VOLUME 5 - ISSUE 4 LEGAL UPDATE

- Properly Executing the Writ
- Importance of Updated Contact Information
- Surrender of the Premises
- The Homeowner's Official Address
- What is a Refusal

 

 

Properly Executing the Writ
by Harry Anthony Heist, Attorney at Law

 

The proper execution of the Writ of Possession is crucial to a successful and completed eviction action. The key word here is completed. Many landlords and property managers make serious mistakes at the end of the eviction action, increasing the liability to the landlord and potentially defeating the whole purpose of the eviction action. Most evictions result in the tenant vacating the premises within a week or two after the eviction action is filed with the court, and many landlords have never experienced the execution of the Writ of Possession.

The Mechanics

Issuance of the Writ: Once a final judgment of eviction is obtained, the landlord must decide if a Writ of Possession, hereinafter Writ, is necessary. If the landlord decides that a Writ is indeed necessary, the attorney submits the Writ to the Clerk of Court along with a check to the Sheriff's Department, usually in the amount of $70.00. The Clerk of Court then confirms that a final judgment has indeed been signed by the Judge and "issues" the Writ. The Writ then is taken to the Sheriff's Department where it is processed by staff of the Sheriff's Department.

Service of the Writ: Once processed, the Writ is assigned to a Deputy for service upon the tenant. The Deputy then takes the Writ and serves it upon the tenant, or in the absence of the tenant, tapes it to the tenant's door. The Writ informs the tenant that he must vacate the premises within 24 hours.

Notification of the landlord: The landlord is then called by the Deputy who served the Writ, and a date and time is set by the Deputy, at which time the Deputy will come and execute the Writ.

The Problem

The purpose of the Deputy's call to the landlord is really twofold. First, it is to inform the landlord that the Writ has been served and to schedule the time when the Deputy will meet the landlord at the property to give the landlord actual possession. Unfortunately, there is another part of the Deputy's conversation with the landlord that causes a problem, and this is the second part of the call. The Deputy, once the date and time for the meeting is set up, will ask the landlord if he or she "needs" the Deputy to execute the Writ. If the landlord says "no," the Deputy will return the Writ to the clerk as "unexecuted", meaning "incomplete".

Why does the Deputy ask the landlord if the Writ is wanted?

The Deputy has many Writs to serve on any given day. Often the Deputy's schedule will get backed up, as some Writs require more time to serve than others. Sometimes a landlord is late to meet the Deputy, and the Deputy will wait a small period of time, causing a ripple effect with the schedule. Occasionally the tenant must be physically removed from the premises, resulting in further delay. In some instances, serious disputes or altercations occur, and the Deputy must remain on the premises until the tenant is finally removed from the premises and no longer poses a danger to the landlord, the landlord's workers or the Deputy. The Deputy wants nothing more than to have the landlord tell him that the Writ is not needed. It is completely understandable; the Deputy is just trying to get the Writs served for the day. For each Writ that the Deputy can cancel or return unexecuted, this will free up more time for the Deputy to get to the next Writ that needs to be executed.

What does the Deputy say?

The Deputy will ask the landlord if the tenant is still in the rental unit. Often the landlord is not sure if the tenant is still in possession, and the Deputy gives the landlord his cell phone number to call. The landlord then goes and checks the property. If the property is empty or appears empty to the landlord, the landlord will notify the Deputy, and the Deputy will then ask the landlord if the Writ execution is "needed". Often the landlord will say "no", thinking that if the tenant is not there anymore, then it must be unnecessary to meet the Deputy.

The Consequences of telling the Deputy "NO"

If the Deputy is told by the landlord that the Writ is not needed, the Deputy returns the Writ to the Clerk's Office as unexecuted, and it is docketed as such. The tenant now officially has NOT been evicted. Yes, an eviction was filed on the tenant, BUT the eviction was never completed. The tenant has NOT been evicted from the property, even though he may in fact have vacated the premises and will never be seen again.

The tenant may return: If the tenant were to return, he could simply move right back into the unit, and the landlord would need to file additional paperwork with the court seeking a new writ of possession, or possibly even be forced into filing a brand new eviction, starting all over again from scratch. The returning tenant would not be considered a trespasser, and the Deputy will do nothing to remove the tenant without further order from a Judge.

The tenant may return looking for personal property: If the tenant comes back to the premises and the landlord has disposed of her personal property, she could hold the landlord civilly and possibly criminally liable for the loss of the property. The tenant could say just about anything as to what was taken and its alleged value, and it would often be difficult to counter these allegations. When the landlord fully executes the Writ and subsequently removes the personal property to the property line, the landlord's liability to the tenant for her personal property is negated. When the writ is not executed, the potential liability for improper personal property disposition can be very high.

The tenant may use the common areas of the property : The landlord may observe a former tenant using the community pool, exercise room or laundry room. A Deputy may be more reluctant to trespass the "former" tenant if the eviction was never completed.

You have wasted $70.00 A Writ costs $70.00 and was paid for by your attorney. You will be billed by your attorney for that Writ. By canceling the Writ, you increased your liability, failed to formally complete the eviction, increased the chance of a big problem and wasted $70.00.

When the Deputy calls, what should you say?

When the Deputy calls you to set up the Writ execution time and day, if you are asked if the tenant is still there or if you still need the Writ, simply say "YES". Never quit short of the finish line. It is a sure way to lose the race.

(Back to Top)

 

 

Importance of Updated Contact Information
by Harry Anthony Heist, Attorney at Law

 

A major repair must be made to the property you are managing, and this repair requires authorization from the property owner, as it exceeds the amount you can spend according to your management agreement. The air conditioning has ceased to work, and the inside temperature is exceeding 100 degrees. You try to contact the property owner, but there is no answer on the phone number you call. Do you go ahead, take a chance and get the repair done? You are not sure if your tenant has vacated and want to avoid a potential wasted eviction action, so you try to contact the tenant. His phone number is disconnected, he no longer works at the job he had at application, and the emergency number is out of service. Do you file the eviction or take a chance and take possession? The problem in both of these scenarios is that you simply cannot communicate because the information you have is insufficient.

Initial Information

The Tenant: Typically through the application process, the landlord will ask for the tenant"˜s phone number and an emergency contact. After a few months, there is a good chance that the tenant has defaulted on his cell phone contract and/or has acquired a different phone number. The emergency contact was a friend who has moved and who also has a new number which you do not know. The property manager may have a work number for the tenant, but when this number is called, the tenant no longer works at that job, and no one there wants to give out any information. This is the reality of tenants in Florida. We are a transient population here in Florida, and information and addresses change fast and furiously.

The Landlord: When a property is managed by a local property manager, that manager will get the landlord's information at the time the Property Management Agreement is entered into. This information is often the out-of-state landlord's address, home phone number and nothing more. If the landlord is not home, the property manager simply does not have any ability to make contact and communicate.

Email: Most tenants and landlords have email addresses. A few years ago this may not have been the case, but the reality today is that most individuals have email addresses, and many check them on a frequent basis. With multiple tenants you will have multiple email addresses, and often you will have work and personal email addresses. The same will apply to the landlord. Never assume that if a tenant or landlord is elderly that they are not computer savvy or do not have email. Often people give an incorrect email address by accident. We recommend that you send a confirmatory email after the tenant moves in or after the property owner has signed a management agreement, just to be sure you have not been given incorrect information.

Home and Cell Phone Numbers: While a land line in the past has been the main contact number for most landlords and tenants, many are now opting to do away with the cost of the land line for cell phones or phone service provided by the local cable company. The property manager may be the last person to find out that the landlord or tenant no longer has a land line. Cell numbers of all the tenants should be acquired at the time of move-in, or in the case of the landlord, at the time the property management agreement is signed. The key is to get all the numbers, not simply one person as a contact. The more numbers you have, the greater chance you will be able to make contact.

Work Numbers: Acquiring the work numbers of both the landlord and the tenant is crucial. In the event you are having difficulty with all other numbers you may have, the work number may provide you with the information needed to track down the party. Most of the time we see the work number of the tenant on an application, but in our experience, the property manager often does not have the landlord's work number. In the event the landlord or tenant is on vacation, you may be able to get information by simply calling and listening to a recording the party has left, or if you must speak to a co-worker, you may find the party. Be extremely careful never to use this method to transmit private information or imply that you are attempting collect rent. When calling a work number, how you identify yourself and the fact that the person you are calling may have caller ID could result in an accusation by the tenant that you spoke to a co-worker about the tenant's rent obligation. A desperate tenant will make up a story that you called and harassed her boss or spoke to a co-worker about private information.

Fax numbers: A large number of tenants and landlords have separate fax numbers due to home offices. Make sure that if you acquire a work fax number, care is taken that other employees of the fax recipient will not be viewing private information, and that express written authorization is obtained to transmit private information.

Keeping the information up to date

All information can and does change. Your information may have been accurate at the time it was acquired, but after a few months or sometimes years, this information is useless. It is crucial that the property manager has a system in place to regularly check this information for accuracy; we recommend at least every six months. Sending out requests for information in the owner's statement or periodically to the tenant may achieve the desired results, but if not, property managers need to affirmatively take the time to go through their records and update everything. Updated information will reduce liability, decrease evictions and make property management easier.

(Back to Top)

 

Surrender of the Premises
by Harry Anthony Heist, Attorney at Law

 

Two tenants are on the lease agreement. One of the tenants stops by your office and throws a set of keys on your desk proclaiming, "We are outta here", and rushes out of your office. You decide to check the unit out, and it appears vacant. The electric is off, the unit is relatively clean, and the only personal property that you see is a box of books, an old television, bag of clothes and computer monitor. Looks surrendered for sure. Within a few days you have your maintenance staff do a full cleaning of the unit, including touch up painting and a trashing out of the remaining property. The locks are changed, as this is your usual procedure. A week later, one of your tenants appears in your office claiming that she could not get into the unit. You inform the tenant that her roommate turned in keys the prior week, and that the unit has been cleaned out and locks changed. Surprised and shocked, the tenant in your office demands to know where all her personal possessions are, including a computer, CD collection, valuable antiques, expensive mountain bike and designer clothes. You state that there were no such items in the unit, and the tenant storms out. You then get a letter from a lawyer, or possibly the police pay a visit to your office. Did you do something improper?

What is Surrender?

The term surrender is not specifically defined under the Florida Landlord/Tenant Act. Many managers assume that act or turning in keys constitutes a surrender, and in many cases, a judge would be satisfied that surrender occurs with the turning in of keys. However, it should be clear to the property manager that all tenants on the lease have indicated in unequivocal terms that they have vacated the premises and are turning possession over to the landlord. A writing signed by all tenants is preferable, and no human beings should still be living in, using or sleeping in the unit. The property manager has to review very carefully the circumstances of keys being turned in; unless the keys are clearly being turned in as a consensual act by all tenants on the lease, it can be very dangerous to presume surrender has occurred. Even if there is only one tenant on the lease, if keys show up in the property manager's dropbox with no note, it may not have been the tenant dropping the keys off.

The property is "surrendered" but not vacant

Your tenants, all of them on the lease, may have given you the keys and indicated to you that they have surrendered the premises. You go out to the premises, and someone appears to be living there. You see clear and convincing evidence that the premises are being occupied by someone other than the tenants who were just in your office yesterday. The premises are not surrendered, and if you think the occupant in the unit is a trespasser, think again. If that person claims he is there with the permission of your tenants who just gave you the keys, you will be forced to file an eviction against your tenants, as they have not completely surrendered the premises. The fact that the tenants came to your office, turned in keys and said they were out, is not sufficient.

One tenant surrenders

One tenant on a two tenant lease comes into your office and hands you the keys announcing "they" have vacated. This is a common occurrence. You will then check the premises, and if it appears there is little to no personal property on the premises, the usual assumption is that all the tenants have vacated. The problem is that only the tenant who has given you the keys has in fact vacated, but the other tenant has no idea this has occurred, as she may have been staying at her boyfriend's house. This tenant then appears in your office after locks have been changed and wants to know why she has been locked out. You reply that possession was turned over by the other tenant the week before. Unbeknownst to you, the tenant who surrendered the keys to you sold all the other tenant's personal belongings and threw the rest in the trash. They were not getting along. Now the other tenant is attempting to hold you responsible for all the missing items. What happened? Only one tenant gave up the right of possession, and that was not complete surrender.

Written notification of surrender

There will be times when you do not receive the keys but receive a letter from the tenant or tenants stating that they have indeed vacated the premises. This would seem to constitute surrender, but again, the unit must be examined to see if this is truly the case.

Some final words

As you can see, receiving keys or a letter from the tenant or tenants may indicate that the tenants have vacated the premises, but if anyone is left behind, you do not have a surrender; if you do not have clear confirmation from all tenants on the lease that the right of possession has been given up, it can be dangerous to presume a surrender. Never assume you have complete surrender and right to possession of the premises until you examine the premises and consider all the underlying details of the case; if you have any doubts, consult your attorney.

(Back to Top)

 

 

The Owner's Official Address
by Harry Anthony Heist, Attorney at Law

 

You are managing a home or apartment community for an out-of-state investor or investment group that just recently purchased the property. You are not on-site, but manage the property from your local office. The property owner calls you, stating that he is being fined $250.00 per day for a code violation on the property, and the owner wants you to rectify the situation immediately. It turns out that these fines now are substantial, and the property has been in noncompliance for months. The problem was discovered when the owner attempted to refinance a loan on the property, and a lien showed up on the public records. How could something like this happen? Should not the owner be notified by the local government before such drastic measures are taken? The problem we often see is that the governmental authority, condo association or homeowner's association does not have the proper address, and the tenant receives the correspondence meant for the property owner. Most property managers have been contacted by tenants at some time stating that they have received mail meant for the owner.

 

The Problem

Governmental entities, such as the tax appraiser, code enforcement office or any other regulatory authorities may only have the property address as the contact address. Alternatively, if correspondence is sent to the owner's address on file, and it is returned undeliverable, it will then be sent to the property address. This may occur due to a mistake, or simply that when the property was purchased, no other address was given to local authorities or the condo or homeowner's association. When a notice needs to be sent out, it will then go to the property, and dire consequences can result.

The Tax Appraiser

Make sure that the tax bills go to the owner of the property, not the actual property. A tenant receiving such a bill will simply discard the bill, and a property manager, knowing that the manager is not responsible for the bill, may ignore it. A delay in receiving a tax bill could result in the owner not being able to take advantage of an early payment discount on the taxes. Check with the Tax Appraiser to see what mailing address is on record.

Code Enforcement

Code enforcement may have the property address listed as the mailing address, or in the absence of the owner's actual mailing address, will simply use the property address. This can result in a citation being sent to the property and not the property owner. Take the time to check with the county or city to see what address is on file.

Occupational Licenses

Many counties and cities require that an owner obtain an occupational license in order to conduct the rentals. While the license application asks for the mailing address, often the physical address of the rental property is mistakenly put down as the mailing address, and this is used by the governing authorities to send the renewals out or any delinquency notices. If an occupational license is required, make sure it is up to date with the owner's current mailing address.

The Condo or Homeowner's Association

Your owner just purchased the property a few months ago and failed to give the condo or homeowner's association his current mailing address. What address will the association use when they need to send a violation notice out? The address of the property. If notification of a violation is sent and is received by the tenant, rest assured that the tenant will not notify you or the owner.

The owner's change of address

If the property owner notifies you of a change of address, assume the owner has forgotten to notify everyone else. The owner may even think that you will take the steps to notify everyone related to the property that the address has changed. Make address verifications part of your property management procedural checklist.

(Back to Top)

 

 

What is a Refusal
by Cathy L. Lucrezi, Attorney at Law

 

The fair housing laws are very clear: It is unlawful to refuse to rent to a person because of that person's race, color, religion, sex, national origin, familial status, or handicap. What is not so clear, perhaps, is that a refusal can occur even if the word "no" is never used.

An unlawful refusal of housing can be the basis for a fair housing complaint and can result in the landlord being liable to the applicant or tenant for a substantial sum of damages, as well as fines and attorney's fees. Examples of an unlawful refusal of housing:

The landlord takes the application but allows it to languish on his desk, hoping the applicant will forget about it or find some other place to live. The landlord's inaction is as good as a "no".

Of course, delays occur for reasons totally unrelated to unlawful discrimination. The agent may go on vacation, or the agent may be waiting for the employment verification to come back. A good management office will make diligent efforts to make sure such delays are avoided. If delays do occur, good management will communicate with the applicant to assuage any of his concerns.

"This place is terrible!"

The landlord shows the home to the applicant but persistently bad-mouths it, in the hopes the person will just walk away. Showing the unit does not disguise what is really happening: The landlord does not want to rent to the person.

Of course, the landlord is obligated to tell a prospective tenant about "latent defects" "“ negative things that the person would not be able to learn from an inspection. However, the law is violated when the landlord goes beyond this; being so negative that the applicant begs to be shown another unit or disappears altogether.

"You're approved, but you need a co-signer."

The landlord is requiring a guarantor or co-signer from an applicant merely because the person is a member of a protected class. Whether the landlord is doing it intentionally or doing it because of some wrong-headed generalization about a group of people, it violates the law. The "conditional approval" is the same as a refusal.

Of course, it is absolutely ok to require a guarantor or co-signer to the lease, provided it is done for a sound business reason. Regrettably, some landlords impose such a condition on single mothers, disabled individuals, and non-citizens who are lawfully present in the U.S.A.

The solution

Develop written criteria for who will qualify for a rental. Develop a written procedure for how each application will be handled. Follow the procedures! The more standardized the procedure is, the less likely there will be one of the refusals listed above.

Be sure that your decisions about who qualifies and what conditions are imposed are based on legitimate, non-discriminatory reasons. If it can't pass that test, you shouldn't be doing it.

 

(Back to Top) revs'd 4/26

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     |