Legal Line Articles

These Q & A articles are written by Attorneys Harry Heist and David Weisse for and appear courtesy of and with the permission of the Apartment Association of Greater Orlando. These articles are published monthly in the Key Magazine, the official publication of the Apartment Association of Greater Orlando.

Dear Harry,
One of our properties in another state was inspected by people from the EPA, and the EPA is threatening fines and other penalties because the property failed to give out a "Lead Based Paint" disclosure to the residents. The property was fairly old, and ironically there was no lead based paint on the property at all. I currently manage a property here in Florida, which was built in the early 1970's. The current owner has owned the property since it was built. I had my maintenance person purchase a lead based paint tester at a local home improvement warehouse, and she said all the tests came back negative. Do I have anything to be concerned about here?
SIGNED: "Concerned in Clermont"

Dear Concerned,
According to the Environmental Protection Agency, the EPA, you are required to give all your residents a Lead Based Paint Disclosure AND booklet "˜Protect Your Family From Lead In Your Home" if the property was built prior to 1978. This came out of the passage of the Residential Lead Based Paint Hazard Reduction Act, also known as Title "X", which contains their residential lead based paint disclosure program.  We recommend that they are given this at the time of application when you present them with your full sample lease package, and do not wait until the time when they actually sign the lease. Failure to provide the resident with the disclosure and the booklet can result in serious fines and penalties. While the lead based paint disclosure laws have been in place for quite some time, the EPA was slow to get around to inspecting to see if in fact the housing providers were complying with the law. Recently a number of apartment communities were found in violation and had to pay a substantial amount of money, all for neglecting to do a simple thing like providing the resident with the disclosure and booklet. Whether or not lead is present or anyone was injured as a result of the lead is completely irrelevant. It is the act of disclosure that is important here. The disclosure and the booklet text can be found by going to the EPA's website which is www.EPA.gov or simply calling your attorney. We strongly recommend that your lease has a clause whereby the resident acknowledges that they have received the Disclosure and the booklet from you. It is just a matter of time before the EPA inspector comes knocking at your door and demands to see all your leases and records.

Dear Harry,
Due to all the press coverage regarding the supposed dangers of second hand smoke, a number of residents have now started complaining that they can smell the smoke coming from their neighbors' apartments and want us to do something about it.  It is virtually impossible for us to deal with this. Sometimes the smoke drifts up from the lanai below, over from the lanai in the next apartment, under the outside doors or just seems to creep into the apartment. Nothing is airtight in our buildings. Just last week we received a complaint from a resident stating that she can smell the smoke from the next-door neighbor who sits in a folding chair at night in the breezeway and smokes, as his wife forbids him from smoking in the apartment. It seems to be a no win situation, and we are afraid that if we do not do something, possibly we could get sued. Can we prohibit smoking or do anything to cut down on this problem?
SIGNED: "Smoking in Sanford"

Dear Smoking,
The are no laws which prohibit you from creating no smoking apartments, buildings, areas or limiting smoking to a certain number of feet from your buildings. The problem you face is the fact that if these rules were not in place at the time of lease signing, you really cannot impose them now against existing residents. Based upon market conditions and your research as to the advantages of creating smoking rules versus potential smoking related litigation, you can come up with policies governing a resident's right to smoke on your property. You may start out with a simple policy such as one which prohibits smoking in the breezeways. This can prevent some of the smoke intrusion which occurs under and around the door. You may wish to create non-smoking units in the downstairs units of certain buildings, as the smoke is more apt to travel upwards. Finally, entire buildings can be designated as non-smoking. You need to exercise care in advertising them as "smoke free", as there will be times when residents or their guests will violate the policy, and make it clear in any clauses or addendums that if smoking occurs in violation of the rules or policies, this shall constitute a material breach of the lease and the tenancy can be terminated. Come up with a policy or some ideas, and have your attorney draft a good clause for you. Once in place, it will be important to train your leasing staff on how to approach the smoking situation so as not to cause unreasonable expectations from potential residents, which can later result in those residents breaking their lease based upon someone else smoking. If you have a resident that is threatening to break their lease or sue you because of supposed problems due to smoke from a neighboring unit, you may offer that they move to another unit or allow them to break their lease rather than risk litigation. Finally, smokers are not a protected class"”yet!

Dear David,
We really try to do a good job when qualifying our potential residents, but lately we have approved applications only to find that the person we called for the rental reference was not really the resident's landlord, but in actuality a friend or relative cooking up a nice little lie to cover up the fact that the real prior landlord was either in the process of evicting the resident, or there was some big problem where they would never rent to them again; thus our resident did not want us to call them. Is there anything we can do short of actually visiting where the person is living and finding out for ourselves?
SIGNED: "Fooled in Fern Park"

Dear Fooled,
The use of a phony prior landlord is one of the oldest tricks in the book. While your application most certainly states that if there are any misrepresentations in the application you have the right to terminate the tenancy and file eviction, that really does not help you too much as you already have them moved in. A savvy property manager will call the reference that the tenant has given and phrase a question something like "Hi, I was wondering if you have any 2 bedroom rentals available?" or "Hi, I am looking for an apartment and was wondering if you accept pets." This little trick works very well, as if the person is not truly a housing provider but just a friend or relative, the response on the other end will tell it all. This response will often range from "What"? to "Sorry you have the wrong number". A common problem we see is that the applicant does in fact put a person down as their current landlord but fails to fill in the dates of occupancy. You then call that alleged current landlord, and they verify the occupancy and may even lie to you about the duration of occupancy. You then approve that applicant, but on the face of the application, no misrepresentation has been made. In reality, the applicant is living with the person you called because the applicant just was evicted. You made the mistake of believing the person you called and allowing the application to be approved without the dates section filled out on the application. Now you would have to prove to a judge that a third party lied to you, and this would be a daunting task. Out of the many applications we see each week when our clients fax us evictions, the majority are not filled out completely.

Dear Harry,
We have recently been hearing about class action lawsuits pertaining to lease provisions which require a resident to give notice prior to the end of the lease. It is our common practice to ask a resident to give us notice so we know if he or she is staying, going or if we can re-rent the apartment. If he or she fails to give us notice and end up vacating, we normally charge a penalty per the lease of one or two months' rent as we suffer financially due to not knowing the resident's intentions. A few of the property managers in our company boarded a bus with the Apartment Association of Greater Orlando and headed up to Tallahassee to attend a  Legislative Day arranged by the Florida Apartment Association, and they heard a new law has passed which dealt with this issue. Can you fill me in?
SIGNED: "Inquisitive in Inverness"

Dear Inquisitive,
This year, the Florida Apartment Association was again successful in clarifying an important issue in the Florida Landlord/Tenant Act as part of its ongoing commitment to legislative affairs. In its efforts to monitor legislation and effect legislative change, the Florida Apartment Association, its staff, lobbyist and its members did a superb job in 2003. A record number of members attended Legislative Day 2003, due in a large part to the Apartment Association of Greater Orlando and the Bay Area Apartment Association organizing and promoting the highly successful Legislative Buses to Tallahassee. Prior to May 23, 2003, the law did not state that a property manager can or cannot require a resident to give notice prior to the end of a lease, but common practice in the industry has been to include such clauses and penalize a resident for failure to give notice. The law did though specifically address notice requirements from a resident if that resident was living in the unit on a month-to-month basis.  There are many common sense reasons why a resident would be required to give such notice, but a number of class action lawsuits were recently filed in Florida challenging this common and age-old practice. A property manager needs to know to some degree of certainty whether a unit will be vacant or occupied on a specific date or the end of the resident's lease term. If a resident vacates without notice, the property often suffers financially, as prospective residents may have been turned away based upon the property manager's expectations that a unit would be not be available. It makes perfect sense to require a fixed number of days notice from a resident and to charge the resident a predetermined sum as liquidated damages for failure to give such notice. Liquidated damages are appropriate when the injured party does not know to a reasonable degree of certainty the exact amount of damages that will be suffered due to a breach. The new Florida Statute 83.575 clears up any potential ambiguity and states that the property manager can place a provision in the lease agreement requiring the resident to notify the property manager in writing whether he or she will be vacating at the end of the lease. Failure of the resident to give such written notice can trigger a liquidated charge to the resident calculated based on the number of days required for the notice. To prevent the property manager from requiring an unreasonably long notice period, the statute limits this notice to 60 days prior to the end of the lease term. The new statute further reiterates current Florida law regarding month to month tenancies whereby failure of the resident to give at least 15 days notice prior to the beginning of monthly rental period will result in an additional month's rent due to the property manager. It is important that your lease terms reflect that in the event the lease expires and the resident is on a month-to-month status, no more than 15 days notice is required by the resident to terminate the month-to-month tenancy. While this may appear to be a short notice requirement, it also allows the property manager to give the same amount of notice to terminate the tenancy. To preserve the ability to require more than 15 days notice prior to the beginning of the next monthly rental period, the property manager may want to simply extend the termination date of the lease rather than put the resident in a month-to-month status.
 While the new notice provisions are clearly stated now in Florida law, it is still recommended that the property manager is diligent in determining whether a resident intends to vacate or stay on the property at the end of the lease term. This is accomplished by properly worded offer to renew letters and follow up by the property manager. Each year we must be diligent in monitoring and opposing harmful legislation and introducing legislation favorable to our industry. We hope to see you on the bus next year!

Dear Harry,
We recently had a person who filled out an application and checked "Yes" on our question where we ask if the applicant had ever been convicted of a felony. We were glad that he was honest with us and ran a criminal background check on the applicant, as this is our standard procedure on everyone. The background check revealed a sex offense from 10 years ago. Our Resident Selection Criteria states that we will deny an applicant if they have a felony within the last 7 years, so this applicant actually qualified. His credit was impeccable, and he tried to explain that his offense was due to a relationship he had with a 16 year old girlfriend when he was 18 years old. We felt very uncomfortable about him, so we denied him. He did not seem to have a big problem with this, but could he sue us?
SIGNED: "On Edge in Orlando"

Dear On Edge,
Your situation is quite common due to the fact that most Resident Selection Criteria have the requirement that there be no felony convictions within the past 7 years. This results in the manager having to make tough decisions outside of their written criteria which could result in a discrimination claim by an applicant who is turned down. There is currently no federal or Florida law which governs your criteria with regards to criminal backgrounds. Being that it is a wide open area, you need to carefully examine your current criteria to see if it meets your needs, due to the many different crimes for which a person may have been convicted. We recommend that you have a 7 year no felony rule along with an absolute rule that you will accept no one with any sexual offenses whatsoever. You do not want to be put into a situation where you are denying an individual based upon a sex offense from 10 years ago without having this as a written criteria. While it is not illegal per se to deny someone outside of the criteria, it is dangerous, as you are making a judgment call which may not be consistent with another situation with differing facts. Judgment calls potentially increase the appearance of discrimination and the risk of a complaint being filed against you. The more common situation you will face will be the "withhold adjudication" status. This is a tough call, as the person really has not been convicted of the crime but most likely has committed the offense, and the judge, for whatever reason, is allowing the person to serve a probationary period with the case being dismissed once that period is completed. Many of our clients will not accept a resident based upon a "withhold adjudication" status, and this is allowed. Again, if this is your desire or practice, you need to put this in writing in your criteria. We recommend that you periodically examine your Resident Selection Criteria and have your attorney review the document for legalities, as the laws can and do change.  

Dear Harry,
One of our residents constantly complained to the on-site staff and to our corporate office. First it was the location of the apartment, then it was noise from the neighbor below, later it was the smell of the carpet and the smoke from the neighbor next door, and finally it was alleged mold in the unit. We always attended to her complaints, sent maintenance promptly, and I checked the unit out myself, but we really could not find anything to substantiate her claims. We think that she is just a very unhappy person. As a desperate measure, we offered to move her to another unit on the property at our expense, and she immediately took us up on the offer. Since that time, it is the same old thing and nothing but complaints. We plan on non-renewing her, but our more immediate problem is that upon moving her to the new apartment, we discovered that her pet had made a habit of urinating in a particular room. Our carpet vendor told us that the carpeting and pad was ruined, and maintenance says that the floor was so soaked that it must be sealed. We presented the resident with a bill and she flatly refuses to pay. Worse yet, she still has the cat that did all the damage to the original unit. Can we force her to pay? If she does not pay, can we evict her?
SIGNED: "Accommodating in Alachua"

Dear Accommodating,
You have made the classic mistake of thinking that an on-site apartment transfer would somehow be the solution. We only recommend a transfer under limited circumstances, such as a desire for a larger apartment, a first floor unit or if there is a genuine problem with a particular unit that is not the fault of the resident in any way. Now the tricky part is making the apartment move while at the same time protecting the apartment community from litigation and possible damages to the unit from which the resident is moving. If the maintenance staff is to move the resident's personal property, a strong release of liability for damages to the property needs to be drawn up, and the resident needs to sign this. You do not want to be put in a position where the resident sues the apartment community for damages to items moved, especially when there may have been no charge to the resident for moving the belongings. The real surprise in moving a resident comes when you discover that the resident has damaged the first unit. In most resident moves, no additional security deposit is required from the resident. This stems from the faulty assumption that the nice resident would never leave the first unit damaged! We strongly recommend that the resident put up a new security deposit in situations where the resident is voluntarily moving to another unit for their convenience, such as if they wish to have a larger unit. Once they move, the unit that they vacated can be inspected and a claim made, as per FS 83.49, on their original security deposit if need be. Finally, most apartment communities do not use a special form when transferring residents. This is a grave error. A simple transfer agreement which states what is occurring and most importantly states that the resident is liable for any damages to the first unit and failure to pay for such damages will be a breach of the tenancy in the second unit is crucial. You lose all leverage against the resident and cannot evict the resident for failing to pay you for the damages to the first unit once the resident has moved into the second unit, unless the transfer agreement clearly states that you can.

Dear David,
One of our residents skipped on his lease and left a substantial amount of damage to the unit. From the information I gathered in the file, the entire apartment had to be repainted, the carpet replaced and the kitchen was left a filthy mess.  We received a nasty letter from an attorney who claims that he represents the ex-resident stating that his client was turned down when he attempted to buy a car, had to pay a higher interest rate when he purchased a house, couldn't get credit cards, the list goes on, and this was all due to the fact that the prior manager turned him into collections, which resulted in the debt to us showing up on his credit report. The attorney is demanding written proof of the debt, pictures, witnesses, move-in inspection forms, the lease and just about everything else you can imagine. He is stating that he plans on suing us. My regional manager does not want to budge as the file clearly indicates that he owes us money. What should we do?
SIGNED: "Threatened in Tangerine"


Dear Threatened,
We are seeing more and more cases each year where ex-residents are suing for slander of credit. These are serious cases which could result in large judgments against the apartment owner and/or management. Some of the cases are actually being filed against the property managers who prepared the Notice of Intention to Impose Claim on Security Deposit and sent the file off to a collection agency, who in turn placed the sum as a delinquent amount on the individual's credit report. More often, you will receive a demand letter from an attorney accusing you or your company of slander of credit and asking you to provide proof to the attorney as to the amount owed and how you came about charging that particular amount. Usually the dispute amounts include termination charges, lease break fees, unpaid late charges and physical premises damages. Do you think you can prove all this to a judge a few years after the fact? Most property managers cannot, and this is where the big problem begins. When you make a claim on a security deposit, you need to be prepared to defend every cent of that claim years from now. This requires photos, move-in and move-out inspection forms, proper damage prorations and accurate accounting of exactly what monetary amounts are owed. Remember that you, the leasing agent, the maintenance staff and other witnesses may be long gone when the debt gets disputed. Send the attorney's demand letter to your attorney immediately so the case can be reviewed and potentially resolved. Failure to act quickly could result in you forfeiting your claim against the resident and/or losing a lawsuit.
 
Dear Harry,
We seem to be getting a lot of bad checks lately. Most of the time, we just post a letter on the resident's door, and they quickly come to the office and give us a money order or a certified check to cover the bad check and the service charge, but occasionally, they simply ignore us. Usually we give a Bad Check Letter for the bad check, and if they do not pay within 7 days, we give a 3-Day notice and file an eviction. One of our residents received a 3-Day Notice and paid by check within the 3-Day Notice period. The check was returned to us NSF; we notified the resident who is trying to make good on the $500.00 bad check but is refusing to pay our bad check charge and says it is illegal. I can't understand this, as our lease clearly says that the bad check fee will be $50.00. Do we have to accept his money without the bad check fee? Our bank charged us, so why can't we charge him?
SIGNED: "Bounced in Bartow"

Dear Bounced,
The first mistake I see in your scenario is that you are accepting checks when the rent is late.  I recommend that you examine your lease to see if you can require a money order or certified funds on late rent and if not, you need to modify your lease as soon as possible.  A proper clause may look like this: "Rent paid after the first day of the month must be paid by certified funds or money order". By having such a clause, you can refuse a check if it is tendered after the first day of the month, and more importantly, you can put a notation on your 3-Day Notices that clearly says, "Certified funds or money order only". Now getting back to your specific problem, I see that you are charging a $50.00 NSF charge on a $500.00 check. Florida law states that you can impose a service charge of no more than the greater of 5% of the check amount or $40.00 if the check is for $300.00 or more. Since $50.00 is more than 5% of the check amount, you have exceeded the amount as allowed by Florida law, and the resident is correct that you are overcharging him. The maximum fee you can charge him in this situation is $40.00, so I recommend revising your bad check letter or simply serving a 3-Day Notice including the $40.00 service charge if and only if your lease states that NSF charges are "additional rent". If your lease failed to define NSF charges as "additional rent", I would give a 3-Day Notice for the base rent amount of $500.00 and serve a 7-Day Notice of Non Compliance with Opportunity to Cure for the $40.00. Since you made a mistake in this case, I would not advise that you attempt to collect any late charges.      

Dear Harry,
We recently had one of our residents die after a short stay in a nearby nursing home. Her rent was paid by her daughter for the 2 months that she was in the nursing home, and we were aware that her daughter had a key to the apartment as we observed her checking on the apartment, and she occasionally would stay in the apartment.  This month we have received no rent from the daughter, the daughter is nowhere to be found, and the apartment is full of personal belonging and furniture. We just received a call from the resident's son who is asking that we let him into the apartment to remove the items. Can we let the son in? Can we file eviction? Is the unit abandoned? 
SIGNED: "Held up in Heathrow"

Dear Held Up,
A number of situations arise out of the death of a resident, the most common being an apartment left completely abandoned and containing personal  property of the deceased, and no one is attempting to retrieve the items, or one or more friends or relatives want to gain access to the apartment and presumably the belongings. If there is another resident on the lease and they continue to reside in the apartment, we really have no problem, but often, the deceased was living in the apartment by themselves. While I would like to give you easier advice, the fact is that no one can be given access to that apartment unless and until such time as the court authorizes such through a document called "letters of administration". These are official court documents which appoint a specific person as the "personal representative", and you are then able to deal directly with that person, give that person access or file an eviction against the "estate", as one will now exist. The real Catch-22 is that most relatives will not want to open up an estate if there are no real assets other than personal items, and often the resident did not own any property or the bank accounts were held jointly with a son or daughter, therefore not necessitating an estate being opened. Our standard recommendation is to tell the son or daughter that you cannot let them into the apartment and hope that they will gain entry somehow and remove ALL the items. If you were to give someone access, you risk a relative popping up out of nowhere who may accuse you of removing valuable items from the apartment. There are many variables that can occur with the death of a resident, so get your attorney involved right away, and remember never to trust an attorney who is working for a relative of the deceased, as their interests greatly conflict with yours. Recently one of our clients received a letter from an attorney for one of the children which stated that no other relatives objected to this person gaining access to the apartment to remove the personal belongings. This was a meaningless letter as it was not a court document, and had the property manager relied on this letter, they could have gotten into serious trouble if another relative were to appear later and claim an interest in the property.
 
Dear David,
We have a situation where one of our residents who is in the military and works at a nearby army recruiting office is asking us if he can be let out of the lease he just signed, as he wants to move onto base housing which is about 5 miles from our property. I was always under the impression that the laws that applied to the military only applied if the tenant is a civilian and then called to active duty. In our case, the resident was in active duty when he rented to us. We told him that he could break his lease, but he had to follow our standard early termination requirements whereby he had to give us 60 days notice and pay a penalty of one month's rent in addition to forfeiting his security deposit and paying his rent until the end of this notice period. He says what we are doing is illegal and is having the JAG officer (Army lawyer) call us. I don't want to be unpatriotic, but this just does not seem right. Do we have to let him out of his lease?
SIGNED: "Patriotic in Poinciana"

Dear Patriotic,
Up until May of 2003, you would have been correct in applying the lease to the servicemember resident just as if he were a civilian. A very important change occurred to the law which will require you to let this resident break his lease without penalty even if he is not ordered to move onto base housing. Two sections in Florida law governing persons in the service were changed. Florida Statute 83.67 now specifically states that no landlord shall discriminate against a member of the United States Armed Forces in offering a dwelling unit for rent or in any of the terms of the rental agreement. You are certainly not discriminating here, but Florida Statutes 83.682 is more relevant as it states, among many other things that any servicemember may terminate his or her rental agreement by providing the landlord with a written notice of termination to be effective on the date stated in the notice that is at least 30 days after the landlord's receipt of the notice, if after entering into a rental agreement, the servicemember receives military orders requiring him or her to move into government quarters, or the servicemember becomes eligible to live in and opts to move into government quarters. Here we see that the servicemember merely needs to voluntarily "opt" to move into government quarters in order to break the lease. Your only real protection here is that the servicemember is required to give 30 days notice to you. Now, if this happens often, or you are near some nice government housing and you see many servicemembers breaking their leases, you may be tempted to avoid renting to them in the first place. This is where Florida Statute 83.67(3) comes into play and would consider that illegal discrimination and a prohibited practice.  

Dear Harry,
Our company policy is to require a resident who is paying the rent late to pay only by cashier's check or money order. The prior manager at our property was not enforcing this rule, but my regional manager insists that I refuse any payment other than a cashier's check or money order if it is paid to us after the due date. On all our Three-Day Notices, this policy is printed clearly on the bottom of the notice.  We served one of our residents a Three-Day Notice this month, and he is insisting that we have to accept his personal check, because the prior manager accepted his checks even when late, and because our lease does not state that he must pay by certified check or money order if paid late.  He is absolutely refusing to give us a cashier's check or money order and says we can try to evict him, and he will win. Is he correct? Should we just take his check?
SIGNED: "Refusing in Ruskin"

Dear Refusing,
Your resident is absolutely correct that the lease must state that no personal checks will be accepted for late rent if you want to prevent the resident from paying by personal check. If your lease does not state this, revise the lease immediately for all new residents and renewals.  The other problem lies in the prior manager's actions and how they affect the current situation. You stated that the prior manager would deviate from your company policy and often accept personal checks that were paying late rent. Even if your lease clearly stated that no checks were accepted for late rent, the prior manager's acceptance of the checks could result in a great waiver and estoppel argument by the resident, and most likely the resident would win in court. While you may be a strict manager and wish to follow company policy, there is no way to get around the unwritten lease modification that occurs when a policy is not followed and the resident is allowed to violate the policy over and over.  Whenever you are dealing with a policy that has not been followed in the past, you may be able to overcome the damage done by sending all the residents a letter reiterating the lease terms and warning the residents that from a certain point on, the lease must be followed. This may help you get the residents back on track. In the current situation, I would recommend that you accept the personal check from the resident and keep your fingers crossed!!    

Dear Harry,
Our apartment community has a pet problem. The prior management company allowed pets, but about 6 months ago, the owners decided that there will be a No-Pet policy from that point on due to the increased expenses from the pet damage and the liability for injuries from dog bites. To be perfectly honest, occupancy has been terrible, and we have not been doing our job in enforcing the No-Pet policy if the pets are quiet and we do not receive any complaints. One of our second floor residents is keeping her dog on the screened in balcony, and the dog is urinating on the balcony, resulting in the urine dripping down to the lanai area of the first floor resident. Obviously the first floor resident is livid, so we immediately served the offending resident with a Seven Day Notice of Non Compliance with Opportunity to Cure, telling her that she had to remove the pet from the premises. The resident stormed into the office the other day stating that she has had the dog for months and will not get rid of the dog, as so many other residents have dogs. Can we make her remove the dog or evict her if she does not comply? Does it matter that other residents have dogs, as they are under the old lease which allowed them? 
SIGNED: "Dogged in Davenport"

Dear Dogged,
To answer your second question first, the fact that other residents are breaking a rule or other residents are grandfathered in so to speak does not have any bearing on a current resident under a new lease and new rules, as long as there is not a situation where you are singling out this resident over other residents under the new lease and new rules in a discriminatory fashion. Most judges do not have sympathy for the resident when the judge hears the "but everyone else is doing it" argument. The residents under the old lease will be able to have their authorized pets, but you must be careful to non-renew them and only allow a renewal if and only if the pets are removed, and you have solid proof of this. As far as asking her to remove the dog as you may consider it an unauthorized pet, here you may have a problem. If you or any of your staff including maintenance were aware that the resident had a dog, albeit unauthorized, your failure to do anything about the dog  for a number of months implies that the dog is authorized and a waiver of your lease has occurred. With that said, do you have to tolerate the fact that the resident is not walking the dog and is allowing it to urinate on the balcony? NO. You should serve her with a Seven Day Notice of Non Compliance With Opportunity to Cure stating the following; "You are failing to abide by the terms of your lease and/or Florida law due to allowing an unsanitary condition to result on the premises including but not limited to failing to walk your dog, resulting in the dog urinating on the balcony and into the surrounding areas". Once served, do your routine inspections, speak to the downstairs neighbor, and if you have solid proof that the resident is still in violation, call your attorney for wording of a Seven Day Notice of Termination.
 
Dear David,
Some of our residents are choosing not to sign a new lease but want to remain on the property as month to month residents. We really do not have a big problem with this but want to have some security that they do not just up and leave whenever they wish. We were thinking about having short lease extensions rather than just having them stay month to month, where we know that they can just give 15 days notice prior to the beginning of the next month and leave. A lease extension would give some certainty. Should we have some kind of written addendum? Can we charge them a month to month premium or any kind of administrative fee? 
SIGNED: "Expired in Eustis"

Dear Expired,
You are absolutely correct in stating that in the event  the resident is on a month to month tenancy, they are allowed to give management at least 15 days notice prior to the beginning of the next monthly rental period and leave at the beginning of that monthly rental period. Although many leases say otherwise, this is firmly written in Florida law and attempts by your lease agreement or any addendum to make the resident give more notice could be stricken down by a judge. A month to month tenancy is clearly dealt with in the law and gives the resident an easy way out with a short notice period. This is a major disadvantage of a month to month tenancy but can be a blessing if management does not bind itself to a greater notice period. We often recommend allowing a resident to remain as a month to month resident if you are not sure that you want to have them for another full year. If you are not having any difficulties with the resident and would like to extend the lease, we recommend short extensions of the original lease which spell out the terms of notice, the possible higher rent amount and/or administrative fees. We urge you to speak with your attorney about any such administrative fees, as these recently have become the subject of lawsuits.  
 
Dear Harry,
One of our residents had given us notice that he was vacating at the end of February, and we calendared the vacating date. Unbeknownst to me, he had come in a few days before the end of February and extended his lease with the assistant manager for another 2 weeks.  On March 4, I sent my maintenance tech out to the apartment for the usual trash-out and cleaning, as we had someone scheduled to move into that apartment on March 15. My maintenance tech trashed out the apartment and presumably threw any remaining items out.  Just last week, the resident came into the office irate, demanding that we return his bedspread and pillow or pay him $100.00. He claimed that he was in the process of moving out, but we entered his apartment too soon and took his belongings.  I did not know about the lease extension, and we got into a verbal altercation, as I thought he had vacated. The resident stormed out of my office saying we would be hearing from his lawyer. I looked in the file, and sure enough, he had extended his lease. Now, the real problem begins. We just received a letter from his lawyer with a 2-page list of personal belongings that this resident claims we took from him, and there is a demand for $2000.00 plus $800 in attorney fees. What should we do?
SIGNED: "Scammed in Sanford"

Dear Scammed,
Your resident really pulled a fast one on you here taking advantage of your error. There is no issue as to whether you should have trashed out the unit. This was clearly a mistake and is actually quite common. The real issue here is how to deal with a mistake once it is discovered, i.e., damage control.  When it is discovered that you have made a mistake such as prematurely taking possession of a unit, it is crucial to avoid getting defensive or trying to explain the actions to the resident. Take the mistake in stride, try to downplay it as much as possible, appear sympathetic but not apologetic, and have the resident immediately fill out an "Incident Report". This is one of the most important forms a property manager can have on hand, as it is the situation or occurrence memorialized in the resident's own words BEFORE he goes completely ballistic and runs to his attorney's office. Once that occurs, the sky is the limit on what the resident will attempt to demand from you, and often the resident sensing or knowing  a mistake has occurred, will attempt to take advantage of this and get as much money as possible from you. In your case, you may feel that resident does not have any proof, your maintenance tech will testify that there was nothing much in the apartment, BUT the problem is that you prematurely took possession of the unit and disposed of the items. The judge will be much more apt to believe almost anything the resident says, as your company will have what is referred to as "unclean hands" due to the violation of Florida law, and often the judge will "punish" you for the mistake to try to teach you a lesson. Having the resident fill out the "Incident Report" at least creates some form of a paper trail, and if properly prepared, will state what occurred and the monetary amount of the loss.
A resident will be hard pressed to substantially change his story once he fills out the "Incident Report".

Dear Harry,
About 2 months ago we processed an application, accepted the application and moved the resident into the apartment. Yesterday, we received an anonymous letter stating that our resident had been evicted before and that we should watch them closely.  We decided to look into it a little further, as this seemed strange, and sure enough, the resident was under eviction at the time that he was applying to rent from us.  We called up the landlord who was listed on the eviction, and she said that she had indeed filed an eviction on the resident, but the resident had moved out prior to the eviction being completed and was staying with the resident's sister. We began to dig even deeper, and on the resident's application it did in fact list the resident's sister's address as the current address at the time of applying. We want this person out now, as we already see the warning signs. We ask the question on our application, "Have you ever been evicted?", and the resident answered "No". Can we go straight to eviction?
SIGNED: "Tricked in Tavares"

Dear Tricked,
Unfortunately, you are asking the question regarding evictions incorrectly. Most eviction filings do not actually result in the resident being evicted. Most residents vacate prior to being forcibly evicted from the premises and the property manager instructs the attorney that the resident has in fact vacated and the process stops. If this occurs, an applicant can honestly answer "NO" to the question, "Have you ever been evicted?". The proper question is, "Have you ever had an eviction action filed against you?". This question is much more inclusive, and had your resident answered "no" to this, it would have enabled you to terminate the tenancy based upon the resident giving false or misleading information, if you had this ability stated in the application or the lease. Now moving on to the answer the resident gave as his current address: if the resident was in fact living with his sister, as he stated on the application, he would not have been lying. It is imperative that the time periods of living at the current or former addresses are clearly asked for in the application, as the resident may have misrepresented this, enabling you to terminate the tenancy. We see countless numbers of applications where blanks are not filled in, information is illegible, phone numbers are not working, yet the application was approved. An applicant who is desperate can be cunning indeed.
 
Dear David,
We just found out that one of our residents stopped paying her electric bill, and it reverted to the name of our apartment community. We were auditing our bills and discovered that for 3 months, this resident has been using a substantial amount of electricity.  My regional manager is livid, and she says that we can notify the electric company and have them turn this unit's electric off, as this resident is stealing from us. I am afraid to do this. Is it legal? 
SIGNED: "Turned off in Tamarac"

Dear Turned Off,
While it would seem logical and proper to simply shut off the resident's electric in such a situation, it is unfortunately a prohibited practice under Florida law. Florida Statutes section 83.67 states "no landlord of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord". In your case here, the utility service was originally not in your control, as the resident had their own account and was to pay the bill, and now it is in your control. The initial control is irrelevant, as it does not matter under the law. What you have here is simply a curable lease violation, and you will need to serve a Seven-Day Notice of Noncompliance with Opportunity to Cure. It may say something like, "You are failing to have a current electric account in your own name in violation of the terms of your lease agreement", and possibly adding, "You owe the sum of $____  for electric service to the apartment community due to failing to maintain electric service in your own name". Had you called and instructed the electric company to shut of the electric in this unit, you would have been guilty of a prohibited practice, entitling the resident to an award in court of 3 months' rent plus attorney's fees. It does not seem fair, but it is the law.

Dear Harry,
We had a serious flood occur in our apartments last month. Two residents were completely flooded out of their apartments due to a pipe breaking in the ceiling. The flood occurred at 4:00 am, and we put both residents up in the furnished corporate units we had available. One of the damaged apartments was able to be repaired fairly quickly, and the one resident left the corporate unit and moved back into her apartment within a week with no problems at all. The other resident seemed to take a liking to the corporate unit and is refusing to leave. He is demanding that we replace all his furniture that was damaged by the flood, or else he will not vacate the corporate unit.  Does he have to move? Can we lock him out?   
SIGNED: "Flooded Out in Fellsmere"

Dear Flooded Out,
You have really learned a great lesson here in that no good deed goes unpunished. We recommend that you never relocate a resident to a corporate unit or model when their apartment becomes damaged or uninhabitable. While this may seem harsh, there have been many instances where the relocated resident fails to vacate the corporate or model and refuses to pay any rent.  Since there was probably no lease written up in those early morning hours and no agreement for the resident to pay any rent to you other than for the damaged apartment, it is arguable that no landlord-tenant relationship exists. If no landlord-tenant relationship exists, there can be no eviction filed. Most likely an ejectment action will have to be filed, and this is not something that many attorneys have experience with, and could result in a significant cost and loss of time for you. Your safest approach in the future will be to put the resident up in a local hotel with the express written agreement with the hotel and resident that you will pay for the hotel for a fixed predetermined time period.  With all that said, we know that there will come a time when you will not resist the temptation to put the resident in a corporate or model.  If this occurs, we recommend that you use a TEMPORARY HOUSING AGREEMENT  which is basically a mini lease for a fixed time period. Failure of the resident to vacate can then result in an eviction action. In your present case, most likely an ejectment action will need to be filed, and under no circumstances should you lock out the resident.

Dear David,
We have a resident under eviction and just received a call from a relative of the resident who informed us that the resident is in a coma due to a drug overdose. The relative wants us to give her the keys so she can remove the resident's belongings from the apartment.  We just received a call from the sheriff's department who informed us that on Monday morning, the deputy will be meeting us at the property to give us possession. Our company policy when meeting the sheriff's deputy is to remove all the personal property from the apartment to the property line.  I feel sorry for this relative and our resident and really would like to help them out. Can I let the relative in to take the resident's personal belongings? 
SIGNED: "Compassionate in Clermont"

Dear Compassionate,
Unfortunately you are not allowed to grant the resident's relative access to the apartment to retrieve or remove the resident's belongings, unless you have a signed and preferably notarized statement from the resident authorizing you to do this. Since the resident is in a coma, obviously this is not even a possibility, and unless you had a durable family power of attorney signed by the resident before the overdose, there is no way you can accommodate the relative. We recommend that you speak to the relative and tell her when the sheriff's deputy will be giving you possession of the apartment.  The resident's relative can meet you at that time and when your maintenance staff is bringing the items to the property line; the relative can safeguard the items and retrieve them at that point.  You should not allow the relative into the apartment but proceed as normal, bringing the items to the property line where the relative is free to retrieve these items and take them away. This may seem like a harsh approach, as it would appear more reasonable to just grant the relative possession or allow the relative to remove the items from the apartment at the time the sheriff's deputy gives you possession, but the law is clear on how to execute a writ of possession, and you should not deviate from the law. What you are doing by notifying the relative about the date and time of the execution of the writ is above and beyond what the law requires and you should not go any further than that.

Dear David,
A resident with children in our community is posting pictures of another resident all over the property.  It appears that the resident, we will call him Mike, has just appeared on the FDLE website as a registered sexual offender.  Mike moved into our community last year and has been a perfect resident. We were unaware that there were charges pending against him for a sexual offense when he applied, and he was convicted and sentenced to probation within the past few months. He did not lie on his rental application.  Needless to say, residents are calling us daily asking us what we are going to do about getting Mike off of the property.  Is there anything we can do? Should we speak to Mike? 
SIGNED: "Panicked in Poinciana"

Dear Panicked,
More and more individuals are finding themselves on the FDLE website as sexual offenders and predators. This is due to the large numbers of people who move into Florida and must register under the law, and the many offenses which can result in an individual being labeled a sexual offender. If an individual has a boyfriend or girlfriend under the age of 18, and it determined that these individuals engaged in some sexual conduct, under the law, the person 18 years of age or older can be labeled a sexual offender. Many of the offenses though are extremely serious, but all will end up on the website, and the individuals are lumped together as sexual offenders and predators. Once your other residents find out about this, the reaction is usually fairly panicked, with some individuals choosing to break their lease. It is crucial that your company considers a lease addendum or lease wording which addresses an individual committing a sexual offense or being labeled or registered as a sexual offender AFTER they move onto the property. Most Resident Selection Criteria prohibit the acceptance of a person who has committed a sexual offense, but rarely does a lease address the subsequent commission of or conviction of an offence. It is possible to add a clause into the lease that states that the resident agrees that the lease shall be terminated in the event the resident, after moving onto the property, commits an offense of a sexual nature, resulting in conviction or is labeled as a registered sexual offender or predator. Recently one of our clients had a resident appear on the FDLE website as a sexual offender, but when we investigated the offense and charges, it was determined that the resident was not actually convicted of a crime, but adjudication was withheld and the resident was put on probation and had to be registered as a sexual offender as a condition of that probation. In your current case, you will not be able to evict this resident unless it is determined that he had lied or misrepresented information on his rental application. The best you can do is encourage him to leave, which he may do once he realizes everyone in the apartment community is aware of his sexual offender status.

Dear Harry,
Three months ago, we had an apartment under eviction, the residents came to us with a substantial amount of money, and we decided to work with them. Knowing that if we accepted any rent money the eviction would be null and void, we called our attorney first and he sent us a Stipulation form where we filled in how much the residents were paying us, how much they owed and how they would pay the balance.  The Stipulation also dealt with future rent and stated that the resident would have to pay rent on time for 6 months on time, or we could continue the eviction where it left off. The problem we have is that we never sent the Stipulation to our attorney once it was signed, and we only were able to get one resident to sign the stipulation. Do we have to file a brand new eviction?  
SIGNED: "Halfway in Heathrow"

Dear Halfway,
An improperly executed Stipulation is almost worse than none at all.  Whenever you decide to stipulate with a resident, you need to insist on having money in hand (never a personal check) and all residents must sign the Stipulation at that time. Once the Stipulation is signed by all parties, fax it to your attorney for a quick review while the residents are in your office. This will assure that you have done everything correctly. Send the ORIGINAL Stipulation immediately to your attorney for his or her signature, and your attorney will then submit it to the court where the judge will then sign. It is only after the judge signs that the Stipulation becomes a legally binding document which you will be able to enforce. In your case you may have to file a new eviction, or your attorney may be able to convince the judge to enforce the Stipulation even though it was not filled out properly.
 
Dear Harry,
We just terminated one of our maintenance personnel and would like to have him off of the property. He has been living with another resident, Mary, on the property, but is not on Mary's lease agreement.  We searched through all our records, and it appears that he did not sign any lease or any type of employee rental addendum.  Our company took over management of the property about 2 months ago, and according to payroll records, he has been employed here for about 6 months. His payroll stubs indicate that his address is the apartment where he currently resides. We were going to serve a Seven Day Notice of Noncompliance With Opportunity to Cure on Mary, as the ex- employee is not on the lease; therefore he is an unauthorized occupant, and Mary is in violation.  Is this the correct approach?     
SIGNED: "Firing in Fern Park"

Dear Firing,
First you need to determine how long the ex-employee has been staying with Mary, and if the prior management knew or consented to this arrangement. Based on the pay stubs, it can be assumed that he most likely did in fact live with Mary for quite a long time. I would imagine that this was known and consented to, and the reason he was not placed on the lease was simply due to sloppiness by the prior management company. The situation we have here is called "waiver and estoppel". The prior management company allowing the ex-employee to remain with Mary as an occupant, even though it violated the terms of the lease, causes a situation whereby you have now waived your rights to enforce the terms of Mary's lease and are "estopped" from doing so. This is a strong legal argument that attorneys raise when it can be proven that a manager allowed a noncompliance to continue for some time, then decides to enforce the lease. In the present case, you can serve the Seven Day Notice of Noncompliance with Opportunity to Cure on Mary, but if she does not move or remove the ex-employee, I do not feel you have a strong case. Hopefully there is not much time left on the lease, and you can take the route of non-renewal. 

Dear Harry,
We have a community with a lot of young people and college students. Often we have to deal with our residents hanging school flags and banners from the balconies, and it normally has not been a problem. We usually serve a Seven Day Notice of Noncompliance with Opportunity to Cure, as our lease prohibits the hanging of clothing, banners or any other items from the balconies. Last week, we served notices on two residents, one of whom hung a large United States flag off of the balcony railing, and another who across the courtyard hung a Confederate flag.  The resident who is hanging the United States flag came into the office yesterday claiming that he is allowed to do this by law regardless of what the lease says. This resident's father happens to be an attorney, and he is threatening us with legal action if we make him remove the flag. We certainly are not unpatriotic, but it is really making our property look sloppy. Is he correct?
SIGNED: "Patriotic in Polk"

Dear Patriotic,
Florida law has just changed making it a prohibited practice for a property manager to prohibit a resident from displaying a United States flag on the dwelling unit.  There are some conditions though. The flag must be removable, not larger than 4.5 feet by 6 feet, must be displayed in a respectful manner and cannot infringe on any space belonging to another resident. In your situation, if the United States flag complies with these conditions, you will not be able to ask the resident to remove the flag, regardless of what your lease or rules and regulations say. As for the Confederate flag, you can ask the resident to remove this if it is in violation of a term or condition in your lease or rules and regulations. I would recommend that you give the resident who is displaying the Confederate flag a copy of Florida Statutes Section 83.67, so he does not think you are treating him differently in a discriminatory fashion. The proper notice to serve the Confederate flag displaying resident would be the Seven Day Notice of Noncompliance with Opportunity to Cure.

Dear David,
We went to court the other day for an eviction hearing. The resident had put some money into the court registry, and the judge had set the case for a trial. The resident did not show up in court, and after we waited about 30 minutes, the judge came into court and entered a default judgment against the resident. As we were walking out of the court room, the judicial assistant ran in and gave some paperwork to the judge that the resident had just faxed in. As it turns out, the resident filed bankruptcy the morning of the eviction hearing and notified the court by faxing in a "Suggestion of Bankruptcy". The bailiff called us back into the courtroom, and the judge then told us that the eviction is "stayed" until notification by the bankruptcy court. We are obviously upset, and the resident owes 3 months' rent now. How long can the resident remain on our property?   
SIGNED: "Let Down in Largo"

Dear Let Down,
Unfortunately, bankruptcy filings are on the rise. A resident can file for bankruptcy at any time before, during or after an eviction is completed. The most frustrating problem for us is when the resident files for bankruptcy before the eviction is complete. Once the bankruptcy is filed and you receive notification of this, the first step is to check with the bankruptcy court to see if indeed a bankruptcy has been filed. Residents have been known to fabricate bankruptcy paperwork to give the appearance of a filing, when in fact nothing was filed with the court. Once the filing is confirmed, your attorney will immediately file a Motion to Lift the Stay of Bankruptcy in Bankruptcy Court. In most cases, you will have to wait approximately 4 weeks for the bankruptcy court to grant the request, and once this occurs, the eviction picks up where it left off. In the meantime, do not serve the resident with any notices regarding any delinquent amounts owed, as this would be a violation of the Federal Bankruptcy rules.

Dear David,
One of our residents broke a bathroom window in his unit last month. Our maintenance technician replaced the window, and we felt the resident owed us $60.00, which was $40.00 for the actual window itself and $20.00 for what we estimated was the cost of one hour of the tech's time, taking into account our actual costs per hour for an employee. We do not know how the window got broken, other than the story we were given by the resident that a mop handle hit the window causing it to break. The resident promised to pay for the window but now is refusing, saying that he could have fixed it cheaper and were "ripping him off". What type of notice do we serve him to recoup this money?  
SIGNED: "Shattered in Seminole"

Dear Shattered,
If this were a case where you could prove that the resident intentionally broke a window or windows during a disturbance situation, you may have been able to terminate the tenant immediately, as this would be intentional destruction of property. Here the goal is just to get payment for the window. Serve a Seven Day Notice of Noncompliance with Opportunity to Cure stating the following: "You are indebted to XYZ Apartments in the sum of $60.00 for damage to the premises, particularly damage to the bathroom window".  If he fails to pay, call your attorney and you can then decide if you really want to file an eviction based upon this.

Dear David,
We have a problem resident, to put it kindly, who is constantly saying he paid the rent, dropped the rent off, and gave us notice of repair requests and coming up with bizarre stories. We need to serve him a Three Day Notice this month, and since he always claims never to have received his notices, is there any way we can prove that we served the notice? Would mailing the notice by certified mail be the best way? Should I bring someone with me when I serve the notice?  
SIGNED: "Serving in Sanford"

Dear Serving,
Often a resident under eviction will try to say that he or she did not receive the Three Day Notice.  In the vast majority of cases, the judge will not buy this story and will take your word that you did indeed serve the Three Day Notice. This is especially true if the person who served the notice comes into court and testifies, and it is important that the notice server always comes to court as a witness. There are occasions where the resident posts all the rent into the court registry, gets a hearing, has a good sob story, and the judge begins to look for any possible way to allow the resident to stay. Recently we had this exact situation, and the judge stated that he felt that the resident did not receive the notice. If you are concerned that the resident may try this approach in court, we recommend that you bring someone with you as a witness when you serve the notice, and go as far as taking a picture of the served notice on the door if you end up having to post the notice. Three Day Notices should never be mailed, as you need to add 5 days for mailing time and 5 days for the resident to pay by mail. Mailing a Three Day Notice by certified mail is the worst possible way to serve the notice, as certified mail is routinely not picked up.

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


|     Home Page     |     Firm Profile     |     Attorney Profiles     |     General Services     |     Apartment Communities     |     Residential Managers     |     Apartment Communities     |     Residential Managers     |     Homeowners/Investors     |     Eviction Q & A     |     Legal Articles     |     Training/Events     |     Contact Us     |