Lawns and Landscaping
By Michael Geo. F. Davis, Attorney at Law

 

One of the most troublesome areas for the single family home rental is yard and landscaping maintenance by the resident. Whether it's merely mowing the grass or maintaining thousands of dollars in professionally installed landscaping, this area is a continuing source of issues.

The lease

Unless the lease states otherwise, all lawn and landscaping maintenance is the landlord's duty. A lease commonly assigns the resident the responsibility to maintain the lawn and/or to maintain the shrubbery and beds. Our firm advises that these standard lease terms include the basic yard maintenance duties, including the obligation to mow, edge and weed the lawn, trim the shrubbery and remove weeds from the beds. These duties are probably the easiest to monitor and are subject to some objective measurement. The landlord can take pictures of the yard to support his claims of noncompliance and follow up with the issuance of a Seven Day Notice of Noncompliance with Opportunity to Cure.

A lease that provides that the resident is responsible for lawn or landscaping maintenance should do so in clear language, identifying and specifying just what maintenance is required. This is particularly true if the lease contemplates that any maintenance will include duties beyond those customarily associated with the standard lawn, shrubbery or bed maintenance. The term "landscaping maintenance" can mean anything and should be explained and itemized. Some maintenance is so expansive that separate addendums are devoted to lawn and landscaping maintenance. At that point the landlord should ask himself if he would be better served with professional lawn care than the attempted micromanagement of the resident's duties.

What's not included

Generally shrubbery trimming is an inexact science, and the shrubs can be trimmed larger or smaller than at occupancy. If the landlord has specific requirements, such as maintaining the shape or size of shrubs, professionals should be employed. A court is unlikely to hold a resident to any level of expertise in shrubbery trimming. Unless the lease specifically requires it, maintaining flower beds may not include replacing flowers and plantings that die. Lawn or shrubbery maintenance is not likely to include tree trimming, large tree limb removal on the ground or roof, or tree removal, whether due to nature (lightning hit, high winds) or structural interference (too close to house, foundation). Lawn or shrubbery maintenance normally doesn't include spraying for diseases, pests or weeds, fertilizing, reseeding, resodding or planting grass plugs. Without specific lease provisions stating otherwise, the resident is not responsible for the special care and watering of a newly sodded lawn or plantings, whether laid or planted before or during occupancy.

Watering

The most contentious area of lawn and landscaping maintenance is watering. With regard to exterior care, probably the single most common and the largest item of damage in single family home rentals is the damage to or loss of the lawn allegedly due to the resident's failure to water. Lawn or shrubbery maintenance would include normal watering. "Normal" watering is the subject of dispute, but a court is likely to find the local jurisdiction's watering restrictions are controlling.

Sprinklers

Sprinklers can be a solution or just another problem. The obligation to maintain the lawn or shrubbery is distinct from the obligation to maintain or fix the sprinkler system, including sprinkler heads, pipe breaks, pumps, wells or timing mechanisms, unless the resident caused the damage. The resident may deny that he caused the damage, claiming the damage predates his occupancy or blaming the landlord's service or repair people's vehicles. Since this may be difficult to disprove, the landlord should ready himself for the ongoing cost of sprinkler repair. The landlord should take the time to thoroughly familiarize the resident with the sprinkler controls. He should assume that the power will "blink" or go completely out several times during the lease term, and that this will require most timers to be reset or the clock time to be adjusted. The perfect watering set-up that exists at move-in may not last a month, unless the resident is knowledgeable enough to maintain the watering schedule.

Periodic inspections and immediate action

There is no substitute for the landlord or property manager visiting the rental. Lawn damage from lack of watering doesn't happen overnight. Regular outside inspections can be done from the public sidewalk or street and don't require any notice to the resident. Even drive-by inspections are better than nothing. At the first sign of lawn damage, the landlord should make an immediate appointment to visit with the resident and find out what is wrong. If the resident won't cooperate, use should be made of the Seven Day Notice of Noncompliance with Opportunity to Cure.

If a resident is not complying with his lawn or landscaping maintenance duties, the landlord should serve a Seven Day Notice of Noncompliance with Opportunity to Cure. It may take a resident longer than seven days to repair a damaged yard. Landlords should be clear and specific, and do so in writing if any extensions are being granted to cure. Dealing in generalities through email or worse, orally, should be avoided. If the terms or deadline for cure become muddled, a court is likely to infer the deadline is the end of lease.

HOAs

A word about home owner associations (HOAs) violation notices is in order. The landlord must determine if a HOA violation notice is in fact accurate and reasonable. The landlord/owner has two independent duties "“ one as an owner to the HOA and the other as the landlord to the resident. The landlord cannot parrot an unreasonable HOA demand to the resident and then blame it on the HOA. Despite the HOA allegation, if the resident is in compliance with the lease (and association rules incorporated into the lease), than the resident has nothing to cure. The landlord has a duty to defend the resident's lease rights, even if that means retaining his own counsel to send a well-worded warning to the HOA.

Litigation

Many judges will consider payment for damage to the premises, including lawns, to be a security deposit issue, and not an eviction issue, such that any legal action before the end of the lease may be considered premature. The amounts involved in damaged lawns or landscaping can be quite large, the type of amount which can easily generate eviction or deposit litigation. The landlord is reminded that in landlord/tenant litigation, the prevailing party collects his attorney's fees from the losing party. Given the proof problems that typically accompany these types of cases, a settlement is often the landlord's best solution. Note that the discussion below of damages should be considered by the landlord in making any deduction from the security deposit for lawn or landscaping damage.

In litigation the landlord is required to prove the condition of the lawn at the outset of the lease, and the condition of the lawn after the lease has terminated. This can best be done with pictures, which will often show that the damage is greater than could be expected with ordinary wear and tear. However, ordinary wear and tear always depends on the circumstances, which includes the location, the weather over the lease term, watering restrictions, etc. What is ordinary wear and tear can vary dramatically. The landlord must be prepared to prove what ordinary wear and tear would be, and not merely rely on his assertion that the damage is greater than ordinary wear and tear.

The cause of the damage proof problem

The biggest proof hurdles are usually establishing the cause of the damage, and that the cause is the result of the resident's intentional act, negligence, or lease noncompliance. Any litigation will most likely require the landlord to produce an expert to testify as to the cause of the lawn damage. Experts are notoriously equivocal when pinning down damage to one cause. Usually they are not able to rule out all the other causes, leaving the door open for the resident's defense. Worse the resident may introduce his own expert with a totally different opinion of why damage occurred to the lawn. The landlord has the burden of proving that the cause was the resident's fault, such that the resident either did something that resulted in the damage or failed to do something that would have prevented the damage. If the cause of the damage is solely attributable to the resident's intentional act, negligence or lease noncompliance, then the resident is liable. If the damage is attributable wholly or partially to a cause beyond the resident's control, such as lack of water caused by water restrictions or bug infestation from an outside source, then the resident will usually prevail. Without clear expert testimony, judges would be unable (and even with expert testimony judges may be unwilling) to allocate damage liability and hold the resident partially liable. Lawns and landscaping die for so many reasons. Even well maintained lawns die despite a homeowner's or resident's best efforts.

Damages

Assuming the court finds the resident liable for the damage, the next issue is the amount of damage. The damages may not be the full replacement costs of resodding the yard or replacing the landscaping. Like all other damage claims, the landlord must use the least expensive, practical method to replace or repair, replace the minimum area required, and recover only his unused cost of the lawn and landscaping. An expert will need to testify as to these matters. Depending on the geographic location, soil and a host of other factors, lawns and landscaping do have an average replacement cycle. If the resident has intentionally or negligently damaged trees resulting in their loss, the resident is liable for waste. The measure of damages for lost trees is the difference in the value of the premises before the resident rented them and after the resident vacated. The landlord will need expert testimony about market value if attempting to prove that the value of the property has declined, which resulted in a loss of future market rent.

Professional lawn care

Given the uphill battle to win a lawn or landscaping damage case, and the pressure to maintain the yard that is often applied by associations, it amazes us that more landlords are not realistic enough to hire professional lawn and landscaping care and include it in the rent. Even something as simple as mowing the grass can be botched by the resident, such as setting the mower blades too low and causing expensive damage. The lawn or landscaping is often a large investment, frequently exceeding the value of appliances in the rental. The advantages of professional lawn maintenance only begin with the certainty that the work is done correctly, professionally and timely. The periodic visits to the property by the service, usually weekly in the summer and biweekly in the winter, can be use to check on other problems like lack of watering. The landlord can request that the service report any problems to him. There is no substitute for the landlord's periodic inspections, but another set of eyes at the property will help.

Lawn and landscaping repair can be quite expensive. Time spent during the application process ascertaining if the resident understands and is capable of the lawn or landscaping maintenance being demanded in the lease, at move-in explaining the maintenance required and equipment available, and periodically inspecting the lawn is time well spent. The best repair is the one that doesn't have to be done.

 

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The Writ of Possession and the Full Unit
by Harry A. Heist, Attorney at Law

 

Executing a Writ of Possession can be a tricky matter. In the best of situations, the evicted resident has removed all their items from the premises, nothing is left in the unit, and the resident is gone. In the worst case, the unit is full of personal property, the resident must be physically removed from the premises by the sheriff's deputy, and the property manager and staff is left with the task of removing all the personal property left behind to the property line.

The Typical Writ of Possession Execution

The typical writ of possession (hereinafter writ) execution involves meeting the deputy sheriff at the premises door with your maintenance tech or locksmith, where you find the unit almost completely empty, with the exception of the usual obvious trash, such as that unwanted couch and bags of garbage. The locks are changed, and your staff proceeds to remove the items to the property line. If you do not have the staff necessary to do this at the time the writ is executed, you leave the unit, and you send a staff member back later to completely remove any trash or apparently unwanted personal belongings from the premises.

The Problem Situations

Unfortunately, property management life is not always so simple, and the property manager faces two less common situations where far more than the usual trash is left behind. The time will come, if it has not already, when the property manager will be meeting the sheriff's deputy at the door only to discover that the resident has failed to remove ANY of the personal items from the premises. It will look like he simply up and left with no attempt whatsoever to remove anything. The resident is nowhere to be found, and the property manager is left with a very uncomfortable feeling regarding the situation. Do you remove all the items and place them on the property line? Certainly if the eviction is proper, this is completely allowed by law, but should it really be done right then and there? The other situation occurs when the panicked resident is present at the time you are executing the writ, begging and pleading with you to give him extra time to get help and a truck so he can retrieve all his belongings late in the day or the next day. The resident acts surprised and claims he had no idea that this was going to happen, which is a likely line indeed. In both situations, extreme care must be taken, as the route you take could have unintended consequences.

The Evicted Resident is not present and the unit is full

If the unit is full of personal items and furniture presumably of value, we strongly recommend that you change the locks and take a breather. It is quite possible that the evicted resident is in jail, is in a hospital, possibly mentally unstable, or just cannot comprehend how the eviction process works in Florida, and went off to work. It is also possible that the resident has paid the rent, is on vacation, and you mistakenly filed the eviction. Anything can and does happen, so it is wise to change the locks and begin the research process. While you may feel that this goes against what you have heard about the law and your rights to take all the items and place them on the property line, we feel it is a best practice to hold off for a bit and begin some research, rather than rush to remove the personal property to the property line. Unless you incorrectly filed the eviction action, you are under no legal obligation to take our recommendations at all; they are simply optional. Go back through your files, and make sure that the eviction was not performed in error, and do whatever it takes to contact the evicted resident.

Contacting the Evicted Resident: Do everything in your power to contact the evicted resident. This includes looking back in the file for email addresses, emergency contact info, cell phone numbers, work numbers; you are seeking any possible hint or information concerning where the resident can be. If calling a work number, there is no need to mention that there is an eviction or an execution of the writ; just stress the urgency of needing to speak with the resident. Here you will see more than ever how maintaining up to date contact information before and during a tenancy is crucial.

Speaking with neighbors: While we always strive to respect the privacy rights of our residents, the eviction once filed becomes public record and can be discussed with the nearby neighbors, at least in a limited context. Often they have some information as to the whereabouts of the resident and some contact information.

If you locate the resident, explain what has occurred, explain how you can by law place all their personal property to the property line, and read on below.

The Evicted Resident has been located OR the Resident is present when the deputy sheriff arrives

There will be situations where the resident is actually present at the property at the exact time the writ is being executed, or once the writ has been executed, you have been able to locate the evicted resident. The usual request by the resident is for more time to get a truck, hire a mover, call a friend or do whatever it takes to get the personal property out of the unit. It is so important to stand strong as a property manager and get on the phone with your attorney, so that no deadly mistakes are made at this crucial juncture. The resident has been evicted. It is over. Unless you enter into a stipulation with the resident and money changes hands, you must be careful that you do not inadvertently give possession back to the evicted resident, possibly kill the eviction and have to start over again. At the same time, it will be helpful to you and the evicted resident if he or she is able to remove all or most of his or her personal property, so that your staff does not have to undertake this task, and the evicted resident does not lose all their worldly possessions. By giving the evicted resident a bit of extra time, you may be able to avoid the evicted resident breaking into the unit, causing serious damages to the premises or committing some sort of bodily harm to you or your staff. Remember that you may have tracked down the evicted resident who for whatever reason could not comprehend or did not know that the eviction was taking place and fails to recognize the consequences of the writ execution. The last thing you need is for an evicted resident to get out or jail or an institution, only to discover that you took all their personal property to the property line and that it is now all gone.

The Extension Dangers

An inexperienced property manager may give in to the evicted resident's wishes and tell them they have a few hours or until the end of the day to retrieve their personal property. The deputy sheriff may even encourage this. This is usually done verbally. For example, you tell the resident in front of the deputy sheriff that he must remove all the personal property by 5 pm, you proceed to change the locks, and the evicted resident is "supposed" to do what they say and contact you to let them in that afternoon. 5 o'clock comes and goes and the evicted resident fails to get their belongings. In the meantime, the evicted resident calls your office, and speaks to a staff member who has no idea what is happening with the eviction. Your maintenance tech then comes the next day to the unit and seeing that nothing was removed proceeds to remove all the items to the property line where they quickly disappear. The evicted resident then returns a few hours later infuriated that his personal property is gone and tells you that your leasing agent "agreed" that he could remove the personal property by noon that day, thus claiming a verbal extension. Did that conversation really occur with the leasing agent? If so, the evicted resident may be able to claim that an agreement was made, and now you are responsible for the loss to the evicted resident's personal property. You see, by giving the evicted resident an extension or the evicted resident successfully claiming an extension was granted, this can result in you becoming a "bailee" of the personal property, and then some responsibility for the safekeeping of the property arises. Did your leasing agent give the evicted resident an additional extension? Now we have a factual dispute which may have to be decided by a judge.

Two common scenarios

1. The deputy sheriff says he will return in 2 hours: Some deputy sheriff's will "hold off' on executing the writ and will return later or even the next day. Basically, you are having the deputy simply "hold off" on execution of the writ. Make sure you have the deputy sheriff write a note to this effect on his paperwork, because after executing ten writs that day, he may forget you or confuse you with another one he handled that morning. In the meantime the evicted resident should and often will remove his or her personal property. The deputy sheriff then returns 2 hours later or the next day and executes the writ, and it is over. Or is it? The evicted resident may not have removed all the personal property. Removal of an accumulation of personal property (sometimes collected over many years) is often a taller task than it seems. If the evicted resident has removed all the personal property and is gone, you are in great shape. The deputy sheriff executes the writ, and the eviction is complete.

2. The deputy sheriff executes the writ. The evicted resident is present or you have contacted him, and you are allowing the evicted resident in to get his belongings, or decide to give the evicted resident an extension of time to remove his personal property:


a. Recognize this is dangerous situation, and avoid it if possible. Only use this method if there is a full unit of belongings, or has belongings that the evicted resident wants to retrieve, you have consulted your attorney, AND

b. Use a proper form we created called the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION

What is the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION?.

This form which can be downloaded here is not a form provided by Florida law. It is simply a form we have created to assist those property managers who wish to give the evicted resident extra time to remove his personal property. This form can only be used AFTER the deputy sheriff has met you at the property and given you full possession of the unit. It is not an agreement, but is rather a notification by you to the evicted resident that you are, as a courtesy, allowing them to retrieve personal property and most importantly, giving the evicted resident a deadline to remove his personal property. We urge you to avoid these situations, and if at all possible, fully remove all personal property left in a unit to the property line, but we also understand there will be situations when this is not possible, practical, or you feel compelled to assist the evicted resident for whatever reason. We strongly urge that you always contact your attorney if you are going to give an evicted resident any extensions, or decide to use the Personal Property Removal Extension Notification. The axiom in property management is that no good deed goes unpunished, and it definitely applies here.

 

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Powers and Limitations of Police Reports
by Brian P. Wolk, Attorney at Law

 

One type of eviction seems to generate the most confusion among property managers. Of course, I am referring to eviction for lease noncompliances other than nonpayment of rent. Why you ask? Evictions for nonpayment of rent are generally not complicated, because whether rent has been paid or not can usually be established fairly easily. Moreover, when the resident claims payment of a disputed amount, the resident has the burden of proof in court. On the other hand, attempting to evict a resident for criminal conduct or noise and disturbance related conduct can be very difficult. The reason these cases cause difficulty even for the most seasoned property manager is that judges require solid proof of bad activity on the part of the resident since rent was last accepted, and the burden of proof in this type of eviction case is on the landlord. If you file your eviction case based on the resident's conduct without strong, rock solid proof, then you risk losing your case. The repercussions of losing your case are enormous. First, the problem resident is allowed to remain on the premises, and often will continue to cause the same types of problems that led to the eviction action; neighboring residents will not be happy. Adding insult to injury, you may be held responsible for the resident's legal fees and costs, an amount which could be quite substantial! Your Regional Manager will be none too pleased with that lousy outcome to your eviction case. A good attorney would counsel his or her client property manager to refrain from filing eviction lawsuits without the necessary proof. One source of information that is often needed to prove these kinds of cases are police reports. This article will serve as a guide to help the diligent property manager utilize police reports to help prove their lease noncompliance eviction actions. We will also point out the many myths and misconceptions that property managers have regarding police reports.

Police reports are inadmissible in court

Jay is the community manager of a mid-sized apartment community. Over the past few months there has been a rash of burglaries. From the start, Jay had suspected Terrence and Lawrence to be the guilty parties, the residents in Apartment 2-B, as these issues began shortly after these residents moved in. Jay called his attorney and asked if he could evict based on the circumstantial evidence. Jay's attorney told him that there was not nearly enough proof to cause a judge to approve an eviction of Terrence and Lawrence. Jay was disappointed, but was determined to remedy the burglary problem plaguing his community. Jay extended the hours that his courtesy officer was employed, and sure enough, one night the courtesy officer noticed Lawrence and Terrence kneeling in front of another resident's window. The courtesy officer alertly called the local police who arrived on the scene. The police then caught the residents in the act of committing a burglary. The next day Jay obtained the report of the courtesy officer. Three days later Jay received his copy of the police report. Among the details in the police report was a notation that the resident was arrested, and the officer signed the report. An eviction was commenced, and Jay was unable to arrange for the courtesy officer or police officer to attend the hearing. Jay is stunned to learn that judge will not even look at the reports of either the courtesy officer or police officer, because they are "hearsay" and therefore inadmissible in court!

Explanation of "hearsay"

Hearsay is defined as an out of court oral or written statement offered to prove the truth of the matter being asserted. Many property managers believe that hearsay simply means that a person told you something, and you are prevented from admitting that statement into evidence at a court hearing. That is true to some extent, unless that person is in court with you. The reason is simple. If the witness cannot be called to the stand and cross-examined by the opposing party, then the statement is inadmissible. It would be unfair if you did not have the ability to cross-examine witnesses. However, there are many other types of evidence that property managers wrongly believe can be admitted in to evidence. For example, you cannot prove that a resident vandalized a unit by showing bills for the repairs to the judge, unless the vendor showed up in court with you and is a witness who could be cross-examined. The same applies to affidavits, whether they are notarized or not, estimates, and signed written witness statements, no matter how many. Whether it is 3 witness statements or 30, it is still hearsay, unless those residents or witnesses who authored the statements show up in court to testify. Likewise, if you have a police report in your possession which indicated the bad conduct on the part your resident, you are not getting that admitted into evidence, unless the officer who authored the report testifies in the court proceeding. It should be noted that the Florida law permits exceptions to the "hearsay" rule, including statements for the purpose of medical diagnosis and treatment, statement of a child abuse victim 11 years of age or less, and business records made at or near the time of the event, by a person with knowledge, kept in the course of normal business activity, provided that it was a regular practice of the business to make such a record. Police reports are not an exception to the "hearsay" rule in Florida. It should also be noted that in cases involving juvenile defendants, officers may be prohibited from testifying, which severely diminishes the value of the police report. Also, if an arrest is made by an undercover officer, typical in drug raids, the arresting officer's name may be blacked out on the report, and you would not be able to have the officer testify in court. They might only testify in a criminal proceeding, not an eviction action, due to the confidential and dangerous nature of their job.

Police reports can and will help you determine if your case is strong.

It is essential that you are not surprised at your eviction hearing as to the facts of your case. A clear and detailed police report will help you determine if indeed the lease was violated. It should give you the relevant facts upon which you are basing your eviction. There should be dates and times and a narrative describing the improper conduct. If you believe that your resident committed a crime on the property, the police report better support that. For example, you may see an arrest take place right on the grounds of your apartment community. Does that mean that a crime took place on apartment community grounds? Of course not! Maybe there was an outstanding warrant, or the crime was committed 50 miles away. Many property managers locate the "Booking" report which is available online in many counties. These reports usually only contain the names, dates and reason for the arrest. They almost never tell you where the crime took place, and often no written narrative or details are provided. If you request a police report from your local law enforcement agency, and they refer you to the "booking" report, tell them you need a police report with a full narrative, or else you will be unable to evict the problem resident. In most cases law enforcement will be sympathetic and will help you obtain the full police report.

Police reports and noise

Jane, against the advice of her attorney, decides to file an eviction based on noise disturbances. She has lined up two residents who have agreed to testify in court. Jane's attorney warned her that residents rarely show up in court to testify against another resident at an eviction hearing. Guess what? The resident witnesses failed to appear at the hearing, and Jane's eviction request was denied by the judge. Had Jane counseled her residents to call the police, she may have obtained a police report which verified the disturbance. Jane could have later issued a subpoena to the officer requiring his attendance at the hearing. Better yet, maybe the officer would have issued a noise citation to the problem resident. An effective property manager stresses to residents complaining of noise or disturbances that it is imperative they call the police.

Police reports and drugs

Miriam is the manager of a large apartment community. Last month, as she was walking into her office, she smelled pot. As she continued walking she saw a man in the breezeway smoking what appeared to be cannabis. Miriam would like to evict. Can she? The answer is no. The above scenario takes place all the time; Miriam should have contacted law enforcement. In this type of situation, the police will confiscate the suspected drug and will test it. You are not going to evict anybody for illegal drug use or possession unless the police confiscate the drug and obtain a positive field test, information that can be verified in the subsequent police report.

 

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Abandonment of the Premises
By Michael Geo. F. Davis, Attorney at Law

 

There are three ways a landlord obtains possession of a rental unit: surrender, abandonment, or eviction. Surrender and eviction with a writ of possession are covered in other articles. This article deals with some aspects of abandonment.

The landlord often finds himself confronted by an empty unit with all, some or none of the resident's personal property remaining. The landlord may have had varying degrees of contact with the resident about his vacating. We will assume that the landlord cannot validly claim that the resident has surrendered the property. The choice left is to file for eviction in order to obtain a writ of possession and move the resident's remaining belongings to the property line OR to consider the rental unit abandoned and dispose of the remaining personal property as the landlord sees fit.

The conclusion

As you read this article, bear in mind the following conclusion. The most important consideration in the landlord's decision to rely on abandonment or file an eviction will usually be the value of the resident's remaining property. The value of the property should be examined at the outset. A good rule of thumb is this: if the total value of the property is $500.00 or more in the landlord's good faith estimation, then the landlord is advised to file eviction and obtain a writ of possession. If the total value of the property is worth less than $500.00, the landlord can continue with his examination of the facts to ascertain whether the rental unit has been abandoned.

Special circumstances

Special circumstances may arise where the lease in question does not have a proper abandoned property clause or there is no lease. If the total value of the property is $500.00 or more in the landlord's good faith estimation, then obtaining a writ of possession becomes an imperative. In these special circumstances, if the total value of the property is less than $500.00 and the landlord strongly believes abandonment of the rental unit has occurred, the landlord will need to follow abandoned property procedures, including sending an abandoned property letter, as described in Florida Statute 715.105.

The statute

Florida Statute 83.59(3)(c) sets forth how abandonment of the rental unit is determined: (c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or Under Florida law, there are two ways abandonment can be established: (1) the landlord has actual knowledge of abandonment, or (2) the landlord can meet all three parts of the following test to create a presumption of abandonment: (a) the rent is late, (b) the resident did not inform the landlord of an intended absence, and (c) the resident is absent form the premises for at least 15 straight days. (Since almost universally the time under a lease for the periodic rental payment is monthly, we shall speak of 15 days as the "period of time equal to one-half the time for periodic rental payments". The same is true for month-to-month tenancies.)

The problem with the first standard, actual knowledge of abandonment, is that the law does not define this phrase. There at least two major problems with the second standard, presumption of abandonment. First, it can be very difficult to establish 15 straight days of no activity in the absence of around the clock camera surveillance. Second, even if you can prove all three elements of the test, the presumption can be overcome in court.

Unfortunately, the Florida courts are not very helpful in clarifying the presumption, its elements or its application. Court decisions are based on the particular facts of each case, with similar cases being decided differently based on only slight changes in the facts. Since the landlord has the writ of possession as the available statutory remedy to remove the resident's personal property with complete immunity, the courts are inclined to give the benefit of the doubt to the residents in contested abandonment cases.

The penalty

The penalty for prematurely locking a resident out is the resident's actual damages with the minimum damages being an amount equal to three months' rent. An additional three-month rent penalty applies if the landlord prematurely disposes of the resident's personal property, even if the personal property involved is apparently of little value. In addition to his actual or the statutory minimum damages, which ever is greater, the resident is entitled to his court costs and attorney's fees. Finally, the landlord may face a claim for civil theft and possibly criminal charges. The downside is so overwhelming that avoiding the cost of a mistake is well worth the writ of possession, if the landlord is ever in doubt about whether abandonment of the rental unit has occurred.

The practical guide "“ the value of the property

Since this area is so bereft of any firm statutory guidance, the landlord must turn to some practical standards to operate in the real world. The best practical guide is the value of the property left behind. Start with the assumption that most people don't abandon valuable items. This is just as obvious and logical to the courts as it is to the person on the street.

If the total value of the property is $500.00 or more, than characterizing the rental unit as abandoned is risky. We often advise to forego the abandonment analysis and do the eviction. It's not that there is never a case of abandonment with property valued over $500.00, only that it is rare and grows rarer as the value of the property increases. If a landlord feels that he has such a rare case, he is advised to consult with his eviction attorney before taking any action to repossess the rental unit and dispose of the remaining personal property. If the landlord ever finds a rental full of furniture, his attorney's advice is absolutely necessary.

If the total value of the property is less than $500.00, the landlord cannot assume that there has been abandonment. The landlord must still proceed with an analysis of the facts to ascertain if he has actual knowledge of abandonment or if he can rely on the presumption. If neither applies, then the landlord must file eviction and obtain the writ of possession, even if the value of the property is minimal. That being the case, we turn to a discussion of the statute.

The statute "“ actual knowledge

As previously indicated there is no statutory definition of "actual knowledge" of abandonment. Neither the attorney nor anyone else can tell the landlord if he has actual knowledge. Either he can claim it or he can't. If he feels comfortable that his contact or correspondence with the resident confirmed that the resident was abandoning the rental unit, including any remaining personal property, then the landlord can claim actual knowledge. The landlord may at some later date have to explain to a judge how he knew the rental was abandoned. This will be much easier to recall if the landlord enters his reasons in the resident's file along with any resident notes, emails, correspondence, telephone messages or other writings helping to establish the landlord's actual knowledge.

The easiest case may be when the resident tells or writes the landlord that he intends to break the lease and leave. The landlord checks the property and the resident and all his possessions are gone. A completely cleared out rental should satisfy a judge that the landlord has actual knowledge. True trash should not be a concern.

It is common for a landlord to talk to the neighbors who will often tell the landlord that they "know" the resident left for good. This is not the landlord's actual knowledge. It is a factor that the landlord can take into consideration.

The statute "“ the presumption

If the landlord doesn't have actual knowledge of abandonment, then he must rely on the presumption established through its three elements: rent owing, no notice of absence and 15 days not seen. As mentioned above, conclusively establishing 15 days of no activity can be almost impossible. Although some landlords have been known to put tape at rental entries to show the requisite lack of activity, for most landlords it's a conclusion drawn as their best guess. It's based on more or less frequent checks of the rental, talking to neighbors and any other information that the landlord can gather indicating that no one has been around. The landlord should enter the facts supporting his presumption in the resident's file.

Any remaining property of a personal nature (clothing, toiletries, personal records, photos, albums) suggests that the resident has not abandoned. Landlords who find any usable decent furniture are encouraged to consult with their attorney, even if the items are less than $500.00 in value. This is often an indication that someone may still be occupying the rental unit, at which point eviction is the most prudent route to retake possession. Even when it is fairly clear that no one is actually living in the unit, the tenant can still tie up the unit by storing personal property within the unit, again making eviction the best option.

The landlord must remember that even if the presumption is established by the landlord, it is only a presumption that is being triggered, and it can be rebutted by the resident in court. The landlord must accept the risk that the resident will return and litigate in an effort to rebut the presumption. This risk may grow smaller as the amount of rent and damages owed grows larger and as the factors supporting abandonment multiply, but it is nevertheless a risk that the landlord must accept in relying on the presumption.

Considerations in abandonment

In addition to value of personal property remaining on the premises, the following are some other factors to consider that may indicate the resident has abandoned. They may assist the landlord in having actual knowledge of abandonment or support the presumption of abandonment. - Resident statements or writings;
- Neighbor statements;
- Responses from emergency contacts; the landlord can only leave a request with the contact for the resident to get in touch with the landlord. He cannot disclose any information to the contact, as such is a breach of the resident's privacy;
- The type and quantity of personal items left behind;
- Utilities cancelled, shut-off or rolled over to the landlord;
- Lack of sleeping arrangements (bed, mattress, sleeping bag);
- No edible food, canned or otherwise;
- Rotting food in the refrigerator or kitchen in general;
- No pet food or water, if the resident had a pet;
- Single family homes: lawn, shrubbery or pool not maintained, when these are the resident's obligations under the lease.

All the facts should be considered and weighed. No one factor can be seen as conclusive. Something may be nothing more than a lease noncompliance; for instance, the fact that the electric is shut off is not conclusive of abandonment. It may only be a lease noncompliance by a financially struggling resident, who remains in possession.

Pictures

A final word on proof: in establishing the condition and value of remaining items or the condition of a rental that gave rise to the landlord's findings of abandonment, pictures are indispensable. In this day and age of cheap digital cameras, there is no reason that digital pictures of the rental and items are not taken and included in the resident's file.

 

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Using the Public Records When Screening
by Harry A. Heist, Attorney at Law

 

If you are currently just obtaining a credit report and performing a criminal background check on your applicants, you may be doing yourself and the owner for whom you manage a serious disservice. You really should consider using a screening company who will perform a comprehensive credit and criminal background check and assist you in the decision making process. Whether you use a screening company or obtain credit and criminal reports on your own, it is important to recognize some of the shortcomings of the information that you are receiving and see how the use of the public records can supplement the information you are currently receiving.

What are the "Public Records"

The public records include the civil, criminal and property ownership information which is gathered and recorded by the Clerk of the Court and the Property Appraiser in a given county, plus those records that the State of Florida maintains, such as the FDLE information on sexual offenders and predators. In addition to civil and criminal court records for a particular county, the public records also include information on ownership of property which is gathered by the tax appraiser's office and contains a wealth of information. The public records may include information on your applicant and information on the current or prior landlord of your applicant, if that individual or company is located in the county in which you are searching. The information you gather from the respective websites maintained by the county may be more current and comprehensive than the information you received from your screening company.

Developing a written company policy

If you feel uncomfortable about a particular applicant, you may be tempted to get on the computer and begin digging into the public records. You may uncover civil or criminal information that you did not get from your screening company, and based on this information, you may decide not to approve the applicant. Sounds good, right? Well, the problem is that unless you check the public records of every applicant in a given similar situation, you may run afoul of fair housing laws, as you may not be treating all the applicants equally. You need to create a written plan and a policy which will determine under what circumstances you will check the public records and how far you will go with this. As part of this decision and plan, you will need to determine what counties you will check, and understand that in some counties, the information is not readily available and would require written requests or payment for information. You don't need to get permission to check the public records of an applicant, because the information is indeed public, but if you find something that appears to be a problem, you need to safely use this information without getting yourself in trouble. What county will you check? The applicant may be from one county, the former or current landlord from another, and your property is in another. Are you going to check the public records of three different counties? We recommend that you start with one county, that being the one where the property is located.

Eviction Records

While most screening companies have an "eviction database", these evictions are usually ones that were filed and disposed of by the court months ago. Most screening companies buy eviction information from each county and then put it into their computer systems. Very few companies actually search the eviction records for your county when they are screening the applicant, and they certainly rarely do this for the entire state, as they literally would have to access 67 different computer systems, and the information that they obtain will only be a similar or the same name. Remember, the public record does not contain Social Security numbers, so if a name comes up, there is usually no way to tell if that person you are reading about is the applicant you are screening. Imagine searching a name like John Smith. Thousands will come up in the database. Is this information useless? We don't think so. We feel that it is worthwhile to search your applicants in the civil court records database of your county. The person who is applying can be under eviction at that very moment, and the screening company most likely will not catch this when you might. This type of applicant is the most dangerous of them all, as they are slipping through the cracks and getting approved before anything shows up on their credit reports or public records information that your screening company has in its system. If you make it a habit to look up an applicant's name in the civil court records, you may indeed find out that the person is currently under eviction or has been evicted before. The court records will show the co-tenant if there is one, and this helps to narrow it down to see if the person applying is the same person in the court records, and the eviction that pops up will show both names. With uncommon names, your job becomes easier. Let's presume you find the name appearing in the court records. Could it be the same person? Possibly, and this gives you the opportunity to ask the applicant about why his name or someone with the same name appears as a current or past eviction, and this gives him a chance to explain or prove to you that it is someone else and not him. Think about this. On any given Wednesday, we may file 100 evictions. Where do you think some of these people are on Saturday? You are showing them a house or an apartment and have no clue. These people end up getting approved and slip right through. People with bad credit do not always make bad residents, but people who have been evicted or are currently under eviction have a high chance of being evicted again. Do you want to be the next victim? The minute an eviction is filed, it will show up in the computer of the clerk of court.

Criminal Records

The criminal and arrest records you obtain from the computer of your county court system will most likely be more up to date than the information of your screening company. In Florida, there often is a delay in the county relaying information to the Department of Corrections or the Florida Department of Law Enforcement, so when you look up a person's name, you are getting fresh, up to date information. The problem again will be similar names, which makes it difficult to verify that it is the same person. Many sheriffs' departments have photos posted online in the arrest reports, so you may be able to look these up to verify that the person who was arrested is the person who is applying. Can you reject an applicant just because of an arrest? Possibly not, as many people are arrested and released with no charges filed, but it gives you a better picture of the applicant if you can look at the criminal information on your computer and ask the applicant further questions. That applicant who was arrested last month for major drug trafficking may be out on bail; your screening company does not have it in its system, but you now have the info. You certainly can deny the applicant if you find that he lied on his application, but without checking the public records, you may never have found out, or you will find out when it is too late. One of the biggest problems you will have to deal with is having a registered sexual offender or predator slip through and accidentally get approved. To help avoid this dilemma, a simple website is available, free and easy to use. Please use it.

Injunctions and Domestic Violence Issues

A check of the public records of the county court may reveal restraining orders and injunctions. These are court orders which prevent a person from contacting or being within a particular number of feet from another person. This is an interesting scenario. It appears that one of your applicants has an injunction against the other, and he is not even allowed to be within 500 feet of the other. How can they be both sitting in your office applying to rent your apartment? Is it possible they have been asked to leave by their current landlord due to constant fighting and destruction of the property, and that they just recently reconciled? If one of them is violating the injunction, that person may actually be in the process of committing a crime right there in the office. While we would never want to deny someone solely because they were a victim of domestic violence, we certainly can look into the situation that we have discovered here and ask some probing questions. Without looking in the public records yourself, there is a high chance that this would be missed by your screening company, especially if the injunction was obtained very recently.

The Foreclosure Story

Every property manager has heard one or more versions of the "foreclosure story". The first version is where the applicant tells you that she was living in a home, and the owner of the home got foreclosed on, forcing her to move. The other story is the applicant was the actual owner of a single family home, was foreclosed on and had to move.

If the applicant was the tenant who "supposedly" had to move, you need to verify this. How would you normally do this? Well, you would call the owner of the home that the applicant is or was renting and verify the information. The problem is that the applicant tells you that the owner just "walked away" from the mortgage and will not answer his phone. No one has seen or heard from the owner. Are you going to take this for an answer, feeling sorry for the poor applicant who most likely stopped paying rent months ago when she got served foreclosure papers, or will you try to verify the story? You MUST verify the story, and all you need to do is look at the public records, put in the owner's name in the civil court records to find the foreclosure, or put in the property address in the tax appraiser's records and begin to dig. If the owner was truly foreclosed upon, you will find that information in the court records. Additionally, ask the applicant for copies of rent checks to see if she has been paying the rent to the owner for the 8 months the foreclosure has taken, or has the applicant taken advantage of the situation and not paid a dime, further hurting the owner? If the applicant stopped paying rent to her prior landlord, what is to stop her from doing it to you?

If the applicant tells you that she was a homeowner and due to unfortunate circumstances, got underwater and ended up being foreclosed upon, you need to use the exact same methods as outlined above and look up the public records. If you can't find the information, ask more questions. Many people who are foreclosed upon decide to stop paying their mortgage and now all of a sudden have $2000 extra each month which they promptly blow on things they don't need. Now they are faced with paying real rent to a real landlord who can really evict them, and they have no money, no savings and possibly no job. Don't let your emotions make you sympathetic and let your guard down.

Conclusion

As you can see, the public records are full of valuable information, and you need to figure out how to use them. Start playing around on your computer. Go to the civil court record section of your county court's website or the sheriff's department site, and find the screen where you input the names. It is usually simple to use, and once you know how to input a name, it becomes easier. Read the instructions carefully. Sometimes they require last names and first names with a space between them, sometimes a comma. Every single courthouse and even different systems, such as criminal and tax records, within the same courthouse can require a different way of inputting a name or an address. Learn the system, take notes, play around and bookmark the site, putting it in your favorite places, or better yet, save it as an icon on your desktop for easy use. Call our office if you need help, as we are in the court systems all day long, checking dockets and doing research which pertains to the eviction cases, and we will be happy to send you the proper website and page links so you don't have to waste your time. All it takes is getting started. The more you play around, the more fun you will have, because invariably you will begin looking up your friends and coworkers and find some very interesting stuff indeed! Best yet, there is no need to make a trip to the courthouse, as it is all online.

 

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Releasing Servicemembers from their Leases
by Brian P. Wolk, Attorney at Law

 

Whether you are realtor property manager for a small duplex, or a property manager for an 800 unit high-rise apartment community, you can expect to field questions from servicemembers and their family members or dependents in regard to their lease obligations. These once obscure questions are becoming more commonplace, especially as our military deploys soldiers where there is conflict or where natural disasters have occurred. The military is also educating like never before our servicemembers or their dependents or family members concerning their legal rights as lease signers. There are also numerous, not for profit military advocacy groups which are disseminating legal information to the rank and file of the military who are renters of residential property. Nobody should argue that this is a bad development. In fact, we want our servicemembers to be protected while renting their homes or apartments. They are under enough stress as it is, and we do not want them distracted while they are in the military, or penalized after leaving the military after serving their country. However, you as a property manager should also be well versed in the law, so you can intelligently discuss the options your military residents have in regard to releasing them from their leases due to their military service. This article will provide legal advice on how to effectively deal with a number of common scenarios involving servicemembers who wish to terminate their leases. If you decide you do not want the hassle of renting to servicemembers, be advised that Florida law specifically prohibits you from discriminating against servicemembers, so you will be opening up your company to potentially significant liability under an unlawful discrimination suit!

Servicemembers Civil Relief Act "SCRA"

The Servicemembers' Civil Relief Act, also known as "SCRA", is a federal law which affords United States military personnel a number of protections in civil lawsuits. Some of these protections allow servicemembers or their family members, or dependents in some cases, to delay or suspend civil liabilities, as well as providing a mechanism for terminating leases, including residential leases. Our March-2010 Newsletter contains information concerning servicemembers and evictions and can be reviewed under the following link: http://evict.com/?page=legnew1003#milres. That article contains a more detailed history of the SCRA and should be read carefully, especially since a property manager could be subject to criminal liability if the eviction provisions of the statute are not followed. SCRA covers all persons on active duty with the uniformed services, including Reserve and National Guard members who are activated to federal active duty. SCRA does not apply to Reserve or National Guard members not on active duty, retired military personnel or troops called to duty under state orders.

Application of SCRA

Three of your residents have requested that you release them from their respective lease obligations. Samantha signed a lease three months ago. Two weeks ago she joined the Army. Her commanding officer has called you to verify this, even though you have not received anything in writing from the resident regarding her military service. Darren has provided you in writing his permanent change of station orders along with a written termination notice pursuant to SCRA. He delivered them in person to you. Larry was an Army reservist who was deployed to Iraq for 75 days and mailed his termination notice and orders to you by certified mail return receipt requested. Which of these residents are allowed to terminate their leases? In Samantha's case, she is obligated to deliver to the landlord, either in person or by certified mail return receipt requested, a written termination notice stating that it is pursuant to SCRA, along with a copy of her military orders. Oral notice is not sufficient. Therefore, Samantha has not yet successfully terminated her lease obligations based upon her oral notice. Darren will be permitted to terminate his lease, because he provided proper notice, and SCRA covers active duty servicemembers who receive permanent change of station orders. Larry is not covered by SCRA. Even though he provided written notice, SCRA covers servicemembers deployed for 90 days or more. That leaves Larry 15 days short under federal law. However, as you will see, Florida law may allow Larry to terminate his lease. Any advance rent or security deposit must also be returned to Darren in conjunction with the early lease termination assuming that rent is current and there are no damages to the premises in excess of reasonable wear and tear. You are also prohibited from holding Darren responsible for the lease balance, or charging Darren any early lease termination liquidated damage amounts if the resident chose that option at lease signing. It is also important to note that the servicemember must be a lease holder for these protections to apply. For example, a wife of a servicemember who is deployed cannot terminate the lease if the servicemember is not listed as a party to the lease. However, you should also keep in mind though the wife would still enjoy certain eviction stay protections under SCRA, so it would still make sense to try and shorten her lease term if you think that payment of the rent will become an issue due to the husband's deployment.

Calculating the lease termination dates under SCRA

For all tenancies under which rent is due monthly, the lease will terminate 30 days after the first date on which the next rent payment is due after the lease termination notice is delivered. So, if the rent is due on the first of the month and the notice is delivered to you in person on July 3, the lease obligations will terminate August 30. For any other tenancy, the lease will terminate on the last day of the month after the month in which the correct notice is provided. Therefore, if rent is due quarterly (a rare tenancy to be sure), and notice was given on July 3, the lease termination date will be August 31.

Florida Statute's treatment of lease termination rights by servicemembers

Bernice, one of your residents, has just emailed you. She is going to provide you with written orders from the Navy along with a 30-day notice that she intends to terminate the lease. Bernice was on active duty when she signed the lease; however, she is no longer on active duty and plans to relocate to a city 41 miles away which is where Bernice lived just prior to her naval active duty. There is five months left on the term of Bernice's lease. Meanwhile, Vic has received permanent change of station orders to move 33 miles from your apartment community. Finally, Michael was released from active military duty due to conduct issues. Michael and Vic would both like to vacate in 30 days, even though both have many months left on their respective leases. Can these residents terminate their leases you wonder? In addition to the federal law protections that military members receive from SCRA, the Florida legislature enacted state law mandated legal protection for servicemembers attempting to terminate their residential rental agreements. These provisions are contained in Florida Statute 83.682 - TERMINATION OF RENTAL AGREEMENT BY A SERVICEMEMBER. First, each and every time a resident invokes termination rights pursuant to this statute, at least 30 days' written notice must be provided to the landlord and must be accompanied by either a copy of the official military orders or written verification signed by the servicemember's commanding officer. Bernice will be allowed to terminate her lease, because a servicemember released from active duty or state active duty after having leased the premises while on active duty or state active duty status is eligible for lease termination rights when the rental premises is 35 miles or more from the servicemember's home of record prior to entering active duty or state active duty. Michael also will be able to terminate his lease early under chapter 83.682, because the protection applies to a servicemember who is prematurely or involuntarily discharged or released from active duty or state active duty. Vic may not be as fortunate, as the protection under Florida law requires the change of station orders to be 35 miles or more from the location of the rental premises. However, Vic is still protected under SCRA, because the federal law does not impose a geographical limit for permanent change of station orders. Servicemembers are also covered under the Florida Statute if the servicemember has leased the property, but prior to taking possession of the rental premises, receives a change of orders to an area that is 35 miles or more from the location of the rental premises. You should also be aware that Florida Statute covers a servicemember who after entering into a rental agreement, receives military orders requiring him to move into governmental quarters, or the servicemember becomes eligible to live in and opts to move into governmental quarters. The Florida Statute also covers servicemembers who receive temporary duty orders, temporary change of station orders, or state active duty orders to an area 35 miles or more from the location of the rental premises, provided such orders are for a period exceeding 60 days. If the servicemember is eligible to break the lease under Florida law, the tenant's rental obligations run for thirty straight days from the time formal notice is provided.

 

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Finder's Fee Arrangements and the Property Manager
By Michael Geo. F. Davis, Attorney at Law

 

Many owners, more so when times are economically challenging, opt to manage their own properties. The inexperienced owner's failure to comply with the law can result not only in the loss of his resident but also considerable financial liability to the resident. The owner may feel "“ rightly or wrongly "“ that his manager, being the licensed professional in the rental transaction, should have provided him with more basic information on the landlord/tenant relationship, or at least provided sources to obtain such information. A disgruntled owner may file a FREC complaint and potentially a legal claim against the manager. This is not to suggest that every owner will pursue administrative or judicial remedies, or that the owners will be successful. However, even if the manager prevails in such a scenario, it would have been better to have avoided the time, hassle and expense.

Aside from the legal risk avoided, a manager can generate some good public relations from the repeat business or referrals from the landlord who feels that his manager left him adequately informed and prepared to protect his valuable rental investment.

The Agreement

The obvious beginning to a successful relationship is the Finder's Fee Only Non-Management Agreement itself. This document will set the level of the owner's expectations. The agreement must clearly outline what the manager's duties are, and perhaps as importantly, what the manager's duties are not. Note that one of the most common initial noncompliances by the tenant is the failure to transfer the utilities out of the owner's name. The agreement should contain language addressing the agent's level of involvement concerning this issue. The agreement should not contain ambiguous or overly broad language that can give rise to unwarranted assumptions. Most importantly, the agreement should unequivocally state when the manager's obligations are fulfilled and the Agreement is completed. It is advisable to obtain the owner's written acknowledgement that the Agreement has been completed to avoid any misunderstandings.

The manager should understand that the safe harbor of a completed agreement is lost when he enters into oral arrangements with the owner to "follow-up on one more thing" or "handle one last snafu". It is incumbent on the manager to have any modifications in writing, because the most innocuous follow-up item can expand expectations and expose the agent to liability. In the era of emails, there is almost no excuse for a confirmation of exactly what additional work is being done.

The leasing documentation

When the agreement is completed, the owner's documents should be sent to him. The owner is the owner of, and has a right to, all information or copies of the file, excepting only the credit report, redacted social security numbers in the application and any manager personal notes. Under the law of agency, since the manager is the agent and the owner is the principal, the owner has a right to the information in the file, including the resident's application. Social security numbers should be redacted from the application to prevent potential liability for misuse. The Fair Credit Reporting Act prevents giving the credit report. The owner is not entitled to any personal notes of the manager, as they are the property of the manager. Returning the owner's documents would be evidence that the parties have concluded their business arrangement.

The information sheet

A manager should now consider sending the owner a standardized information sheet. While the manager may not be under any legal duty to do so, it is worth remembering that the owner who can find answers to his questions on his own will be less inclined to need the manager's assistance. A word of caution is in order: include appropriate disclaimers that the sheet is offered for informational purposes only, is not a complete reference regarding landlord/tenant law, is not offered as legal advice, and that the owner should always consult his own attorney.

Another advantage of the information sheet is that it may now dawn on the owner as to how much more will be involved in managing the rental than simply collecting rent checks. This may give the manager the opening to discuss a continuing management arrangement.

Items to include in the information sheet

Consider including on the sheet: 1) A link to the Florida Residential Landlord/Tenant Act, Part II of Chapter 83 of the Florida Statutes located at The Florida Legislature On-Line Sunshine Note that the On-Line statutes will not reflect any changes by the most recent legislative session.

2) The most common landlord/tenant dispute probably revolves around the security deposit. An owner who fails to comply with FS 83.49 will try to say that the manager did not inform him of the statutory requirements. It is crucial that the manager have solid proof regarding the owner's indication of a Florida bank and that the manager sent the owner the information on complying with FS 83.49. The manager should keep a detailed paper trail. For this reason it is a good idea to attach to the information sheet a copy of FS 83.49 and a Notice of Intention to Impose Claim on Security Deposit.

3) Most owners find that attempting to wade through the Landlord/Tenant Act is a confusing and daunting task. For that reason the landlord may wish to list the websites of one or more attorneys whose area of practice is residential landlord/tenant law, such as the website of our firm, the Law Offices of Heist, Weisse & Davis, P.A., located at www.evict.com.

Websites such as ours contain a wealth of articles on all aspects of landlord/tenant law and numerous forms designed to meet most landlord needs, with the assurance that the forms are current. This is not always the case with forms purchased off the shelf at office supply stores. At our website the owner will have the option to register his email to receive our monthly newsletter. The newsletters provide information on legislative and administrative proposals, on statutory and rule changes, on the focus of current enforcement policies, as well as various legal articles. Among the more common topics to be found in over 175 legal articles are: three day notices, seven day notices, unauthorized occupants, unauthorized pets, abandonment of the premises, noise disturbances, notices from the tenant of an intent to break the lease or withhold rent, bankruptcy notices, timeline for evictions, partial rent payments, accumulation of late charges and utility bills and numerous fair housing issues.

4) The website of the Florida Apartment Association (FAA) and the National Association of Residential Property Managers (NARPM) both contain links to local Florida chapters. The wealth and experience of the members of these associations are invaluable. Many phone calls and emails that would be directed to the managers will be easily answered by association members.

5) Managers should encourage their owners to attend a landlord/tenant seminar including a segment on how to set up a proper eviction action. These seminars are offered by several individuals and entities. Many apartment associations and residential property manager associations offer the classes. They usually vary in length from 2-6 hours, and the cost is quite reasonable. Most classes, such as our firm's seminars, offer form books, which are invaluable for use in preparing the statutorily required legal notices. In evaluating your choices for seminars and their presenters, you may wish to consider if the presenter or its organization would be available to represent you in court in a landlord/tenant lawsuit.

The unrealistic owner

Even after all that the manager has done to prepare the owner, the manager will on occasion meet the owner whose unrealistic self-serving expectations will make it impossible to reach a compromise. At this point it may be advisable for the manager to consult an attorney to discuss a possible FREC complaint and owner lawsuit. The lengths that manager has taken to assist, educate and protect the owner will serve to demonstrate the manager's good faith, professionalism and genuine concern for the welfare of the owner.

 

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Dealing with the Unit Fire Part 1
by Harry A. Heist, Attorney at Law

 

Experiencing a unit fire is inevitable in a property manager's career. Most often in the early morning hours and due to a cooking incident, a unit fire results in chaos, and decisions are often made hastily by the property manager who has little experience with such an event. Since a unit fire is fortunately not an everyday occurrence for the manager, preparation needs to be taken now for the time when a fire will occur. There are a myriad of issues that have to be dealt with under the worst of conditions. After the fire, the next day and days to follow will hold even further surprises and challenges that the manager has absolutely no experience in dealing with. What seems to be the best thing to do at the time, or using common sense, will most likely result in the wrong decision. This article will examine the preliminary problems that arise at the time of a fire and shortly thereafter.

The Night of the Kitchen Fire

Your parking lot is filled with fire trucks, all the residents are outside, and the fire department is using its usual massive amount of water to put out the kitchen fire, cut holes in the walls and break all the windows in the unit. Seems odd, but we will leave that alone. It just seems to be the way it is done. The fire is out, and now you are dealing with one or more units that are uninhabitable due to fire, smoke or water damage, and along with that are the displaced residents who have no idea what is going to happen next. But wait! You have 2 vacant furnished corporate units and a model unit. So what do you do? Nothing, right yet.

Calling your water extraction professional while the fire is burning!

Any reputable water extraction and drying company will have an emergency number and will be out to your property immediately, usually within the hour. This is their job. It is your job to have such a company set up far ahead of time, have their number on speed dial, and take the drying of the affected units as seriously as possible. You cannot let the most heavily destroyed unit overshadow the other units which may have experienced flood damage. The sooner these units are attended to with proper drying and water extraction, the less money you will have to spend later on mold remediation or major replacement of drywall, cabinets and carpeting. More importantly, if you end up experiencing mold growth, or it is discovered later that you have to replace more carpet and drywall, you increase the odds of having legal problems when residents try to withhold rent, claim damages to their personal property or complain of health issues. If your company has tried to take the dangerous shortcut and bought a bunch of blowers, understand that using these blowers could dramatically increase your liability and legal exposure. Blowing around mold spores is not the way you dry out carpets or walls.

The Big Mistake

Your water extraction/drying company is on their way, so that potential problem is addressed. Naturally, you are feeling extreme sympathy for the displaced residents and want to make them as comfortable as possible and as soon as possible. After all, it is all about customer service and resident retention, correct? So you get the keys to the corporate units and the model unit and tell the residents that they can temporarily use the units, units which by the way are nice, clean and filled with beautiful rental furniture. What's the problem here? The problem comes a little later.

Allowing the residents who caused the fire in their unit to occupy a corporate unit or model

Although your residents caused the fire due to their own negligence, you have placed them in your corporate unit. The unit where the fire occurred turns out to be badly damaged; the rehab of the unit will be thousands of dollars, and the residents will NOT be able to move back in any time soon. Then, there becomes a dispute about how the fire started. WHAT? The residents say that the stove was defective. You know that they just had a grease fire that was their fault. However, the Fire Marshal cannot make a proper determination, since the stove has been so badly damaged by the fire, and the firefighters who pulled it from the wall pretty much tore everything up in the process. The residents' family now are comfortable in the corporate unit with the rental furniture and wide screen TV's, and even though you have other vacant units for them to move into, they have decided not to leave. It is now a full week after the fire. You call your attorney, and he tells you that the eviction may be extremely difficult if there is no lease agreement, or if it is unclear what type or arrangement has been created. Without a true landlord/tenant relationship, the Landlord/Tenant Act does not apply, and you cannot file an eviction. Possibly a wrongful detainer action will need to be filed if the residents refuse to vacate.

Allowing other, innocent residents affected to occupy a corporate unit or model

Often, other units have been affected by the fire, smoke and most commonly water that has cascaded down the walls. Again, you decide to help the affected residents out the night of the fire, and you put them in your nice model unit. After all, it will just be a couple days, right? Now comes the fun part. The affected unit below the unit that had the fire was flooded pretty badly, still smells like smoke, and within 3 days mold is already growing on the walls and furniture. The residents refuse to move back in until you replace their furniture, or if they do move to another unit in your community or elsewhere, they want moving expenses and money that they believe is owed, as much of their furniture needs to be replaced and is covered in mold. The fire was not their fault, and they feel that you should do something about it and make them whole. You just rolled into the next month, and the residents are refusing to give you a dime, all the while using your model unit and all the utilities. Again, you call your attorney and he gives you the same story: no lease, and possibly no tenancy under which an eviction is possible.

Avoiding the problem

When there is a fire or any other natural disaster for that matter, the Red Cross is well equipped to deal with the immediate needs of individuals. They are prepared and equipped to assist the person whose unit had the fire and others who were affected by the fire. The Red Cross will give the individuals vouchers for hotels, clothes and food. Hundreds of Red Cross volunteers throughout Florida respond to fires and disaster every single day, and they are the ones to whom you need to leave the task of housing the residents. While this may seem harsh or cruel when you have empty units, models or corporate units just sitting there, please trust us on this. We see this all the time, and we know what we are talking about. While you may deal with a fire once every 5 years, we deal with them every single week, due to the sheer number of property managers we represent. Just resist the temptation and don't house the displaced residents. If for some reason the Red Cross is not there and the residents have absolutely nowhere to go, call a local hotel, pay for a specified number of nights, and make it clear that you will absolutely not pay for one more night. You do not want the resident for whom you are paying to fail to leave the hotel room and have your company stuck with the bill. If the hotel serves food, place reasonable limits on what can be spent. Florida law does NOT require you to house, clothe or feed a displaced resident. It only requires you to abate the rent for the period of time the resident cannot occupy the unit.

You can't control yourself and want to put the resident in the model or corporate unit

We fully understand that some property managers just will insist on putting the residents in their available corporate units or models. It is human nature to want to help out those in their time of need. Is it completely fatal to take this risk? Will things always turn out badly? Actually, chances are that everything will turn out okay, but why take the gamble? The main thing if you do decide to place the residents in the corporate unit or model is to use a Temporary Housing Agreement in this situation. Keep it handy though, because remember, it is 3:00 a.m., and you are not in a condition to have to start up your computers and locate files. The purpose of this form is to create a real legal tenancy with the resident or residents, so that in the event things go bad and they refuse to vacate, you will be able to evict them. Without using the form, it can be very unclear as to what tenancy has actually been created, or it may be that no tenancy has been created. It is up to you how much time you will allow your displaced resident to stay in the unit, and this will depend upon the severity of the fire. At 3:00 a.m., you probably have no accurate information about the extent of the damage, so keep the time limit short; you can always extend later. When you examine this form by clicking here to download, you will see it is simply a miniature, pared down, bare bones lease. Will it create a tenancy? Yes, one that can be terminated by you and will allow for a fairly cut and dry eviction action if necessary. Of course we don't want to have to file an eviction on someone who is occupying a corporate or model unit; therefore, we strongly recommend that even though we have helped you in this situation by providing this form, you will be far better off NOT housing your residents. The Red Cross will find them a place to stay temporarily, or you can take the hotel route we discussed.

What's next?

Ideally in a perfect fantasyland of dragons, wizards, princes and princesses, your resident who caused the fire will admit it was his fault, write you a check for the damage to his unit and the surrounding units, everything will be fixed in a couple days, and everyone will live happily ever after. Keep dreaming, and next month we will examine the post-fire issues, damages and possible actions that must be taken against the resident who had the fire and the residents whose units cannot be quickly repaired. If you are to experience a fire before next month, make sure you call your attorney as soon as you can. Often we find out about our clients having fires by watching the news or reading the newspaper. It is only after they have made a number of mistakes that they call us. It does not have to be this way. There is a better way. Stay tuned for Part 2 next month, when it really gets fun.

 

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The Power of Attorney
by Brian P. Wolk, Attorney at Law

 

One situation which often causes a leasing office to come to a grinding halt occurs when a prospective resident fails to show up to sign the lease, and instead, a person who is not listed on the lease or the application shows up and announces that he has a power of attorney and will sign the lease. At that point, the leasing agent may call the property manager, who in turn may call the regional manager, and still there may be no consensus as to what the proper course of action should be. Issues involving the power of attorney, (hereinafter referred to as a "POA") crop up during a resident's tenancy and even after the term of the lease has expired. Therefore, it is important for property managers to have a basic understanding as to what a POA document is, and how to deal effectively in regard to this area of the law with past, present and future residents along with third parties. This article will help you obtain a basic understanding of the POA process. However, as with other legal issues which property managers must navigate through on a daily basis, it is important that you contact your attorney if there is any doubt on your part as to what you should be doing. Make sure that your attorney is accessible, as POA related issues frequently pop up unexpectedly and require quick direction from your attorney.

What does the legal term "Power of Attorney" mean?

A POA is a legal instrument authorized by law under which one person or entity grants authority to an entity or one or more individuals to make decisions and take actions on the grantor's behalf. The authority that is granted will be contained in the body of the POA. The authority can encompass a wide variety of transactions, known as a General POA, or can be limited to just one use or purpose, known as a Limited POA. The person granting the authority is referred to as the "principal". The individual who is receiving the authority for the conduct or transaction is called the "attorney in fact". In some circumstances a financial institution may be the "attorney in fact". Do not be fooled by this fancy name; if somebody tells you he is an "attorney in fact", that in no way means he is a licensed attorney authorized to practice law. The attorney in fact is considered a fiduciary and is obligated to act responsibly, due to the "trust" bestowed upon him by the principal. The party with whom the attorney in fact conducts a transaction is known as the "third party". That is the role that the property manager or landlord has in these kinds of situations.

Florida Statute 709.08 Durable Power of Attorney

Tim, the property manager, made an appointment to meet with three prospective residents, Lucy, Cindy and Dwayne. Lucy and Cindy appear at Tim's office, but Dwayne is nowhere to be found. Instead, Pablo subsequently arrives at the office and tells Tim that Dwayne gave him a POA. Tim asks Pablo where Dwayne is. Pablo tells Tim that he had invited Dwayne to Pablo's 18th birthday party last week. While at the party, Dwayne decided to give Pablo and Pablo's brother, Tommy, a Durable POA, authorizing them to handle any real estate transactions for Dwayne. Pablo displays the Durable POA document to Tim, and it lists Pablo and Tommy as attorneys in fact. Tim is wondering whether Pablo, at just 18 years of age, is old enough to take part in this process. In fact he is suspicious that the POA arrangement exists in the first place. Tim is also perplexed because there are two people who were given POA rights by Dwayne. Finally, Tim has never heard the term "Durable" used in conjunction with the POA process, and so this is further adding to his confusion. Florida Statute 709.08 sets forth the law regarding Durable POA documents in Florida drafted after October 1, 1995. This statute authorizes the attorney in fact to handle real estate transactions. In fact, it authorizes the attorney in fact to sell the house of the principal! Section 709.08 (1) states that a durable power of attorney is a written power by which a principal designates another as the principal's attorney in fact. The section further adds that with the correct wording, the Durable POA can survive the subsequent incapacity on the part of the principal.

Are the Property Manager's concerns addressed by the Statute?

Tim"˜s concern regarding Pablo's age is addressed by Section 709.08(2) which sets 18 as the minimum age to serve as an attorney in fact. Since Pablo is 18, he is old enough to be to be an attorney in fact. It turns out that Tim was right to have concern over there being two attorneys in fact. Section 709.08 (9) (a) requires that both attorneys in fact concur with respect to any exercise of the Durable POA unless the Durable POA document provides otherwise. Therefore, Tommy would need to sign the lease along with Pablo in order to bind Dwayne to the contractual terms of the lease. As mentioned, Tim is clearly skeptical that Pablo is the attorney in fact. The statute authorizes him to request that the attorney in fact sign a notarized affidavit attesting to (but not limited to) the following: that he is indeed the attorney in fact named in the Durable POA executed by the principal, the location of where the principal is domiciled, that the Durable POA is currently exercisable by the attorney in fact, and to the best of the attorney in fact's knowledge, that the principal is not deceased, and that there has been no revocation of the POA by the principal or any outside judicial authority. If the above affidavit is provided to Tim, and both Pablo and Tommy are willing to sign the lease on behalf of Dwayne, then Tim better think twice before he refuses to allow the attorneys in fact to assert their powers. Section 709.08 (11) states that the unreasonable refusal of a third party to allow an attorney in fact to act pursuant to the power could subject the third party to liability for attorney's fees and costs if the third party is sued and loses in court. That dollar amount could be quiet substantial. It is best to call your attorney if there is any doubt in how you should proceed before refusing to allow the attorney in fact to act. As you know, litigation can be very costly! You should also be aware that Florida recognizes the deployment-contingent POA. Section 709.11 of the Florida Statutes requires a property manager to accept a valid power of attorney that is signed in advance by the principal which takes effect once the principal is deployed by the military.

Common Mistake Scenario #1 (Improperly signed lease)

Marta, the property manager, is under the belief that she is leasing a one bedroom apartment to Chester Turnkey. Chester did not sign the lease. Robert Jones executed the lease on behalf of Chester instead. It turns out Robert was given a Durable POA by Chester. Robert showed the paperwork to Marta, and she sincerely believed the POA was valid. Marta handed the lease to Robert, who "signed" the lease by simply writing Chester's name. Big mistake! The written lease was executed incorrectly. If Chester did move into the apartment, then there may be other legal grounds to evict him. However, if there is some unknown third party that moved into the unit other than Chester, there is no way Chester would be held responsible for the lease, and a more complicated legal procedure than an eviction may be required. Life would have been a whole lot easier for Marta had she made sure that Robert signed the lease properly as displayed below: The principal's name (Chester Turnkey) By__________ Robert Jones Attorney-in-fact

Common Mistake Scenario #2 (Third party access)

It is very common for a property manager to receive paperwork from a resident, who for one reason or another, is located out of town. The resident will grant a POA to a friend to help manage his personal affairs. Why do you need to be careful in this type of situation? Massive liability for the property manager and/or Owner can follow if you allow the attorney in fact into the resident's unit without proper documentation. A good property manager will read the POA that is presented to her with caution, and if need be, check with her attorney. It is very easy for the property manager who is in a hurry to make errors. For example, the POA form is often a pre-printed form which lists a number of different potential powers to be checked off. If the specific power governing disposition of personal property is not checked off, and you let the attorney in fact into the unit, you can be sure that the resident will sue you if anything real or imaginary is missing!

 

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The New CONDO/HOA Laws and the Property Manager
by Harry A. Heist, Attorney at Law

 

Condominium, cooperatives and homeowner's associations, hereinafter "Associations" for this article, have been suffering greatly due to the failure of the unit owners to pay their fees and assessments. These fees and assessments are due monthly, quarterly or yearly according to the Association's documents; they are not optional payments, but rather a legal, contractual obligation of the unit owner. The inability of the Associations to be able to collect these monies owed from the unit owner, many of whom are also not paying their mortgage payments, have caused the unit owners who are indeed paying to sometimes have dramatic increases in the assessments and fees owed to their Association, and some Associations have to make tough choices like cutting pool hours, no longer including cable, no longer including water, no longer manning the access gates, and cutting staff, clubhouse hours and activities, among many other things. In the past, the only recourse an Association had when dealing with a delinquent unit owner was to file a foreclosure action against the unit owner, which would then often trigger a foreclosure action by the bank against the unit owner, and in the end, the Association would frequently get nothing but a bill from their attorney. Things were quite different in the past, when very few unit owners would simply cease paying the dues, fees and assessments. It happened, but not nearly to the extent of what is going on today. Further, when it did happen, the unit owner usually just sold the property, and the amounts owed were usually recouped by the Association at the closing.

To add insult to injury, many of the unit owners today are renting their units out, and although not paying their mortgage, taxes, insurance, assessments or dues, they have been regularly collecting rent from their tenants. Many property managers are completely aware of this and currently are managing properties in this position, while some managers are not aware of the financial situation of the owner, who really has no incentive to disclose this to the property manager. As can be imagined, this has not sat well with the Associations, and on July 1, 2010, Florida law has been amended to now gives Associations the incredible power to demand that the tenant of the delinquent unit owner pay the Association DIRECTLY, bypassing the owner and the property manager, if there is one in place.

The Rent Demand Letter

In order to have the right to collect the rent from the tenant, the Association must make a written demand upon the tenant in the case of a condo association and a co-op. No written demand is necessary by a homeowner's association, but this is probably due to a legislative oversight. Without making a written demand, the homeowner's association would most likely never get paid, so let's assume that a written demand is necessary or at least will be given for homeowner's associations as well. This written demand is for the tenant to pay all "future monetary obligations" related to the Association directly to the Association. Does the demand have to be by certified mail? Does it have to be through the use of a Three Day Notice? The law states that the Association may issue notices as per Florida Statutes 83.56, which means that they must follow the same procedure of either posting, hand delivery or mailing of the Three Day Notice. Suppose the Association does not even know the name of the tenant, or that tenants have switched out since the initial approval process. This is just the beginning of many unanswered questions. If the Association makes the demand, the tenant must comply. DO NOT try to override this by collecting the rent and remitting to the owner, or you could have some liability.

What are "Future Monetary Obligations"?

You may or may not have caught that upon your first read. If this applies only to "future monetary obligations"; what about the past monetary obligations which almost certainly are owed by the unit owner? At this moment in time, we do not know the answer to this burning question, but will assume that the legislative intent was to cover all unpaid monetary obligations, past, present and accruing. What will happen once the past amounts are collected from the tenant? Will the Association continue to make demands upon the tenant? How will we know when the Association is "done"? According to the law, the Association will "release" the tenant as some point, but the law provides no such mechanism or form, so most likely it will be in the form of a letter to either the owner, tenant or both. You as manager will probably be the last to know, which will increase the confusion of who paid what to whom and when.

What is the tenant to do?

According to the law, the tenant now must pay the rent or whatever amount of money the Association demands, not to exceed the rent amount due to the owner, each month, directly to the Association. In reality, the typical tenant will receive a letter and will not know what to do; many will decide not to pay anyone, as is often the case in the event the tenant is served with a lis pendens or a foreclosure lawsuit. Tenants who sense uncertainty or get conflicting demands upon their rent often sit back, pay nothing and try to use the confusion as a successful defense later in an eviction action, or at least live rent free and ride it out. After all, for 6 months they have been paying your company, and now they get notice from an Association or their management company with whom they never had prior contact or knowledge, demanding the rent. Upon demand by the Association, the tenant MUST comply and pay the Association directly, or presumably through the association's management company, if one is being used. If the tenant receives the demand letter and has already paid the rent to the unit owner or the property manager that month, the tenant must provide proof of payment to the Association within 14 days after receiving the demand letter from the Association. This is crucial for the tenant to do. Otherwise, credit will not be received for that payment, and according to the law, the Association can exercise their ultimate power against the tenant, which is an eviction action.

How the rent is applied

The unit owner must give the tenant credit for the money the tenant pays to the Association; thus, the owner cannot evict the tenant for nonpayment if he now receives partial or no rent, as long as the rent is being paid to the Association. It will be up to the owner or property manager to investigate and try to figure this out. The law provides no reporting requirement or communication requirement from the Association to the owner or property manager. A tenant who acts in good faith and pays the Association is immune from any claim by the unit owner. Will the Association demand the full amount of rent or a partial amount? We assume that they will demand the full amount of rent to pay the outstanding amount the unit owner owes until such sums are paid in full. Hopefully once paid, they will properly notify the tenant so the rent is then paid to the owner.

Eviction by the Association

If the Association files an eviction action against the tenant, the cost of this will be further assessed to the unit owner, who will go deeper into debt, as now his tenant will be evicted from the premises. You can be pretty well assured that the Association will not approve the next tenant who may be presented to them. Suppose the Association accepts a partial rent payment from the tenant, which they almost certainly will. How will they then proceed? The tenant receives the demand from the Association, is told to pay the full $800 to them, but tenders a lesser amount of $500. We can almost guarantee that the tenants will begin to pay partial amounts to the Associations, as they often do anyway, and many Associations will continue to accept whatever they can, resulting in a tenant who is partially paying each month and an owner who does not know what to do. This will become a complete mess, as the Association is now becoming a "residential property manager" or "rent collector" by default, with absolutely no responsibility to maintain the unit, make repairs to appliances, and which has no obligations to the tenant as if they were the actual landlord. The new law clearly states that the Association does not have to comply with Florida Statute 83.51, which section provides for the landlord's duties under the Landlord/Tenant Act. A tenant may be legitimately withholding rent because of the failure of the owner to comply with the lease or Florida law. The A/C could be broken, there could be a mold issue, or perhaps an infestation of insects is present, and the Association has no obligation to do a thing, while the tenant has the obligation to continue to directly pay rent to the Association. This could affect an eviction action by the Association if the tenant has legitimate defenses, complicating the eviction, and resulting in higher attorneys fees and costs to the Association, which will be passed onto all the other unit owners, as the delinquent unit owner most likely will not have the money to pay this either. Another interesting issue arises if the tenant fails to pay the Association and the unit owner wants to evict the tenant so he can sell it, but the Association is dragging their feet and decides against filing an eviction because they are low on money. Since the Association is the one who is owed the money, and the owner must provide a credit to the tenant in the amount that the tenant pays, does this mean that the landlord will have a right to file an eviction if the tenant is not paying the Association, or will this exclusively be the right of the Association? Who will coordinate this mess?

Where does the new law leave the Property Manager?

Basically the property manager will be bounced right out of the management situation unless they want to work for free. Not a happy thought. The property manager who has a valid property management agreement with the owner of the property, under which a percentage of the rent paid each month by the tenant is retained in the form of a commission, will have no control over the rent money paid, as the rent money will presumably be paid in part or in full directly to the Association. Under normal circumstances, the manager deducts the commission and remits the balance to the owner, but now the rent completely bypasses the property manager. The property manager now has a choice to either continue managing the property with absolutely no funds coming in and no commission being paid, or decide to drop the owner and terminate the management agreement.

Possible solutions and opportunities

As our firm primarily works for property managers, we are always looking for ways to assist those managers in their duties, enable them to retain accounts and conduct their business profitably. Many managers will choose to discontinue management in situations when the Association makes the demand, and if the manager has the luxury to do so, we recommend that the management agreement is terminated according to its terms, and that the property manager concentrate his or her efforts at finding owners who are solvent enough to own rental property. In most instances, if the owner owes money to the Association, he will also be in foreclosure or close to being into foreclosure. Ideally, the Association should contract with YOU, the current property manager of the managed units, for YOU to collect the rent and remit this rent to the Association. Of course, unless the property management agreement already addresses this issue, which we doubt it does, a separate agreement will need to be signed by the property manager, the owner and a representative of the Association. We cannot forget that the property manager's loyalty lies with the property owner, and it could be construed as improper if the property manager collects the rent from the tenant and remits it to the Association without the express permission of the owner of the property.

Our office has developed a form which we are testing to use which can be signed by the owner, the Association and the property manager which will accomplish the goal of having the property manager collect the rent, deduct customary commissions, and then pay the Association. Since we are in such an early stage of all this, in order to access this form, we would ask that you call our office first and speak with me directly. There is no charge. Simply put, all parties through this agreement authorize the property manager to collect the rent, and depending upon the terms of the agreement, deduct the usual management fees, THEN remit the balance to the Association. This is by far the smartest way for the Association to accomplish their goals of collecting the money; the tenant does not have to be involved in any way, and the property manager is able to continue managing the property, maintaining the property and receiving payment for the all the property management services that they are rendering. It is the proverbial WIN-WIN, but the Association will have no idea that this is even an option unless YOU let them know.

Taking a Proactive Approach

We receive phone calls almost every day by property managers whose tenants already received the rent demand letter from the Association. Rather than wait for the Association to take action and push the you right out of the picture, we urge you to go straight to the Association or the Association's management company that are connected to the units you manage to see if they will allow you to use our agreement, or a variation with which everyone is comfortable, thus allowing you to stay in the loop. The person best situated to collect rent is you, the current property manager, not an Association, attorney for an Association or even the Association's management company.

Many property managers are caught by surprise by all this, as they assumed that their owners were paying the fees and assessments of the Association. It is time to check each and every account right now, and confirm that the owner has been current in his or her payments, and if there is a delinquency, work with the owner immediately by telling the owner about the new law and doing what it takes to get any delinquent amount paid to the Association before it is too late. Click here for a shortened version of the New Condo/HOA law sections.

Next month we will examine this issue in further depth, as demanding rent from the tenant directly is only the beginning of the powers enumerated in the new law. We urge you to call us at 1 800 253 8428 or email us and tell us your experiences in dealing with the new law, as plans are in place for legislative fixes we may be able to get accomplished in 2011.

 

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Retaliatory Nonrenewals
By Michael Geo. F. Davis, Attorney at Law

 

 

Owners may find themselves having rented to the proverbial "resident who is more trouble than he is worth." During the term of the lease, the resident doesn't commit any lease noncompliances that are serious enough to justify a lease termination. He may chronically pay late, but always before the three days on the Three-Day Notice to Pay Rent runs. Aside from late payments, he may have a series of other lease noncompliances: unauthorized occupancy, pet rule breaches, noise disturbances, parking violations, etc. He may never commit the same offense twice, or his acts, while annoying and requiring an inordinate amount of management time, are never grievous enough to justify lease termination. He may have chronic complaints about his neighbors, and after investigation the owner finds them unwarranted. He has or may be in the process of making insurance claims against the owner for personal injuries or for damage to his personal property. He expects the perfect rental, and to that end deluges the owner with a series of repair requests. Some of the repair requests are valid, but many, too many, concern cosmetic issues that are frivolous or border on frivolous.

It is important not to succumb to frustration with this resident. The law and the lease must be followed: his noncompliances noticed, his complaints investigated, his claims processed and his repair requests answered. It may be difficult, but the valid must be sorted from the frivolous, the relevant from the insignificant, and the valid and relevant handled as required by Florida law and the lease. Most important of all, everything should be logged, recorded and documented in the resident's file.

All too often these residents are more familiar with the Landlord/Tenant Act than the owner. These residents have been down this path before. They may copy attorneys on complaints, repair requests and correspondence, or cite fair housing violations or claim retaliatory conduct. The owner can bet that these residents are documenting their files.

The owner, who has had enough, now prepares to non-renew the troublesome resident. Before serving the non-renewal notice, the owner is advised to contact his attorney to discuss the potential for a retaliatory conduct defense by the resident to the non-renewal.

Retaliatory conduct statute

Florida has a statute addressing retaliatory conduct by the owner. FS 83.64 Retaliatory conduct. (1) It is unlawful for a landlord to discriminatorily increase a tenant's rent or decrease services to a tenant, or to bring or threaten to bring an action for possession or other civil action, primarily because the landlord is retaliating against the tenant. In order for the tenant to raise the defense of retaliatory conduct, the tenant must have acted in good faith. Examples of conduct for which the landlord may not retaliate include, but are not limited to, situations where: (a) The tenant has complained to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises; (b) The tenant has organized, encouraged, or participated in a tenants' organization; (c) The tenant has complained to the landlord pursuant to s. 83.56(1); or (d) The tenant is a servicemember who has terminated a rental agreement pursuant to s. 83.682. (2) Evidence of retaliatory conduct may be raised by the tenant as a defense in any action brought against him or her for possession. (3) In any event, this section does not apply if the landlord proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter. (4) "Discrimination" under this section means that a tenant is being treated differently as to the rent charged, the services rendered, or the action being taken by the landlord, which shall be a prerequisite to a finding of retaliatory conduct.

Retaliating

FS 83.64 is much broader than it appears on first reading. The statute forbids retaliating against the resident. What is "retaliating"? The statute indicates it is to discriminatorily 1) increase the resident's rent, 2) decrease services to the resident, or 3) bring or 4) threaten to bring an action for possession or other civil action primarily because of a retaliatory motive.

The statute doesn't explicitly forbid a non-renewal. It might be argued that every non-renewal carries with it the implicit threat of an action for possession. That tenuous argument aside, if the resident won't vacate, the owner's method to enforce the non-renewal is by actually bringing an action for possession, and the statute now clearly can be invoked by the resident as a defense to the action for possession.

The statute enumerates four examples of protected activity by the resident: complaint(s) of code violations, resident organization, resident delivery of a 7-Day Notice to the owner under F.S. 83.56(1) or servicemember termination. Note that these are only examples and are non-inclusive examples. Thus, courts are free to hold that the statute applies to the exercise by the resident of any rights granted under the Landlord/Tenant Act or the exercise of any rights granted the resident under the lease. As a matter of fact, the statute's language doesn't limit its application to only the Landlord/Tenant Act or the lease. Other states with retaliatory conduct statutes have found an eviction action to be retaliatory when it was in response to the resident taking any action that the resident was legally entitled to take. Whether or not a Florida court will apply the statute so broadly remains to be seen.

Given that the statute's purpose is to protect the resident, an owner should be prepared for a court finding that the statute applies to the resident's exercise of the any rights granted by the Florida Landlord/Tenant Act or contained in the lease, such as the right to demand repairs. An eviction based on the non-renewal of the resident for exercising his rights, such as requesting repairs, can be met with the defense of retaliatory conduct.

Owner defenses

Under the statute the owner has several defenses available: his action isn't discriminatory, his action isn't primarily retaliatory, his action is for good cause, and the resident is not acting in good faith.

Not discriminatory

The owner's action isn't discriminatory. "Discrimination" is defined in the statute as treating the resident differently as to rent charged, services rendered or action taken by the owner. Since the statute requires a finding of discrimination by the owner as a "prerequisite" to finding retaliatory conduct, no discrimination in the treatment of the resident means no retaliation. If everyone in the building is being non-renewed for the building's rehab, then there would appear to be no discrimination towards anyone in the building.

Not primarily retaliatory

The owner's action isn't primarily retaliatory. This is a proof issue of the owner's subjective intent. The burden of proof rests on the owner. When there are several reasons for the non-renewal, the owner will have to prove that his primary reason wasn't retaliation. It may be hard to convince a court of an owner's subjective intent without any documentation to support the owner's position. The owner's testimony is likely not going to be enough. If the resident has been a problem resident, the owner should have a file with Seven-Day Notices of Noncompliance or Three-Day Notices to Pay Rent. If the repair requests have been frivolous and unwarranted, the file should contain reports by the owner after investigation or by responding vendors so indicating. This is when the owner's documentation can be crucial.

For good cause

The owner's action is for good cause. The statute specifically sets forth good cause as the owner's absolute defense to the application of the retaliatory conduct statute. The statute lists three examples of good cause: good faith action for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the Landlord/Tenant Act. These are only examples and are non-inclusive examples. Owners are free to raise any other reasons as good cause. Note that the examples are preceded by the requirement that the owner's action is in "good faith." The fact that the statute expressly states that the good faith rent nonpayment eviction (Three-Day Notice to Pay Rent) and the good faith eviction for violation of the rental agreement or of reasonable rules (Seven-Day Notice of Noncompliance) are exempted from the statute's application may be the best reason why owners don't often face a viable retaliatory conduct defense by residents. Judges recognize it as a stalling tactic or an invalid defense, if the owner has properly prepared his case. Judges may be more likely to consider it in the non-renewal case of the troublesome resident.

No good faith

The resident's isn't acting in good faith. The statute requires that in order to raise the defense of retaliatory conduct, the resident must have acted in good faith. Once again this is an examination of subjective intent. This time it is the resident's intent. The owner has the burden of proving the resident's bad faith. Again, without any documentation it will be difficult to prove the resident's intent. Timing may be an indication of the resident's bad faith. The owner may successfully raise a bad faith claim, in the case of a resident, who didn't object to the non-renewal notice when it was served, but first raises the retaliatory conduct defense when the eviction is filed.

The Landlord/Tenant Act has a separate statute (FS 83.44) that imposes the obligation of good faith on the performance or enforcement of every rental agreement and on the every duty under the Residential Tenancies Part of the Landlord/Tenant Act. The drafters of the retaliatory conduct statute (FS 83.64) saw fit to include the duty of good faith twice again in the retaliatory conduct statute "“ applying it to both the owner and the resident. This will not be lost on a court in evaluating the evidence presented by the owner and the resident.

Fair housing

Retaliatory conduct claims are often accompanied with a fair housing claim of discrimination. Many times the evidence will be the same to contest the fair housing discrimination claim and the retaliatory conduct claim. The fair housing aspect of such cases is not treated in this article.

As indicated at the beginning of this article, there are instances in which the owner should be prepared for a retaliatory conduct defense to a non-renewal notice. The best preparation is a candid discussion of all the facts with his attorney before the owner takes any action.

 

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A Mid-Year Review
by Brian P. Wolk, Attorney at Law

 

Property managers are not unlike other professionals in regard to resisting change. Property managers all too often refuse to act in their own self-interest by making proper changes to their leases or policies and procedures. Why you ask? There are many reasons. Some property managers may be locked into the belief that their way is the only correct way. Some managers may also be frightened of the unknown and feel a loss of control due to veering from their usual way of doing business. Sadly, other property managers will not change their bad habits, because they have not experienced problems as a result of their poor decision making. In that case, they believe that making modifications to the way that they conduct business is pointless and a needless interruption of their work environment. This type of backward thinking plays right into the hands of the growing number of consumer law attorneys in Florida who are more than happy to represent your current or past residents in an attempt to nail you with a class action lawsuit, or force you into an expensive, contested eviction or security deposit dispute. Do you think that your Regional Manager will be any less irate when you tell her that your are sorry that the judge awarded ten thousand dollars to the resident and denied your eviction request, but that this is the first time that ever happened? We think not! Because of the difficult economic climate, many management companies lack resources at the home office level to review your leases and policies and procedures, so it is vital that you value and implement the course of action that your attorney recommends to you. The balance of this article will set forth a number of simple steps that you can take to remedy your past property management mistakes.

NO MORE PET ADDENDUMS UNLESS THE RESIDENT HAS A PET.

Vic and Michael have arrived at your office to sign their lease. They have told you they have no pets. Both residents execute the lease and all addendums, including a pet addendum. On the pet addendum, no animals are listed, since Vic and Mike told you they had none, and the pet fee is listed as $0.00. Two weeks later, Suzi, your leasing agent, witnesses Vic and Michael each walking a Cocker Spaniel. You quickly contact your attorney and request a Seven-Day Notice to Cure for the unauthorized pets. You are in disbelief when your attorney tells you that you may have already authorized these pets. Had your lease simply stated that no pets will be allowed on the premises without the written consent of the landlord, then everything would have been fine. How easy is that? Instead, you chose to complicate matters and potentially lost power over Vic and Michael, because you had them sign a pet addendum. In the typical situation when the resident claims that they have no pets at move-in, the property manager does not list any pets on the pet addendum, but nonetheless will have the resident sign the pet addendum. The problem with that approach is that the pet addendum will then go into detail about the conduct of the pet and any related fees. Therefore, you are in effect telling the resident that if you do obtain a pet you need to follow the rules established in the addendum. Thus the addendum may be viewed by a judge as an invitation to later obtain a pet. Worse yet, because there is a zero pet fee amount on the addendum, you will likely have no recourse to charge the residents for the pets.

FAIR HOUSING DOCUMENTATION

Your resident has been nothing but trouble since move-in. He plays his music loud, which is causing an unreasonable disturbance on the premises, and you have repeatedly told him to stop. However, you have not issued any formal notices, such as a Seven Day Notice to Cure. You reach your boiling point and fire off a Notice of Non-renewal, as you believe that under Florida law you do not need a reason to non-renew a tenant. The resident happens to be a member of a protected class. The resident refuses to leave upon the expiration of the lease term, and you send his file to your eviction attorney without mentioning that you have no back up to support your non-renewal. The resident hires an attorney and contests the eviction, alleging that you are discriminating based on the resident's religion. While it is true that the Florida law does not require that the property manager of a conventional property provide a reason for non-renewing a resident, it is still illegal under Florida and federal law to discriminate against a resident based upon religion. In this case, had the property manager served the resident with a number of simple Seven-Day Notices to Cure regarding the noise disturbances, there would have been evidence establishing that the manager had a proper non-discriminatory motive for the non-renewal. As any property manager who has been the subject of a fair housing complaint by HUD or any other governmental agency can attest, this process is long and very time consuming. Your files should tell the investigator exactly why the residents were non-renewed, and the Seven Day Notices should be your storyteller!

DEATH OF THE RESIDENT

When I inform a property manager that her lease does not have proper wording to deal with their deceased resident, and her best course of action to obtain possession is to open up an estate in probate court and then evict the estate, the manager is dumbfounded. Then, when she is told that that if the lease had included one more sentence, the whole process of evicting the estate could have been avoided, the property manager's reaction is usually not one of happiness. Our article on this subject is a must read. Read "Tenant Death and the Obsolete Lease" If your lease contains the following language, and the last remaining resident has died, you may take back possession of the unit after 60 days if the rent is unpaid and dispose of all personal items left inside if you have not received written notification that an estate has been opened in probate court or notified of the name and address of a personal representative. The following is the required lease language: BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY. If the property manager's lease does not contain the above wording and the property manager takes back possession of the unit after 60 days from the date of death and disposes of the personal items, then those who stood to inherit from the former tenant could surface later and bring a civil action for the full value of the personal property disposed of; the agent and the owner could be liable for a substantial amount of money. Without the required lease provision, the property manager could still take back possession of the rental unit, but there would be no safe way to dispose of the remaining personal property, short of opening up an estate in probate court and then putting the personal property to the line when an eviction against the estate was finalized. This process would be time consuming and expensive; you could avoid that mess with one sentence!

NOTICE DEFECTS

Freda, the property manager, has two court hearings tomorrow. The first case involves a security deposit dispute. The resident who skipped out on her lease would like the full return of her security deposit, claiming she never received the security deposit claim letter. Freda believed that under the statute, she was not required to send one out, because the resident vacated prior to the end of the term without providing a forwarding address. The resident has now produced an alleged copy of a letter that was supposedly hand delivered to Freda 14 days prior to the tenant's vacating date, putting her on notice that the resident was vacating early. You get the point. Even if this is not true, how does Freda prove that? Therefore, we advise all of our clients to send out the SODA in all circumstances, even when the resident vacates early and the property manager has not received prior written notice from the resident. The second case that is set for hearing also involves a security deposit dispute. Freda's lease requires residents to give 30 days' notice prior to the end of the term if they are not going to renew or face a one month liquidated damages charge. One particular resident vacated at the end of the term with no notice, and Freda deducted one month's rent from the security deposit. Under Section 83.575, Freda must provide written notice to the resident 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 resident, and must specify the resident's obligations under the notification provision contained in the lease, and the date the rental agreement is terminated. So in this case, Freda better have sent out the reminder letter somewhere between the 31st and 45th day if she hopes to win this case in court. Proper wording for the notice can be found in our article "Requiring Notice Before Lease End"

 

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The New CONDO/HOA Laws and the Property Manager
Part 2

by Harry A. Heist, Attorney at Law

 

In last month's issue we discussed the new and amended laws in Florida Statutes Chapter 718, 719 and 720 giving the condominium and homeowner associations, hereinafter Association(s), the power to demand rent directly from the tenant in the event the owner is delinquent in the payment of the fees or assessments due to the Association. Since the new law went into effect, a large number of tenants have been served with notices or received letters from an Association, the management companies for the Association, or attorney representing the Association or management company making the rent demand.

Many property managers have taken our recommended proactive approach, contacted the Association, its management company and attorney, and are continuing the management of the property, remitting the sums to the Association from the rent paid with the consent of the owner and the Association. Some property managers are now actively checking with the owner and the Association to see if there are any delinquencies, so they can get a jump on the problem before the tenant is served with notice. Upon receiving demand notices from the Association, its management company or attorney, many tenants are simply packing up and leaving, feeling that their right to reside in the unit is at risk. These tenants are sometimes correct to an extent, as the unit owner is also often under foreclosure, and the demand letter is the last straw. The goal is to keep the tenant in the unit, collect the rent money, remit it to the Association, and be able to subtract the management fee from the rent received so the property manager does not lose the account. One important factor to remember is that usually the repair account is replenished by the rents received. If all the rent minus the property manager's commission is going to the Association, the property manager needs to be aware that there may be no funds for repairs. If necessary, this can be addressed in the agreement signed between the owner, property manager and Association, as most unit owners, if they are not paying the Association, will neither have money nor the desire to pay for repairs, thus putting the property manager in an uncomfortable and complicated position.

Current actions being taken by Associations

Completely unrelated to the new law which grants further powers to the Associations, actions already have been and continue to be taken by Associations in terms of ceasing certain amenities or services that have traditionally been provided. We wrote an article on this a while back called Condo/HOA Service Amenity Removals which should be read again, so the property manager fully understands that Associations can make decisions, with the vote of their board of directors, to stop including certain amenities for everyone on the property, not just the delinquent owners and their tenants. These decisions are taken by Associations simply due to the lack of funds being collected from the delinquent unit owners and end up affecting everyone. Items such as cable TV, satellite TV, included water, trash removal, lawn cutting, alarm monitoring, manned access gates, included sewer fees, internet and almost any other amenity offered can and have been taken away from the owner. No longer are some of these items included in the monthly, quarterly, or yearly dues or assessments paid (or not paid) by the unit owner. Hopefully you have modified your leases to prepare for this, as your tenants will expect these services if they are included when they move in, and they will be entitled to these services throughout their tenancy, unless they specifically agree in their lease that these services or amenities may be taken away and become the tenants' responsibility. Our article includes the recommended wording to be placed in your lease agreement, which we recommend doing as soon as possible.

Actions that can be taken against tenants and owners

Florida Statute Chapter 718 gives great powers to Associations that will impact your tenant. Of course, you would have nothing to worry about if your owner is not delinquent, so every effort should be made to make sure your owner is paid up with the Association and continues to make the payments either directly or through you.

The unit owner and the tenant are absolutely required to comply with the declaration of condominium, the rules and regulations and the bylaws. Even if they are not referred to or mentioned in the lease agreement, they are "deemed to be" by the law. A tenant will not successfully be able to say that he or she was not told of a particular rule or regulation in order to be free to violate such rule or regulation. We highly recommend that you provide the tenant with a synopsis of the rules and regulations, and that you continually keep up on any changes that can and do occur throughout the year.

Failure of the tenant to comply with the declaration, rules, regulations and bylaws can result in injunctive relief to the Association and/or an action for damages by the Association. Attorneys who represent Associations are not inexpensive, and this could result in further judgments or liens against the unit owner. The property manager never wants to be placed in a position in which the property management company could be held liable for the actions of the tenant, so working with the Association and quick action is crucial in the event of any noncompliance.

Suspensions of Tenant's Rights

If the unit owner is delinquent for more then 90 days in paying any monetary obligation to the Association, the Association has the right to take action, and this action could affect the tenant. The Association is fully allowed by law to limit, restrict or prohibit the tenant from using common elements, common facilities and any of the Association property until the time the unit owner has fully paid the delinquent monetary obligation. These common elements include, but are not limited to, the pool, hot tubs, tennis courts, clubhouse, barbeque area, and shuffleboard courts. Any common element or amenity with a few exceptions can be made off limits to the tenant and guests of the tenant. If the tenant or guests are seen using them, the owner and the tenant could be subject to fines of up to $100 per violation, up to a current cap of $1000. This is a steep price to pay for a visit to the now off-limits pool by the tenant.

What are the limits on the Association?

While the Association's powers are broad, they are not limitless. The Association cannot prevent the tenant from accessing the unit in any way, change the vehicle or pedestrian gate card or access gate code codes to restrict access, cut off or restrict any utility service, take away parking spaces, or prevent the elevator from being used by changing the elevator key card or code. Will Associations overstep their limitations? They already are, and you must notify your attorney right away, so the attorney for the management company or Association can be contacted. This often solves the problem quickly.

Can the Association suddenly impose these restrictions?

Although some Associations will violate the law, a process must be undertaken by the Association prior to restricting the tenant's right to the common elements and amenities. 14 days' notice must be given to the tenant or unit owner, and the tenant or the unit owner has an opportunity to be heard before a committee of at least three members appointed by the board in the event of a homeowner's association, or in the case of a condominium association, "a committee of other unit owners". In either case, these committee members cannot be officers, directors or employees of the Association, or related to any officers, director or employees. In order for a suspension, restriction or a fine to be valid, the committee must agree by majority vote in the event of a homeowner's association, or in the event of a condominium association, they simply "must agree". The Association must provide written notice of any fine, restriction or suspension of the rights to use the common facilities to the tenant or unit owner by either hand delivery to the unit, which may or may not include posting on the door, or sent by mail to the tenant or unit owner. As you can see, if an Association decides to restrict or suspend your tenant's ability to use a common element, facility or amenity, a process must be undertaken first, and many Associations will attempt to illegally bypass this process.

Where do we go from here?

Each property manager in your office needs to fully understand the laws governing the relationship the Association has with the property owner. Extreme caution should be taken when an agent decides to handle a rental in an Association, as there is increased liability to the management company due to dealing with a potentially or currently delinquent unit owner, or a tenant who is not complying with the declaration, bylaws, rule and regulations of the Association. Managing a unit governed by an Association is not for the faint of heart or inexperienced property manager, and we urge you to always get legal advice when an issue arises. Delinquencies are at their highest rate ever, and any property manager dealing with Associations will eventually have to face these situations

 

 

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The Landlord's Duty to Maintain
By Michael Geo. F. Davis, Attorney at Law

 

The landlord's duty to maintain the rental premises can be found in FS 83.51 of the Florida Residential Landlord and Tenant Act. The statute can be confusing, because it mandates its coverage in broad language and then exempts certain situations and then overrides some exemptions. This is due to Florida's building, housing and health codes moving from local to statewide application. It is important to understand that the statute requires the landlord to comply at all times during the tenancy, not just at the initial occupancy. The landlord is subject to regulatory changes throughout the tenancy. Also, note that the statute distinguishes between a single-family home or duplex and a three or more unit building. In this article I will refer to the landlord of a single family home or duplex as the "single-family" landlord and the landlord of three or more units as the "multi-family" landlord.

FS 83.51(1) building codes

FS 83.51(1) mandates that the landlord comply with all building, housing and health codes (hereafter just "codes" for short) or, in the absence of codes, comply with specific building and structural requirements. The definition of "building, housing and health codes", which can be found in FS 83.43(1), is so broad as to encompass almost anything that applies to housing. Codes include both state and local housing regulations. Since local jurisdictions may have implemented more stringent regulation than is contained in the state codes and may have implemented other housing regulations, local ordinances should always be checked. If a visit from code enforcement, the health inspector, the fire marshal or any of the other myriad regulatory officials results in some infraction being discovered, the appropriate response is to remedy the deficiency diligently and thoroughly. This is important not only to avoid further issues with the regulatory authority, but also because unresolved violations are grounds for the resident to withhold rent or terminate the lease. Further, the resident may use a violation complaint to a government agency as the basis to accuse the landlord of engaging in illegal retaliation, when the landlord attempts to enforce rules, serves lease noncompliance notices (Seven-Day Notices), issues a non-renewal notice, or takes just about any action that the resident feels singles him out for alleged discriminatory treatment.

For further information on resident rent withholding or lease termination, see our article, "The Killer Seven Day Rent Withholding Letter From the Tenant". For further information on constructive eviction or retaliatory conduct, see our articles, "Understanding Constructive and Retaliatory Evictions" and "Retaliatory Non-renewals".

If there are no applicable codes, the statute requires that certain building and structural components be kept in good repair and capable of resisting normal forces and loads. It specifically lists roofs, windows, screens, doors, floors, steps, porches, exterior walls and foundations. It also requires that the plumbing be in reasonable working condition. At one time this provision may have been important in those areas of Florida without codes. Today the Florida Building Code and the health code apply on a statewide basis. This part of the statute would have limited, if any, applicability. However, a judge, who is not familiar with the Florida Building Code, may look at the enumerated items as a guide to who should be responsible for the repair, for instance, of the screens.

A single-family landlord can modify by written lease his obligations to comply with codes. The landlord and resident can agree that the resident will be responsible for compliance with the codes. The multi-family landlord cannot modify his responsibilities for compliance with the codes. Any attempt to do so by the multi-family landlord will be void and unenforceable.

FS 83.51(2): more duties to maintain

FS 83.51(2) contains additional maintenance obligations for the landlord. The landlord is responsible for 1. Extermination of rats, mice, roaches, ants, wood-destroying organisms and bedbugs. The statute enumerates these pests. Note that bedbugs, a recent plague to landlords, are specifically listed.
2. Locks and keys. Since the landlord's duty to maintain continues during the tenancy, damaged locks not the fault of the tenant must be repaired by the landlord.
3. The clean and safe condition of the common areas.
4. Garbage removal and outside receptacles therefore. The landlord must supply outside garbage cans, if appropriate, and, if necessary, a dumpster, trash compactor other proper receptacle. This includes arranging for garbage pick-up in areas without county/municipal garbage service.
5. Functioning facilities for heat during winter, running water and hot water. One can immediately notice the absence of what some would say is the most necessary "functioning facility" of all in Florida "“ air conditioning.

The statute provides that the multi-family landlord and his residents can agree under written leases that the residents are responsible for these maintenance duties. At one time this part of the statute was a benefit to landlords. It is not much benefit today. The majority of codes now adopted in Florida place the responsibility for the duties listed in 1-5 above on the multi-family landlord, and the multi-family landlord is still responsible for these duties if the codes require it of him. For example, if the codes require a landlord to remove garbage, then the codes control. Any agreement by the multi-family landlord and his residents otherwise is void and unenforceable.

The statute exempts the single-family landlord from the duties listed in 1-5 above. Since the single-family landlord is exempt from the 1-5 duties above, and by written lease he can place the responsibility for compliance with codes on the resident, it may appear that the single family landlord can free himself from most, if not all, compliance with codes, maintenance and repair. Our firm advises against attempting to pass all compliance with codes, maintenance and repair responsibilities to the resident. Judges may feel such attempts are unconscionable and rule them unenforceable, and notwithstanding a judge's view, this is often a bad way to protect the landlord's investment.

Charging the resident

Although the multi-family landlord may have to provide and the single-family landlord may choose to provide garbage removal, water, fuel and utilities, they can require the residents to pay the costs and charges for these services.

Eviction defenses

The statute contains another provision that at one time was helpful to landlords, but with the statewide application of the building and health codes, is not much assistance today. The resident may not use the landlord's failure to comply with the maintenance duties listed in 1-5 above as a defense to an eviction. However, the resident may use the landlord's noncompliance with codes as a defense to an eviction. Since most codes overlap the duties listed in 1-5 above, the codes are the resident's defense.

Smoke detectors

The statute requires the single-family landlord to install working smoke detectors at the beginning of occupancy. The statute is silent as to any duty to maintain the detectors during the tenancy, so it appears permissible to require the resident to replace batteries and check that the detectors remain operational. The statute gives guidance on the type of smoke detector required. It gives no guidance on the number or placement of the detectors. Landlords should check with their local fire marshals on these points. Although the statute does not require multi-family landlords to install smoke detectors, the fire codes require such installation or more.

FS 83.51(4) resident fault

The landlord is not liable for maintenance or repairs required by the statute, if the resident, his occupants or guests caused the condition by their negligence, intentional act or noncompliance with the lease or the statutes. While this may seem to shift the cost of maintenance and repairs to the resident when he, his occupants or guests are at fault, it can be difficult to accomplish in practice. The landlord bears the burden of proof in any litigation in which the landlord claims the damage is caused by the resident, in an effort to hold the resident financially responsible for the repairs and as an explanation why the landlord did not undertake the repairs, perhaps in response to the resident's attempt to withhold rent. The landlord must prove that the resident, his occupants or guests caused the damage or that the damage was the result of their lease noncompliance. Sometimes it's easy to prove, and sometimes it's not. The landlord must also provide proof of the maintenance or repair cost. This may require vendors to appear in court to testify as to the cause as well as to the cost.

A landlord may want to evict the resident for failure to reimburse the landlord for a maintenance or repair bill that is alleged to be the resident's responsibility. Many judges consider such costs to be a deposit claim issue to be resolved at the end of the lease, not a possession issue. This is true even if the lease provides that the resident is responsible for paying maintenance or repair costs when billed. The exception to this might be if the current costs are significant, exceed the security deposit by a significant amount, and the landlord can show the judge the landlord's property is being intentionally destroyed or abused. Even then the court outcome is not predictable.

Conclusion

The statute at one time was more beneficial to landlords than it is today. With the advent of statewide codes and the proliferation of local additional codes or more stringent code provisions, the statute's exemptions are of limited value today. The message of the statute today is that compliance with the codes is a serious matter. The failure to comply with codes can be used by the resident as the basis to withhold rent, terminate the lease or to defend against an eviction.

 

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A Midyear Review Part 2
by Brian P. Wolk, Attorney at Law

 

In last month's issue we discussed common mistakes that property managers are continually making with regard to notice defects, pet addendums, fair housing law compliance and treatment of deceased residents. Regrettably, there are many other areas of the law which are still confounding property managers on a daily basis throughout the state of Florida. The saying, "old habits die hard" is applicable here. For sure, there are many things beyond the control of a property manager, including operational expenses and payroll limitations. To the extent that you have an accessible eviction attorney who will gladly respond to your property management questions and educate you without charge, you have more control than you think! You should utilize your attorney's office, follow their advice and read all recommended resources. Do not sell yourself short. If you do not take the time to learn how to adjust and correct misguided property management practices, you will have no one to blame but yourself! Amazingly, most of the habitual mistakes made by property managers are incredibly easy to correct, so that they are not made in the future. Sadly, all too often, certain property managers will not alter their deficient management practices until they are hit with a lawsuit from a current or former resident's attorney.

OBLIGATION TO REPAIR DURING PENDING EVICTION.

Dennis was sent to eviction two weeks ago. Because he is angry about that, Dennis is hosting loud parties just about every night, disturbing your other residents late into the night. Dennis is now on the phone holding for you. According to you assistant manager, Dennis would like heat in his unit, because it is only blowing cold air and it is winter. Your first thought is to tell him to get lost! What should you do? The answer here is very clear under Florida law. Unless Dennis was the cause of the problem due to negligent or intentional acts, and you can prove it, then you absolutely must respond to the resident's repair request. Florida Statute 83.51 clearly requires the landlord to comply with all obligations to maintain the premises during all times during the tenancy. The key word here is "ALL". In general, the landlord must comply with the lease obligations and must maintain the structural components of the premises, and the landlord must be in compliance with all building, housing and health codes, must keep the common areas clean and safe, and all utilities should be working properly. The landlord should also be in compliance with the common law implied warranty of habitability. In single family home cases, some of the repair obligations can be imposed on the resident if that is set forth in the lease. You may not hold the resident hostage by requiring payment before making the repair. If you do so, you have opened the door to allowing the judge to rule for the resident and allow the resident to withhold the rent and use the landlord's noncompliance with the statute and lease a defense to the eviction lawsuit. Examples of standard repair requests made in apartment communities that should be handled include heat and air conditioning, insect problems and plumbing issues.

DID THE RESIDENT SURRENDER POSSESSION?

You arrive at your management offices to start your day. You check your voice mail messages. The first message is from Tom. Tom tells you that both he and the other leaseholder Gerald have left town for good, and that a set of keys have been left on the kitchen counter. You then enter the unit with your maintenance staff member and find some personal items, such as an old chair and an old radio along with a few towels and sheets. You are confident that the residents are gone, and therefore, you change the locks, take back possession and start your prep work, so that you can begin your attempt to lease the unit to new prospects. Four days later, Gerald comes back to the management office with the sheriff. He is demanding to be let in the premises and would like to know where his bedroom furniture, gold jewelry and his valuable coin collection are. Do you know what mistake you made? Of course you do! Tom may have surrendered, but clearly Gerald did not. You should have received keys from both tenants and/or a signed letter from both residents that they have vacated the premises and have no claim to any property left inside the unit. Unless there has been a true surrender of the premises, you are self-destructing by taking back a unit prematurely. Your company will be exposed to a potential lawsuit based upon the prohibited practices and civil theft provisions of the Florida Statutes (both call for a three month rent penalty for each violation) as well as potentially significant damages for loss of property. You should also be careful in the situation when you do receive keys from all residents, but after investigation you realize that there is an unauthorized occupant still living in the unit. Don't be fooled! In that case, there has not been a surrender. These cases can no doubt become very tricky. Always call your attorney if you are not clear as to what course of action you need to take.

TERMINATING THE EMPLOYEE RESIDENT LEASE

Kevin has been employed as a leasing agent for ten years. He is married to Jennifer, and they signed a lease to live on-site. Kevin also signed an employee addendum which requires him to vacate the apartment home within 15 days after his employment is terminated. Yesterday you caught Kevin stealing money orders that were left in the drop box by other residents who were paying the September rent. You fired him after receiving authorization from your HR department. You now call your attorney, because you are at a loss as to your next step. Our office would strongly recommend that you give the resident 15 days to vacate. However, if we find out that Jennifer did not sign the employee addendum along with Kevin, we will tell you that it will be a lost cause to try and evict Kevin. That scenario plays out all too often. The reaction of the property manager is close to shock and disbelief. That is most unfortunate, since it would have taken very little effort to have both residents sign the addendum. It makes sense if you pause for a moment and think about it. Jennifer has possession of her unit pursuant to a mutually executed lease. If she did not sign the employee addendum, then there is no place on the lease or any other document for that matter, where she has agreed to vacate if Kevin's employment is terminated. You should read our article on this subject, The Employee Tenant

RENTAL ASSISTANCE FORMS

Hot off your fax machine are some papers from the offices of the local charity. As you read them, you realize that one of your residents is seeking financial assistance. The charity is asking you to sign some forms that were faxed to you so they can get the ball rolling and send you a check for the resident. As you read through the packet of forms, it looks to you like it is just a casserole of pure nonsense. You sign it anyway, since you believe you are not being harmed, and you want to help your resident. One month passes and no monies are received from the charity, so you send the file over to your attorney for eviction. Soon after, the resident's attorney files a motion to dismiss the eviction based on the terms of the rental assistance agreement. It turn out that the innocent looking forms are actually quite sinister! Many of these forms required to be signed by charitable organizations or government assistance programs place limitations on when you can evict, or in some cases, your ability to evict is completely eliminated. For instance, the form may require you to wait 60 days from the date you receive payment before you can evict, even if there is no guarantee when the payment will be mailed to you. In that scenario, if payment is made 90 days after you sign the agreement, you then would need to wait 60 more days before you could start the eviction. Some judges may even take the position that signing the agreement in the first place indicates your intent to accept payment in the future from the resident, thereby waiving your right to evict until after payment is made. It can get worse though, as some rental assistance agreements state that the payment covers all past due amounts, even if according to your ledger that was not true. You should also make sure to apply your policies regarding these agreements in a uniform fashion to insulate your company from any potential fair housing claims. There are rental assistance forms which contain acceptable language. The key point here is to encourage your residents to use those before they become severely delinquent with their rent obligations. Our article, The Dangers of Rental Assistance Forms is a must read!

 

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Security Deposit Transfer Procedures
by Harry A. Heist, Attorney at Law

 

A security deposit, last month's rent or any other deposit, for the purposes of this article termed "deposit", is sacred. It belongs to the tenant. It must be held by the owner or the property manager in a specific fashion and remains the property of the tenant until such time it may become used to satisfy an obligation legally due to the owner. When and if such time comes, the deposit is taken and the tenant is notified according to the method set out by Florida law. We have written numerous articles on the subject of deposits which can be found here, and we urge you to read each and every article.

In the typical situation, the property manager holds the deposit in her escrow account, which is set aside and designed to hold deposits on behalf of the tenants. When the tenant vacates by skipping, leaving at the natural end of the lease or through eviction, the tenant is sent a Notice of Intention to Impose Claim on Security Deposit, and the tenant either receives a refund of the deposit, or it is retained by the property manager to satisfy the legal and contractual obligations of the tenant to the owner.

This article will address deposit disbursement situations that arise when the law is unclear. The advice contained in the article is to be used with caution, as the Florida Real Estate Commission or a judge could decide to take a different view of the law. Our firm will not be held responsible for any of the information you read in this article, and if you have your own attorney, make sure you get written legal advice regarding the specific factual situation you are dealing with before you take action.

The Easy stuff

If a property sells and there is a new owner, Florida law clearly states that the deposit should be transferred to the new owner. If the new owner does not wish to retain the current property manager, the check is cut, and the deposit funds are transferred into the owner's Florida bank account.

If the new owner hires a licensed property management company, the deposit can be transferred directly into the new property manager's escrow account. Florida law specifically references a new "designated agent". In both cases, no permission is needed from the tenant, but the tenant should be notified within 30 days of the transfer of the name and address of the bank and how the money is being held. If the lease states that the money is being held in an interest bearing account, the deposit should be kept in a similar interest bearing account. If the deposit was originally in a non-interest bearing account, and will be now be in an interest bearing account, no permission from the tenant would be needed, as the tenant under law would receive some or all of the interest, so this only serves to benefit the tenant. Change of legal ownership or change of property management companies does not pose a problem for the property manager. The money is transferred, and the tenant is notified. While there is no requirement under law that the property manager who is transferring the deposit to the new property manager or owner notify the tenant, our recommendation is that this be done. Once you transfer a deposit from your escrow account, you do not want the tenant to think that you are still holding it. The new property manager or new owner may abscond with the funds, so you want to distance yourself from a deposit you are no longer holding by notification.

The "other" situations

Unfortunately, life is just not this easy for a property manager. The manager will encounter the owner in financial distress, foreclosure situations, the disappearing owner, or situations when the owner or manager decides to terminate the management arrangement. It is in these cases when the deposit becomes an issue.

Getting permission from the tenant

If the tenant consents to the transfer of a deposit, you might as well stop reading this article, as you now have no problem at all. We have a Deposit Transfer Addendum, under which the tenant agrees to the transfer of the funds to the current owner, new manager or whomever. Great. Problem solved. Unfortunately, if you ask the tenant for "permission" to transfer the deposit, he will often refuse, fearing some danger to the security of his deposit. Now that he has formally refused permission, it becomes even more dangerous for you to go against the tenant's wishes and transfer the deposit. The mere act of asking the tenant for permission now is causing a red flag to be raised for the tenant. If you transfer the deposit against his express wishes, he will feel you have wronged him or have done something illegal. We can't forget that the deposit belongs to the tenant, at least in the early stages.

Getting the money out of your account

1. You are fired as property manager

The last thing you want as a fired property manager is to be required to hold the deposit in your escrow account. The relationship between you and the owner has been severed. You want the money out of your account. Unfortunately, the law is not so clear in detailing whether you are legally able to transfer the deposit to the current owner who fired you. As detailed above, the law addresses a "new owner" and "new agent", but not the "current owner". This is the big grey area with which we deal, and you either have to keep the escrow money in your escrow account, even though you have been fired, until such time as the owner makes a claim on it, or you decide to transfer the money now to the current owner. We are not sure that legally you can transfer the money "now" to the "current owner" without permission from the tenant, and the law is mysteriously silent. Is this simply a mistake in the law overlooking such a common situation? The fact that the law addresses transfers in the case of ownership changes and agent changes, but not transfers to the current owner, is strange indeed. It is possible that transferring the deposit to the current owner without the necessity of the tenant's permission is perfectly fine, but we cannot be sure.

You would think that we could turn to the Florida Real Estate Commission, (FREC) as it would be the government body potentially prosecuting a case against a licensee for failure to properly handle a deposit. FREC has not provided any guidance on this issue whatsoever, and has actually taken a position that it does not want to deal with deposit disputes in the rental setting. If you ask FREC for an Escrow Disbursement Order (EDO), it will refer you to Florida Statute Section 83.49(3)(d) and basically tell you to do what you want. If we are talking about a deposit on a real estate closing, this is a far different story, and FREC actively and vigorously deals with that type of a deposit.

Action to be taken: If you are fired as a property manager and the current owner will be managing the property, you "probably" can disburse the deposit to the current owner's Florida bank account without violating any FREC rules or violating the law. The tenant can still sue you for a return of the deposit, but as we know, you can be sued for anything anytime. To prevail in court if sued, having a solid paper trail of your actions, especially including your notification to the tenant of the transfer, could help convince a judge that you did nothing incorrectly. Make sure the account is a Florida bank account.

2. You are parting ways with an owner

Due to the large number of foreclosure filings, owners being delinquent in payment of the mortgage, taxes, insurance, HOA fees, condo fees and all the other obligations usually paid for by a solvent owner, including repairs that must be undertaken on a property, the property manager may decide to sever the relationship and no longer work for the current owner. It is probably a prudent move. The "divorce" from the owner is normally not a problem. It is done in writing in accordance with the terms of the property management agreement. The problem lies in the fact that the deposit is in the property manager's account. Just like when the owner fires the property manager, in this situation the manager wants the deposit OUT of the escrow account. The property manager gets no benefit by holding the deposit, waiting for direction from the owner when the tenant vacates. The key is to get it OUT of the property manager's account.

Action to be taken: If you terminated management for the current owner, and the current owner will be managing the property, you "probably" can disburse the deposit to the current owner's Florida bank account without violating Florida law or FREC rules. The tenant can still sue you for a return of the deposit, but as we know, you can be sued for anything anytime anyway. To prevail in court if sued, having a solid paper trail of your actions and your notification to the tenant of the transfer could help convince a judge that you did nothing incorrectly. Make sure the account is a Florida bank account.

The property is in Foreclosure

A foreclosure action filed against the owner is one of the most common issues with which we deal. The owner has failed to pay the mortgage for some time. A lis pendens is first filed and recorded, with the tenant often being notified, and then a foreclosure action is filed against the owner, with the tenant almost always being served with the foreclosure paperwork. This is when the real fun begins. Simply put though, nothing changes. You either continue managing the property as usual, or you terminate your management. This is completely up to you. Many property managers panic when the tenants bring in the foreclosure paperwork they received, but the truth of the matter is that this is simply a lawsuit filed against the owner. The owner may end up doing a short sale, paying up the mortgage, modifying the mortgage or eventually getting fully foreclosed on. The filing of a foreclosure action is NOT the final nail in the coffin as it may appear to so many tenants, owners and property managers.

A. The owner disappears

Sometimes an owner in severe financial distress and foreclosure will simply walk away from the property, stop answering your calls or responding to all forms of contact. You then have to make the decision whether to continue managing for an AWOL owner, or notify the owner that you are terminating management. As before, the problem is not in severing the relationship with the owner, but the fact that you are holding the deposit in escrow. You CANNOT give this deposit to the tenant UNLESS the owner gives you permission, and make sure this permission is in writing. The fact that the owner has walked away does not mean that anyone has agreed that you give the deposit to the tenant, who also may be walking away. Just because you feel the owner is in the wrong does not mean the tenant gets the deposit when the tenant decides to walk.

Action to be taken: If the owner simply walks away from the property and there is an active foreclosure, you "probably" can disburse the deposit to the current owner's Florida bank account without violating any FREC rules. Most likely though, the owner will not have a Florida bank account, and the money should not be sent out of state. If there is an open foreclosure action and you cannot get in contact with the owner after numerous repeated and documented attempts, you probably are safe in cutting the deposit check and placing it into the Court Registry in the foreclosure action, leaving it up to the parties in the foreclosure action to deal with the money. We recommend that you copy the tenant with any pleadings that you file with the court showing the tenant where the money has been deposited, and get help from your attorney.

B. The owner demands the deposit

An owner who is in foreclosure may be in such financial distress that they demand that you send them the deposit. If this occurs, you need to consider the relationship with the owner severed, and if the owner has not fired you in writing, this is where you must terminate the relationship in writing.

Action to be taken: If the owner demands that the deposit be transferred to him, you "probably" can disburse the deposit to the current owner's Florida bank account without violating any FREC rules. Most likely though, the owner will not have a Florida bank account, and again, the money should not be sent out of state. If you are reluctant to do this fearing that the tenant may decide to sue you for the deposit, you probably are safe in placing the deposit check into the Court Registry in the foreclosure action, leaving it up to the parties in the foreclosure action to deal with the money. The money clearly does not belong to the owner at this moment in time, and this may relieve you of some liability, as you are not disbursing any funds to the owner but rather leaving it up the courts and the parties to decide. Again, we recommend that you copy the tenant with any pleadings that you file with the court, showing the tenant where the money has been deposited.

C. The tenant skips citing the foreclosure as a "reason"

Often shortly after receipt of foreclosure documents from the court, a tenant will decide to stop paying rent and eventually "skip", thus breaking the lease agreement. The property manager often sympathizes with the tenant, while the owner in many cases demands that the deposit be forfeited by the tenant due to the lease break. Whether a tenant can legitimately break a lease without any penalty in the event of a foreclosure action is debatable. We feel they cannot, although some courts may disagree. In this situation, the deposit would be transferred to the owner after the usual Notice of Intention to Impose Claim on Security Deposit was sent out and the proper time periods have expired.

D. The property is sold through Short Sale or at the Foreclosure sale

Some properties are sold through the short sale process, where the bank takes a monetary hit in order to unload the property. Other times, the foreclosure goes to the bitter end, and the property is sold on the courthouse steps, and now even sometimes through online foreclosure sales. In the case of a short sale or a foreclosure, the property is simply being sold. There was an old owner and now there is a new owner. The new owner is either the bank or a higher bidder at the foreclosure sale. We read above that Florida law directly addresses how a deposit can be transferred to a "new owner" without a problem.

Action to be taken: If the property is sold through a short sale or through the foreclosure sale, you need to track down the new owner of the property, be it the bank or a higher bidder at the sale, and find out what they wish you to do with the deposit. Until such time as you are sure of the new ownership entity, sit tight and keep the deposit money in your escrow account. The "new owner" may want you to transfer the deposit to him, and if this happens, you do so and notify the tenant just like in any other transfer of the deposit to a new owner in the typical sale process.

The owner owes me money!

The owner in any of the above situations may owe the property manager money. It may be for a commission, a fee or money that the manager unwisely advanced to a vendor on behalf of a deadbeat owner. Can you use the deposit to pay yourself all or part of what is owed? Never. A deposit is the property of the tenant.

Some final words

Deposit issues create much anxiety among property managers and also the real estate broker owning the management company, if they are not one and the same. If an unusual situation arises, relax. Call your attorney for advice, get this advice in writing, and take the recommended course of action. Asking FREC for an EDO, even though it will likely not give you one, can never hurt and only helps to build your file and paper trail for potential litigation in the unlikely event that occurs.

 

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The Tenant's Duty To Maintain
By Michael Geo. F. Davis, Attorney at Law

 

 

We start by recognizing that the rental premises are usually owned by the landlord, except in rare situations, such a sublease. Since it is the landlord's real property, its upkeep is the landlord's duty. In Florida it is the landlord's responsibility to prepare a property for occupancy and make the repairs necessary for habitability. Further, the Florida Residential Landlord/Tenant Act (the "Act") obligates the landlord to certain statutory responsibilities to maintain the rental premises. A landlord often cannot avoid his duty of habitability or his statutory obligations by including a lease provision purporting to waive all repairs, acknowledge habitability or accept possession "as is". Florida statutes specifically prohibit enforcement of lease provisions that attempt to avoid the landlord's duties arising under the Act or otherwise arising under law. However, the landlord's duties may be modified under the rental agreement to varying degrees, depending on the type of rental unit. See our article, "The Landlord's Duty to Maintain", for a detailed discussion of the landlord's duties and the permitted shifting of those duties by written agreement.

In this article we address the duties to maintain that the Act demands from the resident. The resident's duty to maintain the rental premises can be found in FS 83.52. This statutory section's title, "Tenant's Obligation to Maintain the Dwelling Unit", is somewhat misleading. The section might better state that it covers the resident's duty to properly use the rental premises. The statute requires not only the proper physical use of the landlord's property, but also the proper behavior of the resident and his guests on the rental premises. Note that this statutory section does not distinguish between single family homes, duplexes and multifamily rentals. The resident's obligations are the same without regard to the type of rental premises. The resident's failure to comply with the obligations contained in this section can be the basis for the landlord's service of a Seven-Day Notice of Noncompliance with Opportunity to Cure. Continued noncompliance may be cause for service of a Seven-Day Notice of Noncompliance without Opportunity to Cure.

FS 83.52(1) building codes

FS 83.52(1) requires that the resident "comply with all obligations imposed upon tenants by applicable provisions of building, housing and health codes" (hereinafter just "codes" for short). This mirrors the statutory obligation of the landlord in FS 83.51 to comply with codes. The definition of "building, housing and health codes" can be found in FS 83.43(1). It is so broad that it will include almost anything that applies to housing. The resident may have obligations under the statutes, ordinances or regulations of state, county or local jurisdictions.

FS 83.52(2) clean and sanitary

The second subsection of the statute requires the resident to "keep that part of the premises which he or she occupies and uses clean and sanitary." The definition of "premises", which is found in FS 83.43(5), includes not only the resident's apartment, unit or home, but also the building of which it is a part and the common areas for all resident's use. The resident's duty to keep clean and sanitary applies to his residence, and if applicable, to the building and common areas which the resident uses. It requires the resident to avoid littering and to pick up after himself and his occupants and guests. This does not require the resident to clean the building or common areas. That remains the landlord's responsibility as provided in FS 83.51.

FS 83.52(3) garbage

The third subsection requires the resident to "remove from the tenant's dwelling unit all garbage in a clean and sanitary manner." This provision uses the term "dwelling unit" to signify that the resident's duty is to remove the garbage from his apartment, unit or home. It does not require the resident to provide for the pick-up and removal of the garbage from the property. Again, that is the landlord's responsibility as provided in FS 83.51.

FS 83.52(4) plumbing fixtures

The statute's fourth subsection requires the resident to "keep all plumbing fixtures in the dwelling unit or used by the tenant clean and sanitary and in repair." This provision speaks of "plumbing fixtures." It is not responsibility for all the plumbing. While there may be some gray area of what is a fixture, it is clear that this provision limits the resident's obligation. This provision requires not only that the fixtures be kept clean and sanitary, but also that the resident repair them. Assuming the fixtures, such as faucets, sinks, toilet bowls, etc., are in good repair at initial occupancy, the resident must repair the fixtures during the tenancy without regard to the landlord proving that any damage was the result of the resident's intentional act, negligence or lease noncompliance.

FS 83.52(5) facilities and appliances

The fifth subsection states that the resident "use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators." There is no independent duty to repair the facilities or appliances. The resident would only be responsible for the repair of the facilities or appliances if the resident (or his occupant or guests) broke or damaged them by unreasonable use or operation. If the facilities or appliances broke or malfunctioned due to some other reason, for instance due to age, the landlord is responsible for the repair.

FS 83.52(6) damage or removal

Subsection six mandates that the resident "not destroy, deface, damage, impair or remove any part of the premises or property therein belonging to the landlord nor permit any person to do so." This is a broad general prohibition against damage or unauthorized removal of the landlord's property. The landlord can base the resident's liability for repair or replacement of damaged or removed property, as well as for an unauthorized alteration, on this subsection.

Issues

None of the above subsections specifically require the resident to report any needed repairs. The duty to report to prevent further damage can be surmised from the duties in FS 83.52 (1-6), but it is not an explicit obligation. As such, the landlord cannot be assured that a judge will find a duty to report under FS 83.52. The landlord also cannot be assured that a judge will find any duty to control mold in FS 83.52. Mold is mentioned nowhere in the statute. The landlord should not rely on the statute's requirement to use and operate the ventilating and air conditioning in a reasonable manner as an admonishment to control humidity. The landlord should include appropriate lease provisions requiring the resident to report needed repairs and to control humidity/mildew/mold.

That FS 83.52(5) and (6) provide duties for reasonable use and to refrain from damage is clear. The issue faced by landlords is proving that the resident's use or operation was unreasonable, or that the resident caused the damage or removed the property. A court may not assume that because something was in good repair at initial occupancy and it is not now, that the resident is responsible for the damage or repair. The landlord must prove that the damage was the result of the intentional act, negligence or some other noncompliance by the resident or the resident's occupants or guests. Sometimes this can be easy, but sometimes it is difficult to prove that the damage was not the result of a cause unrelated to the resident's use, such as an appliance malfunction.

FS 83.52(7) disturb the neighbors

The final subsection of the statute deals not with the resident's conduct in using property but with the conduct of the resident himself. It requires that the resident to "conduct himself or herself, and require other persons on the premises with his or her consent, to conduct themselves in a manner that does not unreasonably disturb the tenant's neighbors or constitute a breach of the peace." Most landlords would agree that this subsection is the source of many statutory noncompliances by residents. Note one important point in this subsection. It says "unreasonably disturb the tenant's neighbors." Often the difficulty in enforcing this subsection is the unwillingness of neighbors to file complaints or testify in court, because they don't want to get involved, don't have time for court, or simply fear retaliation. Another problem can be proving that the violator was the guest of the resident, if the violator disappears and the resident denies it was his guest. The subsection provides that the resident must "require other persons on the premises with his or her consent" to act properly.

Assuming the resident's obligations

The statute does not contain a provision for shifting the resident's duties under the statute to the landlord by written agreement. In all likelihood that is because the resident's duties to properly and reasonably use the landlord's property are personal to the resident and not transferable. However, if the landlord should intentionally or inadvertently assume an obligation imposed on the resident by any codes, a court may be unwilling to invoke the statute to relieve the landlord of his obligation. Judges recognize the unequal bargaining power often inherent in the landlord/tenant relationship, as well as the fact that many leases are contracts of adhesion (leases with no real negotiations over lease provisions) prepared by the landlord. In these circumstances if the landlord has assumed a resident's statutory obligation, he is probably stuck with it.

Requiring additional resident obligations

The statute does not state that the tenant's obligations are limited exclusively to those enumerated in the statute. If the landlord wishes to expand the resident's obligations for code compliance, maintenance and repair, he should first consult our article, "The Landlord's Duty to Maintain" previously referenced. In brief, many such obligations are not transferable, and an attempt to transfer most or all of such obligations may not only be unwise from an economic/preservation of property standpoint, but may also be held void and unenforceable. However, the landlord can and should supplement the statute with appropriate lease provisions, because the obligations of FS 83.52 are not extensive and contain gaps, some of which are noted above.

Finally, while FS 83.52 places some maintenance, use and conduct obligations upon the resident, the landlord bears the burden of proving statutory noncompliances. This will often require testimony by third parties, such as neighbors or vendors making repairs. Given the difficulties of assembling the necessary proof, the reluctance of third parties to testify, and the possibility that the resident will be less than candid about the cause of the damage or disturbance, it is often better to reach a settlement with the resident for an agreed monetary amount or to agree to a vacating date.

 

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Evictions And Florida Evidence Law
by Brian P. Wolk, Attorney at Law

 

Most property managers have a solid handle as to what their attorney will require before filing an eviction for nonpayment of rent. In that situation, property managers expect to fax over a Three-Day Notice for Nonpayment of rent, the lease and sometimes the payment ledger. Assuming the Three-Day Notice, the lease and the payment ledger present no issues, your attorney will file the case. After a while this routine becomes like clockwork for the property manager. Like all good things, this walk in paradise will come to an end, once the property manager attempts to file an eviction based upon a noncompliance of the lease terms by the resident other then for nonpayment of the rent. In this situation, a good attorney looking to protect the property manager will refuse to file an eviction based upon a Seven Day Notice of Termination of Lease unless all of the statutory requirements have been satisfied, and the attorney is certain that there is enough proof to win in court. Our article TERMINATING A TENANT WITHOUT OPPORTUNITY TO CURE is a must read! Here is the link: http://evict.com/?page=articles_2#termnocure

Let your attorney protect you

You may be wondering about who or what your attorney is protecting you from when your lawyer declines to file an eviction based upon a weak Seven Day Notice case. First and foremost, your attorney with be protecting you from yourself! That is right. A property manager can be his or her own worst enemy by impulsively filing an eviction in the heat of the moment. In those moments, the property manager is so focused on removing the bad tenant that a shutdown occurs when the attorney advises that the case will likely not hold up in court. The seasoned attorney will stand up to the manager and respectfully warn that the landlord could be on the hook for substantial legal fees if the resident contests the case and hires an attorney. Worse yet, you could be wasting valuable time, because the bad resident will still be residing in the unit, creating the same problems and making life very stressful. The solution? Let your attorney do his or her job in these kinds of eviction cases. Your attorney must be given proof of the noncompliance by the resident so that the judge in your eviction matter will rule in your favor. Florida law has some very clear guidelines as to what type of proof can be submitted to the judge during the eviction trial. In a nutshell, your proof is the means by which your lawyer can capture the attention of the judge to rule in your favor. The tricky part is turning your proof into evidence that is reviewed by the judge. If your proof is not considered evidence, then it is of absolutely no value to you. The purpose of this article is to provide property managers with a basic understanding of Florida Evidence law, so that they can successfully litigate their eviction case if and when a court hearing becomes necessary.

The Florida Evidence Code

The Florida Evidence Code was adopted by the Florida Legislature in 1976 and became effective in 1979. The evidentiary provisions are found in Florida Statutes Chapter 90. Many of these provisions have procedural components and therefore have been adopted by the Florida Supreme Court as rules of procedure. The Code in Sections 90.201 through 90.207 authorizes a court to treat something as fact without the need for further proof at trial; this is called judicial notice. The court can take judicial notice of a matter at anytime during your hearing. Usually these are rules of the Florida Supreme Court, acts of the Florida Legislature or Florida Ordinances. The Court can also take judicial notice of facts that are easily ascertainable, such as the fact that July 4, 2010 was a Sunday. Property managers will rarely if ever be lucky enough to have their key evidence judicially noticed at trial. The property manager who is dealing with a resident hosting loud parties will not have the evidence regarding the noise judicially noticed; such a noncompliance will have to be proven by testimony of witnesses or some other form of evidence.

Documentary evidence"

Todd and Lisa live in two separate second floor units at the Lakes of Transylvania apartment complex. Sam is their downstairs neighbor. Sam is often heard yelling while on his cell phone out in the common areas and playing loud music very late at night inside his apartment, along with excessive guest traffic in and out of his apartment. Todd and Lisa complained to the apartment manager, who correctly recommended that they call the police and obtain further proof in regard to Sam's obnoxious conduct. Todd and Lisa also began playing private detective. Todd found an old tape recorder, and when Sam acted up again one night, Todd turned the machine on and recorded the loud music along with Sam yelling profanities. Meanwhile, Lisa snapped a bunch of pictures which showed at least 30 people near the front door of Sam's apartment with some of those 30 people inside the unit.

Laying the Foundation

Fast forward to Sam's eviction trial. In order for the tape recording and photographs to be admitted into evidence, your eviction attorney must lay a foundation through witnesses. All that fancy language means is that your eviction attorney will need to ask Todd and Lisa very specific questions prior to the judge allowing the evidence to be admitted. For example, Todd will be asked questions about how he physically recorded the tape and kept custody of the tape; he will be asked if he ever heard Sam's voice in the past and how many times he has heard it. Then Todd will be asked if heard the recording which has been listed as an exhibit. The attorney would then ask Todd if he recognizes the voice, and finally Todd would be asked whose voice it actually was. Finally, the eviction attorney would request that the judge enter the tape recording into evidence. With regard to Lisa's photographs, she would be asked if she was familiar with the photographs, how the photographs were developed, if and how she was familiar with the area contained in the photographs, and if the photographs accurately depict what Lisa saw on the date and time of the incident. One other key point to remember: if the resident that you are trying to evict attempts to offer impermissible evidence at trial, your eviction attorney needs to object at the hearing, or you will have waived your right to contest that evidence in any appeal. Suppose Todd or Lisa failed appear in court, like so many other resident witnesses who tell a property manager that they will attend court and testify against the resident that you are evicting. There would be hearsay implications if Todd or Lisa failed to attend the eviction hearing, which leads us to our next evidence issue.

WHAT IS HEARSAY?

The hearsay rule in Sections 90.801 through 90.806 of the Florida Statutes prohibit admission of oral or written out of court statements to prove the truth of the matter being asserted, but out of court statements may be admitted for a purpose other than proving the truth of the matter asserted if the statements are relevant to prove a material fact and are not outweighed by any prejudice. Some property managers assume that hearsay means that a person told you something and you are prevented from admitting that statement into evidence at a court hearing. That is not true if that witness is in court with you. The reason is simple. If the witness cannot testify at trial and submit to cross-examination by the opposing party, then the statement is inadmissible. Out of a principle of fairness, the law gives those being accused the right of cross-examination. In the above example, had Todd or Lisa failed to appear in court, the photographs or tape recording would have been inadmissible, since Sam would not have been able to cross-examine Todd or Lisa. This same principle applies to the property manager who takes pictures of a unit after the resident vacates for purpose of proving damages made to the property by the former resident. Take the pictures yourself if feasible, because a third party may not be associated with you three years later. You might not be able to locate that witness, and if you do, he still may not show up in court, even if subpoenaed.

HEARSAY MISCONCEPTIONS?

Perhaps the biggest myth regarding hearsay is that you can use a police report in court as proof without the police officer who signed the report being present. Make no mistake about this: police reports are not an exception to the "hearsay" rule in Florida. The same holds true for repair bills. A representative from the company that undertook the repair must appear in court to testify. The same holds true for written statements from residents. The property manager must understand that obtaining signed, notarized letters from your residents loaded with complaints against another resident will not make their way into evidence. Load those complaining residents into your van and take them to court, because they will be required to testify, or you can kiss your eviction goodbye"¦unless you were savvy enough to obtain a police report and subpoena the officer! Florida law permits some exceptions to the "hearsay" rule, which include statements for the purpose of medical diagnosis and treatment, statement of a child abuse victim 11 years of age or less, and business records made at or near the time of the event, by a person with knowledge, kept in the course of normal business activity, provided that it was a regular practice of the business to make such a record.

 

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Florida "Use Tax" on Internet and Out of State Purchases
by Harry A. Heist, Attorney at Law

 

Many companies, including our law firm, purchase goods through the internet or by phone from out of state companies. In our case, it may be computer equipment, video recording equipment, office supplies, electronics, marketing materials, evict.com T-Shirts, paper or the myriad items a firm of our size uses throughout the year in conducting business. These purchases are usually delivered by UPS, FedEx, the USPS and other common carriers. The reason for these purchases is simple. We try to save money so we can pass these savings along to our clients, make more money, and not have to raise our rates. When we can buy locally and support Florida businesses, we do, but money is money, and if a product is less expensive and equivalent in value, we will buy from an out of state company. We are not alone. Millions of Floridians, individuals and businesses buy products through the internet.

Sales Tax

You may have noticed that most out of state purchases do not include sales tax. Unless a company has an agreement with the Department of Revenue (DOR) or otherwise operates and is registered in Florida, the out of state company does not charge you Florida sales tax or sales tax from its respective state, as it is not required to do so. This amounts to a nice savings indeed. An apartment community may purchase thousands of dollars in supplies or equipment from an out of state company. There may be a great deal on patio furniture or fitness room equipment from a company you found on the internet, and you may be able to save a substantial amount of money. You may even attend a trade show where a national supplier who does not have a location in Florida is exhibiting, and one of its selling points is that if you purchase from it, not only are you getting a significantly reduced price, but since the items are coming from its North Carolina location, there is no sales tax, and you will thus save another 6% or more. What a great deal! If you can avoid legally paying a tax, why not? Do not the Florida coffers get enough from us already? Not so fast! You may be doing something completely illegal by not paying the taxes, even though you were not charged the taxes, and NOW, the DOR is beginning to crack down.

Do you have to pay taxes on these internet or out of state purchases?

The purchaser of goods from Florida or any other state MUST pay tax on these purchases, and this means YOU. The tax is not called a sales tax, but rather is called a "use" tax. This use tax is a minimum of 6% and may be more in certain counties or municipalities that have an additional "local option tax" or "discretionary sales surtax". In fact, 59 of Florida's 67 counties have a sales tax that exceeds 6%. Here are some examples below.

1. Mountain View Apartments in Collier County purchases a $20,000 set of patio furniture from Fred's Patio World in South Carolina. There is a shipping charge but no sales tax. Result: Mountain View Apartments now owes the DOR a 6% use tax totaling $1200 and MUST report the purchase and pay the use tax.

2. XYZ Property Management Company in Orange County needs a new computer router and while looking on Amazon.com finds a great deal on a Linksys router for $600 from Computer World in Chicago. The purchase is made online, and the only extra charge is shipping. Result: XYZ Property management Company now owes the DOR a 7% use tax totaling $42 and MUST report the purchase and pay the use tax.

Why is this use tax just appearing now?

The use tax has been in place for years, but most business and individuals are completely unaware of it. Until recently, the DOR did not vigorously pursue the collection or this tax, but the party is OVER. Thousand of businesses like yours and ours were recently sent letters offering Tax Amnesty (which expired on September 30) whereby if you went back 3 years and calculated all that you spent on these out of state purchases and "came clean" on the taxes, there would be no penalty, and only half of the interest on the unpaid amounts were due. Did you throw that letter out when it came in? The Florida DOR collected millions of dollars in use tax in 2010, and they are sure to continue to enforce the tax laws now more than ever. State and county governments are doing everything possible to collect the taxes that already are on the books. For years, state governments have been losing out on billions of dollars due to the massive increase in internet and out of state purchases, and they are not taking it anymore. That company you may be buying products from may receive subpoenas or requests for information from the Florida DOR, and through that information, they WILL find you out. You can run, but you cannot hide.

Are ALL out of state purchases subject to the use tax?

The short answer is NO, but MOST are. Let's say you purchased a Dell computer online. If you look at the bill, you will see that Dell charges you a sales tax, even though you bought it online and it was shipped from Nevada. You see, Dell is registered with Florida or otherwise does actual business in Florida through the use of stores or distribution centers. Therefore, Dell goes ahead and collects and remits the sales tax at the time of sale, and you now owe no further sales tax or use tax. Many other large companies are in this position, so now you need to begin to look at your invoices carefully to see if you have in fact paid the sales tax, as you certainly would not want to pay a use tax that is now not owed. Some, but very few indeed, out of state companies charge you the sales tax that is due in their state when you make a purchase. If that sales tax is less than 6%, you will need to pay the difference in the sales tax paid and the minimum Florida 6% (more in some counties) tax to the DOR. Example the supply costs $100, you paid the 4% Michigan sales tax at the time of purchase, you now owe at least 2% use tax to the DOR.

How to begin paying the use tax

There is no better time to start properly paying the taxes that you legitimately owe right now. To do it right, you will need to go back 3 years and look at all your internet or out of state purchases and determine whether you were charged sales tax or not. If you were not, you simply obtain the forms from the DOR, complete them, calculate your interest and penalties, and pay the tax. Once done, they must be paid each quarter and you can rest assured that once you begin paying the use taxes, the DOR will be on top of you to collect them in the future, so do not forget to file or have your accountant file for you.

Is this something to worry about?

We feel that paying use taxes is your legal obligation under Florida law, whether we or you like it or not. Evading taxes can result in substantial fines, interest and penalties. If you have made significant purchases and realize you owe use taxes, you may be able to get the interest reduced or penalties waived by the DOR, so we highly recommend you contact your accountant and discuss this issue getting professional tax guidance. The collection efforts of the DOR are not going to stop, but rather they will be on the rise. The DOR has provided online interest calculators if you want to try to do this yourself, and you can register with the DOR online and pay online, with the taxes, penalties and interest, if any due, automatically deducted from the bank account you provide them. If you do not wish to file online, simply download the Out of State Purchase Return, which is form DR-15 MO, fill it out and send it in.

Our necessary disclaimer!

We are not tax professionals or CPA's, but ignorance is not always bliss when it comes to tax obligations. We highly recommend you speak to your company's accountant right away, copy this article and send it to your corporate attorney, CFO or broker. Our firm used Noack Mitchell & Company Certified Public Accountants, whose phone number is (239) 936-6144, found on the web at www.noackmitchellcpa.com.

 

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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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