VOLUME 2 - ISSUE 1 LEGAL UPDATE
- Security and the Residential Property Manager
- Security Addendum
- Fireworks and the Residential Property Manager
- Serving the Three Day Notice
- 2005 Legislative Items
Security and the Residential Property Manager
In December of 2004, a jury in Tampa Florida awarded an individual over $15 million who was abducted from the parking lot of an apartment community and later shot in the head. The jury in the case felt that the apartment management and owners were negligent in not providing security to the tenant and that this resulted in the tenant’s injuries from the crime. Is a property management company or owner responsible for providing security to its residents? We don’t think so. Is every owner of a rental home responsible for keeping an armed sentry outside the door of the home? Of course not. This case is one in the trend of cases whereby owners and managers of rental property are being held liable for the criminal acts of third parties, parties over which they have no control. Picture a large apartment community that may or may not have fences surrounding the property sprawled across many acres. There could be almost a mile of fence in some communities. If our own government cannot control its borders, can we expect an apartment community to be able to control every access point? Do we need lethal, electrified, razor wire fences surrounding apartment communities now? At what cost would all this security, none of which is foolproof, come? Will residents be willing to pay to live in a maximum-security environment? Can the thousands of existing apartment communities, large and small, or the duplexes and triplexes all throughout Florida, be retrofitted to prevent someone from jumping a fence or climbing through a hole in a fence that someone else made? Will access gates be the answer? Will a full time security force need to be at every corner of the apartment community armed with AK-47’s.
Though there is no solid, foolproof solution, there are some steps which owners and management can take.
MARKETING In marketing the property to the public, be it in the print ads, the internet, on the phone or through your on-site leasing staff, never should you imply or suggest in any way that your property is safe or has any type of security features whatsoever. The mention of access gates, courtesy officers, or even worse, the use of the word “security officer” or 24 hour manned gates should never happen. When asked if you provide security, simply state that you do not. This should be your company policy, your staff should be trained in this, and it should be clearly stated as such in your written Policy and Procedure Manual.
ACCESS GATES Access gates give a completely false sense of security to a prospective renter. Who among us has not slipped through a gate by following closely behind the car in front of them? Access gates are not security devices and are often non-operational, most often due to an individual running into the gate, resulting in it being broken for some time. We recommend that all residents sign an Access Gate Addendum which clearly explains that the access gate is by no means a security device, can and will break, and, is simply an amenity that guarantees nothing. We strongly recommend that if you do have an access gate, you invest in the technology whereby the vehicle and license plate is photographed every time a vehicle passes through the gate. Remember that gates are no substitute for actual security on a property.
SECURITY ADDENDUM All residents should sign a SECURITY ADDENDUM (see below) whereby they acknowledge and agree that no security is provided.
PROVIDING A CRIME REPORT We recommend that you speak to your local law enforcement agency and request a periodic report of all crime occurring or reported on the property or within some set distance of the property. This should be provided to all prospective residents and made available to all current residents. When providing it to the prospective resident, provide it before they give you an application fee or begin filling out the application. Do not drop this little bomb on them after they have been approved and it is time to sign the lease. Post a list of all known sexual predators and/or offenders within a 1-mile radius of the apartment community, and update this list on a regular basis
COURTESY OFFICER Never tell a prospect that you have a security officer or even a courtesy officer. Many of these so-called security officers or courtesy officers are merely companies which drive around through multiple apartment communities each night and/or respond to certain resident complaints. Often the courtesy officer is a resident who is a police officer and is given a reduced rent to live on the property and “make the rounds” at night or “be on-call”. While it is an excellent idea to have a courtesy officer on-site, never should you imply that this is “security” or even mention it to the prospect. When allowing a local law enforcement officer to live on the property for a reduced or free rent, always make that officer sign a detailed “COURTESY OFFICER ADDENDUM”. Many a local law enforcement officer was given a reduced rent or free rent apartment only to work the night shift at the station and have an unmarked car.
SAFETY EVALUATIONS OF THE PROPERTY Your maintenance staff should be fully trained, either by a professional firm or by a local law enforcement agency as to maintaining a property which is not conducive to criminal activity. The type of fencing, lighting, locks, shrubbery, and obstructions all play a part in making your property less likely to be a target. In our opinion, a light that is burned out is an emergency. A light that is continually broken or stolen needs to be replaced with one which is more secure, no matter how expensive. Maintenance needs to check lights on a regular basis and keep a written log of when a light burns out, and when it is replaced. Any steps you take to make your property less welcome to a criminal will be looked upon favorably in court. Doing nothing looks bad.
HIRING ACTUAL SECURITY IN RESPONSE TO CRIME If your property is prone to crime, you have gang activity, unsolved criminal acts are occurring on the property or you are in a high crime area, you just may have to hire true full time or nighttime armed security until such time that the problem is under control, if that ever happens.
NEIGHBORHOOD WATCH MEETINGS Having monthly, or more often if necessary, neighborhood watch meetings on your property will show your commitment to keeping crime off of the property. Encourage residents to report suspicious behavior to you and law enforcement immediately. Contact your local law enforcement agency, as many will assist you in starting, and more importantly, maintaining such a program on the property.
PROPER RESIDENT SCREENING So many apartment communities fall short in conducting criminal background checks on prospective residents. It is crucial that you conduct a criminal background check to the best of your ability, and never fail to have an FDLE Sexual Predator/Offender search performed. This can be easily done by simply going to FLORIDA PREDATORS/SEX OFFENDERS
CONCLUSION: Did you like the recommendations given above? We didn’t think so. It all takes time and money, all the while you are trying to provide affordable housing for your residents. The last thing you should do is do nothing. Evaluate your current situation, and chart a course for increased safety on your property. We recommend that you have your attorney review any addendum or form that your may wish to implement. Below is a sample SECURITY ADDENDUM that may give you a start.
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Fireworks and the Residential Property Manager
Firework usage in Florida during the Independence Day period and New Year’s Eve ranks right up with baseball, hotdogs and apple pie. On top of that, Florida is one of the few states in the US where fireworks are completely legal if used to scare off birds, illuminate railroad tracks, agricultural uses or to start a race. WHAT? Then how come anyone can buy them? Fireworks stores get around the law by having customers sign a statement that they're at least 18 years old, and promise to use the fireworks for the exempted purposes. I am not just talking about sparklers or bottle rockets, but huge rockets, large exploding fireworks with up to 500 grams of gunpowder, firecrackers and aerial bombs. Fireworks that can kill or maim are for sale to the public in Florida every day of the year.
In 2003 over 9300 people were hospitalized due to injuries suffered through the use of legal fireworks. Many fires are started each year due to the use of fireworks, resulting in millions of dollars of damage The US Consumer Product Safety Council http://www.cpsc.gov/library/2003fwreport.pdf gives a chilling account of the dangers of fireworks. The problem the property management industry faces is that most leases do not address fireworks or prohibit them in any way. I am sure the board of directors of the condo where you rent out a unit will love that. This needs to change beginning now. All your new leases should contain a clause such as the one below which prohibits the use of or possession of fireworks on the premises. Can you change or add this to the rules and regulations of your current residents who signed leases prior to your decision to make this prohibition? Most judges would feel that this is a reasonable change or addition to your rules and regulations or community policies, but you need to notify each and every resident of this new prohibition. Enforcement is another issue. Prior to Independence Day or New Year’s Eve, a letter should be posted on every resident’s door advising of your rule and that you are absolutely serious about enforcement. You should make sure your staff abides by this rule as well, as if a resident sees a staff member violating the rule, your enforcement capabilities will be pretty weak. Can you evict someone for violating your fireworks prohibition? Possibly, but do not count on it. In apartment communities, we recommend having staff members patrol the property during the holiday periods where the use of fireworks increases. Many local jurisdictions have prohibitions on the use of fireworks, so the resident may be committing a crime. Suppose fireworks on the property you manage injure someone? Can your company be held liable? Absolutely, especially if you are failing to enforce your rules.
SAMPLE CLAUSE FOR LEASE, RULES/REGS, COMMUNITY POLICY
“Explosive devices, smoke bombs, firecrackers, flares, sparklers, fireworks or any other noise, smoke, flame or spark-creating item or novelty is expressly prohibited in the rental premises or anywhere on the premises or common areas. Possession of and/or use of any of the foregoing by the tenant, any occupants or guests of the tenant whether or not the items are legal or illegal to purchase, possess or use under the laws of the State of Florida, may subject the tenant to eviction from the premises and shall constitute a serious default under the terms of the lease agreement”
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Serving the Three Day Notice
Preparing, serving and acting on a 3-day notice is a lot more complex than most property managers realize. A proper 3-day notice is referred to as “jurisdictional”, which means that if it is not correct in any way, the court will lack jurisdiction to entertain an eviction action. This may result in the case being completely thrown out, and the property manager must start from scratch before filing a new eviction action. If there is an attorney representing the tenant, the attorney in addition to getting the case dismissed can also ask the court to award attorney’s fees and costs, all because the 3-day notice was prepared or served incorrectly. This article will only deal with one aspect of the 3-day notice, and that is how it is served by the property manager.
THE LAW VERSUS THE LEASE Florida law states that a notice may be served by posting on the premises, hand-delivery to the tenant or occupant, or by mail. The problem we run into sometimes are lease agreements which require a different or specific type of delivery. The lease may require that the notice be mailed to the tenant. If this is the case, even though the law allows you to post the notice on the premises or hand-deliver the notice, you MUST mail the notice, because the lease says so. Clauses such as these are often found deep in the lease, requiring that all notices by either party to be in writing and by mail, sometimes even certified mail. “All notices” can be interpreted to include the 3-day notice. Though the majority of leases do not have clauses which govern how the landlord delivers notices, it is a good idea that you check the lease carefully to see if this is the case. Many landlords have leases which were prepared by out of state attorneys, are store bought or purchased from the internet, so review of the lease is a must. If you are preparing a lease, it is best not to even mention how the landlord is to give the 3-day notice, as Florida law is completely clear.
SERVICE BY POSTING ON THE PREMISES The law allows the property manager to serve the notice by “posting on the premises” in the absence of the tenant. We interpret this to mean posting on the door most commonly used by the tenant for entry to and exit from the premises. The notice should be either folded over or placed in an unmarked envelope and securely taped to the door. You may ask why it should not be simply taped to the door, so it is immediately obvious that it is indeed a 3-day notice. It can be. We do not advise this though, as the tenant may have already paid the rent and you misplaced the payment, or the tenant could be on the way to your office just as you are posting the notice. Human nature will make one look at a notice that is posted on someone’s door, so you could end up causing embarrassment to a tenant who did indeed pay the rent. In these times of increasing consumer rights, the tenant could actually sue you for attempting to collect a debt that was already paid. Note that the tenant must be absent. If you do not make any attempt to bang loudly on the door and ring the doorbell (if applicable), but rather pre-tape the notice and quietly affix the notice to the door, you are not serving the notice properly.
SERVICE BY PLACING INSIDE THE DOOR While some attorneys feel this is a good way to serve notice, we are firmly against it. Entering a person’s unit unnecessarily will only enrage the tenant and increase the risk of you being accused of stealing something out of the unit. Remember that a tenant who has not paid rent is often in a desperate situation and will do anything to get out of paying the rent or turning the tables on you.
SERVICE BY HAND-DELIVERY TO SOMEONE OTHER THAN THE TENANT If someone other than the tenant answers the door, and the tenant is not home, you may serve the notice to an occupant who is 15 years of age or older. If you are uncertain about the age of the person who answers the door, it is best to deliver the notice to the person and also securely tape the notice to the door. If the person who answers the door is not an occupant but rather a visitor, babysitter or anyone other than persons who appear on the lease agreement, we recommend that you serve the notice by taping the notice to the door.
SERVICE BY HAND-DELIVERY TO THE TENANT This is by far the best way to serve a notice and is in fact required if the tenant is present. There is no need for the tenant to sign the notice acknowledging receipt. All you need to do is get the identity of the party and hand him the notice. If he rips the notice up and throws it on the ground, you have still done your job. After you have served the notice, fill out the certificate of service on your original, and keep it safely in the file. If you feel that the tenant may be volatile or it could be a dangerous situation for you, you can have a process server serve the notice for you. Remember to make sure that the process server actually serves the notice on the day the notice is dated, or the notice will be incorrect. If the tenant subsequently denies receiving the notice, the process server may be required to testify in court concerning the issue.
ARE WITNESSES NECESSARY? The law does not require that you have a witness or witnesses with you when you serve a notice. In tens of thousands of evictions we have filed, many where the tenant denied receiving the notice, we have only had a few situations in which the judge believed the tenant’s story that he did not receive the notice and denied the eviction. Witnesses are certainly great to have but not legally required. We recommend for safety purposes, or if you suspect the tenant will pay games with you, the property manager consider bringing a witness along in appropriate circumstances.
SERVICE BY MAIL This is by far the worst way to serve a 3-day notice and should only be done if the lease specifically requires you to do so. You may be thinking that this is the easiest way to serve the notice, or even the most certain way, especially if you use certified mail. Certified mail is either refused or unclaimed over 50% of the time by a tenant. If the tenant refuses or fails to claim the certified mail, the tenant has not received notice. Stay far away from attempting to serve a 3-day notice by certified mail. An interesting problem arises when you serve a notice by mail. The law required that when serving a notice by mail, you must add 5 business days to the notice for mailing time. This automatically makes your 3-day notice, which is 3 business days, into an 8-business day notice. On top of that, the law also states that if you demand payment through the mail, you must add another 5 business days for the tenant to mail you the payment. Now we have 13 business days? As you can see, mailing is the least preferred and least recommended way to ever serve a 3-day notice.
THE ORIGINAL OR THE COPY The most common mistake among property managers when serving the 3-day notice is to give the tenant the original of the notice and keep a copy in the file. The tenant should not get the original, but rather get a copy of the notice. The property manager should retain the original of the notice, and on that original the property manager will fill out the certificate of service.
THE CERTIFICATE OF SERVICE The certificate of service is usually found on the bottom of the 3-day notice. If it is not there, it should be. This section usually states “I hereby certify that a copy of this 3-day notice has been served on…” and then has a spot to check off how it was served, to whom and the date of service. The certificate of service only has to be filled out on the original 3-day notice that you are retaining for your file. The certificate of service is your way of keeping a record on how the notice was served, so the judge will know how, when and to whom it was served. It is not necessary to fill the certificate of service out on the tenant’s copy. She knows how it was received, so it is unnecessary to complete this section on their copy. This actually makes notice serving easier. When going to the rental unit, you can have the original on one side of your folder, the copy on the other. Serve the copy, and immediately fill out the certificate of service on the original you are keeping for your file.
CONCLUSION As you can see, this article only addressed the issue of “serving” the 3-day notice. Properly serving an incorrect 3-day notice is just as bad as improperly serving a correct notice. Before you even attempt to serve a 3-day notice, you must be well versed on how to prepare the notice and what you can demand from the tenant on this notice. If you have any questions about the preparation of the 3-day notice, please do not hesitate to call our office for advice at no charge.
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Owner and/or Management does not promise, warrant, or guarantee the safety or security of resident or his/her personal property against the criminal or negligent actions of other residents or third parties. Crime can and does occur at apartment communities. Each resident has the responsibility to protect himself/herself and to maintain appropriate insurance to protect his/her belongings including items within or on the premises and vehicles from criminal acts, negligent acts, fire, windstorm, hurricanes, plumbing leaks, smoke or any acts of God. Residents should contact an insurance agent to arrange appropriate insurance for their vehicle, personal property insurance and liability insurance.
No security system, controlled access gate, fence, gate, door, window, courtesy patrol or electronic security device if provided can guarantee complete protection against crime. Even elaborate security systems are subject to mechanical malfunction, tampering, human error or personnel absenteeism, and can be defeated or avoided by clever criminals. Controlled access gates frequently are non operational as they are often damaged by vehicles, therefore, residents should always proceed on the assumption that they do not exist. Windows can be broken, locks can be defeated, and fences can be climbed or damaged to allow access. The best safety measures are those precautions that can be performed as a matter of common sense and habit.
If security systems, security devices, controlled access gate(s) or walk-through services are employed at this community, no representation is being made that they will be effective to prevent injury, theft or vandalism. Such personnel, if provided, cannot physically be every place at every moment. Usually, such personnel are unarmed independent contractors and have no greater authority under the law to restrain or arrest criminals than the ordinary citizen. Therefore, Management does not warrant that any services, devices or persons if employed at this community will discourage or prevent breaches of security, intrusions, thefts or incidents of violent crime. Further, Management reserves the right to reduce, modify or eliminate any system, devices or services (other than those statutorily required) at any time. Resident agrees that such action shall not be a breach of any obligation or warranty on the part of Management. Management may at time place real or dummy video or surveillance cameras throughout the apartment community but Management makes no representations that these cameras are working, recording or even operational.
Resident agrees to notify Management promptly and in writing of any problem, defect, malfunction or failure of door locks, window latches, lights, controlled access gates, and any other access related device.
ACKNOWLEDGMENT BY RESIDENT
I have read, understand and agree with the above notice. I have received no representations or warranties, either expressed or implied, as to any security, the safety of the property, or presence of any security system on the property, or guarantee that the apartment community was or will be free from crime. I further acknowledge that Management is not obligated under any circumstances to respond to any signal from an intrusion alarm system. The responsibility for protecting me, my property, my family, guests and invitees from acts of crime is the sole responsibility of myself and law enforcement agencies.
I agree to release and hold harmless Management and the Owners of the apartment community, its employees, agents and assigns from claims arising out of criminal acts of other residents and third parties. I agree that Management and the Owners of the apartment community, their employees, agents and assigns shall not be liable to me based upon any claim that security was not provided. Resident acknowledges that the foregoing shall also be binding upon Resident’s heirs, relatives, successors, guests and assigns.
This document contains the entire agreement with respect to its subject matter. Management and Owner representatives have no authority, except when in writing and signed by all parties to make changes or modifications in the terms of this document.
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2005 SESSION LEGISLATIVE ITEMS
AS OF JANUARY 25, 2005
Bills are being filed in the Florida legislature which will have an effect on the residential property manager. To see the full text of these bills, go to FLORIDA LEGISLATUREand type in the appropriate bill number. HB means House Bill, SB means Senate Bill. If you are a current member of the Florida Apartment Association or the Florida Association of Residential Property Managers, we strongly urge you to get involved as soon as possible with the legislative committees of these associations and plan on attending the Legislative Day in Tallahassee this year. Mark your calendars for March 30 and 31, 2005.
HB 0117 Relating to Mold Assessment & Mold Remediation Representative Domino Mold Assessment & Mold Remediation; provides legislative purpose; provides scope of part; provides for fees re licensure of mold assessors & mold remediators; provides for licensure examinations; provides for licensure of business organizations; provides for qualifying agents; establishes requirements for continuing education; prohibits performing more than one specified activity on given project; provides severability, etc. Creates 489.601-.617; amends 489.107.
SB 0590 Relating to Mold Assessment and Mold Remediation Senator Bennett Mold Assessment and Mold Remediation; provides for fees re licensure of mold assessors & mold remediators; provides for licensure exams; requires good moral character; provides for licensure of business organizations; requires that Construction Industry Licensing Board approve training courses & training providers for mold assessors & remediators; establishes prohibitions; allows board to provide, by rule, for multiple services, etc.
SB 0212 Relating to Residential Tenancies/Utilities Senator Lynn
Residential Tenancies/Utilities; includes air conditioning as utility service to tenant which may not be terminated or interrupted by landlord. Amends 83.67.
HB 0309 Relating to Electrical/Alarm System Contracting Representative Machek
Electrical/Alarm System Contracting; exempts certain employees of residential condominium associations or homeowners' associations from electrical & alarm system contracting regulation. Amends 489.503.
SB 0634 Relating to Fire Alarm System Contracting Senator Bennett
Fire Alarm System Contracting; provides criminal penalty for intentionally or willfully installing, servicing, testing, repairing, improving or inspecting fire alarm system without being in compliance with specified provision re licensure requirements for fire alarm system agents. Amends 633.702. (Back to Top)