Lawns and Landscaping
By Michael Geo. F. Davis, Attorney at Law


One of the most troublesome areas for the single family home rental is yard and landscaping maintenance by the resident. Whether it's merely mowing the grass or maintaining thousands of dollars in professionally installed landscaping, this area is a continuing source of issues.

The lease

Unless the lease states otherwise, all lawn and landscaping maintenance is the landlord's duty. A lease commonly assigns the resident the responsibility to maintain the lawn and/or to maintain the shrubbery and beds. Our firm advises that these standard lease terms include the basic yard maintenance duties, including the obligation to mow, edge and weed the lawn, trim the shrubbery and remove weeds from the beds. These duties are probably the easiest to monitor and are subject to some objective measurement. The landlord can take pictures of the yard to support his claims of noncompliance and follow up with the issuance of a Seven Day Notice of Noncompliance with Opportunity to Cure.

A lease that provides that the resident is responsible for lawn or landscaping maintenance should do so in clear language, identifying and specifying just what maintenance is required. This is particularly true if the lease contemplates that any maintenance will include duties beyond those customarily associated with the standard lawn, shrubbery or bed maintenance. The term "landscaping maintenance" can mean anything and should be explained and itemized. Some maintenance is so expansive that separate addendums are devoted to lawn and landscaping maintenance. At that point the landlord should ask himself if he would be better served with professional lawn care than the attempted micromanagement of the resident's duties.

What's not included

Generally shrubbery trimming is an inexact science, and the shrubs can be trimmed larger or smaller than at occupancy. If the landlord has specific requirements, such as maintaining the shape or size of shrubs, professionals should be employed. A court is unlikely to hold a resident to any level of expertise in shrubbery trimming. Unless the lease specifically requires it, maintaining flower beds may not include replacing flowers and plantings that die. Lawn or shrubbery maintenance is not likely to include tree trimming, large tree limb removal on the ground or roof, or tree removal, whether due to nature (lightning hit, high winds) or structural interference (too close to house, foundation). Lawn or shrubbery maintenance normally doesn't include spraying for diseases, pests or weeds, fertilizing, reseeding, resodding or planting grass plugs. Without specific lease provisions stating otherwise, the resident is not responsible for the special care and watering of a newly sodded lawn or plantings, whether laid or planted before or during occupancy.


The most contentious area of lawn and landscaping maintenance is watering. With regard to exterior care, probably the single most common and the largest item of damage in single family home rentals is the damage to or loss of the lawn allegedly due to the resident's failure to water. Lawn or shrubbery maintenance would include normal watering. "Normal" watering is the subject of dispute, but a court is likely to find the local jurisdiction's watering restrictions are controlling.


Sprinklers can be a solution or just another problem. The obligation to maintain the lawn or shrubbery is distinct from the obligation to maintain or fix the sprinkler system, including sprinkler heads, pipe breaks, pumps, wells or timing mechanisms, unless the resident caused the damage. The resident may deny that he caused the damage, claiming the damage predates his occupancy or blaming the landlord's service or repair people's vehicles. Since this may be difficult to disprove, the landlord should ready himself for the ongoing cost of sprinkler repair. The landlord should take the time to thoroughly familiarize the resident with the sprinkler controls. He should assume that the power will "blink" or go completely out several times during the lease term, and that this will require most timers to be reset or the clock time to be adjusted. The perfect watering set-up that exists at move-in may not last a month, unless the resident is knowledgeable enough to maintain the watering schedule.

Periodic inspections and immediate action

There is no substitute for the landlord or property manager visiting the rental. Lawn damage from lack of watering doesn't happen overnight. Regular outside inspections can be done from the public sidewalk or street and don't require any notice to the resident. Even drive-by inspections are better than nothing. At the first sign of lawn damage, the landlord should make an immediate appointment to visit with the resident and find out what is wrong. If the resident won't cooperate, use should be made of the Seven Day Notice of Noncompliance with Opportunity to Cure.

If a resident is not complying with his lawn or landscaping maintenance duties, the landlord should serve a Seven Day Notice of Noncompliance with Opportunity to Cure. It may take a resident longer than seven days to repair a damaged yard. Landlords should be clear and specific, and do so in writing if any extensions are being granted to cure. Dealing in generalities through email or worse, orally, should be avoided. If the terms or deadline for cure become muddled, a court is likely to infer the deadline is the end of lease.


A word about home owner associations (HOAs) violation notices is in order. The landlord must determine if a HOA violation notice is in fact accurate and reasonable. The landlord/owner has two independent duties "“ one as an owner to the HOA and the other as the landlord to the resident. The landlord cannot parrot an unreasonable HOA demand to the resident and then blame it on the HOA. Despite the HOA allegation, if the resident is in compliance with the lease (and association rules incorporated into the lease), than the resident has nothing to cure. The landlord has a duty to defend the resident's lease rights, even if that means retaining his own counsel to send a well-worded warning to the HOA.


Many judges will consider payment for damage to the premises, including lawns, to be a security deposit issue, and not an eviction issue, such that any legal action before the end of the lease may be considered premature. The amounts involved in damaged lawns or landscaping can be quite large, the type of amount which can easily generate eviction or deposit litigation. The landlord is reminded that in landlord/tenant litigation, the prevailing party collects his attorney's fees from the losing party. Given the proof problems that typically accompany these types of cases, a settlement is often the landlord's best solution. Note that the discussion below of damages should be considered by the landlord in making any deduction from the security deposit for lawn or landscaping damage.

In litigation the landlord is required to prove the condition of the lawn at the outset of the lease, and the condition of the lawn after the lease has terminated. This can best be done with pictures, which will often show that the damage is greater than could be expected with ordinary wear and tear. However, ordinary wear and tear always depends on the circumstances, which includes the location, the weather over the lease term, watering restrictions, etc. What is ordinary wear and tear can vary dramatically. The landlord must be prepared to prove what ordinary wear and tear would be, and not merely rely on his assertion that the damage is greater than ordinary wear and tear.

The cause of the damage proof problem

The biggest proof hurdles are usually establishing the cause of the damage, and that the cause is the result of the resident's intentional act, negligence, or lease noncompliance. Any litigation will most likely require the landlord to produce an expert to testify as to the cause of the lawn damage. Experts are notoriously equivocal when pinning down damage to one cause. Usually they are not able to rule out all the other causes, leaving the door open for the resident's defense. Worse the resident may introduce his own expert with a totally different opinion of why damage occurred to the lawn. The landlord has the burden of proving that the cause was the resident's fault, such that the resident either did something that resulted in the damage or failed to do something that would have prevented the damage. If the cause of the damage is solely attributable to the resident's intentional act, negligence or lease noncompliance, then the resident is liable. If the damage is attributable wholly or partially to a cause beyond the resident's control, such as lack of water caused by water restrictions or bug infestation from an outside source, then the resident will usually prevail. Without clear expert testimony, judges would be unable (and even with expert testimony judges may be unwilling) to allocate damage liability and hold the resident partially liable. Lawns and landscaping die for so many reasons. Even well maintained lawns die despite a homeowner's or resident's best efforts.


Assuming the court finds the resident liable for the damage, the next issue is the amount of damage. The damages may not be the full replacement costs of resodding the yard or replacing the landscaping. Like all other damage claims, the landlord must use the least expensive, practical method to replace or repair, replace the minimum area required, and recover only his unused cost of the lawn and landscaping. An expert will need to testify as to these matters. Depending on the geographic location, soil and a host of other factors, lawns and landscaping do have an average replacement cycle. If the resident has intentionally or negligently damaged trees resulting in their loss, the resident is liable for waste. The measure of damages for lost trees is the difference in the value of the premises before the resident rented them and after the resident vacated. The landlord will need expert testimony about market value if attempting to prove that the value of the property has declined, which resulted in a loss of future market rent.

Professional lawn care

Given the uphill battle to win a lawn or landscaping damage case, and the pressure to maintain the yard that is often applied by associations, it amazes us that more landlords are not realistic enough to hire professional lawn and landscaping care and include it in the rent. Even something as simple as mowing the grass can be botched by the resident, such as setting the mower blades too low and causing expensive damage. The lawn or landscaping is often a large investment, frequently exceeding the value of appliances in the rental. The advantages of professional lawn maintenance only begin with the certainty that the work is done correctly, professionally and timely. The periodic visits to the property by the service, usually weekly in the summer and biweekly in the winter, can be use to check on other problems like lack of watering. The landlord can request that the service report any problems to him. There is no substitute for the landlord's periodic inspections, but another set of eyes at the property will help.

Lawn and landscaping repair can be quite expensive. Time spent during the application process ascertaining if the resident understands and is capable of the lawn or landscaping maintenance being demanded in the lease, at move-in explaining the maintenance required and equipment available, and periodically inspecting the lawn is time well spent. The best repair is the one that doesn't have to be done.


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The Writ of Possession and the Full Unit
by Harry A. Heist, Attorney at Law


Executing a Writ of Possession can be a tricky matter. In the best of situations, the evicted resident has removed all their items from the premises, nothing is left in the unit, and the resident is gone. In the worst case, the unit is full of personal property, the resident must be physically removed from the premises by the sheriff's deputy, and the property manager and staff is left with the task of removing all the personal property left behind to the property line.

The Typical Writ of Possession Execution

The typical writ of possession (hereinafter writ) execution involves meeting the deputy sheriff at the premises door with your maintenance tech or locksmith, where you find the unit almost completely empty, with the exception of the usual obvious trash, such as that unwanted couch and bags of garbage. The locks are changed, and your staff proceeds to remove the items to the property line. If you do not have the staff necessary to do this at the time the writ is executed, you leave the unit, and you send a staff member back later to completely remove any trash or apparently unwanted personal belongings from the premises.

The Problem Situations

Unfortunately, property management life is not always so simple, and the property manager faces two less common situations where far more than the usual trash is left behind. The time will come, if it has not already, when the property manager will be meeting the sheriff's deputy at the door only to discover that the resident has failed to remove ANY of the personal items from the premises. It will look like he simply up and left with no attempt whatsoever to remove anything. The resident is nowhere to be found, and the property manager is left with a very uncomfortable feeling regarding the situation. Do you remove all the items and place them on the property line? Certainly if the eviction is proper, this is completely allowed by law, but should it really be done right then and there? The other situation occurs when the panicked resident is present at the time you are executing the writ, begging and pleading with you to give him extra time to get help and a truck so he can retrieve all his belongings late in the day or the next day. The resident acts surprised and claims he had no idea that this was going to happen, which is a likely line indeed. In both situations, extreme care must be taken, as the route you take could have unintended consequences.

The Evicted Resident is not present and the unit is full

If the unit is full of personal items and furniture presumably of value, we strongly recommend that you change the locks and take a breather. It is quite possible that the evicted resident is in jail, is in a hospital, possibly mentally unstable, or just cannot comprehend how the eviction process works in Florida, and went off to work. It is also possible that the resident has paid the rent, is on vacation, and you mistakenly filed the eviction. Anything can and does happen, so it is wise to change the locks and begin the research process. While you may feel that this goes against what you have heard about the law and your rights to take all the items and place them on the property line, we feel it is a best practice to hold off for a bit and begin some research, rather than rush to remove the personal property to the property line. Unless you incorrectly filed the eviction action, you are under no legal obligation to take our recommendations at all; they are simply optional. Go back through your files, and make sure that the eviction was not performed in error, and do whatever it takes to contact the evicted resident.

Contacting the Evicted Resident: Do everything in your power to contact the evicted resident. This includes looking back in the file for email addresses, emergency contact info, cell phone numbers, work numbers; you are seeking any possible hint or information concerning where the resident can be. If calling a work number, there is no need to mention that there is an eviction or an execution of the writ; just stress the urgency of needing to speak with the resident. Here you will see more than ever how maintaining up to date contact information before and during a tenancy is crucial.

Speaking with neighbors: While we always strive to respect the privacy rights of our residents, the eviction once filed becomes public record and can be discussed with the nearby neighbors, at least in a limited context. Often they have some information as to the whereabouts of the resident and some contact information.

If you locate the resident, explain what has occurred, explain how you can by law place all their personal property to the property line, and read on below.

The Evicted Resident has been located OR the Resident is present when the deputy sheriff arrives

There will be situations where the resident is actually present at the property at the exact time the writ is being executed, or once the writ has been executed, you have been able to locate the evicted resident. The usual request by the resident is for more time to get a truck, hire a mover, call a friend or do whatever it takes to get the personal property out of the unit. It is so important to stand strong as a property manager and get on the phone with your attorney, so that no deadly mistakes are made at this crucial juncture. The resident has been evicted. It is over. Unless you enter into a stipulation with the resident and money changes hands, you must be careful that you do not inadvertently give possession back to the evicted resident, possibly kill the eviction and have to start over again. At the same time, it will be helpful to you and the evicted resident if he or she is able to remove all or most of his or her personal property, so that your staff does not have to undertake this task, and the evicted resident does not lose all their worldly possessions. By giving the evicted resident a bit of extra time, you may be able to avoid the evicted resident breaking into the unit, causing serious damages to the premises or committing some sort of bodily harm to you or your staff. Remember that you may have tracked down the evicted resident who for whatever reason could not comprehend or did not know that the eviction was taking place and fails to recognize the consequences of the writ execution. The last thing you need is for an evicted resident to get out or jail or an institution, only to discover that you took all their personal property to the property line and that it is now all gone.

The Extension Dangers

An inexperienced property manager may give in to the evicted resident's wishes and tell them they have a few hours or until the end of the day to retrieve their personal property. The deputy sheriff may even encourage this. This is usually done verbally. For example, you tell the resident in front of the deputy sheriff that he must remove all the personal property by 5 pm, you proceed to change the locks, and the evicted resident is "supposed" to do what they say and contact you to let them in that afternoon. 5 o'clock comes and goes and the evicted resident fails to get their belongings. In the meantime, the evicted resident calls your office, and speaks to a staff member who has no idea what is happening with the eviction. Your maintenance tech then comes the next day to the unit and seeing that nothing was removed proceeds to remove all the items to the property line where they quickly disappear. The evicted resident then returns a few hours later infuriated that his personal property is gone and tells you that your leasing agent "agreed" that he could remove the personal property by noon that day, thus claiming a verbal extension. Did that conversation really occur with the leasing agent? If so, the evicted resident may be able to claim that an agreement was made, and now you are responsible for the loss to the evicted resident's personal property. You see, by giving the evicted resident an extension or the evicted resident successfully claiming an extension was granted, this can result in you becoming a "bailee" of the personal property, and then some responsibility for the safekeeping of the property arises. Did your leasing agent give the evicted resident an additional extension? Now we have a factual dispute which may have to be decided by a judge.

Two common scenarios

1. The deputy sheriff says he will return in 2 hours: Some deputy sheriff's will "hold off' on executing the writ and will return later or even the next day. Basically, you are having the deputy simply "hold off" on execution of the writ. Make sure you have the deputy sheriff write a note to this effect on his paperwork, because after executing ten writs that day, he may forget you or confuse you with another one he handled that morning. In the meantime the evicted resident should and often will remove his or her personal property. The deputy sheriff then returns 2 hours later or the next day and executes the writ, and it is over. Or is it? The evicted resident may not have removed all the personal property. Removal of an accumulation of personal property (sometimes collected over many years) is often a taller task than it seems. If the evicted resident has removed all the personal property and is gone, you are in great shape. The deputy sheriff executes the writ, and the eviction is complete.

2. The deputy sheriff executes the writ. The evicted resident is present or you have contacted him, and you are allowing the evicted resident in to get his belongings, or decide to give the evicted resident an extension of time to remove his personal property:

a. Recognize this is dangerous situation, and avoid it if possible. Only use this method if there is a full unit of belongings, or has belongings that the evicted resident wants to retrieve, you have consulted your attorney, AND

b. Use a proper form we created called the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION


This form which can be downloaded here is not a form provided by Florida law. It is simply a form we have created to assist those property managers who wish to give the evicted resident extra time to remove his personal property. This form can only be used AFTER the deputy sheriff has met you at the property and given you full possession of the unit. It is not an agreement, but is rather a notification by you to the evicted resident that you are, as a courtesy, allowing them to retrieve personal property and most importantly, giving the evicted resident a deadline to remove his personal property. We urge you to avoid these situations, and if at all possible, fully remove all personal property left in a unit to the property line, but we also understand there will be situations when this is not possible, practical, or you feel compelled to assist the evicted resident for whatever reason. We strongly urge that you always contact your attorney if you are going to give an evicted resident any extensions, or decide to use the Personal Property Removal Extension Notification. The axiom in property management is that no good deed goes unpunished, and it definitely applies here.


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Powers and Limitations of Police Reports
by Brian P. Wolk, Attorney at Law


One type of eviction seems to generate the most confusion among property managers. Of course, I am referring to eviction for lease noncompliances other than nonpayment of rent. Why you ask? Evictions for nonpayment of rent are generally not complicated, because whether rent has been paid or not can usually be established fairly easily. Moreover, when the resident claims payment of a disputed amount, the resident has the burden of proof in court. On the other hand, attempting to evict a resident for criminal conduct or noise and disturbance related conduct can be very difficult. The reason these cases cause difficulty even for the most seasoned property manager is that judges require solid proof of bad activity on the part of the resident since rent was last accepted, and the burden of proof in this type of eviction case is on the landlord. If you file your eviction case based on the resident's conduct without strong, rock solid proof, then you risk losing your case. The repercussions of losing your case are enormous. First, the problem resident is allowed to remain on the premises, and often will continue to cause the same types of problems that led to the eviction action; neighboring residents will not be happy. Adding insult to injury, you may be held responsible for the resident's legal fees and costs, an amount which could be quite substantial! Your Regional Manager will be none too pleased with that lousy outcome to your eviction case. A good attorney would counsel his or her client property manager to refrain from filing eviction lawsuits without the necessary proof. One source of information that is often needed to prove these kinds of cases are police reports. This article will serve as a guide to help the diligent property manager utilize police reports to help prove their lease noncompliance eviction actions. We will also point out the many myths and misconceptions that property managers have regarding police reports.

Police reports are inadmissible in court

Jay is the community manager of a mid-sized apartment community. Over the past few months there has been a rash of burglaries. From the start, Jay had suspected Terrence and Lawrence to be the guilty parties, the residents in Apartment 2-B, as these issues began shortly after these residents moved in. Jay called his attorney and asked if he could evict based on the circumstantial evidence. Jay's attorney told him that there was not nearly enough proof to cause a judge to approve an eviction of Terrence and Lawrence. Jay was disappointed, but was determined to remedy the burglary problem plaguing his community. Jay extended the hours that his courtesy officer was employed, and sure enough, one night the courtesy officer noticed Lawrence and Terrence kneeling in front of another resident's window. The courtesy officer alertly called the local police who arrived on the scene. The police then caught the residents in the act of committing a burglary. The next day Jay obtained the report of the courtesy officer. Three days later Jay received his copy of the police report. Among the details in the police report was a notation that the resident was arrested, and the officer signed the report. An eviction was commenced, and Jay was unable to arrange for the courtesy officer or police officer to attend the hearing. Jay is stunned to learn that judge will not even look at the reports of either the courtesy officer or police officer, because they are "hearsay" and therefore inadmissible in court!

Explanation of "hearsay"

Hearsay is defined as an out of court oral or written statement offered to prove the truth of the matter being asserted. Many property managers believe that hearsay simply means that a person told you something, and you are prevented from admitting that statement into evidence at a court hearing. That is true to some extent, unless that person is in court with you. The reason is simple. If the witness cannot be called to the stand and cross-examined by the opposing party, then the statement is inadmissible. It would be unfair if you did not have the ability to cross-examine witnesses. However, there are many other types of evidence that property managers wrongly believe can be admitted in to evidence. For example, you cannot prove that a resident vandalized a unit by showing bills for the repairs to the judge, unless the vendor showed up in court with you and is a witness who could be cross-examined. The same applies to affidavits, whether they are notarized or not, estimates, and signed written witness statements, no matter how many. Whether it is 3 witness statements or 30, it is still hearsay, unless those residents or witnesses who authored the statements show up in court to testify. Likewise, if you have a police report in your possession which indicated the bad conduct on the part your resident, you are not getting that admitted into evidence, unless the officer who authored the report testifies in the court proceeding. It should be noted that the Florida law permits exceptions to the "hearsay" rule, including statements for the purpose of medical diagnosis and treatment, statement of a child abuse victim 11 years of age or less, and business records made at or near the time of the event, by a person with knowledge, kept in the course of normal business activity, provided that it was a regular practice of the business to make such a record. Police reports are not an exception to the "hearsay" rule in Florida. It should also be noted that in cases involving juvenile defendants, officers may be prohibited from testifying, which severely diminishes the value of the police report. Also, if an arrest is made by an undercover officer, typical in drug raids, the arresting officer's name may be blacked out on the report, and you would not be able to have the officer testify in court. They might only testify in a criminal proceeding, not an eviction action, due to the confidential and dangerous nature of their job.

Police reports can and will help you determine if your case is strong.

It is essential that you are not surprised at your eviction hearing as to the facts of your case. A clear and detailed police report will help you determine if indeed the lease was violated. It should give you the relevant facts upon which you are basing your eviction. There should be dates and times and a narrative describing the improper conduct. If you believe that your resident committed a crime on the property, the police report better support that. For example, you may see an arrest take place right on the grounds of your apartment community. Does that mean that a crime took place on apartment community grounds? Of course not! Maybe there was an outstanding warrant, or the crime was committed 50 miles away. Many property managers locate the "Booking" report which is available online in many counties. These reports usually only contain the names, dates and reason for the arrest. They almost never tell you where the crime took place, and often no written narrative or details are provided. If you request a police report from your local law enforcement agency, and they refer you to the "booking" report, tell them you need a police report with a full narrative, or else you will be unable to evict the problem resident. In most cases law enforcement will be sympathetic and will help you obtain the full police report.

Police reports and noise

Jane, against the advice of her attorney, decides to file an eviction based on noise disturbances. She has lined up two residents who have agreed to testify in court. Jane's attorney warned her that residents rarely show up in court to testify against another resident at an eviction hearing. Guess what? The resident witnesses failed to appear at the hearing, and Jane's eviction request was denied by the judge. Had Jane counseled her residents to call the police, she may have obtained a police report which verified the disturbance. Jane could have later issued a subpoena to the officer requiring his attendance at the hearing. Better yet, maybe the officer would have issued a noise citation to the problem resident. An effective property manager stresses to residents complaining of noise or disturbances that it is imperative they call the police.

Police reports and drugs

Miriam is the manager of a large apartment community. Last month, as she was walking into her office, she smelled pot. As she continued walking she saw a man in the breezeway smoking what appeared to be cannabis. Miriam would like to evict. Can she? The answer is no. The above scenario takes place all the time; Miriam should have contacted law enforcement. In this type of situation, the police will confiscate the suspected drug and will test it. You are not going to evict anybody for illegal drug use or possession unless the police confiscate the drug and obtain a positive field test, information that can be verified in the subsequent police report.


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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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