(Sorry, you cannot perform administrative tasks without being logged on.
Please click here to logon to website administration.)
VOLUME 10 - ISSUE 5 LEGAL UPDATE
- Noncompliances And The New Law
by Harry Heist, Attorney at Law
Under the law prior to July of 2013, in the event of a curable noncompliance, the property manager would serve a Seven-Day Notice of Noncompliance with Opportunity to Cure detailing the curable lease or law violation, and if the noncompliance was not cured in seven calendar days, the manager would then be able to serve a Seven-Day Termination Notice. Seven more days would then have to elapse before an eviction could be filed. The new law makes clear that a subsequent Seven-Day Termination Notice is not necessary after the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired. Is NOT using a Seven-Day Termination Notice a good idea though?
The Curable Noncompliance
When a resident is in noncompliance, a Seven-Day Notice of Noncompliance with Opportunity to Cure must be served. The potential noncompliances are many and have been discussed in numerous articles we have written. Unauthorized pets, unauthorized occupants, the gas grill on the balcony, the garbage outside the door, noise, poor housekeeping, and excessive traffic are just a few of the many a property manager will encounter. When there is a noncompliance, the resident needs to be sent a NOTICE, not a letter. The Seven-Day Notice of Noncompliance with Opportunity to Cure is a WARNING NOTICE, plain and simple. It informs the resident what the resident needs to start doing or stop doing; the notice is an attempt to get compliance. Letter writing, violation notices, and infraction notices are all legally useless. While that form of communication may get compliance, if it is not successful, you must serve the proper notice, and that is the Seven-Day Notice of Noncompliance with Opportunity to Cure. Serving any other type of notice is a waste of time, and the delays caused by improper notices could result in you losing good residents who may be neighbors of the resident in noncompliance.
The Old Law
Under the law prior to July 1, 2013, the resident was served a Seven-Day Notice of Noncompliance with Opportunity to Cure, and if you did not receive compliance, after confirming this and contacting your attorney to make sure you had a rock solid case, the resident was served a Seven-Day Termination Notice. As you can see, this created a minimum of 16 days from the date of serving the initial notice to being able to take the next step of filing an eviction action (because you do not count the day of service of a notice when calculating the expiration date of that notice). Under the old law, the landlord arguably could file an eviction action based solely on the Seven-Day Notice of Noncompliance with Opportunity to Cure, but many judges expected a follow-up Seven-Day Termination Notice.
If you received compliance, no further action needed to be taken. The Seven-Day Notice of Noncompliance with Opportunity to Cure lasted a full year, and if the resident engaged in the noncompliance again within a one year period, you could serve a Seven-Day Termination Notice, without having to give another Seven- Day Notice of Noncompliance with Opportunity to Cure. However, in some instances we recommended that you serve a new Seven-Day Notice of Noncompliance with Opportunity to Cure, although not legally necessary, so as to put the resident on notice and give that resident one more chance, particularly for situations when the noncompliance was more of a technical nature, or perhaps when a new lease was executed after the first cure notice was delivered. Some noncompliances are of a nature that time is not completely of the essence, so having to serve another Seven-Day Notice of Noncompliance with Opportunity to Cure is not that burdensome. If the resident had already paid the rent that month, the delay would not have resulted in lost rent.
The New Law
The new law in effect as of July 1, 2013 clarifies beyond any doubt that the landlord is not required to follow up with a Seven-Day Termination Notice after the expiration of the Seven-Day Notice of Noncompliance with Opportunity to Cure. This means that if the resident does not cure the noncompliance, you can immediately file an eviction after the first seven days have elapsed with no more notice necessary. This might be considered pretty radical and heavy handed, but is now clear in the law. For example: your resident has an unauthorized occupant, and you serve him with a Seven-Day Notice of Noncompliance with Opportunity to Cure on June 16; he fails to remove the occupant, and if you can prove the unauthorized occupant is still present on June 24 (as the curable period expired June 23), you can file an eviction. It certainly is faster than what was normally done under prior law.
Now let’s examine a different scenario: the resident has an unauthorized pet, you serve him with a Seven-Day Notice of Noncompliance with Opportunity to Cure, and he gets rid of the pet. Great: mission accomplished. Now 4 months later, the pet reappears. Since the Seven-Day Notice of Noncompliance with Opportunity to Cure lasts a year, under the new law, the minute you see the pet, you can immediately file an eviction. The resident will receive no more notice prior to receiving an eviction summons. While this is the law, it presents a problem in our opinion, and that is simply “notice”. The courts and the law always want to encourage “notice” before a legal action is commenced. Here, there really is no notice other than the one you served 4 months prior. There is a distinct element of surprise. Additionally, you have accepted rent each month for the past 4 months. Can there be a waiver argument? Can the resident say you may have known of the pet or any other noncompliance, but you took rent anyway? Are you deciding to file an eviction out of anger?
We recommend that in some cases, you serve a Seven-Day Termination Notice after the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired, and we also recommend that in the event that a noncompliance is cured and significant time passes, that you strongly consider serving a NEW Seven- Day Notice of Noncompliance with Opportunity to Cure rather than relying upon the old one that you had delivered months before. Think about this. You served a Seven-Day Notice of Noncompliance with Opportunity to Cure because the resident left garbage outside their door. They cure. Four months later they do it again. You go straight to eviction. Does this sit well with you? It may not sit well with many judges, despite the law.
a. In the event the resident has an unauthorized pet, you will serve the Seven-Day Notice of Noncompliance with Opportunity to Cure. After the seven days are up, serving a Seven-Day Termination Notice is now optional. If it is simply a standard unauthorized pet, and you received rent that month, you may want to serve a Seven-Day Termination Notice just to see if this shakes up the resident into getting rid of the pet. If the pet is vicious or does not meet your pet policy, you can opt to go straight to eviction, and the new law has saved you time.
b. If the resident cures and gets rid of the pet and you then accept rent or time otherwise passes, we recommend that you serve a Seven-Day Notice of Noncompliance with Opportunity to Cure again. After this, you can go straight to eviction or serve a Seven-Day Termination Notice. Now you have a choice.
As in the above examples, the same can be applied to unauthorized occupants and most other standard curable noncompliances.
If you feel there is any element of surprise, if a period of time has elapsed and if you have accepted rent after a noncompliance has been cured or accepted rent during the seven day curative period, you can have a real problem going straight to eviction. Most judges will hold that if you accept rent, you have “forgiven the resident’s sins”. For you to decide to file an eviction immediately would most likely be unsuccessful. We recommend that if the offense is not extremely serious, AND you want compliance, you serve a Seven-Day Termination Notice. You always can change your mind and retract the notice, and this will also give you more time to possibly reach an agreement to vacate with the resident, which will usually end up saving you time and money. Once you file an eviction, while you can always stipulate or dismiss the case, you are diving into litigation. Litigation can result in the resident getting an attorney, and if the attorney prevails, you will be faced with significant attorney’s fees.
Prudent attorneys will carefully examine all the facts and evidence of a noncompliance case before filing the eviction. Always speak with your attorney regarding the wording of ALL Seven-Day Notices, and ask whether he or she recommends that you serve a new Seven-Day Notice of Noncompliance with Opportunity to Cure or a Seven-Day Termination Notice. Remember that a lot of judges have been following the old law regarding this type of case for many years. Changes to the law sometimes do not sit well with judges, and the judge in a given case may not follow the law, or may hold you to a very difficult proof standard. While you can appeal a case to a higher court if the judge does not follow the law, this could cost many thousands of dollars and take a significant amount of time.
Our Final Word
Before filing an eviction, ask yourself this question. “Did we put the resident on sufficient notice that this noncompliance could result in an eviction, or could the resident say in court that the eviction was a total surprise, essentially a bolt from the blue?” Don’t risk losing an eviction by holding firm to the new law or blindly relying upon it. Look at the new law as giving you more options or choices in case-specific situations.
by Harry Heist, Attorney at Law
Your maintenance tech charged the a/c compressor for the third time and said to the resident, “I am doing my best, but the compressor really needs replacement”. Your tree trimmer points out another dead or diseased tree to the resident that was not on the work order. Your plumber tells the resident that, ”The sewer line has sand in it and must be broken somewhere.” These statements, while most likely true, cause residents to not want to pay rent, withhold rent and create legal problems, including an eviction defense.
Vendor conversations with residents before, during or after a repair can create complex legal problems. The most innocent and often true statement made by the vendor to the inquisitive resident can result in later problems or expectations. Many maintenance or repair issues with homes are not completely fixed, but repaired in such a way that the resident can properly reside on the premises and get what was paid for. In other words, some repairs are indeed a “Band-Aid”, but that is really not a large problem if it at least temporarily solves the situation. Pumping out an old septic tank may only be a temporarily fix that could last months. Recharging the a/c compressor may last until the lease ends, and snaking a drain that is penetrated by roots may solve the problem for months or even years. Are any of these permanent fixes? Probably not, but often owners do not wish to spend significant money at the present time to make a replacement or repair a particular deficiency, so they do the best they can to keep the resident happy. It is the phrase, “Best we can do” that is a big problem!
In a perfect world, the vendor would not have any contact whatsoever with the resident. Often though, the resident is present during the repair, and some indeed take an interest into what is happening, asking the repair person all kinds of questions about the problem, the repair and how long it will last. The resident who reported a maintenance issue may need to be spoken to by the vendor/maintenance tech regarding the particular repair need, so it may be impossible to prevent a conversation from occurring. The vendor/maintenance tech often has to ask the resident questions about the problem in order to make a proper diagnosis. The bottom line is that contact between the resident and the vendor or maintenance tech will occur.
If at all possible, scheduling service calls when the resident is not present is preferable. While the absent resident always can create a risk of accusations of theft or damage, try to schedule certain repairs when the resident is absent. If the resident demands to be present, and it does not cause the service call to increase in price, it does not cause great inconvenience to the vendor/maintenance tech, AND it does not pose a safety or health issue, trying to accommodate the resident is prudent. Some repairs necessitate certain safety precautions or equipment, so communication with your vendor/maintenance tech is important ahead of time to determine if it is necessary for the resident to be absent. If the resident refuses to vacate the unit during the repair or maintenance, or refuses to allow access, this may constitute a lease violation. We recommend you read our articles pertaining to resident access denials so as to properly address the noncompliance if it occurs.
Training the Vendor/Maintenance Tech
If you are using outside vendors, make sure that you give clear written instructions to those vendors that they or their employees are not to discuss any details of the repair whatsoever, if it involves making any remarks about any other or further needed repairs or replacements, etc. No disparaging remarks should be made about any of the appliances, equipment, plumbing, HVAC or anything else. No other repairs or needed maintenance should be pointed out to the resident, and all communication is to be with you only. The repair is to be made, and the vendor or the employees of the vendor are to make a report that will be given to you. If further work is needed, or if there is an opinion that an item needs to be replaced or something is deficient, this is not to be discussed at all with the resident. Often, the resident is asked by the vendor to sign a document showing that the work has been completed. This document often has statements on it that go further than just showing the job completion and states that certain items are recommend to be repaired or replaced. You must clearly explain to the vendor that this is NOT to be done with any of your residents, no matter what the policy is of the vendor. Many of us have experienced the simple oil change for our vehicle. When this occurs, you are given a receipt for the job, and inevitably, the receipt states further recommendations or observations made by the oil change tech. THIS type of form or receipt is never to be given to a resident.
Your Maintenance Tech
Presumably you will have more control over your maintenance tech, but mistakes happen. It is crucial to properly train your maintenance tech to avoid the same errors often made by outside vendors. It is quite simple. The maintenance tech needs to be instructed to make no remarks about the condition of items that he or she is repairing or replacing. No other items in need of repair or replacement are to be pointed out to the resident. No disparaging remarks are to be made about the property, equipment or the property owner. It is possible the owner is in financial distress and that your maintenance tech is aware of this. Such information is never to be disclosed to or discussed with the resident. If the repair is caused due to damage or neglect by the resident, you are to be told of this, and you are to deal with it either separately or with your maintenance tech present with you.
Not all rental properties are perfect. Old appliances, septic, electrical systems, plumbing, HVAC and drainage will exist on some properties. The owner is under a duty to maintain most of these items under the law and the lease agreement. However, the owner is neither under a duty to replace all these items in most cases, nor is the owner under a duty to upgrade a property to a new condition. The words spoken by the vendor/maintenance tech will often come back to both haunt and hurt you and the owner. If a property is so bad that it ends up resulting in a potential serious safety hazards, you may decide to no longer manage that property and terminate your relationship with the owner, possibly after consulting with an attorney. If you fail to train your vendors/maintenance tech, rest assured they will say things that end up creating unpleasant legal issues, and at a bare minimum, headaches.
by Harry Heist, Attorney at Law
One of the easiest things to forget when adding or subtracting a resident from the lease is the security deposit. Who paid it and who gets it when the lease is up and the residents vacate? If this is not dealt with in writing, you could end up having conflicting demands on a full or partially returned deposit. Never assume anything or be ambiguous at this juncture, or serious legal problems can and do arise.
Subtracting a Resident: Just because a resident wants to be taken off of a lease, this does not mean you must oblige. Often residents no longer are getting along with each other, there may be a divorce, one is moving, one is in jail, or maybe one has an injunction against the other, and that person is not even allowed by court order to live in the home anymore. Does this mean that the resident must be let out of the lease? Absolutely not. It is completely up to your company, or if you are managing a home for another, the property owner, whether someone can be let out of a lease.
Adding a Resident: Do you have to add someone to a lease? Of course not. The resident gets a “roommate” and wants that person added to the lease. Step back a second. This resident is in serious violation of the lease; there is an unauthorized occupant residing on the premises. You attitude should be very strict with the resident; either the unauthorized person applies like anyone else and gets approved, the resident has the unauthorized occupant removed, OR the resident who has the unauthorized occupant is evicted.
When the original residents on the lease moved in, they presumably paid you deposit money. Typically, they paid a security deposit and possibly a pet deposit. Those deposits are held by you or the property owner in the escrow account, and when the residents vacate, if the deposits are returned, the deposit check is written out in all the residents’ names, for example, “John Smith and Mary Jones”. A problem arises as to whom the deposit refund check will be written when the residents on a revised agreement or lease are not the same as the original residents under the initial lease, when the deposit money was actually paid.
The Added Resident and the Deposit
If a resident is added to the lease, it should be decided at that time if the added resident will also be entitled to a return of any of the deposit moneys. The residents may have a deal amongst themselves when the added resident has given the current resident some deposit money, and the added resident now assumes that he or she has “bought into” the lease agreement and thus would be entitled to a return of the deposit. If it is not made clear, and you add a resident to a lease, the ambiguity created is enough to require that the deposit must be returned to the added resident and the existing resident if a deposit return occurs. Often, the existing resident has no intention or expectation that the added resident receives a dime of the deposit, and instead expects to receive the deposit in full. As is readily apparent, you can see that if this is not dealt with in writing at the time of the resident addition, conflicting expectations can result. The solution is simple. The property manager should use a Resident Addition Addendum which clearly states to whom the deposit refund, if any, will be disbursed. If an additional deposit is required, this would be dealt with in writing as well.
The Subtracted Resident and the Deposit
If all the parties agree to allowing someone to be removed from the lease agreement, the proper form must be used. This form, signed by all parties, acknowledges that one resident will vacate the unit, and one or more residents will remain behind, being fully liable now under the terms of the lease agreement. While in most cases the resident who is leaving will not ever ask for the deposit back, you never can be sure. The remaining resident and the departing resident may have discussed amongst each other that some time in the future, when the remaining resident vacates, that the departing resident will get his “share” of the deposit. It is possible that the departing resident assumes that at lease end, he or she will get the refund check from you, if any, and it will be made out in everyone’s names. None of the above may occur, so you can see the expectation of the parties are not in sync. The solution again is simple. All parties will sign a Resident Vacating Addendum. The Resident Vacating Addendum makes it clear that the resident who is vacating has no interest or claim whatsoever to the deposit and will not receive any notice imposing a claim on the deposit. The departure is clear, and everyone is now in agreement. Additionally, the Resident Vacating Agreement makes it clear that the remaining resident is fully liable for all the terms, liabilities and conditions of the lease agreement.
In review, you can see that the process of adding or removing a resident or residents is quite easy if the proper forms are used. Two main things to remember: (1) You are under no legal obligation to allow a resident to be added or subtracted from a lease, and (2) If you do add or subtract, the proper form must be used. Finally, if managing a home for another, you ALWAYS will get the permission from the owner of the property in writing, to add or subtract a person from the lease.
by Brian Wolk, Attorney at Law
Liability for the property manager who mishandles a bedbug pest infestation can be massive. Just ask the Maryland property manager who lost his court case in May of 2013. The resident was awarded $800,000.00; that’s right, eight hundred thousand dollars! While shocking, this horrible result could have been avoided if proper procedures were followed. Over the past few years, there has been a seven hundred percent increase in reported bedbug infestations. Therefore, it does not appear that this problem is going away anytime soon. Thus, the property manager needs to effectively deal with bedbug infestations, whether actual or merely alleged by the resident. Either way, the competent property manager needs to swing into action and have a plan. This is definitely one situation when a property manager should not shoot from the hip. Property managers often are reactive instead of proactive. In other words, they wait for a problem to happen instead of taking time to prevent problems. With regard to bedbugs, the property manager must make sure that the unit is properly certified as “bedbug free” prior to the resident taking possession. A proper lease and bedbug addendum should also be used, which among other features gives the property manger the power to terminate the lease if there is a bedbug problem, and also forces the resident to comply with bedbug treatment protocols. In addition, the property manager must obtain sufficient proof to counter any resident’s assertion that there is a bedbug problem when there really is not a problem. Judges will want to hear from licensed pest control professionals, not from your maintenance staff. Most court cases are about which side can prove its case. Therefore, managers must immediately instruct a licensed pest professional to investigate any and all bedbug claims by a resident.
What are Bedbugs?
Bedbugs are reddish-brown in color with oval shaped, flattened bodies. After feeding, their bodies become swollen. They hatch about the size of a pinhead and look like walking poppy seeds. They grow to about a quarter of an inch in length. Bedbugs are found anywhere people are. They are more likely found in locations with a high rate of occupant turnover, including apartment communities. Bedbugs reside in mattresses, box springs, bed frames, night stands, dressers, upholstered furniture, cracks, crevices, electrical outlets, window and door casings, seams in wallpaper, behind baseboards, behind switch plates, under carpeting, behind pictures, and in draperies and blinds. They prefer a semi-dark environment and rougher surfaces, such as wood, paper, or fabric. Even worse for the property manager, bedbugs are easily spread, and often one unit will cause an infestation for another adjacent unit. Bedbugs easily climb up any fabric, wood, or paper surfaces. They spread by attaching themselves to household items, such as bedding, furniture, luggage, clothing, backpacks, purses, briefcases, animal cages, picture frames and electronic devices. They hide in very thin crevices.
Bedbug Free Certification
Property managers often fail to realize that at all times during the tenancy, the property manager as required by statute must take reasonable action to exterminate. The statute specifically requires the property manager of an apartment community to implement reasonable steps to handle the extermination of bedbugs. Even seasoned property managers fail to realize that the statute specifically lists bedbug extermination as the property manager's responsibility. With that said, if the apartment manager can prove that the resident caused the infestation, then the property manager may shift that extermination obligation to the tenant. The first step in proving that the resident is the cause of the bedbug infestation is obtaining a bedbug free certification. The certification could also further insulate the property manager from any punitive damage claims, such as allegations that the manager knowingly placed the resident into a unit already known to have a bedbug problem. Attorney Harry Heist pioneered this concept, and it is crucial that all apartment community managers obtain these certifications. The bedbug free certification will be absolutely worthless if your maintenance staff gives you such an assessment, and would also be illegal. Florida Statutes impose harsh civil penalties for the unlicensed practice of pest control. Only a certified, licensed pest control professional may provide the bedbug free certification.
Gathering Adequate Proof
On a daily basis throughout Florida, residents make allegations that bedbugs are inside their apartment home. The property management staff inspects the unit and determines that based upon their visual inspection there is no bedbug infestation. The resident continues to complain, and the property manager continues to inspect. Unwittingly, the property manager is playing right into the hands of a resident with less than honorable intentions. If the resident withholds rent and fights a subsequent eviction case, or if the resident sues the apartment community over the alleged bedbug problem, the judge will not want to hear from your maintenance staff member. The main person that can help prove your case in court will be a licensed, certified pest control inspector. Therefore, the moment that the property manage receives a bedbug complaint from a resident, the manager should immediately contact a licensed pest control inspector to investigate. It is vital that the property manager be able to adequately prove the case in court. If not, then any eviction action would be jeopardized, and the apartment community could be held liable for negligence or even gross negligence.
Immediate Need for Pest Control
Most property managers are aware that the Florida Statutes allow the managers to require a resident to temporarily relocate for certain pest control measures, including treatments of the apartment home for termites. However, many apartment community managers are surprised when they learn that the statute authorizes the property to require the resident to vacate the apartment home for a period not to exceed four days upon seven days’ advance written notice, if bedbug pest control measures will require that the resident be absent. In that case, the property manager must abate the rent for the period the resident is required to vacate, but the resident will not be entitled to additional damages, such as relocation expenses.
Bedbug Addendum is Crucial
A properly crafted bedbug addendum can be a powerful tool for a property manager. Without such an addendum, there are many instances when the property manager will not have the ability to terminate the lease if there is a serious bedbug related problem. The provision should grant the ability to terminate the lease, even if the resident is not the cause of the bedbug infestation. Beyond lease termination rights, a proper bedbug addendum will also assist the property manager perform pest control, as it should specify guidelines for the resident to follow in preparation for bedbug pest control. These required preparations should be laid out clearly and specifically on the addendum. The bedbug addendum should also require the resident to immediately report to management any bedbug activity inside the apartment home, so that proper steps by management can be taken to limit the risk of the bedbugs spreading to adjacent units. Finally, the bedbug addendum serves a very basic purpose. The resident is being told at the outset of the lease what to do and expect if a bedbug problem develops, and it is easier to convince a resident to honor terms previously agreed to in writing.
by Harry Heist, Attorney at Law
Stopping the writ of possession because you think the resident has vacated is usually a bad idea and a complete waste of the money you spent with the sheriff’s department for getting the job done. As soon as you authorize your attorney to have the writ of possession sent to the sheriff, your attorney writes a check out for a minimum of $90, and this is deposited by the sheriff’s department immediately. Always execute the writ of possession completely once it has been issued. You paid for it, so now get your money’s worth. Most importantly is to have the sheriff’s deputy completely walk the unit by himself or herself prior to you taking possession. Often the property manager will receive a phone call from the sheriff’s deputy asking the manager whether the resident is still in the unit. The answer should always be, “I really do not know, but we need you to meet us at the property and fully execute the writ of possession, as this is our company policy.” DO NOT allow the sheriff to get out of doing the job you paid for.
Do not Cancel the Writ of Possession
The sheriff’s deputy will call you once the writ of possession is served. The purpose of this call is to set up the date and time for you to meet with the sheriff’s deputy to “execute” the writ of possession. This call has been discussed in prior articles. DO NOT let the sheriff’s deputy convince you that if the resident has vacated, somehow you do not have to meet the sheriff’s deputy at the property. If you tell the sheriff’s deputy the resident has vacated, the sheriff’s deputy will ask you if you then want him or her to come out to execute the writ of possession, implying that it is not necessary. IF YOU SAY NO, the sheriff’s deputy will “NON- SERVE” the writ of possession, canceling the writ of possession execution, and you will NOT have completely evicted the resident. The sheriff’s deputies do this all over Florida every single day, so they will not have to come out and finish what they have been paid to do.
Meeting The Sheriff’s Deputy
It is imperative that when you meet the sheriff’s deputy, you have your locksmith present, or at least the ability to change the locks and secure the unit if you do this on your own. Some sheriff’s deputies have been known to “non-serve” the writ of possession if you do not change the locks. Be ready to secure the unit.
Walking the Unit
The execution of the writ of possession can be a dangerous activity. While most “normal” residents have vacated the premises by the time of the writ of possession execution, some will stay behind and wait for the sheriff’s deputy to physically remove them. In the worst cases, residents have committed suicide or attempted suicide at the very time the writ of possession was being executed. In some cases, the resident hides in the unit. It is crucial that the sheriff’s deputy completely walk the rental unit while you and your maintenance tech wait safely outside of the unit. This is a very dangerous time that can be full of surprises. Many sheriff’s deputies will go into the unit with their guns drawn. You want to demand that the sheriff’s deputy check each and every room, closet, under any beds, behind furniture, behind blinds, behind shower curtains, the garage, attic, crawl spaces, every room and ANYWHERE a person can hide. We have seen extremely dangerous encounters in which the property manager or maintenance techs have gone into the unit after the sheriff’s deputy has departed, only to be confronted and attacked by the resident who hid in the unit and was there the whole time.
We Cannot Stress this More
Probably the most frustrating part of our job as attorneys handling evictions is to see a property manager improperly deal with the writ of possession. No matter how many times we advise them to execute the writ of possession and meet the sheriff’s deputy, so many of our clients will allow the sheriff’s deputy to convince them that this is not necessary. This is a huge mistake. Finally, when meeting the sheriff’s deputy, PLEASE make certain the sheriff’s deputy fully does his or her job and walks the unit slowly and carefully. You paid for service, now make sure you get service. Your life could depend on it.
by Fair Housing experts, attorneys Robert (“Robin”) Hein, Esq. and J. “Mike” Williams, Esq
Under the Fair Housing Act, residents with disabilities may ask owners and managers of rental housing and apartments to allow the resident to have an assistance animal. The U.S. Department of Housing and Urban Development (HUD) has clarified the rules, and in most instances the rental owner must grant the accommodation request. According to HUD, “Persons with disabilities may request a reasonable accommodation for any assistance animal, including an emotional support animal under both the Fair Housing Act and Section 504.” U.S. Dept. of Housing and Urban Development, Washington, DC. Fair Housing Enforcement Office Notice: FHEO-2013-01, Issued April 25, 2013.
The Fair Housing Act. In 1988 Congress added protections to the Fair Housing Act (FHA) to prevent housing discrimination against persons with disabilities. Fair housing complaints alleging housing discrimination because of a disability account for the largest number of FHA claims filed (40%). Disability discrimination claims likely will continue to rise over the next decade due to increased life expectancies of an aging senior population and other factors.
The FHA prohibits discrimination in providing housing and home financing based on race, color, religion, sex, national origin, familial status, and disability. The FHA applies to both rental housing and sales of single family homes. Florida’s state fair housing law is based on and substantially similar to the federal FHA. Some Florida counties and cities have local ordinances that add other protected categories, such as age, marital status, and sexual preference.
Apartment owners and managers and persons in the business of buying, selling, and renting single family homes are prohibited from discriminatory rental policies, practices, or actions based on one of the prohibited factors. For example, an apartment manager cannot deny housing to a disabled person under federal or the Florida FHA, simply because the applicant is wheel chair bound and may have trouble accessing the apartment. If that were the only criteria for refusing to approve a rental application, it would be discriminatory.
Increasingly, rental owners of single family homes, condos, and apartment communities are dealing with requests from an applicant or resident who is disabled. Often these requests involve accommodations under the Fair Housing Act because a doctor or psychologist recommends having an “assistance animal.” There is no particular form or manner which the applicant or resident must use to make an accommodation request. It is important that the rental owner and management respond and engage the resident in a dialogue about the resident’s needs and consider all requests that are reasonable and necessary to afford the disabled resident full use and enjoyment of the premises.
The Fair Housing Act applies to rental homes in apartment communities, condominiums, and many single family detached homes. It applies to an individual family rental owner who uses the services of a real estate broker or who owns, sells, and leases more than three houses, or to corporations that own, rent, and sell single family homes.
How Many Persons in the U.S. Have Disabilities? In 2010 the total U.S. population was approximately 304 million. Nearly 56 million, or 18.6 percent, of the total population have some form of disability. The 2010 U.S. Census estimates that of the 241.7 million adults aged 15 and older, about 14.9 million or 6.2 percent experienced some level of difficulty with seeing, hearing, or speaking. Of those 15 million disabled adults, approximately 3.3 million had a severe seeing, hearing, or speaking disability.
Approximately 30.6 million people over age 15 had limited use of the lower body and difficulty walking, climbing stairs, or using a wheelchair, cane, crutches, or walker. [Source: U.S. Department of Commerce, Economics and Statistics Administration, U.S. Census Bureau, Americans with Disabilities: 2010, Household Economic Studies, Matthew W. Brault, July 2012]
What Is a Reasonable Accommodation? The FHA requires apartments and single family rental homes to provide “reasonable accommodations” to persons with disabilities in order to allow the same rights and privileges as persons who are not disabled. A disability accommodation is a change made to the rental property owner’s or management’s rental policies and procedures in order to assist someone who is disabled. The FHA also requires a rental owner and management to allow the resident to make “reasonable modifications,” at the resident’s expense, to the common areas and interior of the apartment.
Service, Comfort, Therapy, or Emotional Support Animals. Under the reasonable accommodation provisions of the FHA, rental applicants and residents may request that a rental owner or manager waive leasing policies prohibiting pets or service animals. Traditionally, “service animals” meant those trained to provide a specific kind of assistance to the disabled person, such as a guide dog for a blind person. However, a recent guidance issued by the U.S. Department of Housing and Urban Development (HUD) on April 25, 2013 has greatly expanded the kinds of animals which the rental applicant, tenant, or resident may request be allowed to live on the property in order to assist with a disability.
A number of accommodation requests now involve animals which have no specific training to assist with a disability. Usually these animals are called “comfort,” “therapy,” or “emotional support” animals. These, along with trained service animals, are now collectively called “assistance” animals. The disabled applicant or resident may ask a physician or mental health professional to prescribe or recommend having the animal, even though it is not trained or certified to provide a specific assistive service. The rental owner or manager cannot require the assistance animal to have any type of training or certification as a condition to allowing the accommodation. Although many apartments allow animals as “pets,” often management’s policies impose weight limits or restrictions on breeds that are considered to be “dangerous” or “vicious.” Management’s initial reaction may be to deny the accommodation request for a pit bull based upon public attitudes, bias, or misunderstanding that such animals are dangerous or because they are not trained to provide a specific assistive service. That is no longer possible under HUD’s 2013 guidance memo.
If a disabled applicant, tenant, or resident requests an accommodation to the apartment community’s or rental owner’s pet or animal policy prohibiting dangerous breeds or imposing weight restrictions, management must evaluate whether such animal can or should be allowed conditioned on adequate assurances by the owner that the animal will not hurt someone or damage property. [Source: Fair Housing Coach, “How to Handle Requests for Assistance Animals,” Carol Johnson Perkins, Esq., Vol. 15, Issue 9, Vendome Group, LLC, March 2013]
It is increasingly common for management to receive requests to keep a pit bull as a comfort, therapy, or emotional support animal. The FHA allows management to deny applicants whose occupancy would constitute a threat or danger to other residents; however, under HUD’s guidance absolute prohibition of certain breeds is no longer permitted, and the rental owner or manager must have credible evidence of dangerous behavior of the specific assistance animal in order to preclude it from occupying the house. While the apartment community or rental owner may be inclined to deny such accommodations, the better practice is to discuss the request with the applicant or resident to determine whether the pit bull poses a realistic danger and whether the request is reasonable and necessary. The owner or manager may contact the apartment community’s liability insurance carrier to determine if restricted breeds, such as pit bulls, are excluded from insurance coverage under the policy.
Management should research whether there are any city or county ordinances which prohibit or restrict certain dog breeds. Restrictive local laws or lack of insurance coverage can be used to support denial of the rental application or termination of the lease as a legitimate and non-discriminatory business decision. If there is no exclusion in the insurance policy or no dangerous breed ordinance, the owner or manager should discuss the request with the resident and avoid an outright and unconsidered denial.
In many cases, the applicant’s or resident’s physician is unaware that the dog requested is a pit bull or dangerous dog. Management is allowed to ask the physician how the dog assists with the disability and whether the physician or mental health provider is aware of the dog’s breed, history, or propensity to attack. Management may have the right to require that the dog be tested or evaluated by a licensed veterinarian to determine its temperament or sociability and confirm that the dog is not likely a threat to the health, safety, and welfare of the management staff and other residents.
“An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability… For purposes of reasonable accommodation requests, neither the FHA nor Section 504 requires an assistance animal to be individually trained or certified. While dogs are the most common type of assistance animal, other animals can also be assistance animals.” HUD FHEO Notice 2013-01.
According to HUD, a disability request for an assistance animal accommodation can only be denied if 1) the specific assistance animal poses a direct threat; or 2) the specific assistance animal would cause substantial physical damage to the property of others than cannot be reduced or eliminated by another reasonable accommodation. In many instances, it may be difficult to determine whether the animal poses a direct threat or may cause substantial physical damage to the property. HUD’s new guidance makes it clear that many rental owners and managers must update, revise, or change their old leasing policies regarding assistance animal accommodation request.
August 2013, All Rights Reserved)
About the Firm. Mr. Hein and Mr. Williams are members of the Florida, Georgia, and North Carolina Apartment Associations. Mr. Hein has been a featured speaker at the FAA, National Apartment Association, National Multi Housing Council Education Conferences and is author of the Georgia Apartment Law Book, a comprehensive reference book on federal and state laws affecting ownership and management of apartment communities. Mr. Williams handles defense of administrative fair housing complaints throughout the US, including Florida, Georgia, and the Southeast and provides fair housing training for clients and the Atlanta and Georgia Apartment Associations. The firm represents over two third’s of the 50 largest apartment owners and managers in the U.S.
(Back to Top) Revised 9/23