VOLUME 5 - ISSUE 11 LEGAL UPDATE

- New Pool Rule in Effect!
- Foreclosures Revisited
- Partial Rent Acceptance
- When Tenents Deny Access

 

 

New Pool Rules in Effect
by Vann Flippen

 

On December 19, 2007, the President signed into law the Virginia Graeme Baker Pool and Spa Safety Act, named after the daughter of Nancy Baker and the granddaughter of former Secretary of State James Baker. Graeme Baker died in a tragic incident in June 2002 after the suction from a spa drain entrapped her under the water. This Act was first introduced by Rep. Debbie Wasserman-Schultz (FL) and was supported by the Baker family and Safe Kids Worldwide.

The Act specifies that on or after December 19, 2008, swimming pool and spa drain covers available for purchase in the United States must meet specific performance requirements. Additionally, public swimming pools, wading pools, spas and hot tubs must meet requirements for installation of compliant drain covers.

 

ENGINEERING/MECHANICAL REQUIREMENTS

The text below is how the Act reads into law.

Drain Covers: "¦each public pool and spa in the United States shall be equipped with anti-entrapment devices or systems that comply with the ASME/ANSI A112.19.8 performance standard, or any successor standard"¦

Main Drain: The term "main drain" means a submerged suction outlet typically located at the bottom of a pool or spa to conduct water to a recirculation pump.

Single Main Drain: "¦each public pool and spa in the United States with a single main drain other than an unblockable drain"¦

Unblockable Drain: - The term unblockable drain means a drain of any size and shape that a human body cannot sufficiently block to create a suction entrapment hazard.

Devices or Systems Designed to Prevent Entrapment: "¦each public pool and spa in the United States with a single main drain other than an unblockable drain shall be equipped, at a minimum, with 1 or more of the following devices or systems designed to prevent entrapment...

SAFETY VACUUM RELEASE SYSTEM (SVRS) - A safety vacuum release system which ceases operation of the pump, reverses the circulation flow, or otherwise provides a vacuum release at a suction outlet when a blockage is detected, that has been tested by an independent third party and found to conform to ASME/ANSI standard A112.19.17 or ASTM standard F2387.

SUCTION-LIMITING VENT SYSTEM - A suction-limiting vent system with a tamper resistant atmospheric opening. I strongly recommend a licensed pool engineer design this feature.

GRAVITY DRAINAGE SYSTEM - A gravity drainage system that utilizes a collector tank

AUTOMATIC PUMP SHUT-OFF SYSTEM - An automatic pump shut-off system.

DRAIN DISABLEMENT - A device or system that disables the drain.

OTHER SYSTEMS - Any other system determined by the Commission to be equally effective as, or better than, the systems described in subclauses (I) through (V) of this clause at preventing or eliminating the risk of injury or death associated with pool drainage systems.

Under Current law, the penalty for one or more related violations is about $2 million. Congress is trying to increase this penalty to $10 million plus. Knowingly violating the drain cover standard could result in criminal prosecution, including fines or imprisonment, under Section 21 of the Consumer Product Safety Act. 15 U.S.C. § 2070(a).

If you would like an evaluation of your pool or spa and where you stand and/or your best options in which direction you need to go, please fell free to contact:

Vann Flippen
All Systems Group Construction Inc.
Work. 386-860-0224
Fax. 386-860-0084
Cell. 321-436-5677

 

 

 

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Foreclosures Revisited
by Harry A. Heist and David R. Weisse, Attorneys at Law

 

Your tenant received papers either in the mail or served by a process server showing that the property owner is being foreclosed on. What do you do now? Our office gets this question every single day and will try to answer most of the common questions and answers in one place.

Why is the tenant served with foreclosure papers?

It is standard practice for the lawyer who is handling a foreclosure to name the tenant as a defendant in the lawsuit and to serve the tenant with a copy of the summons and complaint. This is done so that at the end of the foreclosure, the new owner of the property is able to take possession quickly. Since the tenant has a property right when she enters into a lease, this right is affected by the foreclosure and can be extinguished by the foreclosure.

The foreclosure is based on the owner's mortgage or a lien of some sort, such as for failure to pay condo maintenance fees. It almost never involves any money owed by the tenant to the owner. Even though the tenant was served with a copy of the foreclosure lawsuit, it does not mean that the plaintiff is trying to make the tenant responsible for the debt. The tenant is not responsible for the debt of the owner and the foreclosure action will not affect the tenant's credit.

Does the foreclosure affect the lease?

The simple filing of the foreclosure lawsuit does not mean the lease is ended. The owner still fully owns the property until it is sold at a foreclosure sale. Both the landlord and the tenant remain obligated to perform the lease. The lease will stay in effect until a foreclosure judgment is entered by a judge and the sale occurs. That can be two months after the tenant received the foreclosure lawsuit or two years. There is absolutely no way of knowing how long it will take.

The tenant's obligation to pay rent continues even though there is a foreclosure lawsuit. Thus, if the tenant fails to pay rent, you should serve a three day notice. The tenant is not necessarily entitled to break the lease due to the foreclosure, but the tenant often will. In some cases, a judge may allow the tenant to break the lease based on the theory that the tenant"˜s peaceful enjoyment of the premises has been seriously compromised.

Can I be sued as a property manager?

There is nothing in Florida law that makes you liable to a tenant in the event the owner of the property is foreclosed upon. An argument can be made though, that if you knew the property owner was on the verge of foreclosure or actually in foreclosure at the time of lease signing, you possibly should have disclosed this to the tenant. There is no law that requires disclosure to the tenant. We strongly recommend you do not manage a property if you know that the owner is in financial difficulty. Would you rent a home if you thought it may become uninhabitable due to a collapsing roof? Of course not, and if you did, you could potentially be held liable. In a foreclosure situation, if you know the owner is near or in foreclosure, you now have knowledge that possibly this tenant may not be able to stay for the full term of the lease.

Can I transfer the tenant to another home?

Unless the owner gives you express written permission to find the tenant another home, you cannot do so. Your fiduciary duty is to the property owner, and helping the tenant without the owner's permission is a complete violation of that duty. Resist the temptation to feel sorry for the tenant or take the tenant's side. Remember that this property owner could potentially get out of the foreclosure, so just because the owner is in a foreclosure now does NOT mean that the property will eventually be foreclosed on. The foreclosure may be dismissed, the owner may work out a restructuring with the bank, or the property may be sold in a short sale. You never can tell at the beginning of a foreclosure what will eventually occur.

What should I say to the tenant?

Simply tell the tenant that you cannot give any legal advice. Do not try to explain anything to the tenant. The tenant has the court paperwork to read and can consider consulting with an attorney. It is tempting to help the tenant figure out what to do with the foreclosure papers. Do not advise him concerning what he should do in response to the lawsuit. You are not an attorney and should avoid the quicksand of offering "a bit of advice". If the tenant wants advice, he will need to consult with an attorney on his own.

What do I do with the Security Deposit?

The security deposit stays in your escrow account during the foreclosure. You cannot give this deposit to the tenant unless the owner specifically authorizes you to do this in writing. Some owners will authorize you to do this. If the tenant vacates during the foreclosure, process the claim on the security deposit as you normally would in accordance with Florida Statute 83.49. If the tenant is entitled to a return of all or part of the money, send it, if the owner is entitled to a return of all or part of the money, send it to the owner. Nothing changes. Process the damage claim as normal.

I am terminating Management or I have been fired - What do I do with the Security Deposit?

If you and the owner are severing the management relationship, either by you being terminated by the owner, or you terminating the management agreement, inevitably the issues of the security deposit and any advance rent held in your escrow account will become an problem. Often the owner will demand that you send this money to him. You simply cannot UNLESS the tenant agrees to this in writing, AND it is sent to a Florida bank account and held in the usual fashion for security deposits, last month's rent or any other escrow presumably belonging to the tenant. If the owner and the tenant cannot agree to this, DO NOT send the money to the owner or the tenant. You now have an escrow dispute on your hands and may need to have FREC make the decision for you.

Can I still collect rent during the foreclosure?

Until such time as you cease managing the property, either by getting terminated by the owner or if you terminate the management agreement, you must continue to collect rent, serve your Three day Notices if you do not receive the rent, and perform all your normal tasks and functions as a property manager. The fact that the owner is in foreclosure has no effect on the duties and responsibilities outlined in your management agreement.

Can the tenant put the rent into escrow?

Although there is no legal authority for the tenant to place rent into the court registry in the foreclosure action, some judges will allow this upon motion and order by the tenant's attorney. There is nothing that allows a tenant to place the rent money in "escrow" into her own bank account or her attorney's account. A tenant will often say she is doing this, but most of the time, it is not true.

What should I do with the rent?

Continue to remit the rent collected to the property owner until such time as you are ordered by a court to stop, or your management ceases. If you do not receive the rent, get direction immediately in writing from the property owner. The owner may want to file an eviction, offer the tenant out of the lease or just walk away from the whole situation. You must communicate in writing with the owner. Never take it upon yourself to hold the rent money because you feel the owner does not deserve it or you somehow feel the owner is not entitled to it.

If the tenant does not pay rent can I evict?

An eviction can be filed if the tenant does not pay rent. Our office has a policy of not performing evictions for owners who are in foreclosure, so you will need to hire another attorney to handle the eviction. Never send us an eviction if you know that the property is in foreclosure. It is not that we cannot file the eviction, we simply choose to decline these cases. Tenants will often hire an attorney to fight the eviction, as they feel it is unfair that they have to pay rent while the property owner is not paying the mortgage. Some judges agree with this line of reasoning.

Does the tenant have to move during or at then end of the foreclosure?

Although the lease will end as of the day the foreclosure judgment is entered, the tenant will be able to occupy the premises until the day the property is sold at a foreclosure sale. The new owner will be entitled to get a writ of possession on the eleventh day after the sale. Once the new owner gets a writ of possession, this must be served and executed just like a regular writ of possession in an eviction action.

As mentioned previously, many things can happen between the day the foreclosure papers are served to the tenant and the foreclosure sale date if it actually occurs.

Will the tenant be evicted?

In most cases, at the end of the foreclosure, the attorney representing the bank will apply to the court for issuance of a writ of possession, and the tenant will be evicted.

Should I continue managing the property during the foreclosure?

Your property management agreement should have a clause allowing you to cease management if you wish in the event there is a foreclosure. If not, you must carefully look at your management agreement and see if there is any legal way for you to terminate the agreement. We recommend that you include a clause in all future management agreements allowing you to cease management immediately if the owner goes into foreclosure

Can the bank change the locks?

A bank cannot legally change the locks on a home before the foreclosure is completed if there is a tenant in the property, but they sometimes will.

Could this all have been avoided?

You need to investigate your owner before taking on the management of a property. A property manager who finds out upon taking over management that the owner is already in foreclosure or has a lis pendens filed simply has not done her homework. The property manager should always have the owner sign a solvency statement, and the court records in the county in which the property is located should be checked for the filing of a lis pendens or a foreclosure action.

Is there more?

All kinds of situations can arise in a foreclosure so we recommend that you always call your attorney for direction. Some property managers have ways of dealing with foreclosures that are illegal and could subject them to litigation or FREC disciplinary action. For many property managers, this will be the first foreclosure they are dealing with. Questions? Call us at 1 800 253 8428 but read this article first!!

 

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Partial Rent Acceptance
by Harry A. Heist, Attorney at Law

 

In the current economic situation, landlords are beginning to get desperate for the rent. Any rent. Tenants are in financial hardships. and rather than choosing not to pay rent at all, many will tender a partial payment of rent with possibly a promise to pay the rest at a later date. Many landlords faced with this scenario will accept the partial payment and may or may not receive the rest of the rent at a later date. Other tenants will pay partial rent for reasons that have nothing to do with their ability to pay, but rather due to some complaint they have concerning the premises that has not been rectified by the landlord. This form of self-help on the part of the tenant manifests itself in the tenant sending the landlord a partial payment, possibly accompanied by a letter indicating why the payment is partial and demanding some sort of repair. In either case, the landlord is forced to make a choice to accept the partial rent or return the rent.

The Financial Hardship

Most commonly, the partial rent payment tender is due to a financial hardship the tenant is suffering. The tenant feels that by paying some rent to the landlord, the landlord will be appeased enough to hold off on filing an eviction action. This partial payment may or may not be accompanied by an explanation and a promise to pay the rest of the money at a future set date. Is it legal to accept a partial payment? Absolutely. Can you simply accept the partial payment and then give the tenant a Three Day Notice for nonpayment of the balance? Yes, in most counties. The more important question is whether you should accept a partial payment due to other ramifications with the potential to cause future legal problems.

The "lone" partial payment

There are usually two types of partial payments given in the financial hardship setting. One is the payment accompanied by a letter promising the rest of the money at a later fixed date, and the other is what we call the "lone" partial payment, which is simply the check or money order in the envelope for less than the full amount of rent. If you accept the lone partial payment, you can and should serve the tenant with a Three Day Notice for the balance of the rent in most counties. If the balance is not received by the expiration date, you can then file an eviction against the tenant.

The partial payment and "letter"

If the partial payment is tendered to you and is accompanied by a letter in which the tenant states when the next payment will be made to you on the balance, it is a bit more risky to accept the payment. While no real contract between you and the tenant is created by such a letter or promise to pay, an inference can be made that by accepting the partial payment, you are accepting it under the terms laid out by the tenant. In other words, by taking the money, you have agreed to the payment arrangements. Unless you are agreeing to the proposed payment arrangement, we do not recommend accepting the partial payment by the tenant in this situation.

The law and the partial payment

Florida law does not address the legal ramifications of accepting a partial payment and then giving a Three Day Notice to the tenant and filing an eviction. Most Florida judges have no problem whatsoever with you accepting a partial, serving the notice and proceeding as usual. Some, and fortunately very few, judges feel that by accepting a partial payment form the tenant, you waive your right to file an eviction in the month that the payment was made. Always check with your attorney to see if the judge or judges in your county have this view on partial payments. You would not want to be in a position where accepting a partial payment could result in tying your hands for the rest of the month.

The Waiver issue

One of the big issues in Florida law is the "waiver issue". Simply put, this means that by engaging in a course of action contrary to the terms of your lease, you have created a new payment method, and that you have possibly waived your rights to enforce the lease as it is written. Your course of conduct in allowing partial payments may be used by the tenant to show that since partial payments were made a few times, this has now become a permissible way to make payment, and you as the landlord are "stuck" with is. The waiver argument can be compelling in court, and judges are often unsympathetic to the landlord who does not enforce the lease terms on multiple occasions and then suddenly decides that partial payments will not be accepted. The landlord may have "waived their rights" and are then "estopped" from enforcing the lease terms. Many leases have clauses which clearly provide that the landlord's deviation from the lease terms will not create a waiver, but these clauses can become meaningless if the tenant can show that the landlord has a pattern of not enforcing the lease.

Should you accept partial payments at all?

In a financial hardship situation, this is purely a business decision. Refuse them, and possibly you will get nothing, the tenant will skip out on you, or you will have to evict. Accept them, and live with the consequences.

The "Non-financial Hardship" partial rent payment

While non-financial hardship partial rent payments are often financial hardship cases in disguise, there are many times when a tenant feels that for some reason he should not have to pay the full amount of rent. There may be completely legitimate reasons, and the reasons can be many. The tenant has a huge water bill and feels that there is a leak. The a/c has been out for days. The electric bill is excessive, possibly due to an a/c problem. A toilet is broken. A stove is broken. The list can be endless.

Can a tenant withhold rent?

The short answer is yes, under limited circumstances. This article will not address how, why and the mechanics of a proper tenant rent withholding, but rather what to do when the tenant simply takes it upon himself to deduct an amount from the rent.

The tenant has been making complaints

Although every situation is unique, you may deal with the tenant making complaints about an alleged problem that is not addressed for whatever reason, and when the rent check arrives, it is a partial payment of rent. In a situation such as this, your acceptance of a partial rent can be governed by the aforementioned information in this article, but the chance that the rest of the rent will be paid later in the month is diminished greatly, as the tenant feels that the value of the rental has been diminished and has taken matters into his own hands. We recommend that you do not accept this partial rent payment, and you address the tenant's issues immediately, asking your attorney for an opinion as to whether the tenant has a right to withhold rent, or that allowing a reduced rent is the proper route to take. Remember that if you allow a tenant to pay you a partial rent payment just one time because she is not satisfied with something in the unit, you open yourself up to the tenant continuing to make partial rent payments in the months that follow under similar pretenses.

The tenant gives you complaint letter along with the partial payment

Along with the partial rent payment, the tenant provides you with a letter stating why the rent is only being partially paid and outlines the complaints the tenant may have, or even attaches bills for out of pocket expenses the tenant may have incurred in repairing something. This is probably the most dangerous time to ever accept a partial rent payment. By accepting the partial payment along with the tenant's letter, a good argument can be made that you have agreed to accept the amount paid by the tenant as full settlement of the outstanding rent balance. By accepting the money, you are arguably accepting it in accordance with the tenant's terms, and you have also potentially opened the door to the tenant doing future repairs. In such cases we recommend that you not accept the partial rent payment and return it immediately. Again, if there are items that need to be addressed, they certainly should be to avoid later problems or litigation.

 

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When Tenants Deny Access
by Harry A. Heist, Attorney at Law

 

You are in the process of making your periodic inspections of units; you have given written notice and find out that your key does not work in the door. Apparently the tenant has changed the locks without your permission and has failed to give you the keys. In another situation, the tenant has called in and requested that a repair be made in the unit. You send your maintenance staff over, and the tenant refuses to let your staff in to make a repair, saying it is not a convenient time. Your tenant requests a repair to be made, you call to schedule the repair, and the tenant states that you can only send the maintenance staff in if the tenant is home, which happens to be after 7:00 p.m. Do these scenarios happen? You bet. This article will address the situation in which the tenant is playing the "denial of access game"

The law on access

Florida law specifically addresses access rights by the landlord, and your lease agreement may further address the issue.

83.53 Landlord's access to dwelling unit.--
(1) The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.
(2) The landlord may enter the dwelling unit at any time for the protection or preservation of the premises. The landlord may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The landlord may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:
(a) With the consent of the tenant;
(b) In case of emergency;
(c) When the tenant unreasonably withholds consent; or
(d) If the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the landlord of an intended absence, then the landlord may enter only with the consent of the tenant or for the protection or preservation of the premises.

The tenant lock change

If the tenant changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the tenant is forbidden to change the locks. The tenant is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the tenant has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized tenant lock change really is the easy case and does not pose too many problems if the tenant complies and gives you a key. There are many reasons why a tenant may have changed the locks, and as long as the landlord has access, this is usually not a real problem.

The Denial of Access "Game"

If your tenant has requested a repair and then denies you or your maintenance staff access, or makes it unreasonably difficult or impossible to make repairs by telling you that she must be present, or requiring you to come after business hours, you must jump into action. Tenants will use the request for repairs as a way to either set up a lease break scenario or put themselves into a rent withholding posture. If the tenant ends up breaking the lease or withholding the rent with an eviction ensuing, the tenant may try to claim that numerous requests for repairs went unmet. You may then need to establish to a judge that you were denied access. The tenant will have a wonderful story of how numerous repair calls were made, work orders were turned in, and no one was ever sent to make the repair. You will be flabbergasted and tell the judge that you made several attempts, and eventually gave up as the tenant was making it nearly impossible to get the repairs accomplished. Now you are at the mercy of the judge to either believe you or the tenant, who may be able to lie more convincingly than you can tell the truth. This is bad position to be in.

Repair requests and strategy

The moment a repair request is made by the tenant, it should be dealt with quickly. Can you simply go to a unit and make a repair after a phone call from the tenant? Yes, but it is a bit risky if the tenant did not expect you to come when you did, and you and your maintenance staff can be accused of theft or trespass when the tenant is surprised. If you go to the unit without any notice and the tenant is home, the tenant may deny you access, and it could be looked on as legitimate by a judge. Your lease or resident handbook should clearly lay out the procedures for repair requests, but as we know, many landlords fail to do so.

Once the repair request is made, if it is something that needs immediate attention, the tenant should be called and told that you or your maintenance staff will be out within a specific time window. The tenant may have a pet that needs to be secured, and it is just a matter of courtesy to coordinate something like this with the tenant. At this point in time, the tenant may begin to deny you access. If the tenant insists that she be home for the repair, this should be accommodated if possible. However, if the repair need is of an emergency nature, do the repair without accommodating this request, if need be. If the tenant demands that you come after normal business hours, this may be construed as a denial of access, especially if your resident handbook or lease clearly states the hours that repairs will be made. The resident may verbally agree to you coming to the premise for the repair, and upon arrival the tenant informs you that you cannot make the repair at that time. This is when you must jump into action.

The tenant refuses you access

If the tenant has already stated when you can or cannot come to make a repair, or has made it clear that your staff or repair person cannot come during regular business hours, you must immediately begin to document the steps you are taking to get the repair accomplished and the roadblocks that the tenant is putting up. All phone calls, work orders, responses and witnesses need to be documented for later use. If you go out to make the repair and the tenant flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the tenant when you will be back using a written notice. If the tenant refuses access again, attempt to have the tenant sign your notice proving that she refused the repair. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the tenant unreasonably denying access after have been provided notice of repair. Now it is time to try again. You have given the tenant a WRITTEN notice of when you will be returning to effectuate the repair; honor the notice. If the tenant again refuses you access, document everything all over again. If you don't expect cooperation by the tenant, always have a witness with you to show that the tenant has refused the repair. You see, you are now part of the game, and you want to give yourself the best chance to win this game if you end up in court. Everything must be done in writing, and every denial of access must be documented.

How far do you go?

You may wonder how may times you must try to make a repair and be denied; there is no firm number. Ask your attorney if you have enough proof that you could potentially present into court to prove your attempts and the tenant's actions. Remember that your word in court will not go too far in this game. Your clear documentation and persistence at attempting a repair, and the tenant's thwarting of same, will be the key to success in winning an eviction in which the rent was withheld, or attempting to collect rent from a tenant who has breached the lease by complaining about repairs and vacating prior to lease end.

 

 

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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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