VOLUME 11 - ISSUE 2 LEGAL UPDATE
- Dangers and Difficulties when Evicting Servicemembers
- Copying Military Identification
- Termination or Interruption of the Resident’s Utility Services by the Property Manager and Other Prohibited Actions
- Disclosure of All Facts Prior to Eviction
- SINGLE FAMILY QUICK LEGAL Q AND A #4
Copying Military Identification
by Harry Heist, Attorney at Law
In a past issue of our email newsletter, specifically the March 2008 issue, we addressed the topic of copying an applicant or a resident’s ID. It is our opinion that the benefits of copying ID and having it on file outweigh the potential risk that you would be found to be engaging in illegal discrimination. The discrimination charges in the past have arisen out of a few cases with managers sitting down and going through copies of ID, looking at the pictures of the applicants and then using this as a basis to pick and choose who is approved or not approved in a discriminatory fashion in violation of Fair Housing Laws. We feel that you know better and would not ever engage in such a practice. With that said, we must address a little known law regarding military identification. 18 US Code Section 701 prohibits anyone other than persons from specifically authorized state and federal agencies to make a photocopy of a military ID or Common Access Card and the penalties for violating this law are severe!
Asking to See or View the Military ID
The law does not prohibit you from asking to see, examine and view the military ID or Common Access Card. If the applicant has a driver’s license or other state issued ID, this should suffice and since it is illegal under federal and state laws to discriminate against a person in the military, it may not even be prudent to ask to see it as it may have no relevance. If the applicant does not have a driver’s license or other state issued ID, there is no problem at all in asking to view the military ID.
When is ID usually Copied
Most property management companies have a policy whereby ID is at a bare minimum examined and cross reference to the application. The purpose of course is to confirm as best as possible that the person filling out the application is in fact the person they say they are. Another time for ID copying may be for unit showing purposes. Many companies have a policy where for safety reasons, they will copy a person’s ID prior to going out to an apartment or taking a prospect to a rental home. Finally, many companies have a policy to keep the ID in the file for many other purposes such as for a key release in the event of a lock out or for later collection activities. These are all legitimate and valid reasons to copy ID. The key is that it is not military ID.
The Federal Law
18 U.S. Code § 701 - Official badges, identification cards, other insignia
“Whoever manufactures, sells or possesses any badge, identification card or other insignia of the design prescribed by the head of any department or agency of the United States for use by any officer or employee thereof, or any colorable imitation thereof, or photographs, prints, or in any other manner makes or executes any engraving, photograph, print, or impression in the likeness of any such badge, identification card, or other insignia, or any colorable imitation thereof, except as authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both.”
Simply put, do not copy military ID as it is against the law. The penalty is both a potential fine and could result in up to 6 months imprisonment. If you do not have this written in your policy and procedures manual, we recommend you put it in now and advise any and all of your employees or anyone engaged in leasing to be careful to never violate this law. Finally, the security of your applications is paramount and if you do not have your applications stored in a locked, secure and maybe even a hidden place, you are putting your resident, applicant, your company and yourself at great risk. The topic of application security will be discussed in a later article.
Dangers and Difficulties when Evicting Servicemembers
by Brian P. Wolk, Attorney at Law
Turn on the television, or open up a newspaper, and you are virtually guaranteed to see many areas around the world filled with fighting and civil unrest. In addition, there is usually some type of natural catastrophe in which major damage has occurred. The brave men and women of the United States Armed Forces who protect our country are often deployed in large numbers in many countries all around the globe, and for many different reasons. For instance, the United States could be involved in a conflict in a far-off region. The event causing the deployment can also be one that is primarily a humanitarian effort, such as a typhoon in Asia, where in the aftermath our servicemembers hand out much needed essentials and deliver other aid. The additional presence of servicemembers who are deployed has also created uncertainty for property managers who have residents on active military duty and family members of servicemembers. The property manager in many cases has no idea how to go about evicting such a resident or the servicemember’s family members. Making matters worse, property managers rarely understand how much potential liability there is when improperly evicting a servicemember.
History of the Servicemembers’ Civil Relief Act
The Servicemembers' Civil Relief Act, also known as "SCRA", is a federal law which gives servicemembers many protections with regard to civil lawsuits. Those protections enable servicemembers and the servicemember’s family members, or dependents in some cases, to delay or suspend civil liabilities. The Act was signed into law in 2003. However, an earlier version of the law was enacted during World War I and re-enacted in 1940 during World War II, which law was previously was known as The Soldiers' and Sailors' Civil Relief Act. These laws serve the same general purpose. The acting Congress and President at the time intended for those who are serving in the armed forces to not be distracted with respect to their main focus, which is to protect the United States, and did not want the servicemembers being worried about civil lawsuits filed against them. There is also a well grounded assumption that servicemembers are at not on a level playing field in terms of defending themselves from a civil lawsuit while being located a great distance away from the United States. Judges view this law very seriously, and military residents are likely to prevail in court unless a judge is absolutely sure that the protections do not apply. Property managers should not expect to receive the “benefit of the doubt” in a close case. The United States Supreme Court in a 1948 opinion made clear that the law should be viewed "with an eye friendly to those who dropped their affairs to answer their country's call".
Eviction Protection under the SCRA
The property manager intending to evict a resident on active duty in the military or a resident in the process of reporting for active duty often must deal with two areas that the Servicemembers' Civil Relief Act covers, which is protection against the entry of default judgments, and a stay of proceedings when the servicemember has notice of the proceeding. "SCRA" covers residential evictions of servicemembers or their dependents during the period of military service, unless the monthly rent is unusually high. "Dependents" are defined under the Act as the spouse of the servicemember, a child of the servicemember, or an individual for whom the servicemember provided more than one-half of the individual's support for 180 days immediately preceding an application for relief under "SCRA. As you can see, the definition of a dependent is much broader than just an immediate family member.
Entry of a Default against a Servicemember
When evicting most residents, if the resident does not answer the complaint after 5 business days, the property manager is entitled to a default which is entered by the clerk of the court. The judge then will enter the final judgment of eviction. Not so in the eviction of a servicemember or dependent of a servicemember: the process to obtain a default is drawn out and complicated. The judge, not the clerk of the court, must enter the default. To obtain the default, the property manager must first provide the judge with an affidavit regarding the resident's military status. If the verification is not clear as to military status, the judge may enter a default, but also require the landlord to post a bond in a certain amount to protect the resident from damage. If the judgment is set aside at a later date because it turns out that one of the residents was a servicemember, the bond may be used to satisfy the servicemember’s losses, and the bond will not be dissolved until the time to file all state and federal law appeals has been exhausted. If the military verification shows that the resident is on active duty in the military, then the judge will order that an attorney be appointed to represent the servicemember, if no appearance is made on behalf of the servicemember. Many counties require certain military verification reports to be run when submitting default paperwork, and it is vital that property managers obtain social security numbers and birth dates of all residents who sign the lease, as that information is needed in order to generate those reports.
Military Ad Litem Attorney
This attorney that is appointed by the judge to represent the servicemember is referred to as the military ad litem attorney. Substantial additional charges and fees are involved in this process, and courts will often expect the property owner to pay, since this area of the law is unclear as to who has the burden to pay for the ad litem attorney. The military ad litem attorney vigorously tries to find the servicemember and will review the eviction filing to see if there are any valid defenses that the servicemember may have. If the military ad litem attorney submits a report to the court indicating the resident does not have any valid legal defenses, the court then may enter a default and then give possession of the unit back to the property manager. A property manager should never file a false military verification unless the property manager is seeking to do jail time. The law imposes heavy punishment on those who knowingly file false military verification affidavits, as violators can be imprisoned for up to one year, in addition to being fined.
The Judge may Delay the Eviction
The Act authorizes the judge to grant a stay on the eviction for a period of at least 90 days, no matter how feeble the servicemember’s legal defenses are, as long as the servicemember demonstrates to the judge that military service is adversely affecting the servicemember’s ability to timely pay the rent. The judge can stay the eviction action for a lesser period of time, but often judges will grant as much time as the servicemember needs. The judge also has authority to change terms of the lease, and has discretion to increase the stay to a period of longer than ninety days if the facts support such a ruling.
A property manager should always remember that the SCRA allows the servicemember to waive protections afforded under the act. Thus, entering into a stipulation with the military resident under eviction is usually a good idea. However, the property manager’s eviction attorney should draft the waiver wording listed on the stipulation so that it is legally enforceable. If the servicemember fails to abide by the properly worded stipulation, an eviction judgment based on the stipulation noncompliance can usually be obtained without the necessity of an attorney ad litem appointment.
Final Words of Advice
Property managers should attempt to evict residents who are on active duty in the military only as a last resort. The reason is simple: the eviction of a servicemember can take many months. These cases are usually significantly more expensive, as the property manager often must end up paying for the resident’s military ad litem attorney. Therefore, before trying to evict the military resident, the property manager should work overtime to see if an agreement to vacate can be signed. In many cases it is worthwhile for the property manager to agree to waive collection rights, if this will give the servicemember or the servicemember’s dependent an incentive to turn in keys and deliver possession back to the property manager without the need for an eviction.
Termination or Interruption of the Resident’s Utility Services
by the Property Manager and Other Prohibited Actions
by Brian P. Wolk, Attorney at Law
Most property managers in Florida understand that the law does impose restrictions on them. For example, a properly trained property manager will not dispose of items left inside a unit by a resident, unless there has been a surrender, legal abandonment or the execution of a writ of possession by the sheriff has occurred. The property manager would comprehend that premature removal of the resident’s personal property and other such egregious actions, such as locking out a resident in order to bully a resident to vacate without a writ of possession being executed by the sheriff, will lead to massive liability for the property manager. However, many property managers do not understand that significant liability for the property manager may be incurred in less obvious circumstances. The Florida statutory provision governing prohibited practices cites numerous actions which qualify as a prohibited practice, and harsh, financial penalties await the landlord who violates these laws. A landlord can easily run afoul of the statute, as the statutory provision prohibits the landlord from engaging in many activities in addition to illegal lock changes. If the property manager has committed a prohibited act, then the penalty is automatic, no matter how badly the resident has acted. Many attorneys are ready and able to represent a resident when a property manager has clearly committed a prohibited practice, as the landlord will be responsible to pay the resident's attorney's fees in the event the resident sues and prevails in court. This would be very costly to the landlord. The termination of the resident’s utility services, or even causing the interruption of the utility services, is one of those prohibited acts, and is one of the least understood prohibited practices under the statute. This especially comes into play when the utility bill remains in the owner’s name, as is required in some Florida localities.
Purpose of the Prohibited Practices Statute
The Florida legislature wished to end the practice of self-help evictions when the statute was enacted into law. The legislature also intended to create an economic incentive to the property manager to file an eviction action in court, as opposed to pursuing self-help. In addition, during the legislative voting process, a senate committee described the bill which would later govern prohibited practices as an attempt to prohibit landlords from engaging in such practices as terminating utilities, preventing a resident's access, or removing a resident's property in an attempt to coerce the resident into vacating the premises.
Termination or Interruption of Utility Services which are Prohibited
Florida Law prohibits a property manager from causing, directly or indirectly, the termination or interruption of any utility service provided to the resident. Those utility services include, but are not limited to, heat, water, gas, electricity, gas, garbage, elevator, collection, light or refrigeration. This prohibition will apply whether or not the utility service is under the control of, or payment is made by, the landlord. It is crucial for a property manager to understand that some less obvious services, such as refrigeration, garbage collection and elevator service are covered under the statute, since they may not customarily be viewed as utilities.
Power is Cut Off When Resident Fails to Pay the Bill or Place Bill in Resident’s Own Name
In many instances a resident is obligated under the lease to place the electric service in the resident's own name, but never does, or has obtained electric service, but does not remain current with payments to keep the account in good standing. That can result in the electric service staying in or reverting back into the landlord's name. The apartment community manager then finds out about this and has good reason to be livid. The property manager then contacts the electric provider and requests that the electric service be disconnected from the resident's home. There is no question that electric service is a utility that is covered under the statute. The landlord has now committed a prohibited practice. In those instances in which the resident is required to place electric utility service under the resident's own name, it is often better to not have the power on under the landlord's name at move-in, if otherwise allowed by law. On the other hand, this may not be workable during warm weather months.
Direct and Indirect Interruption of Services
The statute prohibits the landlord from directly terminating or interrupting the utility services provided to the resident. For example, if the property manager intentionally breaks a power line, this would be an example of the landlord directly causing the interruption. Another more common example of a direct interruption would be the property manager e-mailing the power company and directing that the resident's power be shut off. Nonetheless, the law will still harshly penalize the landlord who simply fails to pay the electric bill, which then causes the electric company to discontinue service. In that example the landlord has indirectly interrupted the utility service furnished to the resident. Florida law clearly penalizes a landlord who indirectly terminates or interrupts any utility service furnished to the resident.
Counties or Cities in which Utility Service Bills Remains in the Name of the Landlord
In certain cities and counties in Florida, the utility service bill is required to remain in the landlord’s name, or the bill is in the name of both the landlord and resident. The property manager must be particularly careful in this type of scenario. For instance, if the resident becomes delinquent with regard to payments, and then the utility is turned off, this could cause massive liability for the landlord. The landlord would be liable as having committed a prohibited practice, because the landlord’s name was on the account, and the landlord has at least indirect control over the situation. In this type of situation, the landlord should pay the bill to avoid the interruption, and then seek reimbursement from the resident.
How Long may the Interruption Occur?
The statute does not in any way set forth a minimum time period for liability to be incurred if the service is interrupted. For example, a property manager with bad intent who shuts off water furnished to the resident for a few minutes will have technically committed a prohibited practice. However if the termination of the utility is accidental, or for purposes of repair, then a different result may occur. A Florida court has ruled in one instance when a landlord’s agent mistakenly failed to pay the electric bill and power was shut off, that the utility interruption was not a prohibited practice, and the resident was only entitled to actual damages. In addition, a Florida District Court of Appeals decision held that the legislature did not intend to penalize landlords under the prohibited practices statute who temporarily interrupt utilities in connection with the performance of maintenance in connection with a condominium conversion, as the activity was not self-help related conduct. Because this area of the law is unclear, your attorney should be consulted before turning off any utilities.
Each Termination or Interruption of the Utility Service is a Separate Violation
A property manager angry with a resident delinquent on the rent shuts off a breaker to the unit delivering electric utility service and also manages to cause the water service provided to the resident to be shut off. In that case, the landlord has committed two separate prohibited practices. Termination or interruption of more than one utility will allow the resident to obtain damages for each utility service terminated.
Scope of the Statute
The statute contains a number of utility services provided to the resident which are covered under the statute. It is important for the property manager to also understand that the statute also states that the services covered are not limited to the specific ones mentioned. Thus, a judge may rule that services such as telephone or cable television are covered utility services.
Severe Penalties for Committing a Prohibited Practice
Florida law authorizes the resident to receive the greater of three months' rent or actual and consequential damages if the landlord commits a prohibited practice. The landlord is also liable to the resident for attorney's fees. Repeated violations by the landlord will entitle the resident to separate awards. For example, if during a six-week period, three separate prohibited practices occurred, then the landlord may be liable to the resident for a minimum amount of nine months’ rent: a court can impose the three-month penalty three times. In addition, the time period remaining on the lease does not matter. For example, if there are only three weeks left before the lease expiration date and the landlord commits a prohibited practice, the resident’s claim will be the same as if there were 9 or 10 months left on the lease term.
Additional Remedies for the Resident
There is even more reason for a property manager to be very careful with regard to prohibited practices. Even if the resident has sued the landlord under the prohibited practices statute, the resident may also sue the landlord under all other remedies available at law or equity. Those remedies include, but are not limited to, civil theft, fair housing violations, security deposit litigation and damages related to a conversion. Moreover, although actual losses related to a prohibited practice violation will usually be less than three months’ rent, the actual damages can occasionally be very high, for example, if the resident is hooked up to medical equipment when the power is cut.
Disclosure of All Facts Prior to Eviction
by Harry Heist, Attorney at Law
Sometimes after we have filed an eviction, we find out that a client “withheld” certain information from us, and that act of withholding ends up having a serious impact on the outcome of the eviction case. Of course, most clients claim that it was unintentional or an accident, and that they simply forgot to tell us some crucial little factoid about the situation. Withholding information will not make your eviction more successful no matter how good your attorney is. In fact, it could cause you to not only lose a case, but cause you to become embroiled in a major contested eviction or worse. Never forget that when you file an eviction, the resident can counterclaim, and now you are getting sued.
The Intentional Failure to Disclose
Occasionally a property manager will know something that could be damaging to an eviction action and will choose not to disclose the information, fearing that the attorney will not take the case. This is very dishonest and unethical. You could end up putting your attorney into a position where he or she is forced to ask the court for permission to withdraw from the case. You would then be required to hire another attorney to continue the case for you, or maybe have to drop the case altogether. Dropping the eviction case, or “dismissing” the case (in legal terminology) is really no huge deal, unless the resident has retained an attorney. If the resident has an attorney, you could end up being liable for the resident’s attorney’s fees, which could be substantial. Can you imagine an eviction costing up to $20,000? We can show you cases in which property management companies and owners had judgments against them for an amount this high, simply because they lost the eviction action. Intentionally withholding information is dead wrong, and when we find out that a client does this, we usually will refuse to work for that client ever again. It is not fair to yourself, the property owner, your attorney or anyone else to be dishonest.
Just File the Eviction, I KNOW They Will Move!
We have heard this many times from clients, and often the client is 100% correct. Sometimes all it takes is having the eviction filed with the courts and served on a person for the resident to pack up and move. Let’s face it, most residents don’t put up a big fight. Usually they have nothing much to fight about, so they just buy a little time and move. Does this strategy always work? No, so you cannot depend upon the resident just moving. Sometimes, a mild-mannered resident can surprise you with a real bulldog attorney who wants to take the case to the proverbial Supreme Court.
The Unintentional Failure to Disclose
While no less dangerous, we understand that our clients sometimes do not intentionally withhold important information. It was either by accident or lack of knowledge. The main problem is that our client did not know the information was relevant or could have any impact on the case. You would hate to have to answer a 100-item questionnaire before each case, so you need to know what to look for, and what we look for. This article will discuss a number of issues that can cause a case to be seriously jeopardized and items and facts that need to be disclosed to the attorney BEFORE the case is filed. By disclosing, you are being honest and can give the attorney the ability to possibly help you get possession of a unit without even filing an eviction at all. There are all kinds of strategies that can be used in the resident removal process. Eviction is only one option. Sometimes, we are able to get a resident to leave without having to use the court system, and this is always preferable.
You Accepted Rent after the 3-Day Notice or 7-Day Notice Expired
If you accept rent after the expiration of the 3-day notice or 7-day notice, and we don’t know this, the allegations in the eviction complaint will be inaccurate. A defective 3-day notice is an excellent way to lose an eviction action, and similarly, accepting rent after a 7-day notice the basis of the eviction action will likely result in the eviction being denied.
You Served Another Notice after the 3-Day Notice
If you serve any payment demand notices after the 3-day notice, the last notice you serve can void out the prior 3-day notice. When we file the eviction, we need the most recent 3-day notice, not one from last month when you just served 20 more 3-day notices on the property yesterday. We receive a case to file on the resident, and the day before, the assistant manager served everyone, including the resident now under eviction, with the current month’s 3-day notice.
You Gave the Resident a Verbal Extension of Time
The 3-day notice has expired, and the resident is begging you for more time. You give him a few more days, but the few more days ends up being a week, and in the meantime, the resident has had conversations with other staff members in your office about more extensions. Your kindhearted extension of a few days becomes what the resident claims was a two-week extension, and the entire case becomes a, “he said, she said” mess.
The Resident has Made Habitability Complaints
Sometimes a resident does not pay rent because of habitability problems in the residence. The habitability issues will often come out in court; trust us on this. Will the judge have sympathy for the resident? Quite possibly. We don’t want to hear about the resident’s 3- month old mold issue in court. If the resident has had problems in the unit, we need to know.
You Received a Rent Withholding Letter
By law, if a resident serves you with a written notice of a serious habitability issue, and you do not rectify this within 7 days, the resident may be able to break the lease or withhold rent. In some cases, the rent withholding letter is a complete defense to the eviction. When requesting an eviction, it is imperative that your attorney be notified of any rent withholding notice.
You were Contacted by an Attorney
Attorneys usually write letter to owners or property managers, and sometimes they even will call you. You may even speak with the attorney, giving that attorney information that could be seriously damaging. It could be misconstrued by the attorney, or twisted and used against you later. Your attorney needs to know if you had any contact with an attorney, when, why, the nature of the communication, and your attorney will want to examine any written correspondence you may have received from the resident’s attorney. Don’t talk to the resident’s attorney, even if that attorney is very nice to you on the phone.
You or the Prior Company May Have Filed an Eviction on the Resident Previously
We have clients come to us sending over what looks like a basic eviction, only to find out that a prior attorney filed an eviction on the resident 3 months ago and possibly lost or dropped the case. Not only can we not work magic, but sometimes the older eviction is still open in the court system, and maybe there can even be money in the court registry in the old eviction case. It is possible that your owner owes attorney’s fees to the attorney who represented the resident in the last eviction. While we may be good at what we do, those problem are hard to overcome.
You Had a Drop Box Theft
In the past two years, many of our clients had thefts of checks and money orders from their drop box. Many now don’t even have a drop box, as it is so dangerous to use this system. We have clients send over cases for nonpayment of rent without telling us that the case involved a resident who had or claims to have had the rent stolen from the drop box. Judges are not too sympathetic to property managers who have drop box issues.
Resident is in Bankruptcy
Some property managers do not understand that if a resident is an active bankruptcy case, not only can you not file an eviction against that resident without bankruptcy court approval, you cannot even serve a 3-day notice on that resident. If we are not told this, we have no idea the resident is in bankruptcy; we file the eviction, and you could end up being sanctioned by the federal bankruptcy court for violating federal bankruptcy law. This will cost you money and is illegal.
Resident is in the Military
Just because a resident is in the military does not mean that the resident does not have to pay rent. BUT, the court must be advised by way of an affidavit if you know the resident is in the military. If you remotely think the resident is in the military, you must find out, or you can get into serious trouble. An eviction against a person in the military is not the same as the typical eviction; additional expenses will often be incurred, and the eviction can take much longer than normal. When seeking a default against the resident for not responding to the lawsuit, not disclosing to the court that the resident is active military is a federal crime.
You Signed a Rent Assistance/Social Services Form
There are many social services organizations, some public and some private, that provide rent assistance to people in need. In order to get that assistance, the owner or property manager often must sign a form provided by organization providing rent assistance. These forms will often have some fine print under which the owner or property manager is agreeing to hold off on an eviction for a period of time. If you agree to hold off and wait for the money that may or may not come, you are stuck with this. We have filed cases in which the resident defended on the basis that the landlord signed such a form, only to have the judge deny the eviction. You must be careful never to sign this type of document unless you know exactly what it is, understand the ramifications, and most importantly, keep a copy of it to show your attorney.
The Resident has Died
What? Is this possible? Yes. We have had property managers not tell us before and more often during an eviction that the last remaining resident in the unit has died. The manager is thinking that maybe by telling us, the eviction may have to stop, or things will get complicated. The manager is right. Evict a dead person, and see the trouble you will get in when the heirs find out you tossed all their dead relative’s belongings onto the street.
The Manager Who Prepared and Served the 3-Day Notice no Longer Works at the Property
If a resident tries to claim that the 3-day notice was not received according to the certificate of service section completed “Mary”, or the resident tries to claim the rent was paid to “Mary” in the office, and “Mary” no longer works for you and left on bad terms, the lack of “Mary” in court could be the end of the eviction case. If a staff member involved in any way with rent collection or notice serving on the account in question is no longer is working at the property, we need to know.
You are no longer Working for the Owner after the Eviction
You are either done working for an owner because of some problem that you have with that owner, or because of some problem the owner has with you. You have no intention of working for the owner after the eviction is over. Will we get paid for that eviction? Doubtful. Your owner won’t want to pay anyone you had any dealings with. Moreover, if your intent is to terminate management as soon as the eviction action is filed, or if the owner has terminated your services prior to (or during) the eviction action, we need to know.
Your Owner is Broke
Many property owners are completely broke. They could be in foreclosure, near foreclosure or on the verge of bankruptcy. You know your owner far better than we do. If we file the eviction for you, the chances of us getting paid are slim to none. It is not fair or right to do this to any vendor. On top of this, often the resident will refuse to pay rent when he or she knows the owner is not making the mortgage payments.
Failure to Register your Fictitious Name
You took over an apartment community a few months ago and no one in your company bothered to register the fictitious name with the state. Most of the time, no one in the company even knows what this means. If you look at www.sunbiz.org, not only are you under new ownership, but the new name you have for the apartment community is not even registered. An eviction defense? Absolutely. As soon as you take over a property or change the name, it is crucial to properly register your fictitious name, as it is actually a misdemeanor to file an eviction, and this can result in your case being delayed or dismissed.
You have been Negotiating with the Resident
Your resident had flood damage that was not the resident’s fault. You received authorization from the owner to reduce the rent by $200 for one month, but what did the resident want? MORE. So now you are going back and forth, and the resident then decides to take it upon himself to deduct the $350 from the rent money and you accept the partial payment with the deduction. Does this mean you have a deal? Are you stuck with this? Some judges feel this way. We need to know this before we file an eviction, not after. Any deals on rent reductions or reimbursements are extremely important, and they become promises and contract modifications in some cases.
The Resident is on Section 8
We can evict Section 8 residents, but there are some special procedures that must be followed, and in addition, many Section 8 evictions get contested. If a resident loses Section 8 eligibility due to an eviction, it is quite a big deal to that resident, as Section 8 assistance is worth a lot of money over time. Section 8 residents under eviction routinely go to their local legal aid office, and often the Section 8 employees do not properly follow the rules when they cut off Section 8 residents. Often we cannot tell by looking at the lease that you are accepting Section 8 on a resident, and this needs to be disclosed.
Your Resident Subleased
Many residents will sublease or get a permanent “roommate” and not tell you. As long as you are receiving the rent, you sometimes will know and just ignore this. When the rent stops flowing in, we have to file against the resident who is long gone. This can cause an extremely complicated and failed eviction, especially if it turns out that you have accepted rent from that roommate or sublessee. Let us know if there are any unauthorized people living in the unit before we file, and most importantly, let us know if you ever accepted rent from anyone other than the named residents.
The Resident was or is Receiving Rent Credits for Work or Repairs
Occasionally, you allow the resident to receive rent credits for work done on the side, or repairs or work done in the residence, despite our strong recommendation against any such exchange. Perhaps the resident is a former courtesy officer who was receiving reduced or free rent, and you have decided to terminate that arrangement. Disagreements about the level of compensation or current rent amount often arise, and this is a great way to lose an eviction; we need to know about any such arrangement.
Some Final Words
As you can see, a lot of “stuff” happens behind the scenes. We need to know about this “stuff”. Just as it is dangerous to withhold information from your doctor, you can see how withholding information from your attorney can cause you problems. An excellent property manager is honest and engages in full disclosure, but that manager also needs to know what to disclose. Come back to this article on occasion, as we are going to add more information to it. You have an idea of something that we missed? Shoot us an email at email@example.com
SINGLE FAMILY QUICK LEGAL Q & A #4
by The Law Offices of Heist, Weisse & Wolk, P.A
Q. One of our owners is insisting on holding the security deposit if we manage his property. I am somewhat nervous about this as this owner is not in the best financial shape and may spend the money. Could we have any liability for allowing the owner to hold the deposit?
A. Unless it is a finder’s fee only type situation, it is never a good idea to allow the owner to hold any deposits. If the owner fails to return the deposit, spends it or otherwise there is a dispute over the deposit when the tenant vacates, rest assured that the tenant will come after you as well as they most likely paid the deposit to you. If the owner insists and you are willing to take the risk, there are a few things you can do to protect yourself. I would definitely provide the tenant with a Security Deposit Disclosure that clearly states that the owner is holding the deposit and that you as the manager have no control over it whatsoever. When you send the money to the owner, make sure it is to the owner’s Florida escrow account. I would deposit the money into the account myself if a branch of the bank is nearby. Finally, provide the owner with a copy of Florida Statutes 83.49 and also a copy of a Notice of Intention to Impose a Claim on the Security Deposit and have the owner sign an acknowledgement that they received this from you. Many property owners fail to properly handle the deposit and in the event a problem occurs, you do not want to be involved.
Q. I have an owner who wants to allow the tenant to make some repairs on the house in exchange for a lower rent. The tenant is a painter and has offered to paint the entire house for a reduction in rent with the owner paying for the cost of the paint. It sounds OK to me as the house needs to be painted and this could save the owner a lot of money. Are there any risks?
A. We deal with this all the time. Allowing a tenant to do any work on the premises is one of the worst things an owner can do. The tenant will do no work at all, do shoddy work or will start working and not stop working on the property. When the tenant works on the property, it begins to give them a sense of ownership in the property that ends up causing problems later. On top of this, there is liability if the tenant were to get injured doing any of the work on the property. Often the tenant begins to do some work and then fails to pay the rent. When the manager prepares the Three Day Notice, the tenant then attacks the Three Day Notice amount by saying that the owner “owes” the tenant for something be it for the labor or the materials. This causes a convoluted eviction action that the tenant can end up winning. Finally, we have seen cases where a tenant doing work has actually been able to place a lien on the property. Whether a lien is legitimate or not, it causes a lot of grief for the owner.
Q. We are managing some condominium units and recently were dealing with an applicant who has a service animal. This applicant is clearly disabled and she has a Seeing Eye dog. The dog is a large German Shepherd. This particular condominium prohibits pets for owners and for tenants alike. We followed all the rules and sent the application to the condominium management company for approval as we always do and they denied the application based on the dog. Is this legal?
A. If the denial of the application by the association was due to the service animal, then the association has committed a serious fair housing violation. I would confirm why the application was denied and get this in writing. Once this is done, if the denial was truly because of the applicant’s service animal, have your attorney immediately contact the attorney for the association so he or she can set them straight. While this is all happening, make sure the applicant knows that you are doing whatever you can to rectify the situation and that this denial is not being caused by you but by the association that you and the owner have no control over. In the event the applicant files any type of discrimination complaint, you want them to only file against the association.
Q. I was showing a property the other day and the prospect commented to me on how quiet the neighborhood seemed to be. It was pretty obvious that the prospect was not aware that the Amtrak tracks were one block away and the trains blow their horns at the nearby crossing a number of times each day and night. Do I have a duty to disclose?
A. There is no legal duty to disclose but since the prospect commented to you, not disclosing could border on misrepresentation. There is no need to intentionally get yourself involved with a headache so I would definitely disclose this to any prospect who you feel is not aware of the train tracks. While most people can get accustomed to the noise, there are others who will want to break their lease and this will place you into potential litigation.