Is The Unit Ours Yet?
By Michael Geo. F. Davis, Attorney at Law



There are three ways a landlord obtains possession of a rental unit: surrender, abandonment or eviction. Abandonment and surrender are covered here. Once the landlord has obtained possession by any of the three methods, he may be required to deal with the resident's remaining personal property, if the resident has left any behind.

A. Surrender 1. Introduction

There is no statutory definition of surrender. The landlord must conclude that the residents have surrendered the rental premises from all the facts and circumstances. A perfect surrender would occur when all residents on the lease together hand the landlord their keys and a signed confirmation of vacating the rental premises, indicating that they are surrendering the premises and relinquishing any rights to personal property left behind, and the unit has no one remaining in it. Most surrenders are not perfect.

2. All Parties Relinquish Right to the Premises

It is imperative in any surrender of the rental premises that the landlord is certain, and not simply assumes, that all residents are unequivocally relinquishing their rights to the premises. Given his desire to achieve the minimum vacancy loss, a landlord may be all too willing to rely on general or ambiguous statements, emails, notes or other communications from or by a resident. When dealing with multiple lease signers, the landlord must be sure that the surrender of the premises is the act of all the lease signers. All too often a dispute between roommates ends with one roommate surrendering the premises allegedly on behalf of everyone without the other roommate's knowledge or consent. A landlord, taking possession of the premises in such circumstances, may find himself liable for locking a resident out or improperly disposing of a resident's personal property.

3. Written Notification

A resident may mail the landlord a letter, send an email or drop a note in the drop-box that he is vacating. Too often these written notifications will be ambiguous as to whether the resident is surrendering the premises on a date certain and disclaiming all rights to any personal property remaining. Even if the notification is clear and certain, such as a signed confirmation of vacating the rental premises on the landlord's own notice to vacate, if the keys are not returned, the landlord must exercise caution. The resident may have changed his mind. The resident continues to have the right of possession until he actually vacates, regardless of any written notification. The landlord cannot impose the surrender on the resident by physically forcing the resident to move or changing the locks. The landlord's remedy is an eviction action and/or a lawsuit for damages.

4. Returning the Keys

Most people, including many judges, would say the litmus test of surrender is the return of the keys. The return of the keys is just one factor, albeit an important factor, in determining a surrender. In cases when there are multiple lease signers, an equally important factor is who returned the keys. If less than all the lease signers returned the keys, everyone may not have surrendered the premises. The landlord must examine the circumstances to be sure that the keys are being returned by or on behalf of all lease signers. If in doubt, the landlord should contact the absent lease signers to confirm that they too are surrendering the premises.

5. All Residents Sign Confirmation of Vacating

There are numerous problems with relying on conversations with or notes from surrendering residents. A landlord relies at his own risk on the representations of the surrendering resident that the absent lease signers are surrendering the premises. When possible, one solution is to have all residents sign a confirmation of vacating the premises and have the keys returned. While a signature can be forged, forging a signature escalates the matter to a crime. Assuming that the landlord had no complicity in the forgery and that the signature is reasonably like the signature on the lease, a forged confirmation of vacating may provide the landlord with some protection from or mitigation of a lawsuit for wrongful possession or disposal of personal property, as well as give the landlord criminal and civil recourse against the forger.

6. Property Inspected

A landlord cannot rely on the representations of the resident that the rental premises are empty. The landlord should immediately inspect the premises to insure that no other occupants are present and that the resident's personal property has been removed. Also, the landlord may sometimes find the keys left on the premises.

7. No Known or Unknown Parties Remaining

No one else can be occupying the premises. Even if no one is there, if the landlord finds any remaining personal property, like clothes or toiletries, that suggest some one is still occupying, then the landlord must proceed with caution. The locks should not be changed. Further investigation is needed. It is the resident's responsibility to have everyone occupying the premises vacate, whether the occupants are there with the consent of the resident or not, authorized or not by the landlord, or on the lease or not. The resident cannot surrender the rental premises if anyone else is occupying it. It is not the landlord's responsibility to sort through the legality of any occupant's claim of a right to the premises. The resident will have to seek his own legal counsel to resolve the removal of occupants unwilling to voluntarily vacate. The landlord cannot resolve this for the resident unless the landlord files eviction against the resident and removes everyone with a writ of possession.

8. Early Surrender

Situations arise where the resident indicates that he is surrendering the premises early but continues to pay rent through the end of his lease. The resident may need to leave several weeks or months early, for instance, to start a new job elsewhere. The resident may give a written notification and turn in his keys and completely remove all personal property. The landlord should seek his attorney's advice in these situations. Even though the rent is paid, the tenant is relinquishing his right of possession, which actually helps the landlord mitigate the resident's potential loss; the resident's rent obligations have not terminated under the rental agreement. With possession rights relinquished, the landlord can actively seek to find a replacement tenant, but should make clear in writing that the resident potentially remains liable for all rent owed through the end of the lease, pending a reletting.

9. Penalties

The penalty for prematurely locking a resident out is the resident's actual damages, with the minimum damages being an amount equal to three months' rent. An additional three-month rent penalty applies if the landlord prematurely disposes of the resident's personal property, even if the personal property involved is apparently of little value. In addition to his actual or the statutory minimum damages, whichever is greater, the resident is entitled to his court costs and attorney's fees. Finally, the landlord may face a claim for civil theft and possibly criminal charges. There is an additional danger in a surrender scenario that usually doesn't exist in an abandonment case. In order to file eviction the landlord needs a reasonable belief that the resident has not surrendered. If he unreasonably files eviction, the landlord may be liable to the resident/defendant for negatively impacting his rental history.

B. Abandonment 1. Introduction

Under Florida law, there are two ways abandonment can be established: (1) the landlord has actual knowledge of abandonment, or (2) the landlord can meet all three parts of the following test to create a presumption of abandonment: (a) the rent is late, (b) the resident did not inform the landlord of an intended absence, and (c) the resident is absent from the premises for at least 15 straight days. (Since almost universally the time under a lease for the periodic rental payment is monthly, we will consider 15 days as the "period of time equal to one-half the time for periodic rental payments". A fifteen day absence is required for month-to-month tenancies also.)

2. Actual Knowledge

The problem with the first standard, actual knowledge of abandonment, is that the law does not define this phrase. There is no statutory definition of "actual knowledge" of abandonment. Neither the attorney nor anyone else can tell the landlord if he has actual knowledge. Either he can claim it or he can't. If he feels comfortable that his contact or correspondence with the resident confirmed that the resident was abandoning the rental unit, including any remaining personal property, then the landlord can claim actual knowledge. The landlord may at some later date have to explain to a judge how he knew the rental was abandoned. This will be much easier to recall if the landlord enters his reasons in the resident's file along with any resident notes, emails, correspondence, telephone messages or other writings helping to establish the landlord's actual knowledge. The easiest case may be when the resident tells or writes the landlord that he intends to break the lease and leave. The landlord checks the property, and the resident and all his possessions are gone. A completely cleared out rental should satisfy a judge that the landlord has actual knowledge. True trash should not be a concern. It is common for a landlord to talk to the neighbors, who will often tell the landlord that they "know" the resident left for good. This is not the landlord's actual knowledge. It is a factor that the landlord can take into consideration.

3. The Presumption - Rent is Late and No Notice of Intended Absence

If the landlord doesn't have actual knowledge of abandonment, then he must rely on the presumption established through its three elements: rent owing, no notice of absence and 15 days not seen. The first element, rent being late, is pretty straightforward. Note that the presumption cannot be used if the resident is current in his rent, even if it appears almost certain that he has permanently vacated. The landlord has to wait for rent to be owed under this test. The second element, no notice of intended absence, includes of course, any direct communication from the resident that he will be away from the premises. It also includes any indirect information that the landlord learns, for instance, a neighbor indicating that the resident said he was going on vacation.

4. The Presumption - not seen for 15 days

Conclusively establishing 15 days of no activity can be very difficult. Although some landlords have been known to put tape at rental entries to show the requisite lack of activity, for most landlords the conclusion that the resident has been absent for 15 days is a conclusion drawn as their best guess. It's based on more or less frequent checks of the rental premises, talking to neighbors and any other information that the landlord can gather indicating that no one has been around. The landlord should enter the facts supporting his presumption in the resident's file.

5. Hospitalization or Incarceration

A resident who is behind bars, who is in the hospital or who has been committed by health officials has not abandoned the premises. A resident who is in the hospital or in jail has no choice but to be absent from the premises. A resident who is institutionalized due to possible incompetency, might not be able to make a legally responsible decision to abandon. In these situations the landlord should file an eviction action. Attorneys hold differing opinions on serving a copy of the Three-Day Notice to Pay Rent or a Seven-Day Notice of Noncompliance without Opportunity to Cure on the resident at the hospital, institution or jail. Some find it advisable to avoid the possible confrontation, and perhaps litigation when an uninformed resident returns to find all his possessions gone. Others advise it is not required by statute and may be seen as precedent for the landlord's self-imposed duty to provide even more assistance or notice to the resident.

6. The Value of the Property

The best practical guide to abandonment is the value of the property left behind. Start with the assumption that most people don't abandon valuable items. This is just as obvious and logical to judges as it is to the person on the street. If the total value of the property is $500.00 or more, than characterizing the rental unit as abandoned is risky. The landlord is advised to forego the abandonment analysis and do the eviction. There are cases of abandonment when the personal property left behind ius valued over $500.00; however, these cases are the exception. If a landlord feels that he has such a rare case, he is advised to consult with his attorney before taking any action to repossess the rental unit and dispose of the remaining personal property. If the landlord ever finds a rental full of furniture, his attorney's advice is absolutely necessary. If the total value of the property is less than $500.00, the landlord cannot assume that there has been abandonment. The landlord must still proceed with an analysis of the facts to ascertain if he has actual knowledge of abandonment or if he can rely on the presumption. If neither applies, then the landlord should file eviction and obtain the writ of possession, even if the value of the property is minimal.

7. Type of Property Remaining

Any remaining property of a personal nature (clothing, toiletries, personal records, photos, albums) suggests that the resident has not abandoned. Landlords who find any usable, decent furniture are encouraged to consult with their attorney, even if the items are less than $500.00 in value. This is often an indication that someone may still be occupying the rental unit, at which point eviction is the wisest route to retake possession. Even when it is fairly clear that no one is actually living in the unit, the resident can still tie up the unit by storing personal property within the unit, again making eviction the best option.

8. Other Indications of Abandoned

In addition to the type and value of personal property remaining on the premises, the following are some other factors to consider that may indicate that the resident has abandoned. They may assist the landlord in having actual knowledge of abandonment or support the presumption of abandonment: resident statements or writings; neighbor statements; the type and quantity of personal items left behind; utilities cancelled, shut-off or rolled over to the landlord; lack of sleeping arrangements (bed, mattress, sleeping bag); no edible food, canned or otherwise; rotting food in the refrigerator or kitchen in general; no pet food or water, if the resident had a pet; in single family home rentals the lawn, shrubbery or pool is not maintained, when these are the resident's obligations under the lease; and responses from emergency contacts. Note that the landlord can only leave a request with the emergency contact for the resident to get in touch with the landlord. He should not disclose any information to the contact, as such is a breach of the resident's privacy. All the facts should be considered and weighed. No one factor can be seen as conclusive. Something may be nothing more than a lease noncompliance. For instance, the fact that the electric is shut off is not conclusive of abandonment. It may only be a lease noncompliance by a financially struggling resident, who remains in possession. In establishing the condition and value of the remaining items or the condition of a rental that gave rise to the landlord's findings of abandonment, pictures are indispensable. In this day and age of cheap digital cameras, there is no reason that digital pictures of the rental and items should not be taken and included in the resident's file.

9. Notice of Abandonment

It is not advisable to use a notice of abandonment or other such written warning. They have little, if any, legal significance. They are often posted on the resident's door. In case of a break-in and an ensuing lawsuit, this posted warning can later to be found to be negligence on the landlord's part.

10. Dangers

Unfortunately, the Florida courts are not very helpful in clarifying the presumption, its elements or its application. Court decisions are based on the particular facts of each case, with similar cases being decided differently based on only slight changes in the facts. Since the landlord has the writ of possession as the available statutory remedy to remove the resident's personal property with complete immunity, the courts are inclined to give the benefit of the doubt to the residents in contested abandonment cases. The landlord must remember that even if the presumption is established by the landlord, it is only a presumption that is being triggered, and it can be rebutted by the resident in court. The landlord must accept the risk that the resident will return and litigate in an effort to rebut the presumption. This risk may grow smaller as the amount of rent and damages owed grows larger and as the factors supporting abandonment multiply, but it is nevertheless a risk that the landlord must accept in relying on the presumption. If the landlord receives credible information from a reliable source that would lead a reasonable person to have doubts that the resident is abandoning his property, then the landlord should not invoke the presumption of abandonment. A court may find that the landlord had a duty to investigate to the extent investigating was feasible and reasonably available. At a minimum a landlord cannot ignore information.

11. Penalties

The potential penalties for improperly locking a resident out or disposing of his personal property is the same for a mistaken abandonment as for a mistaken surrender: the resident's actual damages with the minimum damages being an amount equal to three months' rent for each offense, as well as possible civil theft or criminal charges. The downside is so overwhelming that avoiding the cost of a mistake is well worth the writ of possession, if the landlord is ever in doubt about whether abandonment of the rental unit has occurred.


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


A concession is a thing of value, usually in the form of a rent discount, given to a resident as an inducement to rent at the apartment community. Giving a rent concession is a common and effective marketing technique when trying to increase occupancy. The first month may be free, there may be a reduced security deposit, some product or service is given, or most commonly, the rent for the full or partial term may be reduced. A clear understanding of the concession is crucial to avoid problems later in the tenancy when the resident is in default, gets evicted or otherwise breaks the lease prior to the expiration of the term. A concession addendum should always be used rather than simply writing the terms on the special stipulation section of the lease, and this concession addendum must clearly spell out all the terms and condition of the concession. It should never be complicated, convoluted or ambiguous.

The Law and Concessions

Florida law does not address concessions; therefore, concessions are neither required, nor is there a limit to the amount of a concession or type that can be given to the resident. It is completely up to your company to decide how much and what will be given as a concession.

Fair Housing Considerations

Some companies do not have set rental rates and engage in negotiations with the applicant before coming to an agreement on the rental rate or concession. Your company may have a rental range under which the leasing agent attempts to lease at an amount most favorable to the property, but is allowed to work within the range and/or use a concession as a further inducement. It is crucial that at all times, your company keeps records of what concessions are and were being offered to the resident on any given day, and that these records can be accessed at a later time in the event there is an accusation of discrimination by an applicant or resident. Failure to have a set rental rate or a set concession on a particular day could easily open up a company to an assertion that the concession was not offered to an applicant who may be a member of a protected class. Residents will talk amongst themselves, and if it is discovered by a resident who is a member of a protected class that she was not given or offered a concession, the resident may assume that discrimination has occurred. Ask yourself this question: "Can I look up exactly what concession we were giving and the rent amount or range we were offering on a particular date 2 years ago?"

Advertising Concessions

If concessions are being advertised to the public, the terms need to be made clear, and if there is a particular time limit or expiration to the concession offer, this should also be clearly and fully disclosed. Advertising a concession, then not offering one or not allowing one due to an applicant's poor credit score, could be dangerous. If the concession is limited to applicants with a certain credit score or qualifications, the advertisement of the concession should state that fact. We highly recommend that any advertisement of a concession is reviewed by your legal counsel, as the risk is high that someone who is denied a concession could file a fair housing law complaint or lawsuit against your company, alleging that you have engaged in some fraudulent activity or unfair or deceptive trade practice. We feel that best practice dictates that if you are going to offer a concession, this should be available to any and all applicants who apply and are approved for occupancy.

Types of Concessions

a. Reduced or free rent: The most common concession is reduced or free rent for a set time period. Typically the first few months are at a reduced rate and then go up to the higher rate. Never should the higher rate be called "market rate". The amount must be clearly stated with no ambiguity whatsoever.

Security Deposit Waiver

With the required security deposit amount sinking each year for most apartment communities, a security deposit waiver is not much of a concession, but is currently one form of concession in use. The downside for the resident with this type of concession is obvious, but an extremely low security deposit also affords no protection either. If the security deposit is to be waived, generally using a chargeback on default provision is not advisable, as you are charging back a sum that technically belongs to the resident before deductions are made. Waiving a security deposit as a concession often means you will receive the least qualified of all applicants.

Products or services

An interesting marketing tool has been developing over the past few years, and this involves providing the resident with amenities, goods or services as an inducement to leasing. The resident may be provided with upgraded appliances, new carpeting, a free garage, free cable for a time period, or even a product, such as a flat screen television, or a membership to the local gym, or a service, such as or valet garbage collection. Whatever the concession may be, it is crucial that your company must be able to provide the concession, and that no deception is involved concerning the value of the concession. For example, if a gym membership is provided, and the gym subsequently goes out of business, your company must be prepared to convert this now unavailable concession to a cash discount to the resident. The value of the concession should be defined in writing at the time the concession is given and made clear, just in case the concession is no longer available. If the resident will be provided with a product, such as the use of a flat screen television, your company must be aware of the risk that the television will disappear upon the resident vacating or skipping, or that the television may malfunction, thus obligating your company to quickly provide a replacement. You will find that best practice does not include allowing the resident to receive an item that could malfunction, get damaged or disappear, such as a flat screen television. One lightning storm later, you may find yourself obligated to replace 20 flat screen televisions. When providing cable, that free cable package may change during the tenancy, resulting in the loss of the resident's favorite sports channel, the only one the resident watches of course. Unless the terms and conditions are written up properly to deal with all possible events that could relate to the concession, that great idea to attract new residents, or renew existing residents, can becomes a nightmare.

Resident Default and Concession Chargeback

Some concessions are given unconditionally, while others have strings attached. When a rent concession is given, it is generally assumed by the property manager that if the resident breaks the lease, bounces a check or in some cases pays the rent late, the resident is not entitled to a concession for that month, or even that no more concessions will be received, and that in the event of a lease break, the resident will owe back all concession amounts received. Whether or not a concession chargeback can occur depends heavily upon the wording of the concession addendum, and also whether or not the early termination addendum was used in conjunction with the concession addendum.

Chargebacks to Current Residents

If the concession addendum has a clause that states that the rent is reduced for a given month only if paid on time or by a fixed date, or else it reverts to the regular rent amount, the resident can be charged the regular rent amount if the rent is not paid timely. Some concession addendums indicate that the concession will be charged back if the resident fails to fulfill the entire lease term, which does not support taking away the concession in a given month when the rent is late. Moreover, problems will arise when the resident disputes the rent is late. Residents will back date checks, or disputes will arise about when the payment was delivered through the drop slot, or residents will come up with other reasons why they feel that rent was indeed paid on time. Complications occur when giving the Three Day Notice, as the amount on the Three Day Notice will either be the concessed amount or the regular lease amount, depending upon the terms of the concession addendum. Assuming the amount on the Three Day Notice is the full amount without a concession, the property manager will run into situations when the resident will pay the concessed amount and not the full rent amount. If the property manager accepts the lesser amount, a waiver could potentially occur. If you are going to successfully enforce the terms of the concession addendum, the resident's rent should not be accepted unless it is the full amount without a concession. If any lesser amount is tendered by the resident, it should be returned immediately. We recommend you read our article, "Returning rent to the Resident."

Concession Chargebacks and the Early Termination Addendum

If your company uses an early termination addendum, and the resident has picked Choice #1, which is the liquidated damages amount option, you SHOULD NOT charge back a concession to the resident upon eviction or lease break. While it is hard to comprehend how a resident who receives a massive concession for 3 months could be evicted or skip and not have the concession he received charged back to him, you must examine the legislative history of the early termination addendum to understand. As the proponents of the law that now allows the early termination addendum were trying to get the early termination bill passed into law, they originally had wording in the bill allowing for a chargeback of concessions. Under threat of a veto from then Governor Charlie Crist, the concession chargeback wording had to be removed from the bill, and it was passed into law without the ability to charge a liquidated damage amount AND a concession chargeback. Simply put, if the resident picks Choice #1 on the early termination addendum, no concession chargeback can occur if the resident breaks the lease or is evicted.

If the resident did NOT pick Choice #1 but picked Choice #2, which is rent due plus any rent accruing until the sooner of the unit being re-rented or the lease ending, the resident can be charged back the concession amount according to the terms of the concession addendum.

A Common mistake

A common mistake we see in leases where a concession addendum is attached is the lease having the lesser concession amount listed as the monthly rent on the lease itself, rather than the proper full amount. This mistake is very common and will result in the resident having an unintended concession for the entire lease term. This mistake could result in a significant loss of money, and cannot be overcome by trying to assert that the leasing agent or manager made a mistake, and that all parties knew what the proper amount was, or that the resident was just trying to take advantage of a mistake. Judges routinely will hold that the rent will be what the lease states; any ambiguity is construed in favor of the resident, and the resident gets the full benefit of the mistake.


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The Resident In Bankruptcy
by Brian P. Wolk Attorney at Law

For many property managers, the eviction process is a source of great frustration. Managers must be patient, as budget cuts have slowed down the court system and the sheriffs' civil process divisions. In addition, the property manager may be dealing with a resident who is contesting the eviction, causing hearings to be scheduled by the judge. Meanwhile, the property manager's account receivable balances grow. This eviction process becomes even more complicated when a resident near or in the eviction process files for bankruptcy. Therefore, it is crucial at this stage to immediately consult with an eviction attorney. Although this may be a stressful time, as the bankruptcy process will be uncharted territory for many property managers, if you follow the advice of your eviction attorney, in most cases the resident will still be successfully evicted. One key point to remember is that once the resident files for bankruptcy, the property manager is prohibited under federal law from undertaking any collection or possession activity without first obtaining permission from the Bankruptcy Court, or the property manager will risk substantial penalties and liability.

The Chapter 7 Bankruptcy

In most cases, the resident who files for personal bankruptcy chooses what is referred to a Chapter 7 petition. It is also called liquidation. The resident's assets are liquidated to satisfy his debts. The resident in this case has typically racked up insurmountable debt and is seeking to discharge it. The debts are usually discharged in less than five months from the time of the bankruptcy petition being filed. The vast majority of creditors, including the landlord, will not be able to collect any monies owed, except for the amount of the security deposit retained, a fund already in the landlord's possession. Unless the debt has arisen from a bad act, a family court ordered obligation or a tax, the resident will likely have the debts discharged in full. There is some good news; the law provides a mechanism that allows the property manager to evict a nonpaying resident who files a Chapter 7 petition, if approval is obtained from the Bankruptcy Court, without having to wait for the bankruptcy case to be completed in full.

The Chapter 13 Bankruptcy

The law also authorizes the property manager to evict the resident with bankruptcy court approval who has filed a Chapter 13 petition without having to wait for the bankruptcy action to be completed in full. The Chapter 13 petition differs from the Chapter 7 petition, because it is not liquidation. Rather, a payment plan is created so the resident can attempt to catch up on payment obligations. The resident must be a wage earner, and the payment plan typically lasts for three to five years and is administered and monitored by a Chapter 13 Trustee who is employed by the Bankruptcy Court. In rare instances, individual residents elect to file a Chapter 11 petition, and it is very similar to a Chapter 13 petition in many respects, except that the debts might be more substantial.

Notification of the bankruptcy

The property manager usually learns that the resident has filed for bankruptcy protection because the resident has verbally indicated this, the property manager has received a written suggestion of bankruptcy from the resident's attorney, or the property manager has received official notification from the Bankruptcy Court. In all cases, because the stakes are high, you should notify your eviction attorney immediately. When a resident files for bankruptcy under any chapter of the Bankruptcy Code, all creditors, including the landlord or property management company, if listed on the petition, should receive directly from the Bankruptcy Court a notice that the bankruptcy process has been initiated. That document is called a notice of commencement. All bankruptcy filings are public record, so if you have not received a notice of commencement from the Bankruptcy Court, you or your attorney should be able to confirm fairly quickly whether your resident is or is not in bankruptcy.

Automatic Stay

Once the resident has filed for bankruptcy, all rent collection efforts must be halted, and in most cases there will be an automatic stay on the eviction under federal law. Essentially this means that bankruptcy law has put a stop to all rent collection actions, and in most cases eviction actions for possession of the premises. The automatic stay remains in effect until the dismissal of the bankruptcy case, the entry of a discharge, or an order for relief from the Bankruptcy Court. If the resident has filed bankruptcy and is not voluntarily paying the rent, then it is often not in the property manager's best interest to wait until the case is dismissed or discharged. In this situation, the landlord's best option may be to have an attorney obtain an order for relief from the Bankruptcy Court.

Relief from the Bankruptcy Court

In order to obtain relief from the Bankruptcy Court, a motion to obtain relief from the automatic stay must be filed with the Bankruptcy Court. The process of obtaining relief from the Bankruptcy Court generally takes 25-40 days in a Chapter 7 petition, if the resident does not contest the relief request. The time period is often longer with regard to a Chapter 13 petition, since a preliminary hearing will usually be required in a Chapter 13 case. The time required to obtain relief will be greater in a Chapter 7 case if a preliminary hearing is required, particularly if a final hearing is scheduled, or if the resident pays rent under an adequate protection order reached at the preliminary hearing, which is uncommon. Not all attorneys licensed in Florida can practice in Federal Bankruptcy Court. The attorney that files the motion to obtain relief from the automatic stay must be admitted to practice in the Bankruptcy Court in the federal district where the bankruptcy petition was filed.

Is relief from the Bankruptcy Court always necessary?

If the resident continues to voluntarily pay the rent, the landlord will probably not need to file a relief motion, unless the landlord wants to pursue some other lease noncompliance unrelated to rent payment. If a rental agreement is signed after the bankruptcy petition was filed, the automatic stay technically does not apply; however, a renewal lease may be covered by the automatic stay. If the resident files the bankruptcy petition on a date after the final judgment for possession is signed by the county judge, then the automatic stay is technically not in force. Therefore, the timing of when the bankruptcy petition is filed can have a major effect on how the property manager deals with the bankruptcy. The automatic stay on all rent collection efforts and on the eviction action will apply to all other scenarios if there has been no final judgment at the time the bankruptcy petition was filed. If the resident files the petition before a Three Day Notice is delivered, then the landlord is prohibited from serving that notice unless the automatic stay is lifted. Likewise, if the resident is served with a Three Day Notice and the landlord subsequently files an eviction, there will still be an automatic stay imposed if the resident files the petition prior to the final judgment of eviction being signed.

Liability if Federal Bankruptcy Automatic Stay Provisions are not complied with by the Property Manager

There will be serious consequences if the landlord or property manager fails to adhere to the automatic stay on all rent collection actions or if applicable, the stay on the eviction action. First, the action would be void, and if the eviction were completed, it would be deemed to be illegal and the resident would be entitled to regain possession of the premises. The property manager and landlord could be sued for actual damages, punitive damages, attorney's fees and court costs. In addition, the landlord and property manager could be held to be in contempt of court, since the automatic stay is a court order which authorizes the court to impose substantial fines.

Scrutinize applicants who have filed bankruptcy petitions


The property manager must be very cautious if an applicant has a history of filing one or more bankruptcy petitions, particularly if there is any pattern of bankruptcy petition dismissals. That makes it very possible that the resident will move in, file a new bankruptcy petition, live rent free for a few months, and then allow the bankruptcy petition to be dismissed, only to move on to a new, unsuspecting landlord and start the whole cycle all over again. It is also dangerous to rent to the applicant in bankruptcy, because the bankruptcy petition can later be converted to a different chapter, which will have the effect of snaring the lease transaction under the automatic stay. It is also not uncommon for the current case to subsequently be dismissed, with a new petition filed snaring the lease transaction, subjecting the property manager to the automatic stay. You should make sure to consult with your eviction attorney should you have any questions on how you should proceed.

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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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