- Lease Cancellations by the Resident
- Guarantors and Renewals
- Roommate Disputes and the Property Manager
- A Year End Review




Lease Cancellations by the Resident
By Michael Geo. F. Davis, Attorney at Law


Given the huge amount of information that we are bombarded with, it's amazing that we can keep as many things factually correct as we do. It's not surprising that the three-day lease cancellation myth has become established in so many residents' minds. While Florida law does not provide a cancellation period, the careless landlord may provide the applicant with the ability to cancel the lease by failing to deliver the lease.

Rescission is the correct term

Technically, the legal term is "rescission". A rescission is the unmaking of a contract. There is no contract. It is a nullity. A cancellation is the abandonment or repeal of a contract. Since the common usage is "cancellation", I will use it in this article.

No three-day cancellation period

There is no three-day cancellation period for residential leases in Florida. It doesn't matter whether the lease is for only one month's duration or for a period of years, or for any term in between. It doesn't matter what the monthly rent is or how it is payable. It doesn't matter if it's a single-family home, a duplex, a condominium or an apartment. It doesn't matter if the property is in the city or outside city limits. It doesn't matter. It can't be cancelled within three days. Although there is no right to cancel residential leases, there is a right of cancellation that applies to certain other types of contracts, for example door to door sales or home equity mortgages. This is what probably led to its mistaken application to leases.

Giving the resident a copy of the lease

We recommend personally giving a copy of the completely executed lease to the resident as soon as the landlord or his agent signs the lease. This prevents any dispute as to whether the resident knows that there is a binding lease in effect. If the landlord cannot give the lease to the resident personally, then other possible methods are an email attachment with a delivery receipt, fax with a delivery confirmation or a certified letter to track the receipt.

Bad landlord practices

It is an all too common landlord practice to hold the resident's copy of the lease until move-in. A landlord does this at her own risk. Another frequent landlord excuse is that a copy of the lease was available for the resident to pick up or that the resident didn't keep his appointment to pick up the copy. Judges are unimpressed with these excuses. That being said, a resident cannot intentionally frustrate delivery of the lease by such actions as refusing certified mail.

Partial performance

If the landlord has forgotten to give the resident a copy of the lease, but the landlord and resident are performing under the lease, can the resident cancel? The resident's performance may include, for example, accepting the keys, obtaining utilities in his name, moving in some personal items, or actually occupying the premises. The landlord's performance may include complying with the resident's preparation requests (using paint of a requested color, installing new appliances, etc.) or actually giving possession. Resident cancellations after partial performance by either the resident or landlord are legally problematic. Partial performance of a lease may make the lease binding. The more extensive the performance by the resident or the landlord in reliance upon the lease, the less available the right of cancellation is to either the landlord or the resident. The landlord should consult her attorney for advice in such situations. (Note that partial performance applies to an unsigned lease also, but with significant differences not discussed here.)

I caution that it is dangerous to rely on partial performance, as it may not save the landlord's entire lease. A landlord may be found entitled to only her out-of-pocket expenses as damages. "Out-of-pocket" expenses are her actual cash outlays, such as the costs to turn the apartment again, to re-advertise it, etc., as opposed to her "statutory or contract damages", such as rent to relet under Florida statutes or liquidated damages under an early termination addendum.

So much work is involved in guiding an applicant through the rental process to the signing of the lease; it is a shame to see it fail at the finish line. The final important step is the delivery of a copy of the completely executed lease.


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Time for a Year End Review
by Harry A. Heist, Attorney at Law


There is probably no person who sees more legal mistakes than your own attorney. Your attorney sees your lease, your notices, your procedures, is asked questions by management, fixes your problems, fights for you against other lawyers or residents, gets you out of messes, has to train new managers, goes to court with you: the list goes on and on. Very few companies have in-house attorneys, and even when they do, that in-house attorney is often out of state, and it is almost impossible for him or her to know all the laws or intricacies of Florida property management law. Often policies or procedures are set by the home offices, notices are sent out to the field, or leases are modified by companies to make a one size fits all lease and set of procedures for their properties all throughout the country. The time is now for companies large and small to evaluate their forms, notices, procedures and policies, or face potential lawsuits or time and money wasting disputes that could have been easily avoided. While we may have no control over the overall economy, there are steps we can and must take, sooner rather than later. We have all violated traffic laws, exceeded the speed limit or rolled through that right on red and have done so for years, rarely getting caught. Fortunately we are not followed all day long by the police watching our every move. The truth though, is that over 87,000 attorneys are members of the Florida Bar, and many are concentrating on consumer law and looking closely at industry practices. Just because you did not have a problem in the past does not mean you will not be hit by a class action lawsuit or some expensive litigation by a current or former resident.

The Lease Agreement

There are literally thousands of different lease agreements in use in Florida. Some are blatantly defective; others have subtle problems that slip under the radar. When your attorney brings something to the attention of a management company, it seems to take an eternity for that management company to make the necessary lease change, and often the advice of the attorney is ignored. While a judge may evict a resident who has signed the lease, this does not mean the lease is 100% legal. It simply means that the problematic issue was not a part of the eviction action. On top of using a defective lease, managers often forget to have all the residents on the lease sign the lease agreement or forget to give the residents a copy of the executed lease, resulting in problems later: simple, avoidable issues. We constantly see leases which do not have the updated Abandoned Property Clause which facilitates the manager getting possession of the unit in the event of a resident's death. Without this simple clause, the unit may be tied up fro many months, and significant amounts of money must be expended to gain possession of the unit.

a. Late Charges - Unlike some states, Florida law does not have any specific rules or statutes on how much a late charge can be assessed to a delinquent resident. It seems that late charges are being looked upon as more of a revenue generator by many management companies, and we see late charges being piled upon late charges and small past due balances. At what point do these late charges become so excessive that a judge or jury will decide they are illegal? With the increase in acceptance of partial rent payments, residents are increasingly being hit with accumulating late charges that may be deemed excessive. How does this occur? The software simply keeps piling on the late charges.

b. Charges not considered rent.- Almost every property manager knows that you can only put "rent" on a Three Day Notice. If a particular charge such as a utility bill, water, cable, electric, etc. is not defined as "rent' in the lease or an addendum to the lease, it cannot be put on the Three Day Notice. If it is put on the Three Day Notice, the notice is defective, and the manager must either redo the notice or take a gamble that the judge will not rule adversely because of the defect. We see many companies that submeter their units, use a submetering addendum and fail to address the water bill as "rent" in the lease or utility addendum. Why did this happen? The manager used a submetering addendum from the submetering company or from another property in another state. An easy problem to fix, but often it is ignored until you lose a case in court and have to pay the resident's attorney $3000.00.

c. Fictitious Names - The majority of apartment communities operate under a fictitious name. The name of the property is Mountain View Apartments, but it is owned by the XYZ Limited Partnership. This makes Mountain View Apartments a fictitious name. Is this illegal? Of course not, BUT if the fictitious name is not registered with the Secretary of State, the apartment community cannot technically maintain a legal action against someone and is not operating legally in Florida. Yes, that means the apartment cannot file an eviction legally unless they register the fictitious name. How is that problem solved? Simply go to sunbiz.org and register. It is that easy. Is your property registered? Check it right now.

d. Termination Fees and Penalties

So many management companies and owners have forgotten about the Circuit Court case in 2003 which ended up costing property management companies and owner millions of dollars, because the judge held that certain termination fees and penalties were illegal. Why are these fees and penalties popping up again in the leases? Management companies and owners are just waiting for the next round of lawsuits which could result in millions of dollars of losses. How to solve the problem? Remove them from the lease immediately, and examine any new leases that your company may decide to use. That great idea by the corporate attorney in Texas might be completely illegal in Florida. Special statutes and procedures now apply regarding liquidated damages and early termination fees, and if they are not followed properly can open you up to litigation.

Security Deposits

We can never forget that the security deposit belongs to the resident until such time as it is taken from the resident through the proper use of the Notice of Intention to Impose Claim on Security Deposit. The property manager has 30 days to do this when the resident vacates, and often waits until the last minute or forgets altogether. Many residents know the law, and the manager is faced with having to return the security deposit in full and not being able to deduct for damages because the time slipped by. We have written many articles on Security Deposits, just read them! When making the claim, the manager needs to understand that there are only some things for which they can charge the resident, and the manager needs proof. Where's the proof? Do you have pictures? Videos? Proper Move-in and Move-out inspection forms? We have seen cases drag on for years due to poor documentation by the property manager, and it is all completely unnecessary. Some managers have decided that spending over $5.00 to send the Notice out is too much and are using regular first class mail. This violates Florida law.

Crimes and Safety

Could your company be held liable for crimes committed by third parties on your property? You bet. If you have not taken reasonable steps to make your property safe or remove dangerous conditions, a jury could hold that you are indeed liable. We urge you to screen your residents carefully and look into the Multi Family Crime Free Programs that are available to you at no charge. A safe property is not only beneficial to you and your resident, but is crucial for resident retention.


Education and knowledge is the key to success in property management. Where do you get the information you need? Our legal articles are certainly a start. As of this writing, there are over 200 legal articles on our website which should be mandatory reading for every property manager. Apartment associations and property management associations all throughout Florida put on hundreds of education programs each year to help you stay out of trouble and hopefully become profitable. Too busy to go to the classes? Miss them at your own peril. Nothing is more amazing to us than to see an industry that places property managers, assistant managers or leasing agents on a property worth millions of dollars with no prior training. It is indeed scary, and we see the results of this every day. Want to find some associations? Click Here

Getting Involved

What can you do right now to get on the proper path? Join your local apartment association or property manager's association, and become active. Don't just go to the lunch or dinner meetings; join a committee, go to the education classes, get on the board, go to the conventions, get your certifications and designations, and get involved. Speak to your regional managers if you see your company going astray. Remember your regional manager may be dealing with completely different, big issues, and they rely on YOU to keep them informed. Will 2010 be much different than 2009? Probably not, but YOU can be different and set yourself apart from the rest and be the absolute best you can be in your profession. It is in your hands, and the resources are at your fingertips. Best of success in 2010 and beyond.


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Roommate Disputes and the Property Manager
by Harry A. Heist, Attorney at Law


More often than ever before, residents are having roommates move into their rental houses or apartments for a myriad of reasons, the most common being to help with expenses and contribute to the rent. More residents are taking in roommates that they do not know very well through the use of classified services, roommate services or referrals from friends. Sometimes it works out for them; sometimes it becomes the nightmare roommate situation. Many landlords really are not too concerned about who is living in a unit these days if the rent is flowing in and there are no complaints by neighbors or police, so even if the landlord becomes aware of the roommate, they will generally ignore the situation. In conventional housing when most often there are no restrictions on occupancy or number of unrelated persons in a unit, one additional roommate does not pose a problem legally. In tax credit properties, subsidized properties or in units where the resident is receiving state or federal funds, the mere presence of the roommate residing on the premises could result in the landlord and the resident being out of compliance with the laws governing the tax credits or subsidies, and cause a serious risk to the landlord's business, or the resident could end up losing her subsidy, resulting in the landlord not receiving the subsidy payment. In these cases, it is crucial that the landlord takes action immediately to have the resident have the roommate removed from the premises or the resident on the lease evicted. This article will deal with a different situation, that being the case when the resident comes to you asking you to help remove the roommate for them.

The scenario

Your resident comes to you at her wit's end. She tells you that she took in a roommate and the roommate is causing her serious problems. These problems may include drug use, alcohol, parties, things disappearing, unruly guests, or possibly the roommate simply is not paying his share of the rent. The resident wants the roommate out, but the roommate simply refuses to leave. In some cases the situation is so bad, the resident has had to move out temporarily, as she is being terrorized by the roommate, and now sheepishly is asking you, the landlord, to get the roommate out. Your resident has called the police, and the police told her, "It is a civil matter," and to consult an attorney. You may or may not have known of the roommate, but now you know for sure and are being pulled into a mess that was created by the resident taking in the unauthorized roommate.

The Request and the Problem.

Your resident is now asking you, the landlord, to remove a person with whom you have no legal relationship. She may ask you to "evict" the roommate, thinking that somehow you have to power to do so, being that you are indeed the landlord. The fact that you have no legal relationship with the roommate will make it impossible to remove the roommate alone. You cannot file an eviction against that roommate. Rather, the resident must, as she has the legal or quasi- legal relationship with the roommate, and most likely it was not in writing. If there was indeed a lease between the roommate and the resident in writing, the resident has become the "landlord", and although she may be illegally subletting the unit, the resident would need to file an eviction against the roommate as the landlord. It is rare that residents have any written agreements in place with acquired roommates.

The initial reaction

Your initial reaction may be to tell the resident that it is her problem, and she has to deal with it, and you would be mostly correct. Your resident caused this problem by taking in the roommate, and your resident needs to deal with it. The larger problem is that your resident is telling you that if she cannot get the roommate out, the resident will have to vacate. This will leave you with a person in your unit who has not signed a lease, and with whom you have no legal relationship. If you were to call the police, they would give you the same response, which would be, "It is a civil matter; you need to hire an attorney".

Feeling sorry for the resident

Since you have been getting your rent on time, and let's face it, you are a bit desperate and do not want a vacancy, you may be tempted to feel sorry for your resident because of this roommate problem. Stop right there. Your resident violated the terms and conditions of the lease by taking in this roommate. This roommate is an unauthorized occupant, plain and simple. Your resident has and is violating YOUR lease. The roommate may even be a sexual offender or predator who would in no way have passed your criminal background check, thus causing liability to you or your company and possible danger to other residents or their guests.

Moving the Resident

One request that may come from your resident is for you to move her into another unit on your property. That seems like a simple way to help out your resident and solve your resident's problem. Just move her to another unit. That's great. Now you have your resident who violated her lease in one unit and the roommate in another unit. Never even think about doing this.

Actions to Take

1. Action by Resident: If your resident is having serious problems with the roommate that rise to the level of criminal activity, the roommate has injured or threatened to injure the resident, or the resident is in fear of her life, the resident should immediately go to the county courthouse and see if she can obtain a restraining order against the roommate or a temporary injunction against the roommate, which may require the roommate to vacate. Each county courthouse has a department dedicated solely to injunctions and restraining orders. If the problem is severe enough, the roommate may be required to immediately vacate by force of law, and if he returns, could end up being arrested. Residents routinely are able to get retraining orders and injunctions against one another, essentially kicking one resident out of the unit, and the courts generally do not care whether one or both are actually on the lease agreement. This is an option for your resident, but you should not advise the resident beyond the suggestion of pursuing this option.

2. Action by Property Manager

Your resident has an unauthorized occupant residing on the premises in violation of the terms of your lease. Your resident needs to be served a Seven Day Notice of Noncompliance With Opportunity to Cure immediately stating the following:

"You are in violation of the terms and conditions of your lease agreement due to having an unauthorized occupant residing on the premises. This occupant must be removed."

Serve this notice and refuse any more rent unless you know for a fact the roommate has vacated, and possibly get something in writing from the resident stating that she has removed the unauthorized occupant.

The roommate fails to vacate

If the roommate fails to vacate and your Seven Day Notice of Noncompliance with Opportunity to Cure has expired, you will then serve a Seven Day Notice of Noncompliance Notice of Termination, and upon expiration of that notice, your attorney will file an eviction. Proving the roommate is still there is often difficult, and your attorney will help you decide if you have a strong enough case. Your attorney will file an eviction against your resident. Your resident and the roommate will need to be evicted. There is no choice. We have seen some situations in which the landlord and the resident make a deal under which the resident will not fight the eviction, allow herself to get evicted, and the landlord allows the former, now evicted resident to move back in. Big mistake. The roommate may reappear, and the problem starts all over again. Additionally, who paid for the eviction?

Some final words

In tough economic times, the temptation to "help out a resident" so as to not lose the resident can have disastrous results. Do not make someone else's problem that she herself caused become your problem that can be costly for you to solve. A resident who gets an unauthorized roommate is a lease violator and should be treated as such.


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Guarantors and Renewals
by Brian P. Wolk, Attorney at Law


In these tough economic times, landlords and property managers have a vested interest in working together during the application approval process. As occupancy rates decrease, and the pool of applicants with strong credit histories shrinks, creative leasing tools must be utilized by landlords and property managers. One such tool is allowing the applicant to obtain a guarantor in order to pass the lease approval process. It is usually cut and dry that the guarantor of an initial lease term can be held responsible for the rent during the term of the lease. However, as you will see, the law may not be on the side of the landlord who is attempting to enforce a guarantee agreement for any lease extension or renewal term.

What are guarantee agreements?

The typical guarantee agreement involves somebody who agrees to be responsible for the financial obligations of a resident, including the rent as provided under the lease. This person is known as the guarantor. The guarantor is usually not listed on the lease as the resident or occupant of the apartment. Often, but not always, the guarantor is a close relative such as a parent or uncle. If the resident fails to pay rent, the landlord has recourse against the guarantor and can recover money damages owed to the landlord by the resident.

Are guarantee agreements enforceable?

Florida courts enforce guarantee agreements if the document is worded correctly. While the promise of one person to meet the financial obligations of another is allowed in Florida, the agreement must be in writing according to Sec 725.01 of the Florida Statutes. Therefore, never believe that an oral guarantee agreement will be enforced by a judge, because it will not!

How should the guarantee agreement be worded

Be very specific. Courts attempt to look at what the intentions of the parties were at the time of entering in to the contract or agreement. Since it is usually the landlord that has drafted the agreement, any ambiguity in regards to the terms of the guarantee will be construed against the landlord. What does that mean? If the terms of the agreement are vague enough that there could be multiple meanings, then the resident will "get the benefit of the doubt," and the court will likely enforce the resident's belief as to the meaning of the disputed term. Among other things, you should list the names of the parties, reference the lease that the guarantee applies to, and of course the guarantee agreement should spell out in detailed fashion the obligations for which the guarantor will be responsible.

The lease renewal scenario

Bob moved to your apartment community ten years ago from Kansas in order to attend college. Bob, like most college students, was short on cash at the time. Based on his situation, he was advised that he needed to obtain a guarantor in order to have his rental application approved. Lucky for Bob, Uncle Jeb agreed to be the guarantor. As it turns out, Bob was timely in making all of his rental payments for the first nine years and ten months of his tenancy. Bob failed to make his final two rent payments and hopped on a plane for Jakarta, Indonesia, never to be heard from again! You decide to go after Uncle Jeb for the balance of the rent owed by Bob. Uncle Jeb is upset and does not believe that he should be held responsible for nine renewal terms, and claims he should have been notified of each renewal transaction. Your regional manager receives an email from Uncle Jeb's attorney threatening legal action.

Is Uncle Jeb responsible under the guarantee agreement for the lease renewal term?

The answer to the above question will depend on how the guarantee agreement was worded. Under Florida law, a guarantee for a lease can be continuing, but it mustexpressly state that it is intended to cover future transactions for the guarantor to be liable for extensions and renewals. The terms should contemplate a future course of dealing during an indefinite period. If the above conditions are met, the landlord would not have a legal duty to notify the guarantor of each transaction between the landlord and resident, provided that the particular transactions fall within the description of the terms of the guarantee agreement. Therefore, if there is no mention of the lease renewal in the guarantee agreement, then Uncle Jeb would not have liability in the above fact pattern, because the agreement did not expressly state that he would be responsible for the renewal terms."

Is Uncle Jeb financially responsible if the lease guarantee agreement specifies that it applies to lease renewals?

As a general rule, if the renewal period mirrors the lease term in every manner, then the guarantee would be enforceable against the guarantor, if the agreement specified that the agreement applied to renewal terms. However, if the renewal lease contains different provisions other than the original lease term, a court may not enforce the guarantee agreement. For example, if the rent has been increased during the renewal term, the court may possibly hold that the lease is not a true "renewal lease", because not all of the terms were "renewed". Instead the court may treat the "renewal" lease as a new lease, thereby extinguishing the obligations of the guarantor. The court may refuse to enforce the guarantee agreement in that situation, on the premise that the guarantor never intended to be liable for the higher rent amount. It is possible that a court may enforce the guarantee, if the terms expressly state that the guarantor will remain responsible for any changes, renewals or amendments to the lease that would increase the guarantor's risk, such as rental increases.

The main point is that courts really prefer to err on the side of caution if the terms of a guarantee agreement are ambiguous and are reluctant to hold the guarantor liable.

What do we recommend?

Our firm's recommendation is both very practical and very simple!

You should update each guarantee agreement for each renewal or lease extension period. Have the guarantor sign again, so that it is clear as to exactly what his financial obligations are to you.

If you really are banking on the guarantor to pay you, it would be risky to leave it in the hands of the courts, when you have the ability to firm up your guarantee agreement by updating it each renewal or lease extension period.


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revised 12/17

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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