A common practice among landlords is to serve the Three-Day Notice, and if no payment has been made, serve the tenant with an additional notice or letter to induce payment. This notice or letter is usually entitled "Final Warning", "Eviction Notice", "24 Hour Notice" or some kind of variation on this theme. The purpose obviously is to give the tenant a final chance at paying the rent to avoid the necessity of an eviction filing by the property manager. Does it work? Yes, often the "post" Three-Day Notice letter or notice is highly effective, especially when a tenant has received one before and has paid after the expiration of the Three-Day Notice. The problem is that the notice can cause serious problems with the procedure and prerequisites of filing an eviction action.

The Sacred Three-Day Notice

The Three-Day Notice is a condition precedent and jurisdictionally required notice which must be given in a non-payment of rent situation in order for the landlord to proceed to filing an eviction action. It is a very specific notice, clearly spelled out in Florida Statutes, must be of a certain form, with specific rent items only allowed, and it must be prepared and served properly in order for it to be a valid Three-Day Notice. If there are any defects in the Three-Day Notice, it is quite possible that the eviction action will be dismissed, resulting in a further loss of rent by the landlord, delays and potential liability for paying the tenant's attorneys fees.

The effect the "Post" Three-Day Notice communication has on the Three-Day Notice

If a landlord gives the tenant any type of "post" Three-Day Notice letter or notice regarding the payment of rent or a last chance to pay, some case law has shown that the original Three-Day Notice is nullified or made void by the later notice or letter. While this doesn't seem to make practical sense, the reasoning lies in the fact that Florida Statutes alone provides for and requires a specific notice prior to an eviction action. Any notices given after the Three-Day Notice can confuse the tenant, and since not Florida Statute provided, will be made up by the landlord and could create confusion on the part of the tenant.

Should we discontinue using the "post" Three-Day Notice letter or notice?

Our recommendation is that you cease using any notice after the service of the Three-Day Notice. As more and more cases are being contested at a higher rate, with more sophisticated and knowledgeable tenants and attorneys, it is not advisable to do anything that can jeopardize the eviction action. If you have been using the "post" Three-Day Notice letter or notice in the past, a problem is created for future cases, as the tenant who has received such a notice or letter before will be expecting this notice before you file an eviction. This detrimental reliance by the tenant on your "post" Three-Day Notice letter or notice can actually now provide the tenant with a defense when you did not use the notice or letter!

Practical considerations

If you have been using a "post" Three-Day Notice letter or notice in the past, we recommend that you immediately cease this practice. It will be important though to notify the tenants of this change in policy or procedure. You may want to use language such as the following:

Dear Resident,

In the past, our company has been sending out a "Last Chance Letter", "24 hour Notice", (insert name of your notice) after the expiration of the Three-Day Notice giving the residents a final chance to pay rent to avoid eviction.

From this point on, we will only be serving a Three-Day Notice as required by law. Any rent tendered after the expiration of the Three-Day Notice may be refused by us, and eviction proceedings may be commenced. This letter shall serve as notification that in the event you do not pay according to the stated due date on your lease, you may be subject to receiving a Statutory Three-Day Notice giving you three business days to pay the rent. No further notice or letter will be given.

Can we continue using the "Notice" or "Letter"?

Many landlords will opt to continue using a "post" Three-Day Notice letter or notice, as it is without a doubt very effective in getting the tenant to pay the rent. It is quite possible that the risks in giving the letter or notice are outweighed by the benefit of reducing evictions and receiving the rent. Each landlord must decide the route to take. All we can say is, "You have been warned."

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A Small Claims Court case is simply a lawsuit by one party against another party where the sum sought after is up to $5000.00. Florida law has created a system within the County Court system where smaller cases such as these are handled in a unique and often expeditious manner. There are many ways of proceeding if one finds himself or herself as a defendant in a Small Claims Court case. You may be able to file a Motion to Dismiss if there are defects in the Plaintiff's case, an Answer may be appropriate, possibly a Counterclaim will be necessary, or the case can be amicably settled. This article will only deal with settling the most common Small Claims Court case whose subject matter is a Security Deposit Dispute, and assumes the Small Claims Court case is NOT filed by an attorney, but rather is pro-se, meaning that the Plaintiff filed the case on his or her own without an attorney signing the paperwork.

The Security Deposit Dispute"”The most common Small Claims Court subject matter

The vast majority of Small Claims Court cases involve a dispute over a security deposit. The Plaintiff, a former tenant, will claim that you failed to return the security deposit, failed to send out notice in the required time period or unfairly charged the security deposit for things that were not the Plaintiff's responsibility. Most of the time the Plaintiff is suing for no more than the security deposit amount plus the costs of filing the lawsuit. While you may firmly believe that the amount you charged the Plaintiff is absolutely correct, this type of case is one of the best kinds to settle rather than fight.

Why should we settle?

The Small Claims Court case regarding a security deposit dispute is much harder for the landlord to fight than one may think. The same judge that seems very tough on tenants in eviction court often seems to bend over backwards to believe the Plaintiff's story of the evil, greedy landlord who charged the Plaintiff for damages he did not do to the unit that the Plaintiff left cleaner than it was when the Plaintiff moved in. While the ex-tenant Plaintiff is bringing the case against your company and should have the burden of proof, the judge will demand that you prove that the unit was not damaged when the tenant moved in, the tenant did the damage while living there, it was over and above ordinary wear and tear, and you can prove the costs of the repairs or replacements. You may need a detailed move-in and move-out inspection form, photos, videotapes, maintenance persons, vendors and just about anybody you can possibly think of that had contact with the unit in court with you to prove that the amount you charged the Plaintiff was correct. You may have a stack of bills for carpet cleaning, pest control and painting, but the judge will not look at these if you try to use them to prove the Plaintiff damaged the unit, as these bills will be considered hearsay. You will need to bring the painter, pest control person and carpet cleaner into court to testify, and often they do not want to come to court or, when they do come to court, make poor witnesses. In almost every single case we examine, the landlord has severe weaknesses in the case.

The Mechanics of the Small Claims Court Case

The Plaintiff files the Small Claims Court case in County Court and has the case served upon you, the defendant, by Registered mail, private process server approved by the court, or most commonly, by a Sheriff's deputy. When the case is filed, a date is specified on the paperwork for a Pretrial or Mediation date. If the case is not settled before the Pretrial date, you must attend this Pretrial, or you will have a judgment automatically entered against you or your company. At the Pretrial, a mediator is appointed to the case, and there is an opportunity to sit down in a private room with all the parties present to discuss the possibility of settling the case. If the case is not settled, the parties go back to the courtroom where they wait for a trial date from the judge. The parties must then attend the actual trial, where the case will be fully tried with all witnesses present. At the end of the trial, the judge will make his or her ruling and may award costs at that time.

How long does the process take?

The Pretrial process usually takes from 1 hour to 3 hours depending on how many cases are assigned to the court that day. The time is usually spent waiting in the courtroom to be called by the clerk. Once called and a mediator is assigned, the actual Mediation session usually takes between 30 minutes and one hour. If the case is not settled in Mediation, the parties will be sent back into the courtroom, where the wait can be from 5 minutes to one hour to get a date from the court for the trial. The trial is usually scheduled to be held within 60 days from the Pretrial date. On the trial day, the parties can potentially wait up to 2 hours for the trial to begin, and a typical small claims trial takes anywhere from 30 minutes to 2 hours on average. Unlike what you may observe on "The People's Court" or "Judge Judy", all the rules of civil procedure apply in the Small Claims Court trial, and it is actually taken very seriously by the judge. You need to have all your witnesses and evidence in court. If you are unprepared or disorganized, expect to be intimidated and berated by the judge. Frequently the judge is already annoyed that the case was not settled, and most judges really do not seem to enjoy small claims court trials.

Settling prior to the Pretrial, the cost-benefit analysis and "principle"

Settling the Small Claims Court case prior to Pretrial/Mediation is the preferred way to go. At this point you will have little to no time into the case and will have avoided countless hours of aggravation. You need to make a simple cost benefit analysis of the situation and avoid wanting to go to court for "the principle of the matter". Fighting over "principle" is just not wise. First, your expenses will be increased and secondly, you have no idea whatsoever if you will win in court, as Small Claims Court is so full of surprises. If you and the Plaintiff can come up with an agreeable amount, the agreement is put into writing, the money is exchanged, and the Plaintiff files a Voluntary Dismissal with the court. Does it make sense to take 3 staff members out of the office for 5 hours? Are you sure you are going to win in court? Will you need to get your attorney heavily involved? Will you need to subpoena parties? Will your vendors that you subpoenaed be aggravated with you? Will they show up in court? You need to take a deep breath and ask all these questions before you chart out your course of action. Assuming you are agreeing to give the Plaintiff some money to settle the case, it is imperative that you do not just send the Plaintiff the money. You must do this in conjunction with a proper Voluntary Dismissal and release. You don't want to settle with the Plaintiff and then have his or her co-tenant sue you over the same dispute. Smart settlement is a smart thing to do. Principle does not pay.

Settling the Small Claims Court case at the Pretrial Mediation

Surprisingly, most Small Claims Court cases are settled at the Pretrial Mediation. The court has fully trained volunteer mediators from all walks of life whose mission it is to have you settle the case and walk out of the courthouse relatively satisfied. In the mediation, each party has a chance to present their side of the story in front of the impartial mediator. The mediator also will conduct a caucus at times, whereby one party leaves the room and the other party can privately speak with the mediator. When you go to mediation, you want to be very prepared, as sometimes, a good mediator will encourage a party to settle if they feel the other party has a very good case. Once the parties come to an agreement, the mediator writes everything up on a settlement form, and the case is over. Assuming it is a security deposit dispute and you are agreeing to return some funds to the tenant, this will all be written out, and you must comply with the Settlement agreement or you will have a judgment entered against you. Since we know that most cases are settled at Mediation, try to settle the case BEFORE mediation to avoid wasting time.

Suppose Mediation is unsuccessful?

If Mediation is unsuccessful, a trial date will be set by the court. It is important to bring your calendar with you to Mediation, as once the trial date is set, the only way it can be changed is with agreement by the parties or the court granting a Motion for Continuance. After a trial date is set, there is plenty of time to decide whether proceeding with the trial is prudent or settlement is the better way to go. A case can be settled at any time prior to the actual trial date. Sometime after the parties have some time to reflect on the mediation, settlement becomes easier. The time before trial can be used to continue to attempt settlement through the use of offers and counteroffers. Always get the Plaintiff's phone number and current address so the lines of communication can be kept open.

Your attorney's role in a Small Claims Court case

It is a good idea to always notify your attorney the moment you are served with a Small Claims Court case so your attorney can quickly review the paperwork and give you some advice. Most honest attorneys will tell you the truth about your case, disclose how much it will probably cost to fight the case and advise that you try to settle the case. In most cases, if your attorney advises that you settle the case, they can provide you with advice and with forms to help make this happen. You may want your attorney to attempt to settle the case. This is often an excellent route to take, as long as it will not take your attorney too many hours to accomplish this task. Give your attorney a figure that you will settle on, agree on attorney's fees, and let your attorney run with it. A pro-se plaintiff will be surprised that you have an attorney involved in the case and will be more likely to want to settle. Here you attorney acts in a quasi-mediator fashion to get the parties to settle. The truth is, most attorneys have no desire to fight small claims court cases regarding dispute security deposits, because in most cases, they know that in the end, their client will not be happy having to pay their attorney's fees and possibly losing the case in whole or part. Your attorney will advise you if you can go it alone, or if the attorney should file a Notice of Appearance and take over the case.

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Identity theft is one of the fastest growing crimes in the United States today, affecting approximately 10 million people each year. Criminals are engaging in everything from sophisticated computer hacking to dumpster diving to obtain private information on individuals, which can be later used to obtain credit, or access for emptying out bank accounts. A typical landlord will be in possession of documents which would be highly valuable to an identity thief. The primary documents which have the most information useful to an identity thief are the Application for Residency and the Consumer Report. The application will have the name, date of birth, Social Security number and bank account information of the applicant, all of which can be used by a thief. The Consumer Report will contain a list of all the applicants' credit cards and other valuable information. In response to the rapid increase in identity theft fraud, the Federal Government through the Federal Trade Commission (FTC) has enacted new laws which directly affect the landlord.

The Disposal Rule

Effective June 1, 2005, if you are a business that uses a consumer report, more commonly known as a Credit Report, you must dispose of this information in a specific fashion. Since most landlords ask for an Application and subsequently receive a Credit Report, it is apparent that the Disposal Rules apply to the landlord. The Disposal Rule requires disposal practices which are "reasonable and appropriate" to prevent the unauthorized access to or use of information in a "consumer report". You will note that the law says "consumer report" and not "Application". Many Federal rules when initially introduced are vague and confusing. As time goes by, the courts and the FTC "interpret" the rule. Obviously the purpose of the rule is to prevent identity theft; thus we strongly recommend that you apply the rule to the application as well as the Credit Report, as this is consistent with the intent and legislative history of the rule.

How long and where should we keep documents?

The statute of limitation regarding disputes arising out of a contract such as a lease is 5 years. We recommend that you do not dispose of any files for a minimum of 5.5 years from the time the tenant vacates the premises. While this may seem a bit extreme and cumbersome, if you are sued and do not have your file, anything can and will happen in court, and it will not be pleasant. Some people intentionally wait until the Statute of Limitations is almost up, as they know that most people will not have kept the records for this length of time. Your documents need to be kept in a safe place in your office and subsequently in storage. Most landlords do not keep these files locked up or have a written plan in place as to file security or destruction. This needs to change.

Paper records

Files should always be kept in a locked room or locked filing cabinets with access limited to persons designated in writing as having permission. These should only be employees that are bonded. Most landlords do not consider the value the paper files have to an identity thief and are not in any compliance whatsoever. If records are sent to storage, there needs to be a specific procedure in place to prove chain of custody and detailing exactly who has access to files and when they accessed the files.

Computer records

Most people find it difficult to throw out old computers. They pile up in the back room and eventually get thrown out or donated years after they will not run current programs. Most landlords do not have password protection in place on their computers, making them vulnerable to an identity thief. Finally, most landlords who are careful about backing up their computer data do not have a specific procedure for storing these backups. Landlords need to immediately evaluate the safety of the data and create a written procedure which needs to be followed. If information from the tenant's application and consumer report will not be stored on or transmitted through a computer, the danger is significantly lessened.

How should documents, hard drives and backups be destroyed?

Paper documents should be shredded or pulverized. There are different levels of paper document destruction available, and we recommend that the documents are pulverized to avoid any problems later. Many landlords purchase store bought shredders and pulverizers, but if operating on any kind of a large scale, document destruction companies will need to be utilized to carry out the larger document destruction tasks. Many local garbage disposal companies are jumping into the business of document destruction, and it is prudent to check this in addition to the smaller private companies. As chain of custody is crucial, most of the document destruction companies provide an on-site service that can be observed by the landlord to avoid someone taking the documents to another location and using them for illegal means. Hard drives and backups can be physically destroyed by a landlord or destroyed by the document destruction companies who deal with this as well as paper documents. The key is to have a plan in place, and this should be part of your written procedures for document safekeeping and disposal.

Does everything have to be disposed of properly?

Fortunately only certain information has to be disposed of according to the FTC rules. An examination of your tenant files will probably show that only a few sheets contain information which could be successfully used by an identity thief. Most likely only the application and the consumer report will contain the sensitive information, therefore your procedure may limit the disposal to the destruction of only those documents.

Disposing of Consumer Report Information?
New Rule Tells How

In an effort to protect the privacy of consumer information and reduce the risk of fraud and identity theft, a new federal rule is requiring businesses to take appropriate measures to dispose of sensitive information derived from consumer reports.

Any business or individual who uses a consumer report for a business purpose is subject to the requirements of the Disposal Rule. The Rule requires the proper disposal of information in consumer reports and records to protect against "unauthorized access to or use of the information." The Federal Trade Commission, the nation's consumer protection agency, enforces the Disposal Rule.

According to the FTC, the standard for the proper disposal of information derived from a consumer report is flexible, and allows the organizations and individuals covered by the Rule to determine what measures are reasonable based on the sensitivity of the information, the costs and benefits of different disposal methods, and changes in technology.

Although the Disposal Rule applies to consumer reports and the information derived from consumer reports, the FTC encourages those who dispose of any records containing a consumer's personal or financial information to take similar protective measures.

Who must comply?

The Disposal Rule applies to people and both large and small organizations that use consumer reports. Among those who must comply with the Rule are:

Consumer reporting companies
Lenders
Insurers
Employers
Landlords
Government agencies
Mortgage brokers
Automobile dealers
Attorneys or private investigators
Debt collectors

Individuals who obtain a credit report on prospective nannies, contractors, or tenants Entities that maintain information in consumer reports as part of their role as service providers to other organizations covered by the Rule

What information does the Disposal Rule cover?

The Disposal Rule applies to consumer reports or information derived from consumer reports. The Fair Credit Reporting Act defines the term consumer report to include information obtained from a consumer reporting company that is used - or expected to be used - in establishing a consumer's eligibility for credit, employment, or insurance, among other purposes. Credit reports and credit scores are consumer reports. So are reports businesses or individuals receive with information relating to employment background, check writing history, insurance claims, residential or tenant history, or medical history.

What is "˜proper' disposal ?

The Disposal Rule requires disposal practices that are reasonable and appropriate to prevent the unauthorized access to - or use of - information in a consumer report. For example, reasonable measures for disposing of consumer report information could include establishing and complying with policies to:

burn, pulverize, or shred papers containing consumer report information so that the information cannot be read or reconstructed;

destroy or erase electronic files or media containing consumer report information so that the information cannot be read or reconstructed;

conduct due diligence and hire a document destruction contractor to dispose of material specifically identified as consumer report information consistent with the Rule. Due diligence could include:

reviewing an independent audit of a disposal company's operations and/or its compliance with the Rule;

obtaining information about the disposal company from several references;

requiring that the disposal company be certified by a recognized trade association;

reviewing and evaluating the disposal company's information security policies or procedures.

The FTC says that financial institutions that are subject to both the Disposal Rule and the Gramm-Leach-Bliley (GLB) Safeguards Rule should incorporate practices dealing with the proper disposal of consumer information into the information security program that the Safeguards Rule requires ( ftc.gov/privacy/privacyinitiatives/safeguards.html ).

The Fair and Accurate Credit Transactions Act, which was enacted in 2003, directed the FTC, the Federal Reserve Board, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, the National Credit Union Administration, and the Securities and Exchange Commission to adopt comparable and consistent rules regarding the disposal of sensitive consumer report information. The FTC's Disposal Rule became effective June 1, 2005. It was published in the Federal Register on November 24, 2004 69 Fed. Reg. 68,690, and is available at http://www.ftc.gov/os/2004/11/041118disposalfrn.pdf

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit FTC.GOV or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

Your Opportunity to Comment The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency's responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal. To comment, call toll-free 1-888-REGFAIR (1-888-734-3247) or go to www.sba.gov/ombudsman.

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Your attorney filed an eviction on a tenant that clearly is two month's delinquent. There is no disputing the amount and no problems with the premises; the tenant just has no money and told you he could not pay the rent. You think it is a slam dunk eviction when out of the blue, your attorney notifies you that the tenant has filed a "Motion to Determine Rent". On top of that, the tenant has not posted one dime into the Court Registry and a court hearing is set for next week. How could this be? Doesn't the tenant have to post the rent money into the Court Registry? The Motion to Determine Rent is one of the most annoying time delay tactics a tenant can successfully use against a landlord and its use is on the rise.

How can a Tenant defend an eviction?

Tenants have a number of remedies available to them when defending an eviction action. Some but certainly not all include actions whereby the tenant can file an Answer with the court, which is basically a statement by the tenant of reasons why he or she should not have to leave the premises. The tenant can file a Motion to Dismiss whereby the tenant tries to say that there is some defect in your paperwork or reason why the case should just be completely dismissed and thrown out of court, or the tenant can file what is called a Motion to Determine Rent. This article will examine the Motion to Determine Rent in depth, so you may have a better understanding of how it affects the eviction process.

Background--When you file an eviction action for non-payment of rent, you must attach a 3 Day Notice to the eviction complaint and allege in the eviction complaint how much is owed by the tenant. This is required by law, as the tenant needs to know for what amount he or she is being evicted. Usually this amount is the rent and late charges (if the lease considers late charges as additional rent), plus any other periodic payments due under the lease terms and amounts which are considered rent. Oftentimes the tenant disputes this amount or feels that the eviction is unjust and files an "Answer" with the court. By law, the tenant when filing an Answer with the court, is required to place into the Court Registry the rent amount which is asked for by the landlord in the Complaint. Some tenants comply, other tenants don't, and often the eviction continues on to completion, regardless of the Answer that the tenant filed with the court. In this case, the tenant may not get his or her day in court. There is one way a tenant can get heard in court WITHOUT filing an answer OR putting any money into the Court Registry. This is by filing a Motion to Determine Rent.

Legal Basis of the Motion--Florida law states that a tenant who is contesting an eviction must file an Answer within 5 business days of being served with the eviction summons OR may file a Motion to Determine Rent asking the judge to decide how much rent is owed, and how much if any should be deposited into the Court Registry. This will frequently trigger a court hearing.

Requirements of a Motion to Determine Rent--According to law, a tenants may file a Motion to Determine Rent if they are alleging that the rent asked for by the landlord on the 3 Day Notice or the complaint is "in error". It is possible that the landlord has overstated the rent amount, the tenant paid the rent, the tenant is owed something by the landlord, the tenant has been given multiple 3 Day Notices with conflicting amounts, the tenant was to receive a concession, or the premises are so deficient that the tenant feels that the amount asked for should not be the amount that they should have to place in the Court Registry, or any other thing the tenant can come up with to make it appear that they do not understand what the amount of rent truly should be or how much they should pay. By law, the tenant is required to attach documentation to the Motion to Determine Rent showing some proof to the judge that the rent amount alleged in the complaint is in error.

The Problem--Most Motions to Determine Rent are legally insufficient, but they often end up triggering a court hearing nonetheless. The tenant does not attach documentation to the Motion showing that the rent is "in error". Often the Motion simply says, "I want the court to determine how much rent is owed". Use of the motion can be an outrageous abuse of the system, and judges are acting improperly when they set these matters for hearing. The tenant's Motion to Determine Rent should often be "stricken" by the court as legally insufficient, but in many cases the hearing is set, and off to court we go.

The Result--Unfortunately, some judges will set a hearing on just about any Motion to Determine Rent, regardless of whether the tenant has properly filed the Motion, and the courts will do this with or without documentation attached to the Motion. This results in a time wasting hearing in most cases. The tenant and the landlord must now appear in court, the judge will take some testimony, and then the judge will order the tenant to place in the Court Registry the amount the judge feels is the amount of rent owed. Usually, this amount is exactly what the 3 day notice states and the amount that the landlord asked for in the complaint plus any rent that may have accumulated during the time the eviction was filed and the time the parties are in court. The eviction case is not heard at this time. It is only a limited hearing to determine how much money the tenant must place in the Court Registry.

When does the Court require the money to be posted into the Court Registry?--Sometimes the tenant is required to place the money into the Court Registry by 5 PM that day, or sympathetic and often inexperienced judges will give the tenant a week or more to deposit the money. Sounds outrageous? It is.

How does the tenant even know about this Motion to Determine Rent? --Unfortunately many court clerks tell the tenant that he can do this and go as far as to provide the tenant with a fill in the blank "Motion to Determine Rent." Attorneys may represent the tenant and file such a motion, and many of the legal aid organizations provide the tenant with a form Motion to Determine rent solely for the purposes of delaying the case.

Suppose the tenant does not deposit the money into the Court Registry as ordered by the judge?--If the tenant fails to comply with the judge's order, the judge will sign a Final Judgment of Eviction and the case will proceed to completion with no further court hearing.

Suppose the tenant deposits the money into the Court Registry as ordered?--The court will then set a trial, and a full fledged eviction trial will occur sometime when it is suitable for the judge. This could be in a few days or a few weeks depending on the judge's schedule.

What can be done to minimize the occurrence of the Motion to Determine Rent?--While it is nearly impossible to prevent a tenant from filing a Motion to Determine Rent, there are certain things which are done by a property manager that increase the risk that such a motion will be filed. The following will increase the Motion to Determine Rent risk:
1. Giving the tenant a 3 Day Notice with excessive late charges.
2. Giving the tenant conflicting 3 Day Notices.
3. Giving the tenant a notice after the 3 Day Notice
4. Allowing a tenant to make a repair and having a dispute about a reimbursement or a concession.
5. Giving a tenant an open ended 3 Day Notice which says they owe a particular amount plus a certain amount per day causing the notice to be ambiguous.
6. Carrying over a balance for a long time and then putting this balance on the 3 Day Notice
7. Not maintaining the premises, causing the tenant to feel they are entitled to a rent abatement
8. Making oral payment arrangements with the tenant.

CONCLUSION--Unfortunately, we cannot prevent a tenant from filing a Motion to Determine Rent, and the frequency of these motions is increasing. A clean 3 Day Notice stating the exact amount owed, breaking out any other charges and making it easy to look at the lease agreement and the notice to see a nice match will be very helpful and is advisable in all cases. An experienced attorney will emphasize to the judge that the amount the tenant is to place in the Court Registry is the amount on the 3 Day Notice and any amount that may have accrued. If the tenant is claiming that the property value is diminished due to a deficiency with the premises, it is our firm position that the tenant should place all the money into the Court Registry, and these matters can be sorted out at trial. This separates the scam tenant from the legitimate tenant and is the whole reason why Florida law requires that the rent money be deposited into the Court Registry in order for a tenant to have a trial in court. Now"¦ if only all the judges would follow the law.

83.60 Defenses to action for rent or possession; procedure "¦(2) In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant's defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon. In the event a motion to determine rent is filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies shall be required to deposit only that portion of the full rent for which the tenant is responsible pursuant to federal, state, or local program in which they are participating.

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Background of "Megans Law"

Megan's Law was created to provide information to the community as to the presence of sexual predators and offenders in their neighborhood. Through the Florida Department of Law Enforcement's website and many other websites maintained by municipalities, it is possible for anyone to look up a person to see if they are a registered predator or offender and see the exact address of that person. Megan's Law was named after 7-year old Megan Kanka, who was sexually assaulted and murdered by a convicted sexual predator; the law was created to have a system in place under which people could be notified of the presence of such a person in their community.

Florida Law--Florida Law does not require a private person such as a landlord to inquire as to whether someone is a sexual predator or offender, does not prohibit renting to one, and creates no requirement for the landlord to notify the community or immediate neighbors if they do in fact rent to a registered sexual offender or predator. While Florida law imposes restrictions on where a sexual predator or offender can live, there in no duty or obligation on a Florida landlord to inquire about the sexual predator or offender status of a person, or prohibit them from renting where he or she would be in violation of Florida law. Megan's law as it applies to Florida only requires law enforcement to set up some sort of notification system to help a community know of the presence of an offender or predator in their neighborhood. The FDLE website is such a step in this direction. There are other laws that apply to the registered sexual predator or offender which prohibit them from living within a certain number of feet from places like schools, designated public school bus stops, day care centers, parks, beach playgrounds, libraries, churches or other places where children regularly congregate, but until now, this was not the concern of the Florida landlord.

New Ordinances as they apply to the Registered Sexual Offender, Predator and the property owners

Registered Sexual Offenders and Predators--Certain Florida municipalities, such as Ormond Beach, and Florida counties, such as Seminole County, are creating and have enacted ordinances which are further restricting where registered sexual predators or offender may reside, AND in the case of Seminole County, imposing criminal penalties on landlords if they rent to such a person in violation of the ordinances. The City of Ormond Beach will most likely soon pass an ordinance which prohibits any sexual predator or offender who has committed an illegal act of a sexual nature on a person less than the age of 16 years to establish a permanent residence within 2500 feet of a school, designated public school bus stop, day care center, park, beach playground, library, church or other place where children regularly congregate. The 2500 feet is measured from the outer limits of the residence to the nearest outer property line of the prohibited area "as the crow flies. Violation of this by the registered sexual predator or offender can result in a fine of $500.00 and by imprisonment for up to 60 days. Repeat offenders of the ordinance will suffer substantially greater penalties.

Owners--The proposed Ormond Beach ordinance makes it unlawful for the property owner to rent to any registered sexual predator or offender if such person will be in violation of the 2500 foot rule, and the enacted Seminole County Ordinance subjects the property owner to a criminal misdemeanor punishable by up to 60 days in jail and /or a fine up to $500.00. The property owner can actually now go to jail for renting to a sexual predator or offender.

Exceptions to the ordinances--There are some limited exceptions to these ordinances. In Ormond Beach for example, if a sexual predator or offender was currently living within the 2500 foot buffer zone prior to the enactment of the ordinance, there will be no violation of the ordinance, or if a school, designated public school bus stop, day care center, park, beach playground, library, church or other place where children regularly congregate is placed into service after the person has moved in, there is no violation. Once the lease expires though, the sexual predator and the owner will be in violation of the ordinance, if the tenant does not move.

What does this means to the property owner?--All owners need to immediately check the FDLE sexual predators and offenders website to see if they are indeed renting to a person on the list. If this is the case, it is highly recommend that the owner immediately examine the lease or the tenancy to see how soon a Notice of Non-Renewal can be given, and this Notice of Non-Renewal should be given in accordance with the terms of the lease and Florida law, plus be sent by certified mail, regular mail and by hand delivery or posting on the premises, to cover all bases. Many tenants served with a Notice of Non- Renewal deny receiving the notice, and this can complicate or prevent an eviction from occurring successfully if the tenant fails to vacate per the notice.

Practical Considerations--Every owner and property manager needs to be diligent in conducting criminal background checks on all applicants. There are many excellent companies which provide these checks at a very reasonable cost. We recommend using a Florida company, as they may have more up to date access to the court records. Even after you receive the background history, it is imperative that you check the FDLE website and make a written notation when you checked the website, the exact name you checked as provided by you from the applicant, and the steps you took to verify the information. The FDLE website has photographs of the registrants to assist you in verifying who you are dealing with, as many people have similar names. A registered sexual predator or offender will do whatever it takes to get housing, as they probably have been denied on numerous occasions and will often change the spelling of their name or fill out the application illegibly to make your search more difficult. As you can see, the "as the crow flies" distance requirement is extremely broad. Check with your local municipality, sheriff's department and police station if you are unsure where your property is located in relation to a school, designated public school bus stop, day care center, park, beach playground, library, church or other place where children regularly congregate. If a property manager places a registered sexual offender or predator within this area and the property owner gets in trouble, be sure that you will not be the next to get in trouble. Remember, 2500 feet is almost one half mile, so the chances are very high that your property could fall within the danger zone.

NOTE Future issues of the Legal Newsletter will keep you up to date with the details pertaining to each ordinance.

TO RECEIVE COPIES OF THE PROPOSED ORMOND BEACH ORDINANCE OR THE ENACTED SEMINOLE COUNTY ORDINANCE, EMAIL US AT Info@Evict.com

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You send out a Notice of Intention to Impose a Claim on Security Deposit due to tenant damages. The tenant writes you a letter disputing the charges and calling you every name in the book. You write a letter back explaining your charges and tell the tenant that if they don't pay, you are going to send the account to collections, and it will affect their credit. Sounds reasonable, right? You just violated the Florida Consumer Collections Law. The penalty? Actual damages PLUS additional statutory damages of up to $1,000.00, together with court costs and reasonable attorney's fees incurred by the tenant. This is serious business, and attorneys are out there just waiting for you to violate the law.

History of the Law -- Most landlords are familiar with or have heard of the Fair Debt Collections Practices Act, the FDCPA. These are the Federal Laws that govern "debt collectors". When you send a file to a collection agency, the agency must follow these laws or they and you could be subject to penalties if the FDCPA is violated. Since the FDCPA applies only to "debt collectors", the landlord usually does not have to worry about compliance to a great extent, as at least for now, a landlord or a property manager is for the most part not considered a "debt collector" under the FDCPA. A "debt collector" under the FDCPA is more closely defined as someone who collects delinquent debts of another. The purpose of the FDCPA was to create laws to curb abuses by debt collectors who sometimes threaten and harass debtors. As you can see, the FDCPA governs debt collectors, but what if you are collecting a debt that is due to you? If you are collecting rent, you are considered an "original creditor", thus you are not a "debt collector" as defined by the FDCPA, but you are not off the hook yet. An original creditor is governed by Florida Statutes Consumer Collection Act Section 559.

Florida Statutes and the Original Creditor-- Florida Statutes Section 559 governs not only debt collectors as does the FDCPA, but also governs the original creditor. This would be the landlord or the property manager. This article will examine only one specific section of the Florida Consumer Collection Law and how it applies to the owner or property manager.

Security Deposit Disputes-- After a tenant vacates the premises, the landlord is required to send the tenant the Notice of Intention to Impose Claim on Security Deposit according to Florida Statutes 83.49. The receipt of this required notice by the former tenant is the single largest cause of disputes. Many tenants simply disagree with the amount that the landlord has claimed from the security deposit and make it clear to the landlord or property manager in the form of a letter. This letter is a "dispute" by the tenant.

Common Practice-- Upon the landlord's receipt of a dispute letter by the former tenant, the landlord may or may not respond to the tenant in writing. A typical response by the landlord is an explanation of why the landlord charged the tenant, and the letter tries to justify the amount charged. Although not required by law, and not recommended by us, sending a letter to the tenant explaining or justifying the charges is not illegal in any way. Often the landlord or property manager sends out a demand letter to the tenant specifying the charges owed and telling the tenant that if these amounts are not paid by a specific time or arrangements are not made, the debt will be sent to collections and potentially affect the tenant's credit. This is where the problem begins.

Threatening to send a debt to collections -- Threatening to send a debt to collections is NOT illegal. Threatening to send a "disputed" debt to collections is NOT illegal. Threatening to send a "disputed" debt to collections without telling the debtor that the debt will be sent as a "disputed" debt is completely illegal under Florida law. Unfortunately this happens all the time. The landlord sends out the Notice of Intention to Impose Claim on Security Deposit, the former tenant disputes, and the collection letters go out just like that. Violations of Florida Statutes occur every day, and more and more attorneys are keenly aware of the law regarding this.

The Penalties Sending the debtor a letter stating that they will be sent to collections or that their credit may be affected WITHOUT telling the debtor that the fact that the "debt is disputed" will be disclosed to the collection agency or credit reporting agency triggers a penalty of up to $1000.00 per occurrence, and in the event an attorney has sued the landlord, the attorney will be entitled to an award of attorney's fees and costs, which could far exceed the $1000.00. If an attorney thinks you may have done this to many debtors, the attorney may just decide to file a class action lawsuit against you, which could cost tens if not hundreds of thousands of dollars in defense, penalties and attorney's fees of the attorney filing the lawsuit.

We are in receipt of your letter disputing the debt of $(INSERT AMOUNT). Our collection agency and anyone else inquiring about your creditworthiness shall be notified of your debt as a "disputed debt".

Practical Considerations 1. Never forget to use the word "disputed debt" when telling the debtor that the debt will be sent to collections.
2. Never threaten to affect someone's credit report.
3. Send your collection agency a certified letter informing them that the debt is "disputed", and keep a record of this in the file.
4. If someone inquires about the debtor's creditworthiness or delinquency, always disclose that the debt is disputed.
5. Try to settle disputes to avoid litigation.

559.72 Prohibited practices generally.--In collecting consumer debts, no person shall: (1) Simulate in any manner a law enforcement officer or a representative of any governmental agency;

(2) Use or threaten force or violence;

(3) Tell a debtor who disputes a consumer debt that she or he or any person employing her or him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor's reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed as required by subsection (6);

(4) Communicate or threaten to communicate with a debtor's employer prior to obtaining final judgment against the debtor, unless the debtor gives her or his permission in writing to contact her or his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection, but this shall not prohibit a person from telling the debtor that her or his employer will be contacted if a final judgment is obtained;

(5) Disclose to a person other than the debtor or her or his family information affecting the debtor's reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false;

(6) Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact. If a disclosure is made prior to such reasonable dispute having been asserted and written notice is received from the debtor that any part of the debt is disputed and if such dispute is reasonable, the person who made the original disclosure shall reveal upon the request of the debtor within 30 days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the preceding 90 days;

(7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family;

(8) Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family;

(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist;

(10) Use a communication which simulates in any manner legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney at law, when it is not;

(11) Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments which only attorneys are authorized to prepare;

(12) Orally communicate with a debtor in such a manner as to give the false impression or appearance that such person is or is associated with an attorney;

(13) Advertise or threaten to advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor;

(14) Publish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts;

(15) Refuse to provide adequate identification of herself or himself or her or his employer or other entity whom she or he represents when requested to do so by a debtor from whom she or he is collecting or attempting to collect a consumer debt;

(16) Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor. An example of this would be an envelope addressed to "Deadbeat, Jane Doe" or "Deadbeat, John Doe";

(17) Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor's time zone without the prior consent of the debtor;

(18) Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the debtor's attorney fails to respond within a reasonable period of time to a communication from the person, unless the debtor's attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication; or

(19) Cause charges to be made to any debtor for communications by concealment of the true purpose of the communication, including collect telephone calls and telegram fees.

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THE BACKGROUND

Florida Statutes section 475 governs the ability or inability to receive or pay compensation when engaging in real estate related services. Real estate related services include things such as appraising, auctioning, selling, exchanging, buying, and most importantly for this article, renting of real property. Only a licensed broker, a person who holds a real estate broker's license in Florida may receive and pay compensation for these services to other licensed brokers or salespersons. Certain exceptions to the requirement of licensure have been carved out by the legislature, which allows compensation to be paid and received for a real estate related service without the need for a license. For instance, FS 475.011 exempts any "salaried employee of an owner, or of a registered broker for an owner, of an apartment community who works in an onsite rental office of the apartment community in a leasing capacity". Note that the key word here is "salaried". Through the efforts of the Florida Apartment Association, another exemption was added which allows a referral fee or finder's fee to be paid in an amount up to $50.00 in cash, a rent reduction or something of value to a resident who refers another resident to the apartment community. Unfortunately, apartments are limited to paying their employees only a salary for leasing activities and paying residents the $50.00 referral fee cap. Many companies knowingly and unknowingly violate this law. There has been little to no enforcement by the Florida Real Estate Commission until very recently, and a number of apartment communities, in particular the licensed real estate brokers of those companies, have come under fire. The penalties are expensive and severe and there are criminal felony implications.

COMPENSATION WHICH AN UNLICENSED EMPLOYEE OF AN APARTMENT COMMUNITY CAN LEGALLY RECEIVE

FS 475.011 exempts on-site employees from the legal requirement of having a broker's or sales person's license to receive compensation for leasing. Specifically, it exempts any "salaried employee of an owner, or of a registered broker for an owner, of an apartment community who works in an onsite rental office of the apartment community in a leasing capacity." From the language of this section, it would appear and has been interpreted by the Florida Real Estate Commission that nothing other than a "salary" can be paid to the property manager or leasing staff. Paying a bonus or giving anything extra of value to the employee when he or she leases an apartment is considered illegal and violative of FS 475. Can the property manager or leasing agent receive a performance bonus each week or month, just as in many other professions where the hard working employee can receive a bonus? It appears that the answer is no, if that bonus is based on the "leasing" or the number of leases which are consummated through the effort of that employee. It our opinion that this prohibition by FS 475 is ridiculous, and the law needs to be changed. No harm is being done to the public by paying a leasing agent or property manager a "bonus"; many on-site property managers and leasing agents have far more experience then the majority of property managers who hold Florida real estate licenses, and almost no training or testing in property management is performed or required by Florida law in order to obtain either a sales person's license or broker's license. This is not a situation where unlicensed persons such as on-site property managers or leasing agents are in any way infringing upon the livelihood of a licensed person. With all that said, it is our firm's view that if an apartment manager, leasing agent or any employee of an apartment community is paid anything other than a salary, they risk prosecution by the Florida Real Estate Commission. You have been forewarned, enforcement has begun.

REFERRAL OR FINDERS FEES TO CURRENT RESIDENTS

FS 475.011 specifically allows the payment of a referral fee or finder's fee to a current resident for referring a new resident to the apartment community. The law exempts "Any property management firm or any owner of an apartment complex for the act of paying a finder's fee or referral fee to an unlicensed person who is a tenant in such apartment complex, provided the value of the fee does not exceed $50.00 per transaction". This means that no license is required by either party to give or receive this finder's fee or referral fee. The amount given cannot exceed anything valuing more than $50.00 so a $100.00 reduction of rent off to the referring resident, a $100.00 gift certificate to a local restaurant or anything that exceeds $50.00 in value is clearly prohibited. Examples the law gives include a "fee paid, credit towards rent, or some other thing of value provided to a person for introducing or arranging an introduction between parties to a transaction involving the rental or lease of an apartment unit". The penalty for paying a referral fee in excess of $50.00 is severe, and the person making the payment could be charged with a third degree felony, and the person or corporation making the payments fined up to $5000.00 per occurrence.

OUR RECOMMENDATIONS

You should immediately speak with your corporate attorney if your company has been paying employees anything other than salaries for leasing activities, or you have been giving resident referral or finder's fees in excess of $50.00, and get advice on how to proceed. We urge you to actively get involved with the Florida Apartment Association, which is continuing its effort at trying to clarify the law and lobbying for the ability of the apartment community employee to be rewarded for a job well done.

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The electric is off, the water is off, the unit is filthy and filled with trash, empty beer cans, some clothes, piled up unclaimed mail, and the neighbor tells you that they saw the tenant pack up and leave last week. Is the unit abandoned? Can you take possession of the unit and get it ready for the new tenant? Not if you want to follow the law and protect yourself from liability!

The 3 ways you get possession

The 3 ways to legally gain possession of a rental unit are surrender, eviction or abandonment. When it comes to determining whether a unit is abandoned, we have to ignore logic, common sense and intuition and look solely to the law. FS 83.59 states
" When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he is absent from the premises for a period of time and equal to one-half the time for periodic rental payments. However, this presumption shall not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence"
Basically this means that the appearance of the unit, the fact that the electric was off or a neighbor's observations are all irrelevant. We just have to ask some simple questions:
1. Were the tenants (all tenants!) absent for 15 days?
2. Is the rent unpaid?
3. Did the tenants tell us in writing that they were coming back?

These are the legal requirements of abandonment. Failure to follow this can result in costly lawsuits in which the judge will be sympathetic to the tenant because you failed to follow the law. The burden of proof imposed on the wronged tenant is extremely low, and the tenant can easily fabricate the alleged missing contents of the unit, resulting in a large judgment and liability to pay the tenant's attorneys fees, which could be substantial. When a property manager "jumps the gun" and takes possession too soon, many attorneys will readily take a case like this on a contingency fee basis, making it easy for the tenant to have access to the legal system. The tenant can sue for the lock out prohibited practices and of course the claimed value of the items he or she claims are missing. The property manager could face other serious consequences in court, including criminal charges, charges of wrongful eviction, conversion, and liability for anything the tenant claimed was in the unit!!

In some cases, the property manager has knowledge that the tenant is gone, but someone else is living in the unit. Is this person a squatter or trespasser? You would think so, but if this person states that he is in there with the permission of the tenant or is renting from the tenant, it does not matter whether the original tenant is gone. The unit is simply NOT abandoned. Some property managers attempt to call the police when an unknown person is remaining in the unit, but usually the police will state to the property manager that it is a "civil matter" and tell you that you must evict the person. Calling the police is always worth a try, because the person in the unit may in fact be a trespasser or squatter completely unknown to the original tenant and if so will often readily leave.

In the event you accidentally take possession too soon and the tenant returns, try to calm the tenant, call your attorney immediately, and get the tenant to write down what he or she says is missing and the approximate value. If you have only changed the locks and have not removed any belongings, you will need to let the tenant back in, regardless of how much money, if any, the tenant owes you. After this you can proceed with the normal route of eviction after proper notice, or possibly the tenant will surrender the premises. Remember that A UNIT IS LEGALLY ABANDONED UNDER FLORIDA LAW IF ALL OF THE FOLLOWING IS IN PLACE:

1. NO ONE HAS BEEN IN THE RENTAL UNIT FOR A FULL 15 DAYS AND YOU CAN PROVE IT.

2. THE RENT IS UNPAID.

3. NO TENANT OR OCCUPANT HAS GIVEN YOU ANY NOTICE, VERBAL OR WRITTEN STATING THAT THEY ARE GOING TO PAY THE RENT OR COME BACK AT A LATER TIME.

If you have followed the aforementioned 3 standards of abandonment, you will probably be safe in taking possession. We recommend that you take pictures or videotape each room of the rental unit prior to taking possession. Training your staff, especially maintenance staff, is crucial to avoiding mistakes in taking possession. Lastly if a unit is chock full of personal belongings and other items and you are baffled as to why a person would up and leave all these items behind, we strongly recommend that you give notice if you have not done so already and file an eviction as this will be your absolute safest route. The tenant could be in jail or have been Baker Acted to a mental facility and the last thing you need is to deal with that tenant when he or she gets out and finds out that you have taken full possession of the unit. If you are ever unsure, always give your attorney a call to get an opinion on the matter.

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You just took over management of a unit from another property management company or a homeowner who was self-managing. You send the tenant a letter announcing that you are the new manager and that he needs to send you the rent from this point on. Does the tenant have to send you the rent now? Not according to some judges.

Common incorrect practice

Common practice when taking over a rental unit that is occupied by a preexisting tenant is for the new property manager to send a nice letter advising the tenant that they are the new managers of the premises and instructing the tenant where to pay rent from this point on. The letter from the new property manager often goes further and tells the tenant who to call for maintenance requests, who the property manager will be and gives other relevant and important information the tenant needs to know.

Does the tenant have to abide by this letter? You would think so, because after all, you are the new property manager. But who are you to the tenant? The tenant may never have heard of your company. The tenant may be also embroiled in the disputes that often occur between the property owner and the property management company that the owner is firing! The old property management company may be telling the tenant to continue paying the rent to them, the owner is telling the tenant that the old property management company is being fired, and the tenant is in the middle of the whole mess. The tenant's response to this? The tenant refuses to pay the rent to anyone, and the new property management company, with the permission of the property owner, institutes an eviction action. The tenant can successfully defend the case by saying that she was not sure to whom to pay the rent and therefore did not pay the rent to anyone. This may seem absurd that a judge would buy such a defense, but it actually happens. So what is the solution? Does a tenant just get a free ride if the property management company changes? Is there a solution to this dilemma?

The simple solution

The solution is simple. The property OWNER needs to notify the tenant in writing that YOU are the new property manager. While YOUR letter was informative, the owner is changing agents, and the owner needs to inform the tenant who the new property management company will be. The letter from the owner to the tenant can be prepared by the property manager but should be signed by the owner. A sample notification letter could be as simple as the following:

Dear Tenant:
Please be advised that we have hired XYZ PROPERTY MANAGEMENT to manage our property in which you reside. ABC PROPERTY MANAGEMENT is no longer managing the property for us.

From this point on, all rent payments and all payments due under your lease and Florida Law, inquiries and maintenance reports and requests are to be made to our new property manager. We have attached the information sheet provided to us by the management company. You will be receiving correspondence from XYZ.

Please make no further payments to ABC PROPERTY MANAGEMENT, and all payments must be received by XYZ PROPERTY MANAGEMENT on or before the due date in your lease.

Please feel free to call our new property manager MARY JONES at 555-1212 should you have any questions or concerns

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Are you aware that most insurance companies do not cover injuries sustained by people using trampolines, and the mere presence of a trampoline on the property could result in the insurance company canceling the insurance on the premises? Does your lease adequately address this issue? Can you force the tenant to remove the trampoline?

The Deadly Trampolines

Injuries to individuals using trampolines are rising at a dramatic pace, as trampolines are becoming less expensive and easily obtainable at the mega-stores such as Wal-Mart and K-Mart. Serious injuries occur every year to the neck, legs, spine, face and head of users. Over 89,000 people sustained injuries last year alone, many included paralysis, and some even death due to the use of trampolines. The insurance companies are taking swift action!

In our opinion, trampolines should be expressly prohibited on residential rental property, and according to many insurance companies, the mere presence of a trampoline on a rental property will result in the loss of insurance coverage. Does your owner's insurance coverage permit or prohibit trampolines? If the insurance company decides to prohibit them, can you make the tenant remove the trampoline?

Creating a policy

Your first step needs to be to create a policy that trampolines are prohibited, and this needs to be clearly stated in the lease agreement. By failing to state this in the lease agreement, it becomes difficult to make a tenant remove the trampoline and could even appear that the property owner or manager is discriminating against children by making them remove a trampoline. If you discover that trampolines are prohibited by the insurance company, and your lease fails to address the issue, we still recommend that you give a Seven Day Notice of Noncompliance With Opportunity to Cure, and attempt to force the tenant to remove the trampoline. The tenant's use or possession of the trampoline is thus affecting the insurance coverage the owner has on the property, so this may be grounds for enforcing the removal of the trampoline and even the tenant if the tenant fails to comply.

Other Recreational Equipment

What about swing sets, above-ground pools or other toys or recreational equipment that may be prohibited by an insurance company now or in the future. Do you need to list out every possible item and prohibit it all? You simply need to have a clause in your lease which makes the tenant agree to not engage in any activities which can affect insurance coverage.

Here is a "Sample Lease Clause which may be helpful:

"No trampolines, athletic equipment, recreational equipment, or any items or activities which can cause interference with or affect the insurance coverage on the premises will be permitted. Tenant agrees to cease any activity and/or remove any items which causes interference with or affects the insurance coverage on the premises immediately upon notice from Landlord or Landlord's agent"

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PRIOR LAW: Prior to July 1, 2004, a landlord could require the tenant to give a specific amount of notice of vacating the premises. This had to be stated in the lease and could not exceed a requirement of 60 days' notice from the tenant. Most leases required a 30 day notice from the tenant, and failure to give such notice resulted in the tenant forfeiting their security deposit or having to pay an additional month's rent. The landlord was not required to notify the tenant in any way other than to state the notice requirements in the lease. Failure of the tenant to give notice would result in a forfeiture of money up to the amount of rent that the notice period required and/or the security deposit.

NEW LAW:Landlord can still require notice from the tenant of up to 60 days BUT MUST give tenant written notice of the tenant's notice obligation within 15 days of the beginning of the required notice period. This NEW notice from the landlord must contain information regarding the notice requirement, how the notice needs to be given, and the fees, penalties or other charges imposed upon the tenant if the tenant does not give the notice.

EXAMPLE: Lease requires tenant to give landlord 30 days' notice prior to lease end. Landlord NOW must inform tenant of this requirement by giving tenant written notice per FS 83.575 45 to 31 days prior to the beginning of the 30 day notice period. If the landlord fails to give this notice, and the tenant vacates without notice at the end of the lease, the landlord will not be permitted to charge tenant for failure to give notice. The new law does not specify HOW this notice must be given. We recommend giving the notice according to the terms of your lease, hand delivering the notice or posting on the tenant's door if your lease allows this type of delivery. If you are going to mail the notice, it is crucial that you ADD 5 BUSINESS DAYS for mailing, and avoid certified mail as often the certified mail is not picked up.

SAMPLE WORDING:

Place this in your Renewal Letter along with your other usual information.

"According to your lease, you are required to give us ______ days notice in writing if you are vacating the premise at the end of your lease term. Failure to give us this notice in writing will result in __________ Forfeiture of your security Deposit __________ You will owe us an additional _________ month rent."

PRACTICAL IMPLICATIONS: A property manager should always be diligent in determining whether a tenant is staying or leaving at the end of the lease term. Most property managers send out their renewal letters 30 to 60 days prior to the end of the lease as a standard procedure and should continue to do so just as in the past. The only difference is that NOW, a letter needs to get to the tenant within that 15 day timeframe before your required notice period. It is important to create a tickler file, mark your calendar, create a reminder on your computer, etc., to make sure that you do not miss this 15 day "window".

83.575 AS AMENDED Termination of tenancy with specific duration.--
(1) A rental agreement with a specific duration may contain a provision requiring the tenant to notify the landlord before vacating the premises at the end of the rental agreement; however, a rental agreement may not require more than 60 days' notice before vacating the premises.
(2) A rental agreement with a specific duration may provide that if a tenant fails to give the required notice before vacating the premises at the end of the rental agreement, the tenant may be liable for liquidated damages as specified in the rental agreement if the landlord provides written notice to the tenant specifying the tenant's obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The landlord must provide such written notice to the tenant within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the tenant under this subsection.
(3) If the tenant remains on the premises with the permission of the landlord after the rental agreement has terminated and fails to give notice required under s. 83.57 the tenant is liable to the landlord for an additional 1 month's rent. (Back to Top)