VOLUME 7 - ISSUE 4 LEGAL UPDATE

- COMPLYING WITH THE TRUSS MARKING RULE
- FIGHTING CRIME AT YOUR PROPERTY
- THE CENSUS AND THE LANDLORD

 

 

 

The Census and the Landlord
By Michael Geo. F. Davis, Attorney at Law

 

The 2010 Census is upon us. It is the legally mandated counting of people in the United States and its territories. It fulfills an important constitutional purpose. While each state has two Senators to represent it in the United States Senate, the number of Representatives in the United States House of Representatives is based upon the population of the state: the greater the population, the greater the number of Representatives. The power of any state to advance its legislative agenda and to secure benefits for its citizens increases with the number of Representatives which it has. In addition, the census is the basis for distribution of many government benefits and programs for schools, hospitals, transportation, and most importantly to landlords, housing. It is particularly important for Florida, whose population has increased since the last census, to get every person counted.

National Census Day

April 1, 2010 is National Census Day "“ the day on which the "count" is fixed. April 1st is the relevant day, whether the questionnaire is completed or the census worker visits before or after April 1st. Census takers are more properly called "enumerators". During March of 2010, questionnaires were mailed to residences to be returned in April. From April through July, enumerators will visit homes that did not return the questionnaires. In an accommodation to America's multi-lingual nature, enumerators will carry cards in numerous languages. The cards will inform non-English speaking interviewees that they should tell the enumerators their language, and the Census Bureau will follow up with someone speaking their language. If the resident is not home at the time of the enumerator's visit, the enumerator will leave a notice of visit on the resident's door. The resident can use the contact information to arrange a convenient time for the re-visit. The personal interviews take less than half an hour.

Legally mandated

The census is "legally mandated". Enumerators have the legal right to have access to individual homes and multi-family properties to collect census information. Enumerators may have to return several times to collect the information. Various other census workers may seek access to the residents for census related operations, such as non-response follow-up re-interviews (quality check of an enumerator's prior interview), census coverage follow-up (check possible double counting or clarify responses to prior questions), and field verification of mismatching addresses. There is the possibility that enumerators will contact some residents several times in the various follow-up and verification interviews. Landlords should recognize this and expect some resident complaints about multiple interviews. Residents should be told to direct any complaints or comments to the Census Bureau, as the landlord cannot prevent, limit or interfere with enumerators.

As part of the census the Census Bureau is performing another mandatory survey: the American Community Survey. The ACS collects population and housing information. Landlords are required to cooperate in the ACS, as it is part of the 2010 Census.

Landlords' cooperation required

Landlords and their agents are required to cooperate and take reasonable steps to assist the enumerators by permitting access. If the enumerator is unable to make contact, the landlord/agent should also assist by indicating the best time to contact residents, if known to the landlord/agent. Finally, the enumerator may not be able to establish contact, and request the landlord/agent to compile certain information on the occupants. The law does not provide for the option to demand written notice or written requests from enumerators as to what they want. So, landlords/agents should neither expect nor require that enumerators give written demands for information. Enumerators will attempt to schedule mutually convenient times for meetings and allow landlords/agents adequate time to gather and respond to information requests. However, given the deadlines imposed on the Census Bureau for completion of the census, the enumerators will expect a quick response.

The Census Bureau's position

In a letter dated March 2, 2010, the U.S. Census Bureau has advised the National Multi-Housing Council as follows:
If the enumerator is unable to contact the occupant within the specified number of attempts, the enumerator may ask for as much information as the owner/manager can provide for an occupied unit. However, if the owner/manager states that the unit was not occupied on April 1, 2010, the enumerator will complete the questionnaire using the owner/manager as a knowledgeable respondent for the vacant unit.

The owner/manager should provide the information necessary to complete the census questionnaire, to the best of his or her knowledge. Questions on the census questionnaire have been approved by law, and the owner/manager is not in violation of any privacy laws if he or she provides the requested information. Although the owner/manager may not be able to answer all questions, such as race or ethnicity, an attempt by the owner/manager to provide available information should be made.

Verification

Landlords/agents can demand to see the enumerator's identification. The Census Bureau indicates that all enumerators will have official government ID badges and may be carrying "US Census Bureau" bags. Landlords/agents can request that the enumerator present his government ID badge and another picture ID badge. If a Florida landlord/agent wants further verification, he can contact the Regional Census Center for Florida in Atlanta, Georgia at 404-335-1555. Enumerators are not permitted to enter the residents' homes, and therefore, they should never request to do so.

Notifying residents

Since landlords and their agents will be the secondary source of information, the more residents that the enumerators contact, the less time and work will be needed by landlords/agents with enumerators. Landlords may wish to alert their residents that census workers will be on the property. Landlords may also want to inform residents that census workers may not request to enter residences, and that residents can verify their identity by requesting to see their ID badges, and if in doubt, they can contact the Regional Census Center. Follow-up notices will be left on a resident's door, if the resident is not home at the time of the census worker's visit. (For simplicity in notice to residents, we advise referring to them as "census workers" rather than "enumerators".)

Scams

Landlords should be aware that like any other government program, the census will have its fair share of scams and scam artists impersonating enumerators. Enumerators do not use email or the internet to contact anyone. Enumerators will not ask to enter the home "to go to the bathroom" or for any other reason. Enumerators or census forms do not request donations, social security numbers, or detailed financial, banking or credit card information. Enumerators may use the phone to follow up on questions on a returned questionnaire, but will never ask questions beyond the ones on the census questionnaire. Be careful of relying on caller-id as proof of the caller's identity, as scam artists can make it appear to be from the "Census Bureau".

Privacy

Landlords are not violating the privacy of their residents, as landlords are required by law (Section 223 of Title 13, United States Code) to comply, and are subject to a fine for failure to comply. Enumerators should have available for landlords/agents a Confidentiality Notice. The Census Bureau only collects the information required by the law and imposes strict confidentiality requirements on those collecting and processing the census information. Federal law provides penalties of up to five years in prison and a $25,000 fine for the unauthorized disclosure of personal data by any enumerator or other census worker. Anyone who suspects an unauthorized disclosure can contact the Chief Privacy Officer for the Census Bureau, who is responsible for implementing privacy policies.

Information requested

Landlords/agents should expect that their files may very well lack some information sought. Fair Housing concerns have limited landlords from acquiring information on ethnicity or race. Landlords/agents are only required to supply the information that they have. The questionnaire consists of only 10 questions, but 5 of the questions have to be answered and re-answered for each occupant of the residence. The enumerator will assist the landlord/agent with any interpretations of what a question is seeking.

In conclusion, landlords have a vested interest in cooperating in the census. It brings some of those hard-earned tax dollars back to Florida and the landlord's community. Landlords have a legal obligation and an economic incentive to see that every person in their apartment communities or rentals is counted. For more information on the 2010 census, visit the US Census Bureau or the National Apartment Association's website.

 

(Back to Top)

 

 

Complying With The Truss Marking Rule
by Harry A. Heist, Attorney at Law

 

Do you own or manage buildings that consist of 3 units or greater? If so, new Fire Code rules will affect you. On December 13, 2009, new regulations were passed which require special signage to be affixed to buildings, and failure to comply could result in substantial fines. Compliance is easy. Just purchase your signs and affix them to the building. There are three different signs though, and you need to know which one you need and where to place them. The most important thing is to make sure you are in compliance, as your deadline was March 13, 2010, which is already past. The local Fire Marshals are just beginning their inspections, and you are now on notice! There is no grandfathering, and if you are not in compliance, it will be up to the local Fire Marshal to determine whether fines are imposed.

The Aldridge-Benge Firefighter Safety Act

The Act which was signed into law on December 13 by Governor Crist is in honor of 2 Orange County Florida firefighters, Todd Aldridge and Mark Benge, who were killed when the roof of a burning gift shop collapsed. The purpose of the law is to alert firefighters to the construction type of a structure they may enter in the event of a fire or other emergency operations they may be conducting requiring entry into the building, so they can better prepare for the hazards involved. The State of Florida Fire Marshal's Office implemented Rule 69-A-60.0081 under the authority of Florida Statutes Section 633.027.

The Type of Construction the Rule Covers

The construction type that is at issue is known as "light frame", which means construction in which repetitive wood such as beams or trusses are used, or light gauge steel is used, for either roofs, floors or walls. This pretty much covers almost all the construction in Florida with the exception of a concrete building with concrete floors and a heavy gauge steel roofing system. Trusses are prone to failure in a fire, and once one truss fails, the load is shifted to the other remaining trusses, which in turn can cause a catastrophic failure and collapse. Compounding the problem are heavy items which are often placed on floors and roofs, such as air conditioning units, which further contribute to potential roof and/or floor failure.

Are all structures covered?

The Rule covers all "commercial structures" of 3 units or more. From a triplex to large multifamily buildings, the Rule would apply. Although you may not look at a triplex as a "commercial" structure, for the purposes of the Rule, it will be considered commercial and covered. In addition to the typical structures where your residents may live, the Rule also possibly covers your clubhouses, maintenance shops, laundry rooms, fitness centers and any other structure which may be on the multifamily property. Interestingly, townhouses are not considered multi-unit residential structures, so they do not need to comply with the rules.

What are these "signs"

The signs required, or "approved symbols" as referred to in the Rule, must be a Maltese Cross which measures 8 inches horizontally and 8 inches vertically of a bright red reflective color. The signs may be as simple as a vinyl stick-on sign, or a more substantial, aluminum or composite type of sign. If the structure has light frame truss roofs, it must be marked with the letter "R". If the building is constructed with a light frame truss floor system, it must be marked with the letter "F", and if both light frame truss floors and roof are present, the building should be marked with the letters "RF".

Where do you obtain the signs?

Many sign makers and supply companies for the multifamily housing industry are providing these signs. They are not cost prohibitive, and most companies have them in stock or can have them made in an extremely short period of time. One such company, Giglio Signs, can assist you, keep the signs in stock and have been providing the signs to hundreds of properties throughout Florida.

Placement of the signs

As is often the case, some laws or rules create more questions than answers, so the following explanation should be a starting point only and not relied on completely. According to the rule, the "symbol" must be placed within 24 inches of the left of the main entry door of the unit and must be placed no less than 4 feet from the bottom of the symbol to the grade, walking surface or finished floor, and no more than 6 feet from grade to the top of the symbol. Does the rule mean the edge of the symbol or the middle of the symbol? We don't know. The Fire Marshal can get very picky at times, so we urge you to measure carefully and not try to be too close to the upper or lower limits. You can be sure that they will have their measuring tape with them. Remember that we are talking about the symbol, not the actual sign to which the symbol may be affixed, and this will affect the measurements. The symbol itself must be permanently attached to the structure on a contrasting background, or be mounted on a contrasting base material which is permanently attached to the structure. If you are unsure of the placement of the signs or whether your signs are in compliance, we recommend that you call your local Fire Marshal and have them come out to the property to meet and advise you.

Some final Notes

Due to the importance of compliance with the new Rule and the possibility of serious multiple fines for noncompliance, we urge you to take this matter seriously. If you have not done so already, purchase your signs and call the local Fire Marshal. Many of the local Fire Marshals are overwhelmed right now with these calls, and some are not sure of the sign placement in unique circumstances. Once you have them come to the property, try to retain some kind of proof that you were told where to place the sign by the Fire Marshal and that you complied. It would be unfortunate indeed if you followed the direction of a person from the Fire Marshal's office who came out to the property, only to have one next year state that you did not comply. See if you can get something from the Fire Marshal in writing once the signs are affixed to the building stating that you are in compliance. When shopping for the signs, you are going to find a wide range of quality and materials used. There is no prohibition on a simple stick on vinyl sign, but will the sign last, or will it be peeled off by a resident or guest? Look around and see what is available, and finally, once you have the signs affixed to the premises, make sure your maintenance staff routinely checks on the signs to see if they are damaged or missing. The local Fire Marshal will not have sympathy for you if you fail to make sure the signs stay on the premises, so keep spare signs handy, and affix them to the premises in a fashion where they are not easily removed or vandalized. Click here for a full copy of the rule and images of the required symbols. Get into compliance now. Not only is it the law, but it can help save a life.

 

(Back to Top)

 

 

Fighting Crime at Your Property
by Brian P. Wolk, Attorney at Law

 

As unemployment rates rise in this tough economy, many studies have shown that criminal activity will also increase. Even worse, as property owners face difficulties with their mortgage payments, they may skimp on spending money on security related maintenance or criminal background checks. They may also be so anxious to rent the property that they approve renters who fail applicant screening tests. This type of thinking will cost the property owner more money in the long run, as resident retention will plummet, and the property value will spiral downward, while civil liability for crimes committed on your property could zoom out of control.

The Starting Point: Screen your residents!

Elizabeth has just arrived at your leasing office. She fills out the rental application and lists her previous landlord as a reference. She also represents on the application that she has never been convicted of a felony and has never been evicted. You verify that there has been no felony conviction, and that the resident has never been evicted. Is this a strong screening process? We say no! Why, you ask? To start with, no telephone call or other contact was made with the former landlord. Maybe that "reference" would have turned out to be anything but a "reference". Perhaps they would have told you about prior conduct problems that the tenant had. Make sure your application contains language authorizing the prior landlord to divulge all information in its residential file to you. If Elizabeth was served with a Seven Day Termination Notice for drug possession by the prior landlord, it is possible that you would have learned of it by simply making a phone call. We always advise our clients to use diligence to determine whether the prior landlord is real, and not just a friend of the applicant, so that you are not "conned" by the applicant. Suppose that the prior landlord discovered "crystal meth" inside Elizabeth's apartment and issued her a Seven Day Termination Notice. If Elizabeth bailed from the unit before an eviction was started, the eviction action would not have shown up on the prior eviction screening report that you ran, because there was no eviction in the first place; the resident skipped out. In fact, even if an eviction lawsuit is commenced, if there is no final judgment of eviction, the tenant's prior eviction action may not show up at all on the report. At our seminars, we also urge all property managers to access to public records to see if there have been prior eviction actions started. Maybe your "hot" prospect is under eviction now! Another mistake you made here is not requiring Elizabeth to inform you if there has ever been an "Adjudication Withheld". While this might sound like some fancy legal language, it is easy enough to understand. "Adjudication Withheld" simply means that the criminal conduct likely took place, but the court is not entering a conviction. The judge sets forth conditions that must be met, and if those terms are satisfied, the conviction is not entered. For example, Elizabeth was arrested for drug possession. The judge may order her to attend a treatment program. As a property manager, you want to have the right to exclude from your community applicants who have had an "˜Adjudication Withheld" on their record. You also should have checked the website of the Florida Department of Law Enforcement "'FDLE"to see if there is a criminal history. You should also be very diligent in researching whether any sexual offenders or predators are living on the premises. You can access that information on the FDLE website. Our article about sexual predator or offender laws should be reviewed carefully.

Enforce your lease, and team up with your attorney

Word travels quickly through an apartment community if the property manager is reluctant to enforce the terms of the lease regarding conduct because the manager does not like confrontation. Do not let the "inmates run the asylum". A property manager needs to fight crime head on and evict the "rotten apples" from the community. If the property manager is aggressively fighting crime, that message will also spread fast, and some of your problem residents may move out on their own without the time or expense involved in an eviction. When a resident engages in criminal conduct in violation of your lease, you should already have an attorney in place that works fast, efficiently and is very reachable, so that you can respond swiftly to the situation. Work with your attorney to build your case, so that the appropriate seven day notice of lease termination can be issued to the resident. You will need PROOF! Often police reports will be needed, along with a list of residents who are willing to testify against the resident, in the event an eviction action is contested and a hearing is scheduled. The important thing is not to act impulsively. Disregarding your attorney's advice will only enable the criminal resident to remain on your property longer, and even may make you accountable and liable to pay the resident's attorney's fees and costs in the event that the judge rules against you in court. When it comes to lease enforcement, the property manager should regularly inspect. You would be surprised how many criminal violations are discovered in this way. You should also have an "open door" policy for your other residents, so that they report criminal behavior to you. You want to learn about all lease noncompliances, not just ones that you discover. Neighborhood Watch programs may also be an effective way for your residents to take back control of your community.

Use Courtesy Officers.

A property manager should consider using a "Courtesy Officer", as that may have a positive impact on the crime rate at your community. Criminals usually do not like additional people looking over their shoulders and may end up leaving your community voluntarily. The "Courtesy Officer" can respond to many types of prohibited conduct, including but not limited to late night/early morning disturbances. They can also contact police to report criminal activity, monitor your pool area and can tag illegally parked cars. There are many other security measures that a proactive property manager can take. To learn more, our article is a must read. With regard to "Courtesy Officers", never give the impression to your residents that you "have security", as a judge could find that you gave the resident a false representation, since "Courtesy Officers" have limited responsibilities. For instance, they might just roam around the apartment community or answer complaints. It is vital that you sign a written agreement with the "Courtesy Officer" which sets forth the understanding of all parties. Your "Courtesy Officer" agreement should list the responsibilities of the "Courtesy Officer". It should contain something similar to this: " The Courtesy Officer's responsibilities are the enforcement of federal, state and local laws, to protect life and property, to keep the peace, and to notify the property manager as soon as possible after learning of any safety or security issues, even if unrelated to law enforcement". You should also have the "Courtesy Officer" acknowledge that there is no employer-employee relationship, and not treat the officer like an employee. The "Courtesy Officer" should be listed as a vendor in your records. Your company should also have language in the agreement allowing the "Courtesy Officer" and property manager to terminate the agreement at any time. If the "Courtesy Officer" is living in your apartment community, then you should be using a normal market rent lease along with a Courtesy Officer Addendum.

Crime-Free Lease Addendum

Florida Statutes surprisingly do not specifically state that a resident who commits a crime on or near the premises is subject to termination. If the resident has signed a Crime-Free Lease addendum in which he agrees not to participate in any criminal conduct or allow any criminal activities to occur on or near your property, a judge will likely be more inclined to approve the eviction of the resident who has committed a crime on or near your property. There are Multi-Family crime free programs available that are free of charge. The International Crime Fee Association is one of them. Both the property and the property manager can receive certification under the program if certain requirements are met. As part of your crime free program, it may be advisable to contact your local police department to take advantage of free services that they may have. For example, a police department may agree to hold a "SWAT" training exercise in the parking lot one night in front of a building where you suspect drug activity is taking place. Now, that is one great message to send to your criminal resident!

 

(Back to Top)

 

revised 4/19

Law Offices of Heist, Weisse & Wolk, P.A.
Phone: 1-800-253-8428 Fax: 1-800-367-9038

Serving Florida's Property Managers with offices in Orlando, Clearwater, and Fort Myers Beach, Principal Office


|     Home Page     |     Firm Profile     |     Attorney Profiles     |     General Services     |     Apartment Communities     |     Residential Managers     |     Apartment Communities     |     Residential Managers     |     Homeowners/Investors     |     Eviction Q & A     |     Legal News     |     Training/Events     |     Contact Us     |