BAD SECURITY DEPOSIT HABITS - Part 2
by Cathy L. Lucrezi, Attorney at Law
Still think there's nothing to learn about security deposits? Nothing new to learn? Your confidence is laudable, but just to know how others are making errors, read on for some "bad notions" that should be corrected.
"We don't send a claim if the tenant didn't give us a forwarding address."
The statute requires the landlord to send a claim on the deposit no later than 30 days after the tenant has vacated. The statute also says, in a situation where the tenant vacates the premises early, the claim only has to be sent if the tenant gave the landlord a forwarding address seven days before the tenant vacated. Sounds like a great loophole. It's not. It should never be relied upon.
Every time a tenant vacates, a claim on the security deposit should be sent. It should be sent to the last known address, even if that is the unit he just vacated.
The problem with the "loophole" is it contains its own loopholes, making it very difficult for folks (including judges!) to figure out. It is far better to spend $5.21 or so for the mailing, than to risk being forced to return the security deposit.
"We don't send a claim if the tenant was evicted."
An eviction does not mean the tenant automatically forfeits her security deposit. Even though a tenant was evicted, she is entitled to receive the claim you are making against her deposit.
Every time a tenant vacates, a claim on the security deposit should be sent. This is true whether the tenant vacates under a writ of possession or surrenders keys four months before the lease expires.
It is common that a tenant who was evicted "used up" all of the security deposit. Typically, the tenant owes more than the amount of the security deposit. Nonetheless, a claim must be made on the deposit.
"We don't send a claim if the tenant told us to keep the security deposit." Sometimes a tenant will orally tell the landlord to keep the deposit. "Use it for what I owe you." No matter how much you trust the tenant's word, send the claim on the security deposit.
Every time a tenant vacates, a claim on the security deposit should be sent. Even if the tenant consents to the landlord keeping the deposit, the tenant is still entitled to receive a claim on the deposit.
Oral directions are only as good as the paper they are written on. They give no protection to the landlord.
In addition, if there is more than one tenant on the lease, getting the "go ahead" from one tenant simply cannot waive the rights of the other tenants. Send the claim to all the tenants on the lease.
(Back to Top)
METHAMPHETAMINE AND THE RENTAL PREMISES
by Harry Anthony Heist, Attorney at Law
The manufacture and use of methamphetamine, a highly dangerous, addictive and illegal drug is rampant throughout the United States. Usually it is manufactured in clandestine labs in trailers and homes in remote areas. Due to the severity of the problem, law enforcement has been making methamphetamine eradication a major priority. One of the big problems with methamphetamine manufacturers is the fact that they are often also seriously addicted to the drug they manufacture and sell. Once arrested, they may serve some time only to be released and resume the manufacture of the methamphetamine.
The manufacture of methamphetamine
Methamphetamine can be manufactured in any room of a house, trailer or apartment. The chemicals used are commonly available from the hardware store, paint store and online from chemical supply houses. All the ingredients used in the manufacture of methamphetamine are completely legal. Many of these ingredients are highly flammable, volatile and poisonous. Often a methamphetamine lab is discovered due to a fire or explosion.
What to look for during your inspections
An operating methamphetamine lab will be simple to spot. You will see chemicals, propane tanks, burnt cookware, glassware, bottles of chemicals, and be struck with the odor of the noxious substances used in the manufacturing process. The problem is that in order to see it, you will need to enter the unit. Many property manager fail to conduct regular inspections of their properties and assume if the property looks nice and neat from the outside, an interior inspection is not necessary. All landlords need to implement a policy of routine interior and exterior inspections. The interior inspection may be conducted less frequently than the exterior inspection, but in any event, inspections must be done on a regular basis. Severe damage can be done to an extremely valuable asset, and had an inspection been done sooner, often the damage could have been detected, stopped, or the tenant could have been removed from the premises.
Items which could indicate a methamphetamine lab
Glass jars with liquids or residues Large numbers of boxes of over-the-counter cold tablets Bottles of red phosphorous, iodine, sulfuric acid, hydrochloric acid, marked and unmarked bottles with colored or white solid on the bottom. Coffee filters Strong noxious orders Laboratory type glassware Burnt cookware or frying pans Kerosene, paint thinners, acetone and starting fluid Piles of rechargeable batteries Propane tanks Pressure cookers Ice tea jars Gasoline cans with tubing.
Note: Almost all the above listed items are common by themselves. It is the collection of the items in one area which should raise some serious suspicion.
Unusual, paranoid behavior by the tenant Nonpayment of rent Unemployment by the tenant Blackened windows and drawn curtains Frequent visitors at all hours and excessive traffic Extensive security such as additional locks and reinforced doors
You have discovered a methamphetamine lab, now what?
If you feel that there is the manufacture of methamphetamine on the premises, you should notify local law enforcement immediately. You should insist that they come with you to do an inspection, as often law enforcement does not immediately wish to shut down drug operations, but unfortunately want to watch the unit in question in operation for an extended period of time to get the "bigger fish", or arrest a larger number of people. Notify your attorney immediately, and do not serve any notices without the attorney's consultation and advice. Methamphetamine labs are extremely dangerous and sometimes booby trapped. Do not enter the unit again if you have strong suspicions, and leave this to the professionals.
Remediation and the law
Many states are enacting laws which require complicated and expensive testing and remediation procedures based on the presence of certain chemicals in a rental unit. Sometimes the amount of the chemical needed to trigger remediation is so minute, it borders on absurdity. Some states have enacted laws which will require disclosure to future tenants or adjacent tenants. We are watching the laws carefully so Florida does not become one of those states. If your local municipality is dealing with this issue, please feel free to contact our office. Often local municipalities come up with ordinances that have not been properly thought out. We do not need the landlord to become the victim in this war on drugs.
CLICK HERE and HERE for some excellent resources on methamphetamine
(Back to Top)
SOLDIERS, SAILORS, AND TENANTS
by Cathy L. Lucrezi, Attorney at Law
No one would dispute that a soldier is deserving of respect. The soldier relinquishes his liberty to join the service and sometimes pays the ultimate sacrifice. Law makers have enacted various laws to protect service personnel in their dealings in the "civilian" world. Regardless of whether the law makers were motivated by esteem or by a desire to please voters, the result is the same. A person serving in the active military is entitled to special housing rights.
A Florida landlord may not discriminate against a servicemember in offering a dwelling unit for rent or in any of the terms of the rental agreement. A violation of the law could subject the landlord to same penalties as for changing the locks or turning off the electric service. Even if the service member had no financial damages, he would be entitled to at least three times the monthly rental rate, plus attorney fees and court costs.
Some counties and municipalities have their own ordinances that make it unlawful to discriminate against servicemembers. Besides making the landlord pay damages, attorney fees and costs, these local laws often authorize the local government agency to investigate and file a complaint on behalf of the servicemember. The significance of that is the tenant may not need to find an attorney to help him. The city or county can sue the landlord on the tenant's behalf.
Early Lease Termination
A tenant who is in the military service can terminate the tenancy under certain circumstances. Criteria must be met:
-- The tenant must give written notice 30 days prior to vacating.
-- The tenant must give you a copy of the military orders that are the basis for the termination.
-- The tenant's circumstances must "fit" into one of the following categories:
A. The servicemember is required, pursuant to a permanent change of station orders, to move 35 miles or more from the location of the rental premises;
B. The servicemember is prematurely or involuntarily discharged or released from active duty or state active duty;
C. The servicemember is released from active duty or state active duty after having leased the rental premises while on active duty or state active duty status and the rental premises is 35 miles or more from the servicemember's home of record prior to entering active duty or state active duty;
D. After entering into a rental agreement, the servicemember receives military orders requiring him or her to move into government quarters or the servicemember becomes eligible to live in and opts to move into government quarters;
E. The servicemember receives temporary duty orders, temporary change of station orders, or state active duty orders to an area 35 miles or more from the location of the rental premises, provided such orders are for a period exceeding 60 days; or
F. The servicemember has leased the property, but prior to taking possession of the rental premises, receives a change of orders to an area that is 35 miles or more from the location of the rental premises.
Death of a Servicemember.
If a servicemember dies during active duty, an adult member of his immediate family may terminate the rental agreement by giving the landlord a 30 day (at least) written notice of termination. The notice must be accompanied by either a copy of the military orders showing he was on active duty (or a statement signed by his commanding officer) and a copy of the servicemember's death certificate.
Consequences of Early Termination
If the rental agreement is terminated under the special military statute, the tenant is liable for the rent through the 30 day notice period. A pro-rated amount would be due if the thirty day notice ends in the middle of a month. The tenant is not liable for any other rent or damages due to the early termination, no matter what the lease may say. The tenant is not obligated to repay concessions.
If the servicemember has not yet taken occupancy of the unit and gives at least 14 days notice of the termination, no damages or penalties of any kind can be assessed.
No part of the special military statute can be waived by the parties. The landlord cannot have the tenant sign an agreement that defeats the protections of the statute.
(Back to Top)
KEYS AND POSSESSION
by Harry Anthony Heist, Attorney at Law
Many property managers consider the return of keys as the date that the tenant gives possession. When the key return occurs, they begin to count the 15 or 30 days as required by law for returning the security deposit or making the claim. Sounds reasonable, right? Wrong. This method of determining the possession date gets countless landlords in trouble, as the tenant argues about the key return or key return date, resulting in potential accusations of a violation of the security deposit claim/return laws.
Your lease most likely has a clause which states that the tenant is to turn in the keys, garage door remote, etc., upon surrender of the premises to you. This reminder is important, as often the tenant leaves forgetting to return these items, and besides, when the key is returned, it is usually clear that the tenant has in fact surrendered. Unfortunately, like any other lease clause, tenants will do whatever they want. They do not always do "what they are supposed to do".
Your company policy
You may have a company policy that states that the tenant has not surrendered the rental premises unless the keys are returned. While this seems like a logical policy, the reality of the tenant not returning the keys can make this policy silly, as most landlords have taken possession of a rental unit at one time or another, even when no keys were ever returned. The policy may be good in theory, but in reality it does not always work. Furthermore, many judges do not care much what your company policy is.
What is the surrender date?
Your tenants are supposed to leave at the end of October. They have given notice that they are leaving, their lease may be expiring, or possibly you non- renewed the tenants. At the end of October, no tenants show up in your office to drop off the keys. The question now is whether the tenants have indeed surrendered.
Rent and Keys
It would seem logical that if you did not receive the keys from the tenants on the surrender date, the tenants would continue to owe rent until such time as those keys are returned. This is simply not practical, as the chances are the tenants have vacated on the surrender date, but for whatever reason or no reason at all, they drove off with the keys.
The Landlord's actions
. The landlord who does not receive the keys on the surrender date often decides to continue charging tenants rent. This amount will be deducted from the security deposit or could exceed the security deposit funds, resulting in the tenants owing more money than the security deposit, which amount could eventually end up on a credit report.
Now for the Dispute
1. Charging the tenant rent:Once the tenants receive the Notice of Intention to Impose Claim on Security Deposit, the fireworks begin. The tenants are furious that you would have charged them rent, when in their opinion, they vacated the property, and since they were not living there, they should not have to pay any further rent. They may even bolster their argument by showing you the notice of vacating they gave you or the notice of non-renewal you sent them. In your mind, since no keys were returned, they owe rent. In their mind, they vacated just as planned and owe nothing.
2. The 30 day Notice Period requirement:The landlord receives the keys on the 4th day of the month or goes to the property on the 4th and finds the keys sitting on the countertop with a little note next to them and a forwarding address. A common problem occurs when the landlord begins the counting period of 30 days to send the claim letter as of the key receipt date. Typically the problem is caused when the landlord waits until what they consider the 29th day to send the notice out. Savvy tenants know about the law regarding the security deposit and the timeframes under which the landlord is working. The result is that the tenants are now demanding the full return of the security deposit, as in the tenants' opinion, you sent it out late. The argument then becomes whether you sent the notice out on time. The landlord argues that the tenant did not return the keys until the 4th or not at all, since the keys were left on the counter. The tenants argue that you knew or should have known that they had vacated, and you should have begun counting your 30 days from the date that the tenants were supposed to vacate. The tenants may even argue that they returned the keys to your receptionist or dropped them in the drop box. Who is correct, the tenants or the landlord? It is tough to predict how a Judge will rule under these facts; the best answer is for the landlord to avoid this problem.
Avoiding the problem
If you are told by the tenants that they will vacate at the end of the month, or you gave them a notice of non-renewal for that date, it is YOU who should be going over to the property on the first day of the month and seeing if they have completely vacated. Sitting in your office waiting for keys which may never be returned is patently foolish. Additionally, waiting until the 28th, or 29th day from the key receipt date to send the deposit claim letter is dangerous and increases the odds of a dispute immensely. NEVER rely upon the return of the keys to begin the counting of your days when making the claim upon the security deposit, regardless of company policy or lease wording.
(Back to Top)
DEALING WITH RENTAL FURNITURE
by Harry Anthony Heist, Attorney at Law
Many tenants abandon the premises or get evicted leaving rental furniture behind. Most landlords know how to deal with the property in these situations. Less common is the situation when the furniture rental company calls the landlord or shows up at the office asking the landlord to allow them access to the unit to retrieve the furniture for which the tenant has not paid. Do you oblige? Can you let the representative from the rental furniture company in the unit? Suppose the eviction will be served on Monday morning. Is there any obligation to the rental company?
The tenant is in possession
Furniture rental companies will often contact you in the event the tenant to whom they rented the furniture fails to pay the rental amount. According to the contract the tenant signs with the furniture rental company, the tenant agrees to allow the company to pick up the furniture in the event the tenant is in default. You, as landlord though, are not a party to this contract and have no power or authority to grant the company access to the rental unit. If you are notified by the rental company's representatives, simply tell them you cannot grant them access. They will try to convince you otherwise, but the bottom line is that retrieval of the rental furniture is their problem and not yours.
The tenant is under eviction
The fact that the tenant is under eviction changes nothing. An eviction is simply a lawsuit by which you are trying to remove the tenant. The tenant may pay and stay or end up being evicted. The furniture rental company is not a party to the lawsuit and does not have any greater rights to the rental furniture because of the pending eviction.
The sheriff is going to grant you possession
Near the end of the eviction process, the sheriff's office will notify you of a fixed date and time when they will come and meet you to give you possession. If the furniture rental company asks you when this is going to occur, simply refer them to the case number, and they can do their homework. If the company wishes to be at the property when the sheriff executes the Writ of Possession, they certainly can, and they can also retrieve the items from the property line after you have placed them there. Do not allow the rental company employees to enter the unit to retrieve the furniture. You are required to take all items to the property line. You neither have any affirmative duty to notify the rental company of when the writ of possession is to be executed, nor do you have any responsibility for the preservation of the property once you take it to the property line.
The law and rental furniture
Florida law requires the furniture rental company to file a lawsuit in County Court, and obtain a writ of replevin in order to have the right to take the rental furniture from a tenant without the tenant's consent, if by taking the furniture, the peace will be breached in any way. If for some strange reason the rent furniture was sitting on a first floor open lanai area, the furniture rental company would be able to simply take the item(s) and leave without the necessity of a replevin action. Since most furniture is kept in the unit though, the legal procedure must be followed.
Abandoned rental furniture
If the unit is truly abandoned or surrendered to you and you have the proper abandoned property wording in your lease agreement, you may dispose of the rental furniture and any other personal belongings as you see fit. If the furniture is obviously rental furniture or contains markings identifying it as rental furniture, there is nothing improper about calling the rental furniture company and asking them to retrieve their property. Please be absolutely certain that the unit is abandoned according to Florida law or surrendered before ever removing any tenant's personal property. Check to see if your lease has the current abandoned property wording stated clearly:
BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY
(Back to Top)
THE BELLIGERENT TENANT
by Harry Anthony Heist, Attorney at Law
Every landlord will someday deal with the situation when a tenant comes storming into the office acting in a threatening or belligerent fashion. He may be unhappy about the rent going up, or because you are non-renewing him, or possibly because his car was towed, and it is all your fault according to him. He storms into your office, spewing profanities and acting aggressively towards you or others. It is possible that you have other prospects in the office who have to be subjected to this behavior by the tenant. This can be a frightening experience, as the tenant could go as far as threatening the life of staff members, or throwing objects about the office. Can you evict a tenant for this behavior? Should he and other leaseholders of his apartment be served any type of notice?
Calling the police
Unless the dispute is minor, we recommend that the police are called immediately. Although they most likely will not do anything but speak to you, your staff and the tenant, it will send a clear message to the tenant that you mean business and will not tolerate such behavior in or out of the office. By calling the police, you will also create the much needed paper trail in the event another incident of a similar nature occurs again.
Trespassing the tenant
If a disruptive incident happened more than once, a threat was made, you were put in fear of your life, the tenant did some physical damage to the premises or interfered in a serious way with you conducting business in the office, you have a right to request that the attending police office or sheriff's deputy file a trespass warning against the tenant. If the sheriff does trespass the tenant from the office and the tenant returns, the tenant can be arrested.
The proper notice to use
If the office disturbance is such where there is yelling, profanity and general inappropriate behavior, while the manager would love to terminate the tenant, this would not make for a strong termination case. In such a situation, a Seven Day Notice of Noncompliance with Opportunity to Cure should be given, and you should consult your attorney for the proper wording. If the disturbance rises to a much more serious level including direct threats of physical harm to persons or property, a Seven Day Notice of Termination would be the proper notice to use. Never prepare a Seven Day Notice of Termination yourself, but immediately call your attorney for guidance,
If a Seven Day Notice of Noncompliance With Opportunity To Cure has been served, and similar disturbances occur after the notice expires of which you have good proof, it will be possible to serve a Seven Day Notice of Termination. Again, your attorney should assist you in making that decision.
Some final thoughts
Most self-respecting landlords will eventually have their vehicle keyed or their tires slashed by an angry resident. A number of situations occurred in 2007 in which landlords and apartment community staff in Florida were injured and even killed by irate residents. Learn to try to diffuse situations whenever possible, as the risk is high that something serious can occur.
THE TENANT SECURITY DEPOSIT DISPUTE
by Harry Anthony Heist, Attorney at Law
When receiving a Notice of Intention to Impose a Claim on the Security Deposit, invariably a tenant will one day dispute what you have charged. You will usually be notified of this in a long rambling letter, in which the tenant goes on and on about how the premises were left cleaner than when she moved in. The tenant's letter usually ends with a threat that if she does not receive her money back within a certain period of time, she will sue.
What is the landlord required to do when a Security Deposit Claim is disputed?
The easy simple answer is NOTHING. Contrary to popular belief, there is no legal obligation to respond in any way to a tenant's verbal or written security deposit dispute. Should you completely ignore it though?
The Four Options when there is a dispute
1. Do absolutely nothing and ignore the tenant's dispute. This will most likely infuriate the tenant. You will either hear nothing from the tenant or you may receive a letter from an attorney for the tenant, or a lawsuit could be filed against you, the property owner or both. Chances are you will hear nothing.
2. Give the tenant what he or she wants. If the tenant is demanding a return of the security deposit in full or in part, you can simply cave in and return the money. That is a fairly certain way to calm the tenant down, but it is doubtful that you or the property owner really wants to do this. If you are the property manager for an owner, it is recommended that you notify the owner of the dispute and ask them if they would like to do this. Many owners do not want to be remotely bothered with a dispute and may choose this to avoid any possibility of litigation. If a dispute blows up into a major lawsuit, the property owner could blame you for not giving them this option in the beginning. Never try to guess what path an owner will take. Let them make this decision.
3. Respond to the tenant. Tell the tenant in writing that you have reviewed the file and that the charges stand. There is no need to explain the charges if they are clear. Remember that you are building a paper trail when you respond, so be careful you do not disclose any weaknesses. Your response will at least show that you are not ignoring the tenant and may calm the tenant down.
4. Receive settlement authorization from the owner. After review of the file and possibly consultation with the owner, you may feel that certain charges are not easy to prove or were not warranted. If you receive a fixed amount of settlement authority in writing from the owner, you or your attorney can attempt to settle the matter. If settled, a release can be drawn up and the money disbursed according to the agreement.
Can you disburse a disputed security deposit?
Absolutely. Florida law specifically allows you to disburse the security deposit as you see fit. The days of having to notify FREC, file an interpleader or file a lawsuit in court are OVER. Do you increase the chance of getting sued if you disburse? Yes, but you are allowed to do so and if you have a solid case, evidence and proof of all the damages for which you may have charged the tenant, you probably will be safe.
Some final advice
In the event of a lawsuit, if you manage the property for an owner, you do not want to be named a party to the lawsuit. You are merely holding the money, or you may have already disbursed. Always make sure that you have the following wording clearly stated in your lease agreement:
DISPUTES AND LITIGATION: In the event of a dispute concerning the security deposit and tenancy created by this agreement, TENANT agrees that if the premises are being managed by an agent for the record owner TENANT agrees to hold agent, its heirs, employees and assigns harmless and shall look solely to the record owner of the premises in the event of a legal dispute.
(Back to Top)
NOTE THIS ARTICLE IS OBSOLETE DUE TO THE LAW CHANGE IN 2008 -- TERMINATION FEES IN 2007 - ARE THEY LEGAL?
by Harry Anthony Heist, Attorney at Law
It has been a number of years since the Yates vs. Equity Residential court decision in Palm Beach County rocked the rental housing industry. Years of the landlord charging a fair liquidated damages amount or termination fee when a tenant broke a lease came to an end when the court decided that these fees were somehow illegal, since they were not specifically provided for in the Landlord/Tenant Act. Although not binding precedent on other Florida courts, this very questionable interpretation of the law has been used by the law firm which originally brought suit against Equity to bring many more suits against other companies throughout Florida, resulting in millions of dollars being spent by the companies to fight the lawsuits and eventually settle the cases. But wait. Did they really come to an end? Many apartment management companies are still charging these Termination Fees, Lease Buy out amounts and liquidated damages, and in the process, they are exposing themselves to huge lawsuits. The attorney who is filing these suits has not let up and is actually sending out direct mail pieces to your tenants and former tenants, offering to review their case and possibly represent them if they were charged or paid a fee. When these lawsuits are filed, they are class action suits which cannot be settled simply by paying one tenant some money to go away.
Why are companies still charging these fees?
Some don't know about the lawsuits, some are taking a calculated gamble, and others just cannot comprehend how it could be considered illegal to charge such fair fees, fees which actually will benefit a tenant if the unit is not re-rented right away. Many companies have in-house out of state attorneys who refuse to believe that this is illegal, and some Florida attorneys representing Florida companies are still telling their clients that they can charge these fees, risky advice at best.
What can you charge a tenant when they break the lease?
In addition to the usual charges for past due rent and damages, according to Florida Statute 83.595, you are allowed to charge the tenant for rent as it becomes due until the sooner of such time as the unit is re-rented or the lease ends. Everyone knows that there are additional costs, (the costs have been calculated at about 2 months' rent) incurred due to a lease break by the tenant, but the law is silent on this issue. Silence should be golden here, but the court's interpretation says otherwise. The law neither specifically allows for early termination fees or rent acceleration, nor does it specifically allow a landlord to recoup concessions which may have been given.
Suppose a tenant wishes to buy out of the lease
Again, for years many leases provided an option to be invoked by the tenant which would typically allow the tenant simply to give 30-60 days' notice and pay 1-2 months' rent to buy out of the lease. The tenants loved this, as it allowed for certainty and flexibility, as circumstances may and do change for the tenant, especially in a transient state such as Florida. Can you do it now? NOT WITHOUT SIGNIFICANT RISK. Now the tenant is faced with possibly having to pay rent until the unit is re-rented, and in the current market, this could be months. Florida law does not provide tenants an early termination right, so an early termination option created under a lease would actually give the tenant another choice, but certain consumer right attorneys are threatening to challenge even a true option created for the tenant's benefit, an option which by definition the tenant could also choose not to take.
But wait! We heard that some companies can charge a Liquidated Damages Fee or Early Termination Fee!
This is true. The companies that have been sued and have settled are allowed, by a court approved settlement agreement, to charge up to 45 days of rent as a liquidated damages amount and are allowed to charge a tenant a buy-out fee of one month's rent if they give up to 60 days notice and agree to this in the lease or addendum. Unfortunately a settlement does not make or change law just because it is approved by the court.
Do you want to be able to charge these fees?
You can wait until you are sued, pay a couple million dollars, and then you most likely will be able to charge the fees under a settlement agreement. Is it worth the risk? We think not.
The Final Word --- for now.
Remove all references to termination fees, liquidated damages fees or acceleration of rent in your lease. Until we get a definitive answer from the courts, or Florida Statutes are changed to specifically allow us to charge these fees, you are in dangerous territory. Many companies have been sued, many more will be sued, and you do not want to be on the list. For fun, go to rodtennyson.com the website of the firm which is filing all these suits, and you can read the cases and judgments in depth. If your attorney tells you that you can charge these fees right now, get it in writing from your attorney, and make sure he or she has a massive amount of malpractice insurance.
(Back to Top)
SUING A TENANT FOR MONEY OWED
by Harry Anthony Heist, Attorney at Law
If our office could collect just a small portion of the lost rents and damages suffered by the landlords we represent, we probably could close the doors in a year's time and live happily ever after in a mansion on a tropical island. The truth is, the money that tenants owe when they break a lease, get evicted and/or damage the premises is very difficult, if not impossible, to collect. Every day we get calls from upset landlords asking us if we can collect the money owed to them, or if we will file a lawsuit to collect the money. Our usual answer? No. The reasons behind this are many. Most tenants who could not care less about abiding by the terms of their lease will not pay you the money they end up owing you. Many are just uncollectible or owe so many people money, you are just not high on their list.
Florida is a "Debtor State"
While Florida is considerably landlord friendly when it comes to evicting the tenant, the collection laws favor the debtor. It is ironic that tenants can be removed in 20-40 days if they fail to pay their rent in the 3 business day time period of the Three Day Notice, but cannot be forced to pay money they may owe. The days of "debtors' prisons" are long gone.
A debtor in Florida enjoys several significant protections. For example, if the debtor is the head of a household, his wages cannot be garnished (there is a very limited exception for some consumer transactions). Some forms of income can never be garnished, such as disability income or welfare payments. Also, the debtor can protect up to $1000.00 of personal property from seizure for collection (and that's $1000.00 per person in the household, regardless of age). The process of garnishing wages in the event the debtor is not under an exemption is often cost prohibitive.
Some collection alternatives
1. Collection agencies : There are many collection agencies which will vigorously attempt to collect money for you by sending out threatening letters and calling the tenant. Additionally, they often have the capability of finding the tenant through sophisticated skip tracing and hounding them. Sadly, you are probably just one of many creditors that the debtor has. We recommend that you send the accounts to a reputable (and we stress reputable) collection agency, but be absolutely certain that you can prove the amount owed possibly years later, when an attorney for the tenant challenges you. If you are challenged and you cannot prove that the tenant owed you the money you stated was owed, you could end up in a nasty lawsuit in which you will end up paying the tenant and his or her attorney a lot of money, not to mention your attorney who you will have to hire to defend you.
2. Small Claims Court: Small Claims Court is the place where many smaller lawsuits are filed against tenants. You need to file in the county in which the property is located or where the former tenant resides. If you can find the tenant and have him served with the lawsuit, you can end up in court where the tenant may not show up and you will get Judgment against the tenant, the tenant will show up and you will possibly successfully mediate the dispute, or you could lose the case entirely or in part. Worse yet, an attorney could jump in and represent the tenant, and if you lose your case even in part, you may very likely have to pay the tenant's attorney's fees. These fee awards can easily reach thousands of dollars. For those clients who are retired or have a lot of time on their hands, we tell them that they could go to court, fill out the paperwork and file a case against their former tenant. Many of these cases end up with the landlord getting some or all of their money. Many more cases result in the landlord getting a Final Judgment which is suitable for framing. Getting a judgment is only the very first step in the process.
Should you use an attorney?
In most cases hiring an attorney and paying good money to go after bad money is not wise. There are some attorneys to whom we refer clients, such as Troy Lotane of Vance, Lotane and Bookhardt who file a large number of cases in Small Claims Court. Their firm has indeed been very successful at collecting, but they review each case carefully and evaluate the collectibility of the debtor before they will help you make an informed decision whether or not to file suit. There are over 80,000 lawyers in Florida. Will many be happy to take your money so you can sue someone out of "principle"? Yes, but our firm is not one of them.
The Owner wants the Property Manager to file in Small Claims Court
Property managers of single family homes, condos and duplexes are often asked by their out of state owner for whom they manage to file a case for them in Small Claims Court. While some judges allow for this, there is no reason on earth why you should act as the owner's attorney and waste your valuable time in court. Judges do not look kindly on non-lawyer agents representing others in court, and that simple little case can blow up into a big mess.
The tenant has a business! We can collect!
People who own businesses are no easier to collect from than that nice tenant who just has no money or got themselves into a bind. In fact, it is often harder to collect from a business owner. Their business is in a corporate name, and they are used to people not paying them. This equates to them feeling it is okay not to pay you.
The tenant completely trashed the home- I want to sue!
Think about this. Is a person who goes out of their way to destroy the rental property someone who is going to pay you or show up in court? These people are the last to ever dream of paying their debt to you or anyone else. Clearly, these are people you should just forget about. It always strikes us as funny when the property manager goes through great pains to take pictures and videos of a completely trashed unit. These tenants don't pay. It they did, they never would have trashed the unit in the first place.
Is all hope lost?
There are one or two good responsible people in Florida who may actually pay what they owe you. There may be a co-signer involved, which can increase the likelihood of payment, or the tenant's situation may change, and they decide that they have the means to pay. Our recommendation is to give your attorney a call and at least get an opinion. Often an out of state owner of the property does not understand what the laws are in Florida, as they may come from a creditor- friendly state. Your lawyer can give you a quick written evaluation, and possibly your owner will want to then back down or will still want to proceed. Some people are indeed collectable and worth pursuing. Most are not. Sometimes a simple $50.00 letter from your attorney can result in payment. There are many laws governing the collection of debts by collection agencies, lawyers and the original creditor, which may be you! Do you know these laws? Are you ready to take a gamble when you can end up the loser? Do you feel prepared to take on the role of a "collector"? Do you know that you can actually be considered a "debt collector" under Federal law? If your answers to some or all of these questions are "no", take a deep breath and spend your energies trying to keep your rental property rented with good tenants.
(Back to Top)
FORECLOSURE AND YOUR OWNERS
by Harry Anthony Heist, Attorney at Law
Property manager take great pains, or at least should, screening their applicants. They utilize professional screening companies, pull credit reports, check the public records, run criminal background checks, check references, call up prior and current landlords, all in the hopes of weeding out the bad applicant, so they do not end up with that bad tenant. They then approve the applicant if everything checks out and place them into a home owned by a perfect stranger whom they have never seen and lives 1500 miles away. The property manager then begins collecting rent and sends this money off to this perfect stranger. Sounds a bit odd, but that is the way it goes. Three months into the lease, the tenant comes to the property manager's office with foreclosure papers that were just served on them by the local sheriff's deputy. What is this about? The property manager opens the mail to find that the condominium association is demanding payment of the association fees or assessments which are 6 months past due and threatening legal action for this. While reading the tax notices in the newspaper, sure enough, the owner has not paid property taxes for last year. The property manager calls the owner multiple times and never gets a call back. The tenant is angry and wants to break the lease, and also does not feel he should pay any rent if the owner is not paying the mortgage. You are stuck in the proverbial "middle" of this mess. While there is no way to assure a property owner is going to pay their mortgage, insurance, association fees, or any other bill, most likely the property manager did no investigation whatsoever on the property owner.
Who owns the property?
Your first step needs to be researching who the actual owner of the property is right now. To do this, you need to check the tax records, but more importantly, look at the latest deed to the property. Many title insurance companies will be glad to provide this information to you at little or no cost. It is possible that a trust owns the property, only the husband, only the wife, a partnership, a corporation or any other form of ownership out there. When that management agreement is signed, you need to make sure it is signed by the actual owners or authorized representatives of the owner. With the tough market right now, we are seeing more cases of fraud by companies who for a fee or percentage are "helping out " distressed owners, and they will come to you posing as the actual property owner. Shady characters take advantage of desperate people.
With thousands of properties going into foreclosure, the chances are extremely high that the above situation will happen to you. Almost every property manager has or will encounter this situation, as owners at high rates are allowing themselves to go into foreclosure or simply walking away from the property. We are now recommending that you ask the property owner for proof of payment of the last 5 mortgage payments. Additionally the property manager needs to look up on the Clerk of Court's website for the county in which the property is located to see if a Notice of Lis Pendens has been filed by the mortgagee. This is the notice that is filed just prior to a foreclosure action being instituted. It is possible that the property is actually already in foreclosure, and this will be determined by a simple public records check that is available for free in almost every county.
A simple check with the Property Appraisers/Tax Collector's office will reveal whether the owner has paid the property taxes for the prior or current year in which they are due. Failure to pay the taxes can result in a lien and tax sale, or trigger a foreclosure, as it may violate the terms of the mortgage.
It is imperative that you never manage a property that is uninsured. Many property owners have decided that will take a chance and not pay the insurance, as the cost has become so prohibitive. Some owners feel that the tenant should get insurance and that this is enough. If you cannot get the insurance company to put your company down as an additional insured, have the owner provide proof to you that the property currently has insurance that is paid up to date.
Condo/Homeowner's Association Fees and Assessments
Prior to accepting the property for management, demand proof that all fees and assessments are paid up to date. These obligations are often the first to go unpaid by an owner in financial difficulty, and we know there are a lot of them out there right now.
Tenants become extremely angry when you place them in a home, and all of a sudden they are faced with the uncertainty of whether they must move out or even be forcibly removed at the end of a foreclosure. The foreclosure laws have changed, and they move along much faster than in the past. Can you be held liable? Possibly, if the tenant can prove to a judge or jury that you knew or SHOULD HAVE KNOWN that the owner was not in any position or condition to rent out the home to a tenant. You are in relatively uncharted waters in this regard, and a judge just might feel that you were negligent in renting out a property without doing some investigation. The tenant looked to you to rent the home. You showed the tenant the home, and you took the tenant's money. Expect that your owner is having financial problems, and have the owner prove to you that he isn't. You are in a sense re-selling a product by putting a tenant in, and it could be argued that there is a reasonable expectation that that product that you are selling was paid for by the person you are "buying" it from, and that it was your responsibility to use due diligence before entering into that lease.
(Back to Top)
HURRICANES AND TROPICAL STORMS
by Cathy L. Lucrezi, Attorney at Law
It's that time of year again. A tropical storm will cause mischief somewhere and damage someone's rental premises. The havoc will interrupt the tenant's possession of the premises as well as the landlord's income. Here are some important repair matters to keep in mind:
Damaged and uninhabitable. If rental premises are damaged in a way that renders them uninhabitable, the tenant is not liable for rent for the period that the premises are uninhabitable. The owner is not obligated to pay for a hotel or move the tenant to another unit (unless the lease specifically says he should).
Repairs should be completed as quickly as is reasonable. This is often difficult in a post-hurricane period, given the great demand on services. Documentation is key to show that you are making best efforts to get the premises repaired.
Damaged but still habitable. If the premises are damaged but not destroyed, it is wise to work out some "credit" to the rent until repairs are done. How much of a credit depends on the facts of the particular situation. Alternatively, a wise landlord will have a clause in the lease that allows the landlord the right to terminate the tenancy in the event the premises are "damaged".
The tenant cannot refuse to pay rent. However, some compromise should be reached. If you served a three day notice while significant repairs were ongoing, and then filed an eviction, it is very likely that a judge would consider the damage to be a "diminution" in value. That's enough to mess up an otherwise good eviction case.
When repairs are completed, you will be on solid footing to demand the full rent.
Destruction of premises. If the rental premises are destroyed, the owner might wish to terminate the lease rather than do repairs. Unfortunately, the option to do this is limited. The Florida statute does not entitle the landlord to terminate the tenancy under these conditions. The tenant can do so, but not the landlord.
The landlord can terminate the tenancy due to destruction only if the lease says he can. This language is usually found in a paragraph titled "Casualty" or "Maintenance".
If the lease does not contain language that permits the landlord to terminate the tenancy, yet repairs are out of the question, the owner may want to "invite" the tenant to terminate the tenancy. The landlord would suggest to the tenant that the tenant could give notice to vacate and be released from the lease.
Data and documentation Sure, everyone knows to take photos of damage after the hurricane, but do you have photos of what the place looks like now? It is sometimes hard to fully appreciate an "after" picture without having a "before". You should record and document the condition of the rental premises now, before the winds blow.
(Back to Top)
DOING FAVORS FOR LANDLORDS
by Harry Anthony Heist, Attorney at Law
Over the past five years, a huge number of individuals purchased homes in Florida with the intention of flipping these homes and making a fast buck in the process. While some purchased with the intention of renting the home out to cover the costs of their investment, many had no intention of doing so and became "accidental landlords". Accidental landlords are people who never intended to become landlords, but due to the inability to flip the property and the expenses of carrying the property, are now forced to rent the home or condo to a third party in the hopes that this will cover all or part of the expenses. In their zeal to save the percentage that is charged by a professional management company, the property owner places an ad in the paper, or hires a property manager to simply find a tenant, with the intention of the property owner handling the rest of the process and subsequent management of the property.
Invariably, the owner is an out of state absentee owner who will realize that it is nearly impossible to manage the rental property from afar. Something can and will happen necessitating the physical presence of some person to do something for the property owner. This is when the property manager receives that phone call asking for a favor to be done. The property manager's initial reaction may be to try to assist the owner if the request is not too unreasonable, but assisting the owner could create unnecessary liability for the property manager. How far do you want to go?
Serving a Notice
This common request by the absentee owner occurs when the rent is not received by the owner. What a surprise. The tenant decides not to pay the rent. Can this be happening? They seemed like such nice people. Most property owners know how difficult it is to collect rent when the office is one mile from the property, but the absentee owner is surprised when the tenant decides not to mail that rent check to California. While it may seem simple enough for you to prepare a Three Day Notice, you may be violating federal law by doing so. Under federal law, if you are trying to collect a debt for another, you may be considered a "debt collector" and be subject to all the rules, regulations and laws which govern debt collectors. Additionally, if the property owner prepares the notice, they will be asking you questions as to how to prepare the notice and what they can put on the notice. Very few owners understand that only rent can be demanded on a Three Day Notice, and furthermore, if the tenant is to pay the rent by mail to the absentee owner, 5 additional days must be added to the expiration date of the notice. Worse yet, some "helpful" property managers will prepare the notice demanding that the tenant pay the rent to the property manager's office location. Why should the tenant pay rent to some unknown third party?
Checking the property
Some time has gone by and the owner has not heard from the tenant. You get the call from the property owner to check out the property to see if the tenant is still there. You drive over to the property, look in the windows or enter the unlocked door, and it appears to you that the tenant has abandoned the premises. You tell this to the owner, and the owner gets the locks changed. Then the tenant comes back and sues the owner, claiming a lock out and alleging civil theft, as the tenant claims all his personal property is gone. The owner then blames you for the faulty information.
The property owner needs you to open up the premises to let the repair person in. You go to the property, and the vendor is nowhere to be found. You wait an hour and leave. The vendor then shows up, can't get in, charges the owner for his time, and you just wasted an hour of your time. The owner now is blaming you for not being there and feels you should pay the vendor's charge.
Showing the property
The owner asks you to show the property to a prospective tenant. You meet the applicant at the property, show him around, and he moves in. Next thing you know, you get a call from the tenant complaining about a repair that needs to be done. The tenant thinks you are the property manager, and the calls continue. Just showing the property can give the appearance that you are working for the property owner. In the event the prospective tenant was injured during the showing, you may be on the hook. Further, in the event of a dispute later as to the property condition, you may be pulled into the dispute or even become a part of some litigation.
Meeting the Sheriff
The property owner hired an attorney to file an eviction and the sheriff is set to meet the property owner at the premises on Monday morning at 9 a.m. The problem is that the owner is in Hawaii, so you get the call. You meet the sheriff at the property on Monday morning, and the tenant is still there. Moreover, the house is full of the tenant's personal property. Do you wait around until the tenant moves everything out? Did you bring a team to move everything out? Is the locksmith there with you? As you can see, this is not something with which you should get involved.
When an absentee owner asks you to perform activities that normally would be reserved for property managers, you need to take a stand and either say "no" to the owner, or have some clear writing in which the task/responsibility is laid out with language completely limiting you from liability and stating what the owner will pay you. No good deed goes unpunished, and there is no reason why you should take on any additional liability, especially when not getting paid. Rather than increase liability, use the opportunity to get the owner to sign up with you to fully manage the property. Do this before the "favor" is done!
(Back to Top)
NO MORE RENTALS IN CONDOS?
by Harry Anthony Heist, Attorney at Law
At the current rate of unreasonable rules and regulations, it will soon become impossible for rentals to occur in properties governed by condominium association and homeowners associations. Some of these rules and regulations are legal, some are completely illegal, and others fall into a gray area. Many of these rules and regulations are specifically designed to allow the condo board or manager to illegally discriminate against the applicant so as to prevent "those kinds of people" from moving into the condominium. Changing rules and regulations and their inconsistent application are causing increased frustration among unit owners who wish to engage in renting the units and managers who are managing these units for the unit owners. Unit owners and property managers are increasingly at the mercy of the full time owners who have a bit too much time on their hands to think up ways to inhibit rentals. From this point on in the article, we will refer to condominium and homeowners associations as "Associations", just to make it easy.
The Association Approval Requirement
Associations are allowed to require approval of applicants before they become tenants. Many Associations have not required this in the past, but suddenly decide to do this without giving you notice. The owner most likely has gotten notice, but you are operating on the assumption that no approval is required. Some Associations require approval, but do not enforce the requirement. Rest assured that they will if you place a tenant that they do not like. Never assume that approval is not required, and always check to see if changes were made. Often the approval process by the Association is stated to take up to 30 days. How many of your applicants can wait 30 days to be approved? These days, approval can be done in minutes.
The Face to Face Meeting Requirement
An Association can require a face to face meeting with the applicant. Why? Well let's think about this. The face to face meeting allows the Association to see if there are children, if the applicant is disabled, a minority or just someone that they don't want in their Association. If the purpose of the face to face interview is not to discriminate in any way, it is not illegal. If it can be proven that the applicant was denied due to a protected class status, then illegal discrimination has occurred. One of the newest requirements that has popped up is that the unit OWNER must have a face to face meeting with the Association or management as well prior to renting the unit. Try this when the owner lives in Argentina.
Excessive Approval Fees
Florida Statutes 718.112 allows the Association to charge an application fee of $100.00 per applicant, with a total of $100.00 if the applicants are a married couple. Presumably this is to pay for the background check that you are most likely doing already. The problem is that they are tacking on other fees, such as credit checking fees and non- refundable administrative fees. If the law specifically states that the Association can charge a $100.00 per applicant fee, how on earth can the Association get away with charging the additional non-refundable fees or credit checking fees? Why bother even having a law that creates a $100.00 limit if all these other fees can be added? Why can't an Association simply have so many non-refundable fees that no one could possibly pay them? The purpose of the law was to limit what the Association can charge. In our opinion, anything more than $100.00 per applicant is completely illegal
Florida law allows the Association to charge the tenant security deposit of up to one month's rent, and this can be held in the Association's escrow account. Presumably this is to cover damage to the common areas of the premises. This is not too unreasonable, but could cause the tenant to have to come up with a significant amount of money out of pocket to move in. In some cases the property owner has put up this money, only to have it be returned to the tenant when the tenant vacates. Try getting this returned security deposit back from the tenant. Unfortunately, some Associations are violating the one month's rent law and asking for higher and additional security deposits from the applicant.
Limitations of durations and frequency of rentals
Case law has stated that Associations cannot completely prohibit rentals but can place restrictions upon them. Prohibiting weekly rentals and having 3 month minimums are standard regulations in many Associations. Some of the restrictions seem reasonable on their face, but in reality have unintended consequences. Take the restriction that there can be only one rental per year. You place a tenant in the unit, and the tenant skips after 3 months or gets evicted. The unit owner will not be able to rent the unit to another tenant until the year is up. Was this the purpose of the "one rental per year" rule, or just a bizarre, unintended consequence?
What can the owner or property manager do right now?
It will most likely take either legislative fixes or litigation to get sanity back in the area of Associations and rentals. While some actions by the Association are blatantly illegal and can be rectified by a call to the Association's attorney, others are in that gray area or are such that the Association will not budge. We urge you to report any unreasonable actions by Associations to us, as litigation may soon be in the works, and we may be able to draft some legislation which could solve a lot of problems for unit owners and property managers.
Florida Law pertaining to rentals in AssociationsFlorida Statutes 718.112 i) Transfer fees.--No charge shall be made by the association or any body thereof in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless the association is required to approve such transfer and a fee for such approval is provided for in the declaration, articles, or bylaws. Any such fee may be preset, but in no event may such fee exceed $100 per applicant other than husband/wife or parent/dependent child, which are considered one applicant. However, if the lease or sublease is a renewal of a lease or sublease with the same lessee or sublessee, no charge shall be made. The foregoing notwithstanding, an association may, if the authority to do so appears in the declaration or bylaws, require that a prospective lessee place a security deposit, in an amount not to exceed the equivalent of 1 month's rent, into an escrow account maintained by the association. The security deposit shall protect against damages to the common elements or association property. Payment of interest, claims against the deposit, refunds, and disputes under this paragraph shall be handled in the same fashion as provided in part II of chapter 83.
(Back to Top)
BAD SECURITY DEPOSIT HABITS
by Cathy L. Lucrezi, Attorney at Law
Everybody knows about security deposits, right? You've been handling them for so long, you could do them in your sleep. Nothing new to learn. Yikes - Sounds like a situation ripe for a crisis. Although you learned the basics when you started your career, bad habits may have crept into your repertoire.
Security deposits are handled by every property manager. The basics are learned when one starts in the business and then, for the most part, forgotten as habits become learned. Complacency is dangerous, for some of the procedures that become ingrained are simply wrong. Here are a few "bad notions" to be corrected.
"We use the deposit for repairs during the tenancy if the tenant caused damages."
The deposit can only be disbursed or used after the tenant has vacated and the claims process has been followed. Never can the manager use part of the deposit to do repairs during the tenancy. Never can the manager start cutting checks from the deposit before the claims process has run its course.
The only exception is if both the landlord and the tenant sign an agreement for the deposit to be used in this manner. Even if the parties are willing to sign such an agreement, the landlord needs to consider whether this is a wise move. Certainly, it allows for a "band-aid" fix to an immediate problem, but it also depletes the reserve for other crises that may arise down the line.
"We give the deposit to the owner if he asks to hold it in his own account."
Florida law requires that all security deposits and advance rent shall be held in a Florida banking institution and that the funds not be commingled with other funds. Let's break that down.
The account must be in a bank that is chartered to do business in Florida. Most, but not all, banks that are physically located within the state fit into this category. [Not sure about your bank? Ask them if they are chartered in Florida. They easily know the answer.] If an out-of-state owner wants to hold the deposit in his own account, it needs to meet this criteria. It is not sufficient for the owner to place the deposit in a national bank located in his home state which has branches in Florida.
The deposit and advance rent must be kept separate from other funds. Property managers know this means the deposit cannot be placed in the operating account. Owners are less likely to understand the issue. If an owner is holding a deposit, it must be in an account that is set up for the purpose of holding the deposit. It cannot be mixed in with the owner's other funds in a checking or saving account.
We do not disburse the deposit until both landlord and tenant agree about how it is to be used."
This would be nice to do, but it is not always practical, and it is not required by the law. Rather, Florida law requires a property manager to follow the claims process as well as honor the obligations to the property owner who is her client.
Florida law requires that a landlord return the security deposit within 15 days after the tenant vacates the premises OR that the landlord make a claim against the deposit by sending the written claim by certified mail within 30 days after the tenant vacates the premises. Once a claim is made, a tenant has 15 days to write his objection.
If the property manager receives an objection from the tenant, the property manager must give it consideration. She does not have to accept the objection as the final word on the matter. If the property manager and the owner feel the tenant's objection is without merit, then the property manager may disburse the deposit according to the directions of the owner (which should be consistent with the claim that was made). Such a discretionary disbursement is proper under the law, provided the owner's directions are not unlawful. However, the agent's thankless job of exercising discretion may still carry some risk, even though the deposit would ultimately be allocated between the owner and the tenant in litigation.
(Back to Top)
PREVENTING FLOOD DAMAGE
by Harry Anthony Heist, Attorney at Law
Each year millions of dollars are spent repairing water damage due to bursting toilet, dishwasher, sink, and ice maker supply lines, and washing machine hoses. The washing machine hose alone is one of the top five causes of water damage losses in a home, Oftentimes these losses are not covered by insurance and cost the property owner a significant amount of money in damage repair, and increase the possibility of moisture related problems such as mold and mildew. While there is little we can do about floods and water damage caused by acts of God, there is something we can do right now to minimize the possibility of damage due to the bursting of supply lines and washing machine hoses. The solution is a simple and inexpensive replacement of the cheap worn out supply line and hoses with steel reinforced flexible hoses.
The typical toilet supply line is either metal or plastic. The metal supply lines, while initially workable when installed, are usually made of thin brass tubing that is subject to corrosion over time. These cheaply made pipes are installed at the initial construction of the premises or when a toilet is replaced. Since toilets can last a significant amount of time with only the replacement of the "innards" necessary, the supply line can be extremely old and subject to failure. Due to the corrosion of these lines, they are often not replaced on a regular basis, as removal of the lines will result in a situation in which the valve must be replaced in addition to the lines. The corrosion often welds the cheap valve to the cheap supply line. The other common supply line is the cheap white or translucent plastic/rubber hose which has a fitting attached to each end that enters the valve and the tank. Over time these hoses deteriorate and eventually can fail. In addition to toilets, these cheap supply lines are also used for sinks and faucets, due to the ease of using a flexible line rather than soldering pipes in place. A typical wash tub type of sink will most likely have the plastic/rubber line, and most faucets now are made for the flexible hose, while in the past, they were made for the pipes to be soldered into place.
Washing machine hoses are almost always the standard black rubber type with a fitting on each end. Left untouched, they can last a long time. Some though will deteriorate, harden, or bubble out, and the fittings can corrode on each end. Often a washing machine is owned by the tenant, purchased, used or moved from another location. In the process of cleaning or repair, the washing machine is pulled out from and pushed into the location, causing potentially damaging stress on the hose and fittings. In some cases the washing machine hose is a touch too short and is stretched to its maximum when attached.
A recipe for disaster
The bottom line is that the high pressure pipes in a house, condo or apartment all feed the weak links, those being the supply lines and washing machine hoses. A supply line or hose failure can and often does occur, with the potential to cause massive damage to the premises. If the problem is not detected immediately, the water will continue to run, cascading down the front steps or into the unit below, until such time as it is noticed. By that time it is simply too late.
Can the tenant be held liable in the event of a bursting supply line? In the case of the tenant-owned washing machine, the tenant would most likely be held liable. With that said, can you really collect from the tenant? Will the tenant be able to pay potentially thousands of dollars to repair the premises? It is extremely doubtful. If the tenant has renter's insurance with liability coverage for property damage, there may be some coverage, but the chances of having a covered tenant is slim. Liability to the landlord can be significant. In the event of damage to other premises owned by other parties, the landlord could be held liable, even though there is no real "fault" involved. The interior plumbing, such as supply lines, are owned by the landlord, and therefore the landlord can be responsible for any damage caused to others when that plumbing is faulty.
Renter's insurance and the tenant's personal property
While it is not clear that we can "require" a tenant to purchase renter's insurance, the landlord should do whatever is possible to encourage the tenant to get covered. While most leases contain a clause that states that the landlord is not responsible for damage to the tenant's personal property, this clause may not protect the landlord. The implied warranty of habitability can trump all of this, and it can be argued successfully that a tenant is entitled to live in a place where the pipes do not break, creating that unwanted swimming pool inside the premises. Landlords should never depend solely on a property damage disclaimer clause in the lease, but rather use it as a tool to encourage the renter's insurance purchase.
Vacant homes and Insurance coverage
Many owners would be surprised to find out that a typical homeowner's insurance policy has a clause stating that in the event a rental property is vacant for a certain period of time, there will be no coverage. The largest amount of damage will usually occur in the unoccupied home. Due to the high vacancy rates we are currently experiencing, it is imperative that policies are checked for this type of clause. Many owners are shocked to find out that their insurance did not cover the losses to their vacant property, and in the event of a supply line or washing machine hose failure, the damages will be extensive in a vacant home.
Two action items
1. Reinforced hoses
As of this writing, a reinforced supply line for a toilet at your local building supply store retails at about $5.00. A washing machine hose, for which you will need two, run around $13.00 each. This is a small price to pay for the peace of mind and increased protection you will receive. Buy and install them now. It should be noted that a reinforced steel braided hose can fail and can be made cheaply as well. Other products are on the market that are even stronger but cost more.
2. Turn off the water!
If the rental premises are vacant, the water should be shut off. It is the landlord's and property managers' duty to protect the premises, but often the water is left on. Many municipalities do not shut off the water when the tenant vacates, and this poses a great danger to the home. Unfortunately, with homes where there are pools or irrigation systems, turning off the water is really not a viable option, but whenever you can, make sure the water is shut off.
We would urge every landlord and property manager to take action immediately. Inspections of all hoses are a must. Locating a washing machine at least 4 inches away from a wall can help avoid stress on the hose. Knowing where the shut off valve for the premises is located, and showing the tenant the location can prevent a lot of damage. There are further steps which can be taken, such as the installation of electronic water detection systems which alert the tenant and/or shut off the water supplies in the event of a flooding situation, but at the bare minimum, replace those hoses and supply lines today with some quality hoses!!!
(Back to Top)
CREDIT REPORTS AND "DISMISSALS"
by Harry Anthony Heist, Attorney at Law
In the "Public Records" section of your typical credit report, you will see things like evictions, foreclosures, suits for money and bankruptcy filings. Most application processing companies obtain and compile this data to allow the landlord to make a more informed decision on whether or not they will rent to the applicant. Often you will see that an eviction was filed on the applicant, and the disposition was "Voluntary Dismissal" or "Dismissed". Does this mean that the tenant was not evicted or that everything was amicably resolved? Don't be so sure.
Not all tenants who have evictions filed against them are actually "evicted" by the Sheriff. A number of things can happen. The tenant may vacate the premises voluntarily shortly after the eviction is filed. The tenant may pay all the money owed, and the landlord requests that the eviction be stopped. The tenant may enter into a Stipulation with the landlord, under which payment arrangements are made, and the tenant successfully stays and pays pursuant to the settlement terms. In all these scenarios, the eviction filing will show up in the public record and will be in this public record for many years. Eventually, the eviction matter is "dismissed" and is recorded as such. There are two main ways an eviction is dismissed. It will either be by the landlord's attorney filing a "Voluntary Dismissal", or the court entering a "Dismissal for Failure to Prosecute". In both cases, the public record will show the case as being dismissed, BUT it does not always mean that things were worked out or that the tenant paid the rent. Usually, it is quite the opposite and simply means the tenant vacated and the eviction was not processed further.
The Voluntary Dismissal
When a tenant vacates, the attorney may file a "Voluntary Dismissal". This means that the case is no longer being prosecuted, as no further action is necessary on the file. The landlord got what they wanted, which is possession of the premises. In the situation where a Stipulation is entered into by the parties, the Stipulation may provide that the case will be voluntarily dismissed upon the tenant making the payments as planned. Unfortunately, the landlord, when looking at a "Voluntary Dismissal", usually has no way of knowing why the case was dismissed. Without further information, the best assumption a landlord can make is that the eviction was filed and that the tenant vacated.
Many evictions are filed as Two-Count Complaints. Under the first count the landlord is asking for possession, and under the second count the landlord is suing for money damages. In order to get a judgment for money damages in Count Two, the tenant will have had to be served personally with the eviction action or will have filed an answer to the complaint. Often, neither of these two contingencies occur, and at the end of the eviction or some time after the eviction is over, the attorney will file the Voluntary Dismissal with the court to close the case out. There may even have been a Final Judgment for Eviction somewhere in the public records, but the final action showing up may be that "Voluntary Dismissal as to Count Two"
The Dismissal for Failure to Prosecute
If an eviction is filed, the tenant vacates and the attorney takes no further action, the Clerk of Court's office will eventually send out a notice to the attorney and the tenant stating that the case will soon be dismissed by the court on its own, if the attorney for the landlord or the tenant does not pursue the case any further. This could be six months after the case has been filed, or even more than a year. The attorney will either then file a Voluntary Dismissal closing out the case or do nothing, and the Court will go ahead and dismiss the case. If a Two-Count complaint has been filed and no personal service has been effected on the tenant, the Court will know that the case is probably not going to proceed any further and will want the case dismissed. This dismissal by the court happens to tens of thousands of cases each year. The Court does not want to keep files unnecessarily open and will purge them from their active case system. When the landlord looks at the public record results, it will show as a "Dismissal".
What should the landlord do when the record shows "Dismissed"?
There is a high probability that the applicant had an eviction filed against him or her by a prior landlord and just vacated. It is imperative that if any eviction filing shows up on the public record, the landlord looks into the matter deeply to find out exactly what happened during the eviction. Did the tenant pay and stay? Did the tenant vacate? Did the tenant get fully evicted? These are all questions that can be answered by looking at the Court file further and contacting the prior landlord. Most counties are now online on the internet, and a lot of information will be available to the landlord by simply going to the website of the Clerk of Court where the tenant had the eviction filing and examining the docket.
(Back to Top)
HOLDING OFF ON EVICTING
by Harry Anthony Heist, Attorney at Law
Filing an eviction is not always something that you look forward to doing. Well, there are some evictions when you got some joy out of filing. Admit it! With an eviction comes expense, uncertainty, a higher possibility of tenant damage, delays and more time where the tenant simply lives rent free. If you are the landlord and you have no one to answer to, you can delay the eviction filing as long as you want. The only usual consequence is that you will go a longer time without receiving rent. The problem arises when you are managing property for another. Where do you draw the line? When do you file? Do you have a procedure or guidelines? Most property managers do not have a procedure or guidelines in deciding when to file an eviction. Usually there is nonpayment, false promises, a Three day Notice, more tenant excuses, a partial rent payment acceptance, a bounced check or just about any other thing a tenant can and will do to delay an eviction. Often the property manager falls for some of this, and the result is a serious delay in filing the eviction.
Creating a procedure for the eviction decision
There is no set date on which you should file an eviction. Usually rent is due on the first, late charges begin on the 6th, and the property manager decides to take action some time after the 20th of the month, or even later. The decision to file is often based upon market conditions, prior rent payment history, and unfortunately, the promises or statements made to the property manager by the tenant. While many tenants will often come through and pay the rent, there will be many instances when they will deceive you, and now you are into the next month. The property owner, finding out that you waited a significant amount of time, can and will get angry at you for not taking action sooner, and could try to hold you responsible for lost rent, or allege that you failed to manage their property properly and file a FREC complaint against you.
Contacting the property owner
Hiring an attorney to file an eviction on behalf of a property owner without the property owner's consent is dangerous. Whenever you file an eviction, you are subjecting yourself to the Court, potential counterclaims, defenses, motions and ultimately liability to pay damages, attorney's fees and costs to the tenant's attorney if the tenant prevails. A simple eviction could end up being a Supreme Court case. We feel that even though the property management agreement may have given you permission to file an eviction on behalf of your owner, it is best to get the owner's consent in writing. The conversation with the owner to get this consent is where a problem lies.
Getting owner consent
Making the dreaded call to the owner to see if he wants an eviction filed is certainly not a pleasant task. After all, you probably approved the tenant and put that tenant in the unit, so in his eyes, it is your entire fault. When hearing your information regarding the situation and the tenant's promises, etc., the owner may wish that you "hold off on filing the eviction" for a bit, or wait until such time as the tenant has promised to vacate. This may be a few days or a week or more. While there is no problem holding off on an eviction, that same owner who told you on the phone to hold off will turn against you when the tenant does not come through with the payment as promised or vacate as promised. The owner, now angry about the decision to hold off, can try to blame you, the property manager, for the delay. Unless you have something in writing from the owner, it will be hard for you to defend yourself from an owner's allegation that you should have filed the eviction sooner. It is imperative that you either get something in writing from the property owner, either by fax or email, and send a confirmatory letter to the owner in the event the owner refuses to or fails to get you something in writing. We recommend the following "confirmatory letter" to be used whenever an owner tells you to hold off on filing an eviction.
SAMPLE EVICTION HOLD OFF CONFIRMATORY LETTER
Dear Property Owner: As of today's date, ____/____/____ we have not received rent for the month of ______________ for your property located at ______________________. As per our telephone conversation of ___________ at _______ am/pm, you have instructed us to hold off on instituting eviction procedures until:
1. _______________ (insert date) or
2. ____ Further written notice from you.
Please note that our attorney charges approximately $__________ in fees plus costs in the amount of $___________ to file an uncontested eviction. An eviction generally takes between 21 to 30 days, but many tenants will vacate shortly after they are served with the eviction paperwork.
We will send the file to the attorney on the date you have agreed to above, or await your written instructions before proceeding.
(Back to Top)
THE END OF TENANCY WALKTHROUGH INSPECTION
by Harry Anthony Heist, Attorney at Law
A common request by the vacating tenant is that she accompany you during the move-out inspection. Sounds reasonable enough, but the practice of walking a unit with the tenant upon move-out is fraught with problems.
Why is the tenant making this request?
There is a good chance that a previous landlord of the tenant took all or part of the tenant's security deposit in a prior tenancy, and the tenant is now expecting that you will do the same. The tenant is afraid that you may charge her for something for which she is not responsible, or damage which she did not do. This should be your first clue that the tenant is suspect. The tenant may be hiding something, and if he accompanies you on the walk-through, he may be successful. The tenant may be intimidating, and he knows that you may not charge him for something due to the intimidation factor. Finally, the tenant may just be an honest person who feels that it is best that she do the walk-through with you, so she can show you how nice everything was left. Be afraid. Be very afraid.
The typical accompanied walk-through scenario
Here you are, walking through a home with the tenant behind you. There is a hint of Febreze in the air. You feel a bit uncomfortable and maybe even a little intimidated. Will you look carefully inside the oven? Will you inspect the bathroom? Open drawers? Smell the carpet? Most likely not. You smell some cigarette odor but really don't want to mention it. The walls look yellow, but you are not sure if they were this color at move-in. You will not want to engage in any controversy or altercation with the tenant, and even if you think there may be a charge for some damage, you avoid bringing the issue up. Probably you will want to get the inspection over with as soon as possible and will be asked the usual question, "When will we be receiving the security deposit back?" You tell the tenant that everything looks fine, and that she will get her deposit back within a couple weeks. This is a huge mistake. She will hang on these words and not let you forget them.
Fast Forward one week
Your maintenance person has headed over to the unit to do the usual cleaning, touch up and the like. Upon entering the hot unit, as the electric has been turned off, he immediately detects an odor of pet urine and smoke. Walking around the unit, the pet urine odor become stronger, and he kneels down in a corner and smells the carpet, only to come to the conclusion that it is cat urine. Standing up, he sees fleas jumping on his pant legs. This is interesting. The tenant was not supposed to have any pets, and no cat was present during the walk-through inspection. Walking through the house, he lifts up a throw rug; under the rug is a large bleach stain on the carpet. The walls seem to have been touched up, and it is quite evident, as the paint is bubbling up in each spot where the new paint was applied. Your maintenance person heads out back and sees a huge oil stain on the floor of the driveway, and behind a newly planted bush in the patio area, he notices that the vinyl siding is warped from a "grill gone wild". But wait. You told the tenant everything looked fine and that she would be getting back her deposit.
By initially telling the tenant that everything looked fine, you created an expectation on the tenant's part that the security deposit would be returned. This will be used against you in the event that you make a claim on the deposit. Once the tenant receives your claim, she will be sure to dispute the claim, and if you were to go to court, you would need to explain to the Judge why you said what you said, and why you made a claim contrary to those statements. Often there is undiscovered damage which becomes evident only later when the property is properly inspected at your leisure by you or your staff. Proper inspection is the key here, and no property can be properly inspected with the tenant in tow.
You need to develop a firm policy and procedure on inspecting the premises upon move-out. This will mean that never will you inspect a property upon move- out with the tenant present. Immediate inspection upon move-out, without the tenant, is a must, but more importantly, a later inspection when the air conditioning may be off is in order, so previously masked odors can be detected. All throw rugs should be moved and inspections made of all the appliances, closets, garage, storage areas and every other area which may not be immediately apparent. The next time tenants ask or demand that they be present with you on the move-out inspection, simply tell them that it is not your company policy to allow this, and if they are afraid you will treat them unfairly, they should take their own photographs of the premises.
(Back to Top)
TENANT DEATH AND THE NEW LAW
by Harry Anthony Heist, Attorney at Law
For many years, landlords had to deal with a glitch in Florida law when the last remaining tenant died leaving personal property in the rental unit. Can the property be disposed of? Is the unit tied up forever? Can the unit be rerented? Suppose an estate is not opened? All these problem have been solved due to the passage of legislation which modifies Florida Statutes 83.59 and 83.67, the sections that define when a landlord may take possession of the property and how to deal with abandoned property. This legislation was drafted and promoted by the Florida Apartment Association as a major legislative priority for 2007. We are all thankful to the bill sponsors, Senator Gwen Margolis and Representative Bill Galvano, as it became law on June 15, 2007. NOTE - YOU MUST NOW MODIFY OUR LEASE TO UPDATE IT TO THE NEW LAW
The Old Law
To put it simply, there wasn't any law that specifically addressed the tenant death/abandoned property situation. When a tenant died, if the family of the deceased were to have an estate opened up and a Personal Representative (in some states this is called an executor) were appointed, the landlord could simply deal with the Personal Representative, agree that the unit was abandoned or surrendered, serve notices on the Personal Representative or actually file an eviction on the deceased tenant through the Personal Representative. While this seems simple enough, in most cases no estate was ever opened by the relatives of the deceased, and the landlord was left with no real option but to hire an attorney at great expense and force open an estate, after which a Personal Representative would be appointed by the probate court.
Why would the relatives usually not open up an estate?
Most people as they age begin to do some basic estate planning which usually includes placing any assets such as bank accounts and stocks in joint names with a relative. Upon death the money now belongs in full to the joint account holder(s) or to a beneficiary on the account. Upon death, this leaves the living relatives having to deal with personal property only, and there is no real benefit to or need by the relatives to open up an estate.
Would the landlord "force open an estate"?
Most landlords did not choose this route due to the time and expense, and simply placed the remaining items into storage and waited until they could not take it any longer. They then disposed of the property, always wondering and worrying if a relative would later appear claiming that the landlord disposed of some valuable property which the relative was entitled to under a will or otherwise. This could have exposed the landlord to serious liability and a major lawsuit. Fortunately, that worse case scenario rarely happened, since when the tenant died, the relatives often descended on the rental unit, gained access somehow, took what they wanted and left, leaving unwanted personal property behind.
The New Law
Florida Statutes 83.59 defines when a landlord has the right of possession of the property. The landlord has the right of possession after an eviction has been completed, when a tenant surrenders the premises and when the unit has been abandoned. The new law adds to the definition of abandonment:
FS 83.59 (d) When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been notified in writing of the existence of a probate estate or the name and address of a personal representative. This paragraph shall not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s.202, s. 221 (d) (3) and (4), s. 236, or s.8 of the National Housing Act as amended.
The Mechanics of the Tenant Death
Under the new law if the following is in place, the unit is considered abandoned.
1. The last remaining tenant is deceased
2. Personal property remains on the premises
3. Rent is unpaid
4. At least 60 days have elapsed since death
5. The landlord has not been notified in wiring that there is an estate opened or that a personal representative has been appointed.
Why do we need to wait 60 days?
While it would have been ideal if this time period was shorter, it takes time for an estate to be opened, and this allows the relatives the time to hire an attorney and effectuate this if they intend to do so, and time for the landlord to be notified.
Now what about the abandoned property?
Getting possession of the unit is indeed the landlord's primary goal, but now we still have abandoned property left behind; prior to the new law, this was the main problem. This is dealt with in 83.67, which sets out when and how abandoned property can be removed. The amended 83.67 now allows the removal of personal property if the landlord takes possession of the unit by "recovery of possession of the dwelling unit due to the death of the last remaining tenant in accordance with 83.59(3) (d)". As you can see, now both these statutes tie in nicely to allow for the unit to be considered abandoned and allowing the landlord to dispose of the abandoned property.
Some final thoughts
Since a landlord will not have to deal with this situation on a regular basis, we recommend that upon a tenant death, the landlord contact an attorney to make sure all the steps have been followed. As the statute indicates, some federally governed programs are excluded, and legal advice is always recommended to avoid a potentially expensive mistake.
NEW UPDATED WORDING FOR YOUR LEASE
BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY.
(Back to Top)
THE SECURITY DEPOSIT CLAIM
WHAT THE TENANT OWES
by Harry Anthony Heist, Attorney at Law
One of the most common areas of confusion regarding security deposits is knowing what to put on the Notice of Intention to Impose Claim on Security Deposit, hereinafter called the "Notice", the form which according to FS 83.49 must be sent out to the tenant within 30 days of the tenant vacating the premises. We find landlords do their best to figure out what the tenant owes, either due to breaking the lease, or simply leaving at the end of the lease with damages to the premise or otherwise owing the landlord money. The problem is that this form only is dealing with the security deposit, or in some cases, advance rent that the landlord is holding. This is not a "final bill" to the tenant or the total amount a tenant will possibly eventually owe. This common misconception causes landlords to frequently fill out the Notice incorrectly.
What amounts are put on the "Notice"
A security deposit is the amount the tenant owes to cover damages to the premises, all monies owed to the landlord under the terms of the lease and for full and faithful performance of the lease terms.
1. The tenant breaks the lease by vacating
If the tenant simply "skips" out of the lease, the landlord can charge the tenant rent that is owed at the time the tenant skips out. The landlord cannot accelerate the rent. Acceleration occurs when the tenant is immediately charged for all the remaining rent owed under the terms of the lease. While the lease may provide for this, and it seems logical, acceleration is not a specific collection right granted to landlords under Florida default remedies. A "skipping" tenant owes rent due at the time of the skip, damages to the premises which exceed ordinary wear and tear, and any other amount legally chargeable to the tenant under the lease terms. If a tenant paid rent for June and skipped out June 20, it would seem that the tenant would owe no rent, and that no rent could be placed upon the Notice. This is certainly not the intent of the statute, and since the landlord has 30 days to send out the Notice, by July 1, the tenant will owe another month's rent which can and should be put on the Notice. You do not want to be returning the full security deposit if the tenant skips out on the lease, as he will owe you rent. As you can see though, if the unit stays vacant, the tenant will owe you more rent, presumably until the earlier of the end of the lease or until the unit is re-rented. How can you put this on the Notice? You can't, and you don't need to. The notice is only dealing with the SECURITY DEPOSIT and ADVANCE RENT funds!!!!
2. The tenant is evicted
If your tenant is evicted, you will be charging them everything in paragraph 1 above, plus your attorney's fees and court costs, if your lease states that you are entitled to these sums
3. The tenant vacates at the end of the lease
If your tenant vacates as planned at the end of the lease owing no rent, you will not be charging the tenant any rent on the notice, just damages that exceed ordinary wear and tear, and any other sums due under the terms of the lease.
Sums owed that exceed the Security Deposits
Often a tenant will owe significant sums that exceed the security deposit, or after you send the Notice, you discover at a later time some further damage that was not caught or actually hidden from the landlord. If you already claimed the entire deposit, this is not relevant to the prior Notice. While you do want to list on the Notice everything possible that is owed by the tenant within the 30 days window you have to send the Notice, if there are other amounts that the tenant owes you as time goes on, these amounts will still be owed to you by the tenant.
The Danger of the "Notice"
As many landlords incorrectly think that the amount on the Notice is the end all total amount owed, the tenant also may think this. If a landlord were to later sue a tenant for accrued rent or later discovered damage, the tenant could conceivably convince a judge that since it was not on the Notice, it is not owed. This common misconception can be cleared up by placing the following wording on the bottom of the Notice. This wording, though not required by Florida law, is a reminder to the tenant and to the landlord that the amounts you have listed on the Notice may not be the actual total amount that the tenant will owe you.
This Notice Of Intention to Impose Claim on Security Deposit does not waive or limit any of landlord's rights to damages or amounts due which may exceed security deposit or amounts listed on this form.
(Back to Top)
THE "LAST KNOWN ADDRESS"
by Harry Anthony Heist, Attorney at Law
We have all heard the expression "last known address", but much confusion abounds regarding its actual definition or how it should be defined in the landlord/tenant law context.
When does the "last known address" become relevant?
According to Florida Law, the landlord must send out the Notice of Intention to Impose Claim on the Security Deposit or refund any money that is due to the tenant within a 30 day time frame or 15 day time frame respectively. This is to be sent to the "last known mailing address".
Florida Statutes Section 83.49 provides as follows:
"¦(3)(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address of his intention to impose a claim on the deposit and the reason for imposing the claim.
The "last known mailing address"
FS 83.49(3)(a) clarifies the issue stating that it is the "last known mailing address". The usual last known mailing address will be the address of the premises or the address that you have been sending correspondence to the tenant while the tenant was living on the premises or any other address that the tenant has given you to send correspondence to the tenant by mail.
1. The property where the tenant resided : If the tenant has not given you any other address to which to send mail, this will be the "last known mailing address". Of course, the tenant no longer resides at the property, but this is where you should send your Notice. The tenant may or may not have put in a forwarding address, but this is not your problem. The law requires you to send out the notice. It does not require you to make sure the tenant actually receives the notice.
2. The address where you have been sending correspondence : The tenant may have given you a mailing address at the beginning or during the tenancy, requesting that you send all mail to that address. Commonly, tenants and landlords alike do not like to use the exposed street side mailboxes due to the high incidence of theft from these mail boxes, resulting in the use of a post office box at the actual post office or at a mailbox/shipping store. If this is the only address you have, this is the "last known mailing address".
3. The address the tenant gives you when vacating: Often a vacating tenant will give you his or her new address. This may be done by phone or in writing. If the tenant has requested that you send any correspondence to this new address, do as you are instructed. If it was a verbal instruction, denote the date and time of the request in your file, and urge the tenant to give you this instruction in writing.
(Back to Top)
AMENITIES AND LIABILITY - NO GOOD DEED GOES UNPUNISHED
by Harry Anthony Heist, Attorney at Law
Many apartment communities today have fitness centers, business centers, pools, gas barbeque grills, tennis courts and other amenities for their tenants to enjoy. These amenities are often a great draw in attracting tenants to a particular community. In most cases, the amenities, most of which are advertised in print, are available for the use of the tenant, operable and in existence at the time of move-in. However, a problem arises when an amenity is not available to the tenant for some reason. That wonderful amenity that you advertised becomes a nightmare.
The Amenity Failure
In the case of a pool, a leak may require major work to be done to rectify the problem. There have been many cases where the pool is emptied and the high ground water table has literally pushed the pool up out of the ground, causing a major repair necessity. A pool does not just pop back into the ground!! Fitness centers are often completely equipped with state of the art exercise bikes, treadmills and other mechanically and electrically operated devices. These devices fail in time and need expensive repair. Business centers for the tenant's use are often set up with a number of computers and are subject to viruses or power surges which completely disable the equipment. At some time, some amenity on the property shall fail, and the tenants will rise up.
Repairs to the Amenity
Repairs of a particular amenity are often done quickly, and the tenant experiences little to no inconvenience. In other cases, repairs take a significantly longer period of time, sometimes at great expense to the apartment community. Some owners who are under severe financial burdens right now are choosing to push off some repairs almost indefinitely. An owner who is considering selling may not wish to invest any further money, as the return on sale may not be there. There are times, as in the pool case, when a simple repair could result in a major multi-month project in which the pool is completely inoperable. Since most properties only have one pool, the problem is obvious.
The Tenant's Expectation
Florida law does not state that a tenant has a right to a working pool, exercise bike or business center. This is all governed by contract. While the lease agreement may not specifically state anything about a pool, fitness center or business center, other than in the rules and regulations, these amenities are advertised to the prospective resident as being part of the "package". The applicant who becomes the tenant has a reasonable expectation that the amenities that are advertised or which he or she observes while on the property tour will be available for use throughout the tenancy. These expectations are by no means unreasonable. The question then arises as to whether the amenities advertised are in fact the "basis of the bargain", or stated differently, did the tenant decide to rent at this particular apartment community because of the existence of a certain amenity advertised or observed. It is extremely easy for the tenant to make the case that the fitness center, pool or business center was indeed the "reason" why he or she chose the particular apartment community. A health conscious tenant may have chosen your apartment community due to its state of the art fitness center. A tenant in physical therapy may have been drawn to the community because of the pool. A person without a computer may have been sold on the business center. This creates a serious obligation on the part of the apartment community to make sure the amenity is in fact working at all times, or at least most times.
Amenity Failure Actions
Fortunately, most tenants do not even use the pool, fitness center or business center, so a breakdown will not inconvenience most of the tenants, but for the tenants who do use them, you have a problem on your hands. Since Florida law does not address amenities or compensation, a tenant may or may not be entitled to a credit in the event of an amenity failure; the management or owners must come up with something to keep the tenant from taking the matter further and potentially suing in a court of law. The first step will be to rectify the problem immediately, if possible, but unfortunately, this may not always be a viable solution. Each situation needs to be dealt with on a case by case basis, but it is crucial to show that the landlord is taking reasonable steps to mitigate the problem and make the tenant whole again.
In the case of an extended pool problem, the apartment community may enter into an agreement with a neighboring apartment community for the temporary use of its pool for some compensation by the apartment community. Tenants may be given vouchers to use a community pool, if one is in fact available, or temporary membership to a local gym may be an appropriate option. Finding a contractor and paying more money to get the job done quicker could prevent lawsuits.
Fitness Center Solutions
In the case of a minor fitness center issue, such as an inoperable piece of equipment, we recommend that a replacement piece of equipment is rented immediately until the repair can be effectuated. Many companies are in the business of renting commercial grade exercise equipment. In the case of a serious fitness center problem, such as when the fitness center is completely unusable by the tenant, an agreement could be worked up with a nearby gym to provide low cost temporary memberships to tenants who may wish to use the gym. Many gyms will jump on this opportunity to get people in the door, in the hopes that they will join permanently in the future.
Most business center problems can be rectified with the expenditure of a relatively small sum of money. If the issue is simply internet access by a resident who already has a computer, a basic internet account can be purchased for the tenant to be used in his or her unit, or at a bare minimum, at least one PC should be set up with internet access and a basic printer until further repairs can be made.
Potential Legal Ramifications
A tenant who is not receiving all that was bargained for in a deal can sue for breach of contract, and in the event certain things were advertised, false advertising. The tenant can also attempt to withhold rent or even break the lease agreement and walk. A property manager may be tempted to compensate one tenant for her inconvenience, but this could unleash a floodgate of tenants asking for the same compensation. This is when prompt contact with your attorney can potentially avoid a major blow-up on the property. In the worst case scenario, a tenant can hire an attorney who will institute a class action lawsuit against the property. While this is rare, class actions are not uncommon in consumer situations, so YOU HAVE BEEN WARNED!
The Amenities Addendum Solution
A simple addendum signed by all tenants can significantly minimize the landlord's risk in the event of an amenity loss or malfunction. We cannot forget that the main thing that a tenant is renting is an APARTMENT. The amenities are indeed a bonus to the deal, but part and parcel to the deal are the tenant's expectations and your responsibilities. By using the addendum below, you MAY be able to significantly decrease your risk of problems in the event of an amenity problem. Remember, nothing is guaranteed. Please read it carefully.
AMENITIES AND CONSTRUCTION ADDENDUM
It is agreed and understood by all Tenants(s) that all amenities on the premises IF ANY EXIST NOW AND IN THE FUTURE including but not limited to balconies, patio(s), pool(s), hot tub(s), fitness center(s), gas grill(s), business center(s), tennis court(s), activities center(s), clubhouse(s), playground(s), playground equipment(s) or any other as specified herein for Tenant(s)' use may be altered, may become inoperable, unusable or out of service for the purposes of repairs, damage by storms or acts of God or man, rendered unusable or removed at any time without notice and without consent of the Tenant(s). Tenant(s) agree to hold owners, their agents and assigns, harmless for any liability arising from the alteration, removal or failure to be able to use any and all amenities. It is understood by all parties that this agreement has been entered into with good consideration and that it has been read in its entirety.
Amenities for the purpose of this addendum may also include and are not limited to:
Tenant(s) understand that repairs or upgrades to the premises may possibly be made and agree to hold the owners, management, agents, employees and assigns harmless for the absence of or the delay in the availability of any amenities which may have been advertised, appear on any advertising materials, existed at the time of move-in or represented to by any of the staff. Tenant(s) agree to hold the owners, management, agents, employees and assigns harmless for any inconveniences, including but not limited to noise, construction traffic, dust, construction equipment, temporary utility outages, etc., and agree that they cannot break their lease, withhold rent or receive a rent abatement because of any construction problem and/or the lack of amenities unless otherwise agreed to in writing.
SIGNATURE AND DATE AREA FOR MANAGEMENT AND TENANTS
(Back to Top)
THE TENANT AND THE ELECTRIC BILL
by Harry Anthony Heist, Attorney at Law
In most annual rentals, the tenant is responsible for paying the electric bill. In addition to being responsible for paying the bill, the tenant is often given instructions by the landlord and agrees in the lease agreement to place the electric bill into their name upon move-in. This requires the tenant to make a call into the electric company and/or go to the electric company office to give the relevant information and pay a utility deposit, which varies by company providing the electric. In a perfect world, the tenant does just that. Prior to move-in they get the electric placed into their name and pay the bill. What happens when they do not pay the bill? In many places, the electricity is simply shut off and the tenant is without electricity. This is the tenant's problem, and no liability to the landlord occurs. The tenant may then pay the bill and have it reconnected, steal the electricity from an adjoining tenant, put jumper wires on the electric meter or completely live without electricity. In some areas of Florida and in many apartment communities, the electric will revert back into to the name of the apartment community, and the apartment community will later be notified that this has occurred, sometimes weeks later. This is to prevent a unit from being without electricity. While we cannot control what the tenant is "supposed" to do, we can take action, but must be careful that we do not fun afoul of the law.
Florida Law and Electric
Florida law specifically states that a landlord shall not directly or indirectly cause interruption in the tenant's electric service.
FS 83.67 Prohibited practices. (1) No landlord of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord.
Direct interruption would be when the landlord shuts the electric off by actually disconnecting it from the rental unit (this is rarely done but happens!), or more commonly instructs the electric company to shut the electric off. A landlord who discovers that the tenant has not placed the electric in the tenant's name could easily feel that it is correct to tell the electric company that the electricity is not to be in the name of the landlord, but rather that it must be in the name of the tenant. However, this can lead to a direct shut off. Further, the landlord may have had the electric bill revert back into the landlord's name, as is often the case in apartment communities; notifying the electric company that this is not proper and that it should be in the tenant's name will result in a direct shut off to the tenant. In the single family home setting, sometimes the property owner who lives out of state receives an electric bill, is furious and calls the electric company for a shut off. Does it seem fair to the landlord who now is stuck paying the bill? No, but we never said the law was always fair.
An example of indirect interruption occurs if the landlord receives an electric bill on an account that should have been in the tenant's name, and the landlord simply fails to pay it. Here the landlord has full knowledge that the tenant failed to place the account in his or her name, and by the landlord not paying it, the account will get shut off. Again, this seems unfair to the landlord, but is the law.
Steps to take if it is discovered that the tenant is not paying the electric
Once it is discovered that the tenant is not paying the electric bill, the tenant needs to be notified immediately by the use of a 7 Day Notice of Noncompliance with Opportunity to Cure. The notice may state the following:
You have failed to place the electric utility service account into your name as required by your lease agreement, and you owe the landlord the sum of $__________ at this time for outstanding electric bill(s).
Steps the Landlord can take
While it is beyond the landlord's immediate control if the tenant steals electric, or in the event of reversion of the account back to the landlord, there is one thing that often occurs which is indeed completely in control of the landlord, but is often missed, because of the landlord's forgetfulness or misplaced trust that the tenant will do what the tenant is "supposed" to do. Due to the need for electric to operate pools and a/c units, most landlords do not wish to have a time period when the electric is off. The result is that the electric is in the landlord's name until such time as either the landlord directly has it shut off, OR the tenant directly has it placed in the tenant's name. When a tenant moves into a rental unit and the electric is on, they will often happily sit there until the electric is shut off. But wait. How can the landlord have it shut off? Did not we just say that was illegal? The answer lies in timing. If the tenant is notified in writing that the landlord will be taking the electric out of his or her name no later than a fixed date, and the landlord does indeed do this, it is doubtful that a prohibited practice or indirect termination as envisioned by the statute will occur. We recommend the following wording in a notification to be given to the tenant prior to move-in. This can be placed directly on the INFO SHEET that the tenant should receive from the landlord, stating the names, phone numbers and addresses of the utility company, garbage pick up days, etc. Here is some recommended wording:
Tenant understands and agrees that the electric service is currently on in the Landlord's name. Tenant agrees that the Landlord shall order the electric service be taken out of the name of the Landlord within 3 days, and Tenant shall place the electric service in Tenant's name and pay all necessary deposits.
So you notified the tenant prior to move-in. Now, don't forget to notify the electric company immediately in writing, and get a confirmation from them!! Property managers who use checklists rarely if ever forget to do this. As a friendly reminder, if you shut off someone's electric after they have taken occupancy in violation of the law, WE WILL NOT REPRESENT YOU!!
(Back to Top)
DISHING THE DISH - SATELLITE DISH ISSUES
by Cathy L. Lucrezi, Attorney at Law
DISHING THE DISH
Although it is difficult to determine who is winning the race between cable companies and dish networks, there can be no question that more and more tenants are opting to get their entertainment through a satellite dish. Can the landlord refuse to let the tenant install a satellite dish? Are there any restrictions?
The Federal Communications Commission
In 1998, the Federal Communications Commission enacted rules to help TV viewers (and the satellite television industry). The rules prohibit unreasonable restrictions that impair the installation, maintenance or use of satellite dishes that are less than one meter (39") in diameter. The rules state that a landlord cannot unreasonably deny a tenant from having a satellite dish on the premises that is within the leasehold and under the exclusive use or control of the tenant. The rules apply to landlords, homeowners' associations, and condo associations (among others).
Placement of the Dish
The landlord cannot stop the tenant from erecting a dish if it is placed in an area that is under the exclusive control of the tenant. That means areas where only the tenant (and no one else) has the right to be present. Premises include the interior of the unit, balconies, balcony railings, terraces, patios, yards or gardens.
Premises DO NOT include outside walls, roofs (unless they are under a tenant's exclusive control), window sills, or other common areas. If the tenant wants to erect the satellite dish in a common area, then the landlord can prohibit the dish.
In the case of a condominium, all property is considered to be common area except the air space of the units and the portions designated as limited common elements (such as a patio or balcony). In other words, condominiums may restrict satellite dishes from being in the common areas. However, the resident has the protection of federal law if he wants to install the dish within the boundaries of the condo unit.
The tenant is liable for any liability arising from the installation of a satellite dish. This is because the dish is located only in a location that under the exclusive control of the tenant. The FCC includes this in its rules.
A landlord can require that the installation of a satellite dish be done in a way that does not damage the premises. A landlord can prohibit drilling holes in walls, using nails or screws, piercing roofs, or causing any damage more than ordinary wear and tear. Clamps or straps should be permitted.
Hopefully, the lease requires the tenant to obtain written consent of the landlord before beginning any alteration. Such a provision would give the landlord a way to protect his property. Property managers should check for installation equipment, and if present, take photos.
(Back to Top)
BUT CONTINUES TO PAY THE RENT
by David Robert Weisse, Attorney at Law
If a tenant who surrenders the rental unit continues to keep the rent current after giving up the right of possession, does the landlord have the ability to retain the security deposit or last month's rent? When does the statutory claim letter have to be sent? To answer these questions, it is important to first examine Florida Statute 83.49 in conjunction with Florida Statute 83.595.
Florida Statute 83.49 (3)(a) in part provides, "Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address of his intention to impose a claim on the deposit and the reason for imposing the claim.
The following is the full text of Florida Statute 83.595:
83.595 Choice of remedies upon breach by tenant.
(1) If the tenant breaches the lease for the dwelling unit and the landlord has obtained a writ of possession, or the tenant has surrendered possession of the dwelling unit to the landlord, or the tenant has abandoned the dwelling unit, the landlord may:
(a) Treat the lease as terminated and retake possession for his own account, thereby terminating any further liability of the tenant; or
(b) Retake possession of the dwelling unit for the account of the tenant, holding the tenant liable for the difference between rental stipulated to be paid under the lease agreement, and what, in good faith, the landlord is able to recover from a reletting; or
(c) Stand by and do nothing, holding the lessee liable for the rent as it comes due.
(2) If the landlord retakes possession of the dwelling unit for the account of the tenant, the landlord has a duty to exercise good faith in attempting to relet the premises, and any rentals received by the landlord as a result of the reletting shall be deducted from the balance of rent due from the tenant. For purposes of this section, "good faith in attempting to relet the premises" means that the landlord shall use at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the landlord uses in attempting to lease other similar rental units but does not require the landlord to give a preference in leasing the premises over other vacant dwelling units that the landlord owns or has the responsibility to rent.
A landlord legally acquires possession of a rental unit three different ways: eviction, surrender or abandonment, all three of which are listed in Florida Statute 83.595(1). Regardless of how the rental unit is reacquired, one constant remains: the tenant's right of possession is terminated. Does this mean the lease is "terminated"? Based on the wording of the statute and which collection remedy the landlord chooses in a lease-break situation, the answer will only be "yes" if the landlord takes back the unit on "his own account". Under Florida Statute 83.59 (3) (a), the landlord's obligation to send the claim letter is not triggered until the premises are vacated for "termination of the lease."
Therefore, if the landlord chooses to retake possession on the account of the tenant, or "stand by and do nothing", then the lease is technically not terminated. If a judge accepts this position, then the landlord's obligation to send the claim letter is not triggered until a replacement tenant is found, or until the lease expiration date occurs. Therefore, if a tenant clears the unit out and turns in keys because of a great new job in California, but continues to keep the rent current, the landlord should be able to keep the deposit in escrow until true termination of the lease occurs, and then make a decision at that point (within 30 days) as to disposition of the deposit. Similar logic would apply to last month's rent being held in escrow. It is important that the landlord be able to document reletting efforts, not only to show that the landlord has met its duty to use good faith in finding a replacement tenant, but also to support the landlord's decision in holding off from sending the claim letter, when there may not be any immediate claim when the tenant vacates early.
A related issue occurs if a tenant is evicted. The landlord still has the right under Florida Statute 83.595 to hold the tenant to the lease balance when an eviction occurs. If the landlord elects to find a replacement tenant on the account of the tenant after the eviction is finalized, a very good argument could be made that the landlord can hold off sending the security deposit claim letter in accordance with the above guidelines. Nevertheless, our office recommends sending a claim letter within 30 days of the writ being executed, since after most evictions are finalized, at least the security deposit amount is owed, and some judges may be reluctant to accept an interpretation of the statute which allows the landlord to delay in sending a claim letter after the right of possession has vested back to the landlord. However, the better argument is that termination of the tenant's right of possession and termination of the lease can be two very different points in time.
(Back to Top)
UNCLAIMED SECURITY DEPOSIT FUNDS PROCEDURE
by Harry Anthony Heist, Attorney at Law
Your tenant has vacated, you sent a partial or full refund of the security deposit by certified mail, and it is returned to you unclaimed. What do you do with the funds? Hold them forever? Disburse them to your owner or company? Florida law specifically deals with the procedure a property manager must take with these funds in Florida Statute 717, the Florida Disposition of Unclaimed Property Act.
What type of funds will you be holding
Most commonly, you will be holding the security deposit or a partial security deposit. Other deposits may include but are not limited to the pet deposit, key deposit or a deposit the condominium association may have required.
Are these funds unclaimed?
Typically, you have sent out the Notice of Intention to Impose Claim on Security Deposit, and this has come back to you "unclaimed". The refund check is still in the envelope. In other less common situations, there is evidence of receipt of the certified mail, as you have received back the return receipt "green card", but for some unknown reason, the check is never cashed, and each month it shows up in your escrow account as an outstanding sum paid but not cashed. This can be an annoyance as time goes on, as this will inevitably occur in property management multiple times.
Since you may not have a forwarding address, you have sent the funds to the "last known address," which is indeed the home or apartment which the tenants were renting. Since many vacating tenants do not put in a forwarding order with the post office, it becomes difficult to discover a new address absent notification from the tenant. This is where some investigation needs to begin, and this investigation can save you significant time and aggravation later. In the first place, you need to send it again by regular mail, unless it was sent back to you with notification that the tenant had moved and no forwarding address is on file.
The "Certified Mail Conundrum"
It is quite possible that the certified mail did indeed get forwarded to the new address, was refused, unclaimed and still never made it back to you, or was in fact claimed, but the "green card" did not show that the mail had been forwarded. There is a strange aversion by many people to claiming certified mail which results in a large percentage of the certified mail never making it to the recipient. Many individuals feel that by accepting the certified mail, something "bad" will occur to them, hence the certified mail is refused. In many other cases, the certified mail is indeed accepted, but the "green card" somehow never makes it back to the sender. There seems to be no reasonable explanation for this common occurrence, other than often the postal worker fails to remove the "green card" from the back of the envelope, and the recipient then has both the green card and the certified mail in his or her possession. We recommend that you first send the Notice of Intention to Impose Claim on Security Deposit and refund check by certified mail, but if this is returned to you, you follow this up with regular mail of a copy of the Notice of Intention to Impose Claim on Security Deposit and a replacement check; the original certified mail envelope should be left intact (unopened), and the check within that envelope can be voided on your check records. You are not required to send a refund check by certified mail. You are only required to send the Notice of Intention to Impose Claim in this fashion.
Locating the Tenant
In the old days, you could simply find out the forwarding address from the post office if there was one on file. This is not possible anymore. Now comes the time to begin to dig into the file to see if the application gives any clues where the tenant works or worked, emergency numbers, or any other names or addresses you can find which you can call or write to possibly gain a proper address. There is no prohibition on calling any of the numbers you may have in the application or writing to any addresses you may have, since you are now simply trying to return some money, and you are not engaged in any collection activities. You may glean some information by talking to neighbors of the former tenant as to the new address. Remember, you have already sent the Notice of Intention to Impose Claim on Security Deposit out. You DON'T need to send it out again. You simply need to send back the money.
Cutting a new check
If you have previously sent out the refund check and it has not been returned to you, you certainly do not want to cut a new check to the former tenant unless you have stopped payment on the first check, and a significant amount of time has elapsed. We recommend waiting at least three months before taking any action. If you send a new check to the now located prior tenant, and the tenant somehow received or has been holding the original refund check, you could be in for an unpleasant surprise if both checks now are cashed.
Pulling another credit report or skip tracing
If the tenant originally gave you permission to pull a credit report in the application process, it is permissible to do this again in order to potentially find a new address. After some period of time, a new credit report will most likely contain information on the current tenant address. Many companies offer reasonable skip tracing services as well, and the small amount of money spent could save time and money later.
You have exhausted all your resources but cannot locate the former tenant. Now What?
If the refund is for more than $10.00, you are required to hold the funds in your escrow account for 5 years. Yes, you read that correctly. Florida law requires this extremely long time period to safeguard the funds from the time the funds were due to the tenant and provides a means to dispose of these funds upon the end of the 5 years.
What Florida Law Requires
The Florida Disposition of Unclaimed Property Act requires you to exercise due diligence in attempting to locate the former tenant. This means the use of "reasonable and prudent means under particular circumstances to locate apparent owners". The exact requirements are listed in the Act and include using the Social Security number if you have one, using nationwide databases, mailing to the last know address unless you know for sure it is inaccurate, or engaging a licensed skip tracing company. You are required to send in a report to the State of Florida on the forms that they provide prior to May 1 of each year, or you could be subject to a penalty imposed upon you. You must send a final letter to the former tenant no more than 120 days and no less than 60 days prior to filing the report with the State informing the tenant that you are still in possession of the unclaimed refund. When you finally file the report, you must include the refund money with the report, and upon payment and delivery to the State, you will have no further liability to anyone and can remove the amount from your escrow account records.
The Moral of the Story?
A diligent property manager tries on a regular basis to keep updated information on his or her tenant, including updated emergency numbers, addresses of emergency contacts, new phone numbers, new work numbers and addresses. By doing so, it will be easier to locate the tenant and get the money OUT of your account!! When was the last time you updated your tenant information?
(Back to Top)
Code Enforcement and the Property Manager
by Harry Anthony Heist, Attorney at Law
There will come a time when the property manager and/or owner of the property receives a notice of a code violation from the municipality where the property is located for something the tenant is either doing or not doing. This may be for something as simple as parking on the lawn, failing to cut the lawn, or not taking in the garbage receptacles from the street in a timely manner. The violations could be more serious, such as failing to maintain the exterior of the property, engaging in a business activity, or allowing mountains of personal property or debris to accumulate on the front lawn. How the property manager deals with the issue can make the difference in the property owner receiving a fine or notice of hearing, or instead getting a serious break cut for them by the code enforcement official. The key is the property manager must deal with the problem, deal with it swiftly, and keep code enforcement fully aware of the actions which are being taken to rectify the situation. The Catch-22 is that the time period for compliance given by code enforcement is seriously at odds with the actual time it can take to get compliance or eventual removal of the problem tenant.
The Property Owner Receives Notice
Usually, the property owner will receive notice by mail at the address that code enforcement has for the owner. This is usually the address where the tax bills are sent. The owner may live in a distant state or be absent on vacation when this letter arrives, and there is thus a major delay in word of the problem getting to the property manager. This is the first in a series of problems that can occur.
The Property Manager is Notified
Once the property manager is notified, action needs to be taken immediately. There will most likely be a time deadline which may be close to passing, or in some instances has already passed. This is when the property manager must immediately notify the code enforcement officer by phone and in writing, acknowledging receipt of the citation and expressing a strong willingness to deal with the problem fast.
Can the problem be solved immediately?
If the situation can be solved immediately, for instance by having a lawn person go out and immediately cut the lawn, this should be done, and the tenant should be billed for the expense incurred. If getting compliance requires the property manager do any self-help removal of the tenant's personal property, the property manager should NOT attempt this at all. Self-help removal of items or the towing of vehicles can lead to serious litigation. If the property manager cannot easily rectify the problem, a dialogue must be opened with code enforcement.
Communication with Code Enforcement
The property manager should call code enforcement immediately to see exactly what the problem is. Often the citation is vague in describing the offending activity or condition, and this will allow the property manager to get a better idea of what exactly is wrong and what needs to be done. By calling immediately, the property manager can explain to the code enforcement officer that she is on top of the problem and will be taking every legal step possible to rectify the problem. Most code enforcement officers will appreciate the call and indicate to the property manager that the main purpose of the citation is to get compliance, rather than impose fines or other penalties. The property manager will then be led to believe that the code enforcement officer is a nice person and that there is an actual extension given. It may be a correct assumption that the code enforcement officer is indeed going to work with the property manager and give an extension of time to deal with the problem, but can the property manager be sure?
Did the Property Manager Get an Extension of Time?
The property manager immediately will serve the tenant a Seven Day Notice of Noncompliance with Opportunity to Cure, which probably is the proper notice to be given in most code violation situations. Your attorney can assist you here. Will the code enforcement officer sit back and wait? We are not sure. Next week, there may be another code enforcement officer assigned to the case, as the original one is on vacation. Was the extension properly communicated? Did the property manager get something in writing, or will he or she simply depend upon the phone conversation with code enforcement, one of many phone conversations the code enforcement officer had that day among many other people? We recommend that you immediately follow up any phone conversation with a letter to the code enforcement officer by regular mail and certified mail such as this:
Dear Officer Smith:
Today I received the notice of violation on 125 Main Street and will be taking immediate action. As per our phone conversation, you have agreed to hold off on taking further action against the property owner during this process. We have contacted our attorney and have served the tenant with a Seven Day Notice of Noncompliance with Opportunity to Cure which is attached to this letter as "Attachment #1". This is required by Florida law before we can terminate the tenancy, if he or she fails to cure the problem. If the problem is not cured within seven days, we are required by law to serve a Seven Day Notice of Noncompliance Notice to Terminate. Once this notice expires, we can then begin an eviction action, which takes between 20 and 45 days on average. Please use me as your contact person, as I am the person directly responsible for managing the property. My phone number is 555-1212. I will be doing everything legally possible to either get compliance or have the tenant removed. Please feel free to call me or my attorney at 555-1313 if you have any questions about the progress or the procedures which the Landlord/Tenant Act requires."
The result of such communication will usually buy extra time for the owner of the property. Code enforcement often has no idea how the compliance and eviction process occurs, and they need to not only be informed of the procedure to understand your dilemma, but keeping them informed of the progress will help insure a cooperative experience with code enforcement and help in future occasions when another one of your tenants may be in noncompliance. Developing a keen and cordial working relationship with code enforcement is one of the traits of a successful and effective property manager.
(Back to Top)