- The Incarcerated Tenant

- Risks of Increasing Revenue from Tenant Charges

- The Tenant and the Electric Bill

- A Security Deposit Primer - Part 2 Initial Disclosures 

- Welcoming Disabled Tenants




  The Incarcerated Tenant

by Harry Anthony Heist, Attorney at Law



You have not received rent for the month, go out to the property to serve your Three Day Notice, and the next door neighbor informs you that the tenant is in county jail. The property is full of belongings, and the tenant's car is parked in the driveway. Can you evict? Should you post the Three Day Notice on the door? Do you want your tenant to come out of jail and find he has been evicted and everything he owns is gone? This situation will occur if you manage property long enough, and you need to know how to deal with it properly to avoid liability and/or a serious dispute.

Where is the tenant?

You may or may not know if in fact the tenant is incarcerated. If you were lucky enough to have your property on the news the night before when they did the grow house bust at your rental home, you can be fairly sure that the tenant is in the county jail. In other situations, you were simply told the tenant was in jail by a neighbor or someone you may have contacted on your emergency number list. To confirm the tenant is in jail, you need to call the county jail system and ask for inmate information. This is public record in most cases, and you will be able to find out if the tenant is in jail and where, as some counties have more than one location for their jails. If you are unsuccessful, look up the arrest report from the sheriff's department website and give them a call if necessary.

Do you need to locate the tenant?

There is nothing in Florida law that provides you must hunt down a tenant in order to serve a Three Day Notice. The law states that you can serve the tenant in person or post the notice on the premises in the tenant's absence. In an incarceration situation, clearly the tenant is absent; therefore, you could legally post the notice on the door and thus satisfy the requirements of  Florida law as far as notice goes. The question then is, "should you locate the tenant?" We feel that you should make an attempt.

Why bother locating the tenant?

If you post a Three day Notice on the door of the home, you will eventually file an eviction, and at the end of the eviction, you will remove all the tenant"˜s personal belongings to the street, where the neighbors and passerbys will rummage through everything and take anything of value. Personal items will be taken as well, some with sentimental value. Your tenant may get out of jail only to find out that his key no longer works in the door. Your tenant then contacts you, only to find out that he has been evicted and everything he owns is now gone. What can happen? The tenant can go ballistic and cause you great harm, or decide to destroy or damage your property or the home. A surprised, evicted tenant is an extremely dangerous and volatile person. While you may have done everything according to the law, this will not matter with the recently released tenant.

You have tried to locate the tenant but cannot

At this point you need to jump into action, review the file, and begin calling your emergency numbers, contact numbers and employers. Do not give any information, other than you are the landlord and just need to contact the tenant. Do not tell anyone you know or heard the tenant is in jail. Simply work hard to track the tenant's information down. If you cannot locate the tenant or get any information that will help you, serve your notice to the property; knock first, and if there is no response, serve the Three Day Notice by posting on the premises. If you do not receive the rent, file an eviction as you would with any other tenant.

You locate the tenant

Now that you have located the tenant and know what jail he is in, you can serve your Three Day Notice to him in jail or have a process server do this. Better yet,  you can possibly avoid an eviction altogether! Many incarcerated tenants do not want to deal with an eviction and would just rather surrender possession to you, if they feel they will be incarcerated for some time. If you are able to call the tenant in jail or have the tenant call you collect, the tenant may tell you to give access to a friend or relative. While this is great, you must get something in writing from the tenant under which he is giving possession to you, who is allowed access to the unit, and when you will have possession. We recommend getting the following form signed by the tenant while he is in jail. You must be sure that the tenant did in fact sign the form, and make sure that no other people are living in the rental unit. You can often make an appointment with the jail's social worker and visit the tenant directly in jail.


I  _________________  hereby agree that I have completely vacated the premises located at___________________________________________. 

I agree that any personal property that is left behind in the unit or on the premises may be disposed of by Management and/or Owner without notice, and I agree to hold Management, the owners of the premises and any agents or employees harmless for such disposal of personal property.

I agree that this document and my vacating shall have no effect upon any financial obligations under the lease or Florida law unless otherwise agreed to in writing by Management. I agree that my Notice of Intention to Impose Claim on Security Deposit if any shall be sent to the address of my former unit, and I am responsible for putting a forwarding order in with the US Postal Service.



Can you take possession of the unit by "abandonment"?

Under Florida law, there is a presumption that a unit is considered "abandoned" if it is vacant for one half of the payment period (usually this is 15 days on a monthly payment period), the rent is unpaid, and, the tenant has not given you anything in writing telling you that he would be back at some later time. While it may appear that an incommunicado, incarcerated tenant would qualify as having abandoned the unit, we do not recommend that you take this route. If you are unable to get possession from the tenant in writing by the above form or through an eviction, taking the "abandonment" route is just too dangerous.


It is not every day that you must deal with an incarcerated tenant. While this is a good thing, it underscores that you most likely do not have much experience in handling such a situation. In these odd types of situations, we always recommend that you call your attorney for advice before you take any action.
There is just no reason to go it alone.

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by Harry Anthony Heist, Attorney at


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 her 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 she gets the electric placed into their name and pay the bill. What happens when she does 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 the Electric Bill

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, becomes 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 it 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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Risks of Increasing Revenue from Tenant Charges

by Harry Anthony Heist, Attorney at Law



Landlords and property managers are always trying to increase revenue. There is absolutely nothing wrong with this. Being a landlord is a tough business, profits have decreased, and liability is always on the rise. Unfortunately, many landlords and property managers are doing things now which may or may not be considered illegal by some courts. Word spreads quickly among associations, landlord groups, and from training classes, and a novel idea that one company has implemented often spreads like wildfire. Are these new charges or practices legal, or can they result in serious and expensive lawsuits? Is it legal just because "everyone is doing it", or you were "told" it was legal by a non-lawyer?
This article will examine some of these charges just for the purposes of making you think and then making an informed decision, hopefully with legal counsel, whether or not to take a particular course of action with your tenant.

Excessive late fees

Florida Statutes does not address late fees. Nowhere in the Landlord/Tenant Act are late fees mentioned. How much can you charge the tenant? No one knows. You can place late charges on your Three Day Notice in most counties if they are considered additional rent, you can evict a tenant for failure to pay rent and late charges, and you most likely can deduct unpaid late charges from the security deposit if they are owed when a tenant vacates. The key is that your late charge correlates to the damages you are suffering due to the tenant paying the rent late. How is this figured out? No one knows. Sometimes judges will see excessive late charges and rule that a Three Day Notice is invalid. What is excessive? Can late charges be considered usurious?  Under Florida law, there are specific interest limits on what a creditor can charge for interest on a loan. Some attorneys are trying to expand the idea of a loan to delinquent rent. If delinquent rent was considered a loan, then the usury laws would apply, and the result in most cases would be that the late charges were usurious or over the legal interest rate limit.

Lease Renewal Fees

Some landlords charge the tenant a fee upon lease renewal.  This is justified by reasoning that the fee is for the renewal lease, the negotiations, and any extra inspections or work involved in renewing the lease. Most likely this fee is legal.  It is not addressed in Florida law, and the tenant will pay it, but did you tell the tenant about this fee in the beginning of the lease when the tenant was asking whether he might be able to renew if he needed to stay another year?  If you are going to charge a renewal fee, full disclosure of this charge should be made at the time the lease is signed or as soon as you decide to implement this type of a fee.

Notice posting or delivery fees

The tenant has not paid the rent, and you now have to prepare and serve a Three Day Notice. The property is 30 minutes away, and gas prices are going through the roof. Can you charge the tenant a notice serving fee? Clearly if you are going to do this, the tenant would have had to agree to it in the lease agreement, so let us assume your lease addresses this fee. You are charging the tenant for a notice that the tenant is entitled to receive and you are required to give by Florida law.  Is this legal? We definitely are not  sure. It is not specifically "illegal", as it is not mentioned at all in Florida Statutes, and you can argue that the tenant has contractually agreed to it, but will this go over well with a judge? Unless the case is contested, many judges will not even notice the fee, and many of our clients do in fact charge this fee. We don't recommend it though. 

Administrative Fees

In order to get a tenant into a unit, you have do some work for sure. You must coordinate  credit checking, call references, call utility companies, input information into the computer, make phone calls, send emails, engage in negotiations, make sure the property is ready, travel to the property, and do many other tasks in order to get your tenant into the unit. Many property managers have decided that by charging the tenant an "Administrative Fee" or "Move-In Fee", this can recoup some of the expenses involved.  When you received a call from a person who saw the house advertised for rent in the newspaper, did you disclose the administrative charge to them? If not, you can find yourself in serious trouble. If you decide to charge administrative charges, you need to understand they may not be legal at all, and your failure to disclose them in your advertising and upon first contact with the prospective tenant could be considered illegal.

Redecorating Fees

As a condition of moving in, you charge the tenant a nonrefundable "redecorating fee". What is this for? It is to cover some of the damages that the tenant may cause to the property. But aren't you going to charge the tenant for those damages anyway when the tenant moves out?  In the old days, landlords collected first month's rent, last month's rent and a security deposit. Now that this is not the norm, landlords have looked to other ways to cover the damages tenants may do to the unit which they will most likely not pay for. The problem with redecorating fees is that this could be construed as an attempt to make the tenant pay for someone else's damages or to pay for ordinary wear and tear. Again, Florida law does not specifically address such charges, but there could be dangers lurking in charging them.

Upcharges for Credit Checking

A property manager may charge $50.00 for conducting the credit check, but only is charged $8.00 by the company providing the credit report. Is the $42.00 a profit? Is it fair to the tenant? The property manager will point out that getting a credit report is just one aspect of the tenant qualification process; however, some states have placed limitations on how much the property manager can charge. Will Florida be next?  You don't want to be the test case, so it is advisable to have your credit checking procedures clearly laid out in detail for possibly future use in a court case.


Unless a particular charge is clearly illegal, the property manager must make an informed  business decision before implementation. Some companies will make a risk/benefit analysis and decide it is worth taking a risk. Other companies will implement procedures under which these charges are clearly disclosed ahead of time to avoid being accused of bait and switch tactics or a potential unfair and deceptive trade practice. In the end, excessive or additional charges increase the risk of litigation. Increasing profits can be construed as greed, and the farther property managers go, the greater the risk that there will be litigation that will adversely affect all property managers. We urge you to speak with your attorney regarding any charges before you make the decision of implementation. If your attorney will not give you a written opinion as to the legality of a particular charge, you just might want to avoid that charge. Many property managers have been getting caught up in the latest "revenue generating technique". Never assume that because the property management company down the street charges something or has done so for years makes it legal or advisable.


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A Security Deposit Primer - Part 2 Initial Disclosures 

by Cathy L. Lucrezi, Attorney at Law



 All security deposits and advanced rents are governed by Florida Statute Section 83.49.  The statute obligates the landlord to inform the tenant of particular information whenever a security deposit or advance rent is held.

When disclosures must be made.

No later than 30 days after a landlord receives advance rent or a security deposit, the landlord must make the disclosures to the tenant.  The notification must be in writing and given in person or mailed to the tenant.

Many times, the disclosure is in the lease itself.  This is the best way to present the information, because later, there can be no dispute that the disclosure was made. 

What must be disclosed.

The landlord must disclose where and how the security deposit and advance rent is being held.  The disclosure must tell the tenant the rate of interest, if any, the tenant is to receive and when the interest payments are to be paid to the tenant.

The written disclosure must show:

-- The name and address of the depository where the advance rent or security deposit is being held;

It is best to use the whole street address of the bank, not just the name of the City. However, the complete name of the bank and the name of the City is likely to be considered adequate.

-- Whether the advance rent or security deposit is being held in a separate account for the benefit of the tenant or is commingled with other funds of the landlord;

t does NOT mean that it is ok to commingle the funds.

-- Whether the funds are deposited in an interest-bearing or non-interest bearing account.
If the account is interest-bearing, the disclosure must state when the interest payments will be made to the tenant.

-- Include a copy of the provisions of Florida Statute 83.49 (3).

a copy appears at the end of this article.

Subsequent disclosures.

After the landlord makes the initial disclosures, circumstances can change - a bank closes, a new owner takes over, etc.  If the landlord changes the manner or location in which the funds are being held, the landlord must notify the tenant, in writing, within 30 days of the change.

Consequences of non-disclosure.

Unlike other portions of the security deposit statute, there is no clearly defined "penalty" to be applied to a landlord who fails to make the disclosures.  Thus, a tenant who sues a landlord for failing to make the required disclosures must prove that the non-disclosure resulted in losses suffered by the tenant.

For licensed real estate professionals, the failure to make the disclosures can be a violation of FREC rules. 

Even if there is no lawsuit or FREC complaint, the failure to disclose marks a very sloppy lease-up procedure.  It tends to cast the landlord in a very poor light, which can be problematic if the landlord has to defend himself before a judge. 

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  Welcoming Disabled Applicants

by Cathy L. Lucrezi, Attorney at Law



 A disabled applicant should be treated just as any other applicant.  The process of accepting an application, showing available units, doing a credit and background check, and executing a lease should be the same as you it would be for a non-disabled person.  There are a few exceptions, described later in this article.

The business office.

Make sure that your leasing office meets accessibility standards. This includes being sure there is an accessible route from the parking area to your leasing office.   This may mean adding a ramp or curb cut, or outfitting at least one restroom that is accessible.

Reasonable accommodations.

If the disabled applicant needs an accommodation in order to apply for housing, make it.  Examples include allowing a vision-impaired applicant to have his friend complete the forms, or allowing a service animal to enter the business office.  Another example would be to allow the disabled person's guardian do the paperwork and sign the lease.

The applicant may say she wants the unit, but will need a modification or accommodation.  You can ask the applicant to put the request in writing and provide you with verification of disability.  (Hopefully, you already have a policy in place for handling this type of request.)

Question "Do's"

Generally, a landlord should only ask a person with a disability questions that are asked of all applicants or tenants.  It's OKAY to ask questions such as:
-- Can you pay the rent?

-- Do you have references regarding your tenant history?

--Who will be living in the unit?

-- Do you have a criminal history?

If ours is an apartment community designated for people with disabilities, you can ask the applicant if he or she qualifies for the housing.  

Question "Don'ts"

It is NOT ok to ask the following:

--Do you have a disability? 

--Do you take medication?

--How severe is your disability?
--Why are you getting SSI?

--Can I see your medical records?

--Have you ever been hospitalized for mental illness?

--Have you ever been in drug or alcohol rehab?

--Are you capable of living independently?

A few more "Don'ts".

Do not presume to know what is best for the disabled applicant.  If a person with a mobility impairment wants a unit on the second floor, do not try to talk him into a first floor unit.  You would be presuming to know better what the applicant needs, than the applicant himself!  It would be a violation of fair housing laws, no matter that you acted with good intentions.

Do not offer a particular accommodation.  Don't suggest: "Will you need a handicapped parking space since you are in a wheelchair?"  Instead, respond positively if the individual in the wheelchair asks for a handicapped parking space.  The request for such an accommodation should come from the tenant, not you.  You can let applicants know you welcome requests for reasonable accommodations and modifications, by noting it in your application materials.


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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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