VOLUME 6 - ISSUE 10 LEGAL UPDATE
- COA/HOA and Service/Amenity Removals
- Evictions and the Mediation Process
- Responding Properly to the Tenant
- Missing the Obvious
Missing the Obvious
By Michael Geo. F. Davis, Attorney at Law
At the outset I want to make a few points. Most leases have various clauses designed to protect the landlord when he contacts the resident. The clauses allow the landlord multiple ways to contact the residents, indicate whom he can contact if there is more than one resident, etc. In any given notice required by Florida law, if the statute dictates the method to contact the tenant, the statute is controlling over the lease. Further, since the purpose of some notices is to warn the resident that the failure to comply with the notice will result in the loss of her home, the judges often strictly interpret the statutes. Very little deviation, if any, is permitted. Finally, the court system's resources -judges, staff, equipment - are increasingly strained to cope with the growing case loads. The fact that you have successfully filed notices, which your attorney feels are marginal, may mean nothing more than your cases have been hidden in the volume of cases flowing through the system. It is risky to trust your eviction to luck.
Now we turn our attention to missing the obvious on 3-Day, 7-Day and Nonrenewal Notices.
All tenants should be named
Names - all adult tenants should be named. This is obvious, universal, fail-safe advice. Just as obvious is that the tenant's name is both his first and last names, not just his last name, i.e., "Mr. LastName". If you want to know who "all the tenants" are, check to see who signed the lease. Two bad notices with one tenant named on each are not a substitute for one good notice with all the names. Spell the names correctly on the notice.
There are a few counties that permit some notices to name only one tenant in multiple tenant leases. Some counties require that some notices add a catch-all phrase such as "and all other occupants" to the names, if only one tenant is named in multiple tenant leases. Before deviating from the safe harbor of naming all tenants, you should consult with your eviction attorney. It is foolish for you to guess or base your notices on your experience in another county. Even if one name sufficed in the past in a county, there is the risk that a new judge or visiting judge may decide that strict statutory compliance requires all tenants to be named.
Include the full address.
Address - include the full address under the tenant name(s). The statutes require it. The full street name includes the right directional (north, south, east, west) and the right ending (court, road, lane, etc.). To miss this obvious point is to obtain a judgment and writ, only to find that the deputy will refuse to serve the writ because the address is wrong.
The statute provides that the county should be listed on the notice. While most judges will overlook omitting the county, do you want to be the landlord who discovers the hard way that some judges are meticulous and require strict compliance?
Despite the obvious, landlords will argue that it is unnecessary to include the complete address, because both the landlord and the tenant know where the rental is located, because the landlord didn't mail the notice so the address wasn't needed, because the landlord included only the apartment complex name under the tenant name and there is only one "XYZ Apartments", etc. All are fine arguments, but they are legally insufficient.
Date the day that you are serving.
Date - date the notice the day that you are serving the notice. Watch out for the word processing software auto-entering the date. It can be confusing to both you and the tenant to have different dates for preparation of the notice and for the delivery of the notice. Worse, since it is the delivery date that begins the time period for compliance, counting from a notice date which is different from the delivery date will often result in an invalid notice.
Include your name, address and telephone number
Landlord's or agent's name, address and telephone number - print these at the end of the body of the notice. Your firm belief that the tenant already knows this information is not a good defense to failing to comply with the statute. If the landlord's or agent's address has changed from the one listed on the lease, follow the notice of new address procedure in the lease. Although it is obvious that the new address is on the notice, there may not be a legally sufficient notification of a change of address.
Complete the certificate of service completely
Certificate of service - complete it correctly and thoroughly. It is not obvious to a judge that the delivery date is a typo. If it's wrong, it's wrong. Just because the date is on the top of the notice does not mean the judge will assume that you served it the day it is dated. Your signature on the body of the notice does not substitute for your signature on the certificate. If the date or signature is missing, the notice is flawed.
Altering a notice
Never alter a notice after you have delivered it, even if it is an obvious typo. If it is later used in an eviction, it is a misrepresentation to the judge that the notice submitted to the court is the same as the one given to the tenant.
3-Day demand date counted correctly
3-Day demand date - the days are correctly counted. Do not include the day of delivery as one of the three days. Did you remember the holidays this month? If you were going to hand deliver the 3-Day Notice, but mailed it instead, the demand day is wrong, unless five days were added for mailing. If you printed it out yesterday, but got busy and did not deliver it until today, the expiration date will often be short, making the notice invalid.
3-Day demand amount is only rent
3-Day demand amount - rent, rent and only rent. The 3-Day Notice says "the sum of _____ FOR RENT", so it's obvious that you can include only rent and amounts that are defined as additional rent under the written lease. Before you complete the 3-Day Notice check the file. Is there some justification to consider late charges, utility charges, pest control charges and anything else included in the 3-Day Notice as "additional rent"? If the charge is created under the utility addendum, did the tenant sign the addendum? Is it in the file?
This is so obvious that I almost did not include it. Did you add the amounts for the 3-Day correctly? Checking your addition will not hurt.
3-Day late charges
3-Day late charges - calculate as of the notice date. Assuming that late charges are "additional rent", they cannot be included unless the rent is late as of the delivery date of the Notice (not as of the expiration date). If there are daily late charges, then calculate them through the delivery date of the Notice (not through the expiration date).
Our law firm prepares 7-Day Notices, both to Cure and to Terminate, for our clients; there's no reason to miss the obvious if you use our free 7-Day Notice preparation service.
Non-renewal notice - adequate notice of non-renewal is required. If the lease requires X days' notification to the tenant of non-renewal, then "almost X" is not enough. If you mailed the Non-renewal Notice, then you were required to add five days to the notification time. The fact that the tenant obviously already knew of the non-renewal does not relieve you of the obligation to comply with the lease and the statutes. If the date is an obvious typo, it is still wrong.
Missing the obvious can hurt you. Do not assume that everybody will know what you mean. Take time to think, and review your notice before you send it. There are enough factors that you cannot control in an eviction. Missing the obvious is something that you can control. Why make the process any harder than it has to be?
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Responding Properly to the Tenant
by Harry A. Heist, Attorney at Law
"Anything you say (or write) can and will be used against you in a court of law". You have heard the saying, and it applies ever so much in property management. How you respond to a tenant can make a big difference in the outcome of a dispute. Our natural tendency to defend ourselves, explain ourselves, apologize or get into a fight when falsely accused, can make a small matter big in no time and create a damaging paper trail. Paper trails are excellent, but we must exercise care in what we write, what we say and what we email. If the burden of proof is on the tenant in a particular dispute, there is no reason to give them the "proof "they can possibly use to make their case. This by no means indicates you should lie in court to get out of a situation, but if the tenant has the burden of proof with regard to some issue, sometimes it is better to stand by and force them to prove you are in the wrong. The more you write, say or email, the more you may have to explain what you meant.
We are all taught that a prompt, sincere apology is the right thing to do in life. In property management, an apology takes on a completely different meaning. Your saying, "I'm sorry about the flood in your apartment," means, "The apartment manager admitted fault and now owes me money". The truth of the matter is that the flood may have been caused by the upstairs neighbor, is not the fault of the apartment community, and that the tenants are not going to be reimbursed a dime for their damaged items. Why apologize for something that is not your fault?
"We are doing the best we can"
You may be waiting for a particular part, your maintenance tech is out sick or just got fired, and you are not able to promptly repair something in the unit or possibly get the access gate repaired that seems to break each week. Saying that you are doing the "best you can" is interpreted as, "The property manager is not doing as good as someone else may be able to do". This means that your "best" is simply not enough for them, and the tenant latches onto the statement as an admission of weakness. Saying, "We have rush ordered the part, are handling the issue as a top priority, and will be in the unit immediately when we receive the part" is a better approach.
"The leasing agent had no authority to tell you that"
The desperate leasing agent "possibly" tells a prospective tenant that the carpeting is set to be replaced in a month. The tenant moves in expecting full well that they will be getting new carpeting, and the current carpeting is really bad. When the carpeting is not installed, the tenant begins to demand that they get the new carpeting. Your leasing agent has since been fired, or your owner just informed you that she is filing bankruptcy and that no non-essential improvements will be been made. You then try to tell the tenant that the leasing agent had no authority to make that promise. The problem is that the leasing agent DID have what is known in law as "apparent" authority to BIND the principal, the management company or the owner of the property to install new carpeting. By telling the tenant the leasing agent had "no authority", you may be admitting the leasing agent indeed did make the promise, when possibly the leasing agent did not make such a promise; with the former leasing agent no longer around, it is a big mistake to acknowledge statements you do not know were made. If the tenant is not going to get new carpeting and you know for a fact the leasing agent did not promise the carpeting, the proper response would be, "New carpeting is not scheduled to be installed in your unit, and there is nothing in the lease to indicate that your unit was to get new carpeting."
Responding to the Security Deposit Dispute
The classic mistake is to respond to a tenant's security deposit dispute by giving them (or worse yet, their attorney) a long drawn out explanation for what they were charged, why, and for what they were not charged, and how you were giving them a break on things for which you could have charged them. In the first place, you are NOT required by law to respond to a tenant's security deposit dispute, and secondly, if you feel your charges were legitimate, have good documentation including your inspection reports and photos, and followed all the correct procedures required by law, you can simply respond to the former tenant in writing with a short statement such as, "We have reviewed your file, the inspection reports, photos and documentation, and all charges stand". If you do have problems with your proof that the former tenant owes you money, you don't have pictures or have some weakness in the documentation, you may want to call your attorney and see if you can settle.
Dealing with dueling tenants
Have you ever seen two units at war with each other, or had complaints by one against the other for noise? Sometimes you want to take sides with one or the other. You receive incessant complaints by one tenant, saying the other is making too much noise. You feel that the complaints are unwarranted, or the complainer is hearing things or making a big deal about nothing. Your response may be, "There is nothing we can do, as we have not witnessed the noise", but rather should be, "As soon as you hear the excessive noise, call us immediately so we can listen ourselves."
You should have gotten "Renter's Insurance"
This is a classic response the manager makes to the tenant when the tenant comes in demanding $250 for the dry cleaning bill due to the pipe break in the ceiling above their closet. The manager feels that the apartment community is not liable for the damages, BUT are they? Just because the lease states that you are not responsible for damages to a tenant's personal property, a judge may find that you are and ignore the clause in your lease. The next time a tenant complains about damages to their personal property, tell them, "Sit down and fill out this Incident Report, and we will take it to the regional manager or owner". Telling the tenant right off the bat that they should have purchased renter's insurance is a sure way to see a $250 demand magically inflate to a $2500 demand when the infuriated tenant goes to an attorney.
Implying you will give the tenant an extension to pay rent
Your tenant comes into the office and tells the leasing agent that he will be in next Monday with the rent check. However, the rent is due today. Your leasing agent then simply says, "OK". Four days later you file an eviction, and the tenant defends the case, saying he was "told" by the leasing agent that it would be okay to pay the rent on the Monday. Could this be a good defense? It certainly complicates matters. Always tell your employees to NEVER discuss extensions or rent payment arrangements with the tenant, as an inference can be drawn that could end with you losing an eviction.
Telling a tenant to "pay what they can when they can".
In these troubled times, partial payments are being accepted at a much higher rate. If you are not specific or have written policies that you follow when accepting partial payments, you could end up with a tenant continually bringing in small rent payments. This can create a waiver situation and cause you to lose an eviction. If you decide to take partial payments, you will have to live with the potential consequences.
Telling a tenant the repair will be made when the rent is paid
The tenant is delinquent and owes 2 months' rent. He calls you up demanding that his a/c be fixed. Your response? "Pay the rent, and then we will fix the a/c". This response will almost assuredly give the tenant a defense to an eviction action, and frequently will turn the judge against the owner in the process. The fact that the tenant owes you money has NOTHING to do with your responsibility to maintain the premises.
Telling the tenant the owner is in financial distress
The property owner may be in financial distress, and this is why certain things just are not being maintained properly; a/c units are being fixed rather than replaced, or cosmetic things are not being handled like before. It may be true that the owner is in financial distress, BUT the tenant does not need to have this information. When the tenant asks you why something is being repaired rather than replaced, never respond by revealing the owner's financial condition.
Telling the tenant why they are being non-renewed
You have no legal duty in conventional housing to tell a tenant why he is being non-renewed. If you decide to discuss your decision, it will just result in the tenant trying to defend himself or argue with you about the facts. A good response would be, "Just like you have the ability to non-renew your lease at the end of the lease term, we also have the ability to nonrenew your lease at the end of the lease term."
There are too many situations to describe when a tenant will tell you something, and you will respond. It is what we do; it is human nature. Try as hard as you can to avoid the sudden or improper response. Hold off on an answer or response, be it verbal or written. Get to the phone or computer immediately, and ask your attorney how you should respond, and what you should say in the response.
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COA/HOA and Service/Amenity removals
by Harry A. Heist, Attorney at Law
The economic downturn has not only hit the owners of units in condo and homeowner associations, but has hit the associations themselves. Typically, a condo or homeowner association, for the purposes of this article, "association," charges dues and assessments to the members who are the unit owners. These charges are sometimes due monthly, or more commonly, quarterly, and are used to pay for those services or amenities that the particular association has decided are included for the owner. Depending upon the set up, the fee may be fairly low, and just pay for the lawn service, or the fee can be much higher and cover all kinds of amenities, utilities and maintenance of the units, roofs, streetlights, streets or buildings. What the fee covers is all set out in the association documents which govern the duties and responsibilities of the association and the cost to the unit owners. When the unit is rented to a tenant, the tenant does not pay this separately, but it is built into the rental rate, and the unit owner remits the payment of the association dues or assessments when due. Historically, this has been the norm, and for many years, the same amenities, maintenance and utilities were included in the fee. Each year they would invariably rise some, due to inflation, special assessments or general price increases of goods and services. The owner would then raise the rent accordingly and hopefully be able to recoup the additional amount due through increased rent. Most of the units in the association were owned by people who diligently paid their mortgage each month, taxes each year and association dues and assessments.
You probably already know what the problem is, but let's lay it out. Many units are now in or near foreclosure, the taxes are not being paid, the unit owners are walking away from their investment, and the association is not able to collect these dues or assessments. While the units can have liens placed on them by the association, often the bank ends up foreclosing on the units, leaving a shortfall in collections to the association. Now who is going to pay for the guard at the gate, the pool maintenance, the community director, the included cable TV, the included internet, the included water, the lawn cutting, the roof replacements, the exterior of the buildings, the roads within the complex, the insurance for the association, the management company fees and all the other costs usually paid for by the association?
The Tough Decision
Faced with this daunting problem the board of directors of the associations and the unit owners are now being forced to make tough, hard choices. They can either choose to raise the association dues or assessments OR eliminate some services and slash expenses. Possibly the guard at the gate can no longer be afforded, the pool hours may be cut, the unit owners will now be responsible for hiring and paying for their own lawn service, the community center's hours will be cut, the pool will no longer be heated, the bus trips to the mall stopped, the cable TV or internet will no longer be included, and the unit owners now must pay for their own water bill. While unheard of in the past, it is happening all the time out of sheer necessity, and is perfectly legal for the association to take such drastic actions. After all, the unit owners are all in this together and have to take the good with the bad. That is the nature of living in a unit governed by an association. By now, you may or may not be wondering what this may have to do with the rented unit. It has a LOT to do with the rented unit, as the lease agreement never anticipated any of this happening, and the lease agreement is between the tenant and the unit owner. If the owner now has to pay for these formerly included services, how can the cost be passed onto the tenant DURING the tenancy? Can you just inform the tenants that things have changed, and now they have to pay for their owner cable bill or internet is no longer provided?
The lease agreement clearly states what the tenant is receiving and who pays for it. Even beyond the lease, the tenant has an expectation that things will not change for him in terms of services or amenities being provided to them. Traditionally the tenant pays for electricity. This is almost always a given in an annual rental. In submetered or separately/city metered associations, the water is also paid for by the tenant. If the association provided lawn service, this is included in the dues that the owner pays. Quite often, the cable and internet is included as well as part of a master contract the association has with the provider. What happens though, when now you have to tell the tenant that cable and internet is no longer provided by the association, or water is no longer included in the rent? The bottom line is that the tenant does not have to pay for anything unless the lease clearly states this. If the lease states that the tenant is being provided these services or amenities, the tenant must be provided the services and CANNOT be forced to pay. Now the owner is furious. The OWNER must now pay for the cable, the internet, the lawn, the water or anything else that the tenant was not required to pay for in the lease agreement. To complicate matters even worse, a tenant may try to say that she rented the unit because it had a guard at the gate, or because the pool was heated, or because the community center was open late in the evening. Can the tenant break the lease now, as she is now not getting what she expected or bargained for when she made the deal, signed the lease and moved in? Can the owner afford to pay for these services now? It is bad enough that the owner was losing money each month on the rental, as the rent did not come near to covering the insurance, taxes and association dues and assessments. Now the owner is faced with an even greater hit that may put that owner into foreclosure, and the snowball just keeps rolling done the hill.
The Partial Solution
If the above situation occurs to you, most likely you will be the property manager and must tell the owner the bad news that the tenant cannot be forced to pay the additional sums due, AND the owner may have to now provide the internet, cable, water, etc. that was formerly all included in the rent, adding to the monthly expenses of the owner. This is not going to go over well, but has to be done. If the owner refuses to pay the additional sums needed to not be in breach of the lease agreement with the tenant, the tenant may withhold rent or simply walk out on the lease. While there is not much you can do with a current lease, if a lease is renewing or you are going to enter into a new lease with the current or new tenant, there is wording which can be placed in the lease agreement which could address the situation and help to protect the owner's financial interest. Here is some sample wording you may want in your new leases:
In the event a condominium association or homeowner's association is currently providing any services to the unit such as cable, satellite TV, alarm monitoring, internet, water, sewer, trash, guarded security gate or other services, and the association decides these services will no longer be provided, Tenant agrees and understands that Landlord and/or Agent shall not be required to replace, provide or pay for these removed services for Tenant. Tenant may opt to pay for non-essential services, but shall be required to pay for essential services including but not limited to water, sewer and trash, if the association no longer provides these services. The discontinuation of any such services by the association shall not be construed as a prohibited practice by Landlord or Agent, nor shall it constitute a default under the lease. The failure of Tenant to retain and pay for essential services upon notice and demand by the Landlord or Agent shall constitute a material breach of the lease.
Think about whether you may want such a clause in your lease agreement if you feel a COA or HOA may be in financial distress. Knowing the health of the COA or HOA is crucial to avoiding problems later, after the tenant has moved in.
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Evictions and the Mediation Process
by Brian P. Wolk, Attorney at Law
Often a landlord or property manager will be ordered to attend mediation in an eviction action. Depending on the complexity of the case, the mediation could last anywhere from minutes to hours, although most will take 30-60 minutes to complete. On some occasions the mediation will be scheduled so that a court hearing will take place on the same day in the event that the mediation is unsuccessful. Usually the mediation will take place in a room located in the courthouse. Please keep in mind that if you have been ORDERED to attend the mediation by the judge in your case, then you MUST attend. If you fail to attend, the judge may and likely will enter a default against you. You should NOT treat this as a voluntary process.
The basics of the mediation
Mediation is a process in which a person who does not have an interest in the outcome of the case, the mediator, attempts to promote understanding between the parties to a lawsuit. The ultimate goal of the mediator is for the landlord/property manager and tenant to resolve their differences by reaching a settlement. The mediator has no power to force the parties to settle. In most Florida Counties there is no charge for an eviction-related court ordered mediation, if the County Court has jurisdiction in the case. For cases which are filed in Circuit Court, a fee may apply. Some counties pay their mediators, while others only use volunteers. Most mediators are not landlord/tenant attorneys. In fact, most are not lawyers! Some mediators may have little or no experience in property management matters. You should keep that in mind, so you are not frustrated at the mediation. Being disrespectful towards a mediator can only lead to trouble for you, as you want the mediator to persuade your opponents that their case is weak. If you do not treat the mediator in a dignified manner, they may reverse the tables on you and go out of their way to portray to the other parties that your case is weak.
Why you have been sent to mediation
Judges typically order parties to mediation for a number of reasons. First, if the tenants' answer to your lawsuit raises some issues, then your case may be a candidate for mediation. Next, most judges have a very full schedule of cases and would prefer to avoid placing a trial or hearing on their docket without encouraging the parties to settle their outstanding disputes. Finally, you have been sent to mediation, because they WORK. More often than not, the mediation process does encourage settlement. Some judges may require the tenants to place fully accrued rent money in the court registry as a condition of mediation. Other judges may require that some money be deposited, and some judges may ignore this requirement.
Benefits of the mediation
For many landlords or property managers, the thought of losing a lawsuit can be quite stressful. A loss in court can mean long delays before your problem tenant is removed, wasted legal fees and perhaps responsibility to pay the tenants' attorney's fees. Additional time spent in court also prevents the landlord or property manager from devoting valuable time to his or her property. Energies that could be directed towards other aspects of the real estate business, marketing for example, instead must be used to deal with the problem tenants. It is also comforting to know that if you settle your case, then you have retained greater control of your destiny, eliminating the uncertainty of a judicial determination. Once you leave the outcome of your case in the hands of the judge, then only one thing is almost CERTAIN: there will be a LOSER and a winner. It is usually all or nothing! It is very hard to get inside the mind of a judge, and different judges may give very different rulings when presented with essentially the same set of facts. In fairness to judges, they often do not have the authority to "split the baby" and make all parties feel good. Going to court is always a gamble, even when both the facts and law appear to be in your favor. With the proper attorney representing you, the odds should be even more in your favor, but there is ALWAYS the possibility that you may NOT win your case. Mediation can also be used to effectively keep the landlord or property manager's accounts receivables in line. For example, during a tenant eviction, if the tenants place money in the court registry, you can obtain that money faster by settling, if the tenants agree to turn that money over to you. Waiting until a hearing is scheduled if the mediation is unsuccessful can cause the landlord or property manager to wait weeks until the registry money can be obtained, and this assumes the judge's ultimate ruling will be favorable regarding a disbursement to the landlord. Also, while your tenants who are under eviction are living in the premises, the rental delinquency amount continues to rise, which could cause a very ugly accounts receivables report. If you manage to work things out at mediation such that your tenants agree to move out, then you can turn your attention to finding a paying tenant instead of a waiting for a trial or hearing. Finally, if your mediation is successful, you can have "PEACE OF MIND" that your case has been resolved, and that you can move on! It cannot be overstated how stressful ongoing, contentious litigation can be, and the toll certain cases can take on one's ability to enjoy life.
Action to be taken before the mediation
It is very important to have all of your "ducks in a row" prior to your scheduled mediation. First, make sure that you are very familiar with not only your version of the dispute, but the argument made by your opponent. If it is an eviction matter which is being litigated then the landlord or property manager should bring copies of the payment ledger, lease and Three Day Notice. You should review the tenants' answer or motion sent to the court, so that you can persuade the mediator of your position and downplay the merits of your opponent's position. Also, by reviewing the tenants' response with your attorney, you are less likely to get caught off guard at the mediation by last minute surprises. For example, If the landlord or property manager accidentally accepted payment from the tenants after the eviction complaint was filed in court, and the tenants noted this in their written response to the court, then you would likely be wasting your time at the mediation, since you would probably lose your case under Florida law because of a waiver problem. Maybe you did not accept payment in the above example, but somebody else in your office held on to the check for 3 weeks before sending it back to the tenants placed under eviction. If the information contained within the tenants' answer turns out to be true, you may be willing to compromise more in the mediation process, since the odds of losing at trial have just increased. Make sure you know the exact location of the room number and full address of the location of the mediation. DO NOT BE LATE! Remember, if you do not appear, the judge assigned to your case may treat your non-appearance as a default and DISMISS your case. Be clear on what your settlement authority is.
The mechanics of the mediation
At the start of the mediation, the mediator will introduce himself. The party that filed the lawsuit (the plaintiff) will then be invited to verbally lay out their case. The defendant will then be given a chance to respond. After that, the mediator will likely ask both the property manager and the tenants questions, so that they can determine the strength and weaknesses of the lawsuits. DO NOT INTERRUPT the tenants or mediator when they speak. You will come across as overly emotional, and it is very disrespectful to the mediator and the process. Next, the mediator may want to caucus. This simply means that the mediator will speak in private with each party and attempt to move them closer to settlement. Now you will better understand why being prepared and respectful towards the mediator is vital to your success. It is very often at the caucus stage that the mediator will make their strongest presentation to the tenant as to why the tenant should settle, if the mediator believes that your case is strong. Having the mediator do this has a very profound psychological effect on the tenants. In fact, since the tenants understand that the mediator is unbiased, it can be devastating for them to hear that they will likely lose their case. It is a very useful strategy to utilize the "caucus". If you see that progress is not being made at your mediation, it may be wise to suggest to the mediator that he or she caucus with the tenants, if you sincerely feel that you have a strong case. Another useful strategy to keep in mind, especially if you are in a mediation regarding an eviction, is to remind the tenants that by settling the case prior to a potential final judgment, the tenants can protect their rental history from reflecting a final judgment. Having a final judgment of eviction on their rental history can make it extremely difficult for the tenants to rent elsewhere. If you and the tenants cannot come to a settlement over the amount owed, then another useful tactic is to try and convince the tenants to turn in keys and VACATE, especially, if you can lease the property sooner than later. Finally, if you can reach a settlement, the mediator will have the parties sign a legally binding document, and then the judge may approve the agreement in private, or call the parties into court to verify that they understand the terms of the settlement. If monies are to be paid to you by the tenants as reflected in the agreement, then you should request that the payments be made in money orders or cashier's checks, and the settlement agreement can reflect that condition. The agreement should also state that the landlord or property manager is entitled to a final judgment of eviction should the tenants fail to meet any of their obligations listed in the settlement agreement. One final word: the types of stipulation forms used at mediation can be provided by our firm prior to the mediation date. If the case can be settled at mediation, it can often be settled prior to mediation. This can really cut down on time spent away from the office and additional expenses, when all tenants who signed the lease sign a stipulation in the comfort of your own office, early in the eviction process.
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