VOLUME 4 - ISSUE 10 LEGAL UPDATE
- Keys and Possession
- Dealing with Rental Furniture
- The Belligerent Tenant
- The Tenant Security Deposit Dispute
KEYS AND POSSESSION
by Harry Anthony Heist, Attorney at Law
Many property managers consider the return of keys as the date that the tenant gives possession. When the key return occurs, they begin to count the 15 or 30 days as required by law for returning the security deposit or making the claim. Sounds reasonable, right? Wrong. This method of determining the possession date gets countless landlords in trouble, as the tenant argues about the key return or key return date, resulting in potential accusations of a violation of the security deposit claim/return laws.
Your lease most likely has a clause which states that the tenant is to turn in the keys, garage door remote, etc., upon surrender of the premises to you. This reminder is important, as often the tenant leaves forgetting to return these items, and besides, when the key is returned, it is usually clear that the tenant has in fact surrendered. Unfortunately, like any other lease clause, tenants will do whatever they want. They do not always do "what they are supposed to do".
Your company policy
You may have a company policy that states that the tenant has not surrendered the rental premises unless the keys are returned. While this seems like a logical policy, the reality of the tenant not returning the keys can make this policy silly, as most landlords have taken possession of a rental unit at one time or another, even when no keys were ever returned. The policy may be good in theory, but in reality it does not always work. Furthermore, many judges do not care much what your company policy is.
What is the surrender date?
Your tenants are supposed to leave at the end of October. They have given notice that they are leaving, their lease may be expiring, or possibly you non- renewed the tenants. At the end of October, no tenants show up in your office to drop off the keys. The question now is whether the tenants have indeed surrendered.
Rent and Keys
It would seem logical that if you did not receive the keys from the tenants on the surrender date, the tenants would continue to owe rent until such time as those keys are returned. This is simply not practical, as the chances are the tenants have vacated on the surrender date, but for whatever reason or no reason at all, they drove off with the keys.
The Landlord's actions
. The landlord who does not receive the keys on the surrender date often decides to continue charging tenants rent. This amount will be deducted from the security deposit or could exceed the security deposit funds, resulting in the tenants owing more money than the security deposit, which amount could eventually end up on a credit report.
Now for the Dispute
1. Charging the tenant rent:Once the tenants receive the Notice of Intention to Impose Claim on Security Deposit, the fireworks begin. The tenants are furious that you would have charged them rent, when in their opinion, they vacated the property, and since they were not living there, they should not have to pay any further rent. They may even bolster their argument by showing you the notice of vacating they gave you or the notice of non-renewal you sent them. In your mind, since no keys were returned, they owe rent. In their mind, they vacated just as planned and owe nothing.
2. The 30 day Notice Period requirement:The landlord receives the keys on the 4th day of the month or goes to the property on the 4th and finds the keys sitting on the countertop with a little note next to them and a forwarding address. A common problem occurs when the landlord begins the counting period of 30 days to send the claim letter as of the key receipt date. Typically the problem is caused when the landlord waits until what they consider the 29th day to send the notice out. Savvy tenants know about the law regarding the security deposit and the timeframes under which the landlord is working. The result is that the tenants are now demanding the full return of the security deposit, as in the tenants' opinion, you sent it out late. The argument then becomes whether you sent the notice out on time. The landlord argues that the tenant did not return the keys until the 4th or not at all, since the keys were left on the counter. The tenants argue that you knew or should have known that they had vacated, and you should have begun counting your 30 days from the date that the tenants were supposed to vacate. The tenants may even argue that they returned the keys to your receptionist or dropped them in the drop box. Who is correct, the tenants or the landlord? It is tough to predict how a Judge will rule under these facts; the best answer is for the landlord to avoid this problem.
Avoiding the problem
If you are told by the tenants that they will vacate at the end of the month, or you gave them a notice of non-renewal for that date, it is YOU who should be going over to the property on the first day of the month and seeing if they have completely vacated. Sitting in your office waiting for keys which may never be returned is patently foolish. Additionally, waiting until the 28th, or 29th day from the key receipt date to send the deposit claim letter is dangerous and increases the odds of a dispute immensely. NEVER rely upon the return of the keys to begin the counting of your days when making the claim upon the security deposit, regardless of company policy or lease wording.
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DEALING WITH RENTAL FURNITURE
by Harry Anthony Heist, Attorney at Law
Many tenants abandon the premises or get evicted leaving rental furniture behind. Most landlords know how to deal with the property in these situations. Less common is the situation when the furniture rental company calls the landlord or shows up at the office asking the landlord to allow them access to the unit to retrieve the furniture for which the tenant has not paid. Do you oblige? Can you let the representative from the rental furniture company in the unit? Suppose the eviction will be served on Monday morning. Is there any obligation to the rental company?
The tenant is in possession
Furniture rental companies will often contact you in the event the tenant to whom they rented the furniture fails to pay the rental amount. According to the contract the tenant signs with the furniture rental company, the tenant agrees to allow the company to pick up the furniture in the event the tenant is in default. You, as landlord though, are not a party to this contract and have no power or authority to grant the company access to the rental unit. If you are notified by the rental company's representatives, simply tell them you cannot grant them access. They will try to convince you otherwise, but the bottom line is that retrieval of the rental furniture is their problem and not yours.
The tenant is under eviction
The fact that the tenant is under eviction changes nothing. An eviction is simply a lawsuit by which you are trying to remove the tenant. The tenant may pay and stay or end up being evicted. The furniture rental company is not a party to the lawsuit and does not have any greater rights to the rental furniture because of the pending eviction.
The sheriff is going to grant you possession
Near the end of the eviction process, the sheriff's office will notify you of a fixed date and time when they will come and meet you to give you possession. If the furniture rental company asks you when this is going to occur, simply refer them to the case number, and they can do their homework. If the company wishes to be at the property when the sheriff executes the Writ of Possession, they certainly can, and they can also retrieve the items from the property line after you have placed them there. Do not allow the rental company employees to enter the unit to retrieve the furniture. You are required to take all items to the property line. You neither have any affirmative duty to notify the rental company of when the writ of possession is to be executed, nor do you have any responsibility for the preservation of the property once you take it to the property line.
The law and rental furniture
Florida law requires the furniture rental company to file a lawsuit in County Court, and obtain a writ of replevin in order to have the right to take the rental furniture from a tenant without the tenant's consent, if by taking the furniture, the peace will be breached in any way. If for some strange reason the rent furniture was sitting on a first floor open lanai area, the furniture rental company would be able to simply take the item(s) and leave without the necessity of a replevin action. Since most furniture is kept in the unit though, the legal procedure must be followed.
Abandoned rental furniture
If the unit is truly abandoned or surrendered to you and you have the proper abandoned property wording in your lease agreement, you may dispose of the rental furniture and any other personal belongings as you see fit. If the furniture is obviously rental furniture or contains markings identifying it as rental furniture, there is nothing improper about calling the rental furniture company and asking them to retrieve their property. Please be absolutely certain that the unit is abandoned according to Florida law or surrendered before ever removing any tenant's personal property. Check to see if your lease has the current abandoned property wording stated clearly:
BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY
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THE BELLIGERENT TENANT
by Harry Anthony Heist, Attorney at Law
Every landlord will someday deal with the situation when a tenant comes storming into the office acting in a threatening or belligerent fashion. He may be unhappy about the rent going up, or because you are non-renewing him, or possibly because his car was towed, and it is all your fault according to him. He storms into your office, spewing profanities and acting aggressively towards you or others. It is possible that you have other prospects in the office who have to be subjected to this behavior by the tenant. This can be a frightening experience, as the tenant could go as far as threatening the life of staff members, or throwing objects about the office. Can you evict a tenant for this behavior? Should he and other leaseholders of his apartment be served any type of notice?
Calling the police
Unless the dispute is minor, we recommend that the police are called immediately. Although they most likely will not do anything but speak to you, your staff and the tenant, it will send a clear message to the tenant that you mean business and will not tolerate such behavior in or out of the office. By calling the police, you will also create the much needed paper trail in the event another incident of a similar nature occurs again.
Trespassing the tenant
If a disruptive incident happened more than once, a threat was made, you were put in fear of your life, the tenant did some physical damage to the premises or interfered in a serious way with you conducting business in the office, you have a right to request that the attending police office or sheriff's deputy file a trespass warning against the tenant. If the sheriff does trespass the tenant from the office and the tenant returns, the tenant can be arrested.
The proper notice to use
If the office disturbance is such where there is yelling, profanity and general inappropriate behavior, while the manager would love to terminate the tenant, this would not make for a strong termination case. In such a situation, a Seven Day Notice of Noncompliance with Opportunity to Cure should be given, and you should consult your attorney for the proper wording. If the disturbance rises to a much more serious level including direct threats of physical harm to persons or property, a Seven Day Notice of Termination would be the proper notice to use. Never prepare a Seven Day Notice of Termination yourself, but immediately call your attorney for guidance,
If a Seven Day Notice of Noncompliance With Opportunity To Cure has been served, and similar disturbances occur after the notice expires of which you have good proof, it will be possible to serve a Seven Day Notice of Termination. Again, your attorney should assist you in making that decision.
Some final thoughts
Most self-respecting landlords will eventually have their vehicle keyed or their tires slashed by an angry resident. A number of situations occurred in 2007 in which landlords and apartment community staff in Florida were injured and even killed by irate residents. Learn to try to diffuse situations whenever possible, as the risk is high that something serious can occur.
THE TENANT SECURITY DEPOSIT DISPUTE
by Harry Anthony Heist, Attorney at Law
When receiving a Notice of Intention to Impose a Claim on the Security Deposit, invariably a tenant will one day dispute what you have charged. You will usually be notified of this in a long rambling letter, in which the tenant goes on and on about how the premises were left cleaner than when she moved in. The tenant's letter usually ends with a threat that if she does not receive her money back within a certain period of time, she will sue.
What is the landlord required to do when a Security Deposit Claim is disputed?
The easy simple answer is NOTHING. Contrary to popular belief, there is no legal obligation to respond in any way to a tenant's verbal or written security deposit dispute. Should you completely ignore it though?
The Four Options when there is a dispute
1. Do absolutely nothing and ignore the tenant's dispute. This will most likely infuriate the tenant. You will either hear nothing from the tenant or you may receive a letter from an attorney for the tenant, or a lawsuit could be filed against you, the property owner or both. Chances are you will hear nothing.
2. Give the tenant what he or she wants. If the tenant is demanding a return of the security deposit in full or in part, you can simply cave in and return the money. That is a fairly certain way to calm the tenant down, but it is doubtful that you or the property owner really wants to do this. If you are the property manager for an owner, it is recommended that you notify the owner of the dispute and ask them if they would like to do this. Many owners do not want to be remotely bothered with a dispute and may choose this to avoid any possibility of litigation. If a dispute blows up into a major lawsuit, the property owner could blame you for not giving them this option in the beginning. Never try to guess what path an owner will take. Let them make this decision.
3. Respond to the tenant. Tell the tenant in writing that you have reviewed the file and that the charges stand. There is no need to explain the charges if they are clear. Remember that you are building a paper trail when you respond, so be careful you do not disclose any weaknesses. Your response will at least show that you are not ignoring the tenant and may calm the tenant down.
4. Receive settlement authorization from the owner. After review of the file and possibly consultation with the owner, you may feel that certain charges are not easy to prove or were not warranted. If you receive a fixed amount of settlement authority in writing from the owner, you or your attorney can attempt to settle the matter. If settled, a release can be drawn up and the money disbursed according to the agreement.
Can you disburse a disputed security deposit?
We are not sure and have seen judges go both ways on this. Florida law seems to allow you to disburse the security deposit as you see fit. The days of having to notify FREC, file an interpleader or file a lawsuit in court are OVER. Do you increase the chance of getting sued if you disburse? Yes, but if you have a solid case, evidence and proof of all the damages for which you may have charged the tenant, you probably will be safe.
Some final advice
In the event of a lawsuit, if you manage the property for an owner, you do not want to be named a party to the lawsuit. You are merely holding the money, or you may have already disbursed. Always make sure that you have the following wording clearly stated in your lease agreement:
DISPUTES AND LITIGATION: In the event of a dispute concerning the security deposit and tenancy created by this agreement, TENANT agrees that if the premises are being managed by an agent for the record owner TENANT agrees to hold agent, its heirs, employees and assigns harmless and shall look solely to the record owner of the premises in the event of a legal dispute.
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by Cathy L. Lucrezi, Attorney at Law
"Harassment" is used so often in our vernacular, the word fails to even raise an eyebrow. Not so in fair housing law. "Discriminatory Harassment" has a specific meaning and a powerful impact.
Under fair housing laws, "discriminatory harassment" includes any abusive, foul or threatening language or behavior directed at a tenant because of that person's protected class. [Protected classes include race, color, national origin, religion, sex, disability, familial status, as well as any protected classes created by local ordinances.]
Harassment occurs when the landlord, staff or other tenants target a tenant with hostile conduct. The hostile conduct might be using racial epithets, making sexually suggestive proposals, yelling profanity at a person, persistently photographing the person in common areas, and any other annoying and threatening behavior.
Of course, not all annoying conduct is a fair housing violation. A person who yells profanity at his neighbor may simply be a jerk. If the person yells the profanity because he dislikes his neighbor's religious beliefs, then it is discriminatory harassment.
You would be correct in assuming the landlord can be sued for damages if he or his staff is the source of the harassment. However, you might be surprised to learn the landlord can be held liable even if the harassment comes from other tenants.
Staff who witness or learn of harassment should investigate the complaint. If there is merit to it, a notice of noncompliance should be served to the harasser. If the harassment is repeated following expiration of the notice, termination and eviction may be appropriate.
Prevention helps avoid harassment complaints. The landlord should foster an environment that is free from discriminatory harassment or intimidation. All staff should model appropriate non-discriminatory behavior. That means, no offensive "jokes" or names, no matter how friendly the listener may be. All staff should attend fair housing training. If you would like to adopt a staff policy of "no harassment" that includes directions to staff on how to handle complaints, contact our office for a sample policy.
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