Access by the Landlord
By Michael Geo. F. Davis, Attorney at Law


This article will not address the issues of the landlord's response to the denial of access or obtaining access when denied. These issues are covered in our article, When Tenants Deny Access

To state the obvious, the landlord, as well as anyone else, can enter the rental at any time with the consent of the resident. This is based on the well known legal principle that someone with the lawful right of possession can invite another onto the property. Florida Statutes confirm the landlord's immediate right of access when the resident so consents.

Lease provisions

The Landlord/Tenant Act provides for the landlord's right of access to the rental. The landlord can expand upon that statutory right of access by well drafted lease provisions. If the lease provision is unreasonable, it runs the risk of being set aside as contrary to the statute or unconscionable. Enumerating specific reasons for entry has the advantage of avoiding arguments on entry for those purposes, but it has the disadvantage of generating arguments when an unlisted purpose arises. If the landlord foresees the need to enter for a particular purpose, it is a good practice to list that reason specifically in the lease, without limiting the general right to enter. Some enumerated reasons for access are: estimating repair or refurbishing costs, doing repairs, pest control, preventive maintenance, such as filter changes or testing or replacing smoke-detector batteries, conducting inspections, preventing waste of utilities, installing, reconnecting, or removing security devices, showing the residence to prospective purchasers or tenants, and removing hazardous materials.

Consent of the resident

Florida Statutes 83.53 provides that the landlord may enter the rental "with the consent of the tenant" for the purposes "to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors." The most common method of gaining access is obtaining consent of the resident, whether it be for inspections, services, repairs, or showings. In response to a phone call or email, the resident approves the entry into the rental. If the resident's approval is over the phone, the landlord should make a note in the resident's file of the authorization, including time, date and initials of the staff member who spoke to the resident. In cases when a resident disputes his oral approval, a landlord should secure future approvals in writing or follow the statutory notice provisions.

The statute is silent on whether the resident's consent can be implied. Landlords, or their repair personnel or vendors, have been known to knock, and when no one answers, enter without any prior notice to the resident. The basis for this access is the "implied" consent of the resident allowing entry in response to the resident's request for repair, or the lease obligation to provide periodic service or maintenance. A landlord's reliance on implied consent may be more reasonable when it is in response to a request for maintenance or repair. A landlord's reliance on implied consent may be unreasonable when service or maintenance is conducted that is infrequent and likely unexpected by the resident, such as unannounced service of the smoke alarms or air conditioner. In the middle ground are expected services like pest control; a better argument can be made that implied consent is given for those services which occur on a predictable schedule.

Landlords should include a provision in their lease confirming that such access is deemed to be with the consent of the resident, unless the resident indicates otherwise in writing to the landlord. Even then, landlords rely on implied consent at their own risk. Since the statute doesn't explicitly provide for implied consent, and the common definition of consent would be a verbal or written authorization from the resident, a judge may not be inclined to expand the meaning of consent.

Reasonable notice

FS 83.53 provides that the landlord may enter the rental "upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises." Note that this is access for repair only. Reasonable notice for repair purposes is "notice given at least 12 hours prior to the entry". Reasonable time for repair is "between the hours of 7:30 a.m. and 8:00 p.m." Outside of consent, the most common method to gain access for repair is by posting on the door a notice to enter the next day. Although the statute provides that 12 hours is reasonable notice, the 12.5 hour reasonable time window for access makes same day notice and access totally impractical for non-emergency repairs.

Because the statute provides for a 12-hour notice and 7:30-8:00 time for repairs, these have become the safe harbor as reasonable notice and time for all notices and entries. If the entry is for something that a reasonable person (read here "a judge") would think needs more notice, then more notice should be given. While a day's notice may be sufficient for repair of the sink faucet drip, more notice would be reasonable for carpet replacement, when the resident would be required to clear a room or rooms of everything but furniture. Landlords are reminded that the preferred method of entry in all situations is a mutually satisfactory time and date with the resident.

Emergency and protection or preservation

Florida Statutes 83.53 provides that the landlord may enter the rental "at any time for the protection or preservation of the premises." Additionally, the statute provides that the landlord may enter the rental premises without notice "in case of emergency." The fact that the statute provides separately for access in an emergency and for access to protect and preserve means that they are not always the same thing.

The common understanding of "emergency" is a set of circumstances demanding immediate attention, but there is clearly a subjective element as to whether an emergency exists. In most instances the need to protect or preserve will constitute an emergency. However, if the landlord finds herself in a situation in which the resident argues that it was not an "emergency", and that the landlord unlawfully entered, the landlord may be able to rely on the broader "protect or preserve" justification. Consider the situation in which the landlord can hear a dog howling in the apartment, and the neighbors are upset with good reason. The howling has been going on since the previous evening. The dog's owner hasn't been seen, and the landlord has been unable to reach the resident. Posting a 24-hour notice to enter could mean another night and day of howling. There may be a serious problem in the apartment, causing the incessant howling. At the very least, the dog hasn't been out of the apartment to relieve itself. The landlord will have a good argument that the situation required her to give entry to the police or animal control to protect and preserve, regardless of whether a true emergency existed.

The landlord should not abuse the right to enter by claiming an emergency or the need to protect or preserve. Some sense of urgency should exist before immediate entry is obtained under the justification of protecting and preserving the premises, such as dealing with rotting food left in a refrigerator with no power, or feces left on the flooring. The landlord should have a credible belief that a serious and immediate danger to the health or safety of someone exists, or that a real potential for significant damage or destruction to property exists. The danger can be to other residents, guests, the landlord's personnel, vendors, the general public or even the resident himself, or the property of any of them. The landlord should remember that his actions may be reviewed by a judge, who can differentiate between good faith access and sham excuses to enter an uncooperative resident's home. The appropriate response to a denial of access is a Seven Day Notice of Noncompliance with Opportunity to Cure, not a contrived emergency.

Unwarranted entry

An unwarranted entry into a rental by the landlord, his staff or vendors can have serious repercussions and should not be taken lightly. Should the resident appear, the entering individual can find himself being interviewed by the police based on the resident's claim of trespass, theft or worse. Should the resident be home, the risk of violence is real in a state where shooting someone in the belief that they are entering your home without authorization happens. The resident can claim a breach of the lease and seek termination of the lease and/or damages. When a landlord needs entry and is unsure of the guidelines, he should call his attorney.


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A Year End Review with an Eye towards 2011
by Brian P. Wolk, Attorney at Law


After dealing with many issues unfavorable to apartment and single family home owners, property managers have every right to be on guard as the new year approaches. After all, it would seem that property managers are being attacked on all fronts. First, property managers continue to have difficulties collecting the rent and retaining residents, as their residents are faced with severe difficulties obtaining credit, while at the same time, losing their jobs in record numbers. Next, property managers are faced with rising operational expenses. Liability and property casualty insurance continue to be very expensive, along with increasingly burdensome tax obligations and other governmental fees. At the same time, property managers are faced with low ball pricing from the competition and what sometimes must seem like an unlimited supply of available units in your market. With such a full plate, it can be very easy for the property manager to neglect compliance with the Florida landlord/tenant laws. Property managers need to keep their head in the game! Why you ask? There are rabid attorneys whose sole professional mission is to represent your resident on a contingency fee basis. That simply means that your residents can obtain competent legal representation at NO COST. Therefore, the property manager must not let basic legal compliance fall to the wayside. If you do, then these attorneys will try to eat you alive, meaning you could spend countless hours in court instead of helping your customers and marketing your properties. In the process, you may spend money on legal expenses that instead could have been allocated for business promotion, capital improvements or redevelopment, not to mention the personal toll that litigation takes on a property manager due to stress. Since our firm maintains clients throughout the state, we have a solid grasp on what common mistakes are continuing to be made every day by property managers in Florida. Correcting these mistakes listed in this article will make you more battle ready for 2011 and beyond. In addition, if you make your broker or regional manager's life easier, this could help advance your professional career.

Understanding why mediation is important.

In some counties, if the resident has contested the case, the court will set the case for mediation. Far too many property managers fail to take advantage of the mediation process during an eviction action as a way to get the case resolved and want to dig their heels in and not budge. Worse yet, some property managers forget to even attend in some cases. To begin with, mediation is a process in which an individual, the mediator, has no vested interest in the result of the eviction action; the mediator attempts to facilitate a settlement between the parties, which in this case would be the property manager and the resident. The mediator has no power to force the parties to agree. As mentioned above, some property managers drop the ball and fail to attend the mediation. Make no mistake about it; failing to attend the mediation or showing up late can be equivalent to failing to attend your eviction final hearing. In an eviction action, you will be in default if you blow off the mediation, which means that you could lose your case! Mediation is not voluntary in an eviction proceeding if the judge has ordered you to attend. Imagine how your broker or regional manager will feel when you tell her that you wasted company money on the eviction filing. There is no excuse to forget, show up late, or purposely fail to attend the mediation. That being said, if there are extraordinary circumstances like a massive traffic accident, then the mediation may be rescheduled. Stay organized and mark the date of mediation on your calendar. Keeping the case alive should not be your primary reason for attending the mediation. The main benefit of the mediation is that you control your own destiny! Judges do not have the authority to rule down the middle. It is winner take all if you head to trial. By settling your case at mediation, you guarantee that you will not lose your case, and in more cases than not will come out ahead, getting all your attorney's fees, costs, rent, or having the resident vacate at an agreed upon date. Even if your case is strong, it may make more sense to have the mediator make that point to the resident rather than wait for a final hearing. Often, the resident will agree to vacate voluntarily to avoid a final judgment of eviction on his record, so he will have an easier time renting somewhere else in the future. Moreover, the property manager may be able to relet the unit faster than if she waited for the final hearing, while at the same time reducing the accounts receivable delinquencies. Also, if money has been deposited in the Court Registry, these monies will usually be disbursed to the landlord as part of the settlement, instead of the additional delay involved in waiting for a ruling by the judge at trial. One final note: you should bring the resident's file to the mediation. Make sure you write down and bring with you the room number and the exact address where the mediation is being held. To learn more about the mechanics of the mediation process, you should read our article, Evictions and the Mediation Process

The property manager should not be the landlord

You arrive at your management offices, Mountaintop Property Management Company, ready to have your lease executed. You are managing a property owned by Bill Russell, and the resident's name is Donald Chaney. Your lease states Mountaintop Property Management Company as the Landlord, with no mention of Bill Russell anywhere in the lease. The property manager in the above case has made a serious mistake. The landlord is responsible to the resident for all obligations imposed by the lease and Florida law. Therefore, unless the property management company owns the property, it should never be listed as the exclusive landlord. You should also keep in mind that if an agent (in this case, the property manager) acts on behalf of an undisclosed principal, (in this case, the owner) the agent can be held 100% responsible for all obligations of the principal. Therefore, never fail to disclose who the owner is on the lease. If the property manager in the above fictitious example is signing the lease, then it should be clearly written that the lease is between Donald Chaney as resident and Bill Russell as Landlord through its agent Mountaintop Property Management Company.

Proper selection procedures must be followed

Your criminal background check on a resident has come back. There is a misdemeanor conviction for a traffic offense. You wonder whether this applicant should be approved, and our office continues to receive questions from property managers asking us if a particular applicant should be approved. These questions come in to us day after day. As soon as the question is asked, we become concerned that the property manager may not be in compliance with fair housing laws. Why, you ask? To be in compliance with fair housing laws, there should be clearly written Resident Selection Criteria. Your Resident Selection Criteria should always be followed strictly, and the property manager should not have discretion to deviate, even if he sincerely believes that the resident is a bad fit. If you do not apply your selection criteria in a uniform fashion, then you become vulnerable to claims of discrimination. Therefore, you should be approving or rejecting applicants on predetermined selection criteria, and not based upon your attorney's opinion. If the applicant falls into a gray area based upon your Resident Selection Criteria, then a call to your attorney will make sense.

Excessive carpet replacement charges

The property manager should use the least expensive option when repairing or replacing carpet damage. In addition, the property manager may not charge full replacement cost for a carpet that is not new. Suppose that Tim destroyed his carpet and the carpet is three years old. If the carpet had a useful life of 5 years, then Tim should only be held responsible for the remaining two years, which is 40% of the cost. It would also be impermissible to upgrade the carpet at Tim's expense. Litigation over carpet charges can take place in both collection actions and security deposit disputes, and you must prove your case! Excessive charges can lead to nasty results, including being on the hook for thousands of dollars in attorney's fees in the event the resident contests the deposit claim and hires an attorney; the owner could be held responsible for the resident's legal fees and costs if the prevails at trial. To learn more about this subject, including tips for proving your case, you should read our article, Carpet Damage

Your attorney should draft the Seven-Day Notices

Many property managers fail to realize that the creation of a proper Seven-Day Notice is just as important as the drafting of the eviction complaint which is filed in court. The property manager who would not dare attempt to draft the eviction complaint all too often falls into the trap of preparing the Seven day Notice. Here is why that is foolish; if the Seven-Day Notice is defective, then you are tying the hands of your attorney, who will be stuck with it throughout the eviction process, and who may not be able to gain judicial approval of the eviction. Another potential downside is that the property manager will refuse rent after the notice is delivered, only to discover that the attorney does not believe a good case exists. This can make subsequent rent collection efforts tricky. Even if the landlord has a good case for termination, a poorly worded notice will end up wasting time, as the attorney will often require the property manager to redo the notice. A seasoned attorney should prepare the notice, as he or she will have a good feel for what judges require. Some attorneys charge large amounts for the notice preparation; our firm does not charge our clients for this service. Regrettably, many property managers learn the errors of their ways by losing their Seven-Day case, and possibly also getting slapped with a large attorney fee award granted to the residents who were victorious in court due to the defective notice.


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by Harry A. Heist, Attorney at Law


In our article The Tenant Non-renewing The Month To Month Tenancy we examined the mechanics and looked at concrete examples of how a resident should non-renew the month to month tenancy. The date the resident notifies you he is vacating will affect what the resident owes you, if anything. While this is all nice, the fact remains that the resident often will just do what she wants, tell you she is leaving, pack up and leave. Good luck penalizing the resident or collecting the following month's rent because the resident failed to follow the law. However, it is not worthless to require proper notice, as many residents do follow the law and live up to their obligations. Therefore, it is crucial for you to know the mechanics, so you can properly advise the good, responsible resident on how and when to give you notice. More importantly, when you are non-renewing the month to month resident, you must strictly follow the law. Unfair as this may seem, the resident can hold you to the law, and doing the notice improperly could lead to serious legal ramifications, especially if it was crucial to you or the property owner that the resident vacate according to the Notice of Non-renewal. If you fail to properly non-renew a month to month tenancy, your attempt becomes void, and basically you must start over again from scratch. The fact that you may have given short notice or even the proper number of days notice can be nullified by when or even how you gave notice to the resident. You might think that if you shorted the notice or gave it on the wrong date, you simply need to wait until the end of the next month or until the time on your notice elapses, but unfortunately, time will not cure a defective notice. Just like giving a Three Day Notice that expires a day early, your waiting a couple more days does not "cure" the defective notice. You have to start all over again.

The Dangers of Doing It Wrong

Usually there is a definite reason you or the owner want to non-renew a month to month resident. It may be that the owner wants to move back into the unit, the resident is chronically late, the owner wants to sell or rehab the property, the property has been sold or is under contract, the residents are causing problems: the list goes on and on. If you non-renew the month to month resident incorrectly and must start all over again, serious time can be wasted. In other words, a simple error in non-renewing a month to month resident could result in killing an important real estate transaction, in which huge amounts of money are at stake, or resulting in you losing good residents who may living in surrounding units if you can't get the problem resident out and become delayed.

How much notice is needed to non-renew the Month to Month Resident

15 days of course, right? Hold on there. While you read in the article The Tenant Non-renewing the Month To Month Tenancy that the resident only must give at least 15 days' notice prior to the end of the monthly rental period, the landlord is actually held to a different standard. If the lease is silent on notice, the landlord has to give at least 15 days' notice prior to the end of the monthly rental period just like the resident, BUT if the lease requires MORE notice, the landlord MUST follow the lease agreement. You may feel that since the lease agreement is expired, it has no meaning, but this is completely incorrect. You still are held to the terms of the expired lease. The first step is to examine the lease carefully. We recommend that the landlord give at least the same amount of notice to terminate the month to month tenancy as the landlord has required of the resident. The number of days notice and the timing of the notice are the two main factors that can get the manager or landlord in huge trouble if the Notice of Non-renewal is incorrect. Always remember that the number of days notice is the minimum number of days' notice to be given PRIOR to the end of the monthly rental period. The most common mistake by landlords is to think that they can give 15 or 30 days' notice any time they wish, and that the resident must vacate at the end of that 15 or 30 day time period.

How must the Notice Of Non-renewal be served?

Florida law does not explicitly provide how you must serve the notice; the important thing is that you can prove the resident got the notice. Again, you must go to the expired lease and carefully look to see if there are any requirements of the parties to serve notices to each other in a certain fashion. If your expired lease requires that the notice be mailed, you MUST add 5 additional business days on the front end of the notice for mailing time. Don't think that since you mailed it in the 15 or 30 days before the end of the monthly rental period as required by Florida law or the expired lease, you just have to wait another 5 days, and your notice is now fine. Your notice was defective the minute you failed to mail it at least 5 business days before 15 or 30 days prior to the end of the monthly rental period. Time does not cure the defective notice, and again, even though the lease is expired, you still must follow what the expired lease provides.

Best Practices on Notice of Non-renewal serving

There will come a time when your resident is extremely upset that the month to month tenancy is being non-renewed, especially if the month to month tenancy has gone on for some time. The resident may deny getting the notice. Serving the Notice of Non-renewal multiple ways is your safest bet. Serving the Notice of Non-renewal by regular mail, certified mail, hand delivery and posting on the door of the unit if the resident is not home or refuses to answer the door, may seem excessive, but just wait for the day when the resident denies he ever got notice. Private process servers also are available to serve notices, and their word and affidavits of service are well respected by the judicial system. If you need a name of a private process server, give us a call, as we use them all over the state.

Concrete examples of non-renewing the Month to Month Tenancy

The below examples assume that the monthly rental payment period begins on the first day of the month. If the lease requires the rent to be paid on a day other than the first day of the month, we recommend that you call your attorney for advice on when to give the Notice of Non-renewal, as things can get tricky and confusing, another reason to always have rent due on the first day of the month.

Example Set #1- Lease is silent on how many days' notice for terminating the month to month tenancy, or lease states 15 days

1. Landlord gives resident Notice of Non-renewal on 5th of September, stating the resident must vacate by 30th of September.

Result: This is perfectly proper notice, and if the resident fails to vacate, eviction can begin.

2. Landlord gives residents notice on the 4th of September, stating they must vacate on the 28th of September.

Result: This is not proper notice, and the residents do not have to vacate, and the landlord will have to start over again. The notice should have ended on September 30th.

3. Landlord mails resident notice on 15th of September, stating he must vacate by the 30th of September.

Result: This is not proper notice, and the resident does not have to vacate, and the landlord will have to start over again. The notice is short.

4. Landlord gives resident notice on 1st of September, stating she must vacate by the 16th of September.

Result: This is not proper notice, and the resident does not have to vacate, and the landlord will have to start over again. The notice should have stated that the resident was required to vacate by September 30th.

5. Landlord gives residents notice on the 17th of September, stating they must vacate by the 5th of October.

Result: This is not proper notice, and the residents do not have to vacate, and the landlord will have to start over again.

Example Set #2- Lease states 30 days' notice must be given to terminate a month to month tenancy

1. Landlord gives resident notice on 31st of August stating he must vacate by the 30th of September.

Result: This is proper notice, and if the resident fails to vacate, eviction can begin. 2. Landlord gives resident Notice of Non-renewal on 5th of September, stating the resident must vacate by the 6thth of October.

Result: This is not proper notice, and the resident does not have to vacate, and the landlord will have to start over again.

3. Landlord gives resident notice on 5th of September, stating she must vacate on the 30th of September.

Result: This is not proper notice, and the resident does not have to vacate, and the landlord will have to start over again.

4. Landlord gives residents notice on 1st of September, stating they must vacate on the 30th of September.

Result: This is arguably not proper notice, and the residents do not have to vacate, and the landlord will have to start over again. Arguably, it is short by one day.

5. Landlord gives resident notice on 20th of September, stating he must vacate by the 20th of October.

Result: This is not proper notice, and the resident does not have to vacate, and the landlord will have to start over again.

The Extension Request

Inevitably you will be put in a situation when the resident requests more time. This request and your response has to be treated with extreme care, as it can result in false expectations, misunderstandings and potentially create a situation in court where you have a "he said/she said" battle, which may or may not involve an out of state owner of the property who may or may not have to appear in court. When asked by resident for an extension of time, if you feel it is warranted, or you feel the property owner may agree, clearly tell the resident that no extension will be granted unless the property owner agrees and everything is put into writing. If it is your own property, this is not an issue, as you can make a decision immediately, but if you are managing for another, you will need to check with the property owner, obtain clear direction from the property owner in writing (email is fine), and then relay it to the resident immediately with the resident signing an "Agreement to Vacate" form. If there are multiple residents, all residents must sign this form. If only one resident is available, give the resident a deadline to have all residents available to sign the Agreement to Vacate, or indicate the Notice of Non-renewal stands. This is when everything usually falls apart. It is crucial to be definitive and firm with the resident, and document everything in writing with the resident. Any delay or failure on your part to get back to the resident with an answer will be conveniently interpreted by the resident as implicit agreement to the requested extension, while you have no agreement in writing. By telling a resident that he can have an extension, you essentially have voided your Notice of Non-renewal. You can't then fall back on the original Notice of Non-renewal. If the resident does not sign an Agreement to Vacate if an extension is granted, you could lose an eviction action, or have to re-do the Notice of Non-renewal, resulting in potentially damaging delays if the resident fails to vacate on the new agreed upon date. Never trust that residents will do "what they are supposed to do". Assume the opposite, and if you are not sure how to handle an extension request, the best thing you can do is call your attorney immediately before doing anything.


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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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