VOLUME 3 - ISSUE 6 LEGAL UPDATE
- The Dangers of the Tipping Stove
- Storm Issues and the Residential Tenancy
- Authorizing the Unauthorized Tenant
- Removing a Tenant From a Lease
- Fear vs. Facts
THE DANGERS OF THE TIPPING STOVE
by Harry Anthony Heist, Attorney at Law
Each year thousands of children are injured due to stoves and other heavy items capable of tilting or falling, such as wall units, bookshelves and entertainment centers. Huge lawsuits have been filed, resulting in large judgments against both property owners and manufacturers of these items. Could a landlord or property manager be liable for injuries caused in these situations? Quite possibly. It is crucial that part of the safety evaluation a landlord makes of the rental unit includes checking for items which may tip or fall over if misused.
The Tipping Stove
The tipping stove has the potential for causing serious injury due to the secondary injury caused by the child being doused with a hot substance which may be cooking on the stove and subsequently spills, or the child can be trapped by the fallen stove and exposed to the hot element. As appliances get lighter each year, the danger increases. Commonly, a child will open the oven door, climb up onto the door and cause the stove to partially or completely tip over. Since gas stoves generally are attached by a rigid or semi rigid pipe, they are less apt to tip. The problem is more prone to occur with electric stoves, and in Florida, electric stoves are predominantly in use.
Who is Liable?
While it is clearly an improper use of the stove for a child to intentionally climb up onto the open oven door, it is possible that a jury may find that if there was a way that a stove could be prevented from tipping, this may place a duty on the owner of the stove, i.e., the landlord, to prevent the stove from being able to tip. In many cases we see juries rule against a landlord if it can be proven that had the landlord done something as simple as installing a light fixture in a darkened area of the property or installing a non-slip surface in an area that often gets wet and slippery, a severe injury to the tenant could have been prevented. Here the landlord is being held liable for something that the law did not actually require, but had additional, preventative measures been taken, the tenant’s injury may have been averted. This is the same principle and legal theory which can create liability on the part of the landlord for a tipping stove injury.
Florida law does not require that the landlord take any preventative measures to insure that a stove does not tip over when misused by a child. Nothing in the Landlord/Tenant Act specifically addresses the issue. However, the landlord is required to keep the premises in a safe condition, and there may be an implied warranty of habitability imposed upon the landlord.
The Tipping Stove Solution
It is simple and inexpensive to anchor a stove to the floor with a u-bolt or other anchoring device and/or attach a strap to the back of the stove securing the stove to a solid and sturdy section of the wall. It is crucial that the strap is secured solidly to either a wall beam or a large molly bolt or wall anchor is used. The cost is minimal, no license is necessary to undertake such a precautionary measure, and you or your maintenance person should be able to handle such a job. Just because many new stoves now come with anchoring mechanisms, you should assume that an installer may not have actually installed it properly or installed it at all.
The Tipping Wall Unit or Entertainment Center
If the landlord is renting out a furnished unit, and book cases, wall units, entertainment centers or other items exist that are free standing, the landlord could be held liable for injuries sustained due to the tipping over of these items. Again, these items should be anchored properly to prevent injuries from occurring. You may feel that it is absurd that you could be held liable for the obvious gross negligence of a tenant or the tenant’s child, but a jury could feel otherwise. If the bookcase or entertainment center belongs to the tenant, the potential liability on the part of the landlord would be decreased dramatically, but in a furnished unit, extreme care must be taken.
We recommend that all landlords as part of their safety evaluation of the property go through each and every room to determine if there is anything on the premises and belonging to the landlord that could potentially tip over in the case of misuse. If any items are discovered, these should be secured to the floor or wall immediately. Do not neglect to check the garage or storage areas, as often these area contain shelves or cabinets that can tip.
Not Convinced yet?
We urge you to click here here and read the excerpt of this case. While in this case, the manufacturer was held liable, we feel that no chances should be taken by the landlord or the property manager.
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STORM ISSUES AND THE RESIDENTIAL TENANCY
by Harry Anthony Heist, Attorney at Law
The numerous storms in Florida over the past few years have resulted in many new legal issues between the landlord and the tenant. Unfortunately most landlords were not prepared for the myriad number of problems, and often decisions were made which ended up in litigation. Common problems included the tenants taking it upon themselves to secure the property and in the process damaging the property. In many cases the premises were substantially damaged, and the tenant was allowed a rent rebate or some concession which ended up not satisfying the tenant and becoming a problem later. Construction workers often were not able to complete repairs in a timely manner. In severe damage situations, the tenants refused to vacate the premises and also refused to pay rent. Who is liable for protecting the tenant and his personal property? Can we make a tenant leave if the premises cannot be repaired quickly, or it is necessary to have the tenant leave the premises to have the repair properly made? What about generators? In a multi-family environment such as an apartment community, the misuse of a generator can put people and property at great peril. Can we prohibit them? The following discussion is preliminary at best and is meant to give you some ideas which you may wish to implement in your lease or an addendum to your lease. It is by no means complete, but it is a start.
What are the Landlord’s obligations?
Many leases contain clauses reminding the tenant that the landlord is not responsible for their personal property, and the tenant agrees to this. Surprisingly, these clauses are not always upheld in court for situations in which damage to the tenant’s personal property was not due to any fault of the tenant. If there is a pipe break, and the tenant’s personal property is damaged or destroyed, this clause may not hold up. In the event of a storm, if there were some simple steps that the landlord could have taken to help preserve the personal property of the tenant from damage, things are not as clear. The duty of the landlord to secure the premises is not spelled out anywhere in Florida law. We recommend the following clause.
LANDLORD’S OBLIGATIONS: Tenant agrees Landlord has no obligation to install storm shutters and/or take measures to prevent wind, rain and/or other objects or projectiles from entering the premises in the course or event of a windstorm, flood, hurricane, hailstorm, tropical storm, or any other act of nature (hereinafter “Storm”) that may strike in the area of or affect the premises rented by Tenant from Landlord. Tenant agrees Landlord has no duty to advise Tenant as to evacuation orders, potential or current storms, safety measures, storm-preparedness procedures, or storm recovery resources. Tenant agrees to use due diligence in keeping informed of the current and future weather.
What about the tenant’s personal property?
Florida law does not prohibit or specifically allow a landlord to require a tenant to get insurance for her personal property, commonly known as “renter’s insurance”. There also is no affirmative duty on the landlord to secure the tenant’s personal property, which may be in accessible areas such as balconies or lanais. It is possible that a particular area of the outside of the premises is subject to flooding. The landlord may have a duty to warn tenants of this if the landlord has knowledge of a low section of the property or prior flooding. Many tenants are not aware that the typical insurance policy that a landlord has on a rental property in no way includes coverage on any of a tenant’s personal property or coverage for any other loss that may occur to a tenant other than personal injury or death due to the landlord’s negligence. We recommend the following clauses:
TENANT’S OBLIGATIONS REGARDING PERSONAL PROPERTY: Tenant agrees the rental premises are located in an area that may be subject to storms, and as a result, it is necessary to take steps to protect one’s personal property, including but not limited to securing objects that may become projectiles, keeping important documents in a location safe from damage, providing for the safekeeping of keepsakes, and obtaining appropriate insurance. Tenant understands that, even with precautions, damage to personal property, including vehicles, may occur.
RENTER’S INSURANCE: Tenant understands and agrees Landlord’s insurance if any DOES NOT cover injury or death to Tenant’s person or loss of any kind to Tenant’s personal property or expenses incurred by Tenant due to a storm, including but not limited to, loss of perishables, interruption of water, electric, cable or other utility service, relocation expenses and/or temporary or permanent housing. Tenant agrees he or she has an affirmative obligation to obtain renter’s insurance to cover losses in the event loss should occur to Tenant’s person and/or personal property due to a storm. Failure by Tenant to obtain renter’s insurance is done at the complete and total risk of the Tenant.
LIABILITY OF LANDLORD : Tenant waives any liability or duty on the part of the Landlord for any damage to person or property should any occur due to a storm. Tenant agrees to indemnify Landlord should any third party institute an action for damages against Landlord due to damages caused to person or property by Tenant’s personal property and/or Tenant’s actions or inactions relating to such personal property. Such indemnity shall include attorney’s fees and costs of Landlord incurred in any actions for damages by a third party.
Storm preparation actions by the tenant
Certain steps should be taken by a tenant to minimize the risk of harm to the tenant, personal property belonging to the tenant, and property belonging to others due to the tenant’s personal property becoming a projectile or otherwise causing damage to another’s property. At the same time, a landlord does not want a tenant to drill holes in the premises, put nails into the premises or take steps to protect the tenant’s personal property which could cause damage to the premises in the process. We recommend the following clauses:
STORM PREPARATION : Once a tropical storm, hurricane, flood watch or warning is issued for a particular area and/or at the request of Landlord, Tenant agrees to take storm preparedness actions. Any injury to Tenant arising from storm preparation is the sole responsibility of the Tenant and not of Landlord. In the event of damage to Landlord’s property due to Tenant’s storm preparations, that damage will be the responsibility of Tenant. Tenants shall remove all authorized and unauthorized objects from the immediate premises that may become projectiles in a storm, such as deck chairs, potted plants, patio benches and any items on a balcony, lanai, patios and/or breezeways of the rental premises. These items should be placed inside the apartment and returned to the outside only when it is safe to do so. In no event, shall any motorcycle, scooter, gas grill, or other item containing gasoline or other fuel, be stored inside in the rental premises. These items must be removed completely from the premises.
MODIFICATIONS TO THE PREMISES: Tenant agrees no modification shall be made to the premises including but not limited to attaching storm shutters, plywood or other items over doors or windows, taping duct tape or any other type of tape to windows or screens or making any other modifications or attaching any item to the premises. If Tenant fails to abide by this provision, Tenant shall be in breach of the lease agreement, shall be responsible for any damages to the premises and subject to eviction by Landlord.
Are storm shutters required?
In some areas, storm shutters are required for new construction, but most existing housing does not have any form of storm shutter system, be it removable or permanent. The tenant needs to understand that the landlord is not under an obligation to purchase storm shutters or to secure the windows and doors of the premises. Storm shutters can also give tenants a false sense of security, and the tenant needs to understand that storm shutters are simply one method to help minimize damage. If storm shutters are on the premises, the lease needs to address whose responsibility it is to engage these shutters, put them in place or remove them after a storm or a threat of a storm occurs. We recommend the following clause:
STORM SHUTTERS: If the premises are not equipped with storm shutters, Tenant understands that no storms shutters will be provided and/or no measures shall be taken by Landlord to secure doors and or windows unless Landlord, in its sole discretion, decides to perform these tasks. Tenant agrees to hold Landlord harmless for any damage to person and or property due to the lack of storm shutters or Landlord’s decisions to secure or not secure doors and/or windows. If storm shutters have been installed at the premises, or if Landlord secures door and/or windows, this shall not relieve the Tenant of the obligation of looking to his or her renter’s insurance for coverage of any damages to property or person. Tenant agrees that installation of storm shutters or other means of securing doors and windows are not guarantees in any way that damage to the premises due to a storm will be minimized or will not occur.
The generator problem
The landlord must decide if a gas powered generator will be allowed on the premises. Gas generator dangers are huge. Every year fires are started and individuals die of carbon monoxide poisoning due to generator misuse. In a single family home situation, the landlord may not have a problem with allowing the tenant to use a generator, but in multi-family housing the risks are multiplied greatly and are severe. Let us assume that an apartment community prohibits generators, but the tenant purchases and uses one on the premises. Can the landlord remove or disable the generator without liability? We are not sure, but we have created a clause which your attorney may want to review and give you his or her opinion. We are not by providing this clause stating that this clause will definitely be upheld in court or will not create liability on the landlord, so you have been warned.
GENERATORS AND FLAMMABLE LIQUIDS : Tenant agrees that NO GENERATOR(s) WHATSOEVER shall be permitted to be used by Tenant on, in or near the premises. Severe hazards are associated with storing and operating a generator at the property, including injury and death to persons and damage to property. Tenant agrees that NO FLAMMABLE LIQUIDS shall be permitted to be stored on, in or about the premises including but not limited to gasoline, kerosene or propane.
REMOVAL OF OR DISABLING OF GENERATORS BY LANDLORD: In the event Landlord is made aware that Tenant is in possession of or using a generator on, in or near the premises, Tenant by this document gives Landlord absolute permission to disable the generator and/or remove the generator from the premises without notice or further permission of the Tenant. Tenant agrees to hold Landlord, its agents, employees and assigns harmless for any damages suffered as a result of Landlord disabling and/or removing the generator from the premises. This includes damages to Tenant’s personal property due to lack of electricity and /or damages to or loss of the generator itself.
Notifications to the tenant
Nothing in Florida law requires a landlord to notify the tenant of an impending storm. It is good in multi-family housing though for the landlord to have a policy and procedure in place, as it only makes sense that the landlord take steps to notify tenants who may not be aware of the situation. A landlord cannot force a tenant to vacate the premises. We recommend the following clauses:
EVACUATION OF PREMISES: In the event a governmental entity orders an evacuation of the area, Tenant agrees to follow such evacuation orders. In the event Tenant fails to follow the evacuation orders, Tenant agrees that Landlord shall not be liable in any way for injury or death of Tenant or damage or destruction of Tenant’s personal property, including vehicles.
The damaged property Catch-22
The most common problem our office deals with in the aftermath of a storm is the damaged unit. The destroyed unit is easy. The tenants are gone and can’t move back in. The damaged unit creates serious issues. Does the landlord have to repair? Can the landlord timely repair? Is there water damage causing mold? Can repairs be made with the tenant present? Does the tenant have to pay rent? When a unit is damaged, we like the landlord to have the pure absolute option to terminate the tenancy and evict the tenant if necessary. We don’t need any arguments about the rent, reductions in rent, rent withholding, interference with repairs or any other problems from the tenant. We want the landlord to simply say “Get Out”, serve the tenant proper notice and file an eviction if the tenant fails to vacate. Proper lease wording is crucial. We recommend the following clause.
DAMAGE OR DESTRUCTION OF PREMISES: In the event the premises are damaged or destroyed by a storm, and in Landlord’s sole judgment it is necessary for Tenant to vacate the premises due to a dangerous condition on the premises or for repair, reconstruction or demolition, Tenant agrees that Landlord may terminate the tenancy. Tenant shall vacate the premises within the time period as designated by Landlord, and Tenant shall not be liable for any further rent under the terms of the lease agreement.
Contact with your attorney
Probably the most important thing you can do after a storm is to contact your attorney before releasing a tenant, giving a rent concession or making any deals or arrangements whatsoever with the tenant. Emotions are running high, situations often are emergent in nature, and anything you do with the tenant can have long lasting legal consequences. We urge you to examine your storm policies and procedures and have all preparations in place not just with the properties that you own or manage, but also your personal business. Many of our clients completely lost their offices in the past 3 years and were not prepared to be up and running again quickly. While this article dealt with your agreement with the tenant, you need to have a full meeting of the minds in writing with the owners of homes if you are a manager of single family homes, duplexes and the like. This topic will be examined more in depth in a future newsletter.
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AUTHORIZING THE UNAUTHORIZED TENANT
by Harry Anthony Heist, Attorney at Law
You discover that one of your tenants has an unauthorized occupant. This may happen when you are doing an inspection, you see more vehicles than usual, you get a complaint form a neighbor, or possibly someone comes into your office and pays the rent or makes a service request and is not even on the lease. How you deal with this unauthorized occupant will determine if the person can be removed from the premises or properly added to the lease.
The discovery of the unauthorized occupant and waiver
Once you discover there is an unauthorized occupant on the premises, you need to take swift action. Waiver is an important principle of Florida law and basically means that if you know of a noncompliance, in this case an unauthorized occupant, and you fail to take any corrective enforcement actions or delay these actions while continuing to accept rent, you may not be able to enforce your lease terms and have the person removed. You will in a sense have “waived’ the lease provisions by your inaction and thus modified the lease.
Your first step upon unauthorized occupant discovery
Serve a Seven Day Notice of Noncompliance with Opportunity to Cure immediately. This notice will simply say something like “You have an unauthorized occupant residing on the premises in violation of the terms of your lease, and this person must be removed”. Whether or not you intend or hope to have this person authorized and allowed to live on the premises, serve this notice without delay. If rent is coming due and the unauthorized person is still there, AND you want this person removed, DO NOT ACCEPT RENT, as this is a lease noncompliance. But wait! This article is not about removing an unauthorized occupant but rather how to authorize an unauthorized occupant. READ ON!
How to authorize the unauthorized occupant
If your policy is that all adult occupants must go through a credit and background check, you should never allow an unauthorized occupant to remain on the premises, unless the person passes your Resident Selection Criteria test, just like the current tenant in the unit. The problem though is that you have given the tenant a Seven Day Notice of Noncompliance with Opportunity to Cure to have the tenant remove the occupant. If you give the unauthorized occupant a Rental Application, it would seem to interfere with the Seven Day Notice, and it does. On one hand you are asking the tenant to remove the unauthorized occupant, but on the other hand you are giving the occupant an application which will take time to fill out and process.
1. Serve a Seven Day Notice of Noncompliance with Opportunity to Cure.
2. Give the unauthorized occupant an application, and take the application fee in certified funds. Give a strict deadline to the tenant for the unauthorized occupant to get you back the application, and this should be no more than 3 days. Make sure it states this on the application or supplemental notice that you give with the application. The application needs to state that the lease or Tenant Addition Addendum is to be signed within no more than 3 days after approval.
3. Process the application, and if the occupant is approved, have the occupant sign the TENANT ADDITION ADDENDUM which you can download from this site by going to Forms and Notices
4. If the unauthorized occupant is NOT APPROVED, let the occupant know this and serve a BRAND NEW Seven Day Notice of Noncompliance with Opportunity to Cure. If the tenant fails to remove the unauthorized occupant within the seven days, call your attorney, and you will be advised on how to take further action, which may include eviction.
Why do we need to serve a NEW Seven Day Notice of Noncompliance with Opportunity to Cure if the occupant is not approved?
Nothing in the law says you do, but think about what has happened, You gave the original Seven Day Notice with Opportunity to Cure, but then you opened up the door for possibly approving the occupant. This gave the occupant an expectation that they could be approved, so therefore they did not vacate pending an answer from you regarding approval. By the time you gave them an answer, possibly 4 of the 7 days had elapsed. We think it is a good idea to serve a new notice rather than to create a defense to the tenant.
Should you authorize the unauthorized occupant?
This decision needs to be based on your occupancy limits which should be in accordance with HUD guidelines, and if the occupant is approved through your application process. You are under no legal obligation to approve the unauthorized occupant or offer them the chance to be approved. Remember, your tenant has violated the lease by allowing the unauthorized occupant to live with them in the first place. Next it will be the new tenant’s pet python.
The most common mistake made by landlords is to do nothing about the unauthorized occupant. As mentioned earlier in this article, this can by waiver authorize the unauthorized occupant, thus tying the hands of the landlord and preventing enforcement of the lease. Another common mistake is to ask the tenant to pay you more money for rent because of the unauthorized occupant. Here you are basically saying the tenant can breach the lease, but the tenant must pay more for the privilege. While it is perfectly acceptable for the rent to be raised if you are going to authorize an occupant, you need to do this carefully, in writing and have it agreed to by all the parties. Often the landlord is angry, tries to negotiate, delays occur, and the occupant becomes more deeply entrenched in the premises. When talks break down, the landlord comes to the attorney after the damage has been done. There will be times when an unauthorized occupant begins to pay rent, and the landlord accepts the rent either on purpose or accidentally due to sloppy procedures. We urge landlords to never accept rent from anyone other than the actual tenant on the lease. Acceptance of rent from an unauthorized occupant is going straight down the path to authorizing this person, when maybe this was not your intention.
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REMOVING ONE TENANT FROM THE LEASE
by Harry Anthony Heist, Attorney at Law
There will come a time when a tenant will want to be removed from a lease, or another tenant will want his or her co-tenant removed from a lease. In the first instance, the tenant comes to you and asks to be “let out” of the lease for whatever reason. Possibly they have “broken” up with the co-tenant, having problems with the co-tenant, or it could be something as innocent as a job transfer, in which the tenant just wants out of the lease obligations. In the touchier situation, a co-tenant wants another tenant removed from the lease. This usually occurs when one tenant has left the apartment, skipped out, is in jail or just plain disappeared. The remaining tenant often wants the co-tenant removed from the lease so he can get another tenant on the lease, or sometimes it is an attempt by one tenant to try to keep the other tenant away from the property. In other words she is attempting to “evict” the tenant in her own way and trying to use you to assist her.
Do you have to remove a tenant from a lease if requested?
There is absolutely no legal requirement that you must remove a tenant from a lease. Sickness, domestic issues with the other tenant, job transfers or any other reason why a tenant may want out of a lease are not “legal reasons” which would require the landlord to remove a tenant from the lease. However, there may be instances in which even though the landlord is not required to remove a tenant from a lease, a judge could feel that the tenant’s reason is such that you should. We need to remember that in county court, the court in which most situations regarding landlord tenant law are heard, you are dealing with judges who will sometimes make decisions not necessarily based upon the law, but rather equity, and what the judge feels is the right thing to do. To put it bluntly, the county court judge will sometimes do whatever he or she wants to do, and you are stuck with it; your only recourse is to appeal the decision in circuit court, and we all know this is not usually economically feasible. If the tenant has a particular disability that makes it difficult or not feasible to live on the premises, you may want to consider letting him out of the lease. An example would be a tenant living in a second floor unit in a building with no elevator. The tenant acquires a disability which is preventing him or her to get up the stairs, and no downstairs units are available. This would probably be a case in which you would allow the tenant to be removed from the lease.
One tenant wants to be removed from the lease
If a tenant comes to you and wants to be removed from the lease, as we have said, you can just simply say no. The tenant will then probably vacate the premises, leaving the other tenant behind, and both tenants will continue to be liable under the lease terms, regardless that one tenant no longer resides on the premises. If the other tenant continues to pay the rent, no harm has been done. Our office does not recommend that you remove a tenant from a lease, because it is not required, and secondly, you potentially lose your ability to collect your money due under the terms of the lease agreement. With that said, we know that landlords sometimes will in fact agree to let a tenant be removed from the lease. If this is done though, what about the security deposit? Did not one or both tenants pay this security deposit and/or last month’s rent when they moved in? Who gets this money if one tenant is removed from the lease? If you are going to allow a tenant to be removed from a lease, these issues need to be dealt with in writing.
One tenant wants the other tenant removed from the lease
If one tenant comes to you and asks that you “take the other tenant off of the lease”, you can be fairly well assured this will not be possible. In most cases it is requested when a tenant has either left the area, is in jail or in domestic violence situations. The one tenant feels that you have the power to unilaterally take the other tenant off of the lease, and thus the remaining tenant can prevent the tenant you took off the lease from residing on the property. You just cannot unilaterally remove a tenant from a lease, unless the tenant who is leaving agrees, and this agreement is in writing. It does not matter where the tenant is or what the tenant did, the tenant has an interest in the property and is subject to all the rights and responsibilities of the signed lease. The fact that the tenant was put in jail for murder does NOT give you the power to remove this tenant from the lease. When asked by a tenant to remove the other tenant from the lease, you need to explain that it is not possible.
One tenant has disappeared and the remaining tenant wants his friend ADDED to the lease
Again, it cannot be done. You would be interfering with the lease that both tenants signed, specifically that of the tenant who is no longer residing on the premises but still has rights and obligations by virtue of signing the lease.
The lease is up for renewal but one tenant is now gone
In the case where the lease is up for renewal, it is possible to renew the lease only in the name of the remaining tenant or add another tenant if and only if the other original tenant on the lease is gone and you can confirm this completely. You need to be extremely careful when doing this, because possibly the tenant who is gone is simply temporarily detained in a jail or mental institution. The other big issue is the security deposit. You cannot just transfer the security deposit to the new lease, unless all the original tenants are on that new lease. Remember, the security deposit belongs to the tenants who originally signed the lease. The fact that one tenant is gone does not automatically vest this security deposit in the remaining tenant. Prior to entering into a new lease, we recommend that you ask the remaining tenant for a brand new security deposit, and you do your normal disposition of the original security deposit by sending out the Notice of Intention to Impose Claim on Security Deposit and following all the procedures required by Florida Statutes 83.49. A very common mistake made by landlords is to simply carry over the security deposit to the new lease. This is absolutely wrong if the tenants are not the same.
Does the remaining tenant have to agree to the landlord removing a tenant from the lease?
Absolutely not. A landlord has the full right to allow one tenant completely out of the lease obligations and hold the remaining tenant to the full obligations under the lease. This does not seem fair to the remaining tenant, but it is the case. The remaining tenant has no say in your decision to allow a tenant to be removed from a lease. When they signed the lease, they were jointly and severally liable to pay the amounts owed under the lease. The landlord has the power to let a tenant “off the hook” if the landlord desires. For example: If I lent you and your significant other money to buy a car, and we put this in writing with a promissory note, and I was not paid back, I have the right to go after you, your significant other or both of you. It is my right to pick one or both. The same principle applies in a tenancy situation. Why do most landlords think that all parties need to agree to you letting one tenant off of the lease? Because most forms in use today, commonly called ROOMMATE RELEASES have a spot for all the parties to sign. We like using a form in which only the landlord and the vacating tenant signs.
The mechanics of removing a tenant from a lease
In order for you to properly remove a tenant from a lease, the landlord and the vacating tenant should sign a Tenant Vacating Agreement with similar wording to the example below. You will note that the tenant who is remaining on the premises does not have to sign this agreement. It certainly is not improper to have the remaining tenant sign this agreement, BUT often the remaining tenant will not be cooperative due to the circumstances.
TENANT VACATING AGREEMENT
The undersigned Tenant Mary Jones hereby agrees that she has completely vacated the premises known as 125 Main Street, Mountain Grove, Florida or will vacate the premises no later than June 20, 2006.
Tenant understands that Bill Smith shall continue to reside on the premises and shall be subject to all the terms and conditions of the lease agreement and any renewals.
Tenant agrees to relinquish all rights to the security deposit, advance rent, any prepaid fees or charges and agrees that nothing is owed to Tenant by the Landlord or its agent(s).
Tenant agrees to release, acquit, satisfy and forever discharge the owner of the premises, any other owners of the rental premises, any agents of the owners, its owners, agents, employees and assigns, for and from all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which tenant ever had, now have, or which any personal representative, successor, heir or assign tenant, hereafter can, shall or may have, arising out of the tenancy.
Tenant agrees to hold the property owner and/or its agent(s) harmless for damage or loss to any items of personal property left on or about the premises by Tenant.
If Tenant completely vacates the premises as per this agreement and does not return to or otherwise reside on the premises at any future date, the owner hereby shall release tenant from the obligations of the lease agreement.
Date area and signature area. Signature lines for the Landlord and the Vacating Tenant Mary Jones
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FEAR VS. FACT
by Cathy L. Lucrezi, Attorney at Law
Newspapers love to report about a “crazy man” who goes on a violent rampage. Hollywood adds to the image with its Hannibal Lechters, Freddies, and Norman Bates. The result is that mental illness is grossly misunderstood. Fear overtakes reason.
The Fair Housing Act
The Fair Housing Act protects individuals with mental illness, so they don’t fall prey to the fears and misperceptions of landlords and property managers. A mentally ill person cannot be evicted just because of the manifestations of his disease. Examples:
1. A tenant diagnosed with clinical depression attempts suicide on the premises by taking an overdose of pills. This impacts no other tenant, even though the resulting ambulance and police cruiser awakes everyone. This is not a lease violation.
2. A household includes a brain-damaged child, who sits on the patio of the unit almost daily. He yells loudly at each passer-by in a jovial manner even though one cannot understand what he is saying. Other tenants complain, saying the child makes them “uncomfortable”. They claim to worry they “don’t know what he will do next”. This is not a lease violation.
3. A tenant calls on the first of every month, saying she will be paying her rent even though she knows the management staff is conspiring against her. Management suspects she may suffer from a mental illness. The phone calls are tedious and time-consuming. Often, the tenant is rude. This is not a lease violation.
4. A tenant goes to the mail box area each day and watches the letter carrier put the mail in the boxes for 30- minutes. This makes the mail carrier extremely uncomfortable and the mail carrier wants you to “do something”. This is not a lease violation.
5. A tenant wears a nightgown and walks around the property all day long mumbling and carrying on a conversation with himself. This is not a lease violation.
All of the above examples, and there are many more where they came from, show the observable effects of some mental illnesses. As annoying as some behaviors may be, they do not rise to the level of a lease violation unless the conduct poses a direct threat to the health or safety of other tenants or causes substantial physical damage to the property of others. Even then, the landlord must determine whether a reasonable accommodation can alleviate the situation.
Don’t rely on fear, speculation, or stereotype when dealing with mentally ill individuals. They are entitled to fair treatment based on facts. A wrong move on your part could result in an expensive lawsuit against you and your company. Not sure about how to deal with a situation? Give attorney Cathy Lucrezi a call at 1 800 253 8428
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