VOLUME 2 - ISSUE 8 LEGAL UPDATE
- Transferring the Problem Tenant On-Site
- The Killer Seven Day Rent Withholding Letter From the Tenant
- Condo/Homeowner Association Attorney’s Fees and the Unit Owner
TRANSFERRING THE PROBLEM TENANT ON-SITE
by Harry Anthony Heist, Attorney at Law
Who is this “Problem Tenant”?-- The problem tenant is fairly easy to spot. He is complaining about his neighbors, every new neighbor that moves in, constantly has repair issues in his unit, has his door kicked down in the middle of the night by an ex-girlfriend, seems to be hypersensitive to every little noise he hears, is never satisfied with anything, thinks his carpet smells, thinks there is mold in his apartment, does not like the location of his unit, is being stalked by former friends. Have you met him yet? Well, he wants to move to another unit on-site.
Should you move the “Problem Tenant”? -- A natural response by a leasing agent or property manager is to try to accommodate a tenant and not have a vacancy. Some of the tenant’s claims may be legitimate, but how many are really caused by the tenant or due to something the tenant has created in his life? Will moving the tenant to another unit really solve anything, or will the problems just continue or possibly escalate?
Examine the tenant’s complaints – An experienced property manager will take each and every complaint and objectively examine whether an on-site move is really the solution to the problem. Let’s look at some of these complaints. Noise from neighbors: you may have a unit in a very quiet building with no children and assume that this would make him happy. Suppose a family with children move in. Where will you be now? Stalking or damage to the premises due to an ex-girlfriend: do you really think that the ex-girlfriend will not be able to find him once you move him to another building? How many times have we seen knock down drag out relationships get patched up again, only to deteriorate into a problem once again? Odor of the carpet or mold: can you detect any odor in the carpet, or is this guy just imagining an odor? Have you seen any mold? Do you really believe that once he is in the new unit, he will be happy, and everything will be just perfect?
- If the tenant is moving to a larger or smaller unit, and the request to move is not coupled with a myriad of other complaints, this is really a different issue, and usually there is no problem involved. Possibly the family size has changed, or the tenant needs an additional bedroom for a home office. Not all moves on-site are suspect or should be avoided.
The Decision – Careful thought needs to go into relocating a tenant on-site. Our experience has shown that in most cases, the problem follows the tenant and will follow the tenant his entire life. A geographical relocation on the premises usually will do nothing other than cause you a further headache and make it appear that you are giving this resident some sort of special treatment, which could even end up as an issue in a Fair Housing case against you by another resident.
The Mechanics of the Move – A typical property manager simply makes an addendum or new lease with the tenant and sets a moving date. Unfortunately, huge problem can arise when moving a tenant, including but not limited to dealing with damage left behind, the incomplete move, monies owed on the first unit, the list goes on and on. In the September issue of the Email Newsletter, we will be examining the “MECHANICS OF THE ON-SITE TENANT RELOCATION”
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THE KILLER SEVEN DAY RENT WITHHOLDING LETTER FROM A TENANT
by Harry Anthony Heist, Attorney at Law
A Letter from the Tenant?-- A certified mail or regular mail letter from a tenant, now that is a change. Usually it is the property manager who is sending the letters and notices. You open the letter up expecting the tenant to be breaking his lease, but instead it contains a five page list of demands on you to make repairs to the property. The letter ends by saying that if you do not make the repairs within 7 days, the tenant will either withhold rent or break the lease. Rent is now due, and you have served a Three Day Notice. Can you file an eviction? Can the tenant break the lease? Does this need to be taken seriously? We commonly call this letter a “rent withholding letter” or “7 Day Letter from a tenant”.
Does the tenant have an attorney? -- If you receive a rent withholding letter from a tenant or even a letter that implies that the tenant is going to withhold rent, or worse yet, mentions something about you fixing something within 7 days, you can be almost 100% assured that the tenant has gotten legal advice. This means that there is an attorney lurking in the shadows somewhere in a dark alley, waiting to see if you fail to make the repairs within the 7 Day time frame as demanded in the letter.
The Landlord’s maintenance responsibilities - -- A landlord is required by the lease and Florida law to maintain the premises. While the lease normally states what the tenant’s responsibilities may be, if it is not stated in the lease that the tenant is responsible for a particular item, frequently the implication is that the landlord is the responsible party.
Florida Law and the Landlord’s Duties- Florida law states the landlord’s responsibilities regarding maintenance in Florida Statutes 83.51. Landlord’s obligation to maintain premises. (1) The landlord at all times during the tenancy shall:
(a) Comply with the requirements of applicable building, housing, and health codes; or
(b) Where there are no applicable building, housing or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. However, the landlord shall not be required to maintain a mobile home or other structure owned by the tenant. The landlord's obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex
. (2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for: 1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs. When vacation of the premises is required for such extermination, the landlord shall not be liable for damages but shall abate the rent. The tenant shall be required to temporarily vacate the premises for a period of time not to exceed 4 days, on 7 days' written notice, if necessary, for extermination pursuant to this subparagraph
. 2. Locks and keys.
3. The clean and safe condition of common areas.
4. Garbage removal and outside receptacles therefore
. 5. Functioning facilities for heat during winter, running water, and hot water. (b) Unless otherwise agreed in writing, at the commencement of the tenancy of a single-family home or duplex, the landlord shall install working smoke detection devices. As used in this paragraph, the term "smoke detection device" means an electrical or battery operated device which detects visible or invisible particles of combustion and which is listed by Underwriters Laboratories, Inc., Factory Mutual Laboratories, Inc. or any other nationally recognized testing laboratory using nationally accepted testing standards
. (c) Nothing in this part authorizes the tenant to raise a noncompliance by the landlord with this subsection as a defense to an action for possession under s. 83.59
. (d) This subsection shall not apply to a mobile home owned by a tenant.
(e) Nothing contained in this subsection prohibits the landlord from providing in the rental agreement that the tenant is obligated to pay costs or charges for garbage removal, water, fuel, or utilities.
(3) If the duty imposed by subsection (1) is the same or greater than any duty imposed by subsection (2), the landlord's duty is determined by subsection (1).
(4) The landlord is not responsible to the tenant under this section for conditions created or caused by the negligent or wrongful act or omission of the tenant, a member of his family, or other person on the premises with his consent.
The Letter from the Tenant- What does it look like The letter from the tenant will often be a complaint letter listing one or more items and demanding that the landlord fix these items. In order for the tenant to withhold rent or break the lease, first these items must be those that allow the tenant to withhold rent or terminate, and secondly, the letter must give the landlord 7 days to fix the items and state in the letter that failure to repair will result in rent withholding or the tenant breaking the lease. The letter needs to be in writing, but some judges have held that verbal or actual knowledge by the landlord was enough for the tenant to comply with the tenant’s obligation of putting the landlord on notice. Here is Florida law pertaining to termination of the rental agreement. FS 83.56 (1) If the landlord materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement. If the failure to comply with s. 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the landlord and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows: (a) If the landlord's failure to comply renders the dwelling unit untenantable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable. (b) If the landlord's failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance
For what items can the tenant legally withhold rent or terminate the lease?
A technical reading of Florida Statute 83.60(1), the section of Florida law specifically addressing the tenant’s right to withhold rent, indicates that a tenant’s right to withhold rent is restricted to violations of 83.51(1), which essentially involves the landlord’s failure to maintain the property up to existing building, housing or health codes. The tenant has the right to terminate the lease when an 83.51(1) violation exists, or if the landlord is failing to provide a material provision of the rental agreement. The right to terminate is actually a more expansive right, and what constitutes a material provision of the lease can be subjective. However, many judges allow the tenant to withhold rent for items that would not technically constitute code violations (for example, a refrigerator problem).
The Letter from the Tenant- What does it do? A letter from the tenant in accordance with Florida law will allow a tenant to break the lease if the problem is not repaired within 7 days AND will create a complete defense to an eviction action IF the problem has not been repaired within 7 Days. This is a very powerful tool the tenant has, and if the landlord receives such a letter, it should NOT be taken lightly, and most importantly, it should not be withheld from the attorney who may be filing the eviction action. Here is Florida law showing how the tenant’s letter could be a complete defense to an eviction action and stating the strength of the tenant’s letter to you. FS 83.60(1) …The defense of a material noncompliance with s. 83.51(1) may be raised by the tenant if 7 days have elapsed after the delivery of written notice by the tenant to the landlord specifying the noncompliance and indicating the intention of the tenant not to pay rent by reason thereof. Such notice by the tenant may be given to the landlord, the landlord's representative as designated pursuant to s. 83.50(1), a resident manager, or the person or entity who collects the rent on behalf of the landlord. A material noncompliance with s. 83.51(1) by the landlord is a complete defense to an action for possession based upon nonpayment of rent…
- Failure to disclose to your attorney that you have received a rent withholding letter, or 7 Day Letter as we commonly call it, can be deadly. Your attorney will file the eviction, the tenant will post the rent into the court registry and the judge may look at the letter as a complete defense to the eviction action, throwing the case out of court and holding you liable to pay a substantial amount of money in attorney’s fees to the tenant’s attorney. NEVER hide a letter like this from your attorney.
So you received the letter from the tenant, What should you do? – Notify the property owner, explain the law to the property owner, get the necessary funds and authorization, and get the repair done immediately. Judges are not keen on your excuse that you had no money from the owner to make the repairs, or you had to get 5 bids, or that no one could come out to make the repair. While all repair requests should be taken seriously, a repair request in the form of a 7 Day Letter from a Tenant or a Rent Withholding letter needs to be given the utmost priority.
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CONDO/HOMEOWNER ASSOCIATION ATTORNEY’S FEES AND THE UNIT OWNER
by Harry Anthony Heist, Attorney at Law
The Condo/Homeowner Association Attorney Letter-- A letter comes in from the president of the Condo Board of Directors or management company informing you that a tenant has a grill on the lanai in violation of the rules. You speak with the tenant, and the grill disappears. Two months later you receive a bill from the condo association for $500.00 legal fees for the attorney writing a letter to the property owner at the request of the management company for the condo association. Whose responsibility is this? You feel you did the best you could to get the tenant to comply. You thought the tenant complied. Can this be avoided? Should it be paid?
Risks of Managing units in Condo/Homeowners Associations -- A property manager who deals with units in Condo/Homeowners Associations, hereinafter “Association(s)” needs to be well versed in the rules and regulations of the Association. The rules and regulations often change periodically and with no notice to the property manager, so it is crucial that the property manager stays completely on top of the changes to avoid situations such as allowing the tenant to have a pet when they just enacted a “no pets for renters policy”, or placing a tenant who has a motorcycle in a unit when there has been a “no motorcycle” rule put in place, or placing 4 unrelated individuals in a unit when recently a “no more than 3 unrelated individuals in a unit” rule has been passed. Property managers often think it is unfair when the Association decides to change or add rules, but unfortunately, that is the right the Association has, and they are under no obligation to notify the property manager. Their notification to the unit owner who may live far away is enough under the law.
It is the responsibility and the duty of the property manager to keep up on ALL the rules and regulations of the Association and especially follow all rules pertaining to Association approval of tenants. Many Associations are easygoing or lax about even requiring tenant approval, but then all of a sudden decide to selectively enforce their rules against you. Many Associations have deep seated resentments against renters in their little fiefdom and will do whatever it takes to keep tenants out. Should you just give up and stop managing in Associations? No, all you need to do is follow the rules and take special care, as not only is your property owner expecting you to do everything properly, but often unreasonable Association members are spending the entire day sitting on their lanais watching your tenant’s unit to see if there are any noncompliances.
General practices when managing in Associations – Fair Housing laws prevent you from discriminating by picking and choosing who you decide to rent to in an Association. However, there is nothing wrong with deciding not to rent to a group of individuals who you feel may become a problem if they are not from a protected class. Can you decide not to rent to college students in an Association? Yes, as long as there are no local laws which have made college students a protected class. This needs to be checked with your county or city.
An experienced property manager will have checked all the most recent rules and regulations and have created a checklist so nothing slips through the cracks. Motorcycles, number of vehicles, commercial vehicles, unrelated person rules and all other rules need to be checked before entering into a lease. When renting in Associations, since we know there are more rules than usual, and unit owners are policing the property day and night, a property manager needs to inspect the property frequently, checking vehicles and especially taking notice to visible areas such as the patios, breezeways and lanais. These are frequently the source of complaints by the Association members.
- Often you will receive a letter or call from the management company for the Association or the president of the Association, under which they are stating some complaint about your tenant violating a rule or regulation. It could be as simple as having a grill on the lanai in violation of the rules or more serious, such as loud noises, music or disturbances.
The Most Common Mistakes – The most common mistakes a property manager makes after receiving notice that the tenant may be in some kind of violation is to take sides with the tenant, get defensive with the Association or worse yet, write a letter to the tenant. The tenant should immediately be served a Seven Day Notice of Noncompliance with Opportunity to Cure, whether you believe the Association or not. Your job is to manage the unit and keep it free of noncompliances. If the Association claims there is noise, get as many details as possible, and serve the proper NOTICE. If there are unauthorized occupants alleged, serve the proper NOTICE, if there is a grill on the lanai, serve the proper NOTICE. Letters are useless, legally insignificant wastes of time. Your job is NOT to defend the tenant or be a tenant advocate against an “unreasonable” association. Your job is to protect the owner from the actions the Association can take against the unit owner, if in fact it is proven that your tenant is indeed in non- compliance.
Keeping the Association Informed – After receiving a complaint from the Association and after taking the proper action, which is usually the service of a Seven Day Notice of Noncompliance with Opportunity to Cure, you should immediately copy the Association or its management company with the notice, showing the actions you are taking and asking them to notify you immediately if the problem continues. If the noncompliance is of a nature where it is visible, such as accumulations of trash on a lanai or balcony, or a forbidden grill, you need to get over there and check the unit for compliance, and if compliance does not occur, take further action, all the while keeping the Association and/or the management company informed.
What can the Association do to the unit owner? – The Association usually has the rights under its bylaws to hire its own attorney, deal with the problem and charge the unit owner for the attorney’s fees it incurs. Attorneys for Associations routinely deal with these matters, write a couple of letters and hit the unit owner with a $500.00 bill. The unit owner now receives this bill and is outraged that he or she has to pay the bill, and finger pointing begins. Sorry to say, often the finger is pointed directly at you, and often you have not taken the necessary swift action against the tenant. You are now stuck in the middle of the fight between the Association, the unit owner who does not feel responsible and a tenant who may still be in noncompliance. The matter can escalate even further, as the attorney for the Association usually has the power and right under the bylaws to institute an eviction action on behalf of the unit owner WITHOUT the unit owner’s permission. Here you will see a $2000-$5000 eviction being filed against the tenant. Most property managers do not realize that a typical eviction fee often far exceeds $1000.00 when performed by a large law firm or by a firm that does not handle volume evictions.
Finally, if you are dealing with a noncompliance by a tenant in an Association, get your attorney involved early on to avoid having a simple problem escalate into a large, expensive issue. Communication early on is the key to success in dealing with the noncomplying tenant and maintaining a good relationship with a condo or homeowner’s association.
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