VOLUME 5 - ISSUE 12 LEGAL UPDATE

- Barking Dogs and Common Sense
- Forgetting to Send the Security Deposit Claim
- Modifying the Rent Amount

 

 

 

Barking Dogs and Common Sense
by Michael Geo F. Davis, Attorney at Law

 

You are trying to take someone's home away because his dog barks too much. Said like that, it puts your case in perspective from a judge's viewpoint. You know that the barking dog is keeping the neighbors awake at 2:00 a.m., or that the unattended, whining dog on the balcony is interfering with the neighbors' quiet enjoyment of their apartments. You know that because you have the irate phone calls, the complaining notes and even a neighbor's letter refusing to renew. The means to turn what you know into a successful eviction is called evidence.

 

Do you want to win in court? Then you have to use your common sense.

Common sense:
A dog barking too much occasionally isn't that unreasonable.
If it isn't important enough to come to court, it's not that important.
If someone can't remember when it happened, it wasn't that serious.
If someone waits a week to do anything, it wasn't that bothersome.
If only one family is complaining, it may be an overreaction.

Witnesses. The earlier they're on board, the better. Speak to them personally. Tell them your lawyer said (always blame it on the lawyer) no witnesses, no case. Witnesses need to write it down - keep a log: date, time, duration, how loud. This also calms the angry neighbors, because now someone is doing something to address their problem. You have a plan.

Your staff and courtesy officer can testify to barking. Have them complete incident reports. You still need neighbors to testify. It's the neighbors whose quiet enjoyment of their apartments is being disturbed. Unless your staff is on-site at night, they can't help with night barking, because they must actually hear the barking. You need at least two witnesses, each from a different apartment. The more witnesses, the better your case will be. One witness alone is subject to a tie in testimony. He said, she said. You lose all ties.

Continuing. All notices should be within 90 days to show the barking is a continuing disturbance and not an infrequent lapse. Immediately serve a Seven Day Notice of Noncompliance with Opportunity to Cure (the 7-Day Cure). If the barking continues after the Notice expires, a termination notice can theoretically be served, but you need to seriously consider serving another 7-Day Cure notice. If the barking continues after the second cure notice expires, check with your witnesses. Did they keep logs? Will they testify? If yes, then contact your attorney about the Seven Day Notice of Noncompliance without Opportunity to Cure (the 7-Day to Terminate).

Attorney. Involve your attorney early. Have your attorney do all the 7-Day Notices. The Law Offices of Heist, Weisse & Davis, P.A. provides a free "Seven Day Wording Service" to all clients. Please do not hesitate to take advantage of this.

 

SOME PROOF THAT IS NECESSARY PRIOR TO TERMINATING THE TENANT FOR THE BARKING DOG

1. Witnesses who will testify in court that they heard the barking AFTER the 7-Day Cure expired and are prepared to show the judge proof (logs and/or incident reports). 2. Police reports where the police indicate in the reports that they heard the barking and it was unreasonably loud AFTER the 7-Day Cure expired. 3. Animal control reports in which the animal control warden indicates in the report that the dog was unattended and/or barking loudly AFTER the 7-Day Cure expired. 4. Tape recordings of the dog barking AFTER the 7-Day Cure expires. 5. Written admissions by the dog owner that the barking is unreasonable, i.e. an apology note from him. 6. Multiple 7-Day Cures to show that you gave several chances for the tenant to save his home. 7.Notices within a reasonably close span of time to show this was a not several, isolated incidents in an entire year. This barking was a continuing, serious, unreasonable disturbance of the neighbors. 8. Do not accept money after learning the dogs are still barking, if you are going to give a 7-Day Termination notice for that particular barking. Accepting money after learning of a noncompliance is a waiver of that noncompliance. Remember in accepting money the key is when you LEARN of the noncompliance, not when you serve the 7-Day to Terminate. 9. Do not accept money after serving a 7-Day Terminate.

IF YOU DO NOT HAVE A STRONG CASE, YOU WILL LOSE. EXPECT THE TENANT TO DENY THE BARKING IS FREQUENT OR LOUD AND TO HAVE HIS FAMILY OR FRIENDS TESTIFY TO THAT. REMEMBER THE JUDGE WILL NEED TO BE CONVINCED THAT THE DOG BARKING IS SO UNREASONABLE THAT HE WILL TAKE THE TENANT'S HOME AWAY.

 

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Forgetting to Send the Security Deposit Claim
by Harry Anthony Heist, Attorney at Law

Did you ever get that horrible feeling when you realized that you forgot to send the "Notice of Intention to Impose Claim on the Security Deposit" out to the tenant. For years we have drilled into our clients' heads the importance of sending the Notice (we will call it that from this point on) out within 30 days of the tenant vacating, but sometimes it just gets forgotten. You may have evicted the tenant, and the last thing on your mind is returning any money to the tenant as the tenant owes so much to you. The tenant may have skipped out in the middle of the night owing 3 months' rent, and again you would not think of returning any money to him, or you realize the tenant is gone and there is $5000.00 worth of damage to the unit. Unfortunately, the fact that the tenant owes you and will not be getting a dime back does not excuse you from sending out the Notice. Your failure to send out the notice within the time period as required by law could result in you having to return the entire security deposit to the tenant. This could be a devastating occurrence. especially if the security deposit was a significant amount of money. So, you forgot to send the Notice out within 30 days of the tenant vacating. Is it over now? Do you have to return the money to the tenant? Possibly NOT. Florida law has carved out an exception to the 30 day rule which MAY be able to save you.

The General Rule

The general rule which almost every property manager knows, is found in Florida Statutes 83.49, the security deposit statute. The statute provides that upon the "vacating of the premises for termination of the lease", the landlord shall have 30 days from that date to send out the Notice to the tenant's last known address, which of course is the unit the tenant was renting unless they gave you a new address. The law used to be 15 days, but through the efforts of the Florida Apartment Association in getting the law changed, the landlord has 30 days to send out this Notice. The confusing part of the statute has to do with the wording "vacating the premise for termination of the lease". This wording is open to more than one interpretation. Obviously it would apply to the tenant leaving at the end of the lease, but what about an eviction? Does an eviction terminate the "lease", or does it terminate the "tenancy"? A good argument can be made that if a tenant does not fulfill the lease term, whether by abandonment, surrender, or eviction, and the landlord tries to rerent the unit on the tenants' account under Florida Statute 83.595, the 30-day counting period should not start until the lease expiration date or the date a replacement tenant takes occupancy, whichever occurs earlier. Under this statutory interpretation, the date under which the tenant loses the right of possession and the date under which the lease obligations are terminated can be two very different dates. However, some judges may not accept this argument, and will start the 30-day counting period strictly from when the unit was physically vacated. Therefore, the safe approach is to remember to send the Notice out within 30 days from the date the tenant physically vacates. If you know when the tenant vacates, as in an eviction being finalized with the sheriff, or at the end of a lease, you know when to begin counting your 30 days. But wait. We forgot to send the notice out, and this is what this article is all about!!!!

The penalty for not following the rule

If you fail to send the Notice out within 30 days, you forfeit the right to impose a claim on the security deposit. In other words, you must return the full security deposit to the tenant.

The Exception to the Rule

There is an exception to the rule that you must send out the Notice within 30 days. We are going to tell it to you, but after you read this article, we want you to forget you ever heard about the exception, and we want you to ALWAYS get the Notice mailed within 30 days.

 

FS 83.49 (5) Except when otherwise provided by the terms of a written lease, any tenant who vacates or abandons the premises prior to the expiration of the term specified in the written lease, or any tenant who vacates or abandons premises which are the subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least 7 days' written notice by certified mail or personal delivery to the landlord prior to vacating or abandoning the premises, which notice shall include the address where the tenant may be reached. Failure to give such notice shall relieve the landlord of the notice requirement of paragraph (3)(a) but shall not waive any right the tenant may have to the security deposit or any part of it.

An Examination of this Exception

As you can see under FS 83.49(5), if a tenant abandons or vacates before the end of the lease, the tenant is required to give at least 7 days' written notice by certified mail or personal delivery, telling you he is vacating and giving you a forwarding address. AHA! Many tenants do not do this. They simply skip out in the middle of the night, or tell you they are leaving and then leave. In this case YOU DO NOT have to send out the NOTICE within 30 days! If the tenant is not on a lease but the tenancy is now month to month or week to week, the same rule applies. If the tenant fails to give you the notice of vacating and a forwarding address at least 7 days before they vacate, you DO NOT have to send out the Notice to them. Here is a recap.

1. The tenant must give you at least 7 days' written notice before they vacate, advising you that she is vacating.
2. The notice from the tenant must be hand delivered or sent to you by certified mail.

Why does the law provide this exception?

The reason this exception exists is so that you are not under the 30-day requirement when you have no idea if the tenant has in fact vacated. Often you do not know the date the tenant vacates, so you should not be held to a timetable when you do not know when that time period starts. This is a landlord protection exception.

The Danger of using the Exception

In all the years of training property managers, we frequently avoid talking about the exception to the rule that you must send the Notice out within 30 days, and you might have wondered why. The reason is simple. People are dishonest, and when the tenant finds out that he was supposed to give you at least seven days' written notice by hand delivery or certified mail stating when he was leaving and giving you his new forwarding address, a copy of this notice can miraculously appear, and the tenant will tell the judge that he in fact DID give you this notice. Now you are faced with having to explain to a judge that you did not receive the notice, and the tenant will try to convince the judge that he did give you the notice. Who will the judge believe? You or the tenant? Never underestimate how convincingly someone can lie to a judge.

You know the Exception, Now What?

Now that you know the exception to the rule, forget about it. Always get the Notice out within the 30-day time period as required by law. Assume the tenant will lie and say that he DID give you at least 7 days' notice before he left, and that he DID give you a forwarding address. Only use the exception to the rule if you are in a bind and have forgotten to send out the Notice within the 30 days; possibly the exception will be there to help you. If you do forget to send out the Notice, go ahead and do it anyway even if you are outside the 30-day window. There is no need to alert the tenant to the fact that they did not give you the required 7 day notice, because this will give the tenant ample opportunity to fabricate the notice after the fact. A number of years ago, one of our clients was being sued by an attorney who argued to the judge that our client failed to send the Notice out within 30 days. It was true. Our client did not send the Notice out. We turned to the tenant and asked if he had given our client a notice at least 7 days prior to vacating with his new forwarding address. The tenant said "no", and we won the case. Let this limited, technical exception work in your favor when needed; don't open yourself up unnecessarily to having to use it. As soon as you think the tenant has vacated, begin counting your days and get your Notice out!!! Whether it be a skip, an eviction or the natural ending of the lease, get the Notice out.

 

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Modifying the Rent Amount
by Harry A. Heist, Attorney at Law

 

Unfortunately these days landlords are often having to lower rent rather than raise rent each year. With the huge surplus of vacant homes and condos in the rental market at the moment, tenants are balking at paying the same amount of rent at renewal time, and are even asking the landlord to lower the rent during the tenancy, knowing they can find cheaper accommodations. Out of desperation, many landlords are agreeing to lower the rent rather than have a vacant unit. Usually the tenant initiates contact with the owner during the lease or at renewal time to discuss the rental rate, and the usual threat is made that if the rent is not lowered, the tenant will be moving.

Owner issues

If the tenant is dealing directly with the property owner or agent in an apartment setting, the negotiations can be done directly with the tenant. It is crucial that the landlord does not imply a particular rent amount will be owed unless this has been decided. Any promise or implication that the rent will be lowered will be latched onto by the tenant and relied upon. It must be made clear that no deal will be consummated unless it is done in writing and signed by all the parties involved.

Managed units

In the event the unit is being managed by a property manager for an owner in the single family home setting for example, the owner must be contacted and the new rent amount agreed upon. It is imperative that this new rent amount is agreed to in writing by the owner, and that no representation can be made to the tenant that the rent will decrease without the owner giving this authorization in writing, either by fax, letter or email. The owner may verbally agree, but this cannot be relied upon. Most owners are currently losing money on their homes. With a lower rent they will be losing more. All the owners of the particular unit need to agree to any rent decrease. Never rely on just a writing from the husband or wife. All the owners must agree, and you must be certain of this.

Mid-lease modifications

A mid-lease modification can be handled by a simple addendum stating the new rent amount and signed by all parties. This may present a good opportunity for the property manager to have the tenant sign a brand new lease, thus extending the tenancy, but some tenants may wish only to stay until the natural expiration of the lease, and an addendum will be the appropriate vehicle. If the tenant also pays other amounts in addition to the rent, it is imperative that this addendum wording does not end up inadvertently reducing the rent further than what the landlord expected. Often there is "base" rent plus other items making up the "entire" rent. The tenant may currently be paying a rent amount of $700 plus $50 for the garage and $25 for cable. In the tenant's mind, rent is $775, because that is what he pays each month. In your mind, "rent" is the base amount of $700 plus the other charges, and you are lowering it to $650. Putting a clause in an addendum that states that the parties simply agree that the rent shall be lowered to $650 will cause an ambiguity. Is the total rent now $650 as the tenant may assert, or is it now $725 as you will assert? Any ambiguity in the agreement is construed against the party creating the document (most often the landlord), so the ambiguity will almost always work in the tenant's favor; this presents a clear danger to the landlord.

An early payment option

As an incentive for the tenant to pay the now reduced rent, it is possibly to place a clause in your addendum stating that the rent shall be $X amount if paid by a certain date and $Y amount if paid by a later date. Many managers are already familiar with early payment discounts, but this is structured a bit differently and has 2 distinct rent amounts. Problems occur when the tenant pays the lower amount at the later date; this can cause disputes, so care and thought should go into making such an addendum.

New lease rent modifications

The parties may agree to a lower rent amount in a new lease. We recommend that any negotiations be memorialized in writing prior to lease signing and that all parties execute the new lease before the beginning date. In lease execution, care should be taken to have all tenants sign the new lease, never allowing just one tenant to sign if other tenants are listed on the lease.

What about prepaid last month's rent?

The tenant may have paid a last month's rent upon moving into the unit. How is this affected by the rent modification? The tenant of course will want to be refunded any amount to the extent that the last month's rent exceeds the new rent amount. When will this occur? Now? At the beginning of the last month? We recommend that this refund is done at the time of vacating the premises, and this can be addressed in the addendum to the lease. Another option is that the excess in the last month's rent shall be added to the security deposit, which will give the landlord a larger sum to use in the event of damages or other money owed. Anything can be done, it is all in the addendum wording.

Fair Housing Considerations

In the multi-family setting, if you reduce a tenant's rent, word will spread like wild fire throughout the apartment community. You should expect other residents to come into your office asking for a rent reduction. Is everyone entitled to a rent reduction? Should you only reduce rent where you know a tenant has lost her job? It is imperative that a written policy is in place before you ever begin negotiating rent with a current tenant. It is bad enough when new tenants are getting concessions and lower rents, and now you have to deal with the irate tenant who has been with you for 5 years. Failure to give a rent reduction to someone of a protected class could result in a discrimination complaint that you may have difficulty overcoming.

 

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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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