VOLUME 4 - ISSUE 1 LEGAL UPDATE
- Domestic Disputes and Tenant Restraining Orders
- Removing the Child Criminal
- Mailing the Three-Day Notice
- Noisy Kids and Fair Housing
TENANT RESTRAINING ORDERS
by Harry Anthony Heist, Attorney at Law
In the event of domestic violence, a party is able, by filing a sworn affidavit with the court, to get a temporary injunction for protection, also known as a restraining order, against another party. This injunction goes into effect almost immediately, and a hearing is set at a later time when a judge determines if the injunction is to continue or if it will be dismissed. The main purpose of an injunction is to keep one person away from another person, to prevent a possible escalation or continuation of violence or threats of violence.
A property manager is often made aware of the existence of an injunction by the person who has sought the injunction, the Petitioner. In most but not all, the Petitioner is a female tenant. Situations will arise where the property manager is unwillingly brought into the picture. The property manager may be asked to change locks or may be asked by the Respondent to have access to the rental unit.
What Is Domestic Violence?: Domestic Violence as used in F.S. 741.28 - 741.31: "Domestic Violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit.
"Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who have a child in common, regardless of whether they have been married or have resided together at any time.
What is Repeat Violence?: Violence as used in Florida Statute 784.046, means any assault, battery, sexual battery, or stalking by a person against any other person. "Repeat Violence" means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member.
What is Dating Violence?: Dating violence means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature.
What Will an Injunction Do for the Petitioner?
It will legally prevent an alleged abuser from committing any further acts of violence to the Petitioner or from threatening the Petitioner.
It may provide the Petitioner sole possession of a dwelling the Petitioner and the Respondent shared.
It may restrain the Respondent from going to, in or within 500 feet of Petitioner’s residence, place of employment, place of school, or places the Petitioner and family frequent.
It may provide no contact between the parties, in any manner.
It may require the Respondent attend counseling, treatment or a batterer's intervention program.
It may require the Respondent not to possess a firearm or to surrender any firearms to law enforcement.
It may address awarding temporary custody of any minor child(ren) between the parties, and visitation of the child(ren).
How does a party get an Injunction against another person?
The Petitioner must go to the courthouse and file a complaint. The person should bring with them police reports or referral cards furnished by a law enforcement officer, if any, proof of identification, specific dates of abuse or threats of abuse, specific locations where abuse or threats occurred, a mailing address of a friend or relative if the Petitioner chooses to keep the residence address "confidential" as provided by law, a picture, if any of the Respondent, to provide to Sheriff's Department for service purposes. The Petitioner must know and disclose the full legal name of Respondent, physical description of Respondent, current residence address of Respondent, including telephone number, social security number, if possible, and driver’s license number, Respondent's employer and employer's address and phone number, if possible, and Respondent's vehicle information, including make, model, color, year and tag number if any.
The “Temporary Injunction”
Upon review, the court may issue a “temporary injunction” which must then be served on the Respondent. The Petitioner can notify the Sheriff as to the whereabouts of the Respondent so the Respondent can be served. The key word here is “temporary”. The injunction will only last a certain fixed number of days, and then a court hearing will be set and held, at which the judge will decide if the injunction will be made permanent, the terms of the injunction, or if the injunction will be dropped. If the Petitioner fails to show up in court and pursue the injunction, the injunction will be dissolved. This is a common occurrence, so it is important that the property manager understands that an injunction may not be in effect when the Petitioner says it is in effect. This is where law enforcement comes into play, as they know through their computer system the actual status of the injunction. Never take the Petitioner’s or Respondent’s word for anything regarding the injunction. Get law enforcement involved.
Requests to change locks
In the event a property manager is asked to change locks on the premises, our office recommends that this is not done by the property manager, unless the property manager is specifically directed to do so by a court order. If the Petitioner wishes to changes the locks, we recommend that the Petitioner not be stopped from changing the locks, and the Petitioner should be required to provide the property manager with a key.
Request for access
A common scenario occurs when the Respondent comes into the property manager’s office and demands to be let into the unit or demands a key to the unit. Since the lease contract is between the parties and the property manager, it may seem that the property manager is required to grant the Respondent access. The police should be called immediately and asked to come to the property. Often the Respondent simply wishes to get clothing or other personal items from the property. The police will often accompany the Respondent to the rental unit, at which time the property manager, upon request, can grant access to the police and the Respondent. Often when the property manager indicates that the police will need to be involved, the Respondent takes off out of the office and does not wish to deal with the police. Never should the property manager take it upon himself or herself to assist the Respondent. Law enforcement should be involved.
Requests to be let out of the lease
The Petitioner or the Respondent may request to be let out of the lease, either because they no longer have legal access due to the injunction, or the Petitioner wishes to move away from the property to a place where the Respondent cannot locate him or her. It will be a business decision by your owner or company as to whether this request will be granted. If it is granted, the other party does not have to agree to this request, and you can let either or both parties out of the lease obligation. Your attorney should be called in cases such as these, so the proper documents can be executed. Remember that if you let the Petitioner out of the lease, the Respondent still has a contract with you and has a legal right to possession of the rental unit, even though this right of possession may not be able to be exercised due to the injunction. Never remove the Respondent’s property from the unit or take possession, unless it is certain that all parties have relinquished to you full possession of the premises.
Requests by the Petitioner to take the Respondent off the lease
In some cases, once the injunction becomes permanent or in the event the Respondent is incarcerated or otherwise indisposed, the Petitioner will request that the Respondent be taken off of the lease. One tenant cannot unilaterally take another tenant off of a lease. The party being taken off of the lease must agree to this. No matter what story you get from the tenant, you cannot take the Respondent off of the lease. Your contract is with both the Petitioner and the Respondent. Their personal issues are not your problem, and unless you are ordered by a judge to remove an individual from a lease, you cannot oblige.
The Petitioner vacates – Is the unit abandoned or surrendered?
The Petitioner who was granted occupancy of the rental unit by the court may vacate the premises. Is the unit abandoned? Can it be surrendered? We are not sure. Since the lease agreement is valid with both parties, the fact that the Petitioner vacates most likely cannot grant possession to the landlord. After all, the Respondent would be living there if he or she could, but simply cannot as the injunction prohibits this. Personal property may be left behind by the Petitioner who vacates the premises, and this property may belong to the Respondent. The Respondent may even petition the court to have the right to use the premises in the event the Petitioner vacates. This is an odd situation, and we urge you to call your attorney to see what options you may have based on the fact pattern.
Since an injunction is not an everyday occurrence the property manager must deal with, we strongly urge you to call your attorney the moment the issue arises. Handling the matter incorrectly could result in serious liability for the landlord or property manager. Most importantly, never get emotionally involved with a dispute between tenants. Taking sides can often lead to poor judgment calls, surprises and retaliation against the property manager.
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REMOVING THE CHILD CRIMINAL
by Harry Anthony Heist, Attorney at Law
While there is no requirement under Florida law to determine the criminal background, if any, of a potential tenant, many property managers choose to run a criminal background check on the applicant. Often these criminal background checks are not completely accurate, and applicants often slip through the cracks. Unfortunately, there are major deficiencies in record keeping and access to the criminal records. Often this is due to the delay of states reporting to the federal databases. Most apartment communities routinely run criminal background checks to help minimize liability, since the tenant will be living in close proximity with and interacting with other tenants on the premises. Criminal background checking is on the rise among single family home managers, and both single family home managers and multi-family housing managers are creating resident selection criteria which the applicant must pass in order to be approved. The reality of many rental situations is that the background checks are run on the adult applicants, while no information is gathered on the occupant of the rental unit if the occupant is a juvenile. Juvenile records are not available to the public, and a property manager has no way whatsoever to know the background of the child.
The Child Criminal
Thousand of juveniles commit crimes each year, many of an extremely serious nature. In fact, a large percentage of adult criminals have long juvenile records. These crimes could include murder, rape, serious bodily harm and major damage to personal property, such as arson, resulting in incarceration of the child in a juvenile detention center. These juveniles are living in apartment communities and homes and often are not rehabilitated upon release from a juvenile detention facility. This increases the probability that the juveniles will continue to engage in criminal behavior, which is dangerous to society. Traditionally, laws have protected juvenile criminals by sealing their records. After offenders turn 18, their records are expunged or sealed, depending on state law. The philosophy behind this anonymity: juveniles should not be stigmatized for the rest of their lives for acts committed while they were children. The emphasis of the juvenile criminal system is on rehabilitation, not punishment.
The Discovery of the Juvenile Criminal
In most cases, the property manager will have no idea that the juvenile occupant will have a criminal past. It is often discovered when a courtesy officer, who is often a law enforcement officer, runs a criminal background check on a juvenile due to an incident on the property, or a neighbor discovers from some source that the juvenile has a criminal record. The law enforcement officer has greater unrestricted access to this information, and although they are not permitted to disclose this information, the word gets out. When the word gets out, now what?
If the property manager refers back to the application, most likely there will be the question asked of the applicant on the application if the applicant has been convicted of, arrested for, put on probation for, or had adjudication withheld or deferred for a felony offense. The answer will most likely be “no”, and this will be a truthful answer. The problem is not in the answer here, but rather the question asked.
The Proper Question
Instead of limiting the question regarding a criminal past to the applicant only, we recommend that the applicant is asked if any occupants have a criminal past.
A sample more inclusive question would be:
Have you or any occupants ever been convicted of, arrested for, put on probation for, or had adjudication withheld or deferred for a felony offense?
Now it is quite possible that the applicant will answer “no” to this question, you will run your background check, and the applicant will be approved. The key here is that you have asked the question and it is later determined that an occupant does indeed have a criminal past, the tenant’s lease can be terminated based upon a misrepresentation on the rental application.
The Misrepresentation Wording
Every lease and/or application should include a clause which states that a tenancy can be terminated in the event the tenant lies on the application. Typical wording on an application would be:
Applicant agrees that false, misleading or misrepresented information may result in the application being rejected, will void a lease/rental agreement if any and/or be grounds for immediate eviction with loss of all deposits and any other penalties as provided by the lease terms, if any.
If the application and/or lease includes such or similar wording, and there is a material misrepresentation made, lease termination is usually no problem, and the tenant can be evicted if necessary.
In the event it is discovered that a child occupant was convicted of a serious offense, and the tenant indicated “no” on the question regarding the applicant or occupants, the landlord should speak with the tenant and attempt to get the tenant or tenants to sign an “Agreement to Vacate”. Filing an eviction based on the failure to disclose the child’s criminal past would require that criminal past to be disclosed in court. The problem is these records are sealed and not available to the landlord in the civil action, thus making the case difficult if not impossible to prove. If proof is not available, we must rely upon the tenant to agree to vacate the premises. Monetary incentives can be used for this if necessary, and the Agreement to Vacate will be the proper form. Many tenants are desirous of signing the Agreement to Vacate, and it should never be dismissed as an option to have a tenant voluntarily vacate the premises. Once an Agreement to Vacate is signed, the failure of a tenant to vacate makes for an easy eviction action, as the landlord need only prove the tenant failed to vacate the premises after signing the agreement. Since the discovery of a criminal child occupant is a relatively uncommon occurrence, we recommend you immediately call your attorney to discuss the matter and the strategy.
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MAILING THE THREE-DAY NOTICE
by Harry Anthony Heist, Attorney at Law
Mailing the Three Day Notice is fraught with problems The tenant can deny receipt of the notice, extra days must be added to the expiration date of the notice due to mailing, potentially more days added if payment is to be by mail, and the notice should not be called a Three Day Notice at all, since it will be far more than three days. Since a mailed notice will not be a true Three Day Notice, we will refer to the notice in this article as a “Notice to Pay Rent or Vacate”
Why mail a notice?
1. The lease may require it. The lease agreement may actually require that a Notice to Pay Rent or Vacate be mailed. A property manager will often inherit leases from other states, homemade leases or those drafted by attorneys who are unfamiliar with the workings of landlord/tenant law. The property manager faced with an unfamiliar lease needs to carefully read the lease to see if there are any clauses pertaining to the mailing of notices. Many attorneys, feeling that mailing is a preferred way of the landlord getting notice, draft a reciprocal clause in the lease requiring all parties to give notice by mail. If the lease requires notice by mail, this must be followed, even though Florida law does not require the mailing. While it may seem sensible to require a tenant to give the landlord notice by mail, unfortunately requiring the landlord to do the same is unwise and can result in serious delays.
2. The landlord chooses to mail the notice. Landlords often choose to mail the Notice to Pay Rent or Vacate if the property is an excessive distance from their home or office. No landlord wants to drive a long distance to serve a notice; thus, mailing is often the preferred choice. While we do not recommend it, we know that the realities of a long distance tenant, where the landlord may not have a local property manager, dictates this method of delivery.
How to date the Notice to Pay Rent or Vacate if the Notice is mailed
The expiration date of the Notice to Pay Rent or Vacate is dictated by the date of mailing of the notice and by how the tenant is to pay the landlord the rent.
Notice is Mailed and Tenant is to pay rent by mail: 5 days must be given for mailing time, 5 days must be allowed for the tenant to pay rent by mail and 3 business days must be given. The result? The notice has now become a Thirteen Day Notice to Pay Rent or Vacate which gives the tenant 13 days excluding Saturdays, Sundays and Legal holidays from the date the landlord mails the notice. Since weekends will always fall in the 13 business day period, we must allow at least 3 business days exclusive of the mailing times. As you can see, this method of delivery and payment will result in a substantial amount of time for the tenant to pay the rent, resulting in a large loss of income for the landlord in the event of nonpayment, as no eviction can be filed until the notice expires.
Notice is mailed and Tenant is to drop off rent: If the Notice to Pay Rent or Vacate is mailed and the tenant is to drop off the rent, the landlord must use an Eight Day Notice. 5 days are given for mailing plus the 3 business days as required by Florida Statutes, not including Saturdays, Sundays or legal holidays. Again, mailing a Notice to Pay Rent or Vacate is not the preferred method, as it results in delay.
Mailing AND Posting or Hand delivering the Notice to Pay Rent or Vacate
With the exception of certain properties governed by special federal regulations, a Notice to Pay Rent or Vacate should NEVER be mailed AND posted on the premises or hand delivered, or unless it is (strangely) required by the lease agreement. If the landlord posts a Notice to Pay Rent and then mails one, presumably the tenant will receive the Notice to Pay Rent by mail between 2 and 5 days after the notice is posted. This causes confusion. In one case you are telling the tenant they have a certain number of days not including Saturdays, Sundays or legal holidays to pay the rent, but then the tenant receive the notice by mail at a later date, which says the same thing. Which notice applies? The mailed one might not allow enough time, while the posted or hand-delivered one may. This conflict causes confusion and ambiguity. The second notice received may cancel out the first notice, the second notice is possibly short, and the bottom line is that the notice is just legally improper. Never serve a Notice to Pay Rent or Vacate by BOTH mail and posting on the premises or hand delivery. While it may seem logical that this will insure that the tenant gets notice, the technicalities will render it invalid.
To whom must the tenant pay rent?
Typically, a tenant pays rent to the same person at the same address throughout the tenancy. The problem arises when this address changes. How is the tenant notified that the payment address has changed? Should the tenant simply pay to whatever address is listed on the Notice to Pay Rent or Vacate? Due to the increasing numbers of out-of-state landlords who are intent on managing their property from afar, situations will arise where the out-of-state landlord decides to hire a property manager or designate someone his or her agent for the purposes of collecting delinquent rent. A new address on a Notice to Pay Rent or Vacate is not enough. The landlord must notify the tenant in writing of an address change or agent change, and often this is not done. Beware of the out-of-state landlord who wishes that you “help” them with serving a notice or collecting rent. Proper authorization and direction by the landlord is a must.
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NOISY KIDS AND FAIR HOUSING
by Cathy L. Lucrezi, Attorney at Law
Fair housing law prohibits discrimination against individuals on the basis of familial status. One cannot deny housing or take other adverse action against a tenant merely because there are children in the household. So, what can you do if a resident complains about the raucous children who live next door?
“Noisy kids” is a lament that’s been heard for centuries. One imagines cavemen complaining of how loud the cavekids next door banged their clubs. Perhaps Van Gogh would have kept his ear had the neighbor’s kids not been practicing the drums. Regardless of the “tradition” of complaining about noisy kids, there remains no easy way to handle the tenant’s complaint.
If a tenant complains that the children who live upstairs are making a racket all hours of the day and night, handle it like any other noise disturbance. Do not focus on the fact that children are making the noise. Instead, note the details of the disturbance – loud music, skateboards in the breezeway, stomping on the steps, slamming doors. That noise is a disturbance regardless of the age of the perpetrator. A Seven Day Notice of Noncompliance with Opportunity to Cure can be served.
Focusing on the age of the noisemaker raises red flags. It can easily appear that the landlord is complaining about children rather than noise. That means a fair housing claim might arise.
A landlord should not complain about “children loitering”. Such a statement focuses too much on the age of the individuals – as if it would be okay if adults had been loitering. “Unsupervised child” is another bad statement. It is so vague that the only possible focus is the age of the individual. Instead, note the details of how the unsupervised child affects the tenancy or other residents. For instance, the “ten year old member of the household used gym equipment without supervision, thus risking injury and damage.”
Lastly, it is important to let kids be kids. It is not unreasonable for kids to make some noise when they play. Such “racket” may disturb a resident’s afternoon nap, but it is not a lease violation. It’s the noise one expects in a community with families.
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