VOLUME 2 - ISSUE 9 LEGAL UPDATE
- Insuring a Smooth Tenant Eviction
- The Proper Use of Stipulations
- Requiring Notice Prior to Lease End
- Security Deposit Timing Review
INSURING A SMOOTH TENANT EVICTION
by Harry Anthony Heist, Attorney at Law
Evictions are being contested at a record rate. Tenants are hiring attorneys at a record rate. While many tenants have no legal basis for contesting the eviction, they are still able to file an answer with the court and too often get a court hearing, which causes significant delays. Most of the time, the tenant does not win in court, but the resulting delay causes significant financial harm to the landlord. In many cases a tenant will contest the eviction and actually have a legal basis for contesting the case. Some successful defenses to an eviction action include but are not limited to:
1. Late charges on the Three Day Notice which are not considered “additional rent” in the lease.
2. Amounts other than rent on the Three Day Notice.
3. A pattern of late payments.
4. All adults not on the Three Day Notice.
5. Address discrepancies.
6. Notices or letters sent to the tenant AFTER the Three Day Notice given.
7. Verbal agreements or conversations between landlord and tenant.
8. Accumulated late charges.
9. Deficiency or repairs needed on the property.
10. Failure to receive notice
11. “Hard times defense”
12. Denial of noncompliance
While it is impossible to prevent a tenant from contesting an eviction, it is possible to LIMIT the things for which the tenant can contest. This is actually very easy, but takes a commitment on the part of the landlord to do it correctly. Over 50% of all paperwork that comes into our office for eviction filing is wrong in one or more ways. This is unnecessary and inexcusable. It creates more work for the attorney and staff and often requires a re-do of the notice or notices. Redoing the notice results in delays, and more money is lost by the landlord unnecessarily. Following the Speedy Eviction Tips and using the Three Day Notice Checklist can cut down on mistakes substantially. Successful landlords use checklists and procedures manuals. Haphazardly preparing and servicing notices is a recipe for disaster.
“SPEEDY EVICTION TIPS”
EXAMINE! - - Is the Certificate of Service filled out on your 3 day? Are all residents listed?
EXPLAIN! - - Explain any strange amounts that do not match up to your lease rent amount.
FAX! - Send all pages of lease and 3 day notice. Don’t forget the back pages!
USE A FAX COVER SHEET – Use your attorney provided transmittal form or fax cover sheet
CONFIRM! - - Call and confirm that your attorney has received all pages. A fax machine can pull through more than one page at a time! A power outage can make it appear that your attorney has received a fax, but in actuality, it was in memory and now is gone forever!
SEND EARLY IN THE DAY!!!! - - Most of the time there is no charge to you if the case is pulled before it is filed with the Court
CALL IF YOU FIND RESIDENT’S PAYMENT IN THE MORNING!!!
__ADDRESS: The address on the notice must be correct. a full and complete address is necessary, i.e., county, unit #, left or right side, upstairs or downstairs, street, road, drive, etc. Note: if notice/lease do not match completely, please confirm the proper address on the cover page.
__DATES: The dating of the notice is crucial. i.e., three full business days, excluding Saturdays, Sundays, legal holidays and the day you serve it. Note: Please make sure the certificate of service is filled out completely prior to faxing the notice to our office.
__AMOUNTS: Only the past due undisputed amount of rent should be on the notice. if there are any other charges on the notice they must be considered “additional rent” Note: if the amount on your notice does not match exact amount of one month rent per the lease please provide us with a breakdown of the total.
__NAMES: All adult occupants should be listed on notice, i.e., those who are on the current lease but may have moved out and those who are not on the lease but have established tenancy. Also, correct spelling and the full names are necessary. Note: If the notice is inconsistent with the lease please give an explanation on cover page.
__DOCUMENTS NEEDED TO BEGIN EVICTION: COVER PAGE Please review the information above, this will help us to speed your request. Include permission to file the eviction(s) and any information and explanations of discrepancies, etc. as stated above if necessary. LEASE Please fax all the pages of the lease, if there is no lease please provide the terms on cover page, (i.e., month to month, week to week, rental amount, the day rent is due, etc.) EXPIRED NOTICE i.e., Three day, non renewal, etc. THREE DAY AMOUNT BREAKDOWN FORM. (Breakdown three day amount only)
REMEMBER! YOU CAN NEVER ALTER A NOTICE AFTER SERVICE
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THE PROPER USE OF STIPULATIONS
by Harry Anthony Heist, Attorney at Law
What is a Stipulation?
A Stipulation is an agreement between the parties of an eviction action that sets out when the tenant will pay certain sums, when the tenant will vacate in some situations and what will happen if the tenant fails to pay the sums or vacate. A Stipulation is a legal document that is submitted to the court and signed by the Judge. Once signed, it becomes an Order of the Court and is enforceable by the landlord in the even the tenant fails to comply in any way. A Stipulation is not simply a hollow, unenforceable agreement between the parties. It is in essence a Final Judgment that is deferred. If the tenant complies, no Final Judgment is ever needed. If the tenant fails to comply, a Final Judgment is entered and the tenant is removed. The most common misconception is that stipulating means giving up something or caving in to the tenant’s demands. This is the farthest from the truth. The decision to use a Stipulation is made by the landlord, and the landlord calls the shots and sets the terms. If the tenant does not agree, no Stipulation is signed and no harm has been done.
Benefits of Stipulations
Stipulations can be an excellent resident retention tool. If a tenant is under eviction for nonpayment of rent, the tenant has some choices. They can fight the eviction, or they can move out. If a tenant is going to move out, they will need money to move. The tenant sits back and does not pay rent during the eviction, saving money so they may move. Usually, the landlord does not want to play any more games with the tenant, as there have already been a number of broken promises. If the tenant comes to the landlord begging to stay and offering to pay some money, the landlord is usually not sympathetic, and the tenant either fights the eviction or leaves some time during or at the end of the eviction. This is where the Stipulation comes into play. A Stipulation allows the landlord to accept money without jeopardizing the eviction process. A Stipulation also can set a fixed date for the tenant to vacate, and if the tenant fails to do so, the eviction will continue, lessening the time to remove the tenant.
1. Allows the landlord to accept rent without killing the eviction.
2. Puts the tenant on a Court-ordered and enforceable payment plan.
3. Prevents the tenant from contesting the case or contesting the case further if already contested.
4. Sets a fixed date in certain situations for vacating.
5. Allows landlord to collect attorney fees, late fees and any other amount on which the parties can agree.
6. Allows the eviction to start right up again upon noncompliance; i.e. failure to pay or vacate, if applicable.
7. Avoids court hearings or trials
8. Allows any rent that was deposited into the court registry to be released to the landlord.
9. Cuts down on the anger involved with litigation and prevents angry destruction of the property.
When can you Stipulate
You can only Stipulate after an eviction has been filed with the court. You cannot use a blank Stipulation form or imply that an eviction has been filed. This is a serious mistake that some landlords make and can get a landlord in a lot of trouble, as it is simulating legal process. Once the eviction is filed, you can Stipulate at any time during the process even up to the moment the Sheriff is at the door removing the tenant from the premises.
When should you Stipulate
If the tenant’s only problem is nonpayment or late payment of rent, the situation is ripe for Stipulation. Ideally, the landlord should only enter into a “Pay and Stay” Stipulation if the tenant shows that they have a good portion of what is owed, or will have a good portion within a few days. If the tenant has filed an answer and posted rent into the court registry, this is usually a prime situation for a Stipulation. If the tenant is asking you for a week or so, or has paid for or wants to pay for an extension, you may want to consider the “Leave at a Fixed Date” Stipulation.
1. The “Pay and Stay Stipulation” – This type of Stipulation should be used only if you are not having any other problems with the tenant other than nonpayment or late payment of rent or other charges. You do not want to use a “Pay and Stay” Stipulation if you are having major problems with the tenant or just want the tenant out. While this Stipulation does not “solve” the tenant’s financial problems, it enables you to continue the eviction if any payments are missed. This is an extremely successful Stipulation, and in the vast majority of cases, the tenant complies with the Stipulation and gets back on the normal on- time payment routine. This Stipulation has resulted in many tenants not having to be evicted from the premises and saves all parties a lot of grief. Additionally, if a tenant has posted rent into the court registry, this Stipulation will allow this money to be released to the landlord and avoid a court hearing or trial.
2. The “Leave at a Fixed Date” Stipulation – This is an excellent Stipulation to use if there is a problem with your eviction case such as a defect, the tenant has contested, or the tenant simply is asking for more time to stay. The landlord can agree that a certain sum is paid by a certain time, the tenant can “buy” more time, or the parties can agree on a fixed date for the tenant to vacate with no money being exchanged. Many times a tenant just asks for a week or other short period and promises to vacate. The landlord is often not apt to want to do this and refuses. The tenant the files and answer with the court, the Judge sets a hearing, and the tenant ends up staying for a far longer time than the one week for which the tenant originally asked. The “Leave at a Fixed Date” Stipulation is excellent to use if the tenant has posted rent into the Court registry, or the landlord is holding a last month’s rent or advance rent. The Stipulation can address these issues and allow the landlord to access these funds quicker.
The Mechanics of Stipulating
If the tenant comes to you and wants to “cut a deal”, pay and stay or leave at a fixed date, the landlord needs to immediately think Stipulation! The landlord should never accept any money, make any agreements or have a Stipulation signed by anything less than ALL the parties to the eviction action. The landlord needs to see how much money the tenant has, how much the balance is and how the balance will be paid. Once this is determined, it is just a matter of filling in the blanks on the Stipulation that the attorney provides.
Avoiding Stipulation Mistakes
An improperly filled out Stipulation can be worse than not stipulating at all. The landlord needs to take their time, read the Stipulation Instruction Form and fill in the blanks step by step. 1. Never accept uncleared funds when stipulating. Insist on money orders. 2. Never stipulate unless all parties are present. 3. Avoid stipulating if tenant has absolutely no money, unless it is a “Leave at a Fixed Date” Stipulation and you want them to leave and do not care about the money. 4. Use the proper Stipulation form, be it the “Pay and Stay” or “Leave at a Fixed Date” 5. Send the ORIGINAL Stipulation to your attorney IMMEDIATELY
Suppose the tenant fails to follow the Stipulation
Unfortunately, people do not always do what they are supposed to do, so there will be times when the Stipulation is not followed. We have found that the majority of Stipulations are adhered to, making for a happy landlord and tenant, but there will be times when a payment plan is not met, or the tenant fails to vacate per the Stipulation. If this occurs, you need to notify your attorney immediately, and an affidavit of noncompliance is prepared. This affidavit is then submitted to the Judge, and in most cases the Judge signs the final judgment without a hearing, and a writ of possession can be issued for removal of the tenant. The entire process of removal of the tenant following a noncompliance with the Stipulation takes approximately 10 days, sometimes more, sometimes less. Court is avoided, the tenant cannot usually contest or stop the process, and the tenant is removed.
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REQUIRING NOTICE PRIOR TO LEASE END
by Harry Anthony Heist, Attorney at Law
Many leases have a clause stating that the tenant must give the landlord a certain number of days notice in writing that they are vacating at the end of the lease. If the tenant fails to give this notice and vacates, the landlord tries to charge the tenant a specific amount for failure to give this notice. While it is our opinion that a landlord should do their best in determining whether a tenant is staying or going through the use of notices to the tenant which require a response by a specific time, landlords still insist on charging for insufficient or nonexistent notice. Florida law now allows this, but if it is not done properly, the landlord can find themselves in serious trouble, especially if they report the amount charged to a collection agency, and it winds up on a credit report.
A careful reading and understanding of the law is crucial if the landlord insists on charging the tenant an amount for failure to give notice. Unfortunately, the law is a bit tricky, as it requires the landlord to give the tenant notice that they will be charging the tenant for failure to give notice. This may seem like a tongue twister, but it simply is a requirement of the landlord to “remind” the tenant that the tenant must give notice so the tenant is not “surprised”.
The law enacted in 2004
83.575 Termination of tenancy with specific duration.--
(1) A rental agreement with a specific duration may contain a provision requiring the tenant to notify the landlord before vacating the premises at the end of the rental agreement; however, a rental agreement may not require more than 60 days' notice before vacating the premises. (2) A rental agreement with a specific duration may provide that if a tenant fails to give the required notice before vacating the premises at the end of the rental agreement, the tenant may be liable for liquidated damages as specified in the rental agreement if the landlord provides written notice to the tenant specifying the tenant's obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The landlord must provide such written notice to the tenant within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the tenant under this subsection. (3) If the tenant remains on the premises with the permission of the landlord after the rental agreement has terminated and fails to give notice required under s. 83.57 the tenant is liable to the landlord for an additional 1 month's rent.
How it works: In order to enforce a clause in your lease that requires a tenant to give you notice prior to lease end, you must do the following:
Give the tenant a notice WITHIN 15 days of the beginning of the notice period you are requiring from the tenant.
Example: Your lease requires 30 days notice from the tenant. You must “remind” the tenant of this by giving the tenant notice of this sometime within days 30 and 45 prior to the lease ending.
Your notice must state the following:
1. That 30 days’ written notice from the tenant is required if the tenant is leaving at lease end, and 2. Failure of the tenant to give you notice will result in a charge of $_____________
NOTE: We recommend that the amount is no more than one month’s rent, and the lease must support this charge.
If you give the tenant notice too far in advance, you will not be able to enforce the notice requirement. It is a STRICT 15 DAY WINDOW.
Common mistakes : The landlord gives the tenant too much notice. Many landlords feel that since the lease states the notice requirement, this is enough or the landlord will give the notice 60 days in advance and the lease only requires 30 days’ notice. Remember the notice to the tenant must be given in a specific “window”, no more and no less.
Below is a sample notice:
SAMPLE RENEWAL OFFER WORDING
THIS SHOULD BE SENT OUT BETWEEN 1 AND 15 DAYS PRIOR TO THE BEGINNING OF THE TENANT’S NOTICE PERIOD AS DESIGNATED IN THE LEASE
According to your lease agreement, your lease shall expire on _________________. Management would like to give you some options.
Please mark off the appropriate selection below or your lease shall terminate on the above date and you must vacate at that time.
Option 1. _____ We would like to remain on the premises as Month to Month Resident(s) at a rental rate of $______ per month.
Option 2. ____ We will vacate the premises on the above date.
Option 3. ____ We wish to sign a new one year lease agreement at a rental rate of $______ per month.
Please return this to Management no later than 30 days prior to your lease end or your lease shall be deemed terminated at the end of the lease agreement, and you shall owe Management the “failure to give notice fee” in the amount of $__________ as per your lease agreement in addition to any amount due from you at that time according to the lease and/or Florida Law.
This offer by Management may be withdrawn at any time and for any reason by Management prior to Management and Resident(s) written acceptance of this offer by signature of Management below and Resident(s) below and Management fully executing a Lease Renewal or new lease if Resident(s) choose Option 3.”
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SECURITY DEPOSIT CLAIM AND REFUND TIMING
by Harry Anthony Heist, Attorney at Law
A tenant’s security deposit is sacred in the eyes of the law. Specific timing issues are laid out in Florida Statutes which must be followed to avoid the landlord having to refund the entire security deposit to the tenant, even if the tenant owes the landlord money. Many landlords fail to take the law seriously and are surprised when a tenant leaves owing a substantial amount of money to the landlord, only to demand the full security deposit back from the landlord because the landlord failed to send the notice out in time or get the tenant the balance of the deposit if any back in time.
When does the notice have to be sent to the tenant?
The required timing of the Notice of Intention to Impose Claim on Security Deposit, hereinafter “Notice”, depends on whether you are making a claim against the deposit or whether you are returning the full deposit to the tenant.
Timing of Notice when making a claim
If making a claim against the deposit, the Notice must be sent out within 30 days from the date that the tenant vacates the unit and not one day later. Failure to send out this Notice within the 30 days will result in the landlord having to refund the full amount of the security deposit to the tenant, regardless of amount owed to the landlord. The is no excuse for failing to send the Notice out within the 30 day timeframe. A number of years ago, the timeframe was 15 days. Now it is 30 days.
Timing of Notice when returning the full security deposit If you are returning the full security deposit, you do not have to send out the Notice at all! Simply get the money in the mail within 15 days of the date that the tenant vacated the premises. Many apartment communities fail to send the money to the tenant within 15 days due to accounting issues and the time delays in requisitioning the money and getting a check from the corporate office. Unfortunately the judge does not care how your system works. The money must be sent out within 15 days period.
Returning a portion of the deposit
If you sent the Notice out and you are returning a portion of the deposit, you must return this portion of the deposit within 30 days from the date you sent out the Notice.
Examples: 1. Tenant vacates September 5 and you are not making a claim against the deposit. You must return the deposit by September 20. The Notice need not be used. Simply send the money.
2. Tenant vacates September 5 and you are returning some but not all of the deposit. You must send out the Notice by October 5 and you must return the balance of the deposit within 30 days from the date you sent out the Notice.
The Security Deposit Law 83.49 (3)(a)- (3)(c)
83.49 Deposit money or advance rent; duty of landlord and tenant
(3)(a) Upon the vacating of the premises for termination of the lease, if the landlord does not intend to impose a claim on the security deposit, the landlord shall have 15 days to return the security deposit together with interest if otherwise required, or the landlord shall have 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address of his intention to impose a claim on the deposit and the reason for imposing the claim. The notice shall contain a statement in substantially the following form: This is a notice of my intention to impose a claim for damages in the amount of ____________ upon your security deposit, due to ________. It is sent to you as required by S. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord's address). If the landlord fails to give the required notice within the 30 day period, he forfeits his right to impose a claim upon the security deposit. (b) Unless the tenant objects to the imposition of the landlord's claim or the amount thereof within 15 days after receipt of the landlord's notice of intention to impose a claim, the landlord may then deduct the amount of his claim and shall remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim for damages. (c) If either party institutes an action in a court of competent jurisdiction to adjudicate his right to the security deposit, the prevailing party is entitled to receive his court costs plus a reasonable fee for his attorney. The court shall advance the cause on the calendar.
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