VOLUME 6 - ISSUE 2 LEGAL UPDATE
- Court Etiquette
- Identity Theft Part 2
- The Pet Application
- Application Deposits
Court Etiquette and Procedures
by Harry A. Heist, Attorney at Law
Most landlords or property managers will at some time in their career end up in court. Despite the best efforts to settle cases, sometimes court is inevitable and unavoidable. The case may be a simple three minute Motion to Dismiss or a complicated and convoluted eviction with a counterclaim and many witnesses. In some cases the judge will take complete control of the proceedings from the start and simply start asking questions. Some judges closely follow the rules of civil procedure, and court is conducted in a very formal fashion. Some judges do not even hold open court and prefer to deal with the cases in their chambers where the parties all sit around a large conference table. In all cases, the judge is in charge and must be afforded absolute respect. Even if the judge seems relaxed, joking and casual, the parties should remember that the judge will be making a decision, and all court is a serious matter. Sometime court is like what you may see on the daytime court shows, but most of the time, it is NOT like Judge Judy or the People’s Court. Someone may leave that courtroom very unhappy.
Who must go to court
The parties and witnesses who should or must come to court will depend upon the type of case. In an eviction action for nonpayment of rent, the person who is most familiar with the rent records and receipts will need to be in court. This is usually just the property manager or the landlord, but it can get far more complicated if the tenant brings up a defense that he did not receive a Three Day Notice, or that he had made an agreement with your leasing agent, assistant or someone else employed by your company. If other people are involved or had contact with the tenant, bring them to court. You can never have too many witnesses with you in court, but failing to bring a necessary witness can doom a case. In a security deposit dispute case, you may have to being in vendors, experts, people who did the work on a unit and all your physical evidence and documentation. Your attorney will tell you who must come to court, what you need, and witnesses may be subpoenaed to try to make sure they actually come to court.
Arriving to court
We strongly urge you to carefully map out the courthouse and get good directions if you are not familiar with the court location. Many counties have built new or additional courthouses, and it is quite possible that you are assuming you are going to the same courthouse that was there 5 years ago when you last had court. Once you get directions, ARRIVE EARLY. We almost always arrive 30 minutes before court. Many courthouses have severe parking problems and tight security which could result in you being late. Some small courthouses have one x-ray machine and metal detector; others have high tech systems that surpass airport security. You don’t want to accidentally go to the wrong courthouse that is a 35 minute drive from the correct one.
What to bring and NOT to bring
Your attorney will tell you exactly what to bring to court. Most likely it will be the tenant’s actual file if it is a nonpayment of rent case and copies of the lease and notices. You should organize the file so you can easily take out original documents in the event the judge wants to see something in your file, or if there is a dispute about the authenticity of a copy. There are certain things you should leave at home. Knives, guns, mace, pepper spray and other prohibited items have been brought to court by our clients. They were in a pocket book (or sock) and forgotten. Clear out anything from your pockets, purse or pocketbook before you leave for court and imagine you will be going through an airport screening checkpoint. Leave your switchblade and 9MM at home.
What to Wear
Don’t wear shorts! Even if shorts are part of your work uniform, they should NEVER be worn in court. Females can sometimes get away with it, but why take a chance? Some judges are so strict about this that the bailiff, a sheriff’s deputy, will make you leave the courtroom if you dare to wear shorts. Dress respectfully. A jacket and tie is not necessary unless you are the attorney, but a well dressed client is nice to have by our side.
Many of our clients expect that we will testify for them and do all the talking. While that would be nice and easy, and we try to keep you from having to say too much, our client usually must testify. You will need to know the date you gave the Three Day Notice, how it was delivered, who served it, how much rent was on the Three Day Notice, what the amount on the Three Day Notice represents, when the lease was entered into, when it expires or expired, when you last accepted rent, how much is the total amount owed and just about any other fact regarding the case. If you come across as confused or uncertain, the judge may get angry FAST. You need to prepare before court. Your attorney can be 100% prepared, but if you don’t know the facts of your case, the judge may be unsympathetic or even angry at you. Don’t give the judge an excuse to let the tenant win a case or continue or delay the case to a later date. Your attorney will most likely have a sheet with all the information on it in one place. You should do this as well and create your own “cheat sheet” you can look at rather than fumbling through the file. No matter how organized you are, when the judge starts talking, everyone will get nervous, and the most organized person might instantly become disorganized.
Addressing the Court
One of the first things that will happen at the start of the case will be for the judge to ask all parties who will testify to raise their right hand and “swear to tell the truth, the whole truth and nothing but the truth”. Raise your right hand and clearly say “I will” or whatever the judge asks you to say. There is no need to shout this, but failure to say it loud enough for the judge to hear will sometimes anger the judge. You and any witnesses who might testify need to do this, even if you are not sure you will be called as a witness. The judge will often not know whether you are the tenant or the landlord, so when asked your name, clearly state “Mary Smith – manager of Mountain View Apartments”. Whenever you speak to the judge, refer to him or her as “your honor”: “Yes, your honor”, “No, your honor”, “I do not know, your honor”. Practice this a bit before you go to court.
Behavior during the proceeding
Speak only when you are asked to speak. Even if the tenant says something completely bizarre or tells an outright lie, you must stay quiet, not roll your eyes, laugh, shake your head or act out in any way. There is a strong tendency to want to respond when someone is lying about you or saying something utterly outrageous. Don’t do it. You or your attorney will address the issue. While the tenant may be lying, never call the tenant a liar. Your attorney will do that for you in the “attorney sort of way”.
Do you want your phone confiscated by the bailiff or really annoy the judge? Then leave your phone on. Despite verbal requests and signs in the courtroom to put the phones on “vibrate” or “silent”, they end up going off and disturbing the judge. We ask that you turn your phones or Blackberry off completely. You can survive an hour without it. Turn it off and hope the tenant forgets to turn his or hers off.
The judge may go straight to you and ask you questions or allow the attorney to proceed in a more formal manner with an opening statement. You never know for sure, but usually your attorney will know how a judge generally will proceed and will prepare you accordingly. After your attorney gives an opening statement, you will usually be the first witness, and your attorney will ask you things like your name, where you are employed and if you are familiar with the rent records and receipts. Short and clear answers are all you need to give. Let your attorney direct the questioning. Speak loudly enough so the judge can hear you. Never annoy the judge.
Just as your attorney can take testimony from the tenant and cross-examine the tenant, the tenant can cross-examine you. The tenant may question you on something you said in response to your attorney’s question to you. This is where a hearing or trial can get completely out of control. This is not time for a conversation or argument with the tenant. Just answer the tenant’s questions, and if the question is improper, you can pause and your attorney will object. The judge will then direct you to either answer or ignore the question.
If you win the case, which is frequently the case in eviction actions, do not smile and thank the judge. Just put away your papers and follow your attorney out the door. The tenant may be angry and make a scene; ignore it all. Your attorney will simply say, “Thank you for your time, your honor“ and walk out the door. The judge is not “happy” the tenant is being evicted, although you may be, and the judge does not need you to thank him or her for evicting the tenant. Try to allow the tenant to walk ahead of you, so you do not end up in the elevator with the tenant you just evicted, or end up in an altercation outside of the courtroom. If the Judge gives an adverse ruling, do not argue with the Judge or in any way show disdain for the ruling.
Failing to show up for court
As hard as this may be to believe, sometimes our clients decide not to show up for court. Something comes up at the last minute or for some reason our client decides it is not necessary to come to court. A lesser issue is when our client decides to send someone else in his or her place that has little to no knowledge about the case. Is this fatal? It sure can be. We often are able to use the tenant’s testimony to win the case, but if the tenant‘s testimony is adverse on a key factual issue, there is often no way for the attorney to refute the tenant’s distortions or lies. If you have a real emergency, call your attorney immediately, and often the case can be re-set. Always take court seriously. A judge can dismiss a case or worse yet, find for the tenant if you do not show up. If the tenant has an attorney, you may and most likely will be liable for the tenant’s attorney’s fees if you lose.
It is always advisable for the attorney to have your cell number and for you to have your attorney’s cell number in case there is some reason you will be late to court. Communication is the key, and the judge will usually be willing to hold the case off or take other cases before you in the event you are having a problem getting to the courthouse.
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Identity Theft Part 2- Protecting Your Resident Electronic Information
by Michael Geo. F. Davis, Attorney at Law
You’re very careful about your resident paper files. They are kept secure under lock and key with very limited access. You have a paper shredder and use it faithfully for any disposed documents with resident personal information. Your mail and drop box are secure. You’ve done your part to protect your residents’ information. Maybe not. What about the electronic files?
Your security is only as good as your password protection. The craftiest password is worthless when it is stored on slip of paper inside your desk drawer. Worse is the practice of keeping all your passwords on a list in your desk. We are required to have a password in so many programs and websites that keeping them all straight almost requires a list. Many software experts suggest only two or three passwords, one each for minimum and maximum security to be used according to your assessment of the site or program. One separate password should be used for your banking.
Update your computer software.
Most software vendors are constantly updating their software to counter the developing threats against it. In this day and age of unwanted extra programs in the automatic update, you don’t have to necessarily automatically update. You can set you computer to notify you of the update for your review before downloading. Use antivirus software, and it should update automatically. Use a firewall as a guard to monitor outside attempts to access your system.
Know the warning signs of spyware infection. Emails are sent that you didn’t originate. Check your sent emails regularly. Your computer inexplicably slows down. It doesn’t function properly and reports unexplained error messages. It serves pop ups repeatedly, especially if you aren’t on the web. You find web pages that you aren’t visiting opening; they seem to self-generate. It fails to shut down or it won’t restart.
Attachments, downloads, websites
Exercise judgment in opening file attachments. Free software may be tempting but costly in the long run when unwanted programs, spyware or viruses come as hidden extras. Bad software (malware) can be found in many free games, file sharing programs and customized toolbars. If you send an attachment, include a text message in the email to explain the attachment or, at least, to notify the recipient that you generated the email. The immense popularity of social networking sites is irresistible to those who would harm your computer programs or files for fun or profit. An internet usage policy is a must, and to be effective it must be enforced. One staff member in the wrong place can compromise the computer files of everyone on a poorly protected network.
Report suspected hacking or viruses to you internet service provider (ISP) and to the hacker’s ISP. Reputable internet service providers will use your report to prevent further abuse. You can contact the IC3 at www.ic3.gov. The Internet Crime Complaint Center (IC3) is a partnership between the Federal Bureau of Investigation (FBI), the National White Collar Crime Center (NW3C), and the Bureau of Justice Assistance (BJA). The IC3 website has comprehensive information on internet threats and the methods to protect you files.
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The Pet Application
by Harry A. Heist, Attorney at Law
Pets can be a real nuisance and liability for the landlord or property manager. Beside the higher chances of damage to the premises, each year pet related injuries cost landlords millions of dollars, some of which is not covered by insurance. Many insurance companies now simply disallow pets on the insured premises, and the landlord must sign an agreement that pets are not allowed and if there is a pet related injury, the insurance company will not cover the claim. Most landlords require the tenant to sign a pet addendum or agreement which details the terms and conditions of the pet on the premises, and requires the tenant to pay either a non-refundable pet fee or a pet deposit.
Ironically, the applicant for a rental is made to go through a vigorous application procedure under which the applicant’s credit, criminal background, and prior landlord references are carefully checked, while the tenant simply has to fill out a pet addendum and pay the required sum of money for a pet. The tenant gets approved, the pet sums are paid, and the tenant and his pet move into the premises. Three months into the rental, you inspect the property or have to repair a maintenance issue and you discover that the 25 pound Terrier on the application is indeed now a 40 pound Pit Bull Terrier. You were expecting this cute little dog and now are completely surprised to see this fierce and dangerous dog on the premises. Of course the tenant assures you that the pet never bites, is great with children and is adorable, but you don’t agree, and if your insurance company found out, your coverage might be cut off FAST.
What did the landlord do wrong?
The landlord’s surprise is due solely to the fact that the pet was not shown to the landlord prior to taking the tenant’s pet fee or deposit and signing the pet addendum or agreement. Had the landlord actually seen the pet at the application process, this never would be happening. This is purely an example of a problem that was completely avoidable if the landlord simply interviewed not only the applicant, but was able to see the applicant’s pet BEFORE approval. Whose fault is it really that the tenant now has a 40 pound Pit Bull? It is the landlord or the property manager’s fault. It is quite possible that the tenant was telling the truth about her pet at the time of application. After all, a Pit Bull Terrier is a terrier and it could have gained 15 pounds in 3 months.
The Easy Solution
The easy solution that has been discovered by the savvy landlord and property manager in Florida is to have the tenant fill out a pet application. The pet application deals with a number of issues, and the tenant can be required to pay a fee for the pet application. The pet application is not to be confused or substituted for a properly executed pet addendum. This is the application for the pet. Like an application and approval is the prerequisite for a tenant signing a lease, the pet application and approval is the prerequisite for the tenant executing the pet addendum.
What does the pet application accomplish?
The pet application is the applicant’s request for permission to have the pet. The tenant is not simply filling out a pet addendum and paying a fee; this is a permission based process. The pet application makes it clear that the fee for the pet application is an administrative fee and is NOT to compensate the owner for any pet damage which may occur. It is an application fee, pure and simple. The pet application makes it clear that the landlord does not have to approve a pet, just like in most cases a landlord does not have to approve a tenant for residency. Information about the pet is provided, and most importantly, the applicant is required to bring the pet to the management office (or parking area) so the landlord can observe the pet, take a photo and observe the demeanor of the pet. If the breed looks suspect, management can ask for further verification, just as with a tenant. Finally, the applicant is asked about the pet’s history in an attempt to reduce liability for management. In the below sample, the pet application fee is refundable if the pet is not approved. You can modify this to make it non-refundable whether the pet is approved or not. This is up to you.
SAMPLE PET APPLICATION
This Pet Application is made as a part of the rental application for the property located at: _________________________________, Florida. I do hereby request that my pet be approved to reside with me during the term of my lease agreement. If my pet is a “Service Animal” or a “medically necessary pet” I will notify management in writing and this Pet Application will not be applicable.
NOTE: This is a Pet Application only and not approval for a pet unless approved by Management , a Pet Addendum is executed by all parties and all sums and fees are paid according to the Pet Addendum. In order for the pet to be permitted on the premises, the pet must be fully approved by Management, a Pet Addendum signed by Tenants and Management and all fees paid including but not limited to an additional security deposit, pet deposit, pet fee or additional rent as required by Management.
I understand that Management is under no obligation to approve my pet for occupancy. The following pets will not be accepted under any circumstances: German Shepherds, Dobermans, Pit Bulls, Chows or Rotweillers, any mix of the aforementioned or any other breed or mixture thereof which Management decides to not approve.
In consideration of having a pet go through this application process, I agree to pay a Pet Application fee of $__________ to Management. I further understand that the Application Fee is strictly an administrative fee paid to Management and is not considered a security deposit or pet deposit. Management requires a photo of the pet for Management’s files, a copy of the pets vaccination information from the veternarian and the pet must be brought to the parking area of the Management office for inspection by a representative of Management.
The Pet Application Fee will be refunded if Management does not approve the pet.
Breed: ___________________ Name: ___________________
Weight: ________________ lbs. Sex __M ___F Age: _______
Estimated Pet weight at maturity ______________ lbs.
I do hereby certify the following:
My pet is well trained, is not dangerous to others and does not have a propensity to be vicious. My pet has never bitten, clawed or caused harm to another person or other pet, and it does not bark excessively when I am home or not home. No other landlord or person has ever complained about my pet or its behavior.
My pet is not pregnant and will not become pregnant while we are residing on the premises. If my pet becomes pregnant, I will be in violation of this agreement and the pet and any offspring must be immediately removed from the premises
I agree that there shall be no other pets, other then listed above on the premises without the express written approval of Management. Should I desire additional pets, I agree to apply to Management for approval, submit another Pet Application and obtain approval prior to pet occupancy.
In the event that my pet causes damage or destruction to persons or property, I agree that all costs of said damage or destruction shall come out of our Security Deposit and/or Pet Deposit. Should the Security Deposit or Pet Deposit be insufficient to cover the cost of any pet damage or destruction, then I agree to be financially responsible for damages above and beyond the amount of my security deposit.
If the pet becomes a nuisance or causes damage or destruction to the premises or otherwise violates the terms of this pet application, Management may terminate the pet’s right of occupancy and/or my lease agreement subjecting me to eviction.
I hereby agree to the terms and conditions of this Pet Application form this _____ day of __________________, 20____.
_____PET IS HEREBY APPROVED ___/____/____
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by Michael Geo. F. Davis, Attorney at Law
Managers and leasing teams invest their time and effort in guiding an applicant through the application process. They may even turn other applicants away or hold the rental for him. After a successful application process (completed application, credit check, criminal background) the applicant informs you that he won’t be renting. He wants his application deposit back. Under what circumstances can you keep it?
Any actual damages?
At the outset please note we advise that the application deposit be returned unless the landlord can show actual damages, that is a financial loss, such as holding the unit while turning away other qualified applicants. An apartment community with an inventory of similar apartments may have difficulty showing this type of financial loss. A residential property manager with distinct single family homes would be more likely to have a held-off-the-market loss of rent.
Penalties and forfeitures are disfavored.
Our analysis begins with the recognition that Florida law in general does not look favorably upon contract penalties or forfeitures. Penalties and forfeitures are not enforceable in numerous areas of Florida law, either by express statutory prohibition or by judicial interpretation relying on such concepts as unconscionable provisions.
With that caution in mind we turn to an examination of the application and any other documents relied upon for the right to retain the deposit. The wording both to avoid the forfeiture and to authorize forfeiture must be clear and unambiguous: the grace period, the time and method of the landlord’s application acceptance, the time and method of the applicant’s cancellation, the amount of forfeiture, etc. The burden of proof will be on the landlord. Not only will the lack of strict compliance, but also the inability to prove strict compliance, with the terms of the forfeiture be fatal. If the amount to be retained on the application form is left blank, or other sections of the application addressing deposit forfeiture are left blank, this is often a fatal error.
The oral contradiction.
Even a clearly written, unambiguous document can be contradicted by the oral misrepresentations of the landlord’s representatives. The applicant will often state that the leasing staff assured him that his application deposit would be returned without mentioning any conditions. A good counter to this claim is a leasing checklist, checked-off and signed by the leasing agent, which includes the disclosure of the application deposit policy. A separate applicant signature line or initial space is often placed next to the forfeiture language for emphasis.
Is there an agreement to lease?
Has the applicant, who has not reviewed the leasing documents before signing the application, entered into any agreement to rent, regardless of a signed deposit forfeiture? The point of the transaction is the rental of a unit. A rental is not accomplished when the application is accepted, but only when the applicant signs the lease. An accepted applicant who in good faith rejects certain lease provisions or any other leasing document provisions (community rules and regulations) has never agreed to rent, but only agreed to enter into negotiations to rent. Rather it is the landlord who by refusing to negotiate the lease terms is refusing to rent. The application deposit should be returned.
Is the application deposit a security deposit?
Is the application deposit a security deposit under the Chapter 83, The Florida Residential Landlord Tenant Act? Neither the statutes themselves nor the case law answers this question directly. We can postulate that at the application stage we don’t have a rental agreement yet. Without a rental agreement, we don’t have a landlord/tenant relationship. Without a landlord/tenant relationship, Chapter 83 doesn’t apply. Further, FS 83.43(7) defines a rental agreement as providing for the use and occupancy of premises. FS 83.49 addresses money deposited on a rental agreement. A good argument can be made that with no lease agreement, the deposit is not subject to the bank deposit and notice of claim requirements of FS 83.49.
Florida Real Estate Commission rules
For residential property managers there is one more consideration, the Florida Real Estate Commission, FREC has not taken a clear position on whether section FS 83.49 applies. To be on the safe side, assume it does, and if you are going to keep the deposit, follow the normal claim upon the security deposit as outlined in FS 83.49, even though it may not in fact be a security deposit.
The risk of litigation.
As you can see from this article the pitfalls in keeping an application deposit are many. For this reason we advise our clients that the application deposit should be returned unless the client can show actual monetary loss. The time, effort and expense to defend a small claims case will outweigh any income derived from tenuous application deposit forfeiture, not to mention the potential for a class action claim.
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