RELEASING YOUR TENANT FROM A LEASE
by Harry Anthony Heist, Attorney at Law

Many situations will arise when it is prudent to release a tenant from a lease. The tenant may be making a concerted effort to break the lease by making complaints regarding the property condition, mold, a sexual predator moving nearby, disturbances from neighbors, safety fears, or anything else the tenant can come up with. The reasons may actually be legitimate, but often the tenant simply wants to move for an unrelated reason. The landlord can take a hard line position and refuse to allow the tenant to break the lease and potentially face an even more concerted effort by the tenant, or worse yet, litigation may be threatened or instituted. If a tenant really wishes to break a lease, he simply will. Nothing can force a tenant to remain on the premise for the balance of the lease, and collecting monetary damages from a tenant who has vacated prior to the end of the lease is often hopeless. In some situations a tenant will outright request to be let out of a lease, and in other cases, the tenant should be "helped" out and the offer for a lease break given to the tenant. In such cases, the landlord actually wants the tenant to break the lease.

The Judge vs. The Lease

One of the hardest things for our clients to understand is that although the lease has a beginning and an ending date, a judge may allow the tenant to break the lease. The tenant is the poor helpless "consumer", and you are the rich landlord trying to penalize the tenant by holding them to the lease. A tenant may come up with an excellent story in court which may be a complete falsehood, and the judge is put in a position to either believe the tenant or the landlord. NEVER underestimate what a tenant can come up with, and do not think that the judge will always believe your set of "facts" over the tenant's set of "facts". Often a tenant can lie more convincingly than you can tell the truth.

Legitimate Tenant Complaints

If a tenant complains about a legitimate and verifiable problem that the landlord cannot rectify within a reasonable period of time, we feel that the tenant should be given an offer by the landlord to break the lease. Typical example could be a mold problem not caused by the tenant, some damage to the premises necessitating the tenant to vacate in order for a repair to be effectuated, or serious disturbances caused by neighbors which you cannot rectify. We recommend that the tenant be given a written offer to break the lease without penalty at any time by giving the landlord a particular number of days' notice. The number of days will depend upon then severity of the problem and how anxious the landlord is for the tenant to vacate. If the tenant fails to vacate, it will be more difficult in the event of a court action for the tenant who remains on the premises and withholds rent if the owner has made the offer to vacate and the tenant did not accept this offer. Occasionally a tenant will state in court that she would have vacated but did not, because she would be held liable for the rent under the lease. By making the offer to the tenant, this argument does not hold up.

Other Tenant Complaints

Many tenant complaints simply will be lame excuses to break the lease. You may feel they are completely ridiculous excuses or possibly even fabricated issues. Tenants may play the "repair game" when they request repairs, but then fail to allow access to the repair person. A tenant may have been subjected to a criminal act or vandalism to the premises. While your opinion is that the excuses are not legitimate or the tenant was involved in some criminal activity which caused a problem on the property, never underestimate what a tenant can do in court to convince a judge that there is some legitimate reason why the tenant's peaceful quiet enjoyment of the premises is being interfered with to the level at which the tenant should be allowed to break the lease. In many situations it will be best for all to just let the tenant go.

Returning the security deposit immediately

An effective way to help a tenant vacate quicker is to offer to return the security deposit immediately to the tenant upon vacating the premises. Most tenants will not wish to wait for the landlord to follow the security deposit claim procedures, and most will not trust the landlord to return the money. Tenants often request this immediate return as part of the terms of vacating. If this is part of a deal, it must be made clear when and how the money will be transferred, and the landlord needs to understand the risk that in the event there are damages to the premises, the funds will be gone. An inspection of the premises prior will be necessary to see if this is feasible. Your attorney will advise you on the mechanics, and a document should be drawn up detailing all the terms. You never should return the security deposit or any other escrowed funds until such time as the tenant is completely out of the premises, the keys are returned, everything has been removed from the premises, you have inspected the premises one last time, and the tenant has signed a "Confirmation of Vacating Premises". We do not recommend allowing the tenant to use the security deposit for the last month of occupancy, as you have no assurance that the tenant will in fact vacate the premises. We advise that if the tenant tells you they will vacate on a set date, the "Agreement to Vacate" is used.

Single Family Home Management

While an apartment management company has free reign to allow tenants out of a lease, if you are managing a home for an owner and you do not have full power in your management agreement to make such lease break decisions without owner input, it is crucial that the owner gives you permission in writing to allow the tenant to break the lease. You need to be clear with the owner that the tenant will be breaking the lease with no penalty if this is the case. This permission always needs to be given in writing. Often an owner will agree to a lease break, but is under the impression that the tenant will continue to owe the rent or forfeit escrow money that the manager is holding. It is imperative that all the terms are made perfectly clear to avoid an angry owner who wishes to take out his or her frustrations on the property manager by filing a FREC complaint or civil action.

Resistance by the property owner to a lease break

Most owners will not be sympathetic to a tenant lease break request. They are often absentee owners and do not understand the situation or Florida law. Most think that if a tenant breaks a lease, they will be able to "go after" the tenant for the rent money. Most property managers know that this is simply not feasible, as Florida is a "debtor" state, meaning the collection laws favor the debtor. Use your attorney to encourage the owner to allow the tenant to break the lease. A conversation between the attorney and the owner can often instill some sense and reasonableness in the mind of the absentee owner.

The Mutual Release

If a landlord and tenant agree to ending the relationship, the last thing either party wants is to have a potential lawsuit filed after the agreed upon lease break. This is where a "Mutual Release" will be advantageous to all parties. In this release, all the terms and conditions are set out, and all parties release each other from any legal liability, past, present and future. Can this completely protect the landlord? As for damage to personal property and money issues, the Mutual Release will accomplish the desired results, but beware that the landlord may still have potential liability. A tenant can sign a release and possibly later the tenant or a minor occupant could develop a health issue that he or she attributes to the tenancy. Do not trust a Mutual Release to completely protect the landlord in this situation, but always use one when allowing the lease break.

DOES A LEASE TERMINATE WHEN THE PROPERTY SELLS?
by Harry Anthony Heist, Attorney at Law

A common question that we get has to do with the status of a lease in the event of the sale of the property. The quick answer is that the property can sell a hundred times, and the lease will survive. When a tenant rents a unit, the tenant has a full right to use that unit for the period of time as defined in the lease agreement. While it is not a right of ownership, it is a right of use, and this right is strong and recognized under law. All terms and conditions of the lease will continue when only the ownership changes. Can the rights of the tenant and landlord be modified by contract? Absolutely, and often leases are prepared which do in fact terminate upon the sale of the premises.

Termination upon Contract

A lease can have a clause which allows termination by the landlord upon a "contract for sale" being entered into on the property. The advantage of this arrangement is that the sale may take place at a future date, and this may allow time for the tenant to vacate the premises so the property can be sold without a tenant in possession. The tenant may not vacate the premises according to the terms of the lease, and an eviction may be necessary. If the sale is contingent on the premises being vacant, termination upon contract for sale is the way to go. A landlord can abuse this clause by entering in a sham contract with a third party, so as to be able to invoke the termination upon contract clause. We do not recommend this ever be done, but we have seen it happen.

Termination upon Sale

In order to terminate a lease agreement upon sale of the property, the lease must contain a clause specifically allowing such termination. Additionally the clause should have a set number of days' notice for the tenant to vacate the premises upon such sale. Once the sale is consummated, the tenant must vacate within the set number of days. Not all tenants will vacate the premises according to the clause, so a potential buyer needs to be warned that he may be inheriting a potential eviction action.

The Security Deposit and other Escrow Money

A common mistake in property sales is not to address the escrow money. We have seen situations in which disputes arise between the buyer and seller as to who is entitled to the funds. The escrowed funds belong to the tenant. They need to be transferred to the account of the buyer upon closing, and the buyer needs to be made aware of their duties and responsibilities with regard to holding the funds and disposing of the funds upon the end of the tenancy. A common problem occurs when the sale is consummated and the buyer is not given the funds to hold in their escrow account, or the buyer is not made aware of the funds if an estoppel letter was not used. The buyer then finds herself in a position in which she needs to return the funds to the tenant who is vacating, but the buyer has no funds to return. Every real estate deal should carefully address the escrow funds, or the buyer may be put in the position of having to come up with these funds and then try to sue the long gone seller of the property.

Suggested Lease Clauses

1. "Termination upon Contract for Sale"

In the event a Contract for Sale is entered into on the premises by the owner and a third party, the lease shall terminate early at the option of the owner and tenant agrees to vacate within _____days notice from the owner

2. "Termination upon Sale"

In the event the premises is sold by owner to a third party, the lease shall terminate on the date of sale at the option of the owner or successor owner and the tenant agrees to vacate within ________ days from the date of sale

3. "Combo Clause"

In the event the premises is sold by owner to a third party or a Contract for Sale to a third party is entered into on the premises, the lease shall terminate at the option of the owner or new owner, and the tenant agrees to vacate within ________ days notice from owner or successor owner

FORECLOSURE AND THE RESIDENTIAL PROPERTY MANAGER
by Cathy L. Lucrezi, Attorney at Law

Just when you think you finally understand the ins and outs of landlord tenant law, you get a frantic call from the tenant with a foreclosure question. Now what? Do you have to learn about foreclosures in addition to evictions?

You don't need a lot of information about foreclosure procedures in order to cope. The information in this article should do the trick.

Why is the tenant served with foreclosure papers?

It is standard practice for the lawyer who is handling a foreclosure to name the tenant as a defendant in the lawsuit and to serve the tenant with a copy of the summons and complaint. This is done so that, at the end of the foreclosure, the new owner of the property is able to take possession very quickly.

The foreclosure is based on the owner's mortgage (or it might be a lien of some sort). It does not involve any money owed by the tenant to the owner. So, even though the tenant was served with a copy of the foreclosure lawsuit, it does not mean that the plaintiff is trying to make the tenant responsible for the debt.

Does the foreclosure affect the lease?

The filing of the foreclosure lawsuit does not mean the lease is ended. The owner is still the owner. Both the landlord and the tenant remain obligated to perform the lease. The lease will stay in effect until a foreclosure judgment is entered by a judge. That can be two or more months after the tenant received the foreclosure lawsuit.

The tenant's obligation to pay rent continues even though there is a foreclosure lawsuit. Thus, if the tenant fails to pay rent, you should serve a three day notice. The tenant is not entitled to break the lease due to the foreclosure, though it is possible that a judge could allow the tenant to break the lease, as the tenant's peaceful quiet enjoyment of the premises is being interfered with and the tenant's continued uninterrupted occupancy is at risk of ending suddenly and without much warning.

Must the tenant move?

Although the lease will end as of the day the foreclosure judgment is entered, the tenant will be able to occupy the premises until the day the property is sold at a foreclosure sale. The new owner will be entitled to get a writ of possession on the eleventh day after the sale.

Lots of things can happen between the day the foreclosure papers are served to the tenant and the foreclosure sale date. The owner might sell the property or refinance. In both of those situations, the lease would continue.

What should I tell the tenant?

It is tempting to help the tenant figure out what to do with the foreclosure papers. Even so, you should not offer legal advice. Do not advise him on what he should do in response to the lawsuit. You are not an attorney and should avoid the "quicksand" of offering "a bit of advice". If the tenant wants advice, he will need to consult with an attorney on his own.

You can tell the tenant that he should read the papers he received. The papers will tell him what he must do.

Should I continue managing the property?

This is a tough question. Does the rent continue to go to the property owner? Do the mortgage documents require that the bank begins to receive the rent money? We recommend that you call your attorney to discuss the matter, especially if you are notified or contacted by the bank or its attorneys. We recommend that you place a clause in your property management agreement whereby you have the right to terminate the management agreement in the event the owner has a foreclosure action filed against her. This will give you greater flexibility in making your decisions.

THE BASICS OF THE "UNCONTESTED" TENANT EVICTION - THE TIMELINE
by Harry Anthony Heist, Attorney at Law

Almost every property manager has or will eventually have to deal with filing an eviction. While those who file often are fully aware of the procedure, the new or "lucky" property manager often does not know the timeline in the process. A process it is indeed, and there are many steps along the way. The initial filing of the eviction is only the first step in a process in which the paperwork passes through many hands, and eventually ends on the day when the Sheriff meets you at the door and gives you possession of the premises. This article will set out the timeline for an UNCONTESTED eviction and give you an idea on why a typical tenant eviction takes between 20 to 45 days from beginning to end.

1. The Three Day Notice, Seven Day Notice to Terminate, Agreement to Vacate or Non-Renewal Notice has expired.

2. The Lease and Notice is transmitted to the attorney, usually by fax.

3. The attorney and legal assistants review the documents for problems, and the legal assistants input the case into the law firm's computer system.

4. The "Complaint" and "Summons" is generated by the law firm.

5. The "Eviction Package" consisting of the "Complaint", "Summons", attachments, stamped enveloped and checks for the Clerk of Court and the Process Server (or Sheriff in some counties) is given to the Clerk of Court.

6. The Clerk of Court files the eviction by entering the information into the court computer system and in many counties, scans the documents into their system.

7. The Clerk of Court mails a copy of the "Complaint", "Summons" and attachments to the tenant in the envelope your attorney has provided to them.

8. The "Summons", "Complaint" and attachment are picked up by the Process Server or Sheriff's Deputy.

9. The Process Server or Sheriff's Deputy goes to the rental unit and attempts to serve the tenant.

10. If the tenant is not home, the Process Server or Sheriff's Deputy must make a return trip no less than 6 hours later, and if the tenant is still not home, tapes the Complaint, Summons and attachments to the door. The tenant is now SERVED.

11. The Process Server or Sheriff's Deputy then enters the information into their computer system and generates a "Return of Service", which tells the Clerk how and when the documents were "Served". The Process Server faxes the Return of Service to your attorney.

12. The Process Server or Sheriff's Department clerk then files the "Return of Service" with the Clerk of Court.

13. The Clerk of Court enters this information into the computer system and files the "Return of Service" in the file.

14. The tenant now has five full business days, not including Saturdays, Sundays or legal holidays, to "Answer" the Complaint by writing a letter to the Court giving the reasons why he/she should not be evicted.

15. If the tenant does not file an "Answer" to the Court, the case is UNCONTESTED.

16. On the 6th business day after the tenant has been served, the attorney should or will file a "Motion for Default" with the Clerk of Court.

17. If the Clerk of Court is satisfied that the tenant has not filed an "Answer", the Clerk of Court will enter a "Clerk's Default", file this and enter it into the computer system. NOTE: The Clerk of Court must go through all the mail it has received by the Default date, or it will not enter the "Clerk's Default". This means that if the Clerk of Court is behind in opening mail, a delay can occur.

18. Once the "Clerk's Default" is entered, the file is brought to the Judge by the Clerk along with the unsigned "Final Judgment" the attorney has prepared and stamped envelopes for mailing to the tenant.

19. The file is now with the Judge.

20. The Judge reviews the file and if everything is in order, signs the "Final Judgment". If the Judge is busy, backed up, on vacation, in a Judge's conference or stuck in trial, a delay can occur in signing the "Final Judgment".

21. The Judge signs the "Final Judgment", and his/her Judicial Assistant mails out the "Final Judgment" to the attorney and the tenant.

22. Your attorney's legal assistants track the file and often know that the "Final Judgment" has been signed before the mail arrives.

23. Your attorney will notify you that a "Final Judgment" has been signed and ask you if you want a "Writ of Possession".

24. You check the unit, are absolutely sure the tenant has abandoned, nothing is in the unit, no one has been in the unit for a full 15 days, and you may notify the attorney's office that you do not need a "Writ of Possession". NOTE: We recommend you do request a "Writ of Possession" and finish up the eviction. It costs nothing for attorney's fees, it is a $70.00 fee from the Sheriff's Department, (more in a few counties) but money well spent. THE EVICTION APPEARS OVER, BUT YOU HAVE NOT ACTUALLY COMPLETED IT IF YOU DO NOT REQUEST A "WRIT OF POSSESSION" AND MEET THE SHERIFF AT THE DOOR.

25. You tell the attorney that you want a "Writ of Possession".

26. Your attorney submits a "Writ of Possession" to the Clerk, who "issues" it.

27. A check for $70.00 (more in a few counties) is attached to the "Writ of Possession" form, which is given to the Sheriff's Department with the issued writ.

28. The Sheriff's Department processes the "Writ of Possession" into their system and assigns it to a Sheriff's Deputy.

29. The Sheriff's Deputy goes to the unit and either tapes the "Writ of Possession" to the door or hands it to the tenant.

30. The "Writ of Possession" gives the tenant between 24 and 48 hours to vacate the premises, sometimes a longer period due to weekends and holidays.

31. The Sheriff's deputy calls you and tells you that he/she has posted the Writ of Possession and asks you if the tenant has vacated. YOU SAY: "I don't know and I want to meet you at the property when you execute the Writ of Possession". You do not say, "I will check the unit," or "Yes, the tenant has vacated."

32. You meet the Sheriff's Deputy at the unit and change the locks; the Sheriff's Deputy removes the tenant, and you take all the tenant's belongings to the property line.

a. If the unit is full, the tenant is not present, and you feel the tenant may have not known about the eviction, CALL YOUR ATTORNEY.

b. The unit has some belongings, trash, etc.; you remove it all to the property line.

c. If you did not bring help with you to remove the property, you can remove it at a later time.

d. You NEVER make an agreement with the tenant that you will extend the Writ of Possession or allow the tenant to "come back later" and retrieve the belongings.

FINALLY, ALWAYS CALL YOUR LAWYER IF SOMETHING IS ODD, YOU EXPERIENCE PROBLEMS WHEN EXECUTING THE WRIT OF POSSESSION, OR IF IT APPEARS THAT THE TENANT IS NOWHERE TO BE FOUND, BUT THE UNIT IS FULL OF BELONGINGS AS IF THE TENANT DID NOT KNOW ABOUT THE EVICTION.

INTEREST BEARING SECURITY DEPOSITS
by Harry Anthony Heist, Attorney at Law

Most tenant security deposits are held in non-interest bearing accounts in a Florida banking institution. This is due to the fact that most property managers do not feel it is worthwhile to keep the funds in an interest bearing account, as under current Florida law, the landlord will be required to account for the interest each year and either give this interest to the tenant in whole or part. Often the banks will not impose their monthly fees if the account is non-interest bearing, as the banks are reaping the rewards of the money held by them. Even in light of Florida law, many property managers see these often large deposits building in the bank accounts and are desirous of keeping the interest for their company. If you have 200 tenants each paying $500.00 in a security deposit, this amounts to $100,000.00 sitting in a bank, and potentially $5,000.00 in interest, assuming a 5% interest rate, being lost to the banks and not being received by the property manager. Unfortunately, Florida law simply does not allow the property manager to keep all the interest. This article will examine the current law regarding security deposits, how they are held and where the interest can go.

What must be held in that Escrow Account?

Deposit money must be held in the escrow account. Deposit money is defined by Florida law as any money held by the landlord on behalf of the tenant, including, but not limited to, damage deposits, security deposits, advance rent deposit, pet deposit, or any contractual deposit agreed to between landlord and tenant either in writing or orally. "Security deposits" means any moneys held by the landlord as security for the performance of the rental agreement, including but not limited to monetary damage to the landlord caused by the tenant's breach of lease prior to the expiration thereof. By the way, this definition is word for word from Florida Statutes Section 83.43 (11) and (12). As you can see, if you collect money from a tenant and that money is not a "fee" but a potentially refundable "deposit" or "advance rent", it must be retained in the escrow account and accounted for by the property manager.

The Non-Interest Bearing Account

Unfortunately, most deposit money is held in a non-interest bearing account for reasons previously mentioned. The bank retains all the interest, and the property manager and tenant get absolutely nothing in return. If anything, the property manager may get their bank fees waived, and this is common practice in many banks. The money must be in a separate escrow account in a Florida banking institution.

The Interest Bearing Account

Florida law states that if the deposit money is held in an interest bearing account, the property manager has two choices when dealing with the interest.

Choice #1: The tenant must receive of that interest paid at least 75% of the annualized average rate payable on such account. For the sake of simplicity, let's say that the deposit was $1000.00 and the interest paid on that money was $50.00. The property manager can choose to give the entire $50.00 to the tenant OR can give the tenant $37.50 and retain $12.50 for the property management company.

Choice #2: The property manager must pay the tenant 5% simple interest per year.

When and How Must Interest be Paid to the Tenant if Choice #1 or #2 is picked?

While this may come as a surprise to many property managers, the interest must be paid to the tenant directly or as a rent credit at least once annually, which means usually at the time of the lease end or renewal of the lease. Many property managers roll over the deposit money into a renewal, forgetting that they must account to the tenant for the interest and pay this interest or credit this interest to the rent. While there is no specific penalty to a landlord listed in the Landlord/Tenant Act, landlords who are licensed by the Division of Real Estate could find themselves subject to a serious FREC complaint for a simple mistake such as this.

So you still want to keep all the interest?

Some of our clients, against our advice, specifically agree with the tenant in writing in the lease agreement that the property manager shall retain all the interest on the deposits. These staunch believers in freedom of contract feel that if all parties are in agreement, it should be allowed and will not be challenged. Unfortunately, Florida law does not draw clear lines of when and where we can move outside of the Landlord/Tenant Act and contractually agree to something that is not specifically permitted in the Act. Florida Real Estate Law specifically allows parties to a sales transaction to agree who retains the interest on the deposits, but unfortunately, we do not have this specific authorization in the Act. We have seen clients who retain the interest in full audited on a regular basis, and the auditors have not cited them for this practice. If you choose to keep all the interest, do so at your own risk, and remember that in the event of litigated disputes, you always have to fear the potential of class action litigation. If you do the same or similar thing to all your tenants, attorneys can and will sue you in a class action. This can result in huge sums, including attorney fees and costs, paid by your company to your attorney, whether you win or lose, AND the plaintiff's attorney, if you end up losing in court.

THE OCCUPANT IS UNAUTHORIZED BUT IS NOT CAUSING A PROBLEM
by Harry Anthony Heist, Attorney at Law

At any given moment, people who are not authorized occupants or tenants on a lease are living in an apartment with the authorized tenant. This is just a fact of life. Possibly the occupant is there on a temporary basis or just has decided to move in with the tenant. Often the occupant is there for a long period of time, uses the amenities, makes repair requests, stops by the office and pays the rent and acts just like an authorized occupant or tenant. The unauthorized person become familiar to staff, and many of the staff members have no idea the person is not in fact authorized.

The tenant and the unauthorized occupant

A tenant who allows an unauthorized occupant to reside on the premises is in default of the lease and is blatantly disregarding the terms of the lease. That tenant is no different than the tenant who gets the unauthorized pet, parks improperly, causes a disturbance or does not pay rent. They are in default, pure and simple.

Why do we treat the unauthorized tenant lightly?

Usually if a property manager is not dealing with a HUD property or Low Income Housing Tax Credit Property, an unauthorized occupant is overlooked. If the tenant is paying the rent, the property is kept up, there are not an excessive number of tenants in a unit, occupancy is low, and parking is adequate, a property manager will overlook the unauthorized occupant.

The huge danger of overlooking the unauthorized occupant

An unauthorized occupant is living on the premises without having gone through the normal credit or criminal background check. He or she may have an extensive criminal record, or even be a sexual offender or predator. The property manager has no idea of this and would have almost certainly turned this person does under normal application screening procedures. Nevertheless, the mystery person is now living on the premises.

The unauthorized occupant is locked out and needs to be let in

One of our clients recently had a situation in which a woman that the maintenance tech recognized needed the maintenance tech to open the apartment in the early morning hours, as she had locked herself out. Since she was familiar looking to the maintenance tech, as she had lived on the property for quite some time, he opened up the apartment for her. She then decided to remove everything of value from the apartment. Later that day, the actual tenant came home to find all his items of value taken, and the maintenance tech admitted he had let the woman in the night before. Problem? She was not an authorized occupant, and maintenance had no right letting her into the unit. Liability? What do you think?

A recent tragic case underscoring potential liability

Here is the scenario. This same scenario can apply to a tenant renting in a condominium or single family home. An unauthorized occupant becomes familiar to the staff and has resided on the property for some time. The unauthorized occupant kills another tenant in the apartment community. Is the apartment community liable? Over the next couple years, this exact case will be tried and a jury will decide. How would you decide?

Our recommendations

We strongly urge that you take an unauthorized occupant seriously and consider it a serious lease default. If you wish to authorize this person, please read the articleAuthorizing the Unauthorized Occupant and take the steps to authorize the occupant if you so desire. Otherwise, serve your Seven Day Notice With Opportunity to Cure, refuse any rent payments, call your attorney, and evict everyone if the tenant refuses to remove the unauthorized occupant. Remember that once you know there is or was an unauthorized occupant, make sure you follow up to confirm that the person is truly gone and not just being more careful about being caught.

When To Call The Police On Children
by Harry Anthony Heist, Attorney at Law

A child starts a fire in the playground, climbs on the roof, sprays graffiti in the laundry room, and hits another child. What do you do? Probably speak to the parents. The usual outcome is a complete denial by the parents that THEIR child could be involved in such behavior, and possibly the child's behavior improves or gets worse. Rarely if ever are the police made to be involved, as you know the police usually will not do much anyway, and proof issues are tough. Ironically though, if a 45-year old man engaged in the same or similar activity as the child, you would be on the phone calling 911, and you would be pushing the police to arrest the man and pressing charges. Why the disparate treatment? The same child that caused the original problems may eventually burn the place down or shoot a child in the eye with a BB gun. Now YOU were on notice, and YOU did not do anything earlier. Liability? You bet!!

Why call the police?

The reason the police should be called is to clearly document the occurrence and impress upon the child and the parents of the child the gravity of the child's actions. In most cases no arrest will be made, but often the police will speak to both the parents and the child and put a level of fear into both. By calling the police, you are showing that you consider the matter important and are building a paper trail. If the matter is serious enough, the child will be arrested.

When to call the police

Whether the police are called out to the property will depend upon the action of the child. Obviously, calling the police for every incident large and small will result in the police eventually ignoring your calls and potentially a discrimination claim by the parents that you are engaged in familial status discrimination. The hard part is to determine when it is appropriate to get police involved and when the matter should be handled in-house.

Property Damage or Theft

Commonly children engage in vandalism on the premises. This may include vandalism to property belonging to the apartment community or property belonging to other tenants. The vandalism may be slight; for instance the child breaks out a light bulb or pulls a shrub out of the ground or starts a small fire in a garbage can. The vandalism is more serious when a significant amount of damage occurs on the premises or to another tenant's property. In some cases you will be dealing with theft of property belonging to the apartment community or another tenant.

Damage to or theft of another tenant's property

It is our opinion that in any case where a child damages or steals another tenant's personal property, the police need to be called and this treated as any other serious crime on the property, no matter how small the incident may seem. Usually the victim will not want to press charges. The police will defer to the victim's wishes, but the paper trail has been started, and the victim knows that you consider the tenant's personal property important. Failure to take definitive action could result in the victimized resident using this incident as a way to break a lease.

Damage to apartment community property

A policy needs to be set whereby the property manager can decide if the damage warrants calling the police or just speaking with the parents and serving the Seven Day Notice to Cure. This policy can be based upon a monetary limit or the type of damage involved. Toilet papering the balcony would not warrant police action, while graffiti with paint or some difficult to remove substance certainly would. Discharging a fire extinguisher is an illegal action, and we feel this warrants police involvement. Breaking light bulbs with rocks may seem slight, but if some other tenant is the victim of a criminal act because the crime area was not well lit following the prior vandalism, you can see the severity of a child breaking a light. In many instances of property damage, the damage is reported to you by other children. While their testimony often will not hold much weight, the child may admit to the damage. You might choose not to get police involvement, but rather serve the parents with a Seven Day Notice to Cure, charging the parents for any costs related to repairing the damage.

Theft of apartment community property

Not a week goes by when we do not have a case in which a child decides to take a golf cart on a joy ride throughout the premises. Usually the maintenance tech has left the key in the switch, and the temptation is just too great. We recommend calling the police if a child uses a golf cart without permission and/or causes damage with or to that golf cart. If an adult did it, you would want them put in jail. Don't be so easy on that "future" car thief.

Actions which do not rise to the level of criminality

Children often engage in behavior such as climbing on the buildings, skateboarding down railings, using the pool after hours or throwing the pool furniture into the pool. These actions would usually warrant a Seven Day Notice to Cure rather than police activity.

Actions of a sexual nature

Rapes and attempted rapes or sexual molestations occur on a regular basis in apartment communities and condominiums. Often you hear about something occurring through the grapevine. There are a huge number of children who engage in sexually inappropriate behavior, sometimes with the consent of the victim. These matters are extremely important to deal with using the police, even if just based on a rumor or one child's word against another. Often the police will make an arrest if the child admits to the action or there are enough witnesses. Insisting on a police report is crucial, as the police report will include the statements made by the child, which your attorney can then use against the child later in court upon subpoena of the police officer. A child who commits sexually inappropriate behavior on the premises has a serious problem which usually does not go away. but instead worsens.

Use of firearms or weapons

Any use of firearms, weapons or projectile shooting equipment should immediately result in police action. A child who shoots a BB gun off the balcony at other persons, property or animals has absolutely no regard for the seriousness of his actions, and this needs to be dealt with swiftly. BB guns, paint ball guns, sling shots and other common weapons are given to children as gifts on a regular basis. They are fine on the 5-acre farm but completely inappropriate and potentially illegal and deadly when used on the premises of an apartment community. Will the child be arrested? Probably not, but this is a serious matter. A report must be created, and potentially the tenant will be evicted if your attorney advises this action.

Suppose the police do nothing?

Often the police will do absolutely nothing other than maybe speak to the parent or child. You need to insist that at a bare minimum some report is written up, other than simply a visit log that the police normally will have if they respond to the site. Even though the police may do nothing, the property manager MUST serve their Seven Day Notice to Cure, or in rare cases, the Seven Day Notice of Termination. Your attorney will assist you in wording the notice to avoid any danger of it appearing that you are engaged in some sort of discrimination.

At a bare minimum, make sure the parent or guardian of the child involved is served a Seven Day Notice. Never stop at a long lecture or a warning letter. Whether it is a Seven Day Notice to Cure or a Seven Day Notice of Termination will of course depend upon the circumstances, and most importantly the advice of your attorney. Many property managers become frustrated when they believe a child's actions merits a termination notice and eviction, when their attorney advises against a termination notice. Trust your attorney's judgment on this. Most property managers have no clue how difficult noncompliance cases can become or the financial consequences of losing the noncompliance case. An Agreement to Vacate may be another possibility, and your attorney will be able to best advise you.

DOMESTIC DISPUTES
AND
TENANT RESTRAINING ORDERS

by Harry Anthony Heist, Attorney at Law

In the event of domestic violence, a party is able, by filing a sworn affidavit with the court, to get a temporary injunction for protection, also known as a restraining order, against another party. This injunction goes into effect almost immediately, and a hearing is set at a later time when a judge determines if the injunction is to continue or if it will be dismissed. The main purpose of an injunction is to keep one person away from another person, to prevent a possible escalation or continuation of violence or threats of violence.

A property manager is often made aware of the existence of an injunction by the person who has sought the injunction, the Petitioner. In most but not all, the Petitioner is a female tenant. Situations will arise where the property manager is unwillingly brought into the picture. The property manager may be asked to change locks or may be asked by the Respondent to have access to the rental unit.

What Is Domestic Violence?: Domestic Violence as used in F.S. 741.28 - 741.31: "Domestic Violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit.

"Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who have a child in common, regardless of whether they have been married or have resided together at any time.

What is Repeat Violence?: Violence as used in Florida Statute 784.046, means any assault, battery, sexual battery, or stalking by a person against any other person. "Repeat Violence" means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member.

What is Dating Violence?: Dating violence means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature.

What Will an Injunction Do for the Petitioner?

It will legally prevent an alleged abuser from committing any further acts of violence to the Petitioner or from threatening the Petitioner.

It may provide the Petitioner sole possession of a dwelling the Petitioner and the Respondent shared.

It may restrain the Respondent from going to, in or within 500 feet of Petitioner's residence, place of employment, place of school, or places the Petitioner and family frequent.

It may provide no contact between the parties, in any manner.

It may require the Respondent attend counseling, treatment or a batterer's intervention program.

It may require the Respondent not to possess a firearm or to surrender any firearms to law enforcement.

It may address awarding temporary custody of any minor child(ren) between the parties, and visitation of the child(ren).

How does a party get an Injunction against another person?

The Petitioner must go to the courthouse and file a complaint. The person should bring with them police reports or referral cards furnished by a law enforcement officer, if any, proof of identification, specific dates of abuse or threats of abuse, specific locations where abuse or threats occurred, a mailing address of a friend or relative if the Petitioner chooses to keep the residence address "confidential" as provided by law, a picture, if any of the Respondent, to provide to Sheriff's Department for service purposes. The Petitioner must know and disclose the full legal name of Respondent, physical description of Respondent, current residence address of Respondent, including telephone number, social security number, if possible, and driver's license number, Respondent's employer and employer's address and phone number, if possible, and Respondent's vehicle information, including make, model, color, year and tag number if any.

The "Temporary Injunction"

Upon review, the court may issue a "temporary injunction" which must then be served on the Respondent. The Petitioner can notify the Sheriff as to the whereabouts of the Respondent so the Respondent can be served. The key word here is "temporary". The injunction will only last a certain fixed number of days, and then a court hearing will be set and held, at which the judge will decide if the injunction will be made permanent, the terms of the injunction, or if the injunction will be dropped. If the Petitioner fails to show up in court and pursue the injunction, the injunction will be dissolved. This is a common occurrence, so it is important that the property manager understands that an injunction may not be in effect when the Petitioner says it is in effect. This is where law enforcement comes into play, as they know through their computer system the actual status of the injunction. Never take the Petitioner's or Respondent's word for anything regarding the injunction. Get law enforcement involved.

Requests to change locks

In the event a property manager is asked to change locks on the premises, our office recommends that this is not done by the property manager, unless the property manager is specifically directed to do so by a court order. If the Petitioner wishes to changes the locks, we recommend that the Petitioner not be stopped from changing the locks, and the Petitioner should be required to provide the property manager with a key.

Request for access

A common scenario occurs when the Respondent comes into the property manager's office and demands to be let into the unit or demands a key to the unit. Since the lease contract is between the parties and the property manager, it may seem that the property manager is required to grant the Respondent access. The police should be called immediately and asked to come to the property. Often the Respondent simply wishes to get clothing or other personal items from the property. The police will often accompany the Respondent to the rental unit, at which time the property manager, upon request, can grant access to the police and the Respondent. Often when the property manager indicates that the police will need to be involved, the Respondent takes off out of the office and does not wish to deal with the police. Never should the property manager take it upon himself or herself to assist the Respondent. Law enforcement should be involved.

Requests to be let out of the lease

The Petitioner or the Respondent may request to be let out of the lease, either because they no longer have legal access due to the injunction, or the Petitioner wishes to move away from the property to a place where the Respondent cannot locate him or her. It will be a business decision by your owner or company as to whether this request will be granted. If it is granted, the other party does not have to agree to this request, and you can let either or both parties out of the lease obligation. Your attorney should be called in cases such as these, so the proper documents can be executed. Remember that if you let the Petitioner out of the lease, the Respondent still has a contract with you and has a legal right to possession of the rental unit, even though this right of possession may not be able to be exercised due to the injunction. Never remove the Respondent's property from the unit or take possession, unless it is certain that all parties have relinquished to you full possession of the premises.

Requests by the Petitioner to take the Respondent off the lease

In some cases, once the injunction becomes permanent or in the event the Respondent is incarcerated or otherwise indisposed, the Petitioner will request that the Respondent be taken off of the lease. One tenant cannot unilaterally take another tenant off of a lease. The party being taken off of the lease must agree to this. No matter what story you get from the tenant, you cannot take the Respondent off of the lease. Your contract is with both the Petitioner and the Respondent. Their personal issues are not your problem, and unless you are ordered by a judge to remove an individual from a lease, you cannot oblige.

The Petitioner vacates - Is the unit abandoned or surrendered?

The Petitioner who was granted occupancy of the rental unit by the court may vacate the premises. Is the unit abandoned? Can it be surrendered? We are not sure. Since the lease agreement is valid with both parties, the fact that the Petitioner vacates most likely cannot grant possession to the landlord. After all, the Respondent would be living there if he or she could, but simply cannot as the injunction prohibits this. Personal property may be left behind by the Petitioner who vacates the premises, and this property may belong to the Respondent. The Respondent may even petition the court to have the right to use the premises in the event the Petitioner vacates. This is an odd situation, and we urge you to call your attorney to see what options you may have based on the fact pattern.

Our Recommendations

Since an injunction is not an everyday occurrence the property manager must deal with, we strongly urge you to call your attorney the moment the issue arises. Handling the matter incorrectly could result in serious liability for the landlord or property manager. Most importantly, never get emotionally involved with a dispute between tenants. Taking sides can often lead to poor judgment calls, surprises and retaliation against the property manager.

REMOVING THE CHILD CRIMINAL
by Harry Anthony Heist, Attorney at Law

While there is no requirement under Florida law to determine the criminal background, if any, of a potential tenant, many property managers choose to run a criminal background check on the applicant. Often these criminal background checks are not completely accurate, and applicants often slip through the cracks. Unfortunately, there are major deficiencies in record keeping and access to the criminal records. Often this is due to the delay of states reporting to the federal databases. Most apartment communities routinely run criminal background checks to help minimize liability, since the tenant will be living in close proximity with and interacting with other tenants on the premises. Criminal background checking is on the rise among single family home managers, and both single family home managers and multi-family housing managers are creating resident selection criteria which the applicant must pass in order to be approved. The reality of many rental situations is that the background checks are run on the adult applicants, while no information is gathered on the occupant of the rental unit if the occupant is a juvenile. Juvenile records are not available to the public, and a property manager has no way whatsoever to know the background of the child.

The Child Criminal

Thousand of juveniles commit crimes each year, many of an extremely serious nature. In fact, a large percentage of adult criminals have long juvenile records. These crimes could include murder, rape, serious bodily harm and major damage to personal property, such as arson, resulting in incarceration of the child in a juvenile detention center. These juveniles are living in apartment communities and homes and often are not rehabilitated upon release from a juvenile detention facility. This increases the probability that the juveniles will continue to engage in criminal behavior, which is dangerous to society. Traditionally, laws have protected juvenile criminals by sealing their records. After offenders turn 18, their records are expunged or sealed, depending on state law. The philosophy behind this anonymity: juveniles should not be stigmatized for the rest of their lives for acts committed while they were children. The emphasis of the juvenile criminal system is on rehabilitation, not punishment.

The Discovery of the Juvenile Criminal

In most cases, the property manager will have no idea that the juvenile occupant will have a criminal past. It is often discovered when a courtesy officer, who is often a law enforcement officer, runs a criminal background check on a juvenile due to an incident on the property, or a neighbor discovers from some source that the juvenile has a criminal record. The law enforcement officer has greater unrestricted access to this information, and although they are not permitted to disclose this information, the word gets out. When the word gets out, now what?

If the property manager refers back to the application, most likely there will be the question asked of the applicant on the application if the applicant has been convicted of, arrested for, put on probation for, or had adjudication withheld or deferred for a felony offense. The answer will most likely be "no", and this will be a truthful answer. The problem is not in the answer here, but rather the question asked.

The Proper Question

Instead of limiting the question regarding a criminal past to the applicant only, we recommend that the applicant is asked if any occupants have a criminal past.

A sample more inclusive question would be:
Have you or any occupants ever been convicted of, arrested for, put on probation for, or had adjudication withheld or deferred for a felony offense?

Now it is quite possible that the applicant will answer "no" to this question, you will run your background check, and the applicant will be approved. The key here is that you have asked the question and it is later determined that an occupant does indeed have a criminal past, the tenant's lease can be terminated based upon a misrepresentation on the rental application.

The Misrepresentation Wording

Every lease and/or application should include a clause which states that a tenancy can be terminated in the event the tenant lies on the application. Typical wording on an application would be:
Applicant agrees that false, misleading or misrepresented information may result in the application being rejected, will void a lease/rental agreement if any and/or be grounds for immediate eviction with loss of all deposits and any other penalties as provided by the lease terms, if any.

If the application and/or lease includes such or similar wording, and there is a material misrepresentation made, lease termination is usually no problem, and the tenant can be evicted if necessary.

Our Recommendations:

In the event it is discovered that a child occupant was convicted of a serious offense, and the tenant indicated "no" on the question regarding the applicant or occupants, the landlord should speak with the tenant and attempt to get the tenant or tenants to sign an "Agreement to Vacate". Filing an eviction based on the failure to disclose the child's criminal past would require that criminal past to be disclosed in court. The problem is these records are sealed and not available to the landlord in the civil action, thus making the case difficult if not impossible to prove. If proof is not available, we must rely upon the tenant to agree to vacate the premises. Monetary incentives can be used for this if necessary, and the Agreement to Vacate will be the proper form. Many tenants are desirous of signing the Agreement to Vacate, and it should never be dismissed as an option to have a tenant voluntarily vacate the premises. Once an Agreement to Vacate is signed, the failure of a tenant to vacate makes for an easy eviction action, as the landlord need only prove the tenant failed to vacate the premises after signing the agreement. Since the discovery of a criminal child occupant is a relatively uncommon occurrence, we recommend you immediately call your attorney to discuss the matter and the strategy.

MAILING THE THREE-DAY NOTICE
by Harry Anthony Heist, Attorney at Law

Mailing the Three Day Notice is fraught with problems The tenant can deny receipt of the notice, extra days must be added to the expiration date of the notice due to mailing, potentially more days added if payment is to be by mail, and the notice should not be called a Three Day Notice at all, since it will be far more than three days. Since a mailed notice will not be a true Three Day Notice, we will refer to the notice in this article as a "Notice to Pay Rent or Vacate"

Why mail a notice?

1. The lease may require it. The lease agreement may actually require that a Notice to Pay Rent or Vacate be mailed. A property manager will often inherit leases from other states, homemade leases or those drafted by attorneys who are unfamiliar with the workings of landlord/tenant law. The property manager faced with an unfamiliar lease needs to carefully read the lease to see if there are any clauses pertaining to the mailing of notices. Many attorneys, feeling that mailing is a preferred way of the landlord getting notice, draft a reciprocal clause in the lease requiring all parties to give notice by mail. If the lease requires notice by mail, this must be followed, even though Florida law does not require the mailing. While it may seem sensible to require a tenant to give the landlord notice by mail, unfortunately requiring the landlord to do the same is unwise and can result in serious delays.

2. The landlord chooses to mail the notice. Landlords often choose to mail the Notice to Pay Rent or Vacate if the property is an excessive distance from their home or office. No landlord wants to drive a long distance to serve a notice; thus, mailing is often the preferred choice. While we do not recommend it, we know that the realities of a long distance tenant, where the landlord may not have a local property manager, dictates this method of delivery.

How to date the Notice to Pay Rent or Vacate if the Notice is mailed

The expiration date of the Notice to Pay Rent or Vacate is dictated by the date of mailing of the notice and by how the tenant is to pay the landlord the rent.

Notice is Mailed and Tenant is to pay rent by mail: 5 days must be given for mailing time, 5 days must be allowed for the tenant to pay rent by mail and 3 business days must be given. The result? The notice has now become a Thirteen Day Notice to Pay Rent or Vacate which gives the tenant 13 days excluding Saturdays, Sundays and Legal holidays from the date the landlord mails the notice. Since weekends will always fall in the 13 business day period, we must allow at least 3 business days exclusive of the mailing times. As you can see, this method of delivery and payment will result in a substantial amount of time for the tenant to pay the rent, resulting in a large loss of income for the landlord in the event of nonpayment, as no eviction can be filed until the notice expires.

Notice is mailed and Tenant is to drop off rent: If the Notice to Pay Rent or Vacate is mailed and the tenant is to drop off the rent, the landlord must use an Eight Day Notice. 5 days are given for mailing plus the 3 business days as required by Florida Statutes, not including Saturdays, Sundays or legal holidays. Again, mailing a Notice to Pay Rent or Vacate is not the preferred method, as it results in delay.

Mailing AND Posting or Hand delivering the Notice to Pay Rent or Vacate

With the exception of certain properties governed by special federal regulations, a Notice to Pay Rent or Vacate should NEVER be mailed AND posted on the premises or hand delivered, or unless it is (strangely) required by the lease agreement. If the landlord posts a Notice to Pay Rent and then mails one, presumably the tenant will receive the Notice to Pay Rent by mail between 2 and 5 days after the notice is posted. This causes confusion. In one case you are telling the tenant they have a certain number of days not including Saturdays, Sundays or legal holidays to pay the rent, but then the tenant receive the notice by mail at a later date, which says the same thing. Which notice applies? The mailed one might not allow enough time, while the posted or hand-delivered one may. This conflict causes confusion and ambiguity. The second notice received may cancel out the first notice, the second notice is possibly short, and the bottom line is that the notice is just legally improper. Never serve a Notice to Pay Rent or Vacate by BOTH mail and posting on the premises or hand delivery. While it may seem logical that this will insure that the tenant gets notice, the technicalities will render it invalid.

To whom must the tenant pay rent?

Typically, a tenant pays rent to the same person at the same address throughout the tenancy. The problem arises when this address changes. How is the tenant notified that the payment address has changed? Should the tenant simply pay to whatever address is listed on the Notice to Pay Rent or Vacate? Due to the increasing numbers of out-of-state landlords who are intent on managing their property from afar, situations will arise where the out-of-state landlord decides to hire a property manager or designate someone his or her agent for the purposes of collecting delinquent rent. A new address on a Notice to Pay Rent or Vacate is not enough. The landlord must notify the tenant in writing of an address change or agent change, and often this is not done. Beware of the out-of-state landlord who wishes that you "help" them with serving a notice or collecting rent. Proper authorization and direction by the landlord is a must.

DEALING WITH THE GAS GRILL
by Harry Anthony Heist, Attorney at Law

Each year thousands of explosions and accidental fires occur due to the use and misuse of gas grills, resulting in of thousands of injuries, millions of dollars in property damage and approximately 20 deaths. Gas grills are dangerous and are usually prohibited in multi-family housing and condominiums, either due to company policy or fire code. Should a property manager prohibit gas grills in all rental housing including single family homes? You may want to give this some thought and read on.

The Mechanics of the Gas Grill Danger

1. Failure to use proper ventilation. Many tenants fail to realize that gas grills emit carbon monoxide, an odorless gas which can kill. Tenant sometimes will use a gas grill in an enclosed patio due to inclement weather or actually use a gas grill completely inside the premises.

2. Explosion of gas when during ignition. Most gas grill users at one time or another turned on the gas, had trouble lighting the grill, had the grill top down and experienced the mini-startling explosion when the grill finally lit. Usually the result is embarrassment and some singed hair. This explosion can be far greater if the grill user forgets the gas is still on and running, and a significant delay occurs between turning on the valve and eventual ignition. A larger explosion can injure a user or cause fire to flammable materials which may be near the grill.

3. Venting. Propane tanks have a pressure relief valve which allows the propane to vent in the event the pressure inside the tank exceeds a manufacturers pre-set PSI (pounds per square inch). This is a safety mechanism to prevent the entire tank from rupturing in the event the pressure becomes too high. Pressure in a tank can become too high if the temperature around the tank is high, such as when the tank is sitting in the trunk of a vehicle, in the sun or in a very hot car. Propane has a chemical additive called ethyl mercaptan which is use to give the propane a distinct odor, but often this odor dissipates or is not detected by a user. The propane can be steadily venting, and a simple spark or lit cigarette can spell disaster.

4. Defective valves and hoses Any long time user of a gas grill will experience the gas grill falling apart in time. The first thing to go is the igniter, the burner on the side goes shortly thereafter, and with time, the hoses can deteriorate. Leaks can and do occur, and a build up of undetected propane can result in a major explosion and often a resulting fire.

So, do you really want that grill on the rental property?

It is completely up to the landlord whether or not gas grills are allowed on the premises. A tenant has no inherent right to use a gas grill on or near the premises, and the lease can simply prohibit its use.

Sample Clause

"No gas (propane or any other flammable gas or liquid) grill or tank or tanks containing any flammable gas or liquid shall be used or stored on or rental premises. The premises for the purpose of this section includes the interior of the premises, the exterior, any common areas, balconies, hallways, lanais, storage areas or garages."

Dealing with the Tenant Noncompliance

Some tenants believe rules governing grills are meant to be broken. The landlord needs to take swift, firm action against the tenant to get compliance. Failure to take action will increase the landlord's liability and may result in a violation of the state or local fire codes. A prohibited gas grill is a violation of a curable nature. The tenant needs to be served a "Seven Day Notice of Noncompliance With Opportunity to Cure. This gives the tenant seven full days to remove the grill. Failure by the tenant to remove the grill is a continuing noncompliance, and the landlord then needs to document the presence of the grill after the seven day cure period has expired by way of photos, videos and witnesses. The landlord should also consult with an attorney, who will probably recommend that the tenant be served a Seven Day Notice of Noncompliance, Notice of Termination. Failure to vacate the premises will then result in an eviction action.

Suppose rent is due while the tenant has the grill and is noncompliance?

Our office recommends that you do not accept rent from the tenant if the tenant is in noncompliance. Accepting rent is tantamount to giving the tenant a green light for the month in which rent was accepted and can cause your notice to be voided out.

Self-Help Grill Removal

Our office never recommends that the landlord conducts self-help by removing a tenant's personal property, and this could include a gas grill. The tenant could accuse the landlord of civil theft or even criminal theft. But, what if the Fire Marshall is demanding that the grill is removed and is ready to fine the landlord, or the landlord is aware that the tenant has the grill inside the rental unit? Possibly it will be permissible for the landlord to remove the grill or at least the propane tank in such emergency circumstances, BUT we advise that you give your attorney a call before taking any self-help measures. Our office is always available for any questions at 1-800-253-8428

HOW TO HANDLE THE HONEST MISTAKE
by Harry Anthony Heist, Attorney at Law

There will invariably come a time when a landlord simply makes an honest mistake. How the landlord handles the mistake can have a great effect on the outcome and resolution of the matter. The tenant is the consumer, and consumers often feel that they are entitled to some sort of compensation from the landlord. Whether they truly are entitled to compensation is really not the issue; the bottom line is that they feel that they are. Making the wrong statements or taking the wrong actions can turn a small problem into a tremendous time consuming and expensive proposition. This article will examine some of the common mistakes made by landlords and some suggested courses of action.

You thought the tenant vacated

This is a common mistake. The lease is up or almost up, the landlord checks the unit, the electricity is off, and all appearances seem to indicate that the tenant is indeed gone. There are a few items left behind, but the landlord does not feel they are of any value, and the landlord throws the items away and changes the locks. The tenant returns furious and is demanding the items back, and then compensation when he realizes they are gone.

Recommendation :Keep the tenant as calm as possible, make him understand that you were under the impression that he had vacated, and give him an "Incident Report" to fill out. Once this is filled out and firmly in your control, you can decide to come to an agreement with the tenant for compensation. It is crucial that you do not act excited or scared, as the goal is to have the tenant tell the truth and to accept a fair settlement. Once you agree on an amount, we recommend strongly that you have the tenant sign a release if money exchanges hands.

You served a Three Day Notice but the tenant had already paid the rent

This seemingly innocent mistake can enrage a tenant and potentially have legal ramifications, especially if you served the notice in a fashion where neighbors could see the notice. The tenant is embarrassed and enraged.

Recommendation : Keep the tenant as calm as possible, downplay the notice, and tell her it simply was a mistake. Profuse apology is not necessary. Use the opportunity to change the subject, and ask her if there are any maintenance requests or problems.

You accidentally filed an eviction but the tenant had paid the rent

You would be amazed how often this occurs. An accounting error results in an eviction being accidentally filed, or you forget to cancel the eviction with your attorney. The tenant will most assuredly call you or storm into the office with eviction papers in hand.

Recommendation :Call your attorney immediately, have him or her prepare and file a Voluntary Dismissal immediately, and give a copy to the tenant. Your attorney can do this immediately while the tenant is fuming in your office. If the tenant asks whether this will show up on the credit record, you may have to admit that the eviction filing will be a matter of public record, and you will be happy to provide a letter that the tenant can use showing that the eviction was simply filed in error. If you don't immediately dismiss the case, or the tenant gets an attorney, you could end up paying hundreds if not thousands of dollars in attorney's fees. Take action fast, and again downplay the situation

You engaged in some sort of self-help personal property removal

Your tenant has an old couch in the yard, a rusty bike and a car transmission on the front lawn. Code enforcement is citing the property, and you send your maintenance staff to remove the items and take them to the trash heap. The tenant is furious at you and now wants you to pay for his valuable items.

Recommendation:Keep the tenant calm, do not let the tenant know you may have committed a crime, or at the bare minimum, civil theft, have the tenant fill out an "Incident Report", and try to settle. As with any settlement, use a General Release. You do not want to involve police or lawyers in this matter.

You told the tenant "You should have purchased "renters insurance"

Many casualties can occur in a rental unit that are through no fault of the tenant. A few examples are pipe breaks, water heater breaks, water intrusion due to a roof leak, and power surges due to a faulty wire. Are these the tenant's responsibility or the owner's responsibility? No one is sure. Many landlords rely on the clause in the lease that states that the landlord is not responsible for the tenant's personal property. Will this clause be upheld in court? Maybe not, if a judge believes the tenant receives an implied warranty of habitability, or if the disclaimer clause is overreaching. One of the worst things a landlord can say when the tenant asks for reimbursement for a damaged item is, "You should have renter's insurance." This infuriates the tenant, and instead of the tenant wanting $500.00, the tenant goes to an attorney, and the amount now goes up to $5000.00.

Recommendation:

The next time casualty occurs to a tenant's personal property, get them to fill out an "Incident Report" immediately, and DO NOT immediately tell them that you are not going to pay for the damage. You may later refuse to pay or you may settle, but in the meantime, you want the tenant to memorialize the amount in writing to avoid future problems.

The "Incident Report"

Below is the Incident Report we recommend you use. This can be downloaded by going to FORMS DOWNLOAD

INCIDENT REPORT
TO BE FILLED OUT BY TENANT Tenant Name _____________________________________

Apartment number ________________ Date: _______/_______/______

Date of incident____/____/_____

_____PERSONAL PROPERTY DAMAGE OR LOSS

_____APARTMENT DAMAGE

_____VEHICLE DAMAGE

_____INJURY TO PERSON(S)

Detailed description of event, loss etc: BR>

________________________________________________________

_________________________________________________________

_________________________________________________________

_________________________________________________________

_________________________________________________________

__________________________________________________________

__________________________________________________________

Cost estimate of damage/loss $________________

Witnesses to damage/loss:

Name_____________________ Phone_____________________

Name: ________________________ Phone_____________________

I hereby swear that the statement I have made regarding the aforementioned incident is true.

______________________________
SIGNATURE OF TENANT

DATE_________________________

TERMINATION OF MANAGEMENT BY THE PROPERTY OWNER
by Harry Anthony Heist, Attorney at Law

You have been diligently managing the rental property, dealt with all the repairs, tenant complaints, collected rents, remitted payments to the owner and followed all laws. The property owner then notifies you that you are fired. The owner either wants to manage the property himself or herself, or has decided to hire a new property manager. You first reaction is usually anger and infuriation, unless of course you had been hoping for this moment, but now you need to take certain steps. The owner will invariably want you to transfer the funds, security deposit moneys and file to him or his new property manager. Can you do this? Is the owner entitled to the documents you are holding? Is it legal to transfer the security deposit to the owner? Many questions will arise when dealing with the firing process, and a simple mistake or poor judgment call can result in a FREC complaint. This article will deal with the recommended steps to take when terminated by a property owner. It will not deal with the whether or not you are entitled to commissions or the legal ramifications of what is potentially a breach of contract. These items will be dealt with in another article and are governed in large part by the applicable Property Management Agreement.

How does the owner terminate you?

Many owners will simply call you up and terminate you verbally. They will inform you that your services are no longer needed. The property manager should immediately ask the owner to put this termination in writing and get it to you by mail, fax or email. The owner may decide later that it was a mistake to terminate you, litigation may occur, and you do not want the owner to change the story and potentially DENY that you were terminated. If the property owner fails to get this to you within a couple days, we recommend that you send the owner a "confirmatory letter".

"Sample Confirmatory Letter"

Dear Property Owner:

This letter that confirm our phone conversation of May 15, 2006 at 2 PM EST when you indicated that you no longer desire that we manage your property. According to the Property Management Agreement, you are to give us 30 days' notice in the event of termination of management. We will continue managing the premises for 30 days from this date, unless we receive something in writing from you indicating that we cease managing the premises earlier. If we do not receive any written communication from you, our management services shall cease as of June 15, 2006. Please note that although we will cease management as per your request, our company may continue to hold you liable for commissions and amounts due under the terms of the management agreement, which document remains a legally binding contract".

Turning the file over to the owner or new company

Upon termination, you will be holding the complete file of the tenant. This will most likely include the application and credit report. Our office does not recommend that you turn this information over to the property owner or new management company, as this is private information, the tenant did not authorize you to disclose this information to any other person or company, and the credit report provider most likely has a prohibition on disclosing the information to any person other than the original requestor, which is your company. Most property owners will not like hearing this, and it may take a quick note from your attorney to convince them that this is in fact the law, and you are not just trying to give the property owner a difficult time. As for the information that is not private, you should make a complete copy of every single document in the file and turn this over to the new management company or owner, along with an accurate accounting. You should not turn over anything to a new management company unless the owner specifically tells you to do so in writing. A request by a management company is not enough, as this is simply a request and not authorization by the property owner.

Holding back the file

Once you have written instructions by the owner to transfer the file to the owner or to a new property management company, do so immediately. We seem many cases where a property manager is angry at being fired and delays the transition. This type of action can result in a FREC complaint against you. No matter how angry you are at the property owner or no mater how much money is owed to you, do not try to use the file transfer as any type of leverage to get what you want.

Transferring Funds

You will usually be holding a security deposit, possibly a last month's rent and owners repair funds. It is crucial that these funds be transferred out of your account, but caution must be taken. Remember that the property owner will want you to do this immediately, but you need to understand the law and your obligations under the law and obligations to the tenant.

1. Security Deposit, Last Month's rent or other "deposits":

a. These funds cannot be transferred to the property owner UNLESS you get written permission from the tenant. You cannot simply take funds out of your escrow account and transfer them to an owner's bank account.

b. These funds can be transferred to the new management company as long as that management company is an active Florida real estate brokerage. The tenant's permission is not needed in this case.

2. Repair deposits: These can be transferred to the property owner or new management company without tenant's permission, as they are not the tenant's funds.

3. Collected rent: If you are holding current rent that the tenant has paid, the rent can be disbursed to the property owner or new management company, minus your commission or other fees. The tenant's permission is not needed.

Suppose the owner is out of state and does not have a Florida Bank Account?

No escrow funds are allowed to be transferred to any bank unless it is a Florida Banking institution. Since most banks now operate in multiple states, the property owner will most likely be able to open up an account at a bank in their state that also operates in Florida.

For a detailed discussion of the money transfer process Click Here

Self-Help Collection of Commissions

One of the hardest things for a property manager to do once fired is to send money to an owner or a new property management company when money is owed to the fired property manager by the property owner, but this is when a serious danger lies. Just because the property management agreement is clear on what is owed to the property manager, engaging in self-help collection of funds will increase the chance of litigation dramatically and will increase the risk of a FREC complaint and possible audit. That same owner who fired you for "no reason" will come up with many reasons why you were fired. These reasons may be true, false or gross exaggerations of the facts. In any event, getting to the bottom of the mess will be costly and risky. The owner may be able to lie more convincingly than you can tell the truth, or the owner may file a lawsuit or hire an attorney, which will cause you to spend a significant amount of money in attorney's fees. Even if you eventually "win", you will be the loser, as you have to pay your attorney to get to the finish line. In the meantime, the property owner sells the property, and you have no way of collecting the commission owed or your attorney's fees, in the event the judge awards them to you.

Should you simply walk away from your commission?

This is indeed a business decision, and your attorney may be able to guide you in making the decision to walk away or proceed. Often a demand letter from your attorney can result in a settlement, so you are able to receive at least part of the commission which may be owed to you. These matters need to be handled on a case by case basis and in a calm manner.

THE 15 DAY SECURITY DEPOSIT DISPUTE PERIOD
by Harry Anthony Heist, Attorney at Law

A tenant has just 15 days to dispute the claim on the security deposit, and if they do not, you are in the clear - Right? WRONG. The tenant has up to 5 years to sue you for a refund of all or part of the security deposit. This often comes to a surprise to the landlord, as most professional landlords are very familiar with the wording of Florida Statutes and the timing requirements imposed upon the landlord.

The Landlord's Duty

The landlord is required to send the Notice of Intention to Impose Claim on Security Deposit to the tenant by certified mail within 30 days of the tenant vacating the premises. Most landlords know this already. In the old days, the landlord had 15 days, now the landlord has 30 days. The timing requirements are described in detail in our article entitled Security Deposit Timing Review We recommend you read this carefully as a refresher. To understand the tenant dispute procedure, we need to look at the relevant portion of the statute.

Florida Statute 83.49 Deposit money or advance rent; duty of landlord and tenant"¦

The notice shall contain a statement in substantially the following form: This is a notice of my intention to impose a claim for damages in the amount of ____________ upon your security deposit, due to ________. It is sent to you as required by S. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address). If the landlord fails to give the required notice within the 30 day period, he forfeits his right to impose a claim upon the security deposit.
(b) Unless the tenant objects to the imposition of the landlord's claim or the amount thereof within 15 days after receipt of the landlord's notice of intention to impose a claim, the landlord may then deduct the amount of his claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages"¦

An examination of the statute's wording

A careful reading of the statute seems to imply that the landlord is only authorized to deduct the money claimed from the security deposit if the tenant fails to object within 15 days of receipt of the Notice of Intention to Impose Claim on Security Deposit. Does this mean that if the tenant objects, the landlord cannot claim the money? If this were the case, what is the landlord to do with the disputed funds? The law is not clear.

The Landlord receives an objection by the tenant, now what?

1. Property Manager is licensed under a Real Estate Broker.

Many years ago, Florida law required a property manager under a real estate broker's license through the State of Florida to go through certain specific procedures in the event a tenant objected to the landlord's claim. The real estate broker had to report the dispute to FREC and then ask FREC for an Escrow Disbursement Order, file an interpleader, or file a lawsuit against the tenant, if none were already filed by the tenant. This was a cumbersome and frankly ridiculous burden on the property manager and was removed from the law. Now, the property manager is not required to do any of the aforementioned procedures.

2. Landlord/owner is self-managing

Former and current law does not specifically provide what the actual owner/landlord is to do. The law does not require the landlord to file a lawsuit, hold the disputed funds indefinitely or take any action. Only in the wording of the Notice of Intention to Impose Claim on the Security Deposit does it reference the landlord being "authorized" to deduct the funds from the security deposit. Does this mean if the tenant disputes, the landlord is not "authorized"?

Can the Landlord make the deduction and disburse the funds?

1. Property Manager is licensed under a Real Estate Broker

The law specifically allows the property manager who is licensed under a Florida real estate broker to disburse the disputed funds as they see fit. As you can see in the wording of Florida Statutes 475, the FREC reporting, interpleader or lawsuit requirement is not present anymore as it pertains to a disputed security deposit. If the tenant objects, the property manager can disburse the funds pursuant to the Notice of Intention to Impose a Claim on the Security Deposit, after the 15 days have elapsed from the time the tenant has received the Notice by certified mail. The fact that the tenant has objected has lost its relevancy in the law.

83.49 Deposit money or advance rent; duty of landlord and tenant"¦ (d) Compliance with this subsection by an individual or business entity authorized to conduct business in this state, including Florida-licensed real estate brokers and salespersons, shall constitute compliance with all other relevant Florida Statutes pertaining to security deposits held pursuant to a rental agreement or other landlord-tenant relationship. Enforcement personnel shall look solely to this subsection to determine compliance. This subsection prevails over any conflicting provisions in chapter 475 and in other sections of the Florida Statutes, and shall operate to permit licensed real estate brokers to disburse security deposits and deposit money without having to comply with the notice and settlement procedures contained in s. 475.25(1)(d).

2. Landlord/owner is self-managing

Nowhere in the statutes does it impose a penalty on the landlord if the landlord deducts the amount owed from the security deposit per the terms of the Notice of Intention to Impose a Claim on the Security Deposit. It is our opinion that the landlord should simply wait the 15 days after the tenant receives the Notice and then deduct the funds accordingly.

Is it over yet? The tenant has not objected.

Absolutely not. The tenant and the landlord have five years from the date the tenant vacates or the claim is made on the security deposit to institute litigation against each other. This is due to the fact that under Florida law, the parties to a written contract such as a lease have a 5 year statute of limitations, meaning that they have 5 years to sue one another. The common misconception among landlords is that if the tenant does not object, the tenant has implicitly agreed to the landlord's claim, and everything is over. While it would make sense, this is not the case.

Practical Considerations

When a tenant objects to the security deposit claim, you should give your attorney a call. If you have received a call or letter from the tenant's attorney, you should never respond other than to tell the attorney that you have received the message or correspondence and are forwarding it to your attorney. You should then examine the facts of your situation, look carefully at the proof you have to justify the deduction, and either stand firm or consider settlement.

THE HOME WARRANTY PROBLEM
by Harry Anthony Heist, Attorney at Law

Many new homes have been put on the rental market due to the sales slowdown. Most come with a "Home Warranty" to cover many of the usual items which need repair. The problem? Most home warranty services are terrible, resulting in huge delays and legal ramifications for the owner. What are the tenant's rights and the owner's obligations?

The Landlord's Obligations

The Landlord/Tenant act specifically lays out the landlord's obligations. If these obligations of the landlord are not met, the tenant has remedies under Florida law. These remedies are strong, and they place the landlord under a time limit. This is where home warranty problem begins. Below is FS 83.51 (1) which lays out some of the obligations of the landlord. While the landlord has other obligations under the lease and Florida law, the Section 83.51(1) obligations are those for which if not met, the tenant can break the lease or withhold rent.

83.51 Landlord's obligation to maintain premises. (1) The landlord at all times during the tenancy shall:
(a) Comply with the requirements of applicable building, housing, and health codes; or (b) Where there are no applicable building, housing or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. However, the landlord shall not be required to maintain a mobile home or other structure owned by the tenant. The landlord's obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex.

What if the Landlord fails to meet these aforementioned obligations?

Here we have to jump right back into the Landlord/Tenant Act. Florida law allows the tenant to serve notice upon the landlord, giving the landlord 7 days to correct the problem, OR the tenant has a right to withhold rent OR break the lease agreement without penalty. The service of the notice on the landlord by the tenant will act as a complete defense to an eviction action, so it must be taken seriously, and the problem, if it exists, MUST be remedied within 7 days.

The Tenant's Complete Defense to an eviction

83.60 Defenses to action for rent or possession; procedure. (1) In an action by the landlord for possession of a dwelling unit based upon nonpayment of rent or in an action by the landlord under s. 83.55 seeking to recover unpaid rent, the tenant may defend upon the ground of a material noncompliance with s. 83.51(1), or may raise any other defense, whether legal or equitable, that he may have, including the defense of retaliatory conduct in accordance with s. 83.64. The defense of a material noncompliance with s. 83.51(1) may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. Such notice by the tenant may be given to the landlord, the landlord's representative as designated pursuant to s. 83.50(1), a resident manager, or the person or entity who collects the rent on behalf of the landlord. A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent, and, upon hearing, the court or the jury, as the case may be, shall determine the amount, if any, by which the rent is to be reduced to reflect the diminution in value of the dwelling unit during the period of noncompliance with s. 83.51(1). After consideration of all other relevant issues, the court shall enter appropriate judgment.

As you can see, if the landlord does not comply with the requirements of the law in FS 83.51(1), the tenant can give notice to the landlord, withhold rent and potentially defend the eviction on these grounds.

The Tenant's Right to Terminate the Lease

83.56 Termination of rental agreement. (1) If the landlord materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement.

In this portion of the law, you can see how the tenant is allowed to terminate the lease if the landlord fails to comply with 83.51(1) or material provisions of the lease

How does this relate to a Home Warranty Service?

There are situations in which a property is covered by a home warranty service provided by the builder, or something in the premises is covered by some sort of warranty, where a third party is to repair or replace certain items. Often the landlord will receive notice of a problem and then notify the home warranty service. The problem arises when the problem is NOT fixed, or a good attempt to fix the problem does not occur within 7 days from the time the landlord receives notice. When this occurs, the landlord wants to blame the home warranty service for the inability to get a problem rectified. In court, a judge could not care less that your home warranty service is busy, backed up or just plain inadequate. The blame game and passing the buck just does not work in court.

Practical Considerations

If you get a rent withholding letter from a tenant demanding a repair within 7 days and threatening to withhold rent or break the lease, you need to act immediately. The home warranty excuse or the "I need 3 estimates" excuse will not help you in court. Act immediately, inform the property owner if you are managing for them, and get the problem fixed immediately. If there is a delay due to the home warranty service, it may be necessary to hire another vendor and get the problem fixed to avoid a potentially huge legal problem with the tenant. Remember that not all the tenant's complaints will rise to the level of the tenant being able to withhold rent or break the lease. If you have any questions, give us a call.

CAN YOU PROHIBIT SMOKING ON THE PREMISES?
by Harry Anthony Heist, Attorney at Law

Many landlords are now setting aside certain units as "Smoke Free" or renting homes out and prohibiting smoking on all or part of the premises. Many tenants do not want to rent a unit where the prior tenant smoked, and in many units, smoke travels through the premises interfering with the rights of other tenants. Restricting a person's ability to smoke on the rental premises in full or in part is not prohibited by law. The lease needs to clearly spell out the restrictions, and the challenge to the landlord will be enforcement and proof.

Smoking Prohibitions and the law

There are no laws, state or federal, that prevent a landlord from prohibiting smoking in a rental unit, house or designating a building as smoke-free. There are no laws that prohibit a landlord from designating certain areas as "smoking areas" or limiting smoking in the common areas.

Smoking Prohibitions and Fair Housing

It is not illegal discrimination to create a smoke-free policy, smoke-free units or smoke-free areas, as smoking is not protected under law. It is important to note that creating a smoke-free policy should never be used to target a protected class, as this can trigger a discrimination action and potentially be considered illegal. Tenants who are affected by second hand smoke actually may be able to sue your company under the Americans With Disabilities Act and the Fair Housing Act for discrimination, if they have breathing disorders and you do not make accommodations for them in their rental premises, or the common areas in the event they have health issues which are being adversely effected by secondhand smoke.

The Benefits of Smoke-Free Units

1. Reduced risk of fire and injury. Lighted tobacco products cause over 15,000 residential fires, over 500 deaths and over 1300 injuries due to these fires, and over $300 million dollars in property damage each year.

2. Litter reduction. Your maintenance personnel will attest to the fact that cigarette butts accumulate and remain on the premises for a long time. Tenants routinely will throw the cigarette butts on the ground, in the garden areas and all around the common areas. These cigarette butts pose a threat to small children and animals that may place them in their mouths and ingest them.

3. Better health. Cigarette smoke travels through walls, ceilings, floors, electrical conduits and HVAC systems. This exposes other tenants to secondhand smoke, and these tenants then suffer health hazards and inconvenience.

4. Decreased damage to property. Smoking damages walls, ceilings, carpet, furniture and can deposit a layer of tar on just about any surface with which smoke comes in contact, in addition to increasing the likelihood of carpet, flooring and counter burns. Often smoking related damage requires a substantial expenditure of funds to remove staining and odors, and to otherwise repair the unit.

5. Reduced liability. Americans With Disability Act and Fair Housing complaints are rising each year. Accommodating tenants who do not want to be affected by second hand smoke and/or reducing the exposure of a tenant to second hand smoke will reduce your liability. In addition, a tenant has common law remedies, including the implied warranty of habitability and that the peaceful, quiet enjoyment of the premises is being interfered with. Smoke infiltration from another unit may qualify as a violation of the common law rights, and we have seen tenants break their lease due to smoke infiltration.

Creating the Smoke-Free Unit or Building

1. Current tenants. You cannot prohibit a current tenant from smoking, if there is no prohibition in the lease, or the tenant has failed to sign a no smoking addendum after the lease has been signed. A non-smoking tenant who has already signed a lease may be willing to sign a no smoking addendum, and this can speed up the conversion of a building to non-smoking units.

2. New tenants or renewals. If your new lease or addendum prohibits smoking, you can prohibit a new tenant and their occupants from smoking, or refuse to renew a lease if a current tenant refuses to sign the new lease or addendum.

SAMPLE LEASE WORDING

"Tenant agrees that Tenant, guests and/or occupants will not smoke or ignite any tobacco, clove, incense, or other legal or illegal smoking product on the premises. The premises for the purposes of this section includes the interior or the apartment, the breezeway outside the apartment, and any lanai or balcony if provided. Smoking for the purposes of this section is defined as igniting, inhaling, exhaling and/or carrying any lighted legal or illegal smoking product. In the event Tenant, guests or occupants violate this smoking policy, Tenant shall be in breach of the lease agreement and subject to eviction action, in addition to being liable for any damages to the premises cause by smoking or costs incurred by Landlord in removing smoke odor"

Note: The above sample clause is for a complete smoking prohibition. The clause can be modified to allow lanai smoking, smoking areas or other variations.

Practical Considerations

While smoking can be prohibited in the lease agreement or addendum, enforcement is always going to be a problem. We all know that tenants often will not do what they are "supposed" to do or what they "agreed" to do in the lease. A no smoking clause is a start though, if you wish to create a smoke-free unit or building, but proof will become an issue in the event of a violation or violations.

Useful Smoke-Free Websites

Smoke Free For Me
Smoke Free Housing Consultants
Smoke Free Apartments House Registry

RENEWING A LEASE WHEN A BALANCE IS OWED
by Harry Anthony Heist, Attorney at Law

A common mistake when renewing a lease is to use a standard lease renewal or draw up a new lease omitting any reference to money that may be owed from the expired or expiring tenancy. Late charges may have accumulated, the tenant may owe for some damage, or there may be NSF charges or some other charges that have been incurred under the prior lease. Once the new lease is executed, while the tenant may still owe you the money, there is no enforcement mechanism to collect it. You cannot evict under the new tenancy for money owed under the prior tenancy, UNLESS the new lease or renewal clearly spells out that there is a balance owed and states how the tenant shall pay this balance.

What might be owed from the prior lease?

A tenant can easily have accumulated late charges, NSF charges, unpaid water, sewer or garbage bills, unpaid repair bills or almost any other amount that could have been incurred over the past year. The landlord will most likely want to collect this money and does not intend to write the amounts off when giving the tenant a new lease. The landlord has a full expectation that the tenant will pay these sums. But will he?

Tying in the old balance to the new lease

When preparing the new lease, it is crucial that terms of the new lease contain the past or accumulated amount due, a definition of this amount as "additional rent" and the payment arrangements. We recommend that the amount is spread out in a reasonable fashion and due with the tenant's rent payment as "additional rent" until paid in full. Done this way, if the tenant fails to pay, the tenant can then be given a Three-Day Notice for non-payment, and an eviction can be instituted if necessary. We do not recommend that you accept the normal monthly rent without the tenant paying the full rent amount and the "additional rent" at that time. If you wish to have a separate form for dealing with the amounts, terms and conditions we recommend a Past Due Amounts Workout Agreement.

The new lease does not reflect the past balance; is the money still owed?

The execution of a new lease does not wipe out the prior debt, but creates two distinct problems. First, if the prior debt was debatable or in dispute, the landlord's actions in entering into a new lease certainly favors the tenant, and secondly, the ability to evict the tenant under the new lease for amounts incurred under the old lease are slim at best. With that said, the tenant still owes the money, and the landlord can at some time attempt to collect this money through litigation or other means, but much of the leverage is gone. Before you renew a lease, always check to see if money is owed, and carefully reflect this in the new lease.

AVOIDING PRACTICES WHICH MAY GET YOUR COMPANY SUED
by Harry Anthony Heist, Attorney at Law

For over two years, property management companies have been sued in huge class action lawsuits for practices that most property management companies have engaged in for years. Common practices and agreed upon terms are under attack, and as a result of a judicial decision, have caused property management companies to incur millions of dollars in fees, costs and loss of the ability to collect sums owed to them. Most property manager companies have not revised their leases or procedures, and as a result, are a huge target for the lawsuits. Currently, the attorney filing these lawsuits is not taking the cases to trial but quickly entering into class action settlements. While this may lessen the effect of a huge, drawn out trial, the companies being sued are still paying small fortunes to settle the suits. Each one of these suits and settlements are costing the companies in excess of $1,000,000. There is no indication that the attorney filing these suits has any intention whatsoever of stopping. Our firm is recommending that you take action immediately to avoid becoming a target. Our recommendations are not our interpretation of the law, and we do not agree with the outcome of the lawsuit which started this incredible chain of events, but we feel that until the law is changed, property management companies need to take heed immediately and change their leases and practices.

IMPORTANT:

If your company has already been sued and is currently under a class action settlement agreement, please follow the advice of your attorney, as special conditions apply per the settlement agreement.

REDECORATING CHARGES

Current Law: Florida Statutes says absolutely nothing about redecorating charges, but are they legal? Are they being disclosed?

Cases: Other states have begun interpreting these fees as a way landlords are making tenants pay for ordinary wear and tear.

Recommendation: Cease charging redecorating charges. If you still insist on charging them, make sure they are disclosed in your advertising and in the first contact.

ADMINISTRATIVE FEES

Current Law: Florida Statutes say absolutely nothing about administrative fees. We fear that they may be challenged as anti-consumer or in some way in violation of Florida's Unfair and Deceptive Trade Practices Act. Florida Statutes include a provision allowing a judge to strike down "unconscionable" provisions in a lease and award damages to the tenant. Often these administrative fees are not being disclosed on first contact with the applicant.

Recommendation: Cease charging administrative fees. If you still insist on charging them, make sure they are disclosed in your advertising and in the first contact.

TERMINATION FEES

Current Law: Florida Statutes gives specific remedies to a landlord when a tenant breaks a lease or gets evicted. Termination fees for a lease break, voluntary or involuntary, are nowhere to be found in Florida law. Common practice for years has been to charge these fees to cover the costs incurred due to the tenant's lease break.

Cases: Recent court cases have held that these fees are unlawful, as they can result in the collection of double rent if the tenant breaks the lease, a new tenant moves in right away, and the termination fee exceeds the actual lost rent. Ridiculous? Yes, but some courts feel otherwise.

Recommendation: Cease charging termination fees

INSUFFICIENT NOTICE FEES

Current Law: Florida Statutes says absolutely nothing about insufficient notice fees for tenants who break their lease.

Cases: Recent cases have stated that these are completely unlawful UNLESS specifically allowed by Florida law for notice prior to lease end.

Recommendation: Cease charging insufficient notice fees UNLESS they are those specifically authorized by law for notice prior to lease end. Click here to see an article on the insufficient notice fees you can legally charge if a tenant fails to give proper notice prior to lease end

AUTOMATIC FORFEITURE OF SECURITY DEPOSITS

Current Law: Florida Statutes do not state that security deposits are automatically forfeited when the tenant breaks the lease. It has been common practice and makes good sense. After all, a security deposit is for the full and faithful performance of the lease.

Cases: The class action cases dealing with termination fees can be construed as prohibiting the automatic forfeiture of a security deposit upon tenant breach

Recommendation: Cease automatically forfeiting a tenant's security deposit upon lease break. Most companies still forfeit the tenant's security deposit if they break the lease AND charge them rent on top of this. This can trigger a lawsuit.

LATE CHARGES

Current Law: Florida Statutes say nothing about late charges.

Cases: Some states are interpreting their usury laws to apply to rent owed.

Recommendation: Cease charging excessive late charges and cap them at 10%.

A final note

Most readers of this article will go away angry and confused. How could these perfectly fair charges and practices be illegal? Law is made two ways: (1) by statute, in which the legislature enacts a bill which becomes law, and (2) by court cases, in which a judge makes a decision interpreting existing statutes, and under the principal of judicial precedent, it becomes law that other courts will follow. In the current cases which have triggered this entire mess, the result is from a Circuit Court case in Palm Beach County, Florida. This case created law for any company which operates in the 15th judicial circuit, which encompasses a large area. When a judge makes a decision in circuit court, that judge will look to circuit court cases and higher. While a circuit court does not make law in another circuit, judges often will base their decision on that court's decision, if there are no other cases in their circuit to the contrary or on point.

You have been warned, AGAIN

CORRECT USE OF THE PROMISSORY NOTE AND PAST DUE AMOUNTS WORKOUT AGREEMENT
by Harry Anthony Heist, Attorney at Law

There will come a time when a tenant who has vacated the premises owing you money returns and tries to make payments arrangements to pay what is owed to you. In other situations, a current tenant may fall seriously behind or owe you for something due under the lease, such as an accumulated water bill, a bounced security deposit check or some damages they did to the premises. The form you use will determine the action you can take in the event the tenant fails to pay pursuant to the arrangement you have made. Unfortunately, we always need to be prepared for what will occur when the tenant fails to abide by an agreement. An agreement without consequences is useless, and using a wrong agreement can often be worse than using nothing at all. This article will examine a very common form known as a promissory note and a less common form developed by our office called the Past Due Amounts Workout Agreement. These forms are not the same and are to be used in specific situations.

The Promissory Note

A promissory note is simply an agreement when one party agrees to pay another party a particular past due sum or currently due sum on a particular date or dates.

When should it be used?

A promissory note should be used only with a PAST or departing tenant who owes you money and desires to pay you on a certain date or dates according to the payment arrangement spelled out on the promissory note. Never should it be used with a current tenant. The tenant may vacate owing you past due rent, late charges, unpaid utility bills or anything owed under the terms of the lease or Florida law. This will memorialize the debt in writing and can be used later if the past tenant defaults, and you wish to pursue the debt.

When should a promissory note never be used?

A promissory note should not be used with a current tenant who owes you money. This is a common mistake by landlords. This is the scenario: the tenant will be in default for 2 months' rent in the amount of $1600.00. The landlord, thinking that the promissory note is the way to go, will write up the document stating that the tenant owes $1600.00 and will pay $200.00 per week beginning on a particular date until paid in full. Now for the problems. First, unless the promissory note clearly states that the amount is "rent" due under the terms of the lease, the landlord may have unwittingly converted past due rent into simply a monetary obligation for which he will not be able to evict the tenant using a Three Day Notice! The second problem is that if the tenant fails to make a payment, what is owed: the full balance all at once, OR only that missed payment? Without an acceleration clause in the promissory note, the tenant will only be in default for that one payment, rather than the whole amount. This was certainly not the intention of the landlord when the promissory note was created.

Procedural aspects of the promissory note

Filling out a promissory note incorrectly can be worse than not ever having one. Take your time, and fill out all the dates and amounts carefully, have the document signed, preferably with 2 witnesses. If a person other than the actual debtor is going to give you a promissory note, the signature of that person MUST be witnessed by 2 witnesses per Florida law. It is not necessary to have the document notarized, but certainly will not hurt if the debtor tries to say that he or she did not sign the promissory note. The payment plan, if any, dates and amounts should be spelled out with as much particularity as possible. Having the exact date and amount of each payment clearly listed out is preferable to stating "$200.00 per week", and not having a starting date can really cause a problem. You will see that the sample promissory note below has an "acceleration clause". The purpose of this clause is to make the full balance due and owing immediately if a payment is missed. We do not recommend that this acceleration clause ever be used maliciously, but allowing deviation from a payment plan can adversely affect enforceability of the promissory note, much as accepting rent late over and over again can cause a waiver and estoppel issue. You may notice this wording in the promissory note: "In the event the payments are not timely made, the acceptance of the payment(s) late or in partial amounts not according to the above schedule shall not constitute a waiver in any way of the creditors". While you would think that this would prevent a waiver from occurring, in reality, your course of conduct may still create a waiver.

THE SAMPLE "PROMISSORY NOTE"

THE UNDERSIGNED HEREBY AGREE THAT AS OF ___________(DATE) THE SUM OF$_______________ IS OWED TO _______________________________________________.(INSERT NAME OF MANAGEMENT COMPANY, APARTMENT COMMUNITY, YOUR NAME)

THE UNDERSIGNED AGREES TO PAY ABOVE DUE AMOUNT OWED IN THE FOLLOWING MANNER :(INSERT EXACT PAYMENT SCHEDULE)

$________ DUE _________
$________ DUE _________
$________ DUE _________
$________ DUE _________

IN THE EVENT THE UNDERSIGNED FAILS TO MAKE THE ABOVE PAYMENTS IN THE MANNER PRESCRIBED, THE FULL AMOUNT OF THE DEBT MINUS ANY AMOUNTS PAID SHALL BE DUE AND PAYABLE IMMEDIATELY. IN THE EVENT THE PAYMENTS ARE NOT TIMELY MADE, THE ACCEPTANCE OF THE PAYMENT(S) LATE OR IN PARTIAL AMOUNTS NOT ACCORDING TO THE ABOVE SCHEDULE SHALL NOT CONSTITUTE A WAIVER IN ANY WAY OF THE CREDITORS. IN ANY LITIGATION, THE PREVAILING PARTY SHALL BE ENTITLED TO AN AWARD OF ATTORNEY'S FEES AND COSTS.

THE UNDERSIGNED AGREES THAT THIS CONSTITUTES THE ENTIRE AGREEMENT REGARDING PAST DUE AMOUNTS, AND ANY MODIFICATION TO THIS AGREEMENT MUST BE IN WRITING TO BE CONSIDERED VALID.

Dated: ___________________

___________________________ NAME

_____________________________
Witness

_____________________________
Witness

The Past Due Amounts Workout Agreement

When should it be used?

This form should be used if a landlord wishes to make payment arrangements with a CURRENT tenant on past or current amounts owed by the tenant. This is a tenant who is currently residing on the premises and intends to stay and pay the amounts owed.

What can be put on the Past Due Amount Workout Agreement

Rent, late charges, bounced security deposit check, damages the tenant has caused, and any other amounts due to the landlord all can be put on this agreement. The major difference here is that the tenant is living on the premises, and the landlord needs to not only memorialize the debt in writing, but also needs to be able to take swift definitive action to REMOVE the tenant in the event the tenant fails to pay according to the agreement. Unlike the promissory note, the Past Due Amounts Workout Agreement converts the amount due completely into RENT. If that "rent" is not paid as per the agreement, the landlord can then put the amount on a Three Day Notice and proceed with an eviction. Again, an acceleration clause is used which will make the full amount owed at once if the tenant fails to make the payments per the agreement. We have seen many situations in which the landlord used a homemade agreement, puts in all the payment amounts and due dates, only to find out that when the tenant defaulted, all the landlord could put on the Three Day Notice was the missed payment, or possibly, was not able to use a Three Day Notice at all, causing confusion and delay.

Procedural aspects of the Past Due Amounts Workout Agreement

The same procedures should be used as with the promissory note. Specific payment dates and amounts should be listed. If there is more than one tenant on the lease or residing on the premises, get ALL tenants to sign. This is crucial.

THE SAMPLE "PAST DUE AMOUNTS WORKOUT AGREEMENT"

The undersigned Tenant(s) hereby agree that as of _____________________(DATE) the sum of _______________ is owed to Landlord for the following
__________________________________(List things like past due rent, bounced check, check charges, utilities etc)

In addition to all other amounts which may become due under the terms of the tenancy or Florida law, Tenant(s) agree to pay the past due amounts owed in the following manner: (insert exact payment schedule)

$________ DUE _________
$________ DUE _________
$________ DUE _________
$________ DUE _________

In the event Tenant(s) fail to make the above payments in the manner prescribed, the full amount of the original debt minus any amounts paid shall be due and payable immediately as rent, and Tenant(s) may be served with a Three Day Notice for these amounts owed. Failure by Landlord or its agent to serve a Three Day notice in the event the payment(s) are not timely made, or the acceptance of the payment(s) late or in partial amounts not according to the above schedule shall not constitute a waiver in any way of the Landlord's rights, and Landlord and/or its agent may still serve a Three Day Notice demanding full payment at any time if Tenant(s) are in default.

Tenant(s) agree that this constitutes the entire agreement regarding the above mentioned past due amounts owed, and any modification to this agreement must be in writing to be considered valid.

Dated: ___________________

__________________________
TENANT

_____________________________
Witness

_____________________________
Witness

LEASE BREAKS DUE TO MEDICAL REASONS
by Harry Anthony Heist, Attorney at Law

Every landlord will eventually experience the situation in which the tenant has a family, medical or work issue, and the tenant desires to break the lease. Can the tenant simply break the lease if something either in their control or out of their control occurs? Florida law does not give the tenant any leeway in this area. Unless the lease specifically has a clause or clauses allowing a tenant to be released from the lease obligations if a particular event occurs, the tenant will be held to the lease. In reality, the tenant will most likely walk out on the lease anyway, but may be still obligated to you under the terms of the lease agreement. The question then remains, what will a judge say in court?

The Medical Lease Break

Florida law does not allow a tenant to break a lease due to a medical condition, either preexisting or new, although you may want to allow the tenant to break the lease without penalty in certain circumstances. There are many elderly tenants in Florida who cannot complete their lease terms due to having to be placed in an assisted care facility. Other tenants may have a serious sickness which requires long term care or some condition which does not permit them to reside on the premises on their own. We recommend that with verification from a physician, you allow individuals to break their lease without penalty. If you were to treat the vacating tenant as a typical lease break, and you decide to take the case to Small Claims Court, many judges would probably rule that due to the impossibility of the tenant to perform the lease obligations, through the judge's equitable powers, the tenant will be allowed to break the lease without penalty.

Disabilities and Fair Housing laws

In a hypothetical situation, a tenant tells you she can no longer climb the stairs in your building to her 2nd floor apartment due to a disability, and you have no 1st floor apartments available. Should you allow her to break the lease without penalty? The law requires that you make a "reasonable accommodation" for the tenant. That might mean agreeing to let them transfer to a first floor unit when one becomes available, but it does not mean the tenant can escape the lease obligations altogether. The tenant is not entitled to break the lease because she has become disabled. Think of it this way: Breaking the lease is not a reasonable accommodation, because it does not aid the handicapped person in living at your property. It does just the opposite! Your decision to allow a lease break will decrease the possibility of potential litigation or a discrimination case being filed against you. Discrimination cases are most often decided in favor of the landlord, but at what cost in wasted time and money?

Anticipatory Breaches

If a tenant anticipates prior to lease signing that they may have to terminate their lease early due to a medical condition, wording can be placed in the lease dealing with the terms and conditions of what will be a mutual termination of the lease. We recommend that you ask your attorney to draw up a clause which can be placed in the special stipulation section of the lease to accomplish the wishes of all parties. Ambiguity will cause problems, misunderstanding and potentially litigation. A short statement like "Tenant may terminate the lease early if they must go to an assisted care facility" is not specific enough, as it does not deal with monetary issues, notice issues and is open to interpretation.

The Mutual Termination of Lease

In the event the landlord and tenant agree on a mutual termination of the lease, all terms and conditions should be memorialized in writing and signed by all parties. The security deposit, last month's rent and any other monetary sums should be completely dealt with to effectuate a clean break with no misunderstandings. Below is a sample which you should have reviewed by your attorney before use.

MUTUAL TERMINATION OF TENANCY, AGREEMENT AND MUTUAL RELEASE

TENANT(S)__________________________

LANDLORD: _______________________ ITS OWNERS, MANAGEMENT, EMPLOYEES AND ASSIGNS

PROPERTY ADDRESS: ________________________________

VACATING/MOVE OUT DATE: ____________________________

TENANT(S) AND LANDLORD, HEREBY AGREE AS FOLLOWS:

1. TENANT and all occupants shall vacate the Property and remove all of their personal property and belongings no later than the above date and the TENANT'S right of occupancy shall cease at that time. Any personal property and belongings remaining on the Property after the Move-Out Date may be disposed of by LANDLORD, and TENANT releases LANDLORD from any and all liability for disposal of any items. If TENANT fails to vacate the premises by the Move-Out Date, TENANT agrees that they will be in breach of this agreement, and eviction proceedings will be instituted without further notice.

2. Prior to and after the Move-Out Date, LANDLORD shall have the right to inspect the Property to determine whether any damage exists which LANDLORD believes is the TENANT'S responsibility under the Lease. TENANT shall be responsible for damages to the premises which exceed ordinary wear and tear and any other unpaid charges due under the lease agreement.

3. Within 30 days following the of Vacating/Move-Out Date, LANDLORD shall provide TENANT with written notice by certified mail of LANDLORD'S intention, if any, to impose a claim on the security deposit and the amount and reasons therefore. If no charges shall be imposed upon the security deposit, said security deposit shall be sent to the TENANT within 15 days of Vacating/Move-Out Date.

4. TENANT shall be responsible for paying rent from _________________, (insert date) through _____________________ (insert date). TENANT shall be required to return all keys, access devices, gate cards, garage door openers, and any other property belonging to OWNER no later than the Vacating/Move-Out Date.

5. Except as otherwise stated herein, each party shall bear their own attorneys' fees and costs, if any, incurred in connection with the Lease and this Agreement. In the event a party is deemd to be in breach of this agreement, the prevailing party in any litigation shall be entitled to an award of reasonable attorney's fees and costs.

6. The PARTIES hereby release, acquit, and forever discharge each other and their past, present, and future shareholders, directors, officers, employees, principals, agents, servants, property managers, realtors, independent contractors, representatives, parent corporations, subsidiaries, affiliates, predecessors, successors, assigns, attorneys, and insurers from any and all actions, causes of action, claims, counterclaims, demands, damages, fines, penalties, assessments, costs, loss of services, expenses, interest, attorney's fees and compensation whatsoever, in any way relating to or arising out of the Lease, tenancy, casualty if any, or this Agreement, as long as this agreement is complied with.

7. The original of this agreement shall be kept by the LANDLORD with copies to be provided to the TENANT. Signature by facsimile shall be deemed as original.

8. The PARTIES acknowledge that this Agreement constitutes the entire agreement between them with respect to the subject matter herein. They further acknowledge that they have read it and understand it, and that the terms and conditions of this Agreement were arrived at in arm's-length negotiations between the Parties.

9. No modification, waiver, amendment, discharge, or change of this agreement shall be valid, unless the same is in writing and signed by the Party against which the enforcement of such modification, waiver, amendment, discharge, or change is sought.

10. Except as otherwise stated in this document, TENANT and LANDLORD HEREBY remise, release, acquit, satisfy and forever discharge each other, the parties, owners, employees, agents and assigns, for and from all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which any party ever had, now have, or which any personal representative, successor, heir or assign of said party hereafter can, shall or may have, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents, if the terms of this agreement are met. TENANT agrees to hold LANDLORD and its employees, agents and representatives harmless from any claims, damages or expenses of any nature in any way relating to the tenancy or this agreement.

11. This Agreement shall be construed, enforced and interpreted in accordance with the laws of the State of Florida. Once the TENANT vacates the premises and complies with the terms of this agreement, the lease agreement TENANT signed when renting the property shall be considered mutually terminated.

12. OTHER AGREEMENTS:

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________ SIGNATURE AREA FOR ALL PARTIES

Consistency and Policy

Feeling sympathetic to one tenant's situation can result in accommodating that one tenant. The problem is knowing where to draw the line. Another tenant may have a slightly different issue, and you might be less apt to oblige. Can this trigger some sort of a discrimination action? Absolutely. If you are going to allow lease breaks for medical situations, we recommend you decide on criteria and place these criteria in your Procedures Manual. Yes, we know most of you do not have a Procedures Manual, and now is the time to start thinking about having one!

THE STACK OF BILLS AND SMALL CLAIMS COURT
by Harry Anthony Heist, Attorney at Law

The tenant moved out, and you or your maintenance staff begins the fun process of repairing all the damage, painting, replacing carpet, replacing kicked in doors, repairing door frames and filling holes where your resident decided to practice the sport of boxing. The kitchen is an absolute wreck, requiring a deep clean taking hours, and the refrigerator shelves are either broken or missing. The bathroom has deep mold where every bit of caulking ever existed, and the floor is severely stained due to standing water or whatever else. I need not go on, you get the picture.

Should you sue the tenant? Will you be sued?

Tenants who leave the rental premises in deplorable conditions usually are judgment proof. It would be absolutely ridiculous to spend any serious time or money trying to go after persons like this. Most landlords know this, but many still insist on filing a small claims court case and pursuing a judgment. If a landlord is local and has time on their hands, usually there is not much harm in filing a small claims court case, and there is little expense if no attorneys are involved. Unfortunately, the landlord may have no choice in the matter and be the one who gets sued! There is no doubt that the landlord will retain the entire security deposit in a situation in which damages meet or exceed the security deposit amount, and many times, the tenant will seek to get the security deposit returned to him or her.

The seriousness of a small claims court case

Most landlords have no idea how serious a small claims court case can become. The landlord may file the case on his own, and the tenant hires an attorney who invariably files a counterclaim, meaning the landlord now is suing and getting sued at the same time. The prevailing party may be awarded attorney's fees. This means that if the tenant wins and has an attorney, the landlord may end up having to pay thousands of dollars in attorney's fees to the tenant's attorney. The amount of attorney's fees the judge may award has absolutely no relationship to the amount of the dispute. You could easily have a $5000.00 attorney's fee award when the dispute was about a $500.00 security deposit, and the judge felt you overcharged by $50.00.

The proof you will submit in Court

Daytime court television shows probably do the most serious injustice to the court system and lead people to believe that this is indeed how court "works". While some judges in small claims court do indeed play fast and loose with the evidence of the parties, most judges follow the laws, and this means the rules of evidence are followed. Most landlords will have a stack of bills and receipts which they think they will use to convince the judge that the tenant damaged the property. Sounds reasonable. After all, why would the landlord have spent all this money if the tenant left the place in good clean condition with no damage? It would seem to make sense that the judge will look at the bills and receipts, and this will help you convince the judge that you indeed were harmed by the tenant and should be entitled to keeping the security deposit or getting a judgment against the tenant.

The Bills and Receipts Problem

Ready for the big surprise? Bills and receipts cannot be submitted as evidence in court to PROVE the tenant did the damage. Bills and receipts are what is known as "hearsay" and CANNOT be used to prove the tenant did the damages.

What is "hearsay"?

Most people think hearsay means that when someone tells you something, you cannot use that statement in court. This is partly true. If I tell you that "John stole the car", you cannot go into court and say that "Harry told me that John stole the car". Why? Because if I am not in court with you, the defendant will have no way of cross-examining me. This means that what you are saying is "hearsay", and the judge cannot listen to this, and it will not be used as evidence in court. Now on the other hand, if I were also a witness in court, and you told the judge that Harry told me that "John stole the car", I can be called up to the witness stand and be cross-examined. The statement will then be admissible into court.

Other examples of "hearsay"

Besides just statements by people that cannot be cross-examined in court because they are not in court, there are other things which are considered hearsay.

1. Affidavits. Many property managers get the repair people and vendors to sign an affidavit, get it notarized, and then they think they can show it to the judge. It does not work; it is hearsay, because the vendor or repair person cannot be cross-examined in court.

2. Witness Statements. Getting 5 statements signed by people who observed the damages would seem like compelling evidence in court, but again, it is hearsay, unless the person or persons who signed the statements are in court.

3. Estimates. No good. Hearsay, unless the person who wrote up the estimate is in court and based the estimate on personal observation.

4. Bills. This is the classic mistake of the landlord. The stack of bills cannot be admitted into court to prove that the tenant damaged the property, unless the person who did the work is there in court, and a witness which can be cross -examined.

5. Police reports. There are times where properties are so severely damaged that the police are called in to write up a vandalism report. Hearsay again, unless the law enforcement person who wrote up the report is in court with you.

Is there any value to bills, invoices and receipts?

While they cannot be used to prove damages, they can be admitted into court to prove what something cost you, and if you have proof of payment, they can be used to prove that you paid for something like the supplies, the vendor, and the repair person. This certainly limits the usefulness of your bills, invoices and receipts, BUT will help your case in court, if you make it clear to the judge that they are being admitted as business records to prove what you paid.

Our Recommendations

If you end up in small claims court involuntarily, i.e. you have been sued, call your attorney as soon as possible. Don't wait until the last minute when the chances of settling the case are seriously jeopardized. If you decide to file a small claims court case on your own, take the time to talk to everyone who worked on the premises to make sure that they will be there with you in court. You can subpoena these people as well and hope they come to court, but you don't want to have an angry carpet cleaner who had to kill 5 hours waiting in court with you. Examine your evidence carefully, and try to put yourself in the judge's seat for a moment and ask, will my evidence and testimony completely convince a judge that the property was not damaged when the tenant moved in, and was in a damaged state when the tenant moved out? Then expect the tenant to come up with all kinds of lies and stories to make you look like the bad guy.

PRE-PROPERTY MANAGEMENT ACCEPTANCE INVESTIGATIONS
by Harry Anthony Heist, Attorney at Law

A property manager is an asset manager. The asset owner turns over the home or condo to the property manager to manage as that manager sees fit. Unlike cash, the asset that the property manager is entrusted with is complex, and to make matters more complicated, sometimes this asset comes complete with a tenant in place. Many property managers, and in particular ones who are newly entering the field of property management, will basically take anything that comes though the door. If that out of state owner calls you to manage his property, the first response is "yes". We believe the first response should be "possibly after we get a little more information". Our office deals with tens of thousands of situations each year. We see many instances in which property managers take over management of a property or a group of properties without asking questions first. The result is early litigation or a nightmare throughout the entire process. Our office files evictions for individual homeowners who are "attempting" to manage their own properties. While some owners are successful and knowledgeable, others have no clue whatsoever and make serious mistakes. If a potential client has made serious mistakes, we often will decline the case, as we do not want to have a situation in which we are in fact losing money because of what a client has done in the past. Since we do not traditionally charge hourly for eviction matters, a major problem results in us losing money, due to our flat fee system and taking up time that can be better spent on clients who have taken the time to know the law. Our firm's philosophy should also be your firm's philosophy. Taking over a nightmare property from a nightmare owner will end up costing you money in the long run and making property management more difficult than it already is. Now for the big question. How do you know what you are getting into?

The Property Owner Questionnaire

When we are asked by an individual homeowner to file an eviction, we first have that homeowner answer a number of questions, so we can get a feel of what has been going on. You should do the same, and preferably in writing, so you have proof. Out of state owners who have gotten themselves into a mess are notorious for leaving out major pieces of information, as desperation has sunk in. The number of these individual homeowners who are trying unsuccessfully to manage their own properties is rapidly increasing. The following are some questions to ask a potential new owner BEFORE accepting the property for management.

Who is the owner of the property?

The owner may be a partnership, trust corporation individual of any other entity. While you are asking this question, you can also be looking at tax records in the computer, as you want to confirm ownership so a property management agreement can be drawn up correctly.

How long have you owned the property, and when were you last at the property?

This will tell you if the owner is new to the property or has had long term dealings with the property and knows his or her property. An owner who bought the property 10 years ago will have you begin to manage the property, then visit Florida and nearly keel over when it does not look like it did when it was purchased. Who gets blamed? The property manager.

Do you own other properties in Florida?

Owners sometimes will dump the problem property on a property manager while continuing to self-manage the other properties that he or she owns. This is a warning sign. It is like when a property manager files the non-payment of rent evictions without an attorney, but then asks us to handle the completely messed up case. Sorry. Time to get another attorney.

Do you have a current tenant in the property, and how is it going?

You will want to get a feel of "why" they are coming to you. These questions are important, as the problems becomes evident almost immediately when you begin managing the property

1. Has the tenant complained of repairs?
2. Are there pending repairs?
3. Have you ever let the tenant do work in exchange for a rent rebate?
4. Has the tenant ever expressed interest in purchasing the property?
5. Is the tenant now in arrears?
6. Have you ever accepted cash from the tenant?
7. Who was accepting rent and posting notices in the past?
8. Are you happy with the tenant?
9. Does the tenant feel you owe anything to him at this time?
10. Is there a current written lease?
11. Do you want to keep the current tenant?
12. Do you know the names of all your tenants?

Is the unit a legal rental unit?

We don't recommend our clients getting involved with illegal units where code enforcement can come in, start fining the owner, and the tenant has a valid lease in an illegal apartment, creating a breach of contract and eviction problem.

Are the mortgage payments, taxes and condo/ homeowners fees up to date and paid?

An owner who is delinquent sometimes gets so desperate they look to you to do all the work, find them a tenant, then fire you. You need to know the financial situation of the owner as it relates to the property. We have seen property managers take over homes and put tenants in, only to find out that the owner has been in foreclosure for months.

What were you hoping to get for monthly rent?

WOW! This is a big problem lately. Thousands of investors have purchased properties at prices where the taxes, mortgage and insurance don't even come close to the potential rent you can get on the property. If the owner is unreasonable or does not want to accept the harsh realities, you do not want to represent this owner.

Are there any code violations on the property?

Absentee owners often have failed to maintain the premises, and there could indeed be active violations on the premises.

What was the problem with the prior property management company?

If the property was being managed by another company and now the owner wants to come over to you, it is important that you investigate exactly why the owner is switching. This may tell you if the owner has unreasonable expectations.

Is this owner engaged in "Management Flipping"

If you are just another property management company in a long chain of management company hiring and firings, this shows that the real problem is not the management company, but the property owner. Don't fool yourself into thinking that you are going to make this owner happy because you do things a "different way" or you are "better". While you may be "different or better", the owner is the same! When we see a client who is obviously attorney flipping, we refuse representation.

Our recommendations

In addition to the questions and issues discussed in this article, we are sure that there are many more questions that you already ask and have implemented in your policies. We would love to hear from you to see what other "screening" questions you ask before accepting the property for management. If you wish, we will amend this article and put your name next to some of the questions or procedures that you recommend! Simply email your info to me at harry@evict.com and let us know if you want the recognition!

EVICTIONS AND THE RENTED GARAGE
by Harry Anthony Heist, Attorney at Law

Many multi-family unit tenants, and in some cases, tenants of condo units, either have a garage included in the tenancy, or can choose to have a garage at a cost in addition to their apartment. The way the lease agreement and garage addendum is worded can have major consequences in the event of an eviction action. Failure to use the proper wording can result in the unpleasant situation in which the tenant is evicted from the apartment, but the property manager is left trying to deal with a garage full of the tenant's possessions. In a single family home, we do not have these issues, as the garage is usually attached or directly near the premises. In a multi-family setting, the garage is more often detached and may or may not be part of the "premises" .

The typical lease

The typical lease will state the monthly rent and then add a section for garage rent or have a check-off section stating that the garage is included. The garage is never mentioned again in the lease, and there is no garage addendum used. Sounds simple enough, and usually there are no problems

The Sales Tax Issue

Most property managers do not realize that if a garage is rented separately from the residential unit, sales tax must be collected on the garage rental. It is crucial to include the garage within the rental for this purpose to potentially avoid any problems with the DOR and sales tax. We recommend that you have a price stated for units with garages and a price for units without garages. Making a separation of the garage from the rental unit can trigger a sales tax issue. If you ever rent out garages to non-residents, you absolutely MUST collect sales taxes.

The Eviction Problem

As mentioned before, usually the garage is not listed as part of the premises but treated separately. This separate treatment can cause a major problem in an eviction action. Typically, the eviction is served on the rental premises and lists the rental premises as the premises that the tenant is leasing. Have you ever seen a garage listed on the 3-Day Notice or eviction action? It is assumed by many property managers and thankfully many tenants that in the event they get evicted, they need to remove everything from the garage as well, and most do. This assumption though may be false. A property manager could be faced with evicting the tenant but not being able to get the tenant to take items out of the garage. In fact, we have seen cases in which a tenant moved his or her belongings into the garage, actually sleeps there at night, and the traditional eviction action cannot get the tenant or his property removed from the garage.

The Lease Tie In

In the beginning of the lease agreement, we recommend that the lease clearly describes the premises as follows "125 Main Circle Unit 306 and Garage Number 16" We do not recommend separating out the price of the garage from the price of the apartment or condo. Simply add these together to have one amount.

SAMPLE LEASE ADDENDUM FOR GARAGE, CARPORT AND/OR STORAGE UNIT

1. ADDENDUM: This is an addendum to the Lease Contract for Apartment No_____ in the ________________________Apartments ___________, Florida and is made between Resident(s) (hereafter referred to as "Resident(s)") and Owner and/or Owner's agent (hereinafter referred to as "Owner").

2. PREMISES: The Premises as defined herein, shall be an enclosed garage, a carport and/or a storage unit (hereinafter referred to as the "Premises").

3. USE: Only those persons whose names appear on this addendum may use the Premises. The Premises may be used solely for private residential storage, and under no circumstances shall any business activity be conducted from or in the Premises. No person shall be permitted to sleep in the Premises at any time or remain in the Premises with the door closed.

4. PETS: No pets or animals may be kept in the Premises.

5. DEFAULT AND REMEDIES: If Resident(s) default in complying with this addendum or the law, Owner has the right to retake possession as provided by Florida law and institute eviction proceedings. If, Resident(s) or invitee(s) engage in criminal activity on the premises, such action will be a default for which this addendum and the apartment tenancy may be immediately terminated. In addition to any of the foregoing, Owner has all other rights and remedies provided by law.

6. RIGHT TO ENTER AND TERMINATE: Resident(s) consent to Owner entering the Premises at any time and for any purpose without notice. Owner reserves the right to terminate this Addendum at any time and for any reason whatsoever, and Resident(s) agree to immediately remove all items from the Premises or face eviction proceedings from the Premises and the apartment unit.

7. REPAIR AND MAINTENANCE:Resident(s) acknowledge that they have inspected the Premises and are fully satisfied and accept it in "as is" condition. Resident(s) agrees to be fully responsible for any damage cause to the interior of the Premises, including but not limited to the walls, ceiling, floor and the door(s).

8. ALTERATIONS: Resident(s) may not make any alterations or additions to the Premises or affix anything to the floor, ceilings or walls.

9 CONTENTS: Nothing may be used or kept in or about the Premises which would in any way affect the terms and conditions of Owner's fire and extended coverage insurance policy, constitute a violation of the law, or otherwise be a hazard in Owner's sole judgment. NO FLAMMABLE OR COMBUSTIBLE LIQUIDS OR GASES, BATTERIES, FIREWORKS, EXPLOSIVES OR ANY OTHER ITEM OR SUBSTANCE, WHICH OWNER DEEMS DANGEROUS OR UNACCEPTABLE, MAY BE KEPT IN THE PREMISES. NO ELECTRICITY MAY BE HOOKED UP TO THE PREMISES, AND NO PLANTS MAY BE GROWN IN THE PREMISES.

10. PEST CONTROL: Owner will in no way whatsoever be providing any pest control for the Premises and shall not be liable for any damages caused by pests to the Premises.

11. LIABILITY: Owner will not be liable for any damage, loss, or injury to persons or property occurring within or about the Premises, whether caused by Owner, someone else, weather, fire, wind, rain, flood or any other acts of god. Resident(s) are responsible for obtaining Resident(s)' own casualty and liability insurance, and, agree to save and hold Owner harmless and indemnify Owner from any liability. OWNER STRONGLY RECOMMENDS THAT RESIDENT(S) SECURE INSURANCE TO PROTECT YOUR PROPERTY. Resident(s) agree to save and hold Owner harmless and indemnify Owner from any liability resulting from injuries arising from the use of the Premises.

12. SECURITY: Owner does not provide and has no duty to provide security services for Resident(s)' protection or the protection of Resident(s)' property in the Premises. Resident(s) must look solely to the public police for such protection. The Premises has a lock, which Owner does not warrant in any way. In the event any locks are broken, Resident(s) shall be responsible for the cost of replacement of the locks.Resident(s) may not change the lock(s) on the Premises.

13. POLICIES: In addition to the policies herewith and the attached rules and regulations or any other attachments, the receipt of which is hereby acknowledged, Resident(s) agree to observe and be bound by any other reasonable policies or rule changes which may be later implemented by Owner.

14. GARAGE SALES: Resident(s) agree that no "garage sales" shall be permitted in or around the Premises, parking areas or common areas, and nothing shall be sold out of or around the Premises, parking areas or common areas without express written permission of the Owner.

15. ABANDONED PROPERTY: Resident(s) agrees that should they vacate leaving any items in the Premises or should Resident(s) fail to vacate the Premises after notice or eviction, Owner is expressly given permission to dispose of the items in any way, holding the Owner harmless, and Resident(s) agree to be liable for any expenses arising out the disposal with regard to any items left in premises after Resident(s) vacate the Premises. Resident(s) expressly agree to waive all rights and procedures regarding the disposition of abandoned property provided in Florida Statutes. BY SIGNING THIS ADDENDUM, RESIDENT(S) AGREE THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY FLORIDA STATUTES, THAT OWNER SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE RESIDENT(S)' PERSONAL PROPERTY.

SERVING NOTICES - ARE WITNESSES NECESSARY?
by Harry Anthony Heist, Attorney at Law

Thousands of Three Day Notices, Seven Day Notices and Notices of Nonrenewal are served each week by landlords. Most are served by posting on the premises or hand delivered to the tenant if the tenant is present. While most tenants comply, there are many times when the landlord files an eviction and the tenant denies receiving the notice. Most likely an agent for the landlord served the notice by himself or herself with no witnesses, so the judge will have to decide who to believe if this is brought up as a defense to the eviction. While witnesses are not necessary, they sometimes can be crucial to your case.

Florida Law

There is absolutely no requirement in Florida law that the landlord must have a witness or witnesses present when serving a notice. This article simply deals with recommendations based on our experiences.

The Dangerous Tenant

Serving notices can be dangerous. Here you have a situation where a landlord is required to knock on a door, only to meet a less than friendly tenant or other occupant of the premises, whether authorized or not. Each year, landlords get assaulted while in the process of serving notices, and recently in Florida a landlord was killed serving a Three Day Notice

The Mailing "back up" Mistake

A landlord sometimes will want to insure that the tenant receives a notice and sends this notice by mail, in addition to posting on the premises or hand delivery. This can be a serious mistake as the law extends the expiration time of a notice if it is mailed. If a Three Day Notice is mailed, the law allows 5 days for the tenant to receive the notice and an additional 5 days for the tenant to pay by mail even if you don't want the tenant to pay by mail. This can result in a Three Day Notice becoming a Thirteen Day Notice. On top of this, confusion can occur because the Three Day Notice was given one day but another Three Day Notice received a few days later by mail causing a conflict and possibly voiding out the first Three Day Notice. In the case of a Notice of Nonrenewal, the landlord may be under a strict timeframe in which to give the tenant notice. For instance a month to month tenancy needs to be terminated by the landlord giving no less than 15 days notice prior to the beginning of the next monthly rental period. If the notice is mailed on say August 14, adding 5 days for mailing would make the notice short.

The Desperate Tenant

There are no limits to the lies that tenants will come up with if they do not have the rent. The most common one is that they did not receive the Three Day Notice. Judges hear this one all the time, and in most cases, as long as the landlord or someone else testifies that they served the notice, this defense will not be successful. If this defense is raised in court, you better be certain that the person who served the notice is in court with you, and better yet, another witness.

The "I paid the landlord by cash defense"

Occasionally a tenant will raise the defense of payment. They will claim that they paid the landlord when the landlord met them at the door. Sometimes they will allege that they paid the landlord in cash. In most cases this is not a very credible defense, but if the tenant can show that the landlord accepted cash in the past, the defense becomes stronger. Having a witness who can also testify that no payment was made by the tenant could be crucial if this defense is raised.

Alternative delivery methods

Private process servers are available in most counties and are often certified to serve notices by the Circuit Court. The process server will prepare an affidavit of service which will be attached to your Three Day Notice that you file with the Court. Most judges will take this seriously, but still, if a process server is used, we would recommend that the process server comes to the eviction hearing or trial. A word of caution when using process servers: make sure the date on your notice and the expiration date are proper, and that the process server serves the notice immediately. We have seen cases in which the landlord hired a process server, gave the process server the notice. but the Three Day Notice was not served until the next day, requiring the notice to be completely redone, and the landlord had to start over again.

The Sympathetic Judge

Judges are human and in some cases feel sorry for the tenant"˜s plight. Some tenants can weave a great story, and some tenants indeed do have legitimate problems. While most judges will follow the law, giving the judge one little excuse to deny the eviction action might be enough for you to walk out of the courtroom with unexpected results. Never underestimate what a tenant will do in Court. Our office handled a cut and dry non-payment of rent case, in which the tenant denied receiving the Three Day Notice. The landlord testified that he gave the notice. The tenant had no other legal defense whatsoever, and the judge decided to dismiss the eviction action, stating he did not feel that the tenant received the notice. If we had a witness to the notice serving, we doubt that the judge would have considered both the landlord and the witness to be liars, and we feel that we would have prevailed in the eviction action.

Our Recommendation

If at all possible bring a witness with you when you are serving notices. If you feel that you have a dishonest or dangerous tenant on your hands, or possibly you have accepted rent in cash in the past, it is the safer approach and can mean the difference in whether you win or lose the eviction action.

SECURITY DEPOSIT TRANSFER PROCEDURES
by Harry Anthony Heist, Attorney at Law

There will invariably come a time when a property manager's services are terminated by the owner, and the owner will either want to manage the property himself or will want to hire another property manager. Additionally, a property could sell, and a new property owner will wish to terminate the services of the property manager. In every case, either the new property manager or the owner will demand that you transfer the security deposit out of your escrow account and into their account. Florida law specifically deals with how this is accomplished and must be followed. Failure to follow the law could result in a lawsuit or a FREC complaint. The term licensed property manager in this article refers to those persons holding a real estate sales or broker's license.

1. The licensed property manager is fired, and another licensed property is taking over management.

In this situation, no permission is needed from the tenant to transfer the funds from your escrow account to the escrow account of another licensed property manager. The new property manager must notify the tenant where and how the money is being held. Property managers who are fired are often angry, as they feel that the firing was wrongful and money is owed to them by the owner. Money may indeed be owed and the filing may have been unfair or wrong, but NEVER hold back the transfer of money to the new property management company as an attempt to try to recover owed commissions. This type of an attempt at self help recovery of commission money by touching the tenant's money is illegal and wrong.

2. The licensed property manager is fired, and the property owner decides to self-manage

If the owner is self-managing, the property manager must get permission from the tenant to transfer the funds. The logic behind this is probably that since the owner is not licensed, there may be a greater risk of the owner not preserving the tenant's money. We recommend that you use the form below and try your best to have the tenant sign off. If the tenant fails to sign off, further steps need to be taken, and the property manager should not transfer the money.

3. The property sells to a new owner, and the property manager is fired.

Oddly enough, the tenant does not have to give permission for the property manager to transfer the funds to a new owner if the property is sold. This makes the reasoning in situation #2 seem faulty, but it is the case. Since a typical owner of rental property will not know how to follow the law, we recommend that you give the new owner a copy of Florida Statutes Section 83.49 and keep a record in your file that you gave the new owner the information.

Transferring the money out of state

Often owners will be out of state and will want you to send the money to them through the mail. Security deposits must be kept in a Florida banking institution. We urge you never to send the escrow funds out of Florida, even if the tenant gives you written permission. If they get pushy, send them a copy of the law and document every conversation and correspondence. Fortunately many banks operate in multiple states, so it has become easier for owners to have a Florida bank account which has branches in their state.

Florida Law excerpt of Section 83.49

(7) Upon the sale or transfer of title of the rental property from one owner to another, or upon a change in the designated rental agent, any and all security deposits or advance rents being held for the benefit of the tenants shall be transferred to the new owner or agent, together with any earned interest and with an accurate accounting showing the amounts to be credited to each tenant account. Upon the transfer of such funds and records as stated herein, and upon transmittal of a written receipt therefore, the transferor shall be free from the obligation imposed in subsection (1) to hold such moneys on behalf of the tenant. However, nothing herein shall excuse the landlord or agent for a violation of the provisions of this section while in possession of such deposits.

RECOMMENDED PERMISSION LETTER

SECURITY DEPOSIT TRANSFER AGREEMENT

(TO BE USED WHEN TRANSFERRING A SECURITY DEPOSIT TO THE PROPERTY OWNER(s). FORM IS NOT NECESSARY WHEN TRANSFERRING DEPOSIT TO A LICENSED REAL ESTATE BROKERAGE)

Tenant(s) hereby acknowledge and agree that the Security Deposit and or Last Month's Rent totaling $______________ shall be transferred from the current account of: _____________________ (name of current deposit holder) to the account of:_________________________ (name of new deposit holder).

New Florida Bank Information if known at time of transfer :

Name__________________________

Address________________________

TENANT__________________ _____/____/____

TENANT__________________ _____/____/____

TRAINING YOUR PROPERTY OWNERS by Harry Anthony Heist, Attorney at Law

Most property managers work primarily for out of state owners. The owners have entrusted the property to the property manager and expect that it will be managed properly. As an agent for the owner, the property manager is given the authority to act as the owner to the fullest extent that the property management agreement allows. The tenant deals with the property manager from beginning to end, and ideally the owner has no contact or any dealings with the tenant. Unfortunately tenants and owners come into contact with each other often, resulting in problems and complications. A property manager's goal should be to keep this contact from occurring.

The owner visits the property

Many out of state owners have not viewed their property for some time. It is only logical that when the owners do come to Florida, they decide to do a drive-by of the property or take a closer look and walk around. Besides the usual surprise by the owner that the property does not look like it did 10 years ago, the owners often run into the tenant and they begin to chat. A number of problems arise out of these "chats".

The tenant finds the owner's phone number and calls

An angry tenant will go to great lengths to find the property owner, if he or she feels that there is a problem that the property manager is not attending to. This will result in the phone call to the tenant where the owner hears only the tenant's side of the situation. A gullible owner may believe everything that is heard and then have a conflict with the property manager.

The tenant is expecting to purchase the property

Occasionally the tenant will express an interest in purchasing the property and discusses this with the owner. A simple discussion can lead to an understanding or expectation by the tenant that he will indeed be able to purchase the property. The tenant then starts treating the property as if it is his own and then begins making repairs, repainting or engaging in actions more appropriate for the owner of a property rather than a tenant. When the tenant later tries to actually purchase the property, the owner, finding out that the property is worth far more than he originally thought, decides to get top dollar, and the tenant is in no way able to qualify for the purchase. This creates bitterness on the part of the tenant who now refuses to allow showings of the property or cooperate with any potential buyers or sales agents.

The tenant is told of a replacement or repair

While chatting with the owner, the tenant shows the owner some part of the premises that may be in need of a repair or replacement. Things are said by the owner like, "We will get new carpet for you if you renew for another year". The owner then changes his mind and decides not to get new carpet for the tenant. Result? The owner is now in breach of an oral agreement, and the tenant is angry deciding to withhold rent, due to the breach with the property manager stuck in the middle of the mess.

The tenant offers to do work in exchange for rent

If the tenant happens to be a painter, landscaper or other tradesman, the tenant will invariably want to use his experience and equipment to work on the premises. The owner will think this is a win-win situation and agrees to provide materials and/or reduce the rent. This is a huge mistake, as most property managers already know. Mixing a tenancy with work by the tenant is a recipe for a rent withholding and/or complicated eviction action. Frequently, the tenant will not do the work as promised, will do too much work over what was agreed to, do shoddy work, or get injured on the premises in the process. A tenant should NEVER be allowed to do work on the premises.

The tenant is told to pay the rent directly to the owner

Every property manager has or will experience the situation in which the owner deals directly with the tenant and decides to cut out the property manager, breaching the property management agreement. This could be out of simple greed, or a feeling that the property manager is not doing a proper job based on what the owner hears from the tenant. The tenant is told to pay the rent directly to the owner, bypassing the property manager.

Deals on rent are made

A property manager is much less apt to act based upon feeling sorry for the tenant. Most property managers have heard every sob story in the book. The owner may grant the tenant an extension or make some kind of a deal with the tenant. Most likely this deal is not done in writing and now will interfere with a possible eviction action.

The Court Testimony Problem

If the tenant has had direct contact with an owner, be it in person or by phone, or other correspondence, and an eviction or other court action becomes necessary, the owner may be required to come to court and testify. This could result in a costly last minute plane flight for the owner or multiple visits to Florida in the event of protracted litigation. If the tenant alleges that an agreement has been made with the owner, and the owner did indeed have some contact with the tenant, the only way to counter the tenant's allegations will be to have the owner testify. While it may be possible to get permission form the court for the owner to testify by phone, the owner is put at a distinct disadvantage.

Your Property Management Agreement

Keeping the owner away from his or her tenant is a touchy situation. You do not want to make the owner get the impression that you are hiding something or trying to keep the owner away from the tenant for some sinister purpose. On the contrary, you are trying to protect the owner from complications that invariably occur. We recommend that you specifically advise the owner of the reasons why owner-tenant contact is not advisable. Additionally, the property management agreement can create a clause such as the following:

CONTACT WITH THE TENANTS: Owner agrees to have no contact with the Tenants whatsoever by phone, fax, email, mail, in person or through any other means and shall immediately direct any and all attempted contacts to the Property Manager. Owner understands and agrees that any contact with the Tenants may result in the Owner being forced to attend court on short notice in the event of any litigation,including but not limited to eviction actions or security deposit lawsuits.

THE DANGERS OF THE TIPPING STOVE
by Harry Anthony Heist, Attorney at Law

Each year thousands of children are injured due to stoves and other heavy items capable of tilting or falling, such as wall units, bookshelves and entertainment centers. Huge lawsuits have been filed, resulting in large judgments against both property owners and manufacturers of these items. Could a landlord or property manager be liable for injuries caused in these situations? Quite possibly. It is crucial that part of the safety evaluation a landlord makes of the rental unit includes checking for items which may tip or fall over if misused.

The Tipping Stove

The tipping stove has the potential for causing serious injury due to the secondary injury caused by the child being doused with a hot substance which may be cooking on the stove and subsequently spills, or the child can be trapped by the fallen stove and exposed to the hot element. As appliances get lighter each year, the danger increases. Commonly, a child will open the oven door, climb up onto the door and cause the stove to partially or completely tip over. Since gas stoves generally are attached by a rigid or semi rigid pipe, they are less apt to tip. The problem is more prone to occur with electric stoves, and in Florida, electric stoves are predominantly in use.

Who is Liable?

While it is clearly an improper use of the stove for a child to intentionally climb up onto the open oven door, it is possible that a jury may find that if there was a way that a stove could be prevented from tipping, this may place a duty on the owner of the stove, i.e., the landlord, to prevent the stove from being able to tip. In many cases we see juries rule against a landlord if it can be proven that had the landlord done something as simple as installing a light fixture in a darkened area of the property or installing a non-slip surface in an area that often gets wet and slippery, a severe injury to the tenant could have been prevented. Here the landlord is being held liable for something that the law did not actually require, but had additional, preventative measures been taken, the tenant's injury may have been averted. This is the same principle and legal theory which can create liability on the part of the landlord for a tipping stove injury.

The Law

Florida law does not require that the landlord take any preventative measures to insure that a stove does not tip over when misused by a child. Nothing in the Landlord/Tenant Act specifically addresses the issue. However, the landlord is required to keep the premises in a safe condition, and there may be an implied warranty of habitability imposed upon the landlord.

The Tipping Stove Solution

It is simple and inexpensive to anchor a stove to the floor with a u-bolt or other anchoring device and/or attach a strap to the back of the stove securing the stove to a solid and sturdy section of the wall. It is crucial that the strap is secured solidly to either a wall beam or a large molly bolt or wall anchor is used. The cost is minimal, no license is necessary to undertake such a precautionary measure, and you or your maintenance person should be able to handle such a job. Just because many new stoves now come with anchoring mechanisms, you should assume that an installer may not have actually installed it properly or installed it at all.

The Tipping Wall Unit or Entertainment Center

If the landlord is renting out a furnished unit, and book cases, wall units, entertainment centers or other items exist that are free standing, the landlord could be held liable for injuries sustained due to the tipping over of these items. Again, these items should be anchored properly to prevent injuries from occurring. You may feel that it is absurd that you could be held liable for the obvious gross negligence of a tenant or the tenant's child, but a jury could feel otherwise. If the bookcase or entertainment center belongs to the tenant, the potential liability on the part of the landlord would be decreased dramatically, but in a furnished unit, extreme care must be taken.

Our Recommendations

We recommend that all landlords as part of their safety evaluation of the property go through each and every room to determine if there is anything on the premises and belonging to the landlord that could potentially tip over in the case of misuse. If any items are discovered, these should be secured to the floor or wall immediately. Do not neglect to check the garage or storage areas, as often these area contain shelves or cabinets that can tip.

Not Convinced yet?

We urge you to click here here and read the excerpt of this case. While in this case, the manufacturer was held liable, we feel that no chances should be taken by the landlord or the property manager.

STORM ISSUES AND THE RESIDENTIAL TENANCY
by Harry Anthony Heist, Attorney at Law

The numerous storms in Florida over the past few years have resulted in many new legal issues between the landlord and the tenant. Unfortunately most landlords were not prepared for the myriad number of problems, and often decisions were made which ended up in litigation. Common problems included the tenants taking it upon themselves to secure the property and in the process damaging the property. In many cases the premises were substantially damaged, and the tenant was allowed a rent rebate or some concession which ended up not satisfying the tenant and becoming a problem later. Construction workers often were not able to complete repairs in a timely manner. In severe damage situations, the tenants refused to vacate the premises and also refused to pay rent. Who is liable for protecting the tenant and his personal property? Can we make a tenant leave if the premises cannot be repaired quickly, or it is necessary to have the tenant leave the premises to have the repair properly made? What about generators? In a multi-family environment such as an apartment community, the misuse of a generator can put people and property at great peril. Can we prohibit them? The following discussion is preliminary at best and is meant to give you some ideas which you may wish to implement in your lease or an addendum to your lease. It is by no means complete, but it is a start.

What are the Landlord's obligations?

Many leases contain clauses reminding the tenant that the landlord is not responsible for their personal property, and the tenant agrees to this. Surprisingly, these clauses are not always upheld in court for situations in which damage to the tenant's personal property was not due to any fault of the tenant. If there is a pipe break, and the tenant's personal property is damaged or destroyed, this clause may not hold up. In the event of a storm, if there were some simple steps that the landlord could have taken to help preserve the personal property of the tenant from damage, things are not as clear. The duty of the landlord to secure the premises is not spelled out anywhere in Florida law. We recommend the following clause.

LANDLORD'S OBLIGATIONS: Tenant agrees Landlord has no obligation to install storm shutters and/or take measures to prevent wind, rain and/or other objects or projectiles from entering the premises in the course or event of a windstorm, flood, hurricane, hailstorm, tropical storm, or any other act of nature (hereinafter "Storm") that may strike in the area of or affect the premises rented by Tenant from Landlord. Tenant agrees Landlord has no duty to advise Tenant as to evacuation orders, potential or current storms, safety measures, storm-preparedness procedures, or storm recovery resources. Tenant agrees to use due diligence in keeping informed of the current and future weather.

What about the tenant's personal property?

Florida law does not prohibit or specifically allow a landlord to require a tenant to get insurance for her personal property, commonly known as "renter's insurance". There also is no affirmative duty on the landlord to secure the tenant's personal property, which may be in accessible areas such as balconies or lanais. It is possible that a particular area of the outside of the premises is subject to flooding. The landlord may have a duty to warn tenants of this if the landlord has knowledge of a low section of the property or prior flooding. Many tenants are not aware that the typical insurance policy that a landlord has on a rental property in no way includes coverage on any of a tenant's personal property or coverage for any other loss that may occur to a tenant other than personal injury or death due to the landlord's negligence. We recommend the following clauses:

TENANT'S OBLIGATIONS REGARDING PERSONAL PROPERTY: Tenant agrees the rental premises are located in an area that may be subject to storms, and as a result, it is necessary to take steps to protect one's personal property, including but not limited to securing objects that may become projectiles, keeping important documents in a location safe from damage, providing for the safekeeping of keepsakes, and obtaining appropriate insurance. Tenant understands that, even with precautions, damage to personal property, including vehicles, may occur.
RENTER'S INSURANCE: Tenant understands and agrees Landlord's insurance if any DOES NOT cover injury or death to Tenant's person or loss of any kind to Tenant's personal property or expenses incurred by Tenant due to a storm, including but not limited to, loss of perishables, interruption of water, electric, cable or other utility service, relocation expenses and/or temporary or permanent housing. Tenant agrees he or she has an affirmative obligation to obtain renter's insurance to cover losses in the event loss should occur to Tenant's person and/or personal property due to a storm. Failure by Tenant to obtain renter's insurance is done at the complete and total risk of the Tenant.
LIABILITY OF LANDLORD : Tenant waives any liability or duty on the part of the Landlord for any damage to person or property should any occur due to a storm. Tenant agrees to indemnify Landlord should any third party institute an action for damages against Landlord due to damages caused to person or property by Tenant's personal property and/or Tenant's actions or inactions relating to such personal property. Such indemnity shall include attorney's fees and costs of Landlord incurred in any actions for damages by a third party.

Storm preparation actions by the tenant

Certain steps should be taken by a tenant to minimize the risk of harm to the tenant, personal property belonging to the tenant, and property belonging to others due to the tenant's personal property becoming a projectile or otherwise causing damage to another's property. At the same time, a landlord does not want a tenant to drill holes in the premises, put nails into the premises or take steps to protect the tenant's personal property which could cause damage to the premises in the process. We recommend the following clauses:

STORM PREPARATION : Once a tropical storm, hurricane, flood watch or warning is issued for a particular area and/or at the request of Landlord, Tenant agrees to take storm preparedness actions. Any injury to Tenant arising from storm preparation is the sole responsibility of the Tenant and not of Landlord. In the event of damage to Landlord's property due to Tenant's storm preparations, that damage will be the responsibility of Tenant. Tenants shall remove all authorized and unauthorized objects from the immediate premises that may become projectiles in a storm, such as deck chairs, potted plants, patio benches and any items on a balcony, lanai, patios and/or breezeways of the rental premises. These items should be placed inside the apartment and returned to the outside only when it is safe to do so. In no event, shall any motorcycle, scooter, gas grill, or other item containing gasoline or other fuel, be stored inside in the rental premises. These items must be removed completely from the premises.
MODIFICATIONS TO THE PREMISES: Tenant agrees no modification shall be made to the premises including but not limited to attaching storm shutters, plywood or other items over doors or windows, taping duct tape or any other type of tape to windows or screens or making any other modifications or attaching any item to the premises. If Tenant fails to abide by this provision, Tenant shall be in breach of the lease agreement, shall be responsible for any damages to the premises and subject to eviction by Landlord.

Are storm shutters required?

In some areas, storm shutters are required for new construction, but most existing housing does not have any form of storm shutter system, be it removable or permanent. The tenant needs to understand that the landlord is not under an obligation to purchase storm shutters or to secure the windows and doors of the premises. Storm shutters can also give tenants a false sense of security, and the tenant needs to understand that storm shutters are simply one method to help minimize damage. If storm shutters are on the premises, the lease needs to address whose responsibility it is to engage these shutters, put them in place or remove them after a storm or a threat of a storm occurs. We recommend the following clause:

STORM SHUTTERS: If the premises are not equipped with storm shutters, Tenant understands that no storms shutters will be provided and/or no measures shall be taken by Landlord to secure doors and or windows unless Landlord, in its sole discretion, decides to perform these tasks. Tenant agrees to hold Landlord harmless for any damage to person and or property due to the lack of storm shutters or Landlord's decisions to secure or not secure doors and/or windows. If storm shutters have been installed at the premises, or if Landlord secures door and/or windows, this shall not relieve the Tenant of the obligation of looking to his or her renter's insurance for coverage of any damages to property or person. Tenant agrees that installation of storm shutters or other means of securing doors and windows are not guarantees in any way that damage to the premises due to a storm will be minimized or will not occur.

The generator problem

The landlord must decide if a gas powered generator will be allowed on the premises. Gas generator dangers are huge. Every year fires are started and individuals die of carbon monoxide poisoning due to generator misuse. In a single family home situation, the landlord may not have a problem with allowing the tenant to use a generator, but in multi-family housing the risks are multiplied greatly and are severe. Let us assume that an apartment community prohibits generators, but the tenant purchases and uses one on the premises. Can the landlord remove or disable the generator without liability? We are not sure, but we have created a clause which your attorney may want to review and give you his or her opinion. We are not by providing this clause stating that this clause will definitely be upheld in court or will not create liability on the landlord, so you have been warned.

GENERATORS AND FLAMMABLE LIQUIDS : Tenant agrees that NO GENERATOR(s) WHATSOEVER shall be permitted to be used by Tenant on, in or near the premises. Severe hazards are associated with storing and operating a generator at the property, including injury and death to persons and damage to property. Tenant agrees that NO FLAMMABLE LIQUIDS shall be permitted to be stored on, in or about the premises including but not limited to gasoline, kerosene or propane.
REMOVAL OF OR DISABLING OF GENERATORS BY LANDLORD: In the event Landlord is made aware that Tenant is in possession of or using a generator on, in or near the premises, Tenant by this document gives Landlord absolute permission to disable the generator and/or remove the generator from the premises without notice or further permission of the Tenant. Tenant agrees to hold Landlord, its agents, employees and assigns harmless for any damages suffered as a result of Landlord disabling and/or removing the generator from the premises. This includes damages to Tenant's personal property due to lack of electricity and /or damages to or loss of the generator itself.

Notifications to the tenant

Nothing in Florida law requires a landlord to notify the tenant of an impending storm. It is good in multi-family housing though for the landlord to have a policy and procedure in place, as it only makes sense that the landlord take steps to notify tenants who may not be aware of the situation. A landlord cannot force a tenant to vacate the premises. We recommend the following clauses:

EVACUATION OF PREMISES: In the event a governmental entity orders an evacuation of the area, Tenant agrees to follow such evacuation orders. In the event Tenant fails to follow the evacuation orders, Tenant agrees that Landlord shall not be liable in any way for injury or death of Tenant or damage or destruction of Tenant's personal property, including vehicles.

The damaged property Catch-22

The most common problem our office deals with in the aftermath of a storm is the damaged unit. The destroyed unit is easy. The tenants are gone and can't move back in. The damaged unit creates serious issues. Does the landlord have to repair? Can the landlord timely repair? Is there water damage causing mold? Can repairs be made with the tenant present? Does the tenant have to pay rent? When a unit is damaged, we like the landlord to have the pure absolute option to terminate the tenancy and evict the tenant if necessary. We don't need any arguments about the rent, reductions in rent, rent withholding, interference with repairs or any other problems from the tenant. We want the landlord to simply say "Get Out", serve the tenant proper notice and file an eviction if the tenant fails to vacate. Proper lease wording is crucial. We recommend the following clause.

DAMAGE OR DESTRUCTION OF PREMISES: In the event the premises are damaged or destroyed by a storm, and in Landlord's sole judgment it is necessary for Tenant to vacate the premises due to a dangerous condition on the premises or for repair, reconstruction or demolition, Tenant agrees that Landlord may terminate the tenancy. Tenant shall vacate the premises within the time period as designated by Landlord, and Tenant shall not be liable for any further rent under the terms of the lease agreement.

Contact with your attorney

Probably the most important thing you can do after a storm is to contact your attorney before releasing a tenant, giving a rent concession or making any deals or arrangements whatsoever with the tenant. Emotions are running high, situations often are emergent in nature, and anything you do with the tenant can have long lasting legal consequences. We urge you to examine your storm policies and procedures and have all preparations in place not just with the properties that you own or manage, but also your personal business. Many of our clients completely lost their offices in the past 3 years and were not prepared to be up and running again quickly. While this article dealt with your agreement with the tenant, you need to have a full meeting of the minds in writing with the owners of homes if you are a manager of single family homes, duplexes and the like. This topic will be examined more in depth in a future newsletter.

AUTHORIZING THE UNAUTHORIZED TENANT by Harry Anthony Heist, Attorney at Law

You discover that one of your tenants has an unauthorized occupant. This may happen when you are doing an inspection, you see more vehicles than usual, you get a complaint form a neighbor, or possibly someone comes into your office and pays the rent or makes a service request and is not even on the lease. How you deal with this unauthorized occupant will determine if the person can be removed from the premises or properly added to the lease.

The discovery of the unauthorized occupant and waiver

Once you discover there is an unauthorized occupant on the premises, you need to take swift action. Waiver is an important principle of Florida law and basically means that if you know of a noncompliance, in this case an unauthorized occupant, and you fail to take any corrective enforcement actions or delay these actions while continuing to accept rent, you may not be able to enforce your lease terms and have the person removed. You will in a sense have "waived' the lease provisions by your inaction and thus modified the lease.

Your first step upon unauthorized occupant discovery

Serve a Seven Day Notice of Noncompliance with Opportunity to Cure immediately. This notice will simply say something like "You have an unauthorized occupant residing on the premises in violation of the terms of your lease, and this person must be removed". Whether or not you intend or hope to have this person authorized and allowed to live on the premises, serve this notice without delay. If rent is coming due and the unauthorized person is still there, AND you want this person removed, DO NOT ACCEPT RENT, as this is a lease noncompliance. But wait! This article is not about removing an unauthorized occupant but rather how to authorize an unauthorized occupant. READ ON!

How to authorize the unauthorized occupant

If your policy is that all adult occupants must go through a credit and background check, you should never allow an unauthorized occupant to remain on the premises, unless the person passes your Resident Selection Criteria test, just like the current tenant in the unit. The problem though is that you have given the tenant a Seven Day Notice of Noncompliance with Opportunity to Cure to have the tenant remove the occupant. If you give the unauthorized occupant a Rental Application, it would seem to interfere with the Seven Day Notice, and it does. On one hand you are asking the tenant to remove the unauthorized occupant, but on the other hand you are giving the occupant an application which will take time to fill out and process.

1. Serve a Seven Day Notice of Noncompliance with Opportunity to Cure.

2. Give the unauthorized occupant an application, and take the application fee in certified funds. Give a strict deadline to the tenant for the unauthorized occupant to get you back the application, and this should be no more than 3 days. Make sure it states this on the application or supplemental notice that you give with the application. The application needs to state that the lease or Tenant Addition Addendum is to be signed within no more than 3 days after approval.

3. Process the application, and if the occupant is approved, have the occupant sign the TENANT ADDITION ADDENDUM which you can download from this site by going to Forms and Notices

4. If the unauthorized occupant is NOT APPROVED, let the occupant know this and serve a BRAND NEW Seven Day Notice of Noncompliance with Opportunity to Cure. If the tenant fails to remove the unauthorized occupant within the seven days, call your attorney, and you will be advised on how to take further action, which may include eviction.

Why do we need to serve a NEW Seven Day Notice of Noncompliance with Opportunity to Cure if the occupant is not approved?

Nothing in the law says you do, but think about what has happened, You gave the original Seven Day Notice with Opportunity to Cure, but then you opened up the door for possibly approving the occupant. This gave the occupant an expectation that they could be approved, so therefore they did not vacate pending an answer from you regarding approval. By the time you gave them an answer, possibly 4 of the 7 days had elapsed. We think it is a good idea to serve a new notice rather than to create a defense to the tenant.

Should you authorize the unauthorized occupant?

This decision needs to be based on your occupancy limits which should be in accordance with HUD guidelines, and if the occupant is approved through your application process. You are under no legal obligation to approve the unauthorized occupant or offer them the chance to be approved. Remember, your tenant has violated the lease by allowing the unauthorized occupant to live with them in the first place. Next it will be the new tenant's pet python.

Common mistakes

The most common mistake made by landlords is to do nothing about the unauthorized occupant. As mentioned earlier in this article, this can by waiver authorize the unauthorized occupant, thus tying the hands of the landlord and preventing enforcement of the lease. Another common mistake is to ask the tenant to pay you more money for rent because of the unauthorized occupant. Here you are basically saying the tenant can breach the lease, but the tenant must pay more for the privilege. While it is perfectly acceptable for the rent to be raised if you are going to authorize an occupant, you need to do this carefully, in writing and have it agreed to by all the parties. Often the landlord is angry, tries to negotiate, delays occur, and the occupant becomes more deeply entrenched in the premises. When talks break down, the landlord comes to the attorney after the damage has been done. There will be times when an unauthorized occupant begins to pay rent, and the landlord accepts the rent either on purpose or accidentally due to sloppy procedures. We urge landlords to never accept rent from anyone other than the actual tenant on the lease. Acceptance of rent from an unauthorized occupant is going straight down the path to authorizing this person, when maybe this was not your intention.

REMOVING ONE TENANT FROM THE LEASE
by Harry Anthony Heist, Attorney at Law

There will come a time when a tenant will want to be removed from a lease, or another tenant will want his or her co-tenant removed from a lease. In the first instance, the tenant comes to you and asks to be "let out" of the lease for whatever reason. Possibly they have "broken" up with the co-tenant, having problems with the co-tenant, or it could be something as innocent as a job transfer, in which the tenant just wants out of the lease obligations. In the touchier situation, a co-tenant wants another tenant removed from the lease. This usually occurs when one tenant has left the apartment, skipped out, is in jail or just plain disappeared. The remaining tenant often wants the co-tenant removed from the lease so he can get another tenant on the lease, or sometimes it is an attempt by one tenant to try to keep the other tenant away from the property. In other words she is attempting to "evict" the tenant in her own way and trying to use you to assist her.

Do you have to remove a tenant from a lease if requested?

There is absolutely no legal requirement that you must remove a tenant from a lease. Sickness, domestic issues with the other tenant, job transfers or any other reason why a tenant may want out of a lease are not "legal reasons" which would require the landlord to remove a tenant from the lease. However, there may be instances in which even though the landlord is not required to remove a tenant from a lease, a judge could feel that the tenant's reason is such that you should. We need to remember that in county court, the court in which most situations regarding landlord tenant law are heard, you are dealing with judges who will sometimes make decisions not necessarily based upon the law, but rather equity, and what the judge feels is the right thing to do. To put it bluntly, the county court judge will sometimes do whatever he or she wants to do, and you are stuck with it; your only recourse is to appeal the decision in circuit court, and we all know this is not usually economically feasible. If the tenant has a particular disability that makes it difficult or not feasible to live on the premises, you may want to consider letting him out of the lease. An example would be a tenant living in a second floor unit in a building with no elevator. The tenant acquires a disability which is preventing him or her to get up the stairs, and no downstairs units are available. This would probably be a case in which you would allow the tenant to be removed from the lease.

One tenant wants to be removed from the lease

If a tenant comes to you and wants to be removed from the lease, as we have said, you can just simply say no. The tenant will then probably vacate the premises, leaving the other tenant behind, and both tenants will continue to be liable under the lease terms, regardless that one tenant no longer resides on the premises. If the other tenant continues to pay the rent, no harm has been done. Our office does not recommend that you remove a tenant from a lease, because it is not required, and secondly, you potentially lose your ability to collect your money due under the terms of the lease agreement. With that said, we know that landlords sometimes will in fact agree to let a tenant be removed from the lease. If this is done though, what about the security deposit? Did not one or both tenants pay this security deposit and/or last month's rent when they moved in? Who gets this money if one tenant is removed from the lease? If you are going to allow a tenant to be removed from a lease, these issues need to be dealt with in writing.

One tenant wants the other tenant removed from the lease

If one tenant comes to you and asks that you "take the other tenant off of the lease", you can be fairly well assured this will not be possible. In most cases it is requested when a tenant has either left the area, is in jail or in domestic violence situations. The one tenant feels that you have the power to unilaterally take the other tenant off of the lease, and thus the remaining tenant can prevent the tenant you took off the lease from residing on the property. You just cannot unilaterally remove a tenant from a lease, unless the tenant who is leaving agrees, and this agreement is in writing. It does not matter where the tenant is or what the tenant did, the tenant has an interest in the property and is subject to all the rights and responsibilities of the signed lease. The fact that the tenant was put in jail for murder does NOT give you the power to remove this tenant from the lease. When asked by a tenant to remove the other tenant from the lease, you need to explain that it is not possible.

One tenant has disappeared and the remaining tenant wants his friend ADDED to the lease

Again, it cannot be done. You would be interfering with the lease that both tenants signed, specifically that of the tenant who is no longer residing on the premises but still has rights and obligations by virtue of signing the lease.

The lease is up for renewal but one tenant is now gone

In the case where the lease is up for renewal, it is possible to renew the lease only in the name of the remaining tenant or add another tenant if and only if the other original tenant on the lease is gone and you can confirm this completely. You need to be extremely careful when doing this, because possibly the tenant who is gone is simply temporarily detained in a jail or mental institution. The other big issue is the security deposit. You cannot just transfer the security deposit to the new lease, unless all the original tenants are on that new lease. Remember, the security deposit belongs to the tenants who originally signed the lease. The fact that one tenant is gone does not automatically vest this security deposit in the remaining tenant. Prior to entering into a new lease, we recommend that you ask the remaining tenant for a brand new security deposit, and you do your normal disposition of the original security deposit by sending out the Notice of Intention to Impose Claim on Security Deposit and following all the procedures required by Florida Statutes 83.49. A very common mistake made by landlords is to simply carry over the security deposit to the new lease. This is absolutely wrong if the tenants are not the same.

Does the remaining tenant have to agree to the landlord removing a tenant from the lease?

It is a good idea. Case law has held that releasing one tenant from the lease may result in the release of the other tenant from the rent obligations. You might think that a landlord has the full right to allow one tenant completely out of the lease obligations and hold the remaining tenant to the full obligations under the lease but courts hold otherwise. The remaining tenant has no say in your decision to allow a tenant to be removed from a lease BUT you may be hurting your chances of collection againt the remining tenant. Most forms in use today, commonly called ROOMMATE RELEASES have a spot for all the parties to sign but often the remaining tenant will refuse to sign the form.

The mechanics of removing a tenant from a lease

In order for you to properly remove a tenant from a lease, the landlord, the remaining tenant and the vacating tenant should sign a Tenant Vacating Agreement with similar wording to the example below. If the remaining tenant refuses to sign, then no one should be released.

TENANT VACATING AGREEMENT

The undersigned Tenant Mary Jones hereby agrees that she has completely vacated the premises known as 125 Main Street, Mountain Grove, Florida or will vacate the premises no later than June 20, 2006.

Tenant Mary Jones understands that Bill Smith shall continue to reside on the premises and shall be subject to all the terms and conditions of the lease agreement and any renewals.

Tenant Bill Smith shall continue to reside on the premises and shall be subject to all the terms and conditions of the lease agreement and any renewals and fully liable for all payments due under the lease and amounts owed.

Tenant Mary Jones agrees to relinquish all rights to the security deposit, advance rent, any prepaid fees or charges and agrees that nothing is owed to Tenant Mary Jones by the Landlord or its agent(s).

Tenant Mary Jones agrees to release, acquit, satisfy and forever discharge the owner of the premises, any other owners of the rental premises, any agents of the owners, its owners, agents, employees and assigns, for and from all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which tenant ever had, now have, or which any personal representative, successor, heir or assign tenant, hereafter can, shall or may have, arising out of the tenancy.

Tenant Mary Jones agrees to hold the property owner and/or its agent(s) harmless for damage or loss to any items of personal property left on or about the premises by Tenant Mary Jones.

If Tenant Mary Jones completely vacates the premises as per this agreement and does not return to or otherwise reside on the premises at any future date, the owner hereby shall release tenant Mary Jones from the obligations of the lease agreement.

Date area and signature area. Signature lines for the Landlord, the remaining tenant Bill Smith and the Vacating Tenant Mary Jones

SAFE HARBOR OPERATIONS IN 2006
by Harry Anthony Heist, Attorney at Law

For two years, we have been warning landlords of the extreme dangers of the lawsuits which are increasingly hitting property management companies. These lawsuits are not just simple nuisance cases, in which a few hundred or few thousand dollars need to be paid out, but rather are full-fledged class action lawsuits which can cost a company millions of dollars. The subject matter of these suits are basic common practices of landlords which never seemed to be a problem for many years, but suddenly are coming under scrutiny. In 2006 a bill was introduced which could have solved many of our problems. It did not pass; therefore, the precedent which may have been set by the Equity Residential case in Palm Beach County should be taken seriously.

TERMINATION FEES, RE-LET FEES AND LIQUIDATED DAMAGES

Even in light of the Equity case, many property management companies are continuing to charge these fees and have clauses in the lease agreements which impose a penalty, re-let fee or liquidated damages in the event a tenant breaks a lease before the term is completed or is evicted. Many leases allow for a voluntary and agreed upon lease break with specific penalties and notice requirements. Though many companies have heard about the lawsuits, there seems to be an atmosphere of denial and an attitude of "it will not happen to us." The Equity case out of Palm Beach County has held that these fees or penalties are impermissible, and that the remedies provided in Florida Statutes are exclusive and cannot be modified by the lease terms. The main holding of this case states that charging these fees, penalties, or liquidated damages is not allowed by law, and that the ONLY remedy a landlord has when the tenant vacates voluntarily or involuntarily, and the landlord puts the unit back on the market, is for the landlord to charge the tenant ONLY the rent that was lost at the time of the breach and AS IT BECOMES DUE. You cannot accelerate the rent or charge rent on top of a penalty, as this judge feels that this is charging "double rent".

OUR RECOMMENDATION:

1. REMOVE ALL PENALTIES, LEASE BREAK FEES, And RE-LET CHARGES FROM YOUR LEASE NOW.

2. If you have charged these in the past to a tenant, NOTIFY YOUR COLLECTION AGENCY IN WRITING THAT THESE CHARGES ARE TO BE REMOVED FROM THE TENANT'S COLLECTION FILE NOW.

3. Recompute only your lost rent UNTIL THE UNIT WAS RERENTED, and REVISE THE AMOUNT SENT TO COLLECTIONS, if and only if the revised amount is LESS than what was previously sent to collections.

AUTOMATIC FORFEITURE OF SECURITY DEPOSIT UPON BREACH

For many years it was assumed by landlords and even expected by tenants that in the event the tenant broke the lease by vacating prior to the natural expiration of the lease or upon being evicted, the security deposit would be forfeited. This is often clearly stated in the lease. According to Florida statutes, a security deposit is for the full and faithful performance of a lease. It should go without saying that the landlord retains the full security deposit upon the tenant's breach. When a tenant breaks a lease, there are many expenses which the landlord incurs that have nothing to do with rent loss or the physical damages to the premises. These can include advertising expenses, lease up expenses, turnover expenses, management fees that the landlord may have to pay again, among others. Again, the Equity case has put this into question and we feel that at the present time automatic forfeiture is extremely dangerous.

OUR RECOMMENDATION:

Cease automatic forfeitures of the security deposit. Charge only for actual damages that you suffer, including lost rent due at the time of breach and as it may accrue in the 30 day timeframe you have to send out the Notice of Intention to Impose Claim on Security Deposit.

LATE CHARGES/LATE FEES

The Florida Landlord Tenant Act does not address late charges or late fees charge by a landlord to a tenant for late rent. No limitations are put on the landlord in charging these amounts. A typical lease will have a specific amount due as a late fee/charge if rent is not paid by a specific date, usually the 5th of the month. Additionally, to encourage the payment of rent, many leases have per day charges ranging from $5-$10 on average. Are these fees/charges illegal? If the rent is $1000, the late fee/charge if paid after the 5th is $50 and there is a $10 per day late charge, at the end of a month, if the rent were not paid, the tenant would owe $1300. If the rent was not paid for a year (which would be absurd) the tenant would owe a total of $3600 making the per annum interest rate on late rent 360%. In the first month alone, the interest on the late rent would amount to 30%. As you can see, the per diem amount is causing the problem. Florida usury laws look to what the effective annualized interest rate will be, so the capped interest rate for an entire year is 18%.

Florida statutes 687.03 "Unlawful rates of interest" defined; proviso.-- (1) Except as provided herein, it shall be usury and unlawful for any person, or for any agent, officer, or other representative of any person, to reserve, charge, or take for any loan, advance of money, line of credit, forbearance to enforce the collection of any sum of money, or other obligation a rate of interest greater than the equivalent of 18 percent per annum simple interest, either directly or indirectly, by way of commission for advances, discounts, or exchange, or by any contract, contrivance, or device whatever whereby the debtor is required or obligated to pay a sum of money greater than the actual principal sum received, together with interest at the rate of the equivalent of 18 percent per annum simple interest.

While Florida law through the usury statute does govern interest rates on money loaned to individuals, it does not specifically govern fees/charges in the rental setting. It can be argued that rent owed to a landlord is not a loan, and therefore the usury laws do not apply. The problem we face is trying to explain that we were "damaged" by the late rent payment of the tenant. If these damages were easy to prove, we would not have a problem, but they are not readily ascertainable. You may see seemingly high amounts of fees and interest being charged in certain consumer transactions, such as "payday loans" and check cashing establishments. These exorbitant fees are actually specifically allowed by Florida law.

OUR RECOMMENDATION:

Many states do in fact govern the amount a landlord can charge a tenant for late fees/charges. Of the states that do, the amount is usually capped at 10% of the amount owed. We recommend that the Florida landlord seriously considers charging no more than 10% of the rent due. In our case above, the tenant's per diem charge would be capped on the 11th of the month, with a total due of $1100. One may feel that the tenant is getting a free ride, because whether they pay on the 11th or the 20th, the same amount of money is owed, but our opinion is that the landlord should be seriously considering filing an eviction by the 11th of the month.

REDECORATING CHARGES, ADMINISTRATIVE CHARGES/FEES

Many landlords are charging the tenants nonrefundable fees or charges such as Redecorating Fees or Administrative Charges. These fees and charges have been under attack in other states as being unreasonable and outside of the Landlord/Tenant Acts of their respective states. In the "old" days, a typical landlord was able to collect first month's rent, last month's rent plus a security deposit often equal to one month's rent. These days are over, so landlords have been trying to come up with novel ways to be compensated for damage to the premises which exceed the amount held as security deposit. A major argument by the tenant's attorneys is that these charges or fees are an attempt by the landlord to get the tenant to pay for the ordinary wear and tear which may occur on the premises and which ordinarily under Florida law are not the responsibility of the tenant. Under Florida law, we know that the tenant can only be charged for damages which exceed ordinary wear and tear. Unfortunately it is extremely difficult to determine what ordinary wear and tear is, as it is not defined in the law.

OUR RECOMMENDATION:

We recommend that landlords do not charge Redecorating Charges or Administrative Fees. Knowing that many of our clients will choose nonetheless to do so, we strongly advise that the applicant is advised of these charges at first contact. Nonrefundable charges should be disclosed in the advertising of the unit, done verbally when there is a phone inquiry and in writing on an information sheet given to the applicant before the applicant is even shown the property for rent. Disclosure is extremely important, especially when arguing an agreed upon charge such as this in court. Do you really want to be the test case?

PROBLEMATIC LEASE CLAUSES by Harry Anthony Heist, Attorney at Law

There are thousands of different leases currently in use by Florida landlords. They include among many others, the homemade lease, the store-bought lease, the Supreme Court Approved Lease, the lease made by your attorney, the Blue Moon Apartment Lease, the many internet leases and the lease created by the Harvard graduate on the 60th floor of the big law firm in New York City. The problem? Florida law governs the Florida landlord/tenant relationship. If a lease clause violates Florida law, the clause and sometimes the entire lease will be stricken. More often than not, the lease clause does not violate Florida law, BUT can cause the landlord problems and actually interfere with the rights the landlord is given by Florida law! This article will look at some of the common clauses found in leases and the problems they cause.

The Visitor Clause

Often we see a clause which says that tenant may have no visitors for more than 72 hours without the landlord's consent. The clause may say that visitors cannot stay on the premises for more than 5 consecutive days. These clauses are extremely difficult to enforce. The "consecutive day " language would require the landlord to basically sit outside the unit for 5 solid days in a row to determine if the visitor is staying there. If the visitor was not there for one of the days out of the 5 days and came back, they would not have been there for more than 5 "consecutive" days.

The Rent Collection Clause

If the lease states that the landlord will collect the rent on the 1st day of the month, this means that the landlord is under the duty to collect the rent rather than the tenant being under a duty to pay the rent!

Rent Paid to a Post Office Box

Sounds fine, the tenant is supposed to pay the rent to a post office box. Problem is that Florida law allows a person 5 additional days for mailing time if they are to pay rent by mail. How do you give that person a Three Day Notice? You can't. You need to give them an 8 day Notice giving them 3 business days to pay the rent not including Saturday, Sunday or court observed holidays PLUS 5 business days. On top of that, you have to deal with the "check must be lost in the mail" routine.

Rent Late Clauses

Many leases state that rent is due on the first of the month and if not paid by the 5th, there will be a late charge. Does that mean the rent is not late until after the 5th? Does this mean that the landlord must wait until after the 5th to serve a Three Day Notice? The lease need to clearly state when the rent is due, when the rent is late and when the tenant can receive a Three Day notice.

Late Charges Clause

We constantly see leases which say that a late charge will be due if the rent is not paid by a certain day of the month. The problem is that late charges cannot be put on a Three Day Notice. Only rent is allowed. The ONLY way you can put a late charge on a Three Day Notice is if you define the late charge as rent or additional rent in the lease. (Note: In Lake County Florida, we recommend that you do not put late charges on the Three Day Notice under any circumstance due to one Lake County Judge's interpretation of the law)

The "How to Serve Notices" Clause

Florida law only requires ONE notice to be mailed by certified mail, and that is the Notice of Intention to Impose Claim on Security Deposit. We see many leases under which it is stated that ALL notices must be served by mail. This can create a huge problem when the landlord serves a notice by posting on the door or even hand delivery, only to find out that the lease clause required the notice to be mailed. One would think that if the lease required a notice to the tenant by mail, personal hand delivery should suffice. After all, isn't the whole idea to get the tenant notice? This mailing business is a nice idea thought up by an attorney who thinks everything should be mailed, but this is a no go for serving the usual notices such as the Notice of Non-renewal, Three Day Notice and the Seven Day Notices of Noncompliance.

The Detailed Pet Clause

Some leases go to great lengths talking about pets, size limits, weight limits, etc. This should be left to the pet addendum, NOT the lease. The lease should simply state that no pets are permitted without a pet addendum and the proper pet fee or deposit paid. Too much talk about the pet policy in the lease could be an implicit authorization for the tenant to get a pet!

Landlord Retention of Rights Clause

Occasionally in single-family home rentals, landlords like to put in clauses which state that the landlord can use half of the garage, the pool or a room in the house for a certain time period or at a certain time of year. The landlord may also want to store items in the home or garage and not allow the tenant access to these items. These deviations from the norm sound good in the beginning but often lead to disputes later in court.

The Pool Clause

While most landlords know by now that it is a fair housing violation to not rent to a family with children for fear the child or children could be injured in a pool, canal, or lake, some leases attempt to relieve the landlord from liability for injuries which the children may suffer in the event of a tragic occurrence. In the first place, these clauses will most likely not relieve the landlord of liability, if it can be proven that the landlord was negligent, and more importantly, the mere attempt to prevent the family with children from suing you is a fair housing violation in and of itself. When you have someone sign a release of liability for a future event, you are attempting to take away a right from him or her. This right is the right to sue you. It would be nice if we could do this, but it is not legal.

The Month-to-Month Notice Clause

Florida law states that in the event either party wishes to terminate a month-to-month tenancy, at least 15 days' notice must be given prior to the beginning of the next monthly rental period. Many leases state that in the event the lease becomes month-to-month, 30 or 60 days' notice is required. The reasoning behind this is to try to hold a tenant to a longer month-to-month tenancy, as they must give you 30 or 60 days' notice. Nice try, but the essence of a month-to-month tenancy IS the ability to get out of the tenancy with only 15 days' notice prior to the beginning of the next monthly rental period. The 15 days is stated very clearly twice in Florida Statutes. Result? While the tenant only needs to follow the law and give you 15 days' notice, the landlord will be STUCK with the clause in the lease, and the landlord will be required to give the notice as stated in the lease. There will come a time when you want to get a month-to-month tenant out as fast as possible. Do you want to be forced to give 60 days' notice? We didn't think so!

The Arbitration/Mediation Clause

Arbitration and mediation is often an excellent way to resolve disputes. Anytime you can avoid full-blown litigation, you have already succeeded. Some attorneys, especially real estate practitioners, are used to the arbitration and mediation clauses found in sales contracts. These clauses sometimes end up in leases. Suppose you file an eviction on a tenant, and the tenant demands mediation or arbitration? No matter what the result, there will be no way to force the tenant out, even if the arbitrator decides that the landlord is entitled to possession. You will end up in court. You may be thinking that a mediation or arbitration clause would be good in dealing with a security deposit dispute, but it is unknown whether taking someone's right to access to the court will be allowed under the Landlord/Tenant Act.

The Military Clause

Many leases include a type of Military Clause which details the requirements for breaking a lease in the event of a military transfer or being called to active duty. The problem is that these laws change on a fairly regular basis, especially in time of war, and it really does not matter whether a military clause is in a lease. The Soldiers and Sailors Relief Act in addition to any state laws will override any clause that is in a lease. By having the clause in the lease, the landlord is led to believe that the clause is correct, when in fact it could be obsolete, incomplete or downright illegal.

Occupant Clauses

A common clause found in leases states the number of occupants allowed to live on the premises. Some also state the number of children who are permitted. These clauses are vague, can often lead to having occupants you did not intend to have, and worse yet, a fair housing complaint. We recommend that all adult occupants sign the lease as tenants, and if there are children, their names are listed as occupants.

The Solution to the Lease Clause Problem

While some lease clauses are simply an annoyance or inconvenience, others can severely restrict the landlord or subject the landlord to a potential discrimination action. The lease document needs to be taken seriously and amended as the statutory laws change and case law is created. Our office generally does not review leases, but does recommend that you either use an attorney prepared lease, such as what we provide with our Lease Preparation Service if you have or manage a single family, condo, duplex or triplex residence. If you are a member of your local apartment association affiliated with the Florida Apartment Association or the National Apartment Association and manage units in apartment communities, you can consider using the Blue Moon Lease.

THE SEVEN DAY NOTICE OF NONCOMPLIANCE
WITH OPPORTUNITY TO CURE
by Harry Anthony Heist, Attorney at Law

The "Seven Day Notice of Noncompliance With Opportunity to Cure" is second only to the Three Day Notice as the most common notice that a property manager uses, and is often prepared incorrectly or not given at all. Knowing when and how to prepare and serve a "Seven Day Notice of Noncompliance With Opportunity to Cure" is crucial to successful property management.

When a tenant is in noncompliance, action needs to be taken. Whether the noncompliance is an unauthorized pet, unauthorized occupant, debris outside a door, unsupervised children or any of the myriad problems which can occur, nothing will be solved until the tenant is notified of the problem and told to cease. All too often the property manager writes a letter to the tenant or calls them into the office for a meeting. While this may get the desired results, if it fails, the property manager is now faced with a dilemma and a delay, as in most cases, the law only recognizes "notices". The classic mistake of property managers is sending "letters" to the tenants rather than using "notices". Commonly, when you send a letter to a tenant about a problem, the tenant solves that problem and all is well. In a sense, by sending the "letter" you are giving the tenant a second chance. The problem begins when the tenant does not comply with your "letter". What now? Can you file an eviction? No. An eviction requires "notice", a legal "notice" such as a "Seven Day Notice of Noncompliance With Opportunity To Cure" for items which are of a curable nature. If the tenant continues to be in noncompliance, a further notice may need to be given called the "Seven Day Notice of Noncompliance Notice of Termination". If the property manager only gave a "letter" previously to the tenant, a "second chance", they now need to serve a "notice" which in essence is giving the tenant a third chance. Depending upon the noncompliance, you may be in the process of losing good tenants which are neighbors of this noncomplying tenant as the process is so delayed.

What types of noncompliances are of a curable nature? Here are just a few: improper parking of vehicles, unregistered vehicles, failure to supervise children, barking dogs, unauthorized pets, unleashed pets, failing to pick up after pets, changing locks, speeding in the parking areas, denying access to maintenance, loitering in the breezeways, debris in the common areas, failing to pay a utility, failing to put a utility in one's own name, grill on the lanai, debris on the lanai, violating pool rules, unauthorized occupants, improperly installed satellite dishes, failure to pay the security deposit, unsanitary apartment; the list goes on and on.

How is a Seven Day Notice of Noncompliance With Opportunity to Cure properly worded? We recommend you always start off your notice by saying "You and/or your guests and/or occupants are in violation of Florida law and/or the lease agreement and/or rules and regulations due to (list reasons)" You should not simply quote a lease clause or name a paragraph number. Your notice should clearly and concisely state what the tenant is doing that is in noncompliance. Many notices we see are legally insufficient in that they are too vague or sometimes actually too specific. You might wonder how being too specific could be a problem. Let's take a case where a tenant is leaving their bicycle on the lanai in violation of your lease. If you give the tenant a notice just stating this violation, the tenant may get the bicycle off of the lanai, but two months from now be accumulating personal items outside the door in your breezeway, a violation of your lease agreement. Will your notice regarding the bicycle that you gave two months ago be sufficient? Possibly not. We would recommend wording the notice as follows: "You and/or your guests and/or occupants are in violation of Florida law and/or the lease agreement and/or the apartment rules and regulations due to keeping or allowing personal items, including but not limited to a bicycle, on the lanai and or in the common areas of the premises." As you can see, this is specific enough for the bicycle on the lanai and broad enough to include a later violation in the breezeway. It is crucial that the notice is always specific enough to put the tenant on sufficient notice as to what the noncompliance may be.

How do we calculate the expiration date of a Seven Day Notice of Noncompliance with Opportunity to Cure? You simply must give your Seven Day Notice of Noncompliance With Opportunity to Cure and wait seven straight days. Note that you do not have to exclude weekends or holidays as with a Three Day Notice. Once the time period has expired, if you have not achieved the desired results, you may be able to immediately file an eviction or may need to serve a Seven Day Notice of Noncompliance Notice of Termination. Any time you have a lease noncompliance, you must get into the habit of serving the Seven Day Notice of Noncompliance With Opportunity To Cure, if it is in fact a curable problem.

A word of caution: Judges are not apt to want to evict someone on a small noncompliance. Make certain that the noncompliance is fairly serious before you think that you can evict the individual. Proof is a very integral part of success in these cases, so your documentation, witnesses, police reports, videos, etc. will be crucial. If you have a weak case but really want the tenant to vacate, there is always the option of offering to let the tenant out of the lease agreement and making a mutual agreement on the tenant vacating at a fixed date. If a problem is not cured, we recommend that you call your attorney first to see if you have sufficient grounds to serve a "Seven Day Notice of Noncompliance Notice of Termination", and get the proper wording straight from the attorney. The Law Offices of Heist, Weisse and Lucrezi P.A. provides a free "Seven Day Wording Service" to all clients. Please do not hesitate to take advantage of this

BANKRUPTCY AND THE
LANDLORD/TENANT RELATIONSHIP
by Harry Anthony Heist and David R. Weisse,
Attorneys at Law

It is the 5th of the month and you have not received the rent for one of your tenants. You are carefully preparing the Three Day Notice when the mail arrives. An official looking document from the Bankruptcy Court is addressed to you. Upon opening the envelope, you see that it is a "Notice of Commencement of Bankruptcy", naming your tenant as the debtor. Unfortunately this scenario is becoming quite common, as bankruptcy filings are on the rise, with many of the bankruptcies being filed by renters. Can the tenant live there for free now? Can you evict that tenant? Can you cancel the tenant's lease?

Once you receive notice from a tenant that he or she has filed for bankruptcy, you are prohibited by federal law to take certain actions. You are not allowed to attempt to collect the rent owed to you or seek possession of the rental premises without first obtaining permission from the bankruptcy court. If you had already served the tenant a Three Day Notice, you cannot file an eviction. If you had already served a Three Day Notice and filed an eviction, the eviction comes to a screeching halt. Even if you already received a Final Judgment of eviction from the County Court Judge and the Sheriff has served the Writ of Possession scheduling a lock out within hours, the lockout will be "stayed." We have had tenants file bankruptcy minutes after the judge signed a final judgment of eviction in court. The bottom line is that a bankruptcy filing stops all collection and eviction proceedings cold. Any time you give a tenant a break or voluntarily delay finishing up an eviction, you run the risk of the tenant filing bankruptcy. If you violate the bankruptcy laws and attempt to continue collect the debt or regain the rental premises, you could incur serious penalties and sanctions. Is all hope lost?

Immediately upon receiving a written suggestion of bankruptcy, or even if the tenant verbally tells you that he or she has filed for bankruptcy, you should immediately call your attorney, who will check with the Federal Bankruptcy Court to see if a bankruptcy has indeed been filed. If it is verified that a bankruptcy has been filed, your attorney can prepare a motion to "obtain relief from the automatic stay" of bankruptcy. Since the bankruptcy filing "stays" or "stops" everything, you must petition the bankruptcy court to allow the "stay" to be lifted for the purposes of collecting your debt or continuing to pursue your eviction. The procedure of petitioning the bankruptcy court to successfully lift the stay will typically take 30-45 days with regard to a Chapter 7 petition, and 45-60 days with regard to a Chapter 13 petition. If the delinquent tenant in bankruptcy actually attempts to make payments to the landlord within the bankruptcy proceeding, the above timetables will be expanded, but in most cases, payment will not be forthcoming.

The most common bankruptcy filing you will see is what is called a Chapter 7 petition. This is also called a "liquidation" and often occurs when a tenant has mounting credit card debt, car payments, and hospital bills and just cannot get out of the proverbial debt trap. Most of the creditors, including you, will probably never see a dime of money once the bankruptcy is completed, but thankfully, the law has carved out a niche that at least allows you to prevent the tenant from living on the premises until the bankruptcy is completed. A typical Chapter 7 bankruptcy petition takes a few months and sometimes over a year to be completed, but a swift call to your attorney the moment you receive the dreaded Suggestion of Bankruptcy will usually result in about a month's delay in removal of the tenant, in addition to the normal eviction timetable.

The tenant in bankruptcy can often buy more a little time when a Chapter 13 debt reorganization is filed, or in the rare event you rent to a corporation which subsequently files for Chapter 11 business reorganization protection, you could be looking at bigger delays. If you take no action in bankruptcy court as landlord, horror stories abound, since the tenant can occupy the premises for literally years with you having no legal recourse. Whether a Chapter 7, 11 or 13 petition is filed, if the bankruptcy is eventually followed through to the point of discharge, your collection will be limited to your security deposit retention and/or proof of claim filed with the bankruptcy court. The remainder of the tenant's debt will be legally wiped out forever.

Suppose an applicant comes to you, and the credit report shows that the applicant is currently in a bankruptcy proceeding. Should you rent to that person? Technically, the lease with your company would constitute a "post-petition" transaction, and the automatic stay should not protect that tenant. However, that tenant could potentially seek to amend the bankruptcy petition to include you. Even if the tenant makes no attempt to amend the bankruptcy petition, if the tenant informs the sheriff of the bankruptcy at the end of the eviction, the sheriff is not likely going to make the legal distinction that your lease transaction is "post-petition", and you will still often be required to obtain official authorization from the bankruptcy court before completing the eviction.

Be very leery of applicants who have a history of filing bankruptcy, but who do not actually follow through to the point of discharge, (known as serial filers). That pattern suggests an applicant who has no qualms about living rent free for a few months before moving on to another landlord to share the same treatment.

The next time you receive a "Suggestion of Bankruptcy" on behalf of a tenant or see any information regarding bankruptcy on an application to rent, call your attorney and get some advice. Not all attorneys are admitted to practice before the bankruptcy courts in Florida and have to "farm" the bankruptcy proceedings out to another attorney. In the Law Offices of Heist, Weisse & Lucrezi, both attorneys Cathy Lucrezi and David Weisse are admitted to practice in the Florida Middle District Bankruptcy Court and can assist you with your legal issues.

NON RENEWING A TENANT
by Harry Anthony Heist, Attorney at Law

There will inevitably come a time in the landlord tenant relationship where the landlord wishes to end the tenancy at either the end of the lease term or at some later time, if the tenancy has become month-to- month. Successfully terminating the tenancy will depend upon the terms of the lease and the proper timing and service of the Notice of Non-renewal. Failure to non-renew properly can result in an unwanted extension of the tenancy. An improperly served or timed Notice of Non-renewal does not cure itself by the passage of time and thus becomes void to the tenant's favor. Just as the tenant has a right to leave after the expiration of a lease, the landlord also has a right to make a tenant leave at the expiration of the lease. In this article, we will examine non-renewing a tenant at lease end and non-renewing the month-to-month tenant.

NON-RENEWING A TENANT AT LEASE END

DO YOU NEED A REASON TO NON-RENEW AT LEASE END? A landlord can non-renew a tenant for any reason or no reason at all, as long as the non-renewal is not based upon any illegal, discriminatory or retaliatory reason. A landlord is not required to provide the tenant with the reason for the non-renewal. It is imperative that if there is a reason for the non-renewal, that the landlord has this well documented in the landlord's files. Often a tenant who is non-renewed claims that the non-renewal was based upon race, handicap, familial status or almost any other reason related to their status as a protected class. In the event the tenant files a discrimination lawsuit, a complaint with HUD or the local fair housing office, the landlord will be required to provide proof that the non-renewal was not based upon an illegal discriminatory reason, but was rather based upon some valid business decision or due to the tenant's noncompliance with the lease or Florida law.

DO YOU NEED TO PROVIDE A TENANT WITH NOTICE OF NON-RENEWAL PRIOR TO LEASE END? If the lease is silent as to any notice requirements at the end of the lease term, the lease will automatically end at the lease ending date, the landlord shall have the right to immediately file an eviction action, and the tenant will be considered a holdover tenant, thus owing double rent for each day the tenant remains on the premises. No notice at all from the landlord is legally or contractually required in this instance. Although it may not required by the lease and is certainly not required by Florida law, we highly recommend that the landlord give a Notice of Non-renewal to the tenant at least 30 days prior to the end of the lease. This will help prevent any misunderstandings or the possibility that the tenant may have forgotten that the lease is ending and may be expecting that it will continue if the landlord does not advise otherwise.

HOW MUCH NOTICE SHOULD BE GIVEN PRIOR TO LEASE END?If the lease requires notice by the landlord prior to lease end, as many leases do, this must be strictly followed per the lease terms, otherwise the lease will automatically convert into a month-to-month tenancy. In some cases the lease is silent as to notice requirements by the landlord but does have a notice requirement on the tenant. In this case we recommend that the landlord follow the same notice requirement that is imposed on the tenant. If you are asking the tenant to give you 30 days' written notice prior to the lease end, you should give the tenant at least 30 days' written notice.

NON-RENEWING THE MONTH TO MONTH TENANCY

WHAT IS A MONTH-TO-MONTH TENANCY? A month-to-month tenancy occurs when a tenant is residing on the premises after the lease has expired, or if there was never a lease in the first place. Since we highly recommend against a landlord failing to use a lease agreement of some sort, and there are sales tax ramifications of moving a tenant into a property without a lease, we will deal here with cases where the lease has expired and has become a month-to-month tenancy. The lease becomes a month-to-month tenancy when the landlord allows the tenant to continue to reside on the premises after the lease expires, collecting the rent from the tenant and basically carrying on business as usual, with the only difference being that the lease has expired. All the same terms and conditions of the lease still will apply, and it is not required that the landlord charge or collect sales tax when the lease becomes month-to-month.

CAN THE LANDLORD CHARGE THE TENANT MORE RENT WHEN THE TENANCY BECOMES MONTH-TO-MONTH?The law is not clear whether the landlord can arbitrarily raise the rent on the tenant and force the tenant to pay the higher amount on a month-to-month tenancy. The landlord will probably be safe in giving the tenant 30 days written notice that the rent will be increasing, but should make it clear that the month-to-month tenancy is terminating and the landlord is offering a new month to month tenancy at a higher rent amount. Here, by the tenant staying on the premises, there is an implicit agreement that rent will be at the higher amount. Many leases contain a clause which states that in the event the lease becomes a month-to-month tenancy and the tenant remains on the premises with the consent of the landlord, the rent will increase by a specified amount. This is highly recommended, as it will increase the rent and/or encourage the tenant to sign a new lease or renew a lease with you.

DO YOU NEED A REASON TO NON-RENEW A MONTH-TO-MONTH TENANCY? A landlord can non-renew a tenant who is on a month-to-month tenancy for any reason or no reason at all, as long as the non-renewal is not based upon any illegal discriminatory reason. See the discussion above regarding non-renewing a tenant at lease end. All the same reasons apply.

HOW MUCH NOTICE NEEDS TO BE GIVEN TO NON-RENEW A MONTH-TO-MONTH TENANCY?If the tenant is remaining on the premises under a month-to-month tenancy, and the lease has expired, either party may terminate the tenancy by giving the other no less than 15 days' notice prior to the beginning of the next monthly rental period IF AND ONLY IF the expired lease agreement does not require a different notice period. This is extremely important!! The lease agreement which the tenant signed and is not expired often has a clause which states that either party must give a particular number of days notice to terminate the tenancy after it becomes month-to-month. If this is the case, the landlord will be held to the notice requirement in the lease agreement, while the tenant simply needs to give no less than 15 days notice to the landlord. Here we have an apparent conflict with the lease terms and Florida law. Why should not the tenant be bound to the lease terms? This is an example where the tenant has a clear right under the law to terminate their month-to-month tenancy by giving no less than the 15 days notice. The lease cannot take this right away from them.

WHAT DOES "AT LEAST 15 DAYS NOTICE PRIOR TO THE BEGINNING OF THE NEXT MONTHLY RENTAL PERIOD" MEAN? The landlord or the tenant must give the notice at least 15 days before the beginning of a monthly rental period. If the rent period begins on the first day of the month and either party gives 15 days' notice on the first day of the month stating they will be out on the 15th day of the month, the notice is NO GOOD. The tenant will owe rent for the entire month, even if the tenant vacates on the 15th. If the notice came from the landlord, the notice will be invalid, and the tenant can remain on the premises as until the landlord give proper notice. If the rental payment period begins on the first day of the month, either party must give the notice no later than the 13th, 14th, 15th, or 16th of the month in order for the notice to be valid, and as mentioned previously, the landlord may have to give even more notice if the lease requires the landlord to do so.

SUPPOSE YOU ARE HOLDING A LAST MONTH'S RENT AND DECIDE TO NON-RENEW A MONTH-TO-MONTH TENANCY? If you are holding a last month's rent, when you serve your Notice of Non-renewal, you need to state to the tenant in writing that you are applying the last month's rent to the last month of the tenancy. For example, if you are holding a last month's rent, you cannot accept rent from the tenant in June and then serve them a Notice of Non- renewal on June 1st stating that they must vacate on June 30th. Your acceptance of June's rent implies that they can stay until the end of June, and your holding another month's rent implies that you are not going to make them move at the end of June!

SERVICE OF NOTICE OF NON-RENEWAL. Serving a Notice of Non-renewal incorrectly will result in a nullity of a notice, and the tenancy will continue as if no notice was given. Shorting a notice by a few days will not mean that the landlord simply has to wait those few additional days and the tenant will then have to vacate. The landlord will be at square one. Florida law does not state how a notice must be served, so the lease must be examined. If the lease requires that the landlord gives the tenant 30 days' notice prior to the end of the lease term, that notice must be actually received by the tenant no less than 30 days prior to the ending date. A common mistake is for the landlord to mail the notice without giving the required 5 business days for mailing, or just sending the notice by certified mail believing that this is a sure way to prove that the tenant got notice, only to realize that the tenant failed to pick up or refused the certified mail. We recommend that a Notice of Non-renewal be served multiple ways, including mail, only if time permits, and hand- delivery or posting on the premises in the tenant's absence. First and foremost, the notice must be served in accordance with the lease. Sometimes a tenant will fail to put a notice in writing, and the landlord will then seek to take advantage of this and try to prove that since proper notice was not given, the tenant owes an additional month's rent. Most judges feel that if the tenant can prove that they put you on notice, then the requirement of written notice is not as important. If a tenant gives you verbal notice that they are leaving, follow this up with a confirmatory letter stating, "This will confirm our conversation whereby you have indicated that you are vacating the premises on (insert date). The landlord should also then serve a Notice of Non-renewal to the tenant just to be safe.

SUPPOSE THE TENANT REQUESTS MORE TIME? We see more problems develop when the landlord and tenant come to some sort of agreement but fail to memorialize this agreement in writing. If the tenant requests more time, the landlord and tenant should sign a document whereby the landlord agrees to the new vacating date and the tenant agrees to vacate at that time. If the tenant is going to be paying for this privilege, all this should be spelled out. NEVER MAKE VERBAL AGREEMENTS ON EXTENSIONS.

WHAT HAPPENS WHEN THE TENANT FAILS TO MOVE? Would it not be nice if people did what they said they were going to do when they said they were going to do it? If the tenant fails to move at the expiration of the Notice of Non-renewal, the landlord has some choices. The landlord can file an eviction immediately, wait to see if the tenant will move or give the tenant an extension. If the tenant has not vacated, the landlord should immediately contact the tenant to see what the tenant's intentions are. It may be the case that the tenant is almost out or just needs a couple days. The landlord may want to wait it out. If the tenant needs an extension, we recommend that the tenant sign an Agreement To Vacate. Never assume that just because the tenant is supposed to be out or says he or she will be out, that the landlord now has a right to take possession of the premises. The only way the landlord can take possession of the premises, even after a Notice of Non-renewal has expired is by surrender, abandonment or eviction. Always call your attorney if you have any doubt whatsoever that the tenant may not be completely out.

SECURITY AND THE RESIDENTIAL PROPERTY MANAGER
by Harry Anthony Heist, Attorney at Law

In December of 2004, a jury in Tampa Florida awarded an individual over $15 million who was abducted from the parking lot of an apartment community and later shot in the head. The jury in the case felt that the apartment management and owners were negligent in not providing security to the tenant and that this resulted in the tenant's injuries from the crime. Is a property management company or owner responsible for providing security to its residents? We don't think so. Is every owner of a rental home responsible for keeping an armed sentry outside the door of the home? Of course not. This case is one in the trend of cases whereby owners and managers of rental property are being held liable for the criminal acts of third parties, parties over which they have no control. Picture a large apartment community that may or may not have fences surrounding the property sprawled across many acres. There could be almost a mile of fence in some communities. If our own government cannot control its borders, can we expect an apartment community to be able to control every access point? Do we need lethal, electrified, razor wire fences surrounding apartment communities now? At what cost would all this security, none of which is foolproof, come? Will residents be willing to pay to live in a maximum-security environment? Can the thousands of existing apartment communities, large and small, or the duplexes and triplexes all throughout Florida, be retrofitted to prevent someone from jumping a fence or climbing through a hole in a fence that someone else made? Will access gates be the answer? Will a full time security force need to be at every corner of the apartment community armed with AK-47's.

Though there is no solid, foolproof solution, there are some steps which owners and management can take.

MARKETING In marketing the property to the public, be it in the print ads, the internet, on the phone or through your on-site leasing staff, never should you imply or suggest in any way that your property is safe or has any type of security features whatsoever. The mention of access gates, courtesy officers, or even worse, the use of the word "security officer" or 24 hour manned gates should never happen. When asked if you provide security, simply state that you do not. This should be your company policy, your staff should be trained in this, and it should be clearly stated as such in your written Policy and Procedure Manual.

ACCESS GATES Access gates give a completely false sense of security to a prospective renter. Who among us has not slipped through a gate by following closely behind the car in front of them? Access gates are not security devices and are often non-operational, most often due to an individual running into the gate, resulting in it being broken for some time. We recommend that all residents sign an Access Gate Addendum which clearly explains that the access gate is by no means a security device, can and will break, and, is simply an amenity that guarantees nothing. We strongly recommend that if you do have an access gate, you invest in the technology whereby the vehicle and license plate is photographed every time a vehicle passes through the gate. Remember that gates are no substitute for actual security on a property.

SECURITY ADDENDUM All residents should sign a SECURITY ADDENDUM (see below) whereby they acknowledge and agree that no security is provided.

PROVIDING A CRIME REPORT We recommend that you speak to your local law enforcement agency and request a periodic report of all crime occurring or reported on the property or within some set distance of the property. This should be provided to all prospective residents and made available to all current residents. When providing it to the prospective resident, provide it before they give you an application fee or begin filling out the application. Do not drop this little bomb on them after they have been approved and it is time to sign the lease. Post a list of all known sexual predators and/or offenders within a 1-mile radius of the apartment community, and update this list on a regular basis

COURTESY OFFICER Never tell a prospect that you have a security officer or even a courtesy officer. Many of these so-called security officers or courtesy officers are merely companies which drive around through multiple apartment communities each night and/or respond to certain resident complaints. Often the courtesy officer is a resident who is a police officer and is given a reduced rent to live on the property and "make the rounds" at night or "be on-call". While it is an excellent idea to have a courtesy officer on-site, never should you imply that this is "security" or even mention it to the prospect. When allowing a local law enforcement officer to live on the property for a reduced or free rent, always make that officer sign a detailed "COURTESY OFFICER ADDENDUM". Many a local law enforcement officer was given a reduced rent or free rent apartment only to work the night shift at the station and have an unmarked car.

SAFETY EVALUATIONS OF THE PROPERTY Your maintenance staff should be fully trained, either by a professional firm or by a local law enforcement agency as to maintaining a property which is not conducive to criminal activity. The type of fencing, lighting, locks, shrubbery, and obstructions all play a part in making your property less likely to be a target. In our opinion, a light that is burned out is an emergency. A light that is continually broken or stolen needs to be replaced with one which is more secure, no matter how expensive. Maintenance needs to check lights on a regular basis and keep a written log of when a light burns out, and when it is replaced. Any steps you take to make your property less welcome to a criminal will be looked upon favorably in court. Doing nothing looks bad.

HIRING ACTUAL SECURITY IN RESPONSE TO CRIME If your property is prone to crime, you have gang activity, unsolved criminal acts are occurring on the property or you are in a high crime area, you just may have to hire true full time or nighttime armed security until such time that the problem is under control, if that ever happens.

NEIGHBORHOOD WATCH MEETINGS Having monthly, or more often if necessary, neighborhood watch meetings on your property will show your commitment to keeping crime off of the property. Encourage residents to report suspicious behavior to you and law enforcement immediately. Contact your local law enforcement agency, as many will assist you in starting, and more importantly, maintaining such a program on the property.

PROPER RESIDENT SCREENING So many apartment communities fall short in conducting criminal background checks on prospective residents. It is crucial that you conduct a criminal background check to the best of your ability, and never fail to have an FDLE Sexual Predator/Offender search performed. This can be easily done by simply going to FLORIDA PREDATORS/SEX OFFENDERS

CONCLUSION: Did you like the recommendations given above? We didn't think so. It all takes time and money, all the while you are trying to provide affordable housing for your residents. The last thing you should do is do nothing. Evaluate your current situation, and chart a course for increased safety on your property. We recommend that you have your attorney review any addendum or form that your may wish to implement. Below is a sample SECURITY ADDENDUM that may give you a start.

Security Addendum

Owner and/or Management does not promise, warrant, or guarantee the safety or security of resident or his/her personal property against the criminal or negligent actions of other residents or third parties. Crime can and does occur at apartment communities. Each resident has the responsibility to protect himself/herself and to maintain appropriate insurance to protect his/her belongings including items within or on the premises and vehicles from criminal acts, negligent acts, fire, windstorm, hurricanes, plumbing leaks, smoke or any acts of God. Residents should contact an insurance agent to arrange appropriate insurance for their vehicle, personal property insurance and liability insurance.

No security system, controlled access gate, fence, gate, door, window, courtesy patrol or electronic security device if provided can guarantee complete protection against crime. Even elaborate security systems are subject to mechanical malfunction, tampering, human error or personnel absenteeism, and can be defeated or avoided by clever criminals. Controlled access gates frequently are non operational as they are often damaged by vehicles, therefore, residents should always proceed on the assumption that they do not exist. Windows can be broken, locks can be defeated, and fences can be climbed or damaged to allow access. The best safety measures are those precautions that can be performed as a matter of common sense and habit.

If security systems, security devices, controlled access gate(s) or walk-through services are employed at this community, no representation is being made that they will be effective to prevent injury, theft or vandalism. Such personnel, if provided, cannot physically be every place at every moment. Usually, such personnel are unarmed independent contractors and have no greater authority under the law to restrain or arrest criminals than the ordinary citizen. Therefore, Management does not warrant that any services, devices or persons if employed at this community will discourage or prevent breaches of security, intrusions, thefts or incidents of violent crime. Further, Management reserves the right to reduce, modify or eliminate any system, devices or services (other than those statutorily required) at any time. Resident agrees that such action shall not be a breach of any obligation or warranty on the part of Management. Management may at time place real or dummy video or surveillance cameras throughout the apartment community but Management makes no representations that these cameras are working, recording or even operational.

Resident agrees to notify Management promptly and in writing of any problem, defect, malfunction or failure of door locks, window latches, lights, controlled access gates, and any other access related device.

ACKNOWLEDGMENT BY RESIDENT

I have read, understand and agree with the above notice. I have received no representations or warranties, either expressed or implied, as to any security, the safety of the property, or presence of any security system on the property, or guarantee that the apartment community was or will be free from crime. I further acknowledge that Management is not obligated under any circumstances to respond to any signal from an intrusion alarm system. The responsibility for protecting me, my property, my family, guests and invitees from acts of crime is the sole responsibility of myself and law enforcement agencies.

I agree to release and hold harmless Management and the Owners of the apartment community, its employees, agents and assigns from claims arising out of criminal acts of other residents and third parties. I agree that Management and the Owners of the apartment community, their employees, agents and assigns shall not be liable to me based upon any claim that security was not provided. Resident acknowledges that the foregoing shall also be binding upon Resident's heirs, relatives, successors, guests and assigns.

This document contains the entire agreement with respect to its subject matter. Management and Owner representatives have no authority, except when in writing and signed by all parties to make changes or modifications in the terms of this document.

FIREWORKS AND THE RESIDENTIAL PROPERTY MANAGER
by Harry Anthony Heist, Attorney at Law

Firework usage in Florida during the Independence Day period and New Year's Eve ranks right up with baseball, hotdogs and apple pie. On top of that, Florida is one of the few states in the US where fireworks are completely legal if used to scare off birds, illuminate railroad tracks, agricultural uses or to start a race. WHAT? Then how come anyone can buy them? Fireworks stores get around the law by having customers sign a statement that they're at least 18 years old, and promise to use the fireworks for the exempted purposes. I am not just talking about sparklers or bottle rockets, but huge rockets, large exploding fireworks with up to 500 grams of gunpowder, firecrackers and aerial bombs. Fireworks that can kill or maim are for sale to the public in Florida every day of the year.

In 2003 over 9300 people were hospitalized due to injuries suffered through the use of legal fireworks. Many fires are started each year due to the use of fireworks, resulting in millions of dollars of damage The US Consumer Product Safety Council http://www.cpsc.gov/library/2003fwreport.pdf gives a chilling account of the dangers of fireworks. The problem the property management industry faces is that most leases do not address fireworks or prohibit them in any way. I am sure the board of directors of the condo where you rent out a unit will love that. This needs to change beginning now. All your new leases should contain a clause such as the one below which prohibits the use of or possession of fireworks on the premises. Can you change or add this to the rules and regulations of your current residents who signed leases prior to your decision to make this prohibition? Most judges would feel that this is a reasonable change or addition to your rules and regulations or community policies, but you need to notify each and every resident of this new prohibition. Enforcement is another issue. Prior to Independence Day or New Year's Eve, a letter should be posted on every resident's door advising of your rule and that you are absolutely serious about enforcement. You should make sure your staff abides by this rule as well, as if a resident sees a staff member violating the rule, your enforcement capabilities will be pretty weak. Can you evict someone for violating your fireworks prohibition? Possibly, but do not count on it. In apartment communities, we recommend having staff members patrol the property during the holiday periods where the use of fireworks increases. Many local jurisdictions have prohibitions on the use of fireworks, so the resident may be committing a crime. Suppose fireworks on the property you manage injure someone? Can your company be held liable? Absolutely, especially if you are failing to enforce your rules.

SAMPLE CLAUSE FOR LEASE, RULES/REGS, COMMUNITY POLICY

"Explosive devices, smoke bombs, firecrackers, flares, sparklers, fireworks or any other noise, smoke, flame or spark-creating item or novelty is expressly prohibited in the rental premises or anywhere on the premises or common areas. Possession of and/or use of any of the foregoing by the tenant, any occupants or guests of the tenant whether or not the items are legal or illegal to purchase, possess or use under the laws of the State of Florida, may subject the tenant to eviction from the premises and shall constitute a serious default under the terms of the lease agreement"

SERVING THE THREE DAY NOTICE
by Harry Anthony Heist, Attorney at Law

Preparing, serving and acting on a 3-day notice is a lot more complex than most property managers realize. A proper 3-day notice is referred to as "jurisdictional", which means that if it is not correct in any way, the court will lack jurisdiction to entertain an eviction action. This may result in the case being completely thrown out, and the property manager must start from scratch before filing a new eviction action. If there is an attorney representing the tenant, the attorney in addition to getting the case dismissed can also ask the court to award attorney's fees and costs, all because the 3-day notice was prepared or served incorrectly. This article will only deal with one aspect of the 3-day notice, and that is how it is served by the property manager.

THE LAW VERSUS THE LEASE Florida law states that a notice may be served by posting on the premises, hand-delivery to the tenant or occupant, or by mail. The problem we run into sometimes are lease agreements which require a different or specific type of delivery. The lease may require that the notice be mailed to the tenant. If this is the case, even though the law allows you to post the notice on the premises or hand-deliver the notice, you MUST mail the notice, because the lease says so. Clauses such as these are often found deep in the lease, requiring that all notices by either party to be in writing and by mail, sometimes even certified mail. "All notices" can be interpreted to include the 3-day notice. Though the majority of leases do not have clauses which govern how the landlord delivers notices, it is a good idea that you check the lease carefully to see if this is the case. Many landlords have leases which were prepared by out of state attorneys, are store bought or purchased from the internet, so review of the lease is a must. If you are preparing a lease, it is best not to even mention how the landlord is to give the 3-day notice, as Florida law is completely clear.

SERVICE BY POSTING ON THE PREMISES The law allows the property manager to serve the notice by "posting on the premises" in the absence of the tenant. We interpret this to mean posting on the door most commonly used by the tenant for entry to and exit from the premises. The notice should be either folded over or placed in an unmarked envelope and securely taped to the door. You may ask why it should not be simply taped to the door, so it is immediately obvious that it is indeed a 3-day notice. It can be. We do not advise this though, as the tenant may have already paid the rent and you misplaced the payment, or the tenant could be on the way to your office just as you are posting the notice. Human nature will make one look at a notice that is posted on someone's door, so you could end up causing embarrassment to a tenant who did indeed pay the rent. In these times of increasing consumer rights, the tenant could actually sue you for attempting to collect a debt that was already paid. Note that the tenant must be absent. If you do not make any attempt to bang loudly on the door and ring the doorbell (if applicable), but rather pre-tape the notice and quietly affix the notice to the door, you are not serving the notice properly.

SERVICE BY PLACING INSIDE THE DOOR While some attorneys feel this is a good way to serve notice, we are firmly against it. Entering a person's unit unnecessarily will only enrage the tenant and increase the risk of you being accused of stealing something out of the unit. Remember that a tenant who has not paid rent is often in a desperate situation and will do anything to get out of paying the rent or turning the tables on you.

SERVICE BY HAND-DELIVERY TO SOMEONE OTHER THAN THE TENANT If someone other than the tenant answers the door, and the tenant is not home, you may serve the notice to an occupant who is 15 years of age or older. If you are uncertain about the age of the person who answers the door, it is best to deliver the notice to the person and also securely tape the notice to the door. If the person who answers the door is not an occupant but rather a visitor, babysitter or anyone other than persons who appear on the lease agreement, we recommend that you serve the notice by taping the notice to the door.

SERVICE BY HAND-DELIVERY TO THE TENANT This is by far the best way to serve a notice and is in fact required if the tenant is present. There is no need for the tenant to sign the notice acknowledging receipt. All you need to do is get the identity of the party and hand him the notice. If he rips the notice up and throws it on the ground, you have still done your job. After you have served the notice, fill out the certificate of service on your original, and keep it safely in the file. If you feel that the tenant may be volatile or it could be a dangerous situation for you, you can have a process server serve the notice for you. Remember to make sure that the process server actually serves the notice on the day the notice is dated, or the notice will be incorrect. If the tenant subsequently denies receiving the notice, the process server may be required to testify in court concerning the issue.

ARE WITNESSES NECESSARY? The law does not require that you have a witness or witnesses with you when you serve a notice. In tens of thousands of evictions we have filed, many where the tenant denied receiving the notice, we have only had a few situations in which the judge believed the tenant's story that he did not receive the notice and denied the eviction. Witnesses are certainly great to have but not legally required. We recommend for safety purposes, or if you suspect the tenant will pay games with you, the property manager consider bringing a witness along in appropriate circumstances.

SERVICE BY MAIL This is by far the worst way to serve a 3-day notice and should only be done if the lease specifically requires you to do so. You may be thinking that this is the easiest way to serve the notice, or even the most certain way, especially if you use certified mail. Certified mail is either refused or unclaimed over 50% of the time by a tenant. If the tenant refuses or fails to claim the certified mail, the tenant has not received notice. Stay far away from attempting to serve a 3-day notice by certified mail. An interesting problem arises when you serve a notice by mail. The law required that when serving a notice by mail, you must add 5 business days to the notice for mailing time. This automatically makes your 3-day notice, which is 3 business days, into an 8-business day notice. On top of that, the law also states that if you demand payment through the mail, you must add another 5 business days for the tenant to mail you the payment. Now we have 13 business days? As you can see, mailing is the least preferred and least recommended way to ever serve a 3-day notice.

THE ORIGINAL OR THE COPY The most common mistake among property managers when serving the 3-day notice is to give the tenant the original of the notice and keep a copy in the file. The tenant should not get the original, but rather get a copy of the notice. The property manager should retain the original of the notice, and on that original the property manager will fill out the certificate of service.

THE CERTIFICATE OF SERVICE The certificate of service is usually found on the bottom of the 3-day notice. If it is not there, it should be. This section usually states "I hereby certify that a copy of this 3-day notice has been served on"¦" and then has a spot to check off how it was served, to whom and the date of service. The certificate of service only has to be filled out on the original 3-day notice that you are retaining for your file. The certificate of service is your way of keeping a record on how the notice was served, so the judge will know how, when and to whom it was served. It is not necessary to fill the certificate of service out on the tenant's copy. She knows how it was received, so it is unnecessary to complete this section on their copy. This actually makes notice serving easier. When going to the rental unit, you can have the original on one side of your folder, the copy on the other. Serve the copy, and immediately fill out the certificate of service on the original you are keeping for your file.

CONCLUSION As you can see, this article only addressed the issue of "serving" the 3-day notice. Properly serving an incorrect 3-day notice is just as bad as improperly serving a correct notice. Before you even attempt to serve a 3-day notice, you must be well versed on how to prepare the notice and what you can demand from the tenant on this notice. If you have any questions about the preparation of the 3-day notice, please do not hesitate to call our office for advice at no charge.

PREPARING THE THREE DAY NOTICE
By Harry Anthony Heist, Attorney at law

In our January issue of the Legal News, we examined the legal and practical aspects of Serving the Three Day Notice. Here we will take an in-depth look at how to properly prepare a Three Day Notice to potentially collect the rent owed, and if that is not successful, make certain that we have a successful eviction action. The majority of Three Day Notices are prepared improperly or incorrectly by the residential property manager. While seemingly simple and straightforward, there are many pitfalls along the way which can result in a notice being technically defective. Most if not all of the mistakes made in the preparation of the Three Day Notice are completely avoidable and unnecessary, but it takes some knowledge of the Three Day Notice and a respect for the legal importance in doing it right.

WHY IS A THREE DAY NOTICE NECESSARY?

Florida law states that a landlord must serve a Three Day Notice when a tenant is late with the rent, giving that tenant three business days to pay the rent or vacate. Many landlords have trouble accepting that a tenant has the right to be given this notice when the tenant is delinquent, often each month. Why can't the landlord just evict the tenant if the tenant fails to pay on time? The landlord can, but only after allowing the tenant a legal "grace period" of three business days after the date that the rent is due, according to the terms of the lease agreement. No matter how many times the tenant has been late, the landlord cannot attempt to terminate the tenancy if a valid lease is in place without first serving the Three Day Notice, waiting for payment, and then not receiving the payment within the three business day time period as the notice allows.

SUPPOSE A THREE DAY NOTICE IS PREPARED INCORRECTLY?

If the Three Day Notice is prepared incorrectly, and the landlord files the eviction based upon the incorrect notice, there is a high probability that the eviction will be successful if the judge fails to look carefully at the notice, the tenant fails to bring this up to the judge if the tenant files an answer with the court, or the tenant fails to hire an attorney who will most certainly bring this up to the court. Why take any chances? More and more tenants are hiring attorneys, and many attorneys are targeting tenants as potential clients and actually soliciting their business. A proper Three Day Notice is what is called a "jurisdictional requirement", which means that the court does not have the jurisdiction or "power" to grant the landlord a Final Judgment of Eviction if particular aspects of the Three Day Notice are incorrect. A properly prepared notice is a prerequisite to the filing of the eviction action. If the notice is prepared incorrectly, many courts, if it is brought to their attention, will dismiss the eviction action, causing the case to be considered dead and requiring the landlord to start over again from scratch. Worse yet, if the tenant hires an attorney, there is a high chance that the landlord will be required to pay the tenant's attorney's fees and costs. These amounts could easily exceed $1000.00 and often do. The key is to simply prepare the notice correctly.

THE MECHANICS OF THE NOTICE

FORM - The suggested form of the Three Day Notice is found in Florida Statutes, and a proper form can be downloaded by going to the following link Downloadable Forms and Notices. Many landlords get notices out of "do it yourself landlord" books, which are general notices that do not substantially comply with the requirements of Florida Law. There are a number of computer programs that also provide Three Day Notice that are not in compliance. Some are called "Notice to Vacate", "Notice to Quit", "Notice to Pay and Vacate", "Eviction Pending Warning" or some other variation. These notices should never be used. The first step is to be using the proper form of the Three Day Notice, and avoid writing any extraneous notes or messages anywhere on the notice.

ADDRESSING THE NOTICE-- The Three Day Notice should be addressed to all adult residents who are lease signers and any other adult occupants from whom you may have accepted rent. Full names should be used, and these names need to carefully match the spelling and form as the names appear on the lease agreement. If the spelling on the lease is incorrect or incomplete, make sure the Three Day Notice names reflect both the correct spelling and the spelling as it appears on the lease. For example, if the lease says John Smith and you are aware that the correct spelling is John Smythe, on the notice you would write John Smith a/k/a John Smythe. You should never give a judge a reason to question your notice. Too much information here is better than too little. Saying Mr. and Mrs. is also incorrect and unnecessary. The address listed on the notice must be the exact address where the tenant resides. If the unit is the "left" side or the "upstairs" unit, this must be clear on the notice. Many apartment communities have internal codes that the computer prints out, and these should not appear in the address. If the address is Apartment 105 in Building 3, this needs to be spelled out. Simply saying 3-105 just might cause confusion and should not be done. Additionally, the exact street address of the unit must be in the address section, even if the apartment community or condo has one address, one street and only the unit or building numbers are different.

DATING THE NOTICE-- If you are hand delivering or posting the Three Day Notice on the premises, the notice needs to be dated on the date that it is served, and the expiration date of the notice must be no less than 3 business days in the future, not including Saturdays, Sundays or legal holidays. A notice can be served on a Friday, Saturday or Sunday and would still expire on the following Wednesday, as you never count the day of service of the notice, and assuming that Monday, Tuesday or Wednesday are not legal holidays. Always be sure that you know what the holidays are, as this is a huge source of incorrect notices. We strongly recommend against mailing a Three Day Notice, as there are dating and expiration considerations which can result in the notice being far longer than three business days. If you are going to mail a notice, please call your attorney first, as there are other technical requirements.

WHAT CAN YOU DEMAND ON THE THREE DAY NOTICE? -- RENT ONLY!! We cannot stress this more. The law only allows you to put rent on a Three day Notice and absolutely nothing else. What is rent? Rent is defined in Florida law FS 83.43(6) as "the periodic payments due the landlord from the tenant for occupancy under a rental agreement and any other payments due the landlord from the tenant as may be designated as rent in a written rental agreement". This means rent is the usual monthly base rental payment, periodic items such as a washer and dryer fee if defined as additional rent, and other items which your lease deems to be additional rent, such as late charges, bad check charges, utility charges and any other charged deemed as "additional rent" in the lease. A word of warning here is necessary though; even if your lease defines these items as "additional rent", a minority of judges still will not permit you to put anything other than the normal monthly recurring rent on the Three Day Notice. You always need to confirm with your attorney to see if a particular judge is doing this. We recommend that if you are putting late charges on your notice, and the lease properly defines late charges as "additional rent", you write the amount out as follows: "November rent of $650.00 plus $25.00 late charge as additional rent, TOTAL $675.00". Your lease may have per diem or daily late charges that accrue as the rent becomes more delinquent. We strongly urge that you NEVER say "plus $5.00 per day" on your notice, as it causes the notice to be confusing and ambiguous. The tenant should be able to look at the notice and know exactly what is owed without having to do any math. If you feel the absolute need to try to demand anything else other than rent on a Three Day Notice, or have excessive accumulated late charges that you are trying to collect, you can go ahead and serve anything you want but it is risky. Just remember that is you intend to follow through with an eviction, you will have to serve a new Three Day Notice before any ethical and self respecting attorney will use your notice to file an eviction action.

WHERE DOES THE TENANT PAY THE RENT? -- Some landlords like to have a post office address where the rent is to be paid. We strongly recommend against this, since if you allow a tenant to pay by mail, the tenant has five additional days to pay, mail gets lost, and all kinds of problems arise. You should have the tenant pay at the office, and if you have a drop box or mail slot, be aware that many cases have been lost due to tenants claiming that they have dropped the mail after hours and then blame you for the missing money.

FILLING OUT THE CERTIFICATE OF SERVICE-- Once you have prepared the notice carefully and used the Three Day Notice Checklist, you have thoroughly understood how to serve the notice, and you have properly served the Three Day Notice, it is crucial that you fill out the Certificate of Service at the bottom of the notice stating how you served the notice, and if personally served, to whom the notice was served. The date on the Certificate of Service must correspond to the date at the top of the notice and should not be confused with the expiration date on the Three Day Notice that is within the body of the notice.

CAN YOU REFUSE CASH OR PERSONAL CHECKS?-- We urge all our clients to never accept cash. In order to successfully refuse cash, it is imperative that your lease states this rule, and that you stick by it. Accepting cash just one time can nullify your rule. If a tenant comes in on the last day of the Three Day Notice with cash and you refuse it, demanding a cashier's check or money order, we do not recommend charging any additional late charges to the tenant for the day it may take to comply with your request, thus avoiding a potential conflict with the lease terms and Florida law. Often a landlord will not want to accept a personal check on late rent or from a tenant who has bounced a check in the past. Clearly, if your lease allows you to refuse a personal check at any time or for late rent, you are permitted to do this. It is crucial that you examine your lease and make sure that it gives you the latitude to refuse a personal check at any time. Again though, if you have accepted personal checks when the rent was late or after the tenant had bounced a check, you may have a problem, as the courts consider this act of yours as creating a waiver or a modification of the terms of your lease.

THE TENANT OFFERS TO PAY THE RENT, NOW WHAT? If the tenant attempts to pay the full rent as properly demanded prior to the expiration of the Three Day Notice, the landlord must accept the rent. Often the landlord is fed up with the tenant not paying on time, tired of giving Three Day Notices or really wants the tenant out for some other non-rent related reason. The landlord must accept the rent. Failure to accept the rent and then attempting to file an eviction action will result in an unsuccessful eviction if the tenant fights the case, and especially if the tenant deposits the rent into the court registry and receives a trial in court. Occasionally the tenant will attempt to pay partial rent to the landlord. The landlord is permitted to take the rent that the tenant offers, but should then immediately serve the tenant a new Three Day notice with the balance owed. Continually accepting partial rent can establish a pattern and a potential waiver which could make it more difficult to evict the tenant at a future time. If the tenant attempts to pay the rent without the late charges, and your lease permits you to apply payments made to outstanding balances such as late charges first, a rent balance will remain for which you can serve a Three Day Notice. It is imperative that the tenant knows exactly how you applied the payment so there is no confusion, with the tenant thinking that the rent has been completely paid, rather than some of the payment having been allocated to late charges. If the tenant attempts to pay the rent shortly after the Three Day Notice has expired but before you have filed an eviction, should you accept the rent? We say "YES" emphatically. The name of the game is rent collecting. Judges will question your motives as to why you did not accept the rent, and if the reason was non-rent related, you stand a higher chance of losing the eviction action.

SUPPOSE YOU ARE HOLDING A LAST MONTH'S RENT AND IT IS THE LAST MONTH OF THE LEASE? -- If you are holding a last month's rent, you have no intention of renewing the tenancy, and it is the beginning of the last month of the lease, you would not want to prepare a Three Day Notice. If the tenant paid, this would imply that you are extending the lease for another month and/or creating a month-to-month tenancy. If it is the last month of the lease, and you are not intending to renew or allow the tenant to remain as a month-to-month tenant, send the tenant a Notice of Non-Renewal with a note stating that you are applying the last month's rent at that time.

REFUSING AND/OR RETURNING THE RENT -- If the Three Day Notice has expired, and after careful consideration of the potential consequences, preferably after discussing this with your attorney, you decide that you are going to refuse the rent, we recommend that you have a witness with you. If the tenant has paid the rent after the Three Day Notice has expired by giving it to a staff member or leaving it in a drop box, you must return the rent immediately to the tenant, or it will be deemed accepted by you by the court. We recommend that you personally deliver the rent back to the tenant, or in the tenant's absence, place a note on the door to the tenant stating that the rent will not be accepted and notifying the tenant that the rent is immediately being mailed back to him or her. Do your mailing by certified mail. While you can write "void" on a check, never take a money order and write "void" across the front, as this can create a serious problem for the tenant attempting to cash this money order. Never place a money order or check in an envelope and tape it to the tenant's door. If you have accidentally deposited a tenant's funds, it is better to consider that you have accepted the rent money. You never want to deposit a tenant's check and then write a check from your account back to the tenant, as the tenant can stop payment on the check he gave you, and now you just paid the tenant for giving you a bad check. THE THREE DAY NOTICE EXPIRED AND THE TENANT IS ASKING FOR A FEW DAYS TO MOVE-- If this occurs, we recommend that you get the tenant to sign an AGREEMENT TO VACATE. This will memorialize the date that the tenant is leaving, and if you end up having to file an eviction, the tenant will be less apt to succeed in defending on a money issue, as the tenant has signed an AGREEMENT TO VACATE for a date certain and has failed to vacate.

TERMINATING THE LEASE DUE TO DAMAGE
By Harry Anthony Heist, Attorney at law

THE PROBLEM

Most leases have a clause as follows: "In the event the premises are condemned by a governmental authority of destroyed due to fire, flood or other acts of god, this lease shall terminate as of the date of the condemnation or destruction". Many leases go on to say that in the event of destruction or condemnation, the tenant's rent will be abated until such time as the premises are ready for the tenant to reoccupy. These clauses look good on the surface and definitely serve an important purpose, but there is a serious flaw. What happens if the premises are "damaged" rather than destroyed? Do you have to house the tenant? Do you have to make a repair while the tenant is living in the unit? Can you make the tenant leave permanently? Should you put the tenant in another unit? All these questions can be answered and the problems solved easily, if and only if the lease has proper wording. Fires, hurricanes and floods will happen. It is not a matter of if they will happen but when. Are you ready?

FLORIDA LAW AND DAMAGE OR DESTRUCTION OF THE PREMISES

Florida law somewhat addresses the issue of damage or destruction as follows: FS 83.63 Casualty damage: "If the premises are damaged or destroyed other than by the wrongful or negligent acts of the tenant so that the enjoyment of the premises is substantially impaired, the tenant may terminate the rental agreement and immediately vacate the premises. The tenant may vacate the part of the premises rendered unusable by the casualty, in which case his liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the landlord shall comply with s. 83.49(3). Unfortunately, that does not do the landlord much good. As you can see, this addresses the tenant's rights in the event of damage or destruction, rather than the landlord's rights.

THE PROPERTY IS SUBSTANTIALLY DAMAGED - CAN WE TERMINATE THE LEASE? -- Unfortunately, Florida law is not clear on this, so we must look to the lease. If we do not have a clause in the lease which allows for the termination of the lease at the landlord's option in the event of damage to the premises, the landlord may be stuck having to make a repair while the tenant is in the unit, and this may be unpractical or downright dangerous to the tenant or other persons, creating a high liability for landlord. For example, the tenant has a fire and of course blames it on the proverbial "defective stove". Since the premises may not be actually "destroyed", the landlord may be under a legal obligation to repair the kitchen while the tenant is in place or be prohibited for removing the tenant due to the fire. The same thing can happen in the event of a flood, or worse yet, in the event of a serious mold situation. If we have a proper lease clause, this problem can be solved. Examine the lease clause that follows:

If for any reason the premises are condemned by any governmental authority, or damaged through fire, flood, mold, act of God, nature or accident, this lease shall cease and shall terminate at LANDLORD'S option as of the date of such condemnation or destruction, and TENANT hereby waives all claims against LANDLORD for any damages suffered by such condemnation or destruction

. As you can see, this clause enables the landlord to have the option to terminate the tenancy and force the tenant to vacate the premises

THE PROPERTY IS DESTROYED - CAN WE TERMINATE THE LEASE?- It is fairly clear that this clause will enable the landlord to terminate the lease in the event the premises are destroyed. Will the part of the clause attempting to relieve the landlord of liability hold up in court? That is a big unknown, but what we do know is most likely we will be able to deal with the immediate problem of removing the tenant from the unit.

WHERE DOES THE TENANT GO?- Based on experience and horror stories, we urge the landlord never to put the tenant into another unit, the corporate unit or the model unit if one is available. We have seen situations where the tenant fails to vacate the original unit and the model or corporate unit, fails to pay rent, holds both units hostage or tries to make you pay for damaged personal belongings, and will not vacate until you do so. If you ever have the need to put up the tenant, our first recommendation is to place them in a hotel for one or two days, making it clear to them and the hotel that this is only for a fixed short period of time. If you decide to put the tenant in another unit on-site, we strongly recommend that you use a TEMPORARY HOUSING ADDENDUM which clearly states that the housing is temporary, lays out all the terms, and has a fixed date when the tenant must vacate. Never should you put a tenant in another unit without a TEMPORARY HOUSING ADDENDUM.

HOW DO WE TERMINATE THE LEASE?- The tenant will need to be given a lease termination notice and most likely a Seven Day Notice of Termination. We urge you to immediately contact your attorney when dealing with these types of situations, and get the attorney involved early on.

TEMPORARY HOUSING AGREEMENT AND ADDENDUM

Tenant(s) and Management or Owner hereby agree that Tenant(s) shall occupy the below referenced premises hereinafter "TEMPORARY APARTMENT" on a temporary basis only due to problems with the current apartment occupied by Tenants(s), hereinafter "CURRENT APARTMENT"

TENANT(S) NAME:__________________________________________

OCCUPANTS:______________________________________________

TEMPORARY APARTMENT ADDRESS:_________________________

CURRENT APARTMENT ADDRESS: ____________________________

MOVE IN DATE FOR TEMPORARY APARTMENT:________________

MOVE OUT DATE FOR TEMPORARY APARTMENT:__________________

TERMINATION OF TENANCY: Tenant(s) agree that this agreement and the tenancy created herein shall be terminated by Management or Owner giving Tenant(s) written notice to vacate by hand delivery or posting on the premises. Tenant(s) shall completely vacate the unit and shall not remove any furniture, rental furniture or personal property which may have been present in the TEMPORARY APARTMENT when Tenant(s) took possession. Tenant(s) vacating the unit shall not be dependent upon whether the CURRENT APARTMENT has or has not become habitable.

ENTRY INTO CURRENT APARTMENT: Tenant shall not be permitted to enter into CURRENT APARTMENT during the term of this agreement.

OCCUPANTS: Only those designated in this agreement as Tenant(s) shall occupy the apartment unless written consent of Management or Owner is obtained. Tenant(s) agree to abide by all occupancy rules of Management or Owner.

PETS: Pets are not permitted in the TEMPORARY APARTMENT unless prior written permission is given by Management or Owner.

ASSIGNMENT: Tenant(s) shall not assign this agreement or sublet the premises or any part thereof. Any unauthorized transfer of interest by the Tenant(s) shall be a material breach of this agreement.

RISK OF LOSS: Personal property of Tenant(s) and Tenant(s) invitees shall be in the unit at the sole risk of Tenant(s). Owner or management shall not be liable for any damage caused to said personal property arising from fire, accident, acts of God, criminal acts, acts of negligence or bursting or leaking water pipes.

ATTORNEYS FEES: Should it become necessary for Owner or Management to employ an attorney to enforce the terms and conditions of this agreement, Tenant(s) shall be responsible for all costs and Attorneys fees whether or not suit is filed.

LOSSES AND DAMAGES TO CURRENT APARTMENT: Tenant(s) agree that Management's or Owner's providing this TEMPORARY APARTMENT to Tenant(s) is not required by law and is being done as a courtesy to Tenant(s). Tenant(s) agree that the use of or vacating the TEMPORARY APARTMENT is not related to or dependent upon Management or Owner compensating Tenant(s), repairing the CURRENT APARTMENT, or paying for any damages suffered by Tenant(s), and Management or Owner providing the TEMPORARY UNIT shall in no way imply that Management or Owner has any obligation to repair the CURRENT APARTMENT or compensate the Tenant(s) in any way.

RADON GAS: Radon Gas is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county public health unit. Broker makes no representations about the existence of radon gas on the subject Premises.

TIME IS OF THE ESSENCE:Time is of the essence with respect to all time periods contained in this agreement.

OTHER TERMS: ALL OTHER TERMS OF THE LEASE AGREEMENT OF THE CURRENT APARTMENT SHALL APPLY AND ARE INCORPORATED HEREIN UNLESS IN CONFLICT WITH THIS AGREEMENT WHEREBY THE TERMS OF THIS AGREEMENT SHALL APPLY.

ABANDONED PROPERTY: BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY

______________________________________ TENANT

______________________________________ TENANT

______________________________________ MANAGEMENT/OWNER

ATTORNEY'S FEES AND THE LANDLORD/TENANT RELATIONSHIP
By Harry Anthony Heist, Attorney at law

In most legal disputes, each party, the plaintiff and the defendant, the winner and the loser, each have to hire an attorney and pay their own attorney's fees to that attorney. An example would be a car crash where I smashed into your car and did $500.00 worth of damages to your fender. If we could not come to an agreement, you might hire an attorney and take me to court. A lawyer who represents himself has a fool for a client, so I go out and hire an attorney to represent me. We go to court, and you can prove that the accident was due to my carelessness. The judge awards you $500.00, which presumably I will go ahead and pay you. Let's assume that each of us paid our attorney the bargain price of $750.00 to represent each of us in court. The end result would be that you would have to pay for your attorney, I would have to pay mine, and we probably should have just settled this out of court, because the attorneys made more money on this than all of us. The reason that I, as the losing party to the lawsuit, did not have to pay you for the attorney's fee that you expended is that under Florida law, the losing party in an automobile accident case does not have to pay the attorney's fees of the winner. Each of us had to bear our own fees and costs, because that is what the law says. Now, let's step into landlord/tenant court. A tenant sues you, because he feels that you took too much of his security deposit. The tenant has an attorney. The tenant's attorney convinces the judge that you are the evil landlord and that you cannot justify the charges you made on the poor tenant's security deposit. The judge awards the tenant $300.00 that the judge feels you took unfairly, but now for the zinger. The judge awards the tenant $900.00 in attorney's fees, meaning that you get a judgment against you for not just the $300.00 but also $900.00. You walk out of the courtroom with your head spinning, holding a $1200.00 judgment against you!!! How did that happen?

THE ATTORNEY'S FEE CONUNDRUM IN FS 83.48 ---- Florida Statutes 83.48 Attorney's Fees states as follows "In any civil action brought to enforce the provisions of the rental agreement or this part, the party in whose favor a judgment or decree has been rendered may recover reasonable court costs, including attorney's fees, from the nonprevailing party". This statute has major ramifications to the landlord and can make a simple couple hundred dollar dispute into a $1000.00 plus nightmare very quickly. The prevailing party, meaning the winning party, in any landlord/tenant dispute can and will get an award of attorney's fees in the event a court case is filed. In most cases the landlord wins, as we see so often in eviction actions, but what good is it if you get an award of attorney's fee against a tenant who can't even pay you the rent? Getting an award of fees certainly does not mean you will ever see the fees. The problem lies in the tenant getting an award against the landlord, as this judgment will attach to the property and become a judgment lien against the property.

EVICTIONS AND ATTORNEYS FEES-- The prevailing party in an eviction action is entitled to an award of attorney's fees and costs. This is authorized by statute and is pled for in the eviction lawsuit. Thus, if you are successful in evicting the tenant, you can ask the court to award you fees and costs. Let's say you lose the eviction. You may have to pay the tenant's fees and costs if the tenant retained an attorney. Now what if you simply filed an eviction in error against a tenant, thinking that she owed you the rent but the tenant had in fact paid the rent and you either misplaced or incorrectly posted the payment. You would of course immediately dismiss the case. No harm done, right? Not if the tenant retained an attorney and filed and answer or Motion to Dismiss. Here you would possibly be on the hook for the tenant's attorney's fees, even though you dropped the case quickly and never pursued it further. You may wonder how you can lose an eviction. There are a number of ways: your Three Day Notice could be wrong, you prepared the notice incorrectly, you served the notice incorrectly, the tenant had a valid defense of payment, you failed to make a repair, you accepted late rent on a regular basis, or you are an apartment community and failed to get your fictitious name registered. There are many other ways you can lose a case. The last thing you want is to be on the hook for attorney's fees of the tenant.

ATTORNEY'S FEES AND SECURITY DEPOSIT DISPUTES-- Few landlords have not experienced a security deposit dispute at one time or another. Routinely, tenants feel that the landlord unfairly took too much of a security deposit from them for damages that the tenant vehemently denies. While most of these disputes should be and are settled prior to any litigation, in the event they end up in court, landlords are often surprised to see how the judge acts quite kindly to the tenant, and looks upon the tenant as the victim and the landlord as the evil person who is trying to rip off the tenant. The landlord must prove that the tenant damaged the premises, there is the uncertainty of whether something is over and above ordinary wear and tear, the landlord often does not have a detailed move-in and move-out inspection sheet, and often the landlord does not have photos to document the property condition before move-in and after move-out. More often than not, the judge ends up ordering the landlord to return some of the security deposit to the tenant. Now suppose the landlord claimed $500.00 of a $750.00 security deposit, and in court the judge feels the landlord was only entitled to $450.00 of the security deposit. Who is the prevailing party? Most of the case law unfortunately says that the tenant is the prevailing party because he or she sued and got something back from the landlord. This does not seem fair, but most judges will consider the tenant in a case such as this the prevailing party. If the tenant had retained an attorney to represent him in court, the landlord will most likely have to pay a significant amount of attorney's fees to the tenant. The amount of the dispute or the amount the tenant wins has no relation to what the attorney can ask the judge for in attorney's fees. If the attorney can convince a judge that 10 hours were spent on the case at $250.00 hour, the landlord could end up having to pay the tenant's attorney $2500.00, when the dispute was only about a $500.00 claim that was made on the security deposit. A word to the wise: if the tenant gets an attorney and is threatening a lawsuit, make darn sure you are going to win before you take a stance that you are not going to budge and settle the case.

WHY WORRY ABOUT ATTORNEY'S FEES-- Up until around 10 years ago, it was rare that a tenant would retain an attorney to defend them in an eviction action or to pursue a security deposit dispute. With close to 100,000 lawyers now in Florida, things have changed. We now have lawyers who are specializing in representing tenants for the sole purpose of extracting attorney's fees out of the landlord. These attorneys are advertising and direct mail marketing to tenants who are under eviction, offering free consultations. The attorney then examines the case, looks for a weakness and next thing you know, you are up against an attorney in court who has filed an Answer, Counterclaim and three Motions to Dismiss. Take your time when preparing your notices, evict cautiously, and when making a claim on the security deposit, document absolutely everything you can. Most losses by landlords in court are completely avoidable.

For further information of the above topic or any other topics contained in this site, feel free to call 1 800 253 8428 or email us atInfo@Evict.com

URGENT ACTIONS NEEDED TO AVOID MAJOR LITIGATION
By Harry Anthony Heist, Attorney at law

More and more eviction cases are being contested by attorneys specializing in representing tenants, and a number of new class action lawsuits have been filed in Florida against major management companies and owners of multifamily housing. Items are of major concern right now, due to the increase in attorneys targeting landlords, and particularly a recent court decision which has completely confused what was assumed to be permissible practices. Almost every apartment community in Florida has now become a huge target.

TERMINATION FEES, RE-LET FEES AND LIQUIDATED DAMAGES

Background

Landlords have historically had clauses in the lease agreements which impose a penalty, re-let fee or liquidated damages in the event a tenant breaks a lease before the term is completed or is evicted. A larger problem is that many landlords have been using the lease requirements for a voluntary and agreed upon lease break to impose these fees in the event of a skip or eviction. The recent case out of Palm Beach County has held that these fees or penalties are impermissible and that the remedies provided in Florida Statutes are exclusive and cannot be modified by the lease terms. The main holding of this case states that charging these fees, penalties, or liquidated damages is not allowed by law, and that the ONLY remedy a landlord has when the tenant vacates voluntarily or involuntarily, and the landlord puts the unit back on the market, is for the landlord to charge the tenant ONLY the rent that was lost at the time of the breach and AS IT BECOMES DUE. You cannot accelerate the rent or charge rent on top of a penalty, as this judge feels that this is charging "double rent".

IMMEDIATE ACTION PLAN:

1. REMOVE ALL PENALTIES, LEASE BREAK FEES, And RE-LET CHARGES FROM YOUR LEASE NOW.

2. If you have charged these in the past to a tenant, NOTIFY YOUR COLLECTION AGENCY THAT THESE CHARGES ARE TO BE REMOVED FROM THE TENANT'S COLLECTION FILE.

3. Recompute only your LOST rent UNTIL THE UNIT WAS RERENTED and REVISE THE AMOUNT SENT TO COLLECTIONS if and only if the revised amount is LESS than what was previously sent to collections.

How will this all be resolved? The law needs to clarified to allow the landlord and tenant to contractually agree to these penalties and fees as they should be allowed to do, and in our opinion are allowed to do. Unfortunately the Circuit Court Judge in Palm Beach County disagrees. The case is being appealed by the attorneys handling the case.

SECURITY DEPOSIT CLAIMS

Landlords are required by law to make a claim upon a tenant's security deposit within 30 days of the tenant vacating the premises, if the tenant vacates or is evicted owing the landlord money that the landlord is entitled to per the lease and/or Florida law.

The Security Deposit Problem: Landlords are charging amounts that are only wear and tear, amount that they cannot prove in court, accumulated late charges, fees, termination charges, liquidated damages or excessive amounts based on estimates. Tenants are disputing these charges, and landlords are not notifying the collection agency that the charge is "disputed". Over the ensuing years, the tenant has a black mark on his credit, he retains an attorney and eventually demand that you prove the damages that you charged the tenant. This could be YEARS after the landlord initially made the claim. Most landlords cannot prove the damages in full, and as a result, the landlord's charge now has resulted in a "slander of credit" for which the tenant can now sue. Attorneys are now specializing in representing the ex-tenant debtor and suing!

IMMEDIATE STEPS TO TAKE WHEN MAKING THE SECURITY DEPOSIT CLAIM

1. Do not charge the fees, liquidated damages, reletting charges as referred to earlier in this article.

2. Do not charge the tenant unpaid or accumulated late charges. Judges hate late charges and attorneys are beginning to set their sights on whether late charges are usury.

3. Always perform a DETAILED move in and move out inspection. The tenant should not be permitted to make this inspection. The landlord makes this inspection

4. Document the move in condition with a video and/or photos of the unit, interior and exterior. Leave NOTHING undocumented. Preferably have the tenant sign the "Move in Inspection Form, but if you cannot, take the move in inspection seriously, and do it right.

5. Document the move in condition with a video and/or photos of the unit, interior and exterior. Leave NOTHING undocumented. If you charge the tenant for ANY damage, be prepared to prove this damage in a court of law up to 5 years after the tenant vacates. Our clients who videotape units and videotape the damages RARELY have any security deposit disputes.

6. If something gets disputed, carefully weigh the risks of insisting upon the charge versus the benefits of settling with the tenant. Settlement is NOT a bad word.

7. Never write or call back an attorney who has contacted you regarding a dispute without having your attorney review the situation.

EVICTIONS - LOSE ONE AND GET SUED

The majority of evictions that come into our office have some sort of problem. It may be as blatant as an incorrect Three Day Notice, an error in the lease, an excessive late charge, an unregistered fictitious name or some underlying problem that the landlord failed to disclose to us when sending us the case. If the tenant gets and attorney and you lose, you will have to pay the tenant's attorney. We recently had 2 cases where the landlord lost, and the attorneys are demanding in excess of $4000.00.

IMMEDIATE ACTION PLANS

1. Prepare and Serve your notices correctly. Us the Three Day Notice Checklist. Let your attorney prepare any Seven Day Notices for you. Do not non-renew unless you have carefully read the lease and have good reasons documented.

2. Tell your attorney everything strange about the case. Have you accepted rent late on a regular basis? Have you been accepting partial payments? Has the tenant complained about problems on the property? Has the tenant given you a rent withholding letter? Are you trying to remove the tenant for non-rent reasons but jumped on the tenant when she was late on the rent, and refused the rent from the tenant before filing the case?

3. Is your Fictitious Name filed with the Secretary of State? Do you even know what this means? Get it filed NOW.Click here for Fictitious Name Filing.

4. Do not accept rent during an eviction without calling your attorney first and possibly entering into a Stipulation.

5. Once an eviction is filed, do not take any other action without speaking with your attorney first.

REMINDER: CHECK AND FILE YOUR FICTITIOUS NAME NOW!

AGREEMENT TO VACATE, ADVANTAGES, PREPARATION AND USE
By Harry Anthony Heist, Attorney at law

The Background

The most common cause for tenant removal is nonpayment of rent. In most cases the facts are limited and not in dispute. Did the tenant pay the rent? If not, a simple eviction usually occurs, with the landlord prevailing in most cases. Unfortunately there are many other non-rent related noncompliances which result in the landlord having a strong desire to have the tenant removed from the property. The problem is that the landlord's desire to remove the tenant is often far greater than the landlord's case or evidence against the tenant.

The Landlord's options - In the event of a noncomplying tenant, the landlord is faced with a number of options: give the proper notices, gather evidence, prove the noncompliances, file an eviction action, and possibly have to prove the case in court. Another option would be to non-renew the tenant if the lease was near completion, and if the tenant failed to vacate, simply file an eviction based on the failure to vacate. Finally, there is the option of coming to an agreement with the tenant to vacate the premises on a fixed date.

Forced Tenant Removal for Noncompliances

In order to legally institute eviction procedures against a tenant for noncompliances, certain prerequisites must be met. Depending on the noncompliance, either a Seven Day Notice of Noncompliance with Opportunity to Cure, a Seven Day Notice of Noncompliance Notice of Termination, or both, must be given to the tenant. These actions entail informing the tenant of the noncompliance, giving the tenant time to cure the problem in most cases, if the offense is of a curable nature, and then terminating the tenant if the offense continues or occurs again. In the event of a serious non-curable type of noncompliance, the tenant is served with a Seven Day Notice of Termination, and an eviction begins right after this notice expires. Eviction cannot even begin until the notices have expired, and in the meantime, you have lost good tenants due to your noncomplying tenant. Once you file the eviction, you then have to win! This is not always guaranteed. While most landlords have served the Notice of Noncompliance with Opportunity to Cure, very few landlords have ever filed an eviction for noncompliance, as most tenants either cure or vacate prior to the eviction. Far fewer landlords have ever filed an eviction and ended up having to prove the noncompliance in court, as many of the tenants vacate shortly after getting served with eviction paperwork. The landlord who files an eviction for a non-rent related noncompliance and has the case contested is in for a real ride. It is amazing how difficult noncompliances are to prove in court, when your witnesses do not show up, or your solid proof melts away in front of a judge who was so tough on non-paying tenants, but now is so sympathetic to the tenant before them on a noncompliance case.

Can you really prove to the judge that there is an unauthorized occupant living in the unit? Did the tenant remove the unauthorized pet right after or before you filed the eviction? Was it a housekeeping issue that the judge just does not feel so strongly about? Did all your constantly complaining tenants who hounded you every Monday morning about the noise from parties suddenly decide not to show up in court? Is the allegation that the strange man who exposed himself by the pool now pretty difficult to prove? Were you surprised that your attorney informed you that affidavits signed by three tenants are not admissible in court? Were you shocked when the police officer that responded to two noise complaints decided not to show up in court? Did you think the tenant would get an attorney to fight the case and demand a jury trial? The bottom line is anything can happen in a noncompliance eviction, and they should be avoided at all costs.

The "Agreement to Vacate" Alternative - Probably the best possible way to have a tenant vacate is to have that tenant do so voluntarily. The tenant and the landlord simply sign an agreement whereby the tenancy is terminated, and the tenant agrees to vacate on a fixed date. The "Agreement to Vacate" is this wonderful form, and landlords who regularly use the form will attest to the fact that their evictions are reduced, their stress is reduced, and most tenants who sign such an agreement vacate on the date they have said that they will vacate.

When is an "Agreement to Vacate" appropriate? - In almost any situation when a noncompliance is occurring or has occurred, including nonpayment of rent, if the landlord and tenant can agree to a fixed vacating date and memorialize this in writing, the Agreement to Vacate is appropriate: suspected drug use, excessive traffic, domestic disputes, unauthorized occupants, unauthorized pets, noise disturbances, the list goes on. Get the tenant to agree to vacate, and you have probably won the battle.

How do you get the Tenant to agree? - This takes some skill and experience. Basically the landlord needs to approach the tenant, explain how things just are not working out, possibly threaten eviction, but give the tenant an easy way out. The easy way out is for the tenant and the landlord to agree to terminate the relationship without the need for further attorney or court intervention. How much time you give the tenant to vacate will depend upon the severity of the problem, if the tenant has paid rent, or any other factor which will assist you and the tenant in just coming to an agreement.

Will the tenant always sign an "Agreement to Vacate"? - Absolutely not, but more often than not. Let's face it, just as the landlord is not completely sure that they will win an eviction, neither is the tenant. Many tenants do not want to go near the courthouse for obvious reasons and will welcome an opportunity to vacate voluntarily. Some of the most belligerent tenants, who will scream at you telling you how it will take you six months to evict them, will after some thought sign an Agreement to Vacate. On the sample form below, there is a date that the tenant must sign the form by in order for it to be valid. This is used when you want to leave the Agreement to Vacate with the tenant, so they can ponder their options, or you feel it would be better for you not to have a face-to-face confrontation with the tenant. Once the tenant signs the agreement and it is returned to you, you will then sign the agreement and this will create a binding contract. An Agreement to Vacate is no good unless you get all the tenants to sign.

What if the tenant signs the "Agreement to Vacate" and fails to vacate? - Fortunately most tenants who sign the Agreement to Vacate actually leave when they say they are going to leave. If the tenant fails to leave, the landlord can then immediately begin an eviction action with no further notice, and the landlord simply has to prove that the tenant has failed to vacate rather than try to prove the underlying reasons why the landlord wants the tenant gone.

What about the money the tenant may owe to the landlord? Our sample Agreement to Vacate states that the agreement does not address money issues unless otherwise noted in the agreement. In the space provided, the parties may agree that the security deposit is forfeited, possibly will be returned if there is no damage, or any other financial arrangements can be dealt with directly in the form.

Advantages of the "Agreement to Vacate" - The main advantage is that it is an "agreement". Emotions do not run as high, eviction may not be necessary, money may be saved, and there is a much higher chance that the tenant will not do any intentional damage, as so often occurs in an angry eviction where your success is by no means guaranteed. The next time you have a noncompliance where you "just want them to go", remember that they just might want to go as well. The Agreement to Vacate is a wonderful form. Help the tenant out the door.

SAMPLE AGREEMENT TO VACATE:

AGREEMENT TO VACATE

I/WE ________________________________ hereby agree to vacate the premises which we now are renting no later than _______/______/______. In exchange for vacating at this time, Management agrees to not file any legal action for eviction prior to this time if I/WE continue to comply with the terms of our lease and Florida Law.

I/WE agree that any abandoned property that is left behind after the above date may be disposed of by Management without notice and I/WE agree to hold Management, the owners of the premises and any agents or employees harmless for such abandoned property.

I/WE agree that this AGREEMENT TO VACATE must be signed by us AND returned to Management by hand delivery to the property manager/landlord or assistant manager no later than 5:00 PM on ______/_____/_____ or Management may begin legal procedures at any time.

I/WE agree that this document and our vacating shall have no effect upon any financial obligations, forfeitures, security deposit forfeitures, early termination clauses etc under the lease or Florida law unless otherwise agreed to in writing by Management.

______________________________ ________________________________ RESIDENT RESIDENT

_____________________________ RESIDENT

Additional agreements by Management if Residents vacate per this agreement:____________________________________________________

_____________________________________________________________

____________________________________________________________

____________________________________________________________

__________________________ ______/______/______ MANAGEMENT SIGNATURE

USING A PET DEPOSIT FOR NON-PET RELATED DAMAGES OR MONIES OWED
By Harry Anthony Heist, Attorney at law

The Background

Occasionally a landlord will be faced with that unfortunate situation where a tenant who has an authorized pet, signed a pet addendum and paid a pet deposit, vacates owing rent, has damaged the premises, but none of the damage is pet related. It is extremely difficult for the landlord to accept that the tenant may be entitled to a refund of the pet deposit, in light of all the other money that is owed by the tenant who breached the lease agreement. Unless the landlord has structured the deposit agreement the correct way, the landlord has no choice but to refund the pet deposit. Having to return a pet deposit to a resident who owes you money, or worse yet, a resident who was evicted, can be frustrating indeed. The problem can be solved simply by proper lease and/or pet addendum wording.

Collecting a Pet Deposit - A pet deposit is by its nature refundable. All "deposits" are refundable, while fees are non-refundable. If something is designated a pet deposit with no other qualifying language, that refundable deposit is for pet damage, and in the event there is no pet damage, the deposit gets refunded. There is no such thing as a non-refundable pet deposit. This is an oxymoron, since all deposits are refundable. If the landlord collects a pet deposit, this amount must be kept in the same account that the landlord keeps the security deposit or any other advanced rent, and the deposit is treated the same as a security deposit. The deposit cannot be used by the landlord while the tenant is residing on the premises, unless the tenant specifically agrees in writing that the landlord is permitted to use this money.

Collecting a "Pet Fee" - A pet fee is an amount paid to the landlord for the tenant to have the privilege of having a pet on the premises. Once paid, this fee belongs to the landlord at the time of payment. It is never refundable, as it would then be a deposit.

Should you collect a Fee or Deposit? - We recommend collecting both a pet fee and a deposit, as there is a high likelihood that even if there is no obvious pet damage, the unit will have fleas which will become evident 1-2 weeks after the tenants and their pet(s) vacate the premises. As most pet owners do not believe that their pets have fleas, but most landlords know what occurs when a pet is taken from the premises, and the flea eggs hatch and do not have an animal on which to live, there is an almost guaranteed problem and dispute with the tenant when the tenant is told that he or she will be charged for flea extermination. Since the damage to the premises could be more substantial than just a flea infestation, taking a deposit in addition to a fee is advisable.

The Pet Addendum problem - Most pet addendums simply make a statement that there will be a pet deposit or a pet fee which will be used for pet damage. Even if it does not specifically state that it will be used for pet damage, there is an implication that a pet deposit will only be used for pet related damages. This prevents the landlord from using the money for anything other than pet related damage.

The easy solution - In your lease or pet addendum, there needs to be a sentence similar to this:"The pet deposit may be used by management/landlord for any damage related to the pet(s) and for ANY other monies owed by resident under the terms of the lease and for physical premises damages, whether pet related or not".

As you can see, this clause allows you to use the pet deposit for non-pet related damages or other monies which the resident may owe. Some property managers avoid the pet deposit issue altogether by simply charging a higher security deposit which can be used for any monies owed under the lease terms. If you make a decision to charge tenants with pets a higher security deposit, make sure that it is clear that the higher security deposit requirement is due to the fact that the tenant has a pet. One of our clients was wrongfully charged with discrimination when a fair housing tester who was a member of a protected class was quoted a higher security deposit by the landlord, and another tester who was not from a protected class was quoted a lower deposit. On its face, it appears that discrimination had indeed occurred, but the facts showed that the first tester stated that they had a pet, and the landlord upped the security deposit accordingly due to the pet. The second tester did not mention the possibility of a pet and thus was quoted a lower security deposit. If you are not currently using a proper pet addendum, you can download one by going to the following link. DOWLOADABLE FORMS AND NOTICES


THE WRIT OF POSSESSION -- WHAT IT IS, WHAT IT DOES AND WHY YOU SHOULD EXECUTE ONE
by Harry Anthony Heist, Attorney at Law

What is a Writ of Possession?-- The Writ of Possession, hereinafter "Writ", is an order by the court telling the sheriff to remove all persons from the premises. Once the judge signs the Final Judgment of Eviction, your attorney submits the Writ to the Clerk of Court and the clerk "issues" the Writ. Once issued, the Writ is taken to the Sheriff's department civil division, a fee of $70.00 (most counties) is paid, and the sheriff's clerk in the civil division processes the Writ into their computer system and it is given to a sheriff's deputy to "serve". The deputy then takes the Writ, along with many others he or she has to serve that day, and either hands it to the tenant if the tenant answers the door or tapes it to the door if no one is home or the tenant fails to answer the door. NOTE: This article assumes that you have been granted a Final Judgment of Eviction and have instructed your attorney to get a Writ

What it does-- The Writ will give the tenant a date and time to get out of the premises, usually 24-48 hours from the day that the Writ is served. The Writ gives the deputy the authority to remove persons from a rental dwelling. The deputy will usually give the property manager a phone call advising the property manager that the Writ has been served and the date and time of execution.

Why does the deputy call the property manager? - The deputy calls the property manager for two reasons. One is to let the property manager know the date and time to meet the deputy and the other is to see if the property manager wants or "needs" the deputy to meet the property manager at the premises.

The big trick - While you may think that the deputy is just being helpful when he or she asks you if the tenant is still there and if it is necessary to come back out to execute the Writ, be careful of the question, the deputy may really be trying to avoid having to execute the Writ. The deputy has a lot to do each day and a canceled writ means more time is freed up for those other tasks. Don't be tempted to cancel the Writ! Once the sheriff's department receives your Writ, the $70.00 check is processed. You have paid for the complete service so why not get the complete service? You should always follow through and have the deputy execute the Writ even if you think that the tenant has vacated the premises.

Suppose the tenant does not move after being served? - The sheriff comes out to the property at the designated date and time and "Executes" the Writ, at which time the tenant is told (or forced, if necessary) to vacate the premises. If the tenant refuses to vacate, the sheriff will physically remove the tenant, and the tenant may be subject to arrest if he or she fails to vacate.

Procedure when executing the Writ - When the Writ is executed, the property manager needs to be prepared to change the locks on the premises, secure the premises, and, remove all items left in the premises to the property line. The property manager needs to be ready to complete the job and have helpers if necessary to remove the items from the premises. Florida law states that the property can be removed at the time the Writ is executed or at any time thereafter. We highly recommend the former. Get EVERYTHING out of the unit immediately and to the property line. Holding the property until a later time is just asking for trouble.

What can happen if you do not immediately remove the property? The tenant may attempt to break in later to get the property causing significant damage, or, the tenant can allege you made some sort of deal with them to hold the property until they were able to retrieve the property.

The belligerent or threatening tenant - Florida law allows you to DEMAND that the deputy stands by while you are removing the property or securing the premises. If you feel threatened in any way or think that the tenant may suddenly appear while you are removing the items to the curb, ask the deputy to stay. By law, the sheriff's department can charge you but your safety is worth it!

THE MOST COMMON WRIT MISTAKES-

Failure to have the deputy execute the Writ - When you tell the deputy that the tenant has vacated, the deputy will write on the paperwork "unexecuted per landlord". This means that your eviction was never completed, you are in danger of the tenant coming back and moving right back in, and you are in danger of being held responsible for the tenant's personal property, or, worse yet, what the tenant "claims" was the personal property left in the rental unit.

Failure to meet the deputy when the Writ is executed - If you don't show up to meet the deputy, the Writ is "unexecuted". The deputy will not do anything without you being present. Your attorney will have to file a motion for an Alias Writ and this can cost you time.

Meeting the deputy and making an agreement with the tenant - Property managers often feel sorry for the tenant and agree with the tenant and the deputy to hold off on the Writ for a day, or for a fixed number of hours. The deputy will usually go along with this and accommodate the wishes of the parties if the property manager agrees. The LAST thing you should be doing is trying to accommodate a tenant at this stage of the eviction. We have seen the tenant run out and file bankruptcy and derail the entire process. We have also seen cases where the property manager tells the tenant that they can come back the next day to retrieve the personal belongings. The tenant fails to show up and the property manager disposes of all the property. The tenant then shows up and claims that an agreement or extension was made with someone in your office by phone. This can have disastrous and unintended consequences and now you can end up in court in a "he said" "she said" situation.

Failure to have sufficient staff to remove the property from the unit - There is really no good excuse for this. You know when the Writ will be executed and need to be prepared for dealing with a full unit or an empty unit.

Failure to remove the property from the premises - If the eviction is completed and the tenants have been evicted from the premises, Florida law does not require you to treat the property left behind in any special way and you can and should dispose of all abandoned property when executing the Writ. You must complete the eviction and meet the deputy at the premises to be allowed to remove the items to the property line without any liability. Too many times, we see property managers shortchanging themselves by failing to completely execute the Writ when there is abandoned property. This is quite unfortunate as the execution process directly relates to the abandoned property. You will have no liability to the tenant or any occupants, known or unknown, for the disposition of the abandoned property if you execute the Writ. It is rare that the tenant will return and try to claim that they left items behind, but there always it this possibility. There is also the possibility that the unknown person appears, claiming items. Since the completion of the eviction relates directly to the disposition of the abandoned property, it is imperative that you execute the writ if you wish to be safe.

Now, some final words on the Writ

Do you always need to follow through and execute the Writ? 1. ALL tenants have vacated, given you the keys and the premises are completely empty - Probably no Writ is necessary 2. ONE tenant has given you the keys, the premises are completely empty - Executing the Writ may be a good idea 3. Property is left in the premises - Execute the Writ 4. You have had no contact with the tenant - Execute the Writ

Conclusion: The money you spend on the Writ is nothing compared to the liability and problems you may have for not executing the Writ. If a WRIT OF POSSESSION HAS BEEN SERVED, EXECUTE IT.

EVICTING FOR HOUSEKEEPING ISSUES
by Cathy L. Lucrezi, Attorney at Law

To evict a tenant for housekeeping issues, the condition of the unit must be BAD. That means it must be MORE THAN messy, full of stuff, or cluttered. A sink full of dirty dishes does not constitute a violation that rises to the level of a noncompliance with the lease or Florida law.

To terminate a tenancy for poor housekeeping issues, you first need to serve a proper Seven Day Notice of Non Compliance with Opportunity to Cure. A Seven Day Notice to Terminate might follow if you are able to prove that the housekeeping issues listed on the cure notice were not rectified and that the housekeeping is indeed a serious problem that affects the health and safety of others, or that it is damaging the property.

SOME PROOF THAT IS NECESSARY PRIOR TO TERMINATING THE TENANT FOR HOUSEKEEPING REASONS

1. Photos or video of the condition of the unit. The photos or video should show the condition of the place as of the time the cure notice was served AND as of the time the termination notice was served.

2. Employees or other residents (witnesses)of the apartment community who will testify in court about how they are affected by the poor housekeeping. Perhaps a neighbor has been infested with roaches from the tenant's apartment. Or, the noxious fumes from the pet waste are bothering a neighbor.

3. If available, a copy of an inspection report from code enforcement or Section 8. If the agencies have not done an inspection, do not request one.

Common problems that arise in these cases include:

a. The tenant got the cure notice and cured some, but not all, of the problems. This means it may be best to serve another cure notice for the problems that persisted.

b. The place is a mess, but it is not a lease violation. A landlord's perception of what is sanitary and what is not, may be very different than what is a genuine lease violation.

c.The landlord is using "poor housekeeping" as a reason for eviction where the real problem is something else. If the housekeeping issue is a pre-text for some other motivation, the case will surely lose.

d. The tenant has a disability that affects the person's ability to maintain the apartment. In this situation, you may need to make a reasonable accommodation for the tenant. One reasonable accommodation (there may be others) is to permit more than the seven days to cure the noncompliance.

If you request a notice from our office, be sure to include lots of detail about the condition of the apartment. It is NOT sufficient to merely allege "poor housekeeping" or "place is dirty". Give us the low-down, dirty (pun intended) details so that we can draft a notice that paints a picture for a judge. The more detail, the better.

For further information regarding the above topics or any other topics contained in this site, feel free to call 1 800 253 8428 or email us atInfo@Evict.com

TRANSFERRING THE PROBLEM TENANT ON-SITE
by Harry Anthony Heist, Attorney at Law

Who is this "Problem Tenant"?-- The problem tenant is fairly easy to spot. He is complaining about his neighbors, every new neighbor that moves in, constantly has repair issues in his unit, has his door kicked down in the middle of the night by an ex-girlfriend, seems to be hypersensitive to every little noise he hears, is never satisfied with anything, thinks his carpet smells, thinks there is mold in his apartment, does not like the location of his unit, is being stalked by former friends. Have you met him yet? Well, he wants to move to another unit on-site.

Should you move the "Problem Tenant"? -- A natural response by a leasing agent or property manager is to try to accommodate a tenant and not have a vacancy. Some of the tenant's claims may be legitimate, but how many are really caused by the tenant or due to something the tenant has created in his life? Will moving the tenant to another unit really solve anything, or will the problems just continue or possibly escalate?

Examine the tenant's complaints - An experienced property manager will take each and every complaint and objectively examine whether an on-site move is really the solution to the problem. Let's look at some of these complaints. Noise from neighbors: you may have a unit in a very quiet building with no children and assume that this would make him happy. Suppose a family with children move in. Where will you be now? Stalking or damage to the premises due to an ex-girlfriend: do you really think that the ex-girlfriend will not be able to find him once you move him to another building? How many times have we seen knock down drag out relationships get patched up again, only to deteriorate into a problem once again? Odor of the carpet or mold: can you detect any odor in the carpet, or is this guy just imagining an odor? Have you seen any mold? Do you really believe that once he is in the new unit, he will be happy, and everything will be just perfect?

- If the tenant is moving to a larger or smaller unit, and the request to move is not coupled with a myriad of other complaints, this is really a different issue, and usually there is no problem involved. Possibly the family size has changed, or the tenant needs an additional bedroom for a home office. Not all moves on-site are suspect or should be avoided.

The Decision - Careful thought needs to go into relocating a tenant on-site. Our experience has shown that in most cases, the problem follows the tenant and will follow the tenant his entire life. A geographical relocation on the premises usually will do nothing other than cause you a further headache and make it appear that you are giving this resident some sort of special treatment, which could even end up as an issue in a Fair Housing case against you by another resident.

The Mechanics of the Move - A typical property manager simply makes an addendum or new lease with the tenant and sets a moving date. Unfortunately, huge problem can arise when moving a tenant, including but not limited to dealing with damage left behind, the incomplete move, monies owed on the first unit, the list goes on and on. In the September issue of the Email Newsletter, we will be examining the "MECHANICS OF THE ON-SITE TENANT RELOCATION"

THE KILLER SEVEN DAY RENT WITHHOLDING LETTER FROM A TENANT
by Harry Anthony Heist, Attorney at Law

A Letter from the Tenant?-- A certified mail or regular mail letter from a tenant, now that is a change. Usually it is the property manager who is sending the letters and notices. You open the letter up expecting the tenant to be breaking his lease, but instead it contains a five page list of demands on you to make repairs to the property. The letter ends by saying that if you do not make the repairs within 7 days, the tenant will either withhold rent or break the lease. Rent is now due, and you have served a Three Day Notice. Can you file an eviction? Can the tenant break the lease? Does this need to be taken seriously? We commonly call this letter a "rent withholding letter" or "7 Day Letter from a tenant".

Does the tenant have an attorney? -- If you receive a rent withholding letter from a tenant or even a letter that implies that the tenant is going to withhold rent, or worse yet, mentions something about you fixing something within 7 days, you can be almost 100% assured that the tenant has gotten legal advice. This means that there is an attorney lurking in the shadows somewhere in a dark alley, waiting to see if you fail to make the repairs within the 7 Day time frame as demanded in the letter.

The Landlord's maintenance responsibilities - -- A landlord is required by the lease and Florida law to maintain the premises. While the lease normally states what the tenant's responsibilities may be, if it is not stated in the lease that the tenant is responsible for a particular item, frequently the implication is that the landlord is the responsible party.

Florida Law and the Landlord's Duties- Florida law states the landlord's responsibilities regarding maintenance in Florida Statutes 83.51. Landlord's obligation to maintain premises. (1) The landlord at all times during the tenancy shall:
(a) Comply with the requirements of applicable building, housing, and health codes; or
(b) Where there are no applicable building, housing or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. However, the landlord shall not be required to maintain a mobile home or other structure owned by the tenant. The landlord's obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex
. (2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for: 1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs. When vacation of the premises is required for such extermination, the landlord shall not be liable for damages but shall abate the rent. The tenant shall be required to temporarily vacate the premises for a period of time not to exceed 4 days, on 7 days' written notice, if necessary, for extermination pursuant to this subparagraph
. 2. Locks and keys.
3. The clean and safe condition of common areas.
4. Garbage removal and outside receptacles therefore
. 5. Functioning facilities for heat during winter, running water, and hot water. (b) Unless otherwise agreed in writing, at the commencement of the tenancy of a single-family home or duplex, the landlord shall install working smoke detection devices. As used in this paragraph, the term "smoke detection device" means an electrical or battery operated device which detects visible or invisible particles of combustion and which is listed by Underwriters Laboratories, Inc., Factory Mutual Laboratories, Inc. or any other nationally recognized testing laboratory using nationally accepted testing standards
. (c) Nothing in this part authorizes the tenant to raise a noncompliance by the landlord with this subsection as a defense to an action for possession under s. 83.59
. (d) This subsection shall not apply to a mobile home owned by a tenant.
(e) Nothing contained in this subsection prohibits the landlord from providing in the rental agreement that the tenant is obligated to pay costs or charges for garbage removal, water, fuel, or utilities.
(3) If the duty imposed by subsection (1) is the same or greater than any duty imposed by subsection (2), the landlord's duty is determined by subsection (1).
(4) The landlord is not responsible to the tenant under this section for conditions created or caused by the negligent or wrongful act or omission of the tenant, a member of his family, or other person on the premises with his consent.

The Letter from the Tenant- What does it look like The letter from the tenant will often be a complaint letter listing one or more items and demanding that the landlord fix these items. In order for the tenant to withhold rent or break the lease, first these items must be those that allow the tenant to withhold rent or terminate, and secondly, the letter must give the landlord 7 days to fix the items and state in the letter that failure to repair will result in rent withholding or the tenant breaking the lease. The letter needs to be in writing, but some judges have held that verbal or actual knowledge by the landlord was enough for the tenant to comply with the tenant's obligation of putting the landlord on notice. Here is Florida law pertaining to termination of the rental agreement. FS 83.56 (1) If the landlord materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement. If the failure to comply with s. 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the landlord and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows: (a) If the landlord's failure to comply renders the dwelling unit untenantable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable. (b) If the landlord's failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance

For what items can the tenant legally withhold rent or terminate the lease?

A technical reading of Florida Statute 83.60(1), the section of Florida law specifically addressing the tenant's right to withhold rent, indicates that a tenant's right to withhold rent is restricted to violations of 83.51(1), which essentially involves the landlord's failure to maintain the property up to existing building, housing or health codes. The tenant has the right to terminate the lease when an 83.51(1) violation exists, or if the landlord is failing to provide a material provision of the rental agreement. The right to terminate is actually a more expansive right, and what constitutes a material provision of the lease can be subjective. However, many judges allow the tenant to withhold rent for items that would not technically constitute code violations (for example, a refrigerator problem).

The Letter from the Tenant- What does it do? A letter from the tenant in accordance with Florida law will allow a tenant to break the lease if the problem is not repaired within 7 days AND will create a complete defense to an eviction action IF the problem has not been repaired within 7 Days. This is a very powerful tool the tenant has, and if the landlord receives such a letter, it should NOT be taken lightly, and most importantly, it should not be withheld from the attorney who may be filing the eviction action. Here is Florida law showing how the tenant's letter could be a complete defense to an eviction action and stating the strength of the tenant's letter to you. FS 83.60(1) "¦The defense of a material noncompliance with s. 83.51(1) may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. Such notice by the tenant may be given to the landlord, the landlord's representative as designated pursuant to s. 83.50(1), a resident manager, or the person or entity who collects the rent on behalf of the landlord. A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent"¦

Notifying your attorney

Failure to disclose to your attorney that you have received a rent withholding letter, or 7 Day Letter as we commonly call it, can be deadly. Your attorney will file the eviction, the tenant will post the rent into the court registry and the judge may look at the letter as a complete defense to the eviction action, throwing the case out of court and holding you liable to pay a substantial amount of money in attorney's fees to the tenant's attorney. NEVER hide a letter like this from your attorney.

So you received the letter from the tenant, What should you do? - Notify the property owner, explain the law to the property owner, get the necessary funds and authorization, and get the repair done immediately. Judges are not keen on your excuse that you had no money from the owner to make the repairs, or you had to get 5 bids, or that no one could come out to make the repair. While all repair requests should be taken seriously, a repair request in the form of a 7 Day Letter from a Tenant or a Rent Withholding letter needs to be given the utmost priority.

CONDO/HOMEOWNER ASSOCIATION ATTORNEY'S FEES AND THE UNIT OWNER
by Harry Anthony Heist, Attorney at Law

The Condo/Homeowner Association Attorney Letter-- A letter comes in from the president of the Condo Board of Directors or management company informing you that a tenant has a grill on the lanai in violation of the rules. You speak with the tenant, and the grill disappears. Two months later you receive a bill from the condo association for $500.00 legal fees for the attorney writing a letter to the property owner at the request of the management company for the condo association. Whose responsibility is this? You feel you did the best you could to get the tenant to comply. You thought the tenant complied. Can this be avoided? Should it be paid?

Risks of Managing units in Condo/Homeowners Associations -- A property manager who deals with units in Condo/Homeowners Associations, hereinafter "Association(s)" needs to be well versed in the rules and regulations of the Association. The rules and regulations often change periodically and with no notice to the property manager, so it is crucial that the property manager stays completely on top of the changes to avoid situations such as allowing the tenant to have a pet when they just enacted a "no pets for renters policy", or placing a tenant who has a motorcycle in a unit when there has been a "no motorcycle" rule put in place, or placing 4 unrelated individuals in a unit when recently a "no more than 3 unrelated individuals in a unit" rule has been passed. Property managers often think it is unfair when the Association decides to change or add rules, but unfortunately, that is the right the Association has, and they are under no obligation to notify the property manager. Their notification to the unit owner who may live far away is enough under the law.

It is the responsibility and the duty of the property manager to keep up on ALL the rules and regulations of the Association and especially follow all rules pertaining to Association approval of tenants. Many Associations are easygoing or lax about even requiring tenant approval, but then all of a sudden decide to selectively enforce their rules against you. Many Associations have deep seated resentments against renters in their little fiefdom and will do whatever it takes to keep tenants out. Should you just give up and stop managing in Associations? No, all you need to do is follow the rules and take special care, as not only is your property owner expecting you to do everything properly, but often unreasonable Association members are spending the entire day sitting on their lanais watching your tenant's unit to see if there are any noncompliances.

General practices when managing in Associations - Fair Housing laws prevent you from discriminating by picking and choosing who you decide to rent to in an Association. However, there is nothing wrong with deciding not to rent to a group of individuals who you feel may become a problem if they are not from a protected class. Can you decide not to rent to college students in an Association? Yes, as long as there are no local laws which have made college students a protected class. This needs to be checked with your county or city.

An experienced property manager will have checked all the most recent rules and regulations and have created a checklist so nothing slips through the cracks. Motorcycles, number of vehicles, commercial vehicles, unrelated person rules and all other rules need to be checked before entering into a lease. When renting in Associations, since we know there are more rules than usual, and unit owners are policing the property day and night, a property manager needs to inspect the property frequently, checking vehicles and especially taking notice to visible areas such as the patios, breezeways and lanais. These are frequently the source of complaints by the Association members.

- Often you will receive a letter or call from the management company for the Association or the president of the Association, under which they are stating some complaint about your tenant violating a rule or regulation. It could be as simple as having a grill on the lanai in violation of the rules or more serious, such as loud noises, music or disturbances.

The Most Common Mistakes - The most common mistakes a property manager makes after receiving notice that the tenant may be in some kind of violation is to take sides with the tenant, get defensive with the Association or worse yet, write a letter to the tenant. The tenant should immediately be served a Seven Day Notice of Noncompliance with Opportunity to Cure, whether you believe the Association or not. Your job is to manage the unit and keep it free of noncompliances. If the Association claims there is noise, get as many details as possible, and serve the proper NOTICE. If there are unauthorized occupants alleged, serve the proper NOTICE, if there is a grill on the lanai, serve the proper NOTICE. Letters are useless, legally insignificant wastes of time. Your job is NOT to defend the tenant or be a tenant advocate against an "unreasonable" association. Your job is to protect the owner from the actions the Association can take against the unit owner, if in fact it is proven that your tenant is indeed in non- compliance.

Keeping the Association Informed - After receiving a complaint from the Association and after taking the proper action, which is usually the service of a Seven Day Notice of Noncompliance with Opportunity to Cure, you should immediately copy the Association or its management company with the notice, showing the actions you are taking and asking them to notify you immediately if the problem continues. If the noncompliance is of a nature where it is visible, such as accumulations of trash on a lanai or balcony, or a forbidden grill, you need to get over there and check the unit for compliance, and if compliance does not occur, take further action, all the while keeping the Association and/or the management company informed.

What can the Association do to the unit owner? - The Association usually has the rights under its bylaws to hire its own attorney, deal with the problem and charge the unit owner for the attorney's fees it incurs. Attorneys for Associations routinely deal with these matters, write a couple of letters and hit the unit owner with a $500.00 bill. The unit owner now receives this bill and is outraged that he or she has to pay the bill, and finger pointing begins. Sorry to say, often the finger is pointed directly at you, and often you have not taken the necessary swift action against the tenant. You are now stuck in the middle of the fight between the Association, the unit owner who does not feel responsible and a tenant who may still be in noncompliance. The matter can escalate even further, as the attorney for the Association usually has the power and right under the bylaws to institute an eviction action on behalf of the unit owner WITHOUT the unit owner's permission. Here you will see a $2000-$5000 eviction being filed against the tenant. Most property managers do not realize that a typical eviction fee often far exceeds $1000.00 when performed by a large law firm or by a firm that does not handle volume evictions.

Finally, if you are dealing with a noncompliance by a tenant in an Association, get your attorney involved early on to avoid having a simple problem escalate into a large, expensive issue. Communication early on is the key to success in dealing with the noncomplying tenant and maintaining a good relationship with a condo or homeowner's association.

INSURING A SMOOTH TENANT EVICTION
by Harry Anthony Heist, Attorney at Law

Evictions are being contested at a record rate. Tenants are hiring attorneys at a record rate. While many tenants have no legal basis for contesting the eviction, they are still able to file an answer with the court and too often get a court hearing, which causes significant delays. Most of the time, the tenant does not win in court, but the resulting delay causes significant financial harm to the landlord. In many cases a tenant will contest the eviction and actually have a legal basis for contesting the case. Some successful defenses to an eviction action include but are not limited to:

1. Late charges on the Three Day Notice which are not considered "additional rent" in the lease.
2. Amounts other than rent on the Three Day Notice.
3. A pattern of late payments.
4. All adults not on the Three Day Notice.
5. Address discrepancies.
6. Notices or letters sent to the tenant AFTER the Three Day Notice given.
7. Verbal agreements or conversations between landlord and tenant.
8. Accumulated late charges.
9. Deficiency or repairs needed on the property.
10. Failure to receive notice
11. "Hard times defense"
12. Denial of noncompliance

THE SOLUTION
While it is impossible to prevent a tenant from contesting an eviction, it is possible to LIMIT the things for which the tenant can contest. This is actually very easy, but takes a commitment on the part of the landlord to do it correctly. Over 50% of all paperwork that comes into our office for eviction filing is wrong in one or more ways. This is unnecessary and inexcusable. It creates more work for the attorney and staff and often requires a re-do of the notice or notices. Redoing the notice results in delays, and more money is lost by the landlord unnecessarily. Following the Speedy Eviction Tips and using the Three Day Notice Checklist can cut down on mistakes substantially. Successful landlords use checklists and procedures manuals. Haphazardly preparing and servicing notices is a recipe for disaster.

"SPEEDY EVICTION TIPS"

EXAMINE! - - Is the Certificate of Service filled out on your 3 day? Are all residents listed?

EXPLAIN! - - Explain any strange amounts that do not match up to your lease rent amount.

FAX! - Send all pages of lease and 3 day notice. Don't forget the back pages!

USE A FAX COVER SHEET - Use your attorney provided transmittal form or fax cover sheet

CONFIRM! - - Call and confirm that your attorney has received all pages. A fax machine can pull through more than one page at a time! A power outage can make it appear that your attorney has received a fax, but in actuality, it was in memory and now is gone forever!

SEND EARLY IN THE DAY!!!! - - Most of the time there is no charge to you if the case is pulled before it is filed with the Court

CALL IF YOU FIND RESIDENT'S PAYMENT IN THE MORNING!!!

"EVICTION CHECK-LIST"

__ADDRESS: The address on the notice must be correct. a full and complete address is necessary, i.e., county, unit #, left or right side, upstairs or downstairs, street, road, drive, etc. Note: if notice/lease do not match completely, please confirm the proper address on the cover page.

__DATES: The dating of the notice is crucial. i.e., three full business days, excluding Saturdays, Sundays, legal holidays and the day you serve it. Note: Please make sure the certificate of service is filled out completely prior to faxing the notice to our office.

__AMOUNTS: Only the past due undisputed amount of rent should be on the notice. if there are any other charges on the notice they must be considered "additional rent" Note: if the amount on your notice does not match exact amount of one month rent per the lease please provide us with a breakdown of the total.

__NAMES: All adult occupants should be listed on notice, i.e., those who are on the current lease but may have moved out and those who are not on the lease but have established tenancy. Also, correct spelling and the full names are necessary. Note: If the notice is inconsistent with the lease please give an explanation on cover page.

__DOCUMENTS NEEDED TO BEGIN EVICTION: COVER PAGE Please review the information above, this will help us to speed your request. Include permission to file the eviction(s) and any information and explanations of discrepancies, etc. as stated above if necessary. LEASE Please fax all the pages of the lease, if there is no lease please provide the terms on cover page, (i.e., month to month, week to week, rental amount, the day rent is due, etc.) EXPIRED NOTICE i.e., Three day, non renewal, etc. THREE DAY AMOUNT BREAKDOWN FORM. (Breakdown three day amount only)

REMEMBER! YOU CAN NEVER ALTER A NOTICE AFTER SERVICE

THE PROPER USE OF STIPULATIONS
by Harry Anthony Heist, Attorney at Law

What is a Stipulation?

A Stipulation is an agreement between the parties of an eviction action that sets out when the tenant will pay certain sums, when the tenant will vacate in some situations and what will happen if the tenant fails to pay the sums or vacate. A Stipulation is a legal document that is submitted to the court and signed by the Judge. Once signed, it becomes an Order of the Court and is enforceable by the landlord in the even the tenant fails to comply in any way. A Stipulation is not simply a hollow, unenforceable agreement between the parties. It is in essence a Final Judgment that is deferred. If the tenant complies, no Final Judgment is ever needed. If the tenant fails to comply, a Final Judgment is entered and the tenant is removed. The most common misconception is that stipulating means giving up something or caving in to the tenant's demands. This is the farthest from the truth. The decision to use a Stipulation is made by the landlord, and the landlord calls the shots and sets the terms. If the tenant does not agree, no Stipulation is signed and no harm has been done.

Benefits of Stipulations

Stipulations can be an excellent resident retention tool. If a tenant is under eviction for nonpayment of rent, the tenant has some choices. They can fight the eviction, or they can move out. If a tenant is going to move out, they will need money to move. The tenant sits back and does not pay rent during the eviction, saving money so they may move. Usually, the landlord does not want to play any more games with the tenant, as there have already been a number of broken promises. If the tenant comes to the landlord begging to stay and offering to pay some money, the landlord is usually not sympathetic, and the tenant either fights the eviction or leaves some time during or at the end of the eviction. This is where the Stipulation comes into play. A Stipulation allows the landlord to accept money without jeopardizing the eviction process. A Stipulation also can set a fixed date for the tenant to vacate, and if the tenant fails to do so, the eviction will continue, lessening the time to remove the tenant.

1. Allows the landlord to accept rent without killing the eviction. 2. Puts the tenant on a Court-ordered and enforceable payment plan. 3. Prevents the tenant from contesting the case or contesting the case further if already contested. 4. Sets a fixed date in certain situations for vacating. 5. Allows landlord to collect attorney fees, late fees and any other amount on which the parties can agree. 6. Allows the eviction to start right up again upon noncompliance; i.e. failure to pay or vacate, if applicable. 7. Avoids court hearings or trials 8. Allows any rent that was deposited into the court registry to be released to the landlord. 9. Cuts down on the anger involved with litigation and prevents angry destruction of the property.

When can you Stipulate

You can only Stipulate after an eviction has been filed with the court. You cannot use a blank Stipulation form or imply that an eviction has been filed. This is a serious mistake that some landlords make and can get a landlord in a lot of trouble, as it is simulating legal process. Once the eviction is filed, you can Stipulate at any time during the process even up to the moment the Sheriff is at the door removing the tenant from the premises.

When should you Stipulate

If the tenant's only problem is nonpayment or late payment of rent, the situation is ripe for Stipulation. Ideally, the landlord should only enter into a "Pay and Stay" Stipulation if the tenant shows that they have a good portion of what is owed, or will have a good portion within a few days. If the tenant has filed an answer and posted rent into the court registry, this is usually a prime situation for a Stipulation. If the tenant is asking you for a week or so, or has paid for or wants to pay for an extension, you may want to consider the "Leave at a Fixed Date" Stipulation.

1. The "Pay and Stay Stipulation" - This type of Stipulation should be used only if you are not having any other problems with the tenant other than nonpayment or late payment of rent or other charges. You do not want to use a "Pay and Stay" Stipulation if you are having major problems with the tenant or just want the tenant out. While this Stipulation does not "solve" the tenant's financial problems, it enables you to continue the eviction if any payments are missed. This is an extremely successful Stipulation, and in the vast majority of cases, the tenant complies with the Stipulation and gets back on the normal on- time payment routine. This Stipulation has resulted in many tenants not having to be evicted from the premises and saves all parties a lot of grief. Additionally, if a tenant has posted rent into the court registry, this Stipulation will allow this money to be released to the landlord and avoid a court hearing or trial.

2. The "Leave at a Fixed Date" Stipulation - This is an excellent Stipulation to use if there is a problem with your eviction case such as a defect, the tenant has contested, or the tenant simply is asking for more time to stay. The landlord can agree that a certain sum is paid by a certain time, the tenant can "buy" more time, or the parties can agree on a fixed date for the tenant to vacate with no money being exchanged. Many times a tenant just asks for a week or other short period and promises to vacate. The landlord is often not apt to want to do this and refuses. The tenant the files and answer with the court, the Judge sets a hearing, and the tenant ends up staying for a far longer time than the one week for which the tenant originally asked. The "Leave at a Fixed Date" Stipulation is excellent to use if the tenant has posted rent into the Court registry, or the landlord is holding a last month's rent or advance rent. The Stipulation can address these issues and allow the landlord to access these funds quicker.

The Mechanics of Stipulating

If the tenant comes to you and wants to "cut a deal", pay and stay or leave at a fixed date, the landlord needs to immediately think Stipulation! The landlord should never accept any money, make any agreements or have a Stipulation signed by anything less than ALL the parties to the eviction action. The landlord needs to see how much money the tenant has, how much the balance is and how the balance will be paid. Once this is determined, it is just a matter of filling in the blanks on the Stipulation that the attorney provides.

Avoiding Stipulation Mistakes

An improperly filled out Stipulation can be worse than not stipulating at all. The landlord needs to take their time, read the Stipulation Instruction Form and fill in the blanks step by step. 1. Never accept uncleared funds when stipulating. Insist on money orders. 2. Never stipulate unless all parties are present. 3. Avoid stipulating if tenant has absolutely no money, unless it is a "Leave at a Fixed Date" Stipulation and you want them to leave and do not care about the money. 4. Use the proper Stipulation form, be it the "Pay and Stay" or "Leave at a Fixed Date" 5. Send the ORIGINAL Stipulation to your attorney IMMEDIATELY

Suppose the tenant fails to follow the Stipulation

Unfortunately, people do not always do what they are supposed to do, so there will be times when the Stipulation is not followed. We have found that the majority of Stipulations are adhered to, making for a happy landlord and tenant, but there will be times when a payment plan is not met, or the tenant fails to vacate per the Stipulation. If this occurs, you need to notify your attorney immediately, and an affidavit of noncompliance is prepared. This affidavit is then submitted to the Judge, and in most cases the Judge signs the final judgment without a hearing, and a writ of possession can be issued for removal of the tenant. The entire process of removal of the tenant following a noncompliance with the Stipulation takes approximately 10 days, sometimes more, sometimes less. Court is avoided, the tenant cannot usually contest or stop the process, and the tenant is removed.

REQUIRING NOTICE PRIOR TO LEASE END by Harry Anthony Heist, Attorney at Law

Many leases have a clause stating that the tenant must give the landlord a certain number of days notice in writing that they are vacating at the end of the lease. If the tenant fails to give this notice and vacates, the landlord tries to charge the tenant a specific amount for failure to give this notice. While it is our opinion that a landlord should do their best in determining whether a tenant is staying or going through the use of notices to the tenant which require a response by a specific time, landlords still insist on charging for insufficient or nonexistent notice. Florida law now allows this, but if it is not done properly, the landlord can find themselves in serious trouble, especially if they report the amount charged to a collection agency, and it winds up on a credit report.

A careful reading and understanding of the law is crucial if the landlord insists on charging the tenant an amount for failure to give notice. Unfortunately, the law is a bit tricky, as it requires the landlord to give the tenant notice that they will be charging the tenant for failure to give notice. This may seem like a tongue twister, but it simply is a requirement of the landlord to "remind" the tenant that the tenant must give notice so the tenant is not "surprised".

The law enacted in 2004

83.575 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.

How it works: In order to enforce a clause in your lease that requires a tenant to give you notice prior to lease end, you must do the following:

Give the tenant a notice WITHIN 15 days of the beginning of the notice period you are requiring from the tenant.

Example: Your lease requires 30 days notice from the tenant. You must "remind" the tenant of this by giving the tenant notice of this sometime within days 30 and 45 prior to the lease ending.

Your notice must state the following:

1. That 30 days' written notice from the tenant is required if the tenant is leaving at lease end, and 2. Failure of the tenant to give you notice will result in a charge of $_____________

NOTE: We recommend that the amount is no more than one month's rent, and the lease must support this charge.

If you give the tenant notice too far in advance, you will not be able to enforce the notice requirement. It is a STRICT 15 DAY WINDOW.

Common mistakes : The landlord gives the tenant too much notice. Many landlords feel that since the lease states the notice requirement, this is enough or the landlord will give the notice 60 days in advance and the lease only requires 30 days' notice. Remember the notice to the tenant must be given in a specific "window", no more and no less.

Below is a sample notice:

SAMPLE RENEWAL OFFER WORDING

THIS SHOULD BE SENT OUT BETWEEN 1 AND 15 DAYS PRIOR TO THE BEGINNING OF THE TENANT'S NOTICE PERIOD AS DESIGNATED IN THE LEASE

According to your lease agreement, your lease shall expire on _________________. Management would like to give you some options.

Please mark off the appropriate selection below or your lease shall terminate on the above date and you must vacate at that time.

Option 1. _____ We would like to remain on the premises as Month to Month Resident(s) at a rental rate of $______ per month.

Option 2. ____ We will vacate the premises on the above date.

Option 3. ____ We wish to sign a new one year lease agreement at a rental rate of $______ per month.

Please return this to Management no later than 30 days prior to your lease end or your lease shall be deemed terminated at the end of the lease agreement, and you shall owe Management the "failure to give notice fee" in the amount of $__________ as per your lease agreement in addition to any amount due from you at that time according to the lease and/or Florida Law.

This offer by Management may be withdrawn at any time and for any reason by Management prior to Management and Resident(s) written acceptance of this offer by signature of Management below and Resident(s) below and Management fully executing a Lease Renewal or new lease if Resident(s) choose Option 3."

SECURITY DEPOSIT CLAIM AND REFUND TIMING by Harry Anthony Heist, Attorney at Law

A tenant's security deposit is sacred in the eyes of the law. Specific timing issues are laid out in Florida Statutes which must be followed to avoid the landlord having to refund the entire security deposit to the tenant, even if the tenant owes the landlord money. Many landlords fail to take the law seriously and are surprised when a tenant leaves owing a substantial amount of money to the landlord, only to demand the full security deposit back from the landlord because the landlord failed to send the notice out in time or get the tenant the balance of the deposit if any back in time.

When does the notice have to be sent to the tenant?

The required timing of the Notice of Intention to Impose Claim on Security Deposit, hereinafter "Notice", depends on whether you are making a claim against the deposit or whether you are returning the full deposit to the tenant.

Timing of Notice when making a claim

If making a claim against the deposit, the Notice must be sent out within 30 days from the date that the tenant vacates the unit and not one day later. Failure to send out this Notice within the 30 days will result in the landlord having to refund the full amount of the security deposit to the tenant, regardless of amount owed to the landlord. The is no excuse for failing to send the Notice out within the 30 day timeframe. A number of years ago, the timeframe was 15 days. Now it is 30 days.

Timing of Notice when returning the full security deposit If you are returning the full security deposit, you do not have to send out the Notice at all! Simply get the money in the mail within 15 days of the date that the tenant vacated the premises. Many apartment communities fail to send the money to the tenant within 15 days due to accounting issues and the time delays in requisitioning the money and getting a check from the corporate office. Unfortunately the judge does not care how your system works. The money must be sent out within 15 days period.

Returning a portion of the deposit

If you sent the Notice out and you are returning a portion of the deposit, you must return this portion of the deposit within 30 days from the date you sent out the Notice.

Examples: 1. Tenant vacates September 5 and you are not making a claim against the deposit. You must return the deposit by September 20. The Notice need not be used. Simply send the money.

2. Tenant vacates September 5 and you are returning some but not all of the deposit. You must send out the Notice by October 5 and you must return the balance of the deposit within 30 days from the date you sent out the Notice.

The Security Deposit Law 83.49 (3)(a)- (3)(c)

83.49 Deposit money or advance rent; duty of landlord and tenant

(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 notice shall contain a statement in substantially the following form: This is a notice of my intention to impose a claim for damages in the amount of ____________ upon your security deposit, due to ________. It is sent to you as required by S. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address). If the landlord fails to give the required notice within the 30 day period, he forfeits his right to impose a claim upon the security deposit. (b) Unless the tenant objects to the imposition of the landlord's claim or the amount thereof within 15 days after receipt of the landlord's notice of intention to impose a claim, the landlord may then deduct the amount of his claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages. (c) If either party institutes an action in a court of competent jurisdiction to adjudicate his right to the security deposit, the prevailing party is entitled to receive his court costs plus a reasonable fee for his attorney. The court shall advance the cause on the calendar.

YOUR TENANT BROKE THE LEASE - NOW WHAT?
by Harry Anthony Heist, Attorney at Law

Your tenant skipped out in the middle of the night 3 months into a 12 month lease. No notice given, not even the keys left behind. The only thing the tenant left you with was a mess and a vacant apartment. Your owner or management company is wanting you to sue the tenant for the money owed and collect this money. Can you sue? Should you sue? Is it worth it? Are there risks?

Tenants break their leases on a regular basis. Sometimes they give you notice, but often they just get up and leave. While in some cases you are quite happy to be rid of a problem tenant, in other cases the skip was unexpected, and the landlord is upset at the loss of rental income and the prospect of a vacancy or having to retain a new tenant.

The usual reaction by the landlord is to want to sue the tenant to recover the lost rent. Unfortunately, most landlords are unsuccessful at collecting the rent in this fashion, and in our opinion, it is just not recommended.

For how much can you sue the tenant? You can only sue the tenant for the rent that you lost as it becomes due plus the damages to the property that exceed ordinary wear and tear, and these damages must be proven.

When can you sue the tenant? You can sue at any time after the skip, but you will not know what is owed until you have the unit re-rented. You cannot calculate the rent owed for the remainder of the lease and sue for this amount, as acceleration is not allowed.

Where is the tenant? In order to sue someone, you need to find them. If you cannot find them, you cannot sue them. It is that simple.

So you find the tenant and sue the tenant. Now what? The landlord or the property manager will have to attend a pre-trial which could take hours of waiting. At the pre-trial the tenant may not show up, and you will receive a default judgment. If the tenant shows, the case might be settled, or if it is not settled, the case will be set for trial at a later date. This will require another trip to court where a full fledged trial will be held and all witnesses must attend.

Can an attorney sue the tenant for you? Sure, and you will be throwing good money after bad. A typical small claims suit handled properly will cost between $500.00 to $2500.00 on average in attorney's fees. You still will need the landlord, the property manager and/or witnesses in court at the pre-trial and definitely at the trial.

Doesn't the tenant have to pay your attorney's fees? If you win in court, the judge may award you attorney's fee and costs based on the lease or Florida statute. Collecting them from the tenant is a whole different story.

Can the tenant win in court? A tenant who breaks a lease will come up with all kinds of reasons why the lease was broken, most of these reasons pertaining to the condition of the property, repairs that they claim were not completed, safety issues, noise issues or just about anything under the sun. These can all be LIES, but you will have to defend yourself against these lies. Many tenants can lie more convincingly than you can tell the truth. If the tenant wins, YOU will have to pay the tenant's attorney's fees. Many judges feel a lot of sympathy for a tenant who breaks a lease, if the tenant comes up with a good sob story.

The Counterclaim Risk Any time you file a lawsuit, you run the risk of the tenant, with or without an attorney, filing a counterclaim against you. This means that the tables are turned, and now you are not only a plaintiff, but you are a defendant and must defend yourself against the tenant's alleged claims. This often will require you to hire an attorney and subject you to not only your attorney's fees, but the tenant's attorney's fees in the event he retains an attorney and prevails in court. A simple lawsuit you file against a tenant for rent that he owes you can result in a complex counterclaim filed against you for damages the tenant allegedly suffered due to your actions or inactions. The accusations the tenant may make could be totally false and outrageous, but you will still be required to defend yourself.

ARE YOU CONVINCED YET? Our office does not recommend lawsuits against a tenant unless it is an eviction. If the landlord wishes to pursue a tenant, we recommend that they do this on their own and recommend that the property manager does not file suit for the landlord. Do some landlords win and collect their money? Absolutely. Most do not. We recommend that you take the money you would have spent filing a lawsuit, pay for an extra ad in the newspaper, and re-rent the property as soon as possible.

EVICTING FOR UNAUTHORIZED OCCUPANTS
by Harry Anthony Heist, Attorney at Law

You see the unauthorized person there every morning. You see their car parked there every night. The unauthorized person even comes into your office complaining about something. Can you force them out? Can you prove your case? It is harder than you think.

To evict a tenant for having an unauthorized occupant, you first need to have served a proper Seven Day Notice of Non Compliance with Opportunity to Cure. In order to serve a Seven Day Notice to Terminate, you must be absolutely certain that you can prove to a judge that the tenant has an unauthorized occupant residing on the premises, not just visiting, and that the occupant was not "authorized" by you, the landlord or prior management's failure to act quickly. If the occupant has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management, and/or you have accepted rent with this knowledge, you will not be successful evicting, as you have "authorized" the occupant by failing to act. This is due to the legal principles of waiver and estoppel.

SOME PROOF THAT IS NECESSARY PRIOR TO TERMINATING THE TENANT FOR FAILURE TO REMOVE AN UNAUTHORIZED OCCUPANT

1. Photos of unauthorized occupant AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

2. 24 hour Video surveillance tapes or written admission by the tenant(s) that they have an unauthorized occupant AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

3. Employees of the apartment community who will testify in court that they know for a fact the unauthorized occupant is still living on the premises AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired and are prepared to show the judge proof.

4. Dates and time the unauthorized occupant was seen on the premises AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

5. 24 hour Video surveillance of the unauthorized occupant's vehicle AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

6. Police report where the unauthorized occupant gives your address as his or her address AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

IF YOU DO NOT HAVE A STRONG CASE, YOU WILL LOSE. EXPECT THE TENANT TO DENY THAT THE PERSON IS LIVING ON THE PREMISES. REMEMBER THE JUDGE WILL NEED TO BE CONVINCED THAT THE PERSON LIVES THERE AND IS NOT JUST VISITING.

TERMINATION OF A LEASE IF YOU CANNOT GRANT POSSESSION
by Harry Anthony Heist, Attorney at Law

Did you ever sign a lease with a tenant for a unit that was currently occupied and the current tenant had given notice to vacate? Of course. Most of the time the tenant vacates as planned, you turn the unit, and the new tenant moves in. What happens if the current tenant decides not to move out as they had told you, and the new tenant is in the parking lot with a truck ready to move in? You give the bad news that you have no other units available, and the would-be new tenant drives away, STRAIGHT TO THE COURTHOUSE!

Common Practice It is common practice among property managers to attempt to rent a unit out once the current tenant has given notice of vacating, you have given notice to the tenant to vacate and/or the lease is expiring. This is not illegal in any way, and the property manager or landlord often will sign a lease with the new tenant, stating the occupancy date which will be some time after the current tenant has vacated. In most cases, the current tenant vacates according to plan, the property manager turns the unit, and the new tenant moves in on the beginning date of the new lease. Often the property manager has the new lease starting a week after the current lease expires, so as to provide time for the necessary cleaning or other work to be done on the unit to make it rent ready for the new tenant.

The Problem> Many tenants fail to move out on the date that they said they would vacate. The tenant could have had a change in circumstances, is building a home which is not ready as expected, or the tenant's new residence may have fell through or is not ready for some reason or another. Can you just kick the tenant out, as you have a new tenant moving in? Of course not. Your only option is to wait for them to leave or file an eviction, which will most likely take 20 to 30 days. The property manager is now faced with a dilemma; in most cases, the tenant will move out within a short period of time, but you have a new tenant who has a fully executed lease who now cannot move into the unit. Another problem may not be related to the current tenant at all. The current tenant may vacate the unit as planned, but you find out that serious work must be performed on the unit to make it rent ready, or something serious like a rewiring job or replumbing job must be performed before a new tenant can move in. In the situation of the current tenant failing to move out, the current tenant is in breach of the lease by not moving, but YOU are now in breach of the lease with the new tenant, as YOU cannot provide the unit to the new tenant according to the terms of the lease. In the situation where major work needs to be done, the current tenant is out, but YOU are still in breach of the agreement with the new tenant.

The Liability If the new tenant cannot move in according to the starting date of the lease, the property manager or landlord has breached the agreement and could be held liable for the damages the new tenant suffers due to the breach. This could include storage costs, the higher rent the tenant may have to pay finding another place, hotel bills, moving bills, and any other possible expense that could arise out of the new tenant now not being able to move in as planned. The tenant may even go as far as suing for infliction of emotional distress or claim some bizarre theory of damages.

The Solution A simple clause in the lease agreement is all that is required to give the property manager and landlord protection in the event the unit is not ready for the new tenant as planned. This clause can provide that the lease may be considered null and void or terminated in the event that possession cannot be granted to the tenant on the expected move in date, or provide that the move in date can be extended to a fixed date not to exceed a particular amount of days. Since nothing is certain in the world of property management, a clause such as this will prove extremely helpful and is really a necessity, if the property manager or landlord intends to enter into a lease with a new tenant while a current unit is occupied. We recommend that this wording is placed in the same paragraph as the start and end date of the lease term.

Sample Lease Wording

IF FOR ANY REASON WHATSOEVER LANDLORD CANNOT DELIVER POSSESSION OF THE PREMISES TO TENANT BY THE BEGINNING DATE, THE BEGINNING DATE MAY BE EXTENDED UP TO ____ DAYS OR LEASE VOIDED AT LANDLORD'S OPTION WITHOUT LANDLORD OR PROPERTY MANAGER BEING LIABLE FOR ANY EXPENSES OR DAMAGES CAUSED TO OR INCURRED BY TENANT BY SUCH DELAY OR TERMINATION.

LETTERS FROM ATTORNEYS - YOU RECEIVED ONE, NOW WHAT?
by Harry Anthony Heist, Attorney at Law

It is a Monday morning, and you receive a certified letter from a law firm. You toss the junk mail to the side, and with trembling hands you tear open the letter. To your amazement, a tenant is accusing you of wrongdoing, and the attorney is demanding that you immediately refund a security deposit or pay a certain sum within 10 days to avoid suit. The letter is full of misrepresentations, and you are furious. The "facts" as the attorney present them seem to have absolutely nothing to do with what actually occurred, and you are ready to get on the computer and fire back a letter or maybe even call the attorney and give him a piece of your mind. Is this the right approach? Absolutely not!

Why do we receive letters from attorneys?

The most common letters a property manager receive from attorneys concern a dispute over the claim you have made on the security deposit, a request for a rent reduction or a request to break the lease agreement. These letters usually come regular mail, sometimes certified mail and often have some sort of deadline for response. This often panics the property manager, leading the property manager to believe that failure to respond within the time period specified by the attorney will result in some major lawsuit being filed against the property manager or the landlord.

Why would an attorney represent a tenant in a Landlord/Tenant Dispute?

Most attorneys do not concentrate on representing tenants and really do not even want to get involved with writing a letter to you. The tenant may be a friend of the attorney, client in another matter or is just writing a $50.00 letter for the tenant, hoping to never see the tenant again. Let's face it, all of us attorneys have done this at one time or another. On the other hand, the attorney may think that you have done something which is actionable and really does wish to pursue a lawsuit against you. You just never know. I have found that the longer the letter from the attorney, the less likely anything will come of the situation. Attorneys are trained to write good, scary demand letters, as this often is successful in achieving the desired results.

Contents of the letter

The letter you receive from an attorney contains a demand or threat based upon the information as the tenant has presented it to that attorney. We must remember that many attorneys will take the information they get from their client, believe it wholeheartedly and act accordingly. This is the job of an attorney. People lie, distort the truth and leave out a lot of information when hiring an attorney, so this is why the content of the letter may have wild, unsubstantiated allegations against you. Often there is a 10 day deadline given to you to refund some money, with the threat that a lawsuit will ensue if you do not act pursuant to the demand. The attorney may accuse you of fraud, theft or incompetence, and this gets you angry, as you know you did the right thing, and the letter is just a pack of lies. Now, take a deep breath, and do not do anything yet.

Should you respond to the attorney?

Attorneys do not like to be ignored. For one, it is an ego thing, and at the same time the attorney's client is calling every day to see if you have responded. We recommend that you never ignore an attorney. Now, how should you respond? Many property managers run to the computer and write a detailed, angry letter back to the attorney, responding to each and every allegation of the attorney, often giving the attorney copies of what is demanded plus other items that the property manager is using to convince the attorney that his client is wrong or a liar. This is exactly what the attorney wants, and you are falling right into the trap. By responding, you are showing the attorney the strengths AND weaknesses of your case. The attorney now has you just where he or she wants you and will eat you alive. It is rare that an individual is a match for a tenant who has an attorney. By responding, you are giving the attorney evidence which can and will be used against you later in a court of law. What you think you did right can be twisted around by the attorney. What you did wrong or did not do at all will be exploited. The attorney will know your weaknesses and capitalize upon them. If there are enough weaknesses in your case, this may cause the attorney to decide to file a lawsuit, knowing that if the suit is successful, there might be a pot of gold at the end of the rainbow called an "attorney's fee award" waiting for that attorney. You NEVER have to provide an attorney with copies of documents, unless it is a demand made pursuant to active litigation, and even then, there are exceptions and protections afforded to you. Now how do we handle this? I have told you not to ignore the attorney, but also have shown the extreme dangers in responding.

Here is the easy solution.

1. Write a letter to the attorney immediately stating the following and nothing more. "We are in receipt of your letter concerning your client John Smith, and my attorney Bob Jones at 555-1212 will be contacting you shortly. Please deal directly with my attorney."

This accomplishes two things. First it lets the attorney know that you have an attorney handling all your matters, and second it now prevents this attorney from calling you up on the phone. The Florida Bar rules prohibit an attorney from contacting another person who he or she knows is represented by counsel. If this attorney then calls you up on the phone, a violation of the Bar rules will have occurred. Many young, inexperienced attorneys will ignore or not be aware of the importance of this Bar rule.

OR

2. Send the information to your attorney immediately, giving your attorney your side of the story, and have your attorney simply write a response letter. The more information you give your attorney, including all the documents relating to the dispute, a truthful synopsis of what occurred, your settlement offer or authority for settlement, the easier it will be for your attorney to write a quick letter to the tenant's attorney or assist you in settling the matter, so it does not grow into a litigation situation.

What if you completely ignore the tenant's attorney?

Completely ignoring a demand letter from an attorney makes the attorney think that you are incompetent and that you will possibly ignore a lawsuit as well, if it is filed against you. It doesn't make you look tough or strong. Refusing certified mail from an attorney is not good either, and no judge appreciates it when a party refuses mail. Completely ignoring a tenant's attorney greatly increases the risk that the next communication you get from the attorney will be a lawsuit.

The attorney letter trick exposed

Sometimes an attorney will make a statement or imply an agreement and then go on to say, "We will assume that you have agreed to this unless we hear otherwise from you within 5 days in writing." This is a little trick to get you to "agree" to an offer or an action by the tenant by you NOT responding. Did the fact that you failed to respond mean that you agreed? Not necessarily, but your failure to respond will be used by the attorney to convince a judge that you in fact "agreed".

So your attorney has responded, now what?

The majority of the time, if your attorney responds in a timely matter to the tenant's attorney, the case simply dies a natural death, and you never hear another thing about the matter again. The tenant's attorney wrote the letter for the client, received your attorney's letter and then dropped the bomb on the tenant that if the matter goes any further, the attorney will want a retainer, or possibly your attorney's response letter convinced the tenant's attorney that the tenant has a weak case. In the vast majority of other cases, the two attorneys go back and forth and the matter gets settled, usually to the satisfaction of all parties involved. Most landlord/tenant disputes are not about large sums of money but hurt feelings, a few hundred dollars or just a couple angry people. Many cases that end up in court could have been settled prior. A large percentage of cases are settled "on the courthouse steps", so why make money for your attorneys? A smart property manger knows that going to court is always the least desirable option, understands the attorney's fee risk and helps their attorney settle the matter. An experienced property manager will also try to convince a reluctant property owner who is often out of state that settlement is the best way to go.

TERMINATING A TENANT FOR A LEASE NON- COMPLIANCE - IT IS HARDER THAN YOU THINK
by Harry Anthony Heist, Attorney at Law

It would be difficult to find a property manager who has not served Three Day Notices for non-payment of rent and Seven Day Notices to Cure for tenant noncompliances. The tenants usually pay the rent, or in the case of noncompliances, they cure the noncompliance or move right out. Most property managers are well versed in notice serving and have filed evictions on their tenants when the notices just did not do the trick. Many property managers have even experienced going to court on contested non-payment of rent cases. The result? Usually the tenant is evicted, or the case gets settled. Now ask yourself: How many times have I actually gone to court on a contested eviction on a Seven Day lease noncompliance case and had to prove the noncompliance in court? Very few property managers have experienced going to court on contested noncompliance cases and do not realize how hard these cases can be to win. Proper preparation, hard core proof and good convincing witnesses are necessary to win these cases. Are you ready to prove your case to a judge who will really put YOU to the test?

Winning and Losing the Seven Day Noncompliance case

Since most property managers have never experienced going to court on a contested noncompliance case, you will just have to trust us here. We have handled many of these cases, and we have LOST many of these cases. You don't want to lose a case in court. Besides the pain of losing with the tenant now getting to stay and smirk at you for the next six months, if that tenant retained an attorney, you may be on the hook for attorney's fees. Recently two cases we lost resulted in around $2000.00 each having to be paid to the tenant's attorney, for which the property manager thought she had a great case, really wanted to get the tenant out and insisted that the eviction be filed against our advice.

Is your attorney a wimp?

Once of the most frustrating things for the landlord's attorney is to try to convince a property manager who thinks he has a great case that there is a high chance of losing in court. The property manager needs to understand that the landlord's attorney may make his or her living filing your evictions and has every incentive in the world to file your eviction, BUT also wants to protect you from losing the case and having to suffer the consequences. The landlord's attorney has probably filed hundreds, thousands or in our case, tens of thousands of evictions, winning the vast majority of the evictions, as most are for non-payment of rent. Trust the experience of your attorney. Your attorney is on your side, feels your frustration, but is also under the legal and ethical duty to warn you of the dangers of losing and guide you in the right approach. Your attorney is not a wimp or lazy. Your attorney has the experience to know what is best for you. There have been situations where an unsuccessful Seven Day Noncompliance case has not only been lost in court, but took on a new life when a Fair Housing Discrimination case was filed against the property later!

The judicial attitude in the Seven Day Noncompliance case

When you go to court on a typical residential tenant eviction, the tenant usually did not pay the rent, did not properly withhold rent or did not post all the money into the court registry. Judges handle thousands of these cases each year, and some of them have no tolerance for listening to the tenant's sad story of losing a job, car breaking down or the myriad other excuses. Most cases for non-payment of rent result in an eviction.

Now we come to the Seven Day Noncompliance eviction. This is far different than the non-payment case. Here the property manager has accused the tenant of doing or not doing something that is spelled out in the lease or Florida Law. Notices have been given, these notices must be correct, and now the property manager is put to the test and has to prove the case. Judges do not take these cases lightly and really make the property manager prove the case. Often it seems that the judge is far more sympathetic to the tenant, but really it is a proof issue. It is much easier to prove someone has not paid the rent. They either paid it or they did not, and the burden of proof of prior payment is on the tenant. Proving a noncompliance is the landlord's burden and can be a real challenge.

How do we prove the case in court?

Before we even get to court, the property manager must have prepared and served a PROPER Seven Day Notice, be it a Seven Day Notice of Termination or a Seven Day Notice to Cure followed by the Seven Day Notice of Termination. We strongly recommend that you have your attorney prepare these notices for you. We prepare all our clients' Seven Day Notices for no charge, as we really want them done the way we feel they would be most effective and successful in court.

Now, proving the noncompliances can be a real challenge. We need witnesses, documentation, solid proof, logs, file notes, notices, photos, videotapes, police reports, incident reports, and anything else to help the judge believe that the noncompliance is occurring or has occurred.

Does the Noncompliance have to be severe?

Remember that you are asking a judge to kick someone out of their home. Often there are children involved. The noncompliance needs to be substantial, and you need to trust your attorney to help you decide if it is indeed substantial enough to sway a judge your way. It is ironic how when the market is strong and the property has a waiting list, there seems to be so many more tenants in noncompliance. Hmm, a coincidence?

I have petitions and statements signed by 5 residents!

Nice try, but no cigar. The complainers or witnesses MUST appear in court. This even includes the police officer who responded and wrote up the police report. How do we get them into court? We need to subpoena them, but often they just do not show up for court, and the case falls apart. We have had situations where many tenants have complained about one tenant. Every day they wrote letters and called the office complaining about the noise that the tenant was creating. We end up in court, one complaining tenant shows up and tells the judge that the problem has stopped. Bang. We lose the case. Never be certain that the complaining tenants will actually come to court. Often they are afraid, were threatened or get cold feet at the last minute and do not want to be involved.

What does your attorney need to win these cases?

The proof that you need is wholly dependent on the type of noncompliance involved and is extremely case specific. Let's go through some of the most common noncompliances and list some of the evidence we may need to potentially prove our case in court.

Unauthorized Occupants - Seems easy, you see the person there all the time. When you go to court, the tenant says they are just visiting. You need to now prove that they are no visiting. Proof you may need includes and is not limited to:

1. Multiple photos of the unauthorized occupant's car morning and night with date and time records; 2. An admission by the tenant to you that the unauthorized person is living there; 3. Proof that the unauthorized person is receiving mail; 4. Unannounced visits to the unit with a witness; 5. Police report that the unauthorized person gives the address as his or her address; 6. FDLE sexual predator or offender registration with your address listed; 7 .A lease clause that is clear as to how long someone can stay.

Unauthorized Pets - First you need to make sure the prior manager did not authorize the pet or the pet has not been there for a long time, which can cause a waiver.

1. Pictures of the pet, date and time stamped; 2. Witnesses who have seen the pet; 3. Pictures of the tenant walking the pet; 4. Maintenance who will testify to pet food or pet bowls in the unit; 5. Recording of barking when you go to the door, if a dog that is; 6. Picture of the pet damage; 7. Picture of the pet coming to the window; 8. Hard proof after the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

Noise Disturbances - These case are tough, as usually there is no police involvement, and the complaints come from other tenants who may just be angry at each other, or a group of tenants have it out for one tenant. Are we really dealing with a tenant versus tenant war?

1. Records of multiple tenant complaints; 2. Police reports; 3. Tenant witnesses who will appear in court; 4. Witnesses who are employees of the landlord; 5. Multiple provable disturbances; 6. Courtesy officer who will appear in court.

Unsanitary Unit - Is the unit really unsanitary or just an extremely cluttered mess? Many times we deal with accumulators who throw nothing out and have piles of newspapers, clothes and books throughout a rental unit, with only a small path in which to walk. Is this unsanitary or just strange?

1. Pictures of unit; 2. Pictures of kitchen, bath and anything "unsanitary"; 3. Pictures of exposed and rotting food; 4. Pest control personnel who will come to court; 5. Infestation of vermin; 6. Strong odor; 7. Maintenance staff that must come to court; 8. Other staff who will come to court.

Emotions and the Seven Day Noncompliance case

We see situations where property managers get angry at a tenant and "just want them out". This is the worst possible situation because the anger and frustration of the property manager is now running the show. That unauthorized occupant who was not a problem for three months all of a sudden becomes a big problem, because he came into your office and was belligerent. That person with the unauthorized pet was left alone until it defecated in front of the office or got loose and scared another tenant. Never let your emotions dictate your actions when deciding to terminate a tenant. Follow the law, get your attorney involved early, and be cautious.

HOT LEASE TIP! THE PET ADDENDUM AND REMOVAL OF THE PET
by Harry Anthony Heist, Attorney at Law

Your tenant has signed a Pet Addendum, but now you received a letter from the insurance company stating that no pets of a particular breed are allowed. Possibly the tenant's pet was aggressive or gets loose too often. Maybe you noticed carpet damage and a foul odor during a recent inspection. Can you just ask the tenant to remove the pet? Will you end up in court having to prove what the tenant's pet did? Will there be a dispute over the breed of the pet? Unless we are dealing with service animals, the fact that a tenant is allowed to have a pet on the premises should be a privilege and not a right. This privilege is granted to the tenant through the lease agreement and particularly the Pet Agreement or Pet Addendum. Problems will arise during a tenancy which may not easily be dealt with due to defects in the Pet Agreement or Pet Addendum, hereinafter the "Agreement."

The typical "Agreement"

The typical Agreement deals with the charges for the pet, number of pets, weight limits, breed, conduct of the pets, and damage due to pets. Most Agreements are clear that a pet must be kept on a leash at all times, use certain areas to do their business, should not disturb neighbors, and limitations are imposed on offspring.

The Pet Problems

Breed - While many Agreements prohibit certain breeds, somehow pets slip though the cracks, because the property manager does not get a letter from a vet as to the breed, the breed is a strange name or the pet is of a breed that is mixed with one of the prohibited breeds. Now we have a dispute as to whether the dog is a prohibited breed. A diligent property manager confirms the breed before taking the pet fee or pet deposit.

Weight - Often the dog's weight is not checked or increases dramatically over time and now is in violation of the weight limit five months into the tenancy. What is the tenant supposed to do, put the dog on a diet?

Aggressive behavior - Many dogs appear to be aggressive or exhibit what we call aggressive behavior. This is extremely subjective, as a dog lover or owner may consider the dog to be affectionate, while someone else may be in fear of her life just upon seeing the dog. How do we gauge or define what aggressive behavior really may be?

Creating unsanitary conditions - Many tenants are just plain lazy and refuse to use the designated areas for the pets to defecate and urinate, or fail to clean up after their pet. Are we going to follow the tenant every time they walk their dog and take a video?

Damage to the premises - Pets can and often do damage carpeting and walls in a short period of time. You could serve a tenant a Seven Day Notice of Noncompliance with Opportunity to Cure for the damage, but is the tenant going to replace the carpet? If they do, will the damage cease?

Barking - Many pets behave like a charm when their owners are home, but the minute the owners leave, howl and bark all day and night. The tenant denies this profusely as they never hear this happening. Are you going to set up recording equipment?

Fact Issues

All the aforementioned problems with pets are factual issues. Factual issues can and are disputed in COURT. In order to win in court, you must prove that the Agreement is violated and present the "facts" which will be disputed in court. Tenants who are asked to remove their pet are not apt to just say OK and will often fight you in court.

A privilege and not a right

We feel that a tenant being able to have a pet on the premises is a privilege and not a right. This privilege should be a revocable one at your sole discretion. However, if your Agreement does not clearly spell this out, you will have a major problem getting a tenant to either remove the pet or vacate the premises. By using the following wording, you will have a better chance of being successful in either getting the tenant to remove the pet, or if this does not occur, evicting the tenant and their pet from the premises. As always, before you serve a Seven Day Notice to Cure to the tenant, we recommend that you call your attorney for the proper wording.

SAMPLE LANGUAGE FOR YOUR PET AGREEMENT OR PET ADDENDUM

Tenant(s) agree that approval, denial, or continuing permission to keep a pet or pets on the premises is at the sole discretion of owner or agent. Landlord, owner or agent reserves the right to withdraw consent at any time by giving the Tenant(s) 7 days written notice to remove pet(s) from the premises for any reason at all including but not limited to noise, barking, biting, odor, damage by pet, unsanitary conditions caused by pets, breed of pet, disturbances, or threatening behavior towards other Tenant(s), employee(s) of owner or agent or any person(s). In the event the pet(s) are not removed after notice, Tenant(s) will be subject to eviction and shall be in breach of the lease and this agreement. Tenant(s) agree that keeping a pet on the premises is a fully revocable privilege and not a right.

THE MOTION TO STAY THE WRIT OF POSSESSION
A TENANT DELAY TACTIC

by Harry Anthony Heist, Attorney at Law

A Motion to Stay a Writ of Possession is a document that a tenant files with the court which has the result of "staying" or "stopping" an eviction action after a final judgment for the landlord has already been entered. The Motion to Stay a Writ of Possession is one of the less commonly used legal techniques by tenants to stall or stop an eviction action, but it does occur enough to warrant a better understanding of the process by a landlord. It is probably the least understood and more baffling Motions, so we will start with a brief overview of the eviction process and see where the Motion fits in.

The Eviction Process in a Nutshell

For the purposes of this article, we will explain the eviction process in its most simplest of forms and use the Uncontested Residential Eviction Action as our example. In an uncontested eviction, the tenant is served with the eviction summons and complaint either by the sheriff or a process server. The tenant has 5 business days after being served to "fight" the case by filing an answer with the court. In an uncontested case, the tenant does not file anything with the court, and the clerk of court enters a "default" against the tenant. The file then goes to the judge who after a cursory review of the file will sign the "Final Judgment". The Final Judgment states that the eviction is granted in favor of the landlord, and the Final Judgment orders the clerk of court to "issue" a Writ of Possession, which is a document commanding the sheriff of the county to place the landlord in possession of the premises. NOTE: For an in-depth article on the Writ of Possession click here. The sheriff then takes the Writ of Possession, serves it on the person or the door of the premises if the tenant is not home and on the Writ of Possession it states the date and time that the sheriff will be back on the premises to remove the tenant, this usually being 24 to 48 hours from the time the Writ of Possession is served. The removal of the tenant is called the execution of the Writ of Possession. Theoretically, and in most cases, the sheriff comes back on the stated date and time, and the tenant is removed from the premises. The catch is that the tenant is able to file a motion with the court to derail this entire process at any time after the Final Judgment is signed by the judge and before the sheriff actually physically removes the tenant from the premises. This Motion is called a Motion to Stay the Writ of Possession

What is a Motion to Stay the Writ of Possession?

Simply put, the Motion to Stay the Writ of Possession is a document filed with the court asking the judge to "stay" or "stop" the sheriff from executing the Writ of Possession and removing the tenant. It can be a typed or handwritten document filed by the tenant or the tenant's attorney if one is retained. The Motion to Stay the Writ of Possession may state that the tenant paid the rent, the eviction was unfair, the tenant needs more time, the case is defective or just about anything on earth that the tenant can come up with to convince a judge that the eviction should be stopped or make the judge feel sorry for the tenant. If the judge is swayed, the tenant gets their day in court.

How does the Motion to Stay the Writ of Possession affect the process?

Once this Motion is filed with the court, it is immediately sent to the judge, an emergency hold is put on the case, and the judge reviews the Motion and the reasons why the tenant feels they are entitled to having the Writ of Possession stayed. A Motion to Stay a Writ of Possession is taken very seriously by the court system, and the judge will almost immediately review the Motion. If the judge upon reading the Motion feels that there is some real legal basis why the eviction should be "stayed", the judge will grant the Motion without a hearing and set it for a later hearing, or will set an EMERGENCY hearing to have the landlord and the tenant present evidence as to whether or why the Writ of Possession should or should not be stayed. If the judge upon reading the Motion to Stay the Writ of Possession feels it is completely without merit, the judge will enter an Order denying the motion, and the eviction continues on.

The judge Grants the Motion to Stay the Writ of Possession - Now what?

If the judge grants the Motion to Stay the Writ of Possession, the judge enters an Order Staying the Writ of Possession and will set a hearing, which basically gives the tenant a chance to present evidence as if the case were contested and a hearing were set in the beginning stages of the case. If the tenant has failed to post the rent money into the court registry, it is doubtful that the tenant will prevail, but if the tenant can prove that possibly they paid the rent and it was mis-posted by the landlord, or placed a large sum of money into the court registry, even if late, there always is a chance that the tenant can win the action. Your attorney may file a Motion to Lift the Stay of Writ of Possession if the judge grants the tenants Motion to Stay the Writ of Possession.

The judge Denies the Motion to Stay the Writ of Possession - Now what?

If the judge denies the Motion to Stay the Writ of Possession, the case proceeds on without delay just as if nothing happened. If there is a hearing set, and at that hearing the landlord prevails, the judicial assistant or judge will notify the sheriff's department to execute the Writ of Possession. If your attorney has filed a Motion to Lift the Stay of the Writ of Possession, and the case is heard and decided in the landlord's favor again, the judicial assistant or judge will notify the sheriff's department to execute the Writ of Possession.

Sounds confusing doesn't it? Is it all that bad?

The Motion to Stay the Writ of Possession is a bit confusing, as the landlord thinks they have won the case completely, only to be thrown this curveball at the end of the process. Will the case be delayed? Often, but usually by only a few days if the judge grants a hearing to the tenant. In the vast majority of cases when the tenant files a Motion to Stay the Writ of Possession, the judge reads it and denies it right then and there, and not a moment is lost and no hearing occurs. The worst case scenario is that the judge will grant the Motion to Stay the Writ of Possession, a hearing will be set, and the judge will feel your case is defective or there is a good legal basis why the tenant should not be evicted. Remember what Yogi Berra said: "It's not over until it's over".

Is there anything that can be done to prevent the tenant from filing a Motion to Stay a Writ of Possession?

Absolutely nothing. A landlord's best defense though is to make sure the eviction is filed properly, the notice was done with care, the landlord did not take any rent during the eviction action, and the landlord's records are clear and concise.

BILLING FOR WATER NOW OR IN THE FUTURE
by Harry Anthony Heist, Attorney at Law

Traditionally in apartment communities, water is paid for by the property owner and included in the tenant's rental amount. Most apartment communities do not have separate water meters for each unit. Due to the increasing cost of water and technological advances in water flow measuring and resulting lower costs of retrofitting, many apartment communities are hiring companies to sub-meter their units and handle the billing aspects. This cost shifting results in tremendous savings to the owners of the apartment communities, and most likely also results in water conservation overall. The task of sub-metering is not difficult in most buildings but the legalities of getting the tenant to now pay for the water that was once included in their rent presents some challenges.

The Current Tenant Problem

Most leases simply state that water is included in the rent or it is the owner's responsibility to pay water. In cases like this, if an apartment community decides to sub-meter, there is no way possible to make the current tenant under the current lease pay for the water. If it was not in the contract, they are under no legal obligation to pay for water. The only option the landlord has is to non-renew the tenant's lease at the end of the term and offer a new lease with the proper wording in the lease stating that the water is the tenant's responsibility.

A common lease clause that partially solves the problem

A common provision found in many Florida leases states the following :

Insufficient Lease Clause

"¦Unless separately metered, we supply the water and sewer for normal usage. If separately metered, you must pay the water and sewer as additional rent when rent is due. If you do not have separately metered water, we may add separate metering"¦

As you can see from this clause, it would appear that in the event the unit was sub- metered after the tenant moved in, you would be able to now make the tenant pay for the water as additional rent when rent is due. Unfortunately the clause is not very clear, does not cover all scenarios and we know that ambiguity is construed in favor of the tenant.

Suppose you are going to institute a RUBS program?

Ratio Utility Billing Systems (RUBS) is a system whereby the landlord charges water use by a ratio like the square feet of the unit, bedrooms and/or the number of tenants in a unit. This system avoids the retrofitting necessary to sub-meter an apartment building, but has its own problems as well. Many tenants feel this system is unfair, as it could be inaccurate, as some tenants will invariably overpay for usage, while other tenants will underpay as these systems assume constant and equal water usage. Can an apartment community use the sample clause above if they decide to implement a RUBS program? The answer would be no, as that clause only addresses sub-metering. Therefore, if the lease does not address the possible future implementation of a RUBS program, there is no way you can impose it on a current tenant.

A Possible Lease Clause Based Solution

Even if you have no immediate plans to sub-meter an apartment community or institute a RUBS program, we feel that your lease should allow for the possibility at a later time. Water costs may increase dramatically, you may sell the apartment community, or you may just decide that RUBS or sub-metering is the way to go. Without a proper lease clause, your hands are tied.

Sample Lease Clause

Currently water and/or sewer is provided by the Landlord and Tenant agrees to use same in a reasonable manner. Tenant agrees that at some time in the future, Landlord may pass this cost on to the Tenant, and Tenant agrees to pay for water and/or sewer each month upon demand with the monthly rental payments as additional rent, as Landlord may decide to sub-meter the apartment or institute a Ratio Utility Billing System whereby Tenant agrees to pay upon demand the cost of water and/or sewer based upon a formula taking into account factors including but not limited to the unit square feet, number of bedrooms and/or the number of tenants. Tenant shall be given 30 days prior written notice by Landlord if Tenant becomes responsible for paying for water and/or sewer.

The Importance of Disclosure

While a clause potentially making a tenant responsible for water at a future time is legal, when the time comes to implement the clause and begin billing the tenant, sparks will fly. There will be cries of unfairness, surprise and alleged verbal promises. If you intend to use such a clause, we recommend that it is clearly pointed out to the tenant or possibly placed in a separate document as an addendum. A water/sewer bill could substantially increase the rental amount, and we recommend that before you sub-meter or implement a RUBS program you check with your attorney on the plan of action and legalities.

PROHIBITED PRACTICES AND THE
RESIDENTIAL LANDLORD
by Harry Anthony Heist, Attorney at Law

If you were to ask a typical landlord if they would ever engage in a prohibited practice, you would most likely get a resounding "of course not". Most landlords realize that self- help evictions are no longer allowed, and doing drastic things like taking off the tenant's door will certainly result in a lawsuit these days. Florida Statutes Section 83.67 clearly lists out the prohibited practices and imposes a penalty of 3 months' rent to the tenant, plus the landlord will have to pay the tenant's attorney's fees in the event an attorney is involved with the case. Many attorneys will readily take a prohibited practices case if it is clear that the landlord is in violation, and the various legal aid organizations have a list of attorneys in private practice who will take these on a referral basis. Surprisingly, many landlords commit prohibited practices intentionally and unintentionally to this day, and are often found in court having to pay significant sums of money to the tenant. It is not relevant that the tenant may not have paid rent for months or is the world's worst tenant. The case will completely hinge on whether or not the landlord committed a prohibited practice. This article will examine Florida Statutes 83.67 and focus on some common prohibited practices that even the most seasoned professional landlord commits without even realizing it.

Interruption of Services

A common problem that arises is when the tenant is supposed to put the electricity in their own name and either does not do so, or the electric service reverts back into the owner's name if the tenant has service and then fails to pay for such service. The latter situation is extremely common in apartment communities where the arrangement with the electric company is to have the electric service on in the apartment community's name unless it is in the tenant's name. Commonly, the landlord discovers that the electric service is in his or her name, and rightly upset, decides to call the electric company, tell the electric company that is was supposed to be in the tenant's name and then tells the electric company to shut off the electric. In single family home rentals, the tenant's failure to put the electric in their own name is usually discovered when the out of state owner receives a huge electric bill and calls the property manager. The actual landlord or the property manager thinks it is then permissible to call the electric company and tell them to shut it off. In the apartment setting, the on-site property manager usually discovers this when the bill comes in. In both cases, it is a prohibited practice to directly or indirectly shut off the electric. Directly would mean that you called the electric company and told them to take it out of your name; indirectly would be to fail to pay for the service if the landlord received a shut off warning. Our office receives calls concerning this issue on a regular basis, and many of our clients either ask if they can have the electricity shut off or have already done so. As you can see, this prohibited practice is alive and well!! Electricity is not the only utility covered under "service". The statute also includes water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration and although not mentioned, the court may interpret cable, satellite or phone as a service. The key to avoiding the problem is to make sure that the services are not on when the tenant moves into the unit and avoid any situation where the services revert to the landlord in the event the tenant fails to pay.

LAW FS 83.67(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.

Lockout of the Tenant

Locking out a tenant as a means of self-help eviction was legal a very long time ago. It is legal no more, and most landlords would never do such a thing, so you may think. Suppose you are trying to get the tenant to come to the office to see you. You change the locks and put a note on the door asking the tenant to come to the office. The tenant comes home at 7 pm, the office is closed, and he is locked out. Prohibited practice? You bet. You can never change the locks on a tenant's door to "get the tenant's attention" or for any reason, unless the tenant requests that the locks are changed. Now what about a situation where one tenant asks you to change the locks? You oblige, and a week later the other tenant on the lease comes to you and says he or she can't get in, as her co tenant/roommate changed the locks. Are you required to let this person in? If they are on the lease, you are, and your failure to let them in could result in a prohibited practices charge against you. We recommend that in any case where a tenant wants a lock changed, all the tenants put this in writing on one request form.

LAW FS 83.67(2)A landlord of any dwelling unit governed by this part shall prevent the tenant from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks or using any bootlock or similar device

Armed Forces Discrimination

Is it risky to rent to someone in the United Stated Armed Forces? Absolutely. The laws protecting service members have been broadened not only to allow them to break their lease if they go on active duty, but to allow an active duty service member to break a lease to move onto base housing which could be right down the street. The recent law changes have made many landlords hesitant to rent to service members, and some landlords have decided to try to avoid renting to service members at all costs. A few years ago, this was not considered a prohibited practice, but now it is.

LAW FS 83.67(3) No landlord of any dwelling unit governed by this part may discriminate against a member of the United States Armed Forces in offering a dwelling unit for rent or in any of the term of the rental agreement.

Display of Flags

Most leases have clauses which prohibit hanging any items from the premises. Often landlords have to deal with situations where a tenant hangs clothing, banners or flags from their balcony. These could be anything from a sports related flag or banner to a large flag from the tenant's country of origin. A few years ago, the law was specifically changed to make to a prohibited practice to prohibit a tenant from displaying a United States flag on the premises in accordance with the law. There is no exception in the law for landlords of single family homes or condo in condo associations or homeowner's associations. For an in-depth article on the Flag Law click here.

LAW FS 83.67(4)A landlord may not prohibit a tenant from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and one-half feet by 6 feet, in a respectful manner in or on the dwelling unit, regardless of any provision in the rental agreement dealing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The landlord is not liable for damages caused by a United States flag displayed by a tenant. Any United States flag may not infringe upon the space rented by any other tenant.

Abandoned Property and Removal of Items

Removal of Items: As we mentioned previously, most landlords are keenly aware that you cannot remove a tenant's door in a self-help eviction situation. This prohibition also extends to locks, roof, walls and windows. The only exception to this would be for a landlord to remove such items for the purposes of maintenance or repair. Some unscrupulous landlords remove such items under the guise of making a repair on the item and delay the repair so as to influence the tenant to vacate.

Abandoned Property: Abandoned property removal is one of the most common prohibited practices committed by even the best landlords. The usual cases involve those where the landlord thinks the items are abandoned, when in actuality they are not, and the landlord then disposes of the property, only for the tenant to come back and demand the property. The landlord can be charged with a prohibited practice, conversion, civil theft and even criminally. It is crucial that the landlord knows what abandoned property is and has the proper wording clearly in the lease. The lease wording is as follows:

BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY

Even with the proper lease wording, the unit must be "abandoned" before the landlord can dispose of the "abandoned property". Legal abandonment has nothing to do with what our common sense may tell us. Abandonment is defined in the law, and if all the elements of abandonment are not present, the items left behind are not abandoned property. Click here for a full article on Abandonment .

Self-Help and Personal Property

The tenant has junk outside their door, cars parked on the front lawn, bicycle chained to the railing, chairs in the breezeway and a lanai full of everything, including the prohibited gas grill. Code enforcement is citing the property each day. Can the landlord clean up the place and throw out any of these items? They should be able to, but unfortunately the law would most likely consider this a prohibited practice, subjecting the landlord to the 3 month rent penalty, attorney's fees, conversion charges, civil theft charges and possible criminal charges. The landlord's only recourse is to serve the tenant with a proper 7 Day Notice of Non Compliance with Opportunity to Cure and treat this like any other lease and/or law noncompliance.

LAW FS 83.67(5) A landlord of any dwelling unit governed by this part may not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, repair, or replacement; and the landlord may not remove the tenant's personal property from the dwelling unit unless the action is taken after surrender, abandonment, or a lawful eviction. If provided in the rental agreement or a written agreement separate from the rental agreement, upon surrender or abandonment by the tenant, the landlord is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the tenant's personal property; if provided in the rental agreement there must be printed or clearly stamped on such rental agreement a legend in substantially the following form: BY SIGNING THIS RENTAL AGREEMENT THE TENANT AGREES THAT UPON SURRENDER OR ABANDONMENT, AS DEFINED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY. For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).

What are the Penalties for Committing a Prohibited Practice?

The easy answer as mentioned before is 3 months' rent plus attorney's fee and court costs in the event the tenant decided to hire an attorney. Unfortunately the penalty could be much higher, and potentially one prohibited practice could contain multiple violations and increase the penalty. We dealt with a case where a landlord had shut off the electricity, which in turn shut off the well pump and the result was a 6 month rent penalty plus attorney's fees. We have seen numerous cases of self-help cleaning up of the property where the tenant's property was thrown away resulting in thousands of dollars being paid out to the tenant. The electric shut off by the landlord when he or she realizes the tenant has not put the electric in the tenant's name is a common occurrence. Prohibited practices are alive and well. Follow the law and exercise caution. Common sense and instinct have absolutely nothing to do with the law.

LAW FS 83.67 (6) A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months' rent, whichever is greater, and costs, including attorney's fees. Subsequent or repeated violations that are not contemporaneous with the initial violation shall be subject to separate awards of damages. (7) A violation of this section constitutes irreparable harm for the purposes of injunctive relief. (8) The remedies provided by this section are not exclusive and do not preclude the tenant from pursuing any other remedy at law or equity which the tenant may have. The remedies provided by this section shall also apply to a service member prospective tenant who has been discriminated against under subsection (3).

Law Offices of Heist, Weisse & Wolk, P.A.
Phone: 1-800-253-8428 Fax: 1-800-367-9038

Serving Florida's Property Managers with main office in Fort Myers Beach. Available by appointment in Orlando and Clearwater


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