VOLUME 4 - ISSUE 11 LEGAL UPDATE

- Bad Security Deposit Habits - Part 2
- Methamphetamine And The Rental Premises
- Soldiers, Sailors, And Tenants
- Park It Right Here

 

 

BAD SECURITY DEPOSIT HABITS "“ Part 2
by Cathy L. Lucrezi, Attorney at Law

Still think there's nothing to learn about security deposits? Nothing new to learn? Your confidence is laudable, but just to know how others are making errors, read on for some "bad notions" that should be corrected.

"We don't send a claim if the tenant didn't give us a forwarding address."

The statute requires the landlord to send a claim on the deposit no later than 30 days after the tenant has vacated. The statute also says, in a situation where the tenant vacates the premises early, the claim only has to be sent if the tenant gave the landlord a forwarding address seven days before the tenant vacated. Sounds like a great loophole. It's not. It should never be relied upon.

Every time a tenant vacates, a claim on the security deposit should be sent. It should be sent to the last known address, even if that is the unit he just vacated.

The problem with the "loophole" is it contains its own loopholes, making it very difficult for folks (including judges!) to figure out. It is far better to spend $5.21 or so for the mailing, than to risk being forced to return the security deposit.

"We don't send a claim if the tenant was evicted."

An eviction does not mean the tenant automatically forfeits her security deposit. Even though a tenant was evicted, she is entitled to receive the claim you are making against her deposit.

Every time a tenant vacates, a claim on the security deposit should be sent. This is true whether the tenant vacates under a writ of possession or surrenders keys four months before the lease expires.

It is common that a tenant who was evicted "used up" all of the security deposit. Typically, the tenant owes more than the amount of the security deposit. Nonetheless, a claim must be made on the deposit.

"We don't send a claim if the tenant told us to keep the security deposit." Sometimes a tenant will orally tell the landlord to keep the deposit. "Use it for what I owe you." No matter how much you trust the tenant's word, send the claim on the security deposit.

Every time a tenant vacates, a claim on the security deposit should be sent. Even if the tenant consents to the landlord keeping the deposit, the tenant is still entitled to receive a claim on the deposit.

Oral directions are only as good as the paper they are written on. They give no protection to the landlord.

In addition, if there is more than one tenant on the lease, getting the "go ahead" from one tenant simply cannot waive the rights of the other tenants. Send the claim to all the tenants on the lease.

 

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METHAMPHETAMINE AND THE RENTAL PREMISES
by Harry Anthony Heist, Attorney at Law

 

The manufacture and use of methamphetamine, a highly dangerous, addictive and illegal drug is rampant throughout the United States. Usually it is manufactured in clandestine labs in trailers and homes in remote areas. Due to the severity of the problem, law enforcement has been making methamphetamine eradication a major priority. One of the big problems with methamphetamine manufacturers is the fact that they are often also seriously addicted to the drug they manufacture and sell. Once arrested, they may serve some time only to be released and resume the manufacture of the methamphetamine.

The manufacture of methamphetamine

Methamphetamine can be manufactured in any room of a house, trailer or apartment. The chemicals used are commonly available from the hardware store, paint store and online from chemical supply houses. All the ingredients used in the manufacture of methamphetamine are completely legal. Many of these ingredients are highly flammable, volatile and poisonous. Often a methamphetamine lab is discovered due to a fire or explosion.

What to look for during your inspections

An operating methamphetamine lab will be simple to spot. You will see chemicals, propane tanks, burnt cookware, glassware, bottles of chemicals, and be struck with the odor of the noxious substances used in the manufacturing process. The problem is that in order to see it, you will need to enter the unit. Many property manager fail to conduct regular inspections of their properties and assume if the property looks nice and neat from the outside, an interior inspection is not necessary. All landlords need to implement a policy of routine interior and exterior inspections. The interior inspection may be conducted less frequently than the exterior inspection, but in any event, inspections must be done on a regular basis. Severe damage can be done to an extremely valuable asset, and had an inspection been done sooner, often the damage could have been detected, stopped, or the tenant could have been removed from the premises.

Items which could indicate a methamphetamine lab

Glass jars with liquids or residues Large numbers of boxes of over-the-counter cold tablets Bottles of red phosphorous, iodine, sulfuric acid, hydrochloric acid, marked and unmarked bottles with colored or white solid on the bottom. Coffee filters Strong noxious orders Laboratory type glassware Burnt cookware or frying pans Kerosene, paint thinners, acetone and starting fluid Piles of rechargeable batteries Propane tanks Pressure cookers Ice tea jars Gasoline cans with tubing.

Note: Almost all the above listed items are common by themselves. It is the collection of the items in one area which should raise some serious suspicion.

Behavioral Tip-offs

Unusual, paranoid behavior by the tenant Nonpayment of rent Unemployment by the tenant Blackened windows and drawn curtains Frequent visitors at all hours and excessive traffic Extensive security such as additional locks and reinforced doors

You have discovered a methamphetamine lab, now what?

If you feel that there is the manufacture of methamphetamine on the premises, you should notify local law enforcement immediately. You should insist that they come with you to do an inspection, as often law enforcement does not immediately wish to shut down drug operations, but unfortunately want to watch the unit in question in operation for an extended period of time to get the "bigger fish", or arrest a larger number of people. Notify your attorney immediately, and do not serve any notices without the attorney's consultation and advice. Methamphetamine labs are extremely dangerous and sometimes booby trapped. Do not enter the unit again if you have strong suspicions, and leave this to the professionals.

Remediation and the law

Many states are enacting laws which require complicated and expensive testing and remediation procedures based on the presence of certain chemicals in a rental unit. Sometimes the amount of the chemical needed to trigger remediation is so minute, it borders on absurdity. Some states have enacted laws which will require disclosure to future tenants or adjacent tenants. We are watching the laws carefully so Florida does not become one of those states. If your local municipality is dealing with this issue, please feel free to contact our office. Often local municipalities come up with ordinances that have not been properly thought out. We do not need the landlord to become the victim in this war on drugs.

CLICK HERE and HERE for some excellent resources on methamphetamine

 

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SOLDIERS, SAILORS, AND TENANTS
by Cathy L. Lucrezi, Attorney at Law

 

No one would dispute that a soldier is deserving of respect. The soldier relinquishes his liberty to join the service and sometimes pays the ultimate sacrifice. Law makers have enacted various laws to protect service personnel in their dealings in the "civilian" world. Regardless of whether the law makers were motivated by esteem or by a desire to please voters, the result is the same. A person serving in the active military is entitled to special housing rights.

Nondiscrimination

A Florida landlord may not discriminate against a servicemember in offering a dwelling unit for rent or in any of the terms of the rental agreement. A violation of the law could subject the landlord to same penalties as for changing the locks or turning off the electric service. Even if the service member had no financial damages, he would be entitled to at least three times the monthly rental rate, plus attorney fees and court costs.

Some counties and municipalities have their own ordinances that make it unlawful to discriminate against servicemembers. Besides making the landlord pay damages, attorney fees and costs, these local laws often authorize the local government agency to investigate and file a complaint on behalf of the servicemember. The significance of that is the tenant may not need to find an attorney to help him. The city or county can sue the landlord on the tenant's behalf.

Early Lease Termination

A tenant who is in the military service can terminate the tenancy under certain circumstances. Criteria must be met:

-- The tenant must give written notice 30 days prior to vacating.

-- The tenant must give you a copy of the military orders that are the basis for the termination.

-- The tenant's circumstances must "fit" into one of the following categories:

A. The servicemember is required, pursuant to a permanent change of station orders, to move 35 miles or more from the location of the rental premises;

B. The servicemember is prematurely or involuntarily discharged or released from active duty or state active duty;

C. The servicemember is released from active duty or state active duty after having leased the rental premises while on active duty or state active duty status and the rental premises is 35 miles or more from the servicemember's home of record prior to entering active duty or state active duty;

D. After entering into a rental agreement, the servicemember receives military orders requiring him or her to move into government quarters or the servicemember becomes eligible to live in and opts to move into government quarters;

E. The servicemember receives temporary duty orders, temporary change of station orders, or state active duty orders to an area 35 miles or more from the location of the rental premises, provided such orders are for a period exceeding 60 days; or

F. The servicemember has leased the property, but prior to taking possession of the rental premises, receives a change of orders to an area that is 35 miles or more from the location of the rental premises.

Death of a Servicemember.

If a servicemember dies during active duty, an adult member of his immediate family may terminate the rental agreement by giving the landlord a 30 day (at least) written notice of termination. The notice must be accompanied by either a copy of the military orders showing he was on active duty (or a statement signed by his commanding officer) and a copy of the servicemember's death certificate.

Consequences of Early Termination

If the rental agreement is terminated under the special military statute, the tenant is liable for the rent through the 30 day notice period. A pro-rated amount would be due if the thirty day notice ends in the middle of a month. The tenant is not liable for any other rent or damages due to the early termination, no matter what the lease may say. The tenant is not obligated to repay concessions.

If the servicemember has not yet taken occupancy of the unit and gives at least 14 days notice of the termination, no damages or penalties of any kind can be assessed.

Nonwaiver

No part of the special military statute can be waived by the parties. The landlord cannot have the tenant sign an agreement that defeats the protections of the statute.

 

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PARK IT RIGHT THERE
by Cathy L. Lucrezi, Attorney at Law

 

Whether it is reserved or "first-come, first-serve", parking is a territorial issue which tenants loathe to let anyone change. Because of this, a property manager may have a dilemma when a tenant with a disability requests a reserved accessible parking space.

Fair housing law obligates you to provide reasonable accommodations for tenants with disabilities. That means you are obligated to provide the reserved space even if your property does not assign parking spaces to specific tenants or units. You must provide a reserved parking space to a tenant with a disability if he requests it.

The reserved parking space for the disabled tenant must be posted with a sign at the head of the parking space, saying the spot is reserved and enforced. It should be marked as reserved so that other people with disabilities don't park there.

You must enforce the tenant's right to the reserved accessible parking space. That may mean issuing a notice of noncompliance to a tenant who parks there.

A challenge arises when there are several tenants with disabilities, each one requesting a reserved parking spot. Unfortunately, there is very little guidance from HUD about how to juggle numerous, competing requests. Instead, each request must be handled with individual consideration. It helps to have in place a written policy and procedure regarding requests for reasonable accommodations.

Note that not all accessible parking spaces have to be equal. Many tenants who need an accessible parking space don't need an extra-wide space with an access aisle. They may only need a regular-size parking space nearest to their front door (or on the most accessible route to the front door). Discuss with the tenant his or her needs for parking.

Guest parking is subject to ADA Title III rules, which require that at least 2% of all guest spaces in any lot meet access requirements and be designated with appropriate signage. These spaces must be at least 96" wide and must have an adjacent access aisle at least 60" wide, which allows room for a wheelchair, electric scooter or other mobility device. An access aisle can be shared between two accessible parking spaces. At least one of these spaces must be van accessible with a 96" access aisle.

Remember that the parking spot you provide to a tenant in response to an accommodation request is separate from and in addition to any general accessible spots provided for the public or tenants and their guests.

If the rental office is on-site, be sure to locate at least one accessible guest parking space next to the office.

 

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revs'd 11/19

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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