VOLUME 6 - ISSUE 6 LEGAL UPDATE
- Eviction Costs Beginnning July 1, 2009
- When All Tenants Don’t Sign
- The Residential Oral Lease
- The Employee Tenant
Eviction “Costs” Beginnning July 1, 2009
by Harry A. Heist, Attorney at Law
There are a number of “costs” involved in an eviction action. These are not to be confused with “attorney’s fees”. The costs in filing an eviction are those charges by the office of the County Clerk of Court and the Sheriff’s Department or Process Server. For many years, when the eviction case was filed, the Clerk charged a “filing fee” which was set by the Clerk of Court in the individual counties, and ranged from an amount as low as $35, but also exceeded $180 in some counties. A number of years ago, the fee was set by Florida statute and became uniform throughout the state. In order to file an eviction, the Clerk of Court collected $80.
Another “cost” which must be paid is to have the summons and complaint, hereinafter the “eviction action”, served upon the tenant or tenants. For many years, the Sheriff provided this service for $20 per defendant. This particular cost made the total eviction costs vary, since there would be an additional $20 charge for each defendant. In most counties, the landlord has the option of using a Private Process Server who is authorized to serve the eviction action; Private Process Server charges usually exceed the Sheriff’s $20 charge. The final “cost” was $70, which the Sheriff charged to serve and execute the Writ of Possession. A few counties charged an additional $20 per additional defendant when processing and executing the writ. The writ cost was not always incurred, as many times the tenant would vacate the premises prior to the end of the eviction action, and the landlord could opt not to have the Sheriff give the landlord possession, if possession was already obtained through a surrender or abandonment. Well, times have changed, and not only has the Clerk of Court changed their fee structure, but a new law has just been enacted changing the Sheriff’s charge to serve the eviction and complete the eviction.
The Clerk of Court Filing Fee
Up until July 1 of 2008, the cost to file an eviction action was set at $80, and this was uniform throughout Florida. While the actual statutory amount was a bit lower than this, there are a few other fees that are tacked on, and for this article, we will simply say the filing fee was $80, which is exactly what the landlord had to pay to have the Clerk of Court file the case in county court. Due to the budgetary crisis, a new law was enacted in 2008 which raised the cost of filing a one tenant eviction from $80 to $270. This was a dramatic increase and seriously impacted the landlord and the tenant. The impact to the landlord was immediate, as in order to file an eviction, there was an additional $200 ($190 + $10) to be paid to the Clerk of Court. The impact to the tenant was that many tenants could not afford to “stipulate” or settle with the owner after an eviction action was filed, as this extra $200 put them over the edge. In the end, the tenant ended up paying for this additional cost, due to higher rent for all, and the dramatic filing fee increase did its part in hurting affordable housing in Florida. Recognizing the severity of the problem, associations such as the Florida Apartment Association, (FAA) the Florida Association of Residential Property Managers, (FARPM) and the local chapters of the National Association of residential Property Managers (NARPM) took action, with the Florida Apartment Association taking the lead in the fight to lower the filing fee. The battle was successful, and the filing fee was lowered by $85, which though not exactly what we all would have desired, will save the landlord approximately $12,000,000 a year in filing fees. The “filing fee” beginning July 1, 2009 will be $180, but wait, there is a little catch. In 2008, the Clerk of Court began charging a “summons’ issuance fee” of $10 per defendant, which in 2008 made the filing fee for a one defendant eviction $280, but for each additional defendant, there was a charge of $10 to issue the summons, and this fee did not go away. The actual cost to file a one tenant eviction will be $190.
The Filing Fee and Summons Issuance Fee
When figuring out the cost of an eviction or budgeting for next year, beginning July 1, 2009 you can use $190 as your “filing fee” amount for a one defendant eviction. There is no getting around this fee; this is what the Clerk of Court charges. For each additional defendant, figure on adding $10, as this is the summons issuance fee charged by the Clerk of Court. A tenant eviction against 2 tenants will cost $200 to file, and so on. As you can see there will be some savings over evictions filed prior to July 1, there being an approximate 32% reduction in the filing fee. Unfortunately this is only the beginning of the eviction action. The tenant must be served with the summons and complaint of eviction.
Serving the Tenant with the Summons and Complaint
The current fee the Sheriff charges for serving the tenant with the Summons and Complaint is $20 per defendant. The bad news is that this fee is increasing to $40 per defendant by statute on July 1, 2009. Through the lobbying efforts of the various associations that the Sheriff’s and Process Servers belong to, this fee is now doubled. While $20.00 may seem to be a significant amount, this amount has remained the same for a long time, and probably some increase was justified. Double? We don’t think so, but the Sheriffs did, and the Legislature has spoken. Now you are probably thinking that the Sheriff does not serve YOUR summons and complaint, and in most cases you are correct. In almost every county where we file evictions, we use a Private Process Server to serve the eviction. The main reason we do this is that the Private Process Server is an individual who is authorized by the courts and/or the Sheriff’s department to act as the Sheriff acts in these civil cases, and serve the tenants with the summons and eviction complaint. The Private Process Servers are usually significantly faster than the Sheriff’s department. Will the Private Process Servers increase their fees now that the Sheriff has doubled theirs? You can pretty well bet on it. How much will this add to your eviction action? When budgeting, on average there are 1.5 tenants in a typical eviction. We recommend budgeting an additional $30 per eviction on average for the increase costs of service of process.
The Writ of Possession
If the Writ of Possession is needed, you MUST use the Sheriff to handle this for you. You cannot use a Private Process Server. The Writ of Possession is not always necessary, but we see it processed in about 50% of the cases that we file. As described above, the charge is now $90 for the writ in most counties PLUS even more in some. This fee covers the Sheriff serving the Writ of Possession to the tenant and then meeting you at the property at a later time and “executing” the Writ of Possession. Whether you need the Writ of Possession is dealt with in other articles we have written, and we urge you to be careful when making the decision on getting the Sheriff out to the property or not. The $90 you spend at the end of the eviction may be the BEST money you have spent, as it completes your eviction and among other benefits, significantly reduces your liability
As you can see, we won some and we lost some this year. The filing fee decrease will save the landlord about $12,000,000 the service of process increase and Writ of Possession increase will cost the landlord over $4,000,000. We guess a savings of $7-8,000,000 overall is really not so bad, considering that almost every other fee rose dramatically, and Florida is in such a serious economic crisis. In my opinion, the landlords were indeed victorious this year and hopefully will continue to be strongly involved in the associations that made the cost savings a reality.
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The Residential Oral Lease
by Michael Geo. F. Davis, Attorney at Law
Residential oral leases of less than one year are enforceable contracts. The usual form of residential oral leases is monthly, and references in this article to oral leases will be to monthly oral leases. A monthly oral lease does not become a lease of greater than one year if it is renewed and the tenancy continues for more than one year. It remains an enforceable monthly oral lease no matter how long possession continues.
Oral leases are commonly found in situations in which the owner/landlord is directly entering into an agreement with the tenant. However, an agent for a landlord can enter into an oral lease, on behalf of the landlord, with the tenant. In this situation, another level of complexity enters the matter as to the agent’s authority, scope of the agent’s employment, etc.
Tenancy at will
An oral lease creates a tenancy at will, that is, a tenancy that can be terminated by either party at any time without any reason. To have a valid tenancy, there must be some basis for concluding that one party was giving the other party the right to possession of the property. A court won’t create a tenancy without sufficient proof that one was intended to exist.
Filling in the details
The oral agreement between the parties outlines the terms of the tenancy. Like most oral contracts, an oral lease is usually a general agreement without much detail. So how are the missing details filled-in? Since a lease is a type of contract, contract law applies to leases. Some Florida statutes, which are generally applicable to contracts, apply to leases. Some Florida statutes apply only to leases. Chapter 83, Part II, of the Florida Statutes will supply certain missing terms if not otherwise agreed. For example, absent the parties agreeing, the statutes dictate how much time must be given for a notice of termination, what the landlord’s and the tenant’s duties are, and some other provisions.
Where neither the parties nor the statutes supply the terms, a judge may provide them. The judge consults “case law”. These are the legal principles developed on a case by case basis over the years. These principles help the judge interpret and apply the law in manner that is designed to be consistent.
The course of dealing between the parties is a prime example of such a legal principle. This is really a form of the old adage that actions speak louder than words. What the parties are actually doing is the best indication of what they agreed to do. Another such legal principle is looking to industry standards and local custom for guidance. This allows a judge to ascertain what the parties’ agreement probably was by looking to what is usually done by a landlord or tenant in that situation in that locale.
Finally, the judge will rely on testimony of the parties and other witnesses. Factors affecting the evaluation of testimony include the credibility of the witness, the reasonableness and consistency of his story, and the common sense assessment of his position.
One warning: an old legal principle is that the law will not save the landlord or tenant from a bad deal. Absent fraud or such other reason, the judge will not remake the terms to relieve either party of an oral lease that he no longer wants.
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When All Tenants Don’t Sign
by Harry A. Heist, Attorney at Law
We see it all the time. What you ask? Your lease! You can run, but you can’t hide! When you have to file an eviction, the lease must be attached to the eviction complaint. so your attorney gets to see the lease and all the fun stuff that goes along with it. The most common thing we see in the lease is that printed on the lease are 2 tenants, but on the signature page only one tenant signed. Hmmm. How did this happen? You would never let this happen would you? Well, let’s see.
John and Mary Smith have been approved, paid all deposits, and the only thing left is to sign the lease. They are to come in on a Friday, sign the lease and move into the unit. At the appointed time, John shows up without Mary, because Mary had to leave town for an emergency. John assures you that Mary will be back next Thursday and will promptly come in and sign the lease. In the meantime, you let John sign the lease, you give him the keys and he moves in. You then take the file, put it in your filing cabinet and expect that next Thursday, Mary will show up to sign the lease. Thursday comes and goes, Mary never shows up, and either you completely forget about Mary needing to sign the lease, or you remember and call her, only to be promised that she will come in, and that never happens. You think that this scenario is not played out all the time? It happens.
You possibly remembered that Mary did not sign the lease, and you possibly made a few calls to Mary asking her to come in, but she never does. Is there much you can do? Not really. Most likely you simply forget, and she never signs. It is now three months later, you have been collecting the rent each month, as Mary drops it in the drop box on time every month. The fourth month you don’t get the rent and head out to the property to serve a 3 Day Notice. You go to the door, knock loudly, and a “gentleman” named Bill answers the door. You ask who he is, and he states that he is Mary’s boyfriend and lives there, as John left Mary two months ago for another woman. Looking inside, you notice two children and another “gentleman” passed out on the couch. The condition of the unit is horrendous, and the rent is unpaid. Mary is allegedly at work, so you ask Bill who all these people are, and he tells you that the children are his and the guy on the couch is his brother who recently got out of jail and needed a place to stay temporarily. NOW WHAT?
The problem is fairly obvious. You have unauthorized people in a unit, problems with the unit, and the person who signed the lease is nowhere to be found. Yes, Mary, the other tenant on the lease is living there, but Mary never signed the lease, so Mary really has no obligation to you to pay the rent or uphold any of the rules and regulation of the lease. Mary is really no more than an occupant, and if you were to file an eviction against her, it might not be proper, because she has not signed the lease and does not owe you anything. To further complicate matters, because Mary has never signed the lease, she can say on one hand that she is a listed occupant on the lease and allowed to be there, but on the other, she can claim she owes you nothing. This is just ONE of the problems that we face when the lease is not signed by all parties.
Another bizarre situation can occur even if John and Mary are indeed living in the home as planned. John and Mary are looking around the neighborhood and see a beautiful home for sale that they can afford. With the prices dropping rapidly, they just can’t pass up this opportunity. They consult their attorney about breaking the lease, and the attorney reviewing the lease spots that only John signed it. Is the lease valid? The attorney then argues that since Mary never signed the lease, it is not a fully executed agreement and he is advising his client to vacate and purchase the house down the street. The majority of judges would find that the lease is enforceable against John, but failing to get both signatures opens you up to some risk. John and Mary pack up and leave, the property owner wants to pursue them for breaking the lease, possibly cannot, and now they are looking to you for compensation, because YOU did not make sure all the parties signed the lease.
Never allow a tenant access to a unit unless and until such time as ALL tenants sign the lease. Sure, you are saying you know this already, but why do we continue to run into the same situation? You cannot let your guard down. A simple mistake such as this can set the stage for a legal battle or a complicated eviction action later on. You need to stand firm and insist that all parties sign. If Mary is out of town, do everything to contact her, get Mary to go to an office supply store such as Staples, Office Depot or Office Max, send her the lease by fax, have her sign it and send it back. All this can happen while John is standing in front of you. Once you get the lease back by fax, have John sign. Is a lease signed and faxed a valid document? It sure is better than one that is not signed. If Mary cannot sign the lease, you cannot give John the keys. It is that simple.
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The Employee Tenant
by Harry A. Heist, Attorney at Law
Many employees of apartment communities live on-site and are provided an apartment as part of their compensation package. This apartment may be free of charge or at a reduced rental amount as long as the tenant is employed by the apartment community. Thousands of employees are in this situation and are living on-site, usually under some form of employee rental agreement or addendum. However, the time comes when the employment of the tenant may end, either voluntarily or involuntarily, fancy words for the employee quitting or getting fired. Sometimes it is an amicable breakup with the employee getting another job, while other times the employee is fired and you want him or her off the property as soon as possible, preferably yesterday! The mechanics of removing the ex-employee from the property all depend on the employee rental addendum and how you or your company deals with the situation. Mistakes are constantly being made, resulting in difficult evictions or delays in having the former employee leave the premises. In some cases the continued presence of the former employee on the property causes increased liability to the apartment owner or manager, and can seriously affect operations. The former employee may begin to act in a vindictive fashion, causing disturbances, badmouthing management, or otherwise interfering with business operations. Let’s face it: sometimes tenants go “off the deep end”, and your former employee is no more or less likely to do this than any of your other tenants.
Termination of Employment
This is handled in most companies by upper management according to the guidelines of their human resources department, and laws or rules covering this will not be covered in this short article. Your job will be to make sure that the former employee gets off of the property, and we highly recommend you immediately call your attorney for guidance from the very start.
The Employee Lease Addendum
For this discussion, we are going to assume your former employee signed an Employee Lease Addendum. If they did not, you have more significant problems. A typical Employee Lease Addendum will state what will happen if the tenant quits or is fired. For us attorneys, the most important clause is the one that states how long the tenant has to vacate the premises. We typically see timeframes between 3 days and 2 weeks as to when the tenant must vacate.
Our office usually gets the call from the property manager about a week after the former employee was to vacate the property, desperately asking us to get the tenant evicted as soon as possible. This is when we begin to ask some crucial questions, the answers to which will have an impact on how or if we are able to evict the tenant.
1. Are there more than one tenants on the lease, and did all of them sign the Employee Lease Addendum?
We often see that Bill and Jane both signed the lease, but only Bill, the maintenance tech, signed the Employee Lease addendum. This can pose a major problem, as really the Employee Lease Addendum only applies to Bill and not his wife Jane. Big mistake. ALWAYS make sure all the tenants sign the Employee Lease Addendum, not just the employee. This mistake is made all the time and will completely complicate if not make an eviction impossible.
2. How much time does the former employee have to vacate and did you give them notice?
Notice you ask? What notice? You assume that since the Employee Lease Addendum states that the employee must vacate within 15 days, this is notice enough. Think about this. Your lease states that the tenant is supposed to pay the rent, but you have to give them a Three Day Notice. To non-renew a tenant, you need to give the tenant a Notice of Non-Renewal. A tenant who has unauthorized occupants needs to get a Seven Day Notice to Cure. Why are you not giving the former employee a notice to vacate? Because you don’t have one! Is it really necessary to give the former employee notice? Perhaps not, but it cuts down on any confusion as to the firing or quitting date, or exactly what date the tenant must vacate. It is wise to use an Employee Lease Termination Addendum which clearly states the day the former employee must vacate.
The former employee needs more time
A common request by former employees who must vacate per the Employee Lease Addendum is that they need more time. They ask you and you say, “no”, they ask your regional manager who says “no”, and then they get high up in the corporate offices, and some big wig says “yes”, trying to avoid any kind of litigation. Now when does the former employee have to vacate? They have been given a verbal extension by someone in New York! If you are going to allow the former employee more time, make sure they sign an Agreement to vacate. Who are “they”?: the former employee and anyone else who is on the lease agreement, and hopefully on the Employee Lease Addendum
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