Pets and the Property Manager
by Michael Geo. F. Davis, Attorney at Law



Advertising a community as pet friendly can be a valuable marketing tool for the landlord. Any marketing benefit can be quickly overwhelmed by the potential for pets disturbing the neighbors or exposing the landlord to significant liability. It is important to implement pet authorization processes and understand the operational dangers of pets in order to reap the income and occupancy that pet owners can provide, without suffering the complaints and losses that they can cause.

Service Animals

Service animals are not covered in this article. The landlord is strongly advised to consult with an attorney specializing in fair housing law matters whenever dealing with a request for a service animal. This is especially important, as it appears that the rules governing service animals have been modified for facilities that are open to public use, such as the leasing office. Since most if not all of an apartment community, excepting the leasing office, are normally available only to residents and their occupants and guests, the rules on service animals, including "comfort animals", remain unchanged. It is only noted here that the landlord may not charge a pet deposit, pet fee or pet rent for a service animal, but the resident is responsible for the behavior of a service animal just as with any other pet. An attorney should be consulted for an explanation of the other restrictions or limitations on dealing with a service animal or a request for a service animal.

The Pet Application

The ability to keep a pet on the premises is a privilege extended to the potential resident and not a right of the resident. The landlord should view the pet as another occupant of the apartment and require an application for the pet. The landlord is entitled to charge a fee for a pet application. The pet application is not the same as a pet addendum. Just as the applicant/resident completes an application, and if approved, signs a lease, the completion of a pet application and its approval is required before the applicant/resident signs the pet addendum. A comprehensive pet application will eliminate many potential issues at the outset. Upon later finding that one or more representations on the pet application were false, this can be used as a basis for demanding the pet's removal or terminating the lease, just as one or more false representations on the resident's application can be the basis for terminating the resident's lease. The pet application should clearly state that pet application fee is a fee for processing the pet application and not a deposit, and is not refundable, or state the conditions upon which it is refundable, for example if the pet application or the resident's application is not approved. The pet application should at a minimum require the number of pets, a complete description of the pets, and each pet's name, breed, age, current weight, estimated weight at maturity, coloring, shot history, pregnancy, veterinarian and any past instances of aggressive acts, attacks or biting. Many applicants with an aggressive dog with a bite history have been asked to leave a prior rental. The landlord can require a copy of the pet's registration and confirmation from the pet's veterinarian regarding the breed and/or shot history.

Viewing the Pet Prior to Approval

Most importantly, the pet application should require that the pet be presented to management for viewing, photographing and observing its demeanor. The most comprehensive pet application is often rendered useless by the failure of the landlord to follow through on the required pet viewing and photographing. Applicants with problem pets can make a pet sound perfect on the pet application. They often have ambiguous breed characterizations, such as "mixed breed", "terrier mix", etc. to disguise a prohibited breed. They can later claim that they made a good faith estimate of the pet's breed or weight, or didn't know that the pet was pregnant. They may even bring a pet to be viewed that isn't their pet. This can create significant proof problems for the landlord when removal of the pet is demanded. The landlord can help avoid these pitfalls by observing the pet's demeanor in person and taking picture to attach to the pet application. Even a pet of a traditionally friendly breed can have obvious anger management issues.

Refusal of Pets

With the exception of service animals, there is no right to have a pet in the resident's premises or on the community grounds in general. The landlord may refuse a pet for any reason. The landlord should document the file with a nondiscriminatory reason for the refusal in case he is later accused of direct discrimination in his pet approvals or using pet refusals as an indirect method of discrimination. It is much easier to refuse a pet than to deal with problems later from an authorized pet.

Pet Addendum

It is suggested that within the lease itself, the landlord should not include detailed provisions governing pets; rather, the lease should contain an absolute prohibition against any pets whatsoever, including visiting pets, without the landlord's written authorization. This will support the landlord's position on unauthorized pets, when the claim is made that a pet is just visiting. If the pet application is approved, the pet addendum should be signed at the same time as the lease and other leasing documents. It is a mistake to approve the resident and sign the lease with the "understanding" that the pet addendum will be signed once the pet is viewed and photographed. If the pet is later rejected, some serious discord could result. Although the pet application states the pet's particulars, the pet addendum should also include that information (number, description and each pet's name, breed, age, current weight, estimated weight at maturity, coloring, shot history, pregnancy, veterinarian and any past instances of aggressive acts, attacks or biting). The landlord should be careful to check the pet addendum information against the pet application. The pet addendum contains the rules and regulations governing the pet's conduct and the resident's obligations regarding the pet, such as barking, pet waste, leash use, pet areas, apartment cleanliness and odors, damage and disturbing the neighbors, to name a few.

Crucial Wording

A pet is a privilege and not a right. It is important that this be made clear in the pet addendum. The pet addendum should clearly state that the privilege of having an approved pet on the premises can be revoked at the landlord's sole discretion. If the pet addendum does not clearly state this, the landlord is left with the burden of proof that a pet is in violation of the pet addendum in any court proceeding to terminate the resident's lease and evict the resident for failure to remove the pet. While "at the landlord's sole discretion" may sound absolute, in practice "sole discretion" clauses do not permit the unbridled demand of the landlord. Courts have interpreted such clauses to require that the landlord's decision to invoke such a clause be reasonable and made in good faith.

Pet Deposits/Fees

The pet addendum should contain any required pet fee, pet rent or pet deposit. The addendum should distinguish between the three. The pet fee is a nonrefundable fee for the privilege having a pet on the premises and should ideally be collected at the lease outset. The landlord has immediate access to this fee as he would a rent payment. The pet deposit is a refundable deposit for any damage by the pet and should also ideally be collected at the lease outset, but like any security deposit, should be deposited into an escrow account. The pet rent is a monthly charge for the pet and should be labeled as additional rent. Terms like "nonrefundable pet deposit" or "refundable pet fee" are contradictions, which will usually be interpreted by a court to the resident's benefit. Fees are never refundable. Deposits are always refundable to the extent not claimed by the landlord for damage. Confusion can also arise if the landlord is not clear in the use of the term "pet fee". Some landlords use the term to mean a one-time fee, while others use the term to mean a monthly charge. Clarity is the key, as ambiguity within the lease will be interpreted against the landlord. The landlord should consider charging a pet fee and a pet deposit. Even if there is no apparent pet damage, the apartment will probably need specialized cleaning, for instance treatment for possible fleas and flea eggs. Residents are likely to dispute any charges for flea treatments, claiming there is no proof that their pet had fleas. The prior collection of pet fees can help the landlord cover these types of costs, while a deposit battle can be more contentious. If a landlord collects both a pet fee and pet deposit, will a judge require the landlord to first offset pet damages against the pet fee before allowing the landlord to make claims against the pet deposit? We think the answer should be "no", but the larger the pet fee, the more likely this type of outcome will occur in court. Labeling the pet fee and pet rent as "additional rent" will make unpaid amounts eligible for inclusion on a Three Day Notice to Pay Rent. An unpaid pet deposit should be collected through the Seven-Day Notice of Noncompliance process.

Use of Pet Deposit for Non-Pet Damage

An undesignated pet deposit will be deemed by a court as a deposit for pet damage only. It may not be used for any other damage or amounts owed the landlord, unless there is language in the pet addendum specifically providing that the pet deposit may be use for any other damage or amounts owed the landlord.

Signing the Pet Addendum without a Pet

Having a resident without a pet sign a pet addendum can lead to problems. In an effort to ensure that documents are not overlooked at lease signing, some landlords may have the resident sign all the addendums, including those that are not applicable to that particular resident. This will include a pet addendum usually showing "no pet". The resident can later argue that the pet addendum was the landlord's implied agreement to authorize a pet at a later date. The resident may even claim that the pet's future acquisition was discussed at lease signing and approved. If the pet addendum indicates $0 for the pet fee, pet rent or pet deposit, the resident may argue that, even if authorization of the pet is required, there was to be no pet fee, rent or deposit, as is shown by the pet addendum. Unnecessary issues are raised, whether or not the resident prevails on these arguments.


As careful as the landlord is at the initial leasing to authorize a pet, he is not always as diligent with renewals. Residents do acquire pets without authorization during the lease term. The resident may assume that the landlord knew of the pet at renewal and the renewal was an authorization of the pet. As part of the renewal process, the landlord should inquire about any pets. Landlords interested in good resident relations, as well as income, will not miss the opportunity to authorize pets (or inform the resident before renewal that the pet will not be authorized) and collect the fees and rent if the pet is approved. Updating pet registrations, if registration with the local authorities is required, should be part of the renewal process. An advantage of an updated registration is that current pet vaccinations are required for registration.

Removal of the Pet

If the landlord has decided to revoke authorization for the pet, the first step should be to talk to the residents. Most people are very attached to their pets and will not part with them. It is in everyone's best interests to amicably settle the issue. Perhaps an agreement to vacate with the resident remaining liable for rent until the premises are relet, or a mutual lease termination with the resident released from further lease liability can be signed. If not, the landlord should discuss the matter with his attorney to ensure that he has sufficient reason to revoke the pet privilege. In bite or attack cases there may be no need for a warning. In other less serious behavior cases a warning (Seven-Day Notice of Noncompliance with Opportunity to Cure) is required. If removal is called for, the landlord should send a letter demanding the pet's removal by a certain date. The landlord should check the lease and pet addendum for any required method of notice or time for removal. It the resident fails to timely comply, the landlord should send a Seven-Day Notice of Noncompliance with Opportunity to Cure for the failure to remove the pet, followed by a Seven-Day Notice of Noncompliance without Opportunity to Cure if noncompliance persists.

Unauthorized Pets

When the landlord discovers an unauthorized pet, he must take steps to remedy the lease noncompliance. Too often the unauthorized pet becomes the subject of inconsistent and spotty follow-up. The landlord may even inadvertently and unknowingly authorize the pet.

Seven-Day Notice of Noncompliance with Opportunity to Cure

The most common method of discovering that a resident has an unauthorized pet is from complaints by neighbors about the pet's or owner's conduct. The landlord's response should be to send the noncomplying resident a Seven-Day Notice of Noncompliance with Opportunity to Cure. In addition to the unauthorized pet violation, the landlord can include any conduct of the pet or resident that is also a noncompliance, such as excessive barking, failure to keep the pet on a leash while in community common areas, failure to pick up pet waste, etc. It is sometimes difficult to assemble enough evidence of the pet's continued presence in the rental to support a lease termination. This is especially true if the lease doesn't prohibit visiting pets. The resident will maintain that the pet is just visiting a lot, and even have a friend state that the friend owns and keeps the pet elsewhere. It may be easier to assemble proof of the noncomplying conduct to support a Seven-Day Notice of Noncompliance without Opportunity to Cure than it is to assemble proof of the pet's continued presence in the rental. Neighbors may more easily testify to the barking or failure to pick up pet waste, than to the twenty-four hour presence of the pet. The landlord should not include a demand for a pet fee, pet rent or pet deposit on the Seven-Day Notice of Noncompliance with Opportunity to Cure. Such a demand implies that the noncompliance can be cured by paying the fee, rent or deposit and may even constitute a waiver of the right to object to the pet if the fee, rent and deposit are paid. The Notice can only be cured by removing the pet, or successfully completing the pet application process and having the pet authorized.

Acceptance of Rent

The Florida Residential Landlord/Tenant Act provides that the acceptance by the landlord of rent when the landlord has knowledge of a lease noncompliance acts as a waiver to pursue that noncompliance. A landlord who accepts rent with the knowledge of an unauthorized pet waives that lease noncompliance. Although the law indicates the landlord may pursue subsequent or continuing noncompliances, some judges may rule that acceptance of rent with knowledge of an unauthorized pet, particularly many months of rent, may act as a permanent waiver. In a similar vein, a landlord that has accepted a pet fee, pet deposit or pet rent on a perceived unauthorized pet may lose the right to object to that unauthorized pet. This can particularly be a problem with restricted breeds.


If the landlord must proceed on the lone theory of an unauthorized pet noncompliance, he will need proof that the pet is present on the premises after the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired. The proof can include admissions by the resident, pictures of the pet, date and time stamped, witnesses who have seen the pet, pictures of the resident walking the pet, maintenance who will testify to pet food or pet bowls in the unit, pictures of the pet damage, picture of the pet coming to the window, and if the pet is a dog, recordings of barking or neighbors testifying to the barking.

Inadvertent or Unknowing Authorization

The landlord may inadvertently or unknowingly authorize the unauthorized pet. The most common way an unauthorized pet is authorized is by the landlord's inaction. A court is likely to believe that a pet that has been present for many months has been known to the landlord, who has tolerated the pet in order to collect rent. A landlord that has sent the resident a warning letter or a Seven-Day Notice of Noncompliance with Opportunity to Cure for an unauthorized pet without following up would have documented to the landlord's detriment his knowledge of the pet. A new owner or management company may face estoppel issues if the prior owner or management company was lax with regard to enforcement of the lease pet policies. The landlord's only remaining leverage at this point to require the pet's removal, or collect desired pet fees and deposits, may be to non-renew the tenancy if the resident does not want to meet the landlord's demands concerning the pet at the lease renewal stage. This brings us to another important point: the current landlord is often burdened with the knowledge and actions of prior landlords and their agents. New landlords should investigate the presence of unauthorized pets, talk to the noncomplying residents, and if needed, mark their files accordingly for special handling at renewal.

Pet Deposit Holding and Deductions

The pet deposit must be treated like any other deposit and held in the landlord's escrow account. The pet deposit is not refundable to the resident if the resident ceases having a pet. Like any deposit, it should not be claimed by the landlord or refunded to the resident until the resident vacates. The landlord claims the pet deposit in the same manner as the security deposit is claimed, on the Notice of Intent to Impose Claim on Security Deposit. The security deposit is always available for pet damage or unpaid pet rent, as well as for other damages or amounts owed. Assuming that the landlord's pet addendum provides for the use of the pet deposit for any damage or amounts owed the landlord, both the security deposit and the pet deposit are available for deduction of any pet damage, resident damage or any other amounts owed the landlord. Landlords that have required the removal of an unauthorized pet will often desire to collect standard pet fees and pet rent, even if the resident is evicted or otherwise breaches the lease by vacating early; without a signed pet addendum to support the pet fee and pet rent liability, we do not recommend attempting to pursue such amounts. Inclusion of an automatic fee in the lease for "unauthorized pets" may be considered authorization for that pet, notwithstanding lease language that strives to allow the landlord to charge the fee and continue to treat the pet as unauthorized.

Liability for Pet Attacks and Bites

Property damage caused by pets is chargeable to the resident whether the pet belongs to the resident or his occupants or guests. This is covered by landlord/tenant law and usually the lease. The more serious problem for the landlord is the landlord's liability for personal injuries caused by the pet. The most common injuries caused by pets are dog related.

Statutory Liability for Dog Bites

Florida Statutes provide that a dog owner is liable for damage to persons caused by a dog. Note that the statutes do not limit the liability to only biting. Any damage to a person results in liability. This would include such non-bite injuries as those arising from a person falling down if attacked or tripping over the leash or the dog knocking a person down. Also note that the law does not require the dog to be vicious. A friendly dog jumping at or on someone and injuring them or causing them to injure themselves can result in liability. The owner's exposure to a larger personal injury recovery increases if the dog has a past history of aggressive behavior or biting. Finally note that there is no first bite or first attack exception; the statute applies to the first instance.

Landlord Liability for Dog Bites

The important question for landlords is: can the landlord be found liable also? There is no clear answer to this question, as the issue is: was the landlord negligent? Since the landlord is likely to have more assets than the dog owner, the landlord can expect that he will be sued along with the resident. As each case depends on its own facts, and what facts can be presented in court and how those facts are viewed by judge or jury, it is very difficult to accurately predict a court outcome. The landlord must consult an attorney with personal injury defense experience. Suffice it to say that the landlord's defense will improve if he has a rigorous pet policy that he actually follows. A pet application with pet viewing, a pet addendum and consistent, immediate noncompliance notices for unauthorized pets or authorized pets with behavior issues will work to the landlord's defense. Failure to originally screen the pet, or serve, pursue and follow up on noncompliance notices can only lead a court or jury to conclude that the landlord was sloppy at best, and indifferent at worst, to the safety of residents and third parties.

Dangerous Dog List

There is no such thing as a universal "dangerous dog list". Since a pet on the premises is a privilege and not a right, the landlord is free to list any dog breed or mixed breed as unacceptable. The landlord is free to reject any dog, but the landlord should have clear policies as to when any particular pet will be rejected, so that the prospective resident cannot claim the true basis of the pet's rejection was based on discrimination against the resident, i.e., an alleged fair housing law violation. The landlord should check the local county and city ordinances, as they may restrict certain breeds. The landlord should check with his insurance agent and insurer as to any prohibited breeds for insurance coverage. A non-inclusive list of breeds or mixed breeds that landlords commonly exclude, either due to their size or believed aggressive behavior, are: Dalmatian, Boxer, Presa Canario, Chow Chow, Alaskan Malamute, St. Bernard, Husky, Siberian Husky, German Shepherd, Pit Bull, Rottweiler, Doberman Pinscher, Akita, American Staffordshire Terrier, Great Dane, Labrador Retriever, Wolf-Hybrid and Rhodesian Ridgeback.

Non-liability or Indemnification Lease Clauses

The language in the lease or pet addendum may provide some limited legal protection for the landlord. Florida landlord/tenant law doesn't allow the owner to release himself from all liability, regardless of any lease or pet addendum clauses so providing. A typical indemnification provision requires the resident to defend the landlord in any lawsuit over the pet, or reimburse the landlord for the costs of a defense and/or any judgment amount entered against the landlord. Even if there are effective lease or pet addendum clauses placing liability for the pet on the resident and indemnifying the landlord for any costs or expenses, they are only as much protection as the net worth of the resident, which may not be much.


The landlord should not assume that his liability insurance policy covers pets in general and dogs in particular. Insurance policy coverage is constantly changing, and the landlord, knowing that he was covered in a prior policy, should not assume that coverage remains. Many insurers are either excluding pet coverage in general, or personal injuries from dogs in particular, from liability policies. Florida statutory law does not deal with the right of landlords to require residents to obtain insurance. In the absence of any statutory prohibition, many attorneys feel it is permissible to require residents to obtain insurance, not only for the residents' own contents, but for liability for injuries to others or damages to the property of others. The landlord may require the resident to carry general liability insurance covering all potential injuries. The landlord may require the resident to carry supplemental liability insurance covering pet caused injuries, as a condition of a pet authorization. Since there is no statutory right to insist on renter's insurance, it must be required by a lease or pet addendum provision. The landlord may require proof of insurance and may require that the policy include a provision notifying him of any lapse in coverage. Proof of continuing insurance coverage should be required at the time of any lease renewal.

As can be seen, the issue of pets is much broader and more complex than merely authorizing a pet and forgetting it exists. The landlord must consider the potential for disturbances of neighbors, liability, insurance, collection of pet fees, rents and deposits and other factors not immediately apparent. The professional landlord will put in place processes and procedures that will maximize profits and occupancy without subjecting the landlord to unnecessary risk.




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Pre Access Inspections and the Move In Inspection Procedures
by Harry A. Heist, Attorney at Law


The Pre-Access Inspection

A resident never should be allowed access to the rental premises (hereinafter unit) for move in without the unit having a final, cursory inspection the morning of the actual move in. This is not to be confused with the full detailed move in inspection, later explained in this article, but rather is a brief, pre-access walkthrough to be performed by a staff member to make sure everything is in good shape, and that the unit will be acceptable to your resident soon to be taking occupancy. This pre-access inspection should never take place with the resident present.

Purpose - The purpose of the pre-access inspection without the resident present is to make certain the unit is fully ready for move in. A resident has a reasonable expectation that the unit will be fully ready and clean with no maintenance required. The unit may have been vacant for some time or possibly was undergoing some recent renovations. A resident who is presented with an apartment that is not completely ready or is in any way deficient could potentially attempt to break the lease, refuse to move in and seek the return of all money paid, including rent and deposits. In a worst case scenario, the disgruntled resident could attempt to hold your company liable for consequential losses related to the unit being in unacceptable condition, such as unexpected storage costs and additional, subsequent moving costs.

Types of things to looking for

Dead or nearly dead insects - The dead insect issue is one of the most common causes of move in problems. Often an entire building is treated by pest control, and some of the units in that building are in fact vacant and move in ready. These units may have sat vacant and ready for quite some time. Upon arrival with all their worldly possessions, your new resident is faced with one or more dead roaches, lizards or other interesting creatures in the unit. For those of us who have lived in Florida a considerable amount of time, dead creatures such as these are actually looked upon as a good thing and the result of your effective pest control company. Your new resident sees things quite differently. To them, this is a sign that your apartment community is not being maintained, but is in fact infested with undesirable and unwanted living or dead creatures. In other parts of the country, a roach or palmetto bug is equated with filth and low income housing. In Florida, it is just a naturally occurring problem, and insects of varying species and sizes can be found in multimillion dollar homes. Always work closely with your maintenance tech to make a final, pre-access walkthrough standard operating procedure.

Leaks, Mold and Mildew- A unit that has remained vacant for some time can easily develop a leak, with the resulting mold or mildew that occurs. A new resident faced with mold or mildew upon move in is likely to be upset, and the potential for a major problem exists. Vacant units should be checked on a regular basis, but often are not. This final check of the closets, cabinets, water heater and a/c area could detect a problem that is much better detected by staff, not a new resident.

Temperature of the Unit - It is not a coincidence that when you check into a hotel room, the air conditioning is not only on, but is set to a fairly low temperature. A warm room where the a/c has been off for some time will smell musty and sometimes downright bad. Odors, possibly from a new carpet or from a previous smoker, will be exacerbated by a warm, closed up unit. The unit should be aired out and the air conditioning on when the resident first steps foot into the apartment.

Benefits of the pre-occupancy walkthrough inspection -

Besides being able to discard of any dead insects in the unit, the final walkthrough inspection prior to move in enables your maintenance tech to confirm the unit is fully move in ready, take care of any last minute items, pick up something that may have been left behind during a repair, air out the unit, and do a final wipe down, vacuuming or cleaning the vacant unit, if necessary. With the plethora of vacancies, it is quite possible that the unit has remained vacant for quite a long time. If the resident did not have the opportunity to previously view the unit actually being rented, these first impressions will count. What you think is not a big deal could be for a resident who is making the big move to Florida or first experiencing apartment living.

Procedure - Always coordinate the pre-access move in inspection with your maintenance tech, and make it mandatory that your maintenance tech or the property manager does a final walk through of the unit on the morning of or the day prior to the actual move in. To avoid surprises, if a resident arrives early or is to move in prior to the actual lease start date, make the release of keys conditioned upon a report back from your maintenance tech that the unit is ready to rent. Never make exceptions; make it company policy.

The Move in Inspection

The 3 primary types of move in inspections are those performed solely by the resident, those performed by the maintenance tech or manager, or those performed by the maintenance tech or manager along with the resident. We will examine the purpose of the move in inspection and then each of these three methods, and you will see what the proper approach is to take.

Purpose of the Move in Inspection

The purpose of the move in inspection is simple. It is to document the condition of the unit for you and the resident, so in the event there are damages exceeding ordinary wear and tear upon the resident vacating, you can prove that the damages were not preexistent, as the resident will often claim. The two most common situations we face when there is a security deposit dispute is proving the damages exceed ordinary wear and tear and then proving that the damages did not exist at the time of move in. Invariably the resident will state that the damages were either not present at move out or were present at the time of move in, and that the landlord should therefore not be able to hold the resident responsible for these alleged damages. Often the resident will claim how the unit is in fact better than it was at the time of move in, a common and often ridiculous claim. Security deposit disputes are time consuming and potentially expensive, as if they actually end up in court, the prevailing party is entitled to an award of attorney's fees and costs. This could mean that your failure to prove 100% of the damages that you charged the resident could result in you not being the prevailing party. Thus, you may have to pay the resident's attorney thousands of dollars. If you claim $500 of a $500 deposit and the resident or resident's attorney can whittle this down to $450, you may be considered the losing party. Most residents do not use attorneys for these types of cases, but we are seeing more attorney involvement recently, so extreme care and thought should be taken in how the condition of a unit is documented. Never underestimate the power and ability of a resident to retain a lawyer for a security deposit dispute. Many attorneys take these cases on a contingency basis, with the hopes of obtaining a judgment against your company. Usually, the resident has very little to lose and a lot to gain.

The move in inspection is not to document damages that need to be fixed or to find deficiencies in the apartment that will be rectified by you. With regard to building, health and safety code compliance, the unit should always be 100% ready when the resident moves in.

Move in Inspection Performed by the Resident

Approximately 50% of companies currently allow the resident to perform the move in inspection. The resident is provided with a move in inspection sheet, usually in duplicate or triplicate, and is told to perform the inspection and note any damages or deficiencies, and then return the completed inspection form to the office within a set number of hours, or else it will be assumed that there is no damage. This is the absolute worst way to have an inspection performed. Why is it done this way? It appears to be the easy way out.

Problems with this method

A. Move in Inspection Form is not returned - The resident does not return the completed inspection form as instructed. The property manager then "assumes" that there are no damages. The resident vacates leaving damages, and then when charged for these damages, states these conditions were present at move in, and were noted on the move in inspection form, the form that you do not have. The former resident claims it was handed to the employee who conveniently no longer works for your company. To top it off, the former resident even has a "copy" which has been conveniently "saved". The problem is that you made an assumption based upon the resident's failure to return the move in inspection form, the form that the resident insists you have. How will a judge rule in court? It is not looking very good for you.

B. The "Wish list" - The resident completes the move in inspection form, writing down every possibly thing that he or she thinks is wrong with the unit: carpet old, paint old, funny smells, and all kinds of bizarre things that the resident may feel is wrong. The move in inspection form is returned to the office and filed away. What the resident has done then is place you on actual notice of all kinds of things that the resident perceives need to be fixed or are deficient in the unit. Was this the purpose of the move in inspection? No, but now it has become the unintended result. In a past case, we defended the property manager on the basis that the resident failed to point out a deficiency and give a proper rent withholding letter. The problem was, the resident had pointed out the deficiency from day one on the move in inspection form she filled out by herself.

C. The Vague Inspection - The resident finds a couple small stains on the carpet and writes "stained carpet" on the move in inspection form. There are a couple kinked blinds, and the resident writes down "kinked and damaged blinds". There are some paint scuffs on the wall, and this is written down as "marks on walls". The form is returned to the office and filed away. Now when the resident moves out a year later, you find the carpet severely stained, the blinds destroyed, and the walls need major painting. The problem? The resident told you that this was preexistent damage when the move in inspection form was filled out. When you attempt to charge for this damage, the form is thrown right back at you. You will assert that there is no way that carpet was stained "that bad" at move in, the blinds were "that damaged", or that the walls were "that marked", but the problem is the move in inspection form says what it says, and will bury you. You see, the resident is not a professional property manager and has no idea that had you done the inspection, you would have stated "2 1-inch diameter bleach stains in south east corner of bedroom", rather than "stains on carpet", or "2 damaged blind slats on kitchen window". Now, the resident's words on the move in inspection form will be used against you, and you will most likely not prevail in court.

Move in Inspection performed by the Maintenance Tech and/or Property Manager

Based upon how the resident usually performs a move in inspection, it becomes quite obvious that the inspection should be performed by the property manager and/or maintenance tech. You are the professionals and are trained to know what the purpose is for the inspection and how to properly perform the inspection.

Ideally the move in inspection will be performed with the resident present, but practically speaking, this may not be possible, especially in the student housing setting, if you have multiple move ins and move outs on the same day, or if you are short staffed. If the resident is not present, at a bare minimum the move in inspection should be performed by the property manager and/or maintenance tech.

Move in Inspection with Resident Present - There is no better way to perform the move in inspection than with the resident or residents present. The resident is told the purpose of the move in inspection is to document any cosmetic or other damages, so that the resident will not be improperly charged upon move out. Deposits belong to the resident, not the apartment community. You are under a duty to protect the deposit and to make sure that the resident is not improperly charged. Not only is it a legal requirement, but it is the right thing to do. By having the resident present, it shows concern on your part for the resident and awareness on your part of the condition of the unit, and what you expect from the resident. Additionally, this is a wonderful time for you or your maintenance tech to explain the intricacies or nuances of the apartment and how things work.


The Inspection: When conducting the move in inspection with the resident, each room should be examined while you have the move in inspection sheet in hand, on your clipboard, or possibly even on an IPAD or tablet type computer. Care should be taken to examine every item that you are accustomed to having a resident damage. Carpets, flooring, tubs, door jambs, cabinets, blinds, walls, countertops, the stove, cabinets, and doors are just some of the many items that get damaged by a resident. Rather than fight a battle with the resident later, preparing now for the time when the resident vacates is crucial. Remember that this is not a time for the resident to be creating a wish list, and care should be taken not to give the resident any false expectations that something may be repaired of replaced. The resident may complain about the age or condition of the carpets and ask if it is possible that they will be replaced. You, knowing that the owners are soon planning to replace some carpets in many of the units, say this may be possible. A statement such as this creates an expectation on the part of the resident and can be transformed into you telling the resident that new carpets WILL be received. Be extremely cautious never to give the resident an expectation of something that may not occur.

The Education of the Resident - The move in inspection is an excellent time to educate the resident about how the apartment "works". You and your maintenance tech can create a checklist of things that a resident needs to or should know about the apartment. Basic things like how to unclog a garbage disposal or how to operate the HVAC could mean a substantial amount of time and money later saved on behalf of your company. A resident may not understand the importance of reporting a dripping faucet or a running toilet, or why it is crucial not to pull the refrigerator out for cleaning and possibly breaking the supply line for the ice maker. Going on vacation for 2 weeks and turning the a/c off completely may be a bad idea indeed, but how is the resident to know? That sprinkler head may be in a perfect place to hang something, but suppose the glass vial breaks? Money could be wasted, or worse yet, a running toilet in a stop up situation can cause thousands of dollars in flood damage. Many residents are not accustomed to apartment living or may not be used to certain types of equipment. Never assume that the resident understands everything; make the opposite assumption when it comes to equipment and appliances. Don't be afraid that you may insult the resident by telling them fairly obvious things. A resident not accustomed to air conditioning may decide to leave windows open while running the a/c, resulting in a freeze up, or turn the a/c completely off during the day or on vacation, resulting in water leaks from the unfreezing lines, or even a mold situation. Education of the resident is crucial, and although you may verbally explain things, a clear simple step by step sheet of instructions and tips should be provided to the resident. Take the time now to sit down with your maintenance tech and develop a resident tip or instruction sheet. Leave nothing out.

Move in Inspection without the Resident Present - While the best way to perform the move in inspection is with you, and/or your maintenance tech and the resident present, situations will arise when this simply cannot happen. If this is the situation you face, you or the maintenance tech can perform the move in inspection at a time as close as possible to the date of move in by the resident. We don't want you to perform the inspection months before move in. We want to avoid the resident stating that something may have been damaged between the time of your inspection date and move in, another way a resident may try to disclaim responsibility. Most importantly therefore, if you were unable to perform the move in inspection with the resident present, right after the resident moves in, make it a priority to meet with the resident at the apartment to go over the move in inspection sheet and tips and instruction form. If possible, have the resident sign the move in inspection form that you have already completed. Your move in inspection should always at a bare minimum be signed by you or the maintenance tech, with the date and time of the inspection clearly noted.

Photographing or Videotaping the Unit - Although most companies do not take this step, we would be remiss to not discuss the advantages of videotaping or photographing an apartment prior to move in as part of and in addition to the standard written move in inspection form. While videotaping or photographing a unit may seem burdensome to some, in the event of a security deposit dispute, if a video or photos clearly show that a unit was damage free at move in, and the damages are clearly shown at move out, the chances of being the prevailing party in a lawsuit rise exponentially. Nothing makes a bigger impact in court than videos or photographs, and nothing prevents a situation from progressing into a court case like videos or photographs. Never substitute a written move in inspection form with videos or photographs; use them as a supplement to a thorough and detailed written move in and move out inspection form.

Best Practices

1. Use a detailed move in inspection form.
2. Have the resident present during the move in inspection procedure.
3. Educate the resident on the mechanics of the apartment during the move in inspection.
4. Video or photograph the unit at move in.


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Rent and the Three Day Notice Process
by Brian P. Wolk Attorney at Law


As a property manager, it is critical that you carefully follow proper procedures. Why, you ask? First, by failing to give your best efforts, you are telling your management company and your supervisors what you think of them. Even worse, it is telling your supervisors what you think of yourself. It is especially important that the property manager take all necessary steps when dealing with delinquent rent payers, so that the ability to evict these nonpaying residents is preserved. More than likely, if an eviction is unsuccessful, it will be due to sloppiness on the part of the property manager in preparing the Three Day Notice, or accepting rent prior to or during an eviction.

Why the Three Day Notice must be served

Under Section 83.56 of the Florida Statutes, a Three Day Notice must be served to a resident who is delinquent in paying rent before your attorney is able to file an eviction lawsuit. If the resident is late paying the rent, then the resident must receive notice providing three business days to pay the rent or vacate. It is irrelevant how many prior Three Day Notices have been received by the resident. Before you can evict for nonpayment of the rent, the resident must be served with the Three Day Notice, which essentially creates a grace period in which the resident has extra time to become current with the rent obligations. Section 83.56 contains the suggested form to be used.

Consequences if the Three Day Notice is prepared incorrectly

Beyond the fact that Three Day Notice errors may cause embarrassment and increase your accounts receivable balance, these mistakes open up the door for eviction defense attorneys to enter your eviction case and represent the resident you are trying to evict. The Florida Fourth District Court of Appeals in December of 2010 ruled that undisputed rent must be deposited into the court registry in accordance with Section 83.60 (2) of the Florida Statutes before a resident is entitled to an eviction hearing on the merits. The good news for property managers is that all lower courts, including county courts not part of the Fourth District Court of Appeals, are arguably bound to follow the above decision, due to a separate Florida Supreme Court case which sets forth the proper hierarchy for decisional holdings. While most judges strictly follow the language in Section 83.60 (2) of the Florida Statutes and will require the resident to deposit the undisputed rent into the Court Registry, you should not assume that the judge in your case will rule that way. In any event, if the Three Day Notice contains incorrect information or in some other way is flawed, and the undisputed rent is deposited, then you will likely lose the eviction case. Many unseasoned property managers mistakenly believe that residents without money will have no luck in obtaining an attorney. That idea could not be further from the truth. Eviction defense attorneys will represent the resident effectively for free, with the hope that the landlord will be the party paying their bill. This is referred to a contingent fee arrangement. The successful property manager must always keep in mind that under Section 83.48 of the Florida Statutes, the prevailing party in an eviction action is entitled to reasonable attorney's fees. That amount can be significant.

Proper amount to list as rent on the Three Day Notice

The balance owed listed on the resident's ledger will not necessarily be the same amount that is listed on the Three Day Notice. This is because only rent or charges defined by the lease as additional rent can be listed on the notice, while other owing amounts may be showing up on the account ledger. Rent is defined under Section 83.43 (6) as the periodic payments due the landlord under a rental agreement and other payments designated as rent in a written rental agreement. The rent amount listed on the notice must be presently owed at the time the notice was prepared. The amount should not contain a breakdown and must be a firm number. The amount cannot expand over time. Most judges will allow you to list utility amounts, bad check charges, washer and dryer fees, pet fees and reasonable late charges if the lease defines those amounts as additional rent. You should check with your eviction attorney to make sure your late charges would pass the scrutiny of judges in your county. Many judges take a dim view if daily late fees or other additional rent charges from prior months are listed on the notice.

The proper way to list the resident's name

Your first step here is to retrieve the lease from the resident's file. That should be done so that you can make sure that all lease signers are listed on the notice. The key here is to list all current residents. If management has allowed a lease signer to vacate by way of a written release, then that former resident should not be listed on the notice. If that former resident did not obtain permission from management to vacate, then that resident's name should be listed on the notice. Also, make sure the name in your computer matches the name on the lease. The correct name must be listed in full, as one letter misspelled could possibly render the Three Day Notice null and void, although recent case law suggests that to raise the defective notice defense, the resident will be required to deposit owing rent into the Court Registry. Minors who did not sign the lease should not be listed on the notice. If you accepted rent from occupants that are not lease signers, then you must consult with your eviction attorney in order to decide if those occupants should be listed on the notice.

The Correct date

This is very simple. It is the actual date that you are serving the resident with the Three Day Notice. Here is where things can get tricky: many property managers use a mail merge program to generate the Three Day Notice and forget to change either the date of the notice or the date of the certificate of service, which is usually listed on the bottom of the notice. In any event, the date of the Three Day Notice must match the date of the certificate of service, or the notice will be defective. Three Day Notices may be served on weekends or holidays, so a weekend or holiday date on the notice is allowed; however, the expiration date should never be a weekend or holiday.

The Proper Address

The address listed on the notice must be the true address where the resident is living. You must always keep in mind that the address should match the official address that the United States Post office has on file. The address on the Three Day Notice should also match the address listed on the lease, and the signage on the apartment home. Keep in mind, even if the process server, clerk of the court and judge do not pick up on the mistake, the sheriff's department will not be fooled, and they will refuse to execute the writ of possession, which will cause the eviction to be significantly delayed or eventually denied.

Location where the resident pays the rent

The notice must list the physical address where payment by the resident is to be made. The notice must also list the name of the landlord and the landlord's phone number. If your lease allows you to require that payment be made in certified funds or money orders, and you wish to invoke that during the Three Day Notice period, then some judges require that the notice reflect that form of payment demand.

The Certificate of Service

After you have served the Three Day Notice, you must complete the certificate of service section, usually listed on the bottom of the Three Day Notice. The date on the certificate of service should match the date of the Three Day Notice, which is usually on the top of the notice. The certificate of service should specify how the resident was served. Was the notice posted on the premises, mailed to the resident or hand delivered to the resident? Remember, it is not required that you fill out the certificate of service section on the resident's copy. The certificate of service should be filled out on the original notice that will remain in the resident's file. It is recommended that when the property manager is headed over to the resident's apartment home, the manager should bring the original notice and a copy. The copy is delivered to the resident or posted, and then the property manager immediately fills out the certificate of service on the original and then places it in the file. If many notices are being served, another technique is to bring a pad and write down all those notices which were personally delivered and the identity of the individual actually receiving the notice; when getting back to the office, fill out all the certificate sections on the original notices, noting personal delivery when applicable, with all other notices being posted.

Proper expiration date of the notice

The Three Day Notice expires three business days after the date of service, unless the notice was mailed to the resident. The date of posting along with weekends and legal holidays are excluded. Some holidays are obvious, while others are not. Make sure that you obtain the list of court holidays from your eviction attorney. The expiration time should be extended if there is service by mailing as discussed later in this article.

The manner of service authorized by statute

Section 83.56 of the Florida Statutes authorizes the service of the Three Day Notice by hand delivery to the resident, by posting on the premises in the absence of the resident, and by mail. Confusion will occur if the lease sets forth the manner of service for notices which conflicts with the statute. If the lease requires that all notices be mailed, for example, then the Three Day Notice must be mailed. It may not be posted on the premises or hand delivered to the resident. The terms of the lease will override the statutory options for service of the notice.

Posting the Three Day Notice on the premises

Section 83.56 authorizes the property manager to post the notice on the premises in the absence of the resident. First, you must knock with force or ring the doorbell before posting, as you should honor the possibility that the resident may be home. If the resident is absent, then you should post the notice on the door used for exit and entry by the resident, and place the notice in an unmarked envelope. The notice should be firmly taped to the door. It is not advisable to place the notice inside the door, as that may anger the resident and could leave the landlord vulnerable to claims related to theft if there is an unauthorized entry into the apartment home.

Service by hand delivery

Service by hand delivery to the resident is the best method for serving the Three Day Notice. If the resident is home, then this method of service must be selected. If the door is opened and you are not sure who is standing in front of you, then try to determine that person's identity. There is no need for the resident to sign anything. The property manager may just hand the notice to the resident. If you believe that the resident may become angry, then in an abundance of caution, you can retain a process server to serve the Three Day Notice. It is very important that the process server serve the Three Day Notice on the day the Three Day Notice is dated, or the notice may be defective. If the resident asserts that the notice was not received, then the process server may be required to testify at an eviction hearing.

Service by hand delivery to a non-resident

The property manager may serve the notice by hand delivery to an occupant who is 15 years or older. If the person who opens the door is just a guest or visitor, then the best approach is to post the Three Day Notice on the premises.

Witnesses are not required

The statute does not require that the property manager have witnesses when serving a Three Day Notice. If you believe that the resident may try to play games and deny that the notice was received, it may be a good idea to have a witness when the notice is served. Most judges are not impressed when a resident claims that the notice was not received if owing rent is not deposited into the Court Registry. However, if all the owing rent is deposited into the Court Registry, whether and how the notice was delivered can become a very important factual determination.

Service by mailing the Three Day Notice

The eviction process becomes even more complicated if the Three Day Notice is mailed. The law requires you to add more days for the resident to pay. Therefore, the expiration date of the Three Day Notice is extended, which delays the whole eviction process. The resident also may end up denying that the notice was received after you have mailed it.

Reasons for mailing a Notice to Pay Rent

Many attorneys who do not have much experience in the area of residential property management law will draft lease requiring that all notices be mailed. That is due to the fact that landlords often prefer that legal notices from residents to the landlord be received by mail. Those same attorneys then insert a reciprocal provision in the lease, requiring the landlord to mail written notices to the resident. Thus, if the lease requires the landlord to serve all legal notices by mail, then that must be done, even though Florida law allows the notice to be served upon the resident or posted on the premises. The apartment manager must review the lease in detail in order to determine if serving a notice to pay rent is required under the lease. The landlord may also decide to mail the Notice to Pay Rent if the property is an excessive distance from where the landlord is located, as the landlord may not wish to drive to the property to serve the notice.

The Three Day Notice can become a Thirteen Day Notice

If the landlord is mailing the Notice to Pay Rent to the resident, then some Florida cases indicate that five business days must be added to both ends of the process: five days for the notice to be delivered to the resident, three business days for the resident to make payment, and five more days for the payment to be mailed back to the landlord. If the address for payment is a local address, some judges would allow the landlord to require payment within eight business days of mailing the Notice to Pay Rent, but the uncertainty in knowing how a particular judge will rule should make the landlord take a conservative, approach, if the notice is originally mailed. However, thirteen business days compared to three business days is a big difference; this significant delay before the commencement of eviction proceedings may result in a bigger accounts receivable balance and monies that may never be collected by the landlord. If the Notice to Pay Rent is hand-delivered or posted, but the address listed for payment on the notice is a P.O. Box, the resident would have eight business days to pay the delinquent rent, excluding holidays and weekends, and the landlord is precluded from evicting the resident until the notice has expired. Some judges have ruled that if the physical address listed for payment is outside the county in which the rental premises are located, five more days must be added to the expiration date of the notice, to allow the tenant to mail the payment to a location deemed to be a significant distance away.

Mailing the Notice to Pay Rent and hand delivering or posting the Notice to Pay Rent

Often, a landlord will wish to make sure the resident actually receives the Three Day Notice, so the landlord will serve the notice using more than one method of service. Unless the landlord is required to do so under federal law or regulations, or less common, under the lease, it is a very bad idea for the landlord to post the Three Day Notice and additionally mail the notice, because massive confusion can be created. The resident may argue that the mailed notice cancels out the posted notice. The resident conceivably would receive the mailed Three Day Notice a few days after receiving the posted or hand delivered notice. A judge may believe that enough confusion has been created so that the resident would not fully understand the true expiration date of the notice, or the judge may simply enforce a later expiration date under the above-described mailing rules, invalidating the hand delivered or posted notice, and potentially denying the eviction in the process.

Partial payment prior to and after notice expiration

The legal concept of waiver will apply if the landlord accepts partial payment of the amount listed on the Three Day Notice. The acceptance of partial payment towards the notice amount will render the Three Day Notice null and void in the view of many judges. The landlord has no obligation to accept the partial payment.

Proper way to return partial payment

If the landlord intends to continue with the eviction process, then partial rent payment should be hand delivered to the resident, or returned via certified mail at once, if hand delivery is not possible. All too often, a property manager will hold the payment and not deposit it, in the hope of obtaining payment in full at some later date. If the property manager holds the payment for too long, the judge may rule that the rent was accepted, even though it was not ultimately deposited, and deny the eviction request in the process. When returning a personal check, the word void should be written over it. If the payment being returned is money orders, then the word void should not be written on them, as it may prevent the resident from being reimbursed from the money order company. If the partial payment is accepted after the expiration of the Three Day Notice, then the same rules apply as accepting partial payment prior to the expiration of the Three Day Notice. In both scenarios the eviction effort is seriously jeopardized once the landlord accepts partial payment. Some judges will rule that undisputed rent still owing needs to be deposited into the Court Registry before the resident can raise the partial payment defense, but the landlord should not count on this type of ruling. Issuing a payment receipt prior to returning money can also seriously jeopardize the eviction effort.

Refusing cash or personal checks prior to the expiration of the Three Day Notice

Payment by cash should be prohibited by your lease, as accepting cash creates unwanted confusion during the eviction process. Assuming your lease prohibits cash as a manner of payment, if the resident attempts to pay with cash and the payment is refused, then extra late fees should not be charged if the resident subsequently pays with certified funds within a day or so, to avoid any potential conflict with Florida law. If your lease does not prohibit late payments by personal check, then you must accept full payment by personal check from the resident prior to the expiration of the Three Day Notice. If your lease gives you the option to determine the manner of payment, then the resident should have prior written warning that personal checks will not be accepted if they have been accepted in the past. If not, then a judge may find that prior acceptance of the personal checks created waiver or modified the terms of the existing lease.

Refusal of rent after expiration of the notice

After the expiration of the Three Day Notice, the landlord may refuse to accept the rent. However, if the eviction attorney has not filed the action in court yet, it may make sense to avoid the conflict and accept the payment as long as it is payment in full. Judges may become leery of your actions if you do not, possibly believing that the eviction is not really even about nonpayment. Also, if your Three Day Notice contains excessive late fees or late fees from prior months, it may then also make sense to accept the payment, since those charges may cause you to lose your eviction action, especially if the resident were to subsequently deposit owing rent into the Court Registry. Apartment communities that allow on-line rent payment must have proper controls, so that those residents who have been served with Three Day Notices are blocked from making payments on-line.

Written contact with the resident after service of the Three Day Notice

Once a Three Day Notice has been served, it is dangerous to post any other written notices, as there is case law which indicates that such communications render a Three Day Notice null and void. Warning letters of an impending eviction, particularly when monetary demands conflicting with the Three Day Notice are made in those letters, have been known to derail evictions.

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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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