for the landlord to make. If the rental housing market is soft, it would be counterproductive for the landlord to use the addendum, since the rental unit could often sit empty for greater than two months. On the other hand, in a hot rental market, it may be better to offer the addendum to the resident, as the apartment home may often be leased again in less than two months.

Fair Housing considerations

It is strongly recommended that if a property manager is going to offer the addendum to one prospective resident, then all prospective residents should receive the addendum at lease execution. If not, then the property manager individually and the landlord are open to claims of discrimination by a protected class.

The resident selects the second option

If a resident selects the second option, electing not to be subject to the early termination or liquidated damages fee, then the resident who breaches the lease by vacating early will be liable to the landlord for the amount of rent owed under the lease as it comes due until the sooner of the end of the lease term, or until the unit is relet, assuming no shortfall in the rent collected.

Charging the resident a concession payback

The statute does not specifically address whether the landlord can charge a resident who selects option 1 of the addendum a concession payback charge. It would not be advisable in that case for the landlord to charge that amount to the resident, as a judge could reasonably view that as a charge in addition to the liquidated damage charge. Many judges will find that the liquidated damage amount is exclusive.

The resident selects the early termination fee option and vacates without notice

If the resident vacates without notice, the property manager may charge the early termination liquidated damage amount listed in the addendum, and in addition, may charge the resident rent and any other charges through the end of the month that the resident vacated. The landlord can also charge the resident for any physical damages to the apartment home.

The resident selects the early termination fee option and notifies the landlord that he will be terminating the lease early without proper notice

The resident will be treated the same as the resident who vacates without any notice. Although you can ask the resident for notice up to 60 days, it is very likely that a judge will treat that notice requirement as merely aspirational in nature. In other words, you cannot hold the resident to the notice requirement, as the statute does not provide a clear mechanism to enforce the notice requirement. The statute does not list any amount that can be charged in addition to the early termination fee or liquidated damages amount listed on the addendum.

The resident vacates at the end of the lease

Florida Statute 83.595 (4) and any related addendum does not apply to the resident who vacates the rental unit without proper notice at the conclusion of their lease term. Florida Statute 83.575, Termination of tenancy with specific duration, will apply to that scenario.


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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 main office in Fort Myers Beach. Available by appointment in Orlando and Clearwater

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