Resident's Remaining Personal Property
by Michael Geo. F. Davis, Attorney at Law



The issue of a resident's remaining personal property will present itself when a resident surrenders, abandons or is evicted from the rental premises.

The Disposition of Personal Property Landlord and Tenant Act

Florida statutes provide a procedure for the disposition of the resident's personal property when the resident has surrendered or abandoned the premises. It is the Disposition of Personal Property Landlord and Tenant Act (FS 715.10-715.111). Rather than using the Disposition Act, the vast majority of Florida landlords use another and more convenient statutory safe harbor to dispose of any remaining resident personal property. This is the abandoned property legend of FS 83.67(5).

Required Wording - Abandoned Property Legend

If the lease contains the legend required by FS 83.67(5) (the "abandoned property legend") the landlord may dispose of the resident's personal property without liability when the landlord regains possession of the premises after surrender or abandonment. Note that it applies to cases of surrender or abandonment, but not to evictions. An eviction action has its own statutory safe harbor in the writ of possession. The abandoned property legend language required in leases is:


Surrender of the Premises

If all the residents have surrendered the premises, unfortunately it does not follow that the landlord can dispose of the remaining personal property as the landlord chooses. The lease must contain the required abandoned property legend. Even with the required legend in the lease, some residents may later deny that they surrendered the rental premises or that they intended to give up their ownership rights in the personal property left behind. A signed confirmation from all residents that they have surrendered the premises and its contents and have relinquished any interest in the personal property remaining on the premises or its disposition is the landlord's best protection from any future resident claims.

Abandonment of the Premises

Disposal of the personal property in the rental premises is a separate issue from abandonment of the rental premises itself. The fact that a landlord has declared a rental premises abandoned does not necessarily mean that he is free to dispose of the resident's personal property as he sees fit. The lease must contain the appropriate abandoned property legend.

Taking Property

Even with the required abandoned property legend, it is unwise for the landlord or his staff to take any of the resident's property for their own personal use. It calls into question the objectivity of the landlord's determination that the premises were surrendered or abandoned.

Premises Full of Furniture

Every landlord at some time or another eventually encounters the case of a rental premises filled with furniture and a resident who seems to have disappeared. The landlord's only prudent path is to consult with his attorney in such situations.

Eviction from the Premises

If an eviction is filed against the resident, the resident may vacate at some point in the eviction process. The landlord will be tempted to cut his losses and avoid the time and expense of obtaining a writ of possession. This is shortsighted, if anything other than trash is left on the premises. A resident will often take his own sweet time in vacating when he is under eviction. The resident may be in a lengthy vacating process, even if it appears that no one is living in the premises and is almost completely empty. Some residents, who are familiar with the landlord/tenant statute, have been known to lay a trap for the unwary landlord by leaving behind a small amount of furniture, clothing or other personal items in order to generate a claim of improper disposition to support a claim for statutory damages. A writ of possession and the prompt moving of the resident's possessions to the property line provide the landlord with immunity from liability for the resident's loss of his possessions.

Carports, Garages and Storage Units

The resident may have left behind personal property in a carport, garage or storage unit. In situations where the carport, garage or storage unit is proximate to the rental premises or otherwise on-site, and the rental of the carport, garage or storage is included in the lease or an addendum, the surrender, abandonment or writ of possession will include these areas also. The landlord should be very careful when relying on the abandonment of the premises as the basis for disposing of a resident's personal property in a carport, garage or storage unit. It may not be as reasonable to believe the resident has abandoned items he is "storing" as to believe he has abandoned the living space.

Boats, Trailers, Cars and Other Vehicles

Residents are unlikely to abandon a functioning boat, trailer, car or other vehicle. A landlord who finds that a boat, trailer, car or other vehicle remains after the resident has vacated, should contact the local police to confirm that the property is not stolen or otherwise subject to the police claiming and removing it. A police removal will solve the landlord's problem. If the property is not sought by the police, the landlord should consult his attorney as to the best course of action based on the facts of the particular case.

No Abandoned Property Clause or No Lease

If the lease in question does not have a proper abandoned property clause, as required by the statute, or there is no lease, then the landlord's choices are: 1) follow the requirements of the Disposition of Personal Property Landlord and Tenant Act (FS 715.10-715.11), 2) file eviction and obtain a writ of possession, or 3) dispose of the personal property at his own risk. Disposing of the personal property at his risk is ill advised. If the landlord estimates that the total value of the property is $500.00 or more, then obtaining a writ of possession is essential. If the total value of the property is less than $500.00 and the landlord strongly believes abandonment of the rental unit has occurred and does not wish to file eviction, the landlord will need to follow the abandoned property procedures, including sending an abandoned property letter, as described in Florida Statute 715.105.


The penalty for improperly disposing of the resident's personal property is an amount equal to three months' rent or the actual value of the property and consequential losses, whichever amount is greater. The landlord should note that it doesn't appear to make any difference if the property has little value: the three months' rent minimum statutory penalty would still apply. The landlord is also liable for the resident's court costs and attorney fees. The attorney's fees in such litigation could easily match or substantially exceed any other damage amounts. The landlord may face a claim for civil theft and possible criminal charges. Most county court judges are familiar with landlord/tenant law and know that the writ of possession provides the landlord with protection. That the landlord chose to forego this protection often results in the benefit of the doubt going to the resident in any lawsuit by the resident for the improper disposition of his personal property. The resident's testimony is often supported by the testimony of his relatives or friends as to the personal property remaining and its value. The landlord is placed in the position of proving the negative - that the property wasn't there or wasn't that valuable. Every case depends on its facts, what facts can be proved in court, and how the judge views the proof. There are large subjective factors in these types of cases that make predicting court outcomes difficult. Landlords are usually better off simply reaching a settlement with the resident.


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Understanding The Power Of Attorney
by Brian P. Wolk, Attorney at Law


Property managers throughout Florida are noticing that situations involving power of attorney issues seem to be increasing. For even the most seasoned of property managers, this is an area of law that can be very unfamiliar. Making matters worse, when these power of attorney issues arise, the property manager is often in need of a fast answer as to what constitutes the proper course of action, as the person who has been granted the power of attorney, who many times is not listed on the lease or application, frequently appears at the apartment community management office without advance notice with some type of demand. Unfortunately, these situations cause delays for the property manager, particularly when the regional manager is unsure which route to take. A property manager may address power of attorney issues before the lease is executed, during the resident's lease term, and in some cases, even after the lease term has expired. It is critical that a property manager understands how the power of attorney is addressed under Florida law, so that past residents, future residents, and third parties can be dealt with appropriately, especially since a new Florida law will be taking effect on October 1, 2011 governing power of attorney instruments.

Power of attorney defined

A power of attorney is a legal instrument authorized by law, under which one person or entity grants authority to one or more individuals or an entity to make decisions or take actions on the grantor's behalf. The authority that is granted will be listed in the body of the power of attorney document. The authority can encompass many different types of transactions. Those are called general power of attorney instruments. If the power of attorney is limited to just one use or purpose, then it is referred to as a limited power of attorney.

Attorney in Fact and the Principal

The person granting the authority contained in the power of attorney instrument is referred to as the principal. The individual receiving the authority for the conduct or transaction is called the attorney in fact. Do not be confused; the attorney in fact is not an attorney who is licensed to practice law. In some cases, a financial institution may be the attorney in fact. The attorney in fact is considered a fiduciary and is obligated to act responsibly and in the best interest of the principal. The person or entity with whom the attorney in fact conducts the transaction is known as the third party. The landlord will be the third party under these circumstances.

Durable power of attorney documents

Florida Statute 709.08 contains the law regarding the durable power of attorney. Durable power of attorney instruments drafted after October 1, 1995 are covered by the above statute. Section 709.08 (1) provides that a durable power of attorney is a written power by which a principal designates another as the principal's attorney in fact. With correct instrument wording, the statute also allows the durable power of attorney to survive the subsequent incapacity of the principal. The statute authorizes the attorney in fact to conduct real estate transactions. Therefore, the attorney in fact could sign a two year lease or even buy a house on behalf of the principal.

Attorney in fact requirements for the durable power of attorney

Under Section 709.08 (2) the attorney in fact must be at least 18 years of age. Section 709.08 (9) requires all attorneys in fact, unless the instrument provides otherwise, to concur with respect to any exercise of the durable power of attorney, in the event the principal has authorized more than one attorney. Under current law, therefore, if the property manager discovers that two attorneys in fact are listed on the durable power of attorney instrument, then the property manager must make sure that the two attorneys in fact sign any lease, if that is the contemplated transaction. If there are three are more attorneys in fact, then the majority of the attorneys in fact must sign the lease.

Attorney in fact affidavit

There may come a time where the property manager is suspicious whether the attorney in fact is authentic. In that scenario, the statute authorizes the property manager to request that the attorney in fact sign a notarized affidavit attesting to, but not limited to, the following: that he is indeed the attorney in fact named in the durable power of attorney executed by the principal, the location where the principal is domiciled, that the durable power of attorney is currently exercisable by the attorney in fact, and to the best of the attorney in fact's knowledge, that the principal is not deceased, and that there has been no revocation of the durable power of attorney by the principal or any outside judicial authority.

Consequences for not allowing use of the durable power of attorney

There are significant financial consequences for the landlord that refuses to allow an attorney in fact to conduct a transaction with a valid durable power of attorney. Many property managers believe this is a voluntary process. It is not voluntary; it is mandatory. Section 709.08 (11) states that the unreasonable refusal of a third party to allow an attorney in fact to act pursuant to the power could subject the third party to liability for attorney's fees and costs if the third party is sued and loses in court. That dollar amount could be substantial. Contact your attorney if you are unsure how to act, as the stakes can get uncomfortably high. Section 709.11 recognizes the validity of a certain type of power of attorney which involves servicemembers. This power of attorney is called a deployment-contingent power of attorney. A property manager must accept a valid power of attorney that is signed in advance by the principal, which takes effect once the principal is deployed by the military.

Improperly signed leases

There continues to be confusion among property managers as to how leases should be signed when the resident has granted authority to the attorney in fact. Failing to follow the correct lease execution rules may prevent the property manager from holding the resident responsible for the lease, and eviction procedures may become complicated. You should never allow the attorney in fact to sign the resident's name on the lease, or initial the words POA on the lease. The attorney in fact should be signing his own name on behalf of the principal. For example, if the principal is Vick Jones, and the attorney in fact is Michael Smith, then the following is the proper way for any lease to be signed: Vick Jones By_______Michael Smith, Attorney in Fact.

Third party access problems

It is not uncommon for a property manager to receive a copy of a power of attorney from a resident who has left town. For example, the power of attorney may grant authority to a friend to help manage his personal affairs. The property manager must be wary in this situation. If the third party, such as the friend in this example, is given access to the apartment home without proper authority, the landlord and the property management company may have massive liability, if a court holds that access to the apartment home granted by the landlord to the third party was unauthorized. The power of attorney should be carefully reviewed to make sure that the appropriate powers are listed. Power of attorney forms are often pre-printed, and specific powers must be checked off.

The 2011 Florida Power of Attorney Act

In 2011, a new law was enacted which will apply to power of attorney instruments executed after October 1, 2011. Therefore, if the property manager receives power of attorney instruments, the manager must carefully review the document to see when it was executed, in order to conclude whether the document is legally enforceable.

Florida Power of Attorney Act's significant provisions

All power of attorney Instruments executed after October 1, 2011 must be signed by the principal along with two witnesses. This must be acknowledged before a notary. It should be noted that very few legal instruments have such rigorous execution requirements. Unlike those instruments executed prior to October 1, 2011, the new law allows one agent of the principal to exercise its authority independently, without needing any other co-agent to act.

Treatment of non-Florida power of attorney

Every so often, a property manager will face the following dilemma: the manager will receive paperwork indicating that the power of attorney has been executed in another state. In the past, if the instrument did not comply with Florida law, then it may not have been enforceable. The new law has clarified how to treat such an event; if the power of attorney was executed in another state in accordance with the laws of that state, it will be valid in Florida, even if the execution requirements of Florida law are not met.

Springing power of attorney

Prior to the October 1, 2011 effective date of the Florida Power of Attorney Act, a power of attorney could be executed so that it would only become effective once the principal was incapacitated. This is known as a springing power of attorney. However, with the exception of special military power of attorney instruments, if the instrument is executed after October 1, 2011, then the power of attorney must become effective the moment it is executed. Essentially, the new law prohibits springing power of attorney instruments unrelated to military power of attorney instruments.


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Guaranty of Lease Agreement
by Brian P. Wolk Attorney at Law

For many property managers, the guarantee of lease agreement process is a source of massive confusion. Often the language contained in these agreements is completely foreign to the property manager, resident and the lease guarantor. Even if the terms used in the agreement are understood by the property manager, many guarantee of lease agreements lack specificity with respect to their application to lease extension or lease renewal terms. Still, guarantee of lease agreements fulfill a very important function during this challenging economic climate, as there is not an abundance of applicants with high credit scores. Therefore, with a proper guarantee of lease agreement, an applicant with a less then stellar credit history can be approved for residency, because the landlord and property manager can hold a third party responsible for unpaid amounts in connection with the resident's obligations under the lease. The guarantee of lease agreement should be a completely separate document and should not be listed on the lease.

The typical guarantee of lease agreement

During the lease application process, a resident will often not meet the selection criteria of the apartment community. In many cases, all hope is not lost, as the property manager will suggest that the applicant find somebody that he or she knows to also accept responsibility for the lease obligations. Specifically, the arrangement will involve a third party who agrees to be responsible for the financial obligations of the resident.

The guarantor

The third party who agrees to be responsible for all of the resident's obligations under the lease, including rent, is known as the guarantor. Often the guarantor is not listed on the lease as an occupant or resident of the apartment community. Very often, but not in every instance, the guarantor is a closely related to the resident, such as a father or grandmother. In the event that the rent is not paid by the resident, the landlord will have recourse against the guarantor in order to collect money damages owed to the landlord of the apartment community. A credit check can be run against the guarantor, so that the landlord can evaluate whether the guarantor will be able to successfully back the financial obligations of the lease.

Will courts enforce guaranty of lease agreements?

Guarantee of lease agreements may be utilized by apartment communities in Florida under the right circumstances. In general, a person may promise to fulfill the financial obligations of someone else, and that promise is enforceable under Florida law. However, the agreement must be in writing according to Section 725.01 of The Florida Statutes. Therefore, a property manager must understand that any oral agreements made will be useless. There can be no enforceable oral guarantee of lease agreement in Florida. Even if the guarantee of lease agreement is in writing, the document still must contain the correct language.

The guarantee of lease agreement may not be vague

Guarantee of lease agreements are more likely to be upheld by Florida courts if they are very specific. Judges try to determine what the parties intended at the time they entered into the guaranty of lease agreement. If the landlord has drafted the document, which is usually the case, then any ambiguity with respect to the terms of the guarantee of lease agreement will be construed against the landlord. The meaning of that is simple. If the terms of the agreement are sufficiently vague enough so that there could be a number of different meanings, then judges will enforce the interpretation most favoring the resident. The resident receives the benefit of the doubt under this scenario.

Recommended execution procedures for guarantee of lease agreement

The guarantor must sign the guarantee of lease agreement. The agreement must contain the date it was signed by the guarantor. The agreement should contain the guarantor's name and address. It is good practice to have the document notarized and/or require two witnesses to sign the agreement. The guarantor should also receive a copy of the lease, in order to prevent the guarantor from later asserting a lack of knowledge about what responsibilities were being guaranteed.

Proper language in the body of the guarantee of lease agreement

The guarantee of lease should list all of the obligations for which the guarantor will be responsible. The agreement must specifically reference the lease between the resident and the landlord. The start date and the end date of the lease should be listed. It should state that the guarantor unconditionally guarantees the payment of all rents and full performance and observance of all the terms of the lease by the resident. There should also be a disclaimer that the failure of the landlord to insist upon strict performance or observance of any of the terms of the lease, or to exercise any right, will not diminish enforceability of the guarantee. The agreement should also reflect that that all terms and provisions shall inure to the benefit of the successors and assigns of the landlord, and shall be binding on any heirs, personal representatives, successors and assigns of the guarantor. The agreement should provide that the guarantor need not be joined as a party to a lawsuit if the landlord institutes a legal action against the resident. The agreement should also give the landlord the option to treat the guarantor's liability as primary, so that the landlord may elect to sue the guarantor with first making demand against the resident.

The lease renewal guarantee dispute

Very often, an apartment manager will be contacted by a guarantor during a lease renewal or lease extension term, with the guarantor claiming financial responsibility for only the original term. This dispute is especially likely to occur when a property manager is attempting to enforce a guarantee agreement after the original term and one or more renewal terms have passed, without notifying the guarantor that the lease was renewed by the resident.

Guarantee of lease agreements can make the guarantor responsible for renewal terms

The guarantee of lease agreement must have proper wording in order to hold the guarantor liable for subsequent lease renewal or lease extension periods. Under Florida law, a guarantee for a lease can be continuing, but the agreement must expressly provide that the guarantee is intended to cover future transactions to bind the guarantor for lease renewals and extensions. In this situation, courts require that the terms of the agreement contemplate a future course of dealing during an indefinite period. If a judge believed those elements were contained in the agreement, then the landlord would not have a legal duty to notify the guarantor of each subsequent transaction between the landlord and the resident, assuming those transactions are described in the guarantee of lease agreement. Therefore, the property manager must make sure that the agreement clearly references renewals or extension terms, in order to hold the guarantor liable if the resident fails to meet financial obligations during those periods.

Problems applying the guarantee of lease agreement to renewal periods

Often, an apartment community will raise the rent when the lease is renewed or extended. Even thought the document is called a renewal, a court could easily refuse to enforce the guarantee in the above situation. Clearly, if the renewal period mirrors the lease term in every manner, then the guarantee of lease would be enforceable against the guarantor, if the agreement specified that it applied to all renewal terms. However, if the renewal lease contains terms contrasting with the content of the original lease, the court could refuse to enforce the agreement. In the above instance, the rent was raised, so a judge could reason that there is not a true renewal lease, because not all of the terms were renewed. Certainly the rent amount did not remain the same. In that scenario, a judge could treat the renewal lease as a new lease, thereby extinguishing the obligations of the guarantor. The court's refusal to enforce the agreement could in part be based on the argument that the guarantor never intended to be liable for the increased rent amount. If the landlord anticipates that the rent will increase during renewal or extension periods, then it is possible that a court would enforce the guarantee, if the terms of the guarantee of lease agreement expressly provide that the guarantor will remain responsible for any changes or amendments during the lease period or in lease renewals or extensions that would increase the guarantor's financial exposure, such as rent increases.

Update each guarantee of lease agreement for each renewal

The safest approach for a property manager is to have a new guarantee of lease agreement executed by the guarantor for each lease extension or lease renewal period. In an abundance of caution, courts will not enforce guarantees when the terms are ambiguous. If you expect to be paid by the guarantor, then it would be foolish to risk having a judge not enforce the guarantee for the renewal period because a new guarantee of lease agreement was not signed by the guarantor. We also recommend that the guarantor be sent each renewal lease as well, just as we advise the property manager to do when the original guarantee of lease is executed.

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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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