- Amenities and Liability - No Good Deed Goes Unpunished
- The Tenant and The Electric Bill
- Dishing the Dish
- Screening on the Basis of Criminal Background



by Harry Anthony Heist, Attorney at Law

Many apartment communities today have fitness centers, business centers, pools, gas barbeque grills, tennis courts and other amenities for their tenants to enjoy. These amenities are often a great draw in attracting tenants to a particular community. In most cases, the amenities, most of which are advertised in print, are available for the use of the tenant, operable and in existence at the time of move-in. However, a problem arises when an amenity is not available to the tenant for some reason. That wonderful amenity that you advertised becomes a nightmare.

The Amenity Failure

In the case of a pool, a leak may require major work to be done to rectify the problem. There have been many cases where the pool is emptied and the high ground water table has literally pushed the pool up out of the ground, causing a major repair necessity. A pool does not just pop back into the ground!! Fitness centers are often completely equipped with state of the art exercise bikes, treadmills and other mechanically and electrically operated devices. These devices fail in time and need expensive repair. Business centers for the tenant's use are often set up with a number of computers and are subject to viruses or power surges which completely disable the equipment. At some time, some amenity on the property shall fail, and the tenants will rise up.

Repairs to the Amenity

Repairs of a particular amenity are often done quickly, and the tenant experiences little to no inconvenience. In other cases, repairs take a significantly longer period of time, sometimes at great expense to the apartment community. Some owners who are under severe financial burdens right now are choosing to push off some repairs almost indefinitely. An owner who is considering selling may not wish to invest any further money, as the return on sale may not be there. There are times, as in the pool case, when a simple repair could result in a major multi-month project in which the pool is completely inoperable. Since most properties only have one pool, the problem is obvious.

The Tenant's Expectation

Florida law does not state that a tenant has a right to a working pool, exercise bike or business center. This is all governed by contract. While the lease agreement may not specifically state anything about a pool, fitness center or business center, other than in the rules and regulations, these amenities are advertised to the prospective resident as being part of the "package". The applicant who becomes the tenant has a reasonable expectation that the amenities that are advertised or which he or she observes while on the property tour will be available for use throughout the tenancy. These expectations are by no means unreasonable. The question then arises as to whether the amenities advertised are in fact the "basis of the bargain", or stated differently, did the tenant decide to rent at this particular apartment community because of the existence of a certain amenity advertised or observed. It is extremely easy for the tenant to make the case that the fitness center, pool or business center was indeed the "reason" why he or she chose the particular apartment community. A health conscious tenant may have chosen your apartment community due to its state of the art fitness center. A tenant in physical therapy may have been drawn to the community because of the pool. A person without a computer may have been sold on the business center. This creates a serious obligation on the part of the apartment community to make sure the amenity is in fact working at all times, or at least most times.

Amenity Failure Actions

Fortunately, most tenants do not even use the pool, fitness center or business center, so a breakdown will not inconvenience most of the tenants, but for the tenants who do use them, you have a problem on your hands. Since Florida law does not address amenities or compensation, a tenant may or may not be entitled to a credit in the event of an amenity failure; the management or owners must come up with something to keep the tenant from taking the matter further and potentially suing in a court of law. The first step will be to rectify the problem immediately, if possible, but unfortunately, this may not always be a viable solution. Each situation needs to be dealt with on a case by case basis, but it is crucial to show that the landlord is taking reasonable steps to mitigate the problem and make the tenant whole again.

Pool Solutions

In the case of an extended pool problem, the apartment community may enter into an agreement with a neighboring apartment community for the temporary use of its pool for some compensation by the apartment community. Tenants may be given vouchers to use a community pool, if one is in fact available, or temporary membership to a local gym may be an appropriate option. Finding a contractor and paying more money to get the job done quicker could prevent lawsuits.

Fitness Center Solutions

In the case of a minor fitness center issue, such as an inoperable piece of equipment, we recommend that a replacement piece of equipment is rented immediately until the repair can be effectuated. Many companies are in the business of renting commercial grade exercise equipment. In the case of a serious fitness center problem, such as when the fitness center is completely unusable by the tenant, an agreement could be worked up with a nearby gym to provide low cost temporary memberships to tenants who may wish to use the gym. Many gyms will jump on this opportunity to get people in the door, in the hopes that they will join permanently in the future.

Business Centers

Most business center problems can be rectified with the expenditure of a relatively small sum of money. If the issue is simply internet access by a resident who already has a computer, a basic internet account can be purchased for the tenant to be used in his or her unit, or at a bare minimum, at least one PC should be set up with internet access and a basic printer until further repairs can be made.

Potential Legal Ramifications

A tenant who is not receiving all that was bargained for in a deal can sue for breach of contract, and in the event certain things were advertised, false advertising. The tenant can also attempt to withhold rent or even break the lease agreement and walk. A property manager may be tempted to compensate one tenant for her inconvenience, but this could unleash a floodgate of tenants asking for the same compensation. This is when prompt contact with your attorney can potentially avoid a major blow-up on the property. In the worst case scenario, a tenant can hire an attorney who will institute a class action lawsuit against the property. While this is rare, class actions are not uncommon in consumer situations, so YOU HAVE BEEN WARNED!

The Amenities Addendum Solution

A simple addendum signed by all tenants can significantly minimize the landlord's risk in the event of an amenity loss or malfunction. We cannot forget that the main thing that a tenant is renting is an APARTMENT. The amenities are indeed a bonus to the deal, but part and parcel to the deal are the tenant's expectations and your responsibilities. By using the addendum below, you MAY be able to significantly decrease your risk of problems in the event of an amenity problem. Remember, nothing is guaranteed. Please read it carefully.



It is agreed and understood by all Tenants(s) that all amenities on the premises IF ANY EXIST NOW AND IN THE FUTURE including but not limited to balconies, patio(s), pool(s), hot tub(s), fitness center(s), gas grill(s), business center(s), tennis court(s), activities center(s), clubhouse(s), playground(s), playground equipment(s) or any other as specified herein for Tenant(s)' use may be altered, may become inoperable, unusable or out of service for the purposes of repairs, damage by storms or acts of God or man, rendered unusable or removed at any time without notice and without consent of the Tenant(s). Tenant(s) agree to hold owners, their agents and assigns, harmless for any liability arising from the alteration, removal or failure to be able to use any and all amenities. It is understood by all parties that this agreement has been entered into with good consideration and that it has been read in its entirety.

Amenities for the purpose of this addendum may also include and are not limited to:



Tenant(s) understand that repairs or upgrades to the premises may possibly be made and agree to hold the owners, management, agents, employees and assigns harmless for the absence of or the delay in the availability of any amenities which may have been advertised, appear on any advertising materials, existed at the time of move-in or represented to by any of the staff. Tenant(s) agree to hold the owners, management, agents, employees and assigns harmless for any inconveniences, including but not limited to noise, construction traffic, dust, construction equipment, temporary utility outages, etc., and agree that they cannot break their lease, withhold rent or receive a rent abatement because of any construction problem and/or the lack of amenities unless otherwise agreed to in writing.


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by Harry Anthony Heist, Attorney at Law

In most annual rentals, the tenant is responsible for paying the electric bill. In addition to being responsible for paying the bill, the tenant is often given instructions by the landlord and agrees in the lease agreement to place the electric bill into their name upon move-in. This requires the tenant to make a call into the electric company and/or go to the electric company office to give the relevant information and pay a utility deposit, which varies by company providing the electric. In a perfect world, the tenant does just that. Prior to move-in they get the electric placed into their name and pay the bill. What happens when they do not pay the bill? In many places, the electricity is simply shut off and the tenant is without electricity. This is the tenant's problem, and no liability to the landlord occurs. The tenant may then pay the bill and have it reconnected, steal the electricity from an adjoining tenant, put jumper wires on the electric meter or completely live without electricity. In some areas of Florida and in many apartment communities, the electric will revert back into to the name of the apartment community, and the apartment community will later be notified that this has occurred, sometimes weeks later. This is to prevent a unit from being without electricity. While we cannot control what the tenant is "supposed" to do, we can take action, but must be careful that we do not fun afoul of the law.

Florida Law and Electric

Florida law specifically states that a landlord shall not directly or indirectly cause interruption in the tenant's electric service.

FS 83.67 Prohibited practices. (1) No landlord of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the landlord.

Direct Interruption

Direct interruption would be when the landlord shuts the electric off by actually disconnecting it from the rental unit (this is rarely done but happens!), or more commonly instructs the electric company to shut the electric off. A landlord who discovers that the tenant has not placed the electric in the tenant's name could easily feel that it is correct to tell the electric company that the electricity is not to be in the name of the landlord, but rather that it must be in the name of the tenant. However, this can lead to a direct shut off. Further, the landlord may have had the electric bill revert back into the landlord's name, as is often the case in apartment communities; notifying the electric company that this is not proper and that it should be in the tenant's name will result in a direct shut off to the tenant. In the single family home setting, sometimes the property owner who lives out of state receives an electric bill, is furious and calls the electric company for a shut off. Does it seem fair to the landlord who now is stuck paying the bill? No, but we never said the law was always fair.

Indirect Interruption

An example of indirect interruption occurs if the landlord receives an electric bill on an account that should have been in the tenant's name, and the landlord simply fails to pay it. Here the landlord has full knowledge that the tenant failed to place the account in his or her name, and by the landlord not paying it, the account will get shut off. Again, this seems unfair to the landlord, but is the law.

Steps to take if it is discovered that the tenant is not paying the electric

Once it is discovered that the tenant is not paying the electric bill, the tenant needs to be notified immediately by the use of a 7 Day Notice of Noncompliance with Opportunity to Cure. The notice may state the following:

You have failed to place the electric utility service account into your name as required by your lease agreement, and you owe the landlord the sum of $__________ at this time for outstanding electric bill(s).

Steps the Landlord can take

While it is beyond the landlord's immediate control if the tenant steals electric, or in the event of reversion of the account back to the landlord, there is one thing that often occurs which is indeed completely in control of the landlord, but is often missed, because of the landlord's forgetfulness or misplaced trust that the tenant will do what the tenant is "supposed" to do. Due to the need for electric to operate pools and a/c units, most landlords do not wish to have a time period when the electric is off. The result is that the electric is in the landlord's name until such time as either the landlord directly has it shut off, OR the tenant directly has it placed in the tenant's name. When a tenant moves into a rental unit and the electric is on, they will often happily sit there until the electric is shut off. But wait. How can the landlord have it shut off? Did not we just say that was illegal? The answer lies in timing. If the tenant is notified in writing that the landlord will be taking the electric out of his or her name no later than a fixed date, and the landlord does indeed do this, it is doubtful that a prohibited practice or indirect termination as envisioned by the statute will occur. We recommend the following wording in a notification to be given to the tenant prior to move-in. This can be placed directly on the INFO SHEET that the tenant should receive from the landlord, stating the names, phone numbers and addresses of the utility company, garbage pick up days, etc. Here is some recommended wording:

Tenant understands and agrees that the electric service is currently on in the Landlord's name. Tenant agrees that the Landlord shall order the electric service be taken out of the name of the Landlord within 3 days, and Tenant shall place the electric service in Tenant's name and pay all necessary deposits.

So you notified the tenant prior to move-in. Now, don't forget to notify the electric company immediately in writing, and get a confirmation from them!! Property managers who use checklists rarely if ever forget to do this. As a friendly reminder, if you shut off someone's electric after they have taken occupancy in violation of the law, WE WILL NOT REPRESENT YOU!!

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by Cathy L. Lucrezi, Attorney at Law


Although it is difficult to determine who is winning the race between cable companies and dish networks, there can be no question that more and more tenants are opting to get their entertainment through a satellite dish. Can the landlord refuse to let the tenant install a satellite dish? Are there any restrictions?

The Federal Communications Commission

In 1998, the Federal Communications Commission enacted rules to help TV viewers (and the satellite television industry). The rules prohibit unreasonable restrictions that impair the installation, maintenance or use of satellite dishes that are less than one meter (39") in diameter. The rules state that a landlord cannot unreasonably deny a tenant from having a satellite dish on the premises that is within the leasehold and under the exclusive use or control of the tenant. The rules apply to landlords, homeowners' associations, and condo associations (among others).

Placement of the Dish

The landlord cannot stop the tenant from erecting a dish if it is placed in an area that is under the exclusive control of the tenant. That means areas where only the tenant (and no one else) has the right to be present. Premises include the interior of the unit, balconies, balcony railings, terraces, patios, yards or gardens.

Premises DO NOT include outside walls, roofs (unless they are under a tenant's exclusive control), window sills, or other common areas. If the tenant wants to erect the satellite dish in a common area, then the landlord can prohibit the dish.

In the case of a condominium, all property is considered to be common area except the air space of the units and the portions designated as limited common elements (such as a patio or balcony). In other words, condominiums may restrict satellite dishes from being in the common areas. However, the resident has the protection of federal law if he wants to install the dish within the boundaries of the condo unit.


The tenant is liable for any liability arising from the installation of a satellite dish. This is because the dish is located only in a location that under the exclusive control of the tenant. The FCC includes this in its rules.

Property Damage

A landlord can require that the installation of a satellite dish be done in a way that does not damage the premises. A landlord can prohibit drilling holes in walls, using nails or screws, piercing roofs, or causing any damage more than ordinary wear and tear. Clamps or straps should be permitted.

Hopefully, the lease requires the tenant to obtain written consent of the landlord before beginning any alteration. Such a provision would give the landlord a way to protect his property. Property managers should check for installation equipment, and if present, take photos.

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by Cathy L. Lucrezi, Attorney at Law

Most landlords would agree -- They would rather have tenants who are not familiar with the inside of a jail cell. To screen out those with criminal records, the landlord asks whether the tenant has been convicted of a felony, or had adjudication withheld on a felony charge, or was ever convicted of a sexual crime. The landlord often runs a background check of all the adults in the household just to make sure.

If the landlord learns the applicant does indeed have a criminal record, the landlord can legitimately turn down the applicant. It won't be a violation of fair housing laws.

Fair Housing laws do not protect criminal activity.

Having a criminal record is not a protected class under the fair housing laws. Thus, landlords can establish screening criteria that reject an applicant who has a criminal record.

Conviction vs. Arrest vs. Adjudication Withheld

Convictions should not be confused with arrests. A conviction means that a judge and jury have determined that the individual is guilty of the particular crime. An arrest occurs if law enforcement suspects the individual committed a crime. There is a world of difference between suspicion and conviction, as any Perry Mason fan can tell you.

"Adjudication withheld" means the court determined the individual did the crime, but the court is not entering a conviction at the moment. Instead, the court places certain conditions on the defendant. Examples are to not use drugs, do community service, stay in school, etc. If the defendant satisfies all of the conditions set by the judge, then the conviction is never entered against him. Even though the conviction is not entered, you can reasonably believe that the individual did the criminal activity but this should not treated as reason to deny the applicant.

A landlord should not reject applicants on the basis of arrest records. Doing so would be considered unlawful discrimination. That is because arrest statistics show that arrest patterns have sometimes been discriminatory against protected classes in some contexts. That makes arrests a bad screening criterion.

Uniformity and Consistency.

If the landlord conducts criminal background checks, it should be done on every adult applicant. Doing anything less would be considered discriminatory.

The landlord should not accept some applicants with criminal records and reject others. For example, a landlord should not accept a female applicant with a record of assault, but not a male applicant with a similar conviction. Once exceptions are made, the criteria cease to be fair.


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Law Offices of Heist, Weisse & Wolk, P.A.
Phone: 1-800-253-8428 Fax: 1-800-367-9038

Serving Florida's Property Managers with main office in Fort Myers Beach. Available by appointment in Orlando and Clearwater

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