VOLUME 2 - ISSUE 5 LEGAL UPDATE

- Letters From Attorneys - You Received One, Now What?
- Terminating a Tenant for a Lease Noncompliance - It is Harder Than You Think
- Hot Lease Tip! The Pet Addendum and Removal of the Pet

 

 

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

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

Why do we receive letters from attorneys?

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

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

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

Contents of the letter

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

Should you respond to the attorney?

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

Here is the easy solution.

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

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

OR

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

What if you completely ignore the tenant’s attorney?

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

The attorney letter trick exposed

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

So your attorney has responded, now what?

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

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

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

Winning and Losing the Seven Day Noncompliance case

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

Is your attorney a wimp?

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

The judicial attitude in the Seven Day Noncompliance case

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

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

How do we prove the case in court?

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

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

Does the Noncompliance have to be severe?

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

I have petitions and statements signed by 5 residents!

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

What does your attorney need to win these cases?

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

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

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

Unauthorized Pets – First you need to make sure the prior manager did not authorize the pet or the pet has not been there for a long time, which can cause a waiver.

1. Pictures of the pet, date and time stamped; 2. Witnesses who have seen the pet; 3. Pictures of the tenant walking the pet; 4. Maintenance who will testify to pet food or pet bowls in the unit; 5. Recording of barking when you go to the door, if a dog that is; 6. Picture of the pet damage; 7. Picture of the pet coming to the window; 8. Hard proof after the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

Noise Disturbances – These case are tough, as usually there is no police involvement, and the complaints come from other tenants who may just be angry at each other, or a group of tenants have it out for one tenant. Are we really dealing with a tenant versus tenant war?

1. Records of multiple tenant complaints; 2. Police reports; 3. Tenant witnesses who will appear in court; 4. Witnesses who are employees of the landlord; 5. Multiple provable disturbances; 6. Courtesy officer who will appear in court.

Unsanitary Unit – Is the unit really unsanitary or just an extremely cluttered mess? Many times we deal with accumulators who throw nothing out and have piles of newspapers, clothes and books throughout a rental unit, with only a small path in which to walk. Is this unsanitary or just strange?

1. Pictures of unit; 2. Pictures of kitchen, bath and anything “unsanitary”; 3. Pictures of exposed and rotting food; 4. Pest control personnel who will come to court; 5. Infestation of vermin; 6. Strong odor; 7. Maintenance staff that must come to court; 8. Other staff who will come to court.

Emotions and the Seven Day Noncompliance case

We see situations where property managers get angry at a tenant and “just want them out”. This is the worst possible situation because the anger and frustration of the property manager is now running the show. That unauthorized occupant who was not a problem for three months all of a sudden becomes a big problem, because he came into your office and was belligerent. That person with the unauthorized pet was left alone until it defecated in front of the office or got loose and scared another tenant. Never let your emotions dictate your actions when deciding to terminate a tenant. Follow the law, get your attorney involved early, and be cautious.

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HOT LEASE TIP! THE PET ADDENDUM AND REMOVAL OF THE PET
by Harry Anthony Heist, Attorney at Law

Your tenant has signed a Pet Addendum, but now you received a letter from the insurance company stating that no pets of a particular breed are allowed. Possibly the tenant’s pet was aggressive or gets loose too often. Maybe you noticed carpet damage and a foul odor during a recent inspection. Can you just ask the tenant to remove the pet? Will you end up in court having to prove what the tenant’s pet did? Will there be a dispute over the breed of the pet? Unless we are dealing with service animals, the fact that a tenant is allowed to have a pet on the premises should be a privilege and not a right. This privilege is granted to the tenant through the lease agreement and particularly the Pet Agreement or Pet Addendum. Problems will arise during a tenancy which may not easily be dealt with due to defects in the Pet Agreement or Pet Addendum, hereinafter the “Agreement.”

The typical “Agreement”

The typical Agreement deals with the charges for the pet, number of pets, weight limits, breed, conduct of the pets, and damage due to pets. Most Agreements are clear that a pet must be kept on a leash at all times, use certain areas to do their business, should not disturb neighbors, and limitations are imposed on offspring.

The Pet Problems

Breed – While many Agreements prohibit certain breeds, somehow pets slip though the cracks, because the property manager does not get a letter from a vet as to the breed, the breed is a strange name or the pet is of a breed that is mixed with one of the prohibited breeds. Now we have a dispute as to whether the dog is a prohibited breed. A diligent property manager confirms the breed before taking the pet fee or pet deposit.

Weight – Often the dog’s weight is not checked or increases dramatically over time and now is in violation of the weight limit five months into the tenancy. What is the tenant supposed to do, put the dog on a diet?

Aggressive behavior – Many dogs appear to be aggressive or exhibit what we call aggressive behavior. This is extremely subjective, as a dog lover or owner may consider the dog to be affectionate, while someone else may be in fear of her life just upon seeing the dog. How do we gauge or define what aggressive behavior really may be?

Creating unsanitary conditions – Many tenants are just plain lazy and refuse to use the designated areas for the pets to defecate and urinate, or fail to clean up after their pet. Are we going to follow the tenant every time they walk their dog and take a video?

Damage to the premises – Pets can and often do damage carpeting and walls in a short period of time. You could serve a tenant a Seven Day Notice of Noncompliance with Opportunity to Cure for the damage, but is the tenant going to replace the carpet? If they do, will the damage cease?

Barking – Many pets behave like a charm when their owners are home, but the minute the owners leave, howl and bark all day and night. The tenant denies this profusely as they never hear this happening. Are you going to set up recording equipment?

Fact Issues

All the aforementioned problems with pets are factual issues. Factual issues can and are disputed in COURT. In order to win in court, you must prove that the Agreement is violated and present the “facts” which will be disputed in court. Tenants who are asked to remove their pet are not apt to just say OK and will often fight you in court.

A privilege and not a right

We feel that a tenant being able to have a pet on the premises is a privilege and not a right. This privilege should be a revocable one at your sole discretion. However, if your Agreement does not clearly spell this out, you will have a major problem getting a tenant to either remove the pet or vacate the premises. By using the following wording, you will have a better chance of being successful in either getting the tenant to remove the pet, or if this does not occur, evicting the tenant and their pet from the premises. As always, before you serve a Seven Day Notice to Cure to the tenant, we recommend that you call your attorney for the proper wording.

SAMPLE LANGUAGE FOR YOUR PET AGREEMENT OR PET ADDENDUM

Tenant(s) agree that approval, denial, or continuing permission to keep a pet or pets on the premises is at the sole discretion of owner or agent. Landlord, owner or agent reserves the right to withdraw consent at any time by giving the Tenant(s) 7 days written notice to remove pet(s) from the premises for any reason at all including but not limited to noise, barking, biting, odor, damage by pet, unsanitary conditions caused by pets, breed of pet, disturbances, or threatening behavior towards other Tenant(s), employee(s) of owner or agent or any person(s). In the event the pet(s) are not removed after notice, Tenant(s) will be subject to eviction and shall be in breach of the lease and this agreement. Tenant(s) agree that keeping a pet on the premises is a fully revocable privilege and not a right.

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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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