- 2007 Florida Legislative Update - A Mixed Bag
- Tenant Death and the New Law
- The Security Deposit Claim and What the Tenant Owes
- The "Last Known Address"
- Independent Living




by Harry Anthony Heist, Attorney at Law

Two bills of great importance to the rental housing provider were monitored and pushed by a number of organizations representing owners and managers of rental housing this year in Tallahassee, including the Florida Apartment Association, the Florida Association of Residential Property Managers and the Florida Association of REALTORS. Senate Bill 2730/House Bill 1277 was a bill which would have clarified what a landlord can charge a tenant who skips out on a lease or otherwise breaks a lease. This was a tenant friendly bill, as it gave the tenant notice at the time of entering into the lease the exact sum that would be owed if he or she chose to break the lease. Currently, a faulty court case outcome and the lack of clarity in Florida law leaves the tenant owing rent on a unit until such time as the unit is re-rented. This could be many months. This bill would have made a rental contract similar to a copier lease contract or cell phone contract. You would know at the start the cost to break the contract, a true win win for both the landlord and the tenant. The bill sailed through the House and Senate, only to be vetoed by Governor Crist.

Senate Bill 400/House Bill 647 clarified what a landlord is able to do if a tenant dies in the rental unit and no estate is opened. Prior to this, if a tenant died leaving items in the rental unit, the landlord was faced with the difficult decision to either hire an attorney and force open an estate, or take a gamble and dispose of the items of the deceased tenant, taking a huge risk that a relative would later appear claiming some interest in the disposed of items. Most relatives of tenants who reside in rental homes or apartments do not open up an estate due to the usual low value of the estate, or the proper planning the decedent may have done, helping to avoid the probate process and the necessity of opening up an estate. This bill passed both the House and the Senate and became law on June 15, 2007. Now, if no estate is opened within 60 days of death and the landlord complies with 83.59(3)(d), the unit is considered abandoned, and the landlord can dispose of the property in any way they see fit.


(Back to Top)




by Harry Anthony Heist, Attorney at Law

For many years, landlords had to deal with a glitch in Florida law when the last remaining tenant died leaving personal property in the rental unit. Can the property be disposed of? Is the unit tied up forever? Can the unit be rerented? Suppose an estate is not opened? All these problem have been solved due to the passage of legislation which modifies Florida Statutes 83.59 and 83.67, the sections that define when a landlord may take possession of the property and how to deal with abandoned property. This legislation was drafted and promoted by the Florida Apartment Association as a major legislative priority for 2007. We are all thankful to the bill sponsors, Senator Gwen Margolis and Representative Bill Galvano, as it became law on June 15, 2007. NOTE "“ YOU MUST NOW MODIFY OUR LEASE TO UPDATE IT TO THE NEW LAW

The Old Law

To put it simply, there wasn't any law that specifically addressed the tenant death/abandoned property situation. When a tenant died, if the family of the deceased were to have an estate opened up and a Personal Representative (in some states this is called an executor) were appointed, the landlord could simply deal with the Personal Representative, agree that the unit was abandoned or surrendered, serve notices on the Personal Representative or actually file an eviction on the deceased tenant through the Personal Representative. While this seems simple enough, in most cases no estate was ever opened by the relatives of the deceased, and the landlord was left with no real option but to hire an attorney at great expense and force open an estate, after which a Personal Representative would be appointed by the probate court.

Why would the relatives usually not open up an estate?

Most people as they age begin to do some basic estate planning which usually includes placing any assets such as bank accounts and stocks in joint names with a relative. Upon death the money now belongs in full to the joint account holder(s) or to a beneficiary on the account. Upon death, this leaves the living relatives having to deal with personal property only, and there is no real benefit to or need by the relatives to open up an estate.

Would the landlord "force open an estate"?

Most landlords did not choose this route due to the time and expense, and simply placed the remaining items into storage and waited until they could not take it any longer. They then disposed of the property, always wondering and worrying if a relative would later appear claiming that the landlord disposed of some valuable property which the relative was entitled to under a will or otherwise. This could have exposed the landlord to serious liability and a major lawsuit. Fortunately, that worse case scenario rarely happened, since when the tenant died, the relatives often descended on the rental unit, gained access somehow, took what they wanted and left, leaving unwanted personal property behind.

The New Law

Florida Statutes 83.59 defines when a landlord has the right of possession of the property. The landlord has the right of possession after an eviction has been completed, when a tenant surrenders the premises and when the unit has been abandoned. The new law adds to the definition of abandonment:

FS 83.59 (d) When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been notified in writing of the existence of a probate estate or the name and address of a personal representative. This paragraph shall not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s.202, s. 221 (d) (3) and (4), s. 236, or s.8 of the National Housing Act as amended.


The Mechanics of the Tenant Death

Under the new law if the following is in place, the unit is considered abandoned.

1. The last remaining tenant is deceased
2. Personal property remains on the premises
3. Rent is unpaid
4. At least 60 days have elapsed since death
5. The landlord has not been notified in wiring that there is an estate opened or that a personal representative has been appointed.

Why do we need to wait 60 days?

While it would have been ideal if this time period was shorter, it takes time for an estate to be opened, and this allows the relatives the time to hire an attorney and effectuate this if they intend to do so, and time for the landlord to be notified.

Now what about the abandoned property?

Getting possession of the unit is indeed the landlord's primary goal, but now we still have abandoned property left behind; prior to the new law, this was the main problem. This is dealt with in 83.67, which sets out when and how abandoned property can be removed. The amended 83.67 now allows the removal of personal property if the landlord takes possession of the unit by "recovery of possession of the dwelling unit due to the death of the last remaining tenant in accordance with 83.59(3) (d)". As you can see, now both these statutes tie in nicely to allow for the unit to be considered abandoned and allowing the landlord to dispose of the abandoned property.

Some final thoughts

Since a landlord will not have to deal with this situation on a regular basis, we recommend that upon a tenant death, the landlord contact an attorney to make sure all the steps have been followed. As the statute indicates, some federally governed programs are excluded, and legal advice is always recommended to avoid a potentially expensive mistake.






(Back to Top)




by Harry Anthony Heist, Attorney at Law

One of the most common areas of confusion regarding security deposits is knowing what to put on the Notice of Intention to Impose Claim on Security Deposit, hereinafter called the "Notice", the form which according to FS 83.49 must be sent out to the tenant within 30 days of the tenant vacating the premises. We find landlords do their best to figure out what the tenant owes, either due to breaking the lease, or simply leaving at the end of the lease with damages to the premise or otherwise owing the landlord money. The problem is that this form only is dealing with the security deposit, or in some cases, advance rent that the landlord is holding. This is not a "final bill" to the tenant or the total amount a tenant will possibly eventually owe. This common misconception causes landlords to frequently fill out the Notice incorrectly.

What amounts are put on the "Notice"

A security deposit is the amount the landlord owes to cover damages to the premises, monies owed to the landlord under the terms of the lease and for full and faithful performance of the lease terms.

1. The tenant breaks the lease by vacating

If the tenant simply "skips" out of the lease, the landlord can charge the tenant rent that is owed at the time the tenant skips out. The landlord cannot accelerate the rent. Acceleration occurs when the tenant is immediately charged for all the remaining rent owed under the terms of the lease. While the lease may provide for this, and it seems logical, acceleration is not a specific collection right granted to landlords under Florida default remedies. A "skipping" tenant owes rent due at the time of the skip, damages to the premises which exceed ordinary wear and tear, and any other amount legally chargeable to the tenant under the lease terms. If a tenant paid rent for June and skipped out June 20, it would seem that the tenant would owe no rent, and that no rent could be placed upon the Notice. This is certainly not the intent of the statute, and since the landlord has 30 days to send out the Notice, by July 1, the tenant will owe another month's rent which can and should be put on the Notice. You do not want to be returning the full security deposit if the tenant skips out on the lease, as he will owe you rent. As you can see though, if the unit stays vacant, the tenant will owe you more rent, presumably until the earlier of the end of the lease or until the unit is re-rented. How can you put this on the Notice? You can't, and you don't need to. The notice is only dealing with the SECURITY DEPOSIT and ADVANCE RENT funds!!!!

2. The tenant is evicted

If your tenant is evicted, you will be charging them everything in paragraph 1 above, plus your attorney's fees and court costs, if your lease states that you are entitled to these sums

3. The tenant vacates at the end of the lease

If your tenant vacates as planned at the end of the lease owing no rent, you will not be charging the tenant any rent on the notice, just damages that exceed ordinary wear and tear, and any other sums due under the terms of the lease.

Sums owed that exceed the Security Deposits

Often a tenant will owe significant sums that exceed the security deposit, or after you send the Notice, you discover at a later time some further damage that was not caught or actually hidden from the landlord. If you already claimed the entire deposit, this is not relevant to the prior Notice. While you do want to list on the Notice everything possible that is owed by the tenant within the 30 days window you have to send the Notice, if there are other amounts that the tenant owes you as time goes on, these amounts will still be owed to you by the tenant.

The Danger of the "Notice"

As many landlords incorrectly think that the amount on the Notice is the end all total amount owed, the tenant also may think this. If a landlord were to later sue a tenant for accrued rent or later discovered damage, the tenant could conceivably convince a judge that since it was not on the Notice, it is not owed. This common misconception can be cleared up by placing the following wording on the bottom of the Notice. This wording, though not required by Florida law, is a reminder to the tenant and to the landlord that the amounts you have listed on the Notice may not be the actual total amount that the tenant will owe you.

This Notice Of Intention to Impose Claim on Security Deposit does not waive or limit any of landlord's rights to damages or amounts due which may exceed security deposit or amounts listed on this form.


(Back to Top)



by Harry Anthony Heist, Attorney at Law

We have all heard the expression "last known address", but much confusion abounds regarding its actual definition or how it should be defined in the landlord/tenant law context.

When does the "last known address" become relevant?

According to Florida Law, the landlord must send out the Notice of Intention to Impose Claim on the Security Deposit or refund any money that is due to the tenant within a 30 day time frame or 15 day time frame respectively. This is to be sent to the "last known mailing address".

Florida Statutes Section 83.49 provides as follows:
"¦(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 "last known mailing address"

FS 83.49(3)(a) clarifies the issue stating that it is the "last known mailing address". The usual last known mailing address will be the address of the premises or the address that you have been sending correspondence to the tenant while the tenant was living on the premises or any other address that the tenant has given you to send correspondence to the tenant by mail.

1. The property where the tenant resided : If the tenant has not given you any other address to which to send mail, this will be the "last known mailing address". Of course, the tenant no longer resides at the property, but this is where you should send your Notice. The tenant may or may not have put in a forwarding address, but this is not your problem. The law requires you to send out the notice. It does not require you to make sure the tenant actually receives the notice.

2. The address where you have been sending correspondence : The tenant may have given you a mailing address at the beginning or during the tenancy, requesting that you send all mail to that address. Commonly, tenants and landlords alike do not like to use the exposed street side mailboxes due to the high incidence of theft from these mail boxes, resulting in the use of a post office box at the actual post office or at a mailbox/shipping store. If this is the only address you have, this is the "last known mailing address".

3. The address the tenant gives you when vacating: Often a vacating tenant will give you his or her new address. This may be done by phone or in writing. If the tenant has requested that you send any correspondence to this new address, do as you are instructed. If it was a verbal instruction, denote the date and time of the request in your file, and urge the tenant to give you this instruction in writing.


(Back to Top)



by Cathy L. Lucrezi, Attorney at Law

Landlords, often with the best of intentions, worry that if they rent a unit to a person who appears to be frail and elderly, there will ultimately be a terrible accident involving the tenant. Perhaps it will be the tenant falling on the steps. Perhaps it will be the tenant leaving the stove on and starting a fire. Or, perhaps the tenant will die in the unit and not be found for a few days.

First and foremost, note that all of those horror stories can happen to any tenant. They are not reserved for elderly people. Secondly, be careful about making assumptions about seniors' abilities. Not every octogenarian sits on the porch in a rocking chair "“ I know one who has begun ballroom dancing!

Despite those cautions, there will indeed be times when a landlord will reasonably wonder if a person is able to live on his own. How the landlord deals with those concerns is influenced by fair housing laws.

For instance, it is unlawful to ask the tenant or applicant to provide proof from a doctor that they are able to live independently. It is unlawful to require that the elderly tenant get one of their children to co-sign the lease. It is unlawful to refuse a second story unit just because you worry the person will fall on the steps.

The law presumes that a person knows what is best for himself. Thus, if I want that second story unit even though I use a cane, I should have that second story unit. It is not up to the landlord to figure out what is best for me.

If there are observable facts showing that the tenant is endangering herself or others, or risking damage to property, document it in your file. If you feel the person is not safe, call the Florida Abuse Hotline at 800-962-2873, or your local Elder Affairs Resource number (in the blue pages of the phone book).

If the individual's conduct violates the lease, then it is appropriate to serve a seven day notice of noncompliance with opportunity to cure. If the conduct is repeated or continues, and the conduct creates a risk of injury or damage, then a termination notice could be given.


(Back to Top)

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

|     Home Page     |     Firm Profile     |     Attorney Profiles     |     General Services     |     Apartment Communities     |     Residential Managers     |     Apartment Communities     |     Residential Managers     |     Homeowners/Investors     |     Eviction Q & A     |     Legal Articles     |     Training/Events     |     Contact Us     |