Resident Improvements Repairs And Maintenance
By Michael Geo. F. Davis, Attorney at Law


There are excellent articles dealing with other aspects of the repair and maintenance area. See our articles, "The Landlord's Duty to Maintain", "The Tenant's Duty to Maintain", "Lawns and Landscaping" and "Evictions and Repair Requests". I will not repeat the subjects that they cover here. This article will deal with some of the issues surrounding a resident performing improvements, repairs or maintenance. These issues will normally arise in the single-family home or duplex setting. Most multifamily communities maintain a maintenance staff to perform needed repairs and maintenance, but even in this context, some residents may still try to perform their own repairs.


When an owner hires someone to perform home improvements, he gets a few estimates or takes actual bids. He checks to be sure the vendor is insured and licensed, if needed. He has any required permits pulled. Most importantly, he enters into a written contract outlining the legal rights and responsibilities of the owner and the vendor. Depending on the scope of the improvement, the contract will contain more or less detail on the work to be performed, the materials to be used, the time frames for completion, the payments due and such other specifics as are necessary to avoid misunderstandings. Yet, when the owner agrees with the resident for the resident to perform a home improvement, none of this is usually covered, or it is only briefly addressed. Perhaps the owner naively thinks that because the resident will be living in the home, the resident has a vested interest in doing the best job that he can with the appropriate materials. Worse yet, the owner may see it as an opportunity to add a valuable improvement without the expense of permits or review by inspectors.

Far too often these types of owner/resident agreements are oral and end in disputes. The nature and extent of rent reduction are often disputed, and can seriously interfere with an owner's attempt to collect rent or successfully evict the nonpaying resident. The owner also faces the unpleasant prospect of a dispute with someone living in his rental, who may vent his dissatisfaction by surreptitiously damaging the rental or unnecessarily increasing the repairs or maintenance required by the owner. New repair needs/projects may keep mysteriously arising. Remember that in order to hold a resident liable for damage, the owner has to prove that it is the result of the resident's negligence, intentional act or statutory/lease noncompliance. This may not an easy thing to prove. If proper permits or inspections have not been performed, the owner can find himself "blackmailed" into acquiescing to the resident's demands. For all these reasons our firm advises against the resident performing home improvements. All home improvement work should be done by independent professionals.

Repairs and Maintenance

In most multifamily apartment settings there are few if any repair or maintenance responsibilities for the resident. This is one of the draws of multifamily renting. Resident maintenance, if any, may be limited to changing smoke detector batteries or air conditioner filters. Even then, wise multifamily communities follow up with inspections to assure that these simple maintenance duties are performed, to avoid an extensive loss from smoke/fire damage or a/c unit damage. The condominium owner only has to deal with interior repairs or maintenance, as the exterior repairs and maintenance are performed by the association. In the single-family home or duplex setting, the resident often will bear some interior and exterior repair or maintenance responsibilities during the tenancy. Please see our articles, "The Landlord's Duty to Maintain" and "The Tenant's Duty to Maintain" with regard to the extent that repair or maintenance responsibilities either are placed on the resident by statute or can be shifted to the resident by a written lease. Also see our article, "Lawns and Landscaping" on resident responsibility for lawn and landscaping maintenance.

The owner is required to provide a habitable dwelling at the start of the tenancy. Courts are unlikely to permit the owner to avoid this responsibility through lease provisions under which the resident accepts the rental "as is" or waives repairs in general. If the owner has certain limited items that are not operating and will not be repaired, the lease should clearly state this. For instance, if a washer, dryer, dishwasher, garbage disposal or some other appliance is not working and will not be repaired, unless the resident wants to bear the cost of repair, the lease should clearly disclose this fact. An oral understanding will not be legally sufficient. All appliances present at lease signing should be in working order at occupancy.

Since a single-family or duplex resident is assuming control of both the rental and the grounds, it is more likely that there will be a negotiated rental agreement, rather than the boiler plate agreements common in multifamily rentals. A single-family home rental is similar to "owning" a home, and courts are inclined to view reasonable resident repair and maintenance duties as part of the bargain. However, it is doubtful that a court would approve a complete or near complete transfer of all repair or maintenance responsibilities to the resident. Doing so also would likely fail to adequately protect the owner's investment. It can be anticipated that the resident may avoid the expense of repairs or maintenance, if at all possible, as he has no long term interest in the home. While a court may not approve an owner's attempt to pass all repair and maintenance to the resident, the owner does have options available for negotiating repair or maintenance responsibilities, such as limited, specific repair or maintenance duties, the use of a reasonable resident-paid deductible for repairs, the purchase of home maintenance or service agreements, or extended warranties with reasonable resident-paid co-pays, etc. Note that unreasonably high resident-paid deductibles or co-pays would often be deemed an impermissible attempt to indirectly achieve the transfer of all repair and maintenance duties.

The owner can prevent some future problems by having clear lease language. Unclear lease language will be interpreted in favor of the resident, because the owner drafted the lease. The lease or addendum should be specific as to what tasks are required. The owner will still have to accept that even a well-drafted lease will have some gray areas. When does a repair become a capital replacement, such as a new lock versus a new door, or a broken window versus a new window frame? When is a repair outside a normal lease repair situation, such as damage from the criminal acts of others, in which the resident was the victim and took no part in the destruction, such as vandalism or a burglary? The owner should be prepared to negotiate resolutions with the resident, since court decisions are unpredictable in such gray areas.


What if the resident fails to perform the improvements, repairs or maintenance as agreed in the lease? It is unlikely that the owner can recover the additional rent bargained away for the improvement, repair or maintenance. The owner is required to serve a Seven-Day Notice of Noncompliance with Opportunity to Cure for the needed improvement, repair or maintenance. The owner should remember that oral warnings, letters, emails, etc. have no legal effect. Before attempting to serve a Seven-Day Notice of Noncompliance without Opportunity to Cure (a Seven-Day Termination Notice), the owner should discuss the situation with his eviction attorney.

If the owner performs the required improvement, repair or maintenance, he may encounter difficulty collecting from the resident before the end of the lease. The owner can bill the resident for amounts expended, and if these charges remain unpaid, serve a Seven-Day Notice of Noncompliance with Opportunity to Cure for these amounts owed. However, it is questionable that the owner will have a good case to terminate the lease. Some courts may find that such amounts owed are subject to collection at the end of the lease from the security deposit. Again, the owner's eviction attorney is the best consultant on such matters. Although it may not be practical, the owner could sue the resident during the lease term for amounts owed, if the lease required payment to the owner upon billing.


No matter what an owner tries to add to the lease to protect himself, it will result in a hearing in which the owner will have to prove that the resident's improvement, repair or maintenance either wasn't done (which is the easiest) or more likely was substandard. This will require the owner to produce testimony from people with expertise. Of course, the resident will have his friends who will be licensed in the area in question (contractors, painters, etc.) who will testify for the resident. If the judge finds both sides believable (a tie), the owner didn't prove his case and loses. The potential stakes in litigation can easily far exceed the disputed amount, because the losing party pays the other party's attorney's fees. An owner is usually better off simply reaching a settlement with the resident.

Rent credit

When an owner gives the resident a one-time or continuing rent credit for improvements, repairs or maintenance, he may have bigger potential problems than a lack of compliance. The resident may be found by a court, jury or administrative agency to be an independent contractor of the owner, triggering tax liability issues among other problems. If the resident is seriously injured doing work on the property, this may trigger some serious liability issues, and the owner's homeowner's insurance carrier may disclaim coverage. The potential liability issues may deepen if the resident failed to obtain a permit for a repair effort when one should have been obtained, and this liability exposure may run to future residents on the premises.

Even if the lease is silent on the rent for improvements trade, isolated free or discounted rent is a sure tip-off. In addition to the issues raised throughout this article, this potential liability alone should be enough to discourage allowing any resident to make improvements. Limited resident repair or maintenance responsibilities, which are bargained into the final rent and where no rent discount is set forth in the lease, should not be an issue.


The owner should now be aware that improvements for rent are ill-advised. Limited resident repair and maintenance duties, when the lease does not evidence a specific rent discount, should be acceptable to a court. Should a dispute occur, the owner is usually better of with a mutually agreeable settlement than attempting to force the resident to comply with unperformed improvements, repairs or maintenance by implementing legal action.



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The Dangers Of Doing Favors For Residents
by Brian P. Wolk, Attorney at Law


Any good property manager will tell you how essential customer service is to running a successful apartment community or property management company. In fact, most corporate offices will attempt to measure the amount of satisfaction current residents have through the use of survey tools. Making your residents happy has many positive consequences. Most importantly, it increases resident retention. After all, it is a lot less costly and time consuming to renew your existing residents than to market those units again and deal with the expenses associated with move-out. That point is magnified even more in these troubled economic times. One of the key components of your residents' satisfaction is how the property manager communicates with them. Are service requests being responded to promptly? Is the property manager returning phone calls and responding to emails quickly? So with customer service and resident retention being high on the agenda of most property management companies, it is no wonder that many managers feel pressure from their corporate office and their knee jerk reaction is to accommodate residents who make requests which initially do not sound unreasonable. This article will point out situations in which an innocent sounding request made by a resident can result in massive problems for the property manager if that request is granted. You will see examples when property managers acting in good faith and who sincerely are looking to help their resident end up paying dearly in time and money for this altruism. Like the saying goes, no good deed goes unpunished!

Favor Scenario 1-Taking personal checks at Move-In

You have been trying for weeks to rent the one bedroom apartment next to the parking garage that nobody wants. Two months ago, Arthur, a prospect, walked into your management office unannounced and declared that he wanted to lease a unit at once. Ultimately, Arthur filled out his application paperwork, and the next morning executed a lease to begin that day, receiving a copy of the lease and the keys. Your normal policy is to require certified funds prior to executing the lease, but Arthur claimed he was strapped for time, and smoothly represented that his two personal checks covering the security deposit and prorated rent would not bounce. Arthur's credit report results were good, so you took him at his word. Ten days later, you find out that Arthur was actually strapped for cash when his checks bounce. Now you are facing the prospect of filing an eviction without ever collecting any money under the lease transaction.

Favor Scenario Number 2- Allowing Third Party Access

Your resident has lived at your community for the past 5 years and is well liked by just about everyone, including you! During a conversation with the resident last year, you learned that she has a drug dependency condition. Sadly, the resident was arrested for heroin possession and incarcerated. She is not able to post bail. A few days ago, a man claiming to be the resident's son visited your office and told you that the resident will be in jail for a very long time. He told you that he had the resident's authority to clear out the unit and turn in keys. You really felt sorry for the resident and decided to open the apartment door the let the alleged son enter the apartment home. Not only did you open the door to the unit, you also have opened the door to potentially huge lawsuit. For what reason you ask? You had no authority to allow anybody to enter into the apartment home except the resident. This resident could hold your owner responsible for all of her personal property that was removed. Worse yet, if you took back possession of the unit, the landlord could be liable for triple rent under the landlord/tenant act, and potentially triple the value of lost property under civil theft statutes. In this case, you should have demanded proof that the son had the authority of the resident to enter the unit, possibly in the form of valid power of attorney. This scenario also creeps up in the context of the deceased resident. Unless the third party has received authority from the probate court and displays that proof to you, the third party should not be allowed into the unit, no matter how sad the story is. It is irrelevant that it is a close family member or the only remaining family member. You have to confirm the third party has legal authority to enter the unit; it is as simple as that!

Favor Scenario Number 3- Accepting Late Rent Payments

Jethro has always been late paying rent. Not only does he pay the rent late, he usually pays about two weeks after the expiration of the Three Day Notice. Jethro is in great financial distress, and you really feel sorry for him. He has assured you that he will get back on his feet and start a new job. Besides, you reason that if you need to evict him later, at least the judge will know that we bent over backwards to try and assist the resident before evicting. After 6 months you decide that you cannot allow Jethro to continue this delinquent payment arrangement, and you send his file over to your eviction attorney. This example is perhaps the most common scenario in which extra work on your part to help a resident backfires. The unseasoned property manager does not realize that the eviction may become incredibly more complicated. Many judges will strictly interpret the wording of the lease and Section 83.56 of the Florida Statutes and allow the landlord to evict if payment is not made before the expiration of the Three Day Notice. However, there are also a significant number of judges who may find that there is an issue regarding waiver. This simply means that by not enforcing the lease terms as written, the landlord's subsequent actions modified the lease. Thus, the resident is no longer obligated to pay the rent by the due date contained in the lease. Favoring one tenant in this way may also trigger fair housing concerns, as discussed in more detail below.

Favor Scenario Number 4-Storing Personal Property

Donovan has three kids and is a single father. You feel terrible that the sheriff will be executing the writ of possession in a few minutes. Donovan now calls you and tells you he is leaving, but would like you to hold all personal items in your office that he was unable to move, and he will come by later to pick them up. Seems reasonable enough, right? Not so fast! You never want to exercise control over the personal items of the tenant. What if Donavan fails to return? You are not able to throw out those items, and in fact a bailment situation is created. That means the law requires that you exercise reasonable care while continuing to store these items. You probably see where this is headed. Donovan may later allege that items were damaged or destroyed, or even worse, he may claim that you stole expensive items that you believe never existed.

Favor Scenario Number 5-Becoming Vulnerable to a Fair Housing lawsuit

You should always keep in mind that when you do favors for your residents, there may be other residents who feel slighted, and if they are a member of a protected class, then you may be in violation of fair housing laws. it is unlawful to discriminate in the terms and conditions of a rental based on a person's race, color, religion, sex, national origin, familial status, handicap or military status. For example, if your tennis courts close at 7:00 p.m. in the summer, but children can only use the courts until 5:00 p.m., there may be no reasonable reason to justify this policy, such as a safety motivated concern, because it does not become dark outside until after 7:00 p.m. In this case, your policy was instituted at the request of some of your older residents who formed an informal tennis league. In the process, you may become vulnerable to a fair housing lawsuit, as it would appear that families are not having equal access to the amenities of the apartment complex.


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The Absolute Proper Three Day Notice
by Harry A. Heist, Attorney at Law


Nothing is more important to the typical eviction action than a proper Three Day Notice. That most common notice, the first one a property manager learns to prepare, is the key to a successful eviction action. After the notice expires, an eviction action is filed, and voila, the judge signs the final judgment, and the resident is evicted. The notice prepared by an untrained manager often contains deficiencies. If the eviction is successful, it would seem them that the Three Day Notice is really not that important after all. This assumption is correct if the judge fails to look at the Three Day Notice or views the deficiencies as excusable, or the resident does not know the law or the resident fails to retain an attorney who most likely does know the law.

The Good Old Days

Up to about 2007, many judges would not carefully examine the Three Day Notice that was attached to the eviction complaint, and most residents would not be able to afford to retain an attorney. After all, they did not have the money to pay the rent, and most residents did not know the laws regarding the Three Day Notice. What changed? With the advent of the massive number of foreclosure cases, the larger number of defective evictions being filed by non-attorneys, and the increase in residents hiring attorneys to help them fight the eviction actions on a contingency basis like auto accident cases, preparing an accurate Three Day Notice became much more important. Many judges began to be criticized for not looking at the papers they were signing and decided it was time to start being a bit more careful, lest they get their names splattered in the newspapers as being sloppy judges who did not care about the law. Attorneys who previously would have turned away a resident under eviction, opting for a more lucrative real estate closing, began to lose business with the economic slowdown and then began to decide to spend some time with the residents who walked into their office for help. Some attorneys started to realize that it could actually be lucrative to represent residents, because if the eviction was dismissed due to a technicality or the resident won the case, the attorney representing the resident could not only get a substantial award of attorneys fees against the property owner, BUT could potentially get what is known as a "multiplier" whereby the judge could double or even triple the attorney's fee award, forcing the landlord to have a judgment against them for many thousands of dollars. All of the above has created a firestorm of epic proportions, and NOW, the property manager must be EXTRA careful to make sure there is no technicality that can cause the eviction to be dismissed or the resident winning in court.

What technicality is the most common defense to an eviction action? The improper Three Day Notice. The law provides that the resident must place the rent money into the court registry before any defenses can be raised, including claims that the notice is defective, BUT some judges allow motions to dismiss and trials to occur even when there is not a dime posted in the registry of the court. Is it wrong that many judges are apparently not following the law? We think so, but the judge has the final say in the absence of an expensive and time consuming appeals process. Fortunately, most legal scholars are of the opinion that in order to raise the defense of a defective notice, the resident must post the rent money into the registry of the court, and most judges do follow this interpretation of the law. YOU must be prepared for the judge who disagrees with this interpretation of the law.

For years, our firm has been accused of being "picky" when it came to requiring clients to prepare and serve the Three Day Notice correctly, but most of our clients recognize why this scrutiny is important. The landlord does not want to pay out exorbitant fees to a resident's attorneys due to mistakes on the Three Day Notice. We catch the mistakes, force our clients to redo the Three Day Notice, and better yet, train our clients to prepare them correctly the first time around. You can go through a red light so many times and not get caught, speed all day long and not get caught, but sooner or later, not only will your number be up, BUT an "accident" could occur, and this "accident" could mean your company pays out a large amount of money to a resident's attorney. Some attorneys now are actually seeking out residents under eviction and making "resident eviction defense" a lucrative cottage industry. It makes no difference that the resident has not paid rent in 3 months. It is all about technicalities. You have a choice. Prepare your Three Day Notice correctly, or take an expensive gamble.

This article will simply go through the Three Day Notice step by step, and you can ask yourself if you or your company is preparing them correctly or taking an unnecessary risk. The article does not cover all aspects of the Three Day Notice. We have many more articles covering individual aspects in depth you can read on www.evict.com. If your company refuses to prepare the Three Day Notices correctly, feel free to ask us to show you case upon case in which attorneys are nailing property management companies for significant amounts of money. Times have changed, and so should you.

The Resident's Name

The names you put on the Three Day Notice must match the names on the lease, and if the name or names on the lease are incorrect, as they often are, you need to find out the proper name and put it on the Three Day Notice like this: John Smith a/k/a (also known as) as John Smyth. Leasing agents routinely input the information incorrectly into the computer when generating the lease, and this incorrect information carries over for the entire year and even at renewals. You can't depend on residents to point out a mistake. Rather, expect them to leave a mistake alone, as it may go to their advantage, and they know it.

If a resident has been added or subtracted from a lease, make certain that this is reflected. Blind reliance on your computer information causes mistakes. Never use just one name when there are 2 lease signers, or use Mr. or Ms., or rely on a catch all of "and all other occupants". Just get the names right. It is that easy. If one person has not signed the lease but is in the computer as a resident, CALL YOUR ATTORNEY for advice. We see leases that have 2 names listed, but only one person signed. Filing an eviction against the person who has not signed could trigger a lawsuit. Remember, it was your mistake that allowed both to move in with only one signing, so do not exacerbate the mistake. Get advice. Possibly your attorney will tell you to put both names on the Three Day Notice, BUT this advice will depend on the particular facts and circumstances.

There is no need to put children on the notice who are not lease signers on the lease. Sounds silly, right? But it happens, because your computer program often generates the names, and they end up on the Three Day Notice. We have even seen pet names on the Three Day Notice because of the computer programming issues.

The Address

The address MUST match the lease AND the official address that the United States Post Office (which the sheriff relies upon) has for the resident. Did your company decide to change street names or building numbering? It happens all the time and wreaks havoc on addresses. Was the address put in the lease and computer incorrectly? If so, it ends up carrying over onto the Three Day Notice, and possibly you will not find out the mistake until it is too late. Some addresses contain internal company codes that have nothing to do with the real address. Get rid of them. They are useless and should not be on the Three Day Notice. If an address is slightly incorrect, the process server may encounter a resident who indicates the address on the court paperwork is wrong, and that the correct resident lives across the hallway. The process server then walks to the correct door, knocks, gets no answer and posts the papers on the door. No problem, right? Wrong. The eviction goes along, you get a final judgment, and when the sheriff goes to serve and execute the writ of possession, your case is TOAST. The sheriff will NOT serve the papers to any other address than that on the eviction papers, and remember that that address was WRONG. You might actually have to start the eviction all over again from scratch depending on the circumstances. Get the address correct and confirm. Finally, is the address on the door, or did someone rip off the number or letter? Never assume the sheriff will decide what door is the correct door. Assume that if there is any doubt, the sheriff will non-serve the writ of possession,

The Date

The date of the notice is the date that you are serving the notice: not the day before, not the day after. It is the date you or a staff member is actually going out and serving the notice. Sometimes notices are prepared, and there is no time left in the day to serve them, so they sit on the desk and are served the next day. No harm done you think, but the date is wrong. You then sloppily change the date if you notice it, or try to say that the date on the bottom of the notice, the "Certificate of Service" section, is correct. While this may be the case, the top date of the notice is wrong or sloppily changed and causes the Three Day Notice to be defective or look defective. Sometimes the date is not just one day off but can even be a month or more off. How does this happen? Your computer system generates a wrong date, or you pull up a Three Day Notice from the month before and forget to change the date. These dating mistakes happen all the time and can be fatal to your case.

What does the resident owe?

The resident owes what the computer says they owe, right? Technically this may be correct, but you can ONLY put RENT on a Three Day Notice. What is rent? Rent is what your lease says indicates is rent, and this may include late charges, periodic charges such as washer and dryer fees, and other charges, but the real "rent" is what your attorney tells you is rent. Some judges do not allow anything but base rent on the Three Day Notice, prohibiting all late charges, and will throw a case right out of court if he or she sees amounts that are not base rent. How would you have known this? After all, at the prior property you managed, this was not a problem. You must ask your attorney what is permissible to put on the Three Day Notice. It does not matter what your company says is rent or what is actually owed; it only matters what the judge will allow on the Three Day Notice. The amount you put on the Three Day Notice should be an exact amount. It should not grow with time. Writing things like, "plus $5 a day", can and often does render the notice fatally defective. There are long lines of cases growing each day in which judges have thrown out the Three Day Notice for this exact reason. But your company wants you to put this on the notice!! Go ahead. Follow your company's advice, but remember that if you file the eviction with the incorrect wording, your risk of having the case being thrown out increases exponentially. The problem really lies in your company wanting to collect the money, and rightly so. If your company insists, prepare the Three Day Notice with whatever you want on it, BUT be prepared to prepare and serve a NEW Three Day Notice and wait the required time period for expiration if you are going to file the eviction action. Got away with putting any amount you wanted on the Three Day Notice in the past? Do what you want. You have been warned.

The Expiration Date of the Three Day Notice

When you serve a Three Day Notice, you cannot count the date of service, and it expires 3 business days after the date of posting after you exclude Saturdays, Sundays and court observed legal holidays. Serve the notice on Monday? It expires on Thursday as long as Tuesday, Wednesday or Thursday are not court observed legal holidays . What is a court observed legal holiday? It is a legal holiday when the judges are not working. The "court" is observing the holiday. You most likely had to work that day, BUT the judges did not; therefore, it is a court observed legal holiday. Does your attorney provide you with a holiday list? Call and check if you are not sure. We provide a list each year of the court observed legal holidays and each month without fail tell you what they are on our Email Newsletter. Read it! There is NO excuse for forgetting legal holidays when counting the three business days. NONE. Mark your calendar, and make sure you always ask your attorney if there are any court observed legal holidays, or if you are not sure, just consider the day a court observed legal holiday, and you will be safe. Some court observed legal holidays actually pop up by surprise. How does this happen? The judges get together, meet and decide that a particular day, often a religious holiday, will be a court observed legal holiday, and so it happens. Will you know this? Most likely not, BUT your attorney will, so you need to ask. Sometimes we get asked if Halloween or Valentine's Day is a legal holiday. Funny, huh? At least the property manager is keenly aware of the importance of excluding court observed legal holidays, so it certainly is not in the "stupid question" category.

The Resident did not pay by closing time

Nothing in the law provides that the resident must pay you by office closing time. The law indicates the resident has three business days to pay, not including Saturdays, Sundays or court observed legal holidays. This business of trying to say that a resident did not pay on time because he dropped off the check in the drop box at midnight will only cause you grief. If the money is in the drop box in the morning, consider that he paid within the time period allotted by the Three Day Notice. When you try to jam a resident and refuse the rent or hit them with additional late charges, you are just asking for trouble with judges, who can see right through the refusal of rent. Oftentimes under this scenario, a judge will determine that you really just want the resident out, and that even though a Three Day Notice for unpaid rent was given, the eviction is really about other beefs you have with the resident. Judges were not born yesterday, and your eviction is not the first one they have seen. Most deal with hundreds or thousands of these cases a year.

Late Charges

The law does not address late charges; therefore, it is not clear what is legal or not to charge. What we do know is that when a judge sees incredibly high late charges, the judge can decide to throw the whole case out. Charging a resident $400 for rent plus $700 accumulated late charges is an outrage, but we sometimes see this scenario, usually because the computer program continues to hit the resident for late charges if there are any balances owed, no matter how small. Property managers who continue to accept rent from a resident without demanding that the resident pay the late charge set themselves up for failure. The managers we work with who are most successful at collecting late charges will refuse the late rent payment if it does not include the late charges, and this sets the tone early on with the resident for future payments. Want to keep accepting rent and letting late charges build up until your regional manager has a fit? Go right ahead. A similar dynamic applies when you fail to collect the water charges, and they build up each month. You will pay the price when your attorney refuses to file the eviction with a Three Day Notice with excessive late or non-rent charges. Someday we may have legislation which sets limits on late charges, but until such time, check with your attorney to see if your late charge policy is in line with what the judges in your areas are currently allowing.

Extraneous Writing on the Three Day Notice

Many property managers place statements on the notice like, "Only Money Orders or Certified Funds will be Accepted", or, "No Checks Will Be Accepted". Where did this come from? If the lease does not clearly allow the property manager to demand payment in this particular form, you cannot demand it on the Three Day Notice. Never hand-write any little messages or notes on the Three Day Notice. Stick to the proper form as provided for you by Florida law, and keep the little notes or messages off the Three Day Notice.

Some final words

Many of you reading this article have heard it all and seen it all before, but simply are following your company's direction or preparing the Three Day Notices the same way for years. Take the time to call your attorney and speak directly with your attorney, not just a paralegal or secretary, and almost universally, you will hear confirmation of everything you have read in this article. Most of the larger landlord/tenant law firms have been around long enough to see how things have indeed changed, and it is time to change with the times or be in for an expensive surprise. When your attorney turns down an eviction or tells you to redo and reserve your Three Day Notice, your attorney is not making any money. They don't want to tell you the bad news or disappoint you. Your attorney is looking out for the best interests of you and your company.


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The Tenant Nonrenewing the Month to Month Tenancy
by Harry A. Heist, Attorney at Law


While we have written many articles on how to non-renew a resident, there is still much confusion as to how much notice the resident must give in the event of month to month tenancy non-renewals. This article will give concrete examples of what will happen and when, depending upon the date the notice is given by the resident. Now, a weird lease provision could change everything, so this article assumes a normal lease with normal legal clauses or no clause at all. It also assumes that rent is due on the first day of the month and not on any day other than the first. If the rent is due on a day other than the first of the month, everything will change and become more complicated. This is just one of the reasons why it is good to be consistent and have the rent always due on the first day of the month.

Month to Month Tenancies

A month to month tenancy is created when the landlord allows the resident to stay after the expiration of the lease agreement, or in the event that there was never even a lease in the fist place and the resident pays monthly. The resident presumably continues to pay the rent money until such time as either the landlord or the resident decides to terminate the tenancy. The law clearly states that a month to month tenancy can be terminated by either party giving at least 15 days' notice prior to the end of the monthly rental period.

1. Resident gives landlord notice on 5th of September saying he is leaving on the 30th of September.

Result: This is proper notice and the resident must pay the entire month's rent for September.

2. Resident gives landlord notice on 5th September saying she is leaving on the 20th of September.

Result: This is likely proper notice, but the resident must pay the entire month's rent for September. No prorated rent is due back.

3. Resident gives landlord notice on 5th of September saying he is leaving on the 10th of September.

Result: Although not 15 days' notice, this notice will likely hold up, but the resident must pay the entire month's rent for September. No prorated rent is due back.

4. Resident gives landlord notice on 20th of September saying she is leaving on the 30th of September.

Result: This is short notice and resident must pay or will owe the entire month's rent for October unless the landlord re-rents the unit prior to October 31.

5. Resident gives landlord notice on 1st of September saying he is leaving on the 16th of September.

Result: This is likely proper notice, but the resident must pay the entire month's rent for September. No prorated rent is due back.

6. Resident gives landlord notice on the 20th of September saying she is leaving on the 5th of October.

Result: This is short notice and resident must pay or owe the entire month of October unless the landlord re-rents the unit prior to October 31. In examples 2, 3, and 5 above, the resident does not actually inform the landlord that he or she will be out effective September 30. The landlord's non-renewal notice to the tenant must be accurate concerning this date. It is usually a good idea to "cross-notice" the resident with your own notice of non-renewal in these situations; this will also help to clarify your position that full September rent is owed.

The Partial Rent Acceptance Problem

As you can see from the examples above, a resident may or may not give you proper notice, and depending upon the notice, may or may not owe the next month's rent. Here is the problem though. Often a resident will not give you proper notice OR will give you a partial rent payment covering the time period in which they will stay. If you accept that partial payment, you may be accepting the "terms" of the resident's notice, be it proper or improper. If you take a partial rent payment when the resident has given you insufficient notice, you may not be able to charge the resident for the remaining days in the month in which he leaves, even if he has otherwise given you proper notice. For example if the resident gives you notice on September 1st that she is leaving on September 16, and you accept the 16 days partial payment for September, you may have waived your right to the rest of September rent. Likewise, if the resident gives you short notice telling you on September 20th that they will be leaving on October 6th and you accept the 6 days of rent for October, you most likely will have waived your ability to charge or collect for the rest of October.

But Wait! The Lease requires the Resident to give more notice!

Many leases attempt to make the resident give you more notice than 15 days in order to terminate the month to month tenancy. Often we see 30 days as a typical requirement in the lease. While the lease may clearly state this, and the resident by signing the lease has presumably agreed to it, the law will prevail. A month to month tenancy can be terminated by the resident giving at least 15 days' notice prior to the end of the monthly rental period. No more can be required. If your lease has a clause requiring more notice, remember that it probably cannot be enforced, and you do not want to give your property owner the impression that just because it is in the lease, it is legal.

Looking to Avoid Misunderstandings?

One of the best ways to avoid misunderstandings is to thoroughly explain in writing to the resident how much notice has to be given, when notice must be given, and what will be owed. Before you can explain this to the resident, you must fully understand it yourself. Most residents assume that giving 15 days' notice means just that. They give 15 days' notice and leave, not realizing that they may owe for the rest of the month or even the entire next month depending upon when notice is given. Many leases are unclear as to this as well, and ambiguities are construed in favor of the resident. Taking the time to create a little cheat sheet using the above information and explaining how notice must be given can go a long way in preventing misunderstandings or legal disputes.


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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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