VOLUME 9 - ISSUE 5 LEGAL UPDATE

- Suing a Former Resident
- The Fair Credit Reporting Act
- The Writ of Possession
- Resident Contact information

 

 

Resident Contact Information
by Harry Heist, Attorney at Law

 

Many times a property manager will have a need to contact a resident, but will find this task difficult or impossible. The problem is for the most part preventable with proper procedures and steps that can be taken immediately. The contact information in the file or in your computer system may be insufficient, old, obsolete, tired or expired. The contact information you took from the applicant one or two years ago now may be useless. The inability to contact the resident could end up causing you a needless waste of time and money. Being able to communicate properly with the resident is crucial. It could be as simple as needing to find out if a resident plans on paying the rent, or as important as finding out if a resident has indeed vacated an apartment so an eviction can be avoided. The standard operating procedure for years has been to get the resident's phone number, work number and emergency contact number. In this fast moving information age, the usual current information being gathered is completely inadequate and insufficient for the property manager to effectively communicate with the resident.

Why is current contact information necessary?

Contact information is used for many purposes. Initially it will be used to approve or decline an applicant. While declining an applicant for credit related reasons in writing is required by law, approval of the applicant is not, and most often it is done verbally though a phone call. This can result in the approved individual not coming in to complete the lease execution process, stalling, and creating uncertainty for the manager, turning away qualified applicants assuming that the approved individual will be coming in to sign the lease. The approved individual then has a change of plans and wants any deposits paid refunded, claiming that the manager never approved the application. Sometimes a resident is in lease noncompliance and the manager wishes to speak with the resident who is in avoidance mode. Rent may be late, and the manager wishes to speak with the resident to see if and when rent is going to be paid. Sometimes, it appears that a resident has indeed vacated the premises, but the manager is uncertain due to some personal property left behind. Should an eviction be filed? A resident may simply disappear leaving a full unit of personal property. Has the resident abandoned the premises? Keys may be found in the office drop slot, but rent is paid and personal property remains. Is the unit surrendered, or is another resident on the lease returning? All these questions can often be answered if the lines of communication are open, and most importantly, reliable.

Phone numbers: The manger must obtain the resident's current phone number, which is often a cell phone, land line, work number, superior's number and the emergency contact's phone number landline and cell number if appropriate. Since most cell phones now accept text messaging and have voice mail capability, not only can the phone numbers be called, but a voicemail or text message can be left. This is an important communication method, as the resident who may be avoiding your call will still receive the message and potentially act consistent with your objective. Many companies are using text messaging for rent reminders, announcements or to relay important information regarding the apartment community. Most text messaging is now free, so the resident will not incur any charges for text messages received.

Email addresses: The resident's personal email address or addresses, work email address and emergency contact's email address should be obtained. The majority of individuals have at least one email address, so there is no reason why you should not have that in your file. While email communicating is not a substitute for any legally required communication method, it is an excellent back- up means and may in some cases be the only means to communicate.

Physical Addresses : In addition to the phone number and emails, physical addresses should always be obtained. Often the emergency contact's physical address is not obtained, and this may be the last resort for the property manager trying to get in contact with the resident.

Social Media: The use of social media is extremely prevalent, and often these accounts are checked multiple times each day by the resident. Facebook, Twitter, Linkedin, Myspace and others social media that may arise could be the only means of communication. Without the tag name of the resident though, you may not be able to locate the resident's account due to name similarities. Most apartment communities have a social media presence and encourage residents to be a part of that network. At the time of approval or move-in, management could make sure that the resident is indeed networked in. Of course, care should be taken to use the private messaging of the media in contacting the resident. Posting a notice about rent due on the resident Facebook "wall" would invite a huge lawsuit.

Permission to use all means to communicate : After obtaining this plethora of contact information, the next step is to have the resident authorize you to use all the means gathered to make later contact. Due to privacy issues, federal and state debt collection laws, the manager will know not to use other contact people to attempt to collect a debt, including but not limited to past or current rent. At the bottom of the contact form, a statement such as the following may be appropriate, allowing contact to be made and allaying any fears by the applicant or resident that management will discuss any rent or other financial obligations with third parties, including those listed on the contact information form:

Applicant/Resident agrees that Management, Owners and/or Staff may use any of the above stated means of contact to communicate with Applicant/Resident to gather or relay important information concerning Applicant/Resident and/or the apartment community. Management, Owners and/or Staff shall not discuss any monetary obligations to the apartment community with any third parties without prior and separate written authorization by Applicant/Resident

Updating Information

Gathering information from the applicant or resident is only the first step in the process of improving the ability to communicate. If this information is not updated on a periodic basis, at least once every 6 months, no matter how much information you have initially gathered, you may be left with information that is no longer current. Often the work information changes or is now nonexistent. This is often the whole source of the problem: no job, no rent. The emergency contact may have moved away, died or is no longer in communication with the applicant or resident, and phone numbers are now no longer valid due to the resident's nonpayment. A resident in financial distress will be far more difficult to communicate with than usual.

Best Practices
1. Review current methods of gathering contact information for your applicants and residents.
2. Create a custom Contact Information Sheet to suit your needs, and be sure it is filled out.
3. Obtain permission to communicate via contact information on the Information Sheet.
4. Update the Information Sheet on a periodic basis, at least every 6 months and at renewal time.

 

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The Writ of Possession
by Harry Heist, Attorney at Law

 

The final stage or step in the eviction action is to get full possession of the premises. This is accomplished through the writ of possession. Once the judge signs a final judgment in an eviction action, the clerk of court is authorized to "issue" a writ of possession to the sheriff's department, which is in turn served to the resident by a deputy of the sheriff's department. The writ of possession commands that the resident vacate the premises within 24 hours of the resident being served. If the resident fails to vacate, the sheriff is commanded to remove the resident from the premises. Failure to properly gain possession of the premises at the end of the eviction action could actually be equivalent to never having filed the eviction. Improper execution of the writ of possession can result in significant delays and even having to start an eviction over again from the beginning. The proper execution of the writ of possession is crucial to a successful, completed eviction action. The key word here is "completed." Many property managers make serious mistakes at the end of the eviction action, increasing the potential liability to their management company or owner, and potentially defeating the whole purpose of the eviction action. Most evictions result in the resident vacating the premises within a week or two after the eviction action is filed with the court, and many managers have never experienced the execution of the writ of possession.

Mechanics of the Writ of Possession

Issuance of the Writ of Possession: Once a final judgment of eviction is obtained, the manager must decide if a writ of possession is necessary. Below is the chronology of events.

1. Your attorney will notify you that the judge signed a final judgment.
2. You need to check the unit to determine if the tenant has COMPLETELY vacated or if the unit has been surrendered to you.
3. You notify your attorney whether or not you want a writ of possession.

Do You NEED the Writ of Possession? Why is it even a question? Well, the writ of possession is an added expense. You may want to try to save the $90 or so that the sheriff's department charges, but there are dangers. If you do not have the writ of possession executed, it can be as if you never really filed an eviction. The resident is not technically "evicted". The danger in not executing the writ of possession is that the resident could come back to the unit, could move back in, and most dangerously, can claim that he or she had valuable personal possessions in the unit which you threw out or otherwise took.

If the resident has fully "surrendered" the property to you, no one is left behind living in the unit, and there is nothing of any value in the unit, you probably do NOT need the writ of possession. If you are 100% sure the resident has "abandoned" the premises, you do not need the writ of possession. The problem here is that you can NEVER be 100% sure that the tenant has "abandoned" or "surrendered", and if you assume the resident has and guess wrong, or the resident is trying to swindle or trick you, you will have wished that you executed the writ of possession.

If the manager decides that a writ of possession is indeed necessary, the manager notifies the attorney's office, and the attorney submits the writ of possession to the clerk of court along with a check to the sheriff's department, usually in the amount of $90.00, sometimes more in certain counties. The clerk of court then confirms that a final judgment of eviction has indeed been signed by the judge and "issues" the writ of possession. The writ of possession is then taken to the sheriff's department by the attorney's runner or the clerk's or sheriff's department runner, where it is processed by the staff of the sheriff's department. The time period from the time the judge signs the final judgment to actually getting the writ of possession into the hands of the sheriff's deputy can be from 1-10 days (or more) depending on the speed of the judge's office, the clerk of court and the sheriff's department. The sheriff's department has to process the writ of possession and then assign it to the sheriff's deputy who is tasked with civil process, serving papers such as the writ of possession. Delays can be caused by high volume and short staffing in the clerk's or sheriff's office. Just because the judge may state in court to the resident that the apartment must be vacated in 24 hours, or you have told your attorney in advance to have the writ of possession issued, this does not mean that your writ of possession will be issued or served immediately. Some counties are very quick in this regard; others are slow. In some counties, service and execution of the writ of possession can take weeks.

Service and Execution: There is a big difference between "service" of a writ of possession and "executing" the writ of possession. Service is the act by the sheriff's deputy of handing the writ of possession to the resident or taping it to the resident's door. The writ of possession is a two step process. As far as you are concerned, service is not really the issue, but execution is. Service is just notice, while execution is when you get legal possession of the unit.

Service of the Writ of Possession: Once processed, the writ of possession is assigned to a sheriff's deputy for service upon the resident. The sheriff's deputy then takes the writ of possession and serves it upon the resident, or in the absence of the resident, tapes it to the resident's door. The writ of possession informs the resident the premises must be vacated within 24 hours. Just getting the writ of possession "served" can take as short as one day, or in the worst cases, a few weeks.

Notification to the Manager: After the writ of possession is served, the manager is then called or visited in the office by the sheriff's deputy who served the writ of possession, and a date and time, an "appointment", is set by the sheriff's deputy, at which time the sheriff's deputy will return to "execute" the writ of possession. In almost every case, it is not really 24 hours, as the sheriff's deputy frequently does not count the day of service, and also does not serve on weekends or holidays. Usually it will be at least 48 hours before the sheriff's deputy comes back to execute the writ of possession, and sometimes the return trip takes a significantly greater period of time.

The Problem with Notification by the Deputy: The reason for the sheriff's deputy's call to the manager is really twofold. First, it is to inform the manager that the writ of possession has been served, and to schedule the time when the sheriff's deputy will meet the manager at the property to give the manager actual possession. Secondly, and unfortunately, there is often another part of the sheriff's deputy's conversation with the manager that causes a problem. The sheriff's deputy, once the date and time for the meeting is set up, will ask the manager if he or she "needs" the sheriff's deputy to execute the writ of possession. If the manager says "no," the sheriff's deputy will return the writ of possession to the clerk as "unexecuted", meaning "incomplete". The eviction action may as well have never been filed.

Why Does The Sheriff's Deputy Ask the Manager if the Writ of Possession is Wanted?: The sheriff's deputy has many writs of possession to serve and execute on any given day. Often the sheriff's deputy's schedule will get backed up, as the service and execution of some writs of possession require more time than others. Sometimes a manager is late to meet the sheriff's deputy, and the sheriff's deputy will wait a small period of time, causing a snowball effect with the sheriff's deputy's schedule. Occasionally, the resident must be physically removed from the premises, resulting in further delay. In some instances, serious disputes or altercations occur, and the sheriff's deputy must remain on the premises until the resident is finally removed from the premises and no longer poses a danger to the manager, staff or the sheriff's deputy. The sheriff's deputy wants nothing more than to have the manager tell him that the writ of possession is not needed. It is completely understandable; the sheriff's deputy is just trying to get all the writs of possession served or executed, as the case may be, for that day. For each writ of possession the sheriff's deputy can cancel or return "unexecuted", this will free up more time for the sheriff's deputy to get to the next writ of possession that needs to be served or executed. This action by the sheriff's deputy creates potential liability to your company.

What Does the Sheriff's Deputy Say to the Manager?- The sheriff's deputy will ask the manager if the resident is still in the rental unit or ask if the manager still "needs" the sheriff's deputy to come out to finish up or "execute" the writ of possession. Often the manager is not sure if the resident is still in possession, and the sheriff's deputy gives the manager his cell phone number to call at a later time. The manager then goes and checks the property. If the property is empty or appears empty to the manager, the manager will possibly notify the sheriff's deputy, and the sheriff's deputy will then ask the manager if the writ of possession execution is "needed". Often the manager will say "no", thinking that if the resident is not there anymore, then it must be unnecessary to meet the sheriff's deputy. This is a serious mistake that is made all the time.

The Consequences of Telling the Sheriff's Deputy "NO": If the sheriff's deputy is told by the manager that the writ of possession is not needed, the sheriff's deputy returns the writ of possession to the clerk's office as "unexecuted", and it is docketed as such into the court records. The resident now officially has NOT been evicted, and the eviction has been stopped. Yes, an eviction was filed on the resident, and a final judgment of eviction was obtained, BUT the eviction was never completed. The resident has NOT been evicted from the property, even though he may in fact have vacated the premises and will never be seen again. If the resident is ever later asked if he had been evicted, he could honestly say "no".

The Resident May Return: If the resident were to return to the property, he could simply move right back into the unit, and the manager would need to file additional paperwork with the court seeking a new writ of possession, or possibly even be required to file a brand new eviction, starting all over again from scratch. The returning resident would not be considered a trespasser, and the sheriff's deputy will do nothing to remove the resident without further order from a judge. As far as the courts are concerned, the eviction was never completed.

The Resident May Return Looking for Personal Property: If the resident comes back to the premises, and the manager has disposed of the resident's personal property, the manager can be held civilly and possibly criminally liable for the loss of the property. The resident could say just about anything as to what was taken and its alleged value, and it would often be difficult to counter these allegations. A property manager or maintenance tech could end up in jail. When the manager fully executes the writ of possession and subsequently removes the remaining personal property to the property line, the manager's liability to the resident for the remaining personal property is completely removed. When the writ of possession is not executed, the potential liability for improper personal property disposition can be very high.

The Resident May Use the Common Areas of the Property: The manager may observe a former resident using the community pool, exercise room or laundry room. A sheriff's deputy may be more reluctant to trespass the "former" resident if the eviction was never completed. When the sheriff's deputy looks up eviction case on the court docket, he will see that the writ of possession was returned "unexecuted" and will be more likely not to trespass the resident.

You Have Wasted $90.00 or More: A writ of possession costs $90.00 and was paid for by your attorney. You will be billed by your attorney for that writ of possession. By canceling the writ of possession, you increased your liability, failed to formally complete the eviction, increased the chance of a big problem and wasted $90.00 or more. Once the writ of possession gets in the hands of the sheriff's department, the $90.00 is spent.

When the Sheriff's Deputy Calls, What Should You Say? When the sheriff's deputy calls you to set up the writ of possession execution day and time, if you are asked if the resident is still there or if you still need the writ of possession, simply say "YES". Never quit short of the finish line. It is a sure way to lose the race. No matter what the sheriff's deputy asks you, no matter if you have received the keys, no matter if the unit is completely emptied and clean as a whistle, NEVER tell the sheriff's deputy that the unit is vacant and that you don't "need" him to execute the writ of possession.

Procedure When Meeting the Sheriff's Deputy: It is crucial to be prepared when meeting the sheriff's deputy. This means having your maintenance tech ready and equipped to change the lock and remove the personal property if your company policy is to remove personal property right away. Don't change the locks prior to the sheriff's deputy meeting you at the door, as some sheriff's departments have an internal policy to not execute a writ of possession if it appears that possession has already been reclaimed.

1. THE EMPTY UNIT - Is the unit vacant? That is the first question to be properly answered. The only way to determine if a unit is truly vacant is to inspect the unit. We recommend that this be done with the sheriff's deputy present. Follow the sheriff's deputy throughout the unit, and look in all closets, bathrooms, behind shower curtains, in attic crawlspaces, under beds if left behind, and even the refrigerator. Extreme care needs to be taken to make sure that the resident truly is gone and not hiding in the unit. A number of extremely dangerous situations have occurred when the property manager and maintenance personnel thought the residents had vacated, when the reality was that the residents were hiding in the unit. If the unit is vacant and empty, the sheriff's deputy meets you at the door to the apartment, the locks are changed and the unit is yours.

2. THE FULL OR PARTIALLY FULL UNIT

If the resident is present, the resident is told to leave the unit and the premises by the sheriff's deputy. If it is so desired, you may allow the resident time to remove personal property, but this is risky. In the best of situations, the evicted resident has removed all of the personal property from the premises, nothing is left in the unit, and the resident is gone. In the worst case scenario, the unit is full of personal property, the resident must be physically removed from the premises by the sheriff's deputy, and the property manager and staff is left with the task of removing all the personal property left behind to the property line. Property managers face two less common situations when far more than the usual trash is left behind. The time will come, if it has not already, when the property manager will be meeting the sheriff's deputy at the door, only to discover that the resident has failed to remove ANY of the personal property from the premises. It will look like the resident simply up and left with no attempt whatsoever to remove anything. The resident is nowhere to be found, and the property manager is left with a very uncomfortable feeling regarding the situation. Do you remove all the items and place them on the property line? Certainly if the eviction is proper, this is completely allowed by law, but should it really be done right then and there? The other situation occurs when the panicked resident is present at the time you are executing the writ of possession, begging and pleading with you to give extra time to get help and a truck, so that all the personal property can be retrieved later in the day or the next day. The resident acts surprised and claims total ignorance of what is happening, which is a likely line indeed. In both situations, extreme care must be taken, as the route you take could have unintended consequences.

A. The Full or Partially Full Unit and the Resident Is NOT Present

If the unit is full of personal items and furniture presumably of value, we strongly recommend that you change the locks and take a breather. It is quite possible that the evicted resident is in jail, is in a hospital, possibly mentally unstable, went off to work, or just cannot comprehend how the eviction process works in Florida. It is also possible that the resident has PAID the rent, is on vacation, and you mistakenly filed the eviction. Anything can and does happen, so it is wise to change the locks and begin the research process. There is no need to hastily remove all the personal property. While you may feel that this goes against what you have heard about the law and your rights to take all the items and place them on the property line, we feel it is a best practice to hold off for a bit and begin some research rather than rush to remove the personal property to the property line. Unless you incorrectly filed the eviction action, you are under no legal obligation to take our recommendations at all; they are simply optional. Go back through your files, and make sure that the eviction was not performed in error, and do whatever it takes to contact the evicted resident. We have had situations when property managers have filed evictions in error.

Contacting the Evicted Resident: Do everything in your power to contact the evicted resident. This includes looking back in the file for email addresses, emergency contact info, cell phone numbers and work numbers, as you are seeking any hint or possible information concerning where the resident can be. If calling a work number, there is no need to mention that there is an eviction or an execution of the writ of possession; just stress the urgency of needing to speak with the resident. Here you will see more than ever how maintaining up to date contact information before and during a tenancy is crucial. At this juncture, you may even find out to your utter disbelief that you filed the eviction in error, and that the resident's rent payment was posted to the wrong resident's account!

Speaking with Neighbors: While we always strive to respect the privacy rights of our residents, the eviction once filed becomes public record and can be discussed with the nearby neighbors, at least in a limited context. Often the neighbor has some information as to the whereabouts of the resident and some contact information. If you locate the resident, explain what has occurred, explain how you can by law place all of the resident's personal property to the property line, and read on below.

B. The Evicted Resident Has Been Located OR the Resident Is Present When the Sheriff's Deputy Arrives

There will be situations when the resident is actually present at the property at the exact time the writ of possession is being executed, or once the writ of possession has been executed, you have been able to locate the evicted resident, who expresses a desire to retrieve all or at least part of the remaining personal property. The usual request by the resident is for more time to get a truck, hire a mover, call a friend, or do whatever it takes to get the personal property out of the unit. It is so important to stand strong as a property manager, and get on the phone with your attorney, so that no mistakes are made at this crucial juncture. The resident has been evicted. It is over. Unless you enter into a stipulation with the resident and money changes hands, you must be careful that you do not inadvertently give possession back to the evicted resident, possibly kill the eviction and have to start over again. At the same time, it will be helpful to you and the evicted resident if that resident is able to remove all or most of the remaining personal property, so that your staff does not have to undertake this task, and the evicted resident does not lose all of his or her worldly possessions. By giving the evicted resident a bit of extra time, you may be able to avoid the evicted resident breaking into the unit, causing serious damages to the premises or committing bodily harm to you or your staff. Remember that you may have tracked down the evicted resident who for whatever reason could not comprehend or did not know that the eviction was taking place and fails to recognize the consequences of the writ of possession execution. A dangerous scenario is an evicted resident getting out or jail or an institution, only to discover that you took all the personal property to the property line, and that it is now all gone.

Extension Dangers: An inexperienced property manager may give in to the evicted resident's wishes and indicate that the resident has a few hours or until the end of the day to retrieve the remaining personal property. The sheriff's deputy may even encourage this. This is usually done verbally. For example, you tell the resident in front of the sheriff's deputy that she must remove all the personal property by 5:00 p.m., you proceed to change the locks, and the evicted resident is "supposed" to contact you to let her in later that afternoon. 5:00 p.m. comes and goes, and the evicted resident fails to show and get her belongings. In the meantime, the evicted resident calls your office, and speaks to a staff member who has no idea what is happening with the eviction. Your maintenance tech then comes the next morning to the unit, and seeing that nothing was removed, proceeds to remove all the items to the property line, where they quickly disappear. The evicted resident then returns a few hours later, infuriated that her personal property is gone and tells you that your leasing agent "agreed" that she could remove the personal property by noon that day, thus claiming a verbal extension. Did that conversation really occur with the leasing agent? If so, the evicted resident may be able to claim that an agreement was made, and now you are responsible for the loss of the evicted resident's personal property. You see, by giving the evicted resident an extension or the evicted resident successfully claiming an extension was granted, this can result in you becoming a "bailee" of the personal property, and then some responsibility for the safekeeping of the property arises. Did your leasing agent give the evicted resident an additional extension? Now we have a factual dispute which may have to be decided by a judge.

Two Common Extension Scenarios

1. The Sheriff's Deputy Says He Will Return in 2 Hours: Sometimes, a sheriff's deputy will "hold off' from executing the writ of possession and will return later or even the next day. Basically, you are having the deputy simply "hold off" from executing the writ of possession. Make sure you have the sheriff's deputy write a note to this effect on his paperwork, because after executing ten writs of possession that day, he may forget you or confuse you with another one he handled that morning. In the meantime the evicted resident should and often will remove the remaining personal property. The sheriff's deputy then returns two hours later or the next day and executes the writ of possession, and it is over. Or is it? The evicted resident may not have removed all the personal property. Removal of an accumulation of personal property (sometimes collected over many years) is often a taller task than it seems. If the evicted resident has removed all the personal property and is gone, you are in great shape. The sheriff's deputy executes the writ of possession, and the eviction is complete.

2. The Sheriff's Deputy Executes the Writ of Possession and Leaves: The evicted resident is present or you have contacted him, and you are allowing the evicted resident in to get his belongings, or decide to give the evicted resident an extension of time to remove his personal property: a. Recognize this is dangerous situation, and avoid it if possible. Only use this method if there is a full unit of belongings, or has belongings that the evicted resident wants to retrieve, you have consulted your attorney, AND b. Use a proper form we created called the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION

What is the Personal Property Removal Extension Notification?

This form is not a form provided by Florida law. It is simply a form created to assist those property managers who wish to give the evicted resident extra time to remove personal property. This form can only be used AFTER the sheriff's deputy has met you at the property and given you full possession of the unit by executing the writ of possession. It is not an agreement, but is rather a notification by you to the evicted resident that you are, as a courtesy, allowing the evicted resident to retrieve personal property, and most importantly, giving the evicted resident a deadline by which to remove any remaining personal property. We urge you to avoid these situations, and if at all possible, fully remove all personal property left in a unit to the property line, but we also understand there will be situations when this is not possible, practical, or you feel compelled to assist the evicted resident for whatever reason. We strongly urge that you always contact your attorney if you are going to give an evicted resident any extensions, or decide to use the Personal Property Removal Extension Notification. The axiom in property management is that no good deed goes unpunished, and it definitely applies here.

Forgetting to Meet the Sheriff's Deputy: It is crucial that you take the appointment to meet the sheriff's deputy seriously. If you fail to meet the sheriff's deputy, your writ of possession will be returned to the clerk's office as "unexecuted". This means your eviction was not completed, and the resident was NOT evicted from the premises. If for some reason you must reschedule, call the sheriff's deputy BEFORE the time of writ of possession execution, attempt to reschedule, and document what occurred. If you fail to meet the sheriff's deputy and have not successfully rescheduled ahead of time, you will waste the deputy's time, anger the sheriff's deputy, and in order to get a new writ of possession, your attorney will need to file a motion with the court. The judge must approve the motion and order an alias writ of possession to be issued, and the process will be significantly delayed. The judge could require a hearing, or even elect not to grant the order.

The Dangerous or Belligerent Resident: Executing a writ of possession can be an extremely dangerous and emotionally charged time. Here the resident who is possibly at the end of his rope and under extreme stress may become belligerent or violent. The sheriff deputy's function is to give you possession and keep the peace while the writ of possession is being executed. If the resident is still on the premises, the resident may have to be removed by the sheriff's deputy and trespassed from the premises. However, the problem is that after the resident has been removed, the sheriff's deputy then leaves and heads off to the next eviction. There is a high chance that the resident may return to the premises, especially if the resident made no previous effort to remove personal belongings, and now the personal belongings are being moved to the property line. If you feel that you or your staff members are in any danger, it is imperative that you ask the sheriff's deputy to remain until everything is secure, and if you are in a municipality that has a police department, that the police are called to the property as well. The sheriff's department is entitled to charge a reasonable hourly fee in this type of situation, but it is money well spent. If you anticipate that writ execution with regard to a particular resident has the potential to be an explosive situation, you should notify the sheriff's deputy in advance, so that the sheriff's deputy can make time in his schedule to accommodate the situation; the sheriff's deputy may also enlist the aid of other deputies to deal with the potentially dangerous situation. Serious altercations and disturbances have occurred between the resident being evicted and management, and even small riots have occurred on the property, when friends or relatives of the evicted resident decide that the property manager is treating the resident unfairly. You can never be too careful when executing the writ of possession. It can be extremely dangerous, even if the resident is not present at the moment you are executing the writ of possession.

Removal of the Personal Property - According to Florida law, the personal property left behind may be removed to the property line at the time of execution of the writ of possession or at any time thereafter. There is absolutely nothing in the law that allows management or maintenance to take any items from the unit during an eviction and keep them. Often other residents are peeking out their windows, watching the execution of the writ of possession, and many managers and maintenance staff have been observed not properly executing the writ of possession, taking personal property for their own use and then having legal actions filed against them. The purpose of the law is to allow the evicted tenant to retrieve personal property from the property line after possession rights in the apartment have been terminated. If the resident has left personal property behind and has not been allowed to retrieve the items from the unit, the property taken from the unit must be taken to the property line.

Sensitive Personal Property - Anything can and is found when executing a writ of possession. Guns and other weapons, prescription medication, illegal items, passports, immigration documents and personal financial papers are often among the items removed during writ of possession execution. Florida law does not provide any guidance on how these items should be handled. With firearms, prescription medication or illegal items, we recommend that you obtain guidance from the sheriff's department or police department, if one exists in your municipality. As for retaining personal papers or sensitive documents as a courtesy to the evicted resident, this would be up to company policy, with the knowledge that there are risks involved.

What Is the Property Line? - The property line has been interpreted to mean the public right of way, not the dumpster. While the last thing you really want to do is take personal property and place this property out in front of the apartment community, the law does not provide any alternatives.

How Long Should the Property Remain at the Property Line? - If the former resident is retrieving personal property from the property line, we recommend that the property remain at the property line as long as the removal process is occurring. Otherwise, we recommend that the property remain at least 4-6 hours. Anything of value will disappear quickly, and in some cases, scavengers follow the sheriff's deputy from place to place where writs of possession are being executed. The maintenance tech can and should monitor the personal property, as it often ends up being spread down the road, or litter occurs and code enforcement decides to show up and cite the property. Any items or trash left over after the appropriate time period has elapsed can and should be put into the dumpster or trash compactor. We recommend taking photos of the remaining items or trash before this is done, and it is also a good idea to have photographic proof that the personal property was brought to the property line.

Strange Situations at Time of Writ of Possession Execution - Odd and unforeseen things occur when executing a writ of possession. Since executions all occur during normal business hours, we recommend that if at any time that you are not sure how to proceed, you call your attorney immediately. This would be considered an emergency situation, so make sure that you speak with an attorney immediately, not just staff members. The eviction action is a fairly long and sometimes costly legal process. You do not want to make any mistakes, especially at the end.

 

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Suing a Former Resident
by Brian P. Wolk, Attorney at Law

 

Property managers are sometimes asked by the property owners to hire collection attorneys to sue former residents in order to collect the money owed by those former residents. The assumption that a lawsuit will result in the collection of a debt is misguided. Florida laws are considered to be among the friendliest to debtors. At the end of the litigation process, many owners have expended valuable time and financial resources, yet often end up with little or nothing to show for that effort. Any property manager who encourages the owner to obtain a money judgment against a resident or even suggests retaining a collection attorney in most cases will regret giving that advice. The owner will often be angry that considerable sums of money were paid to the collection attorney who obtained nothing from the former resident. The owner would have been financially better off in most cases not even hiring the collection attorney. The property manager will indeed feel the wrath of that disappointed and angry owner.

The collection attorney filing suit against the former resident

A collection's attorney can file a lawsuit against the former resident for money damages. These actions are not free, and the court costs and attorneys fee can be substantial. The stakes can rise even more if the former resident contests the action and hires an attorney in the process. If the former resident prevails, then the property owner will often be required to pay that former resident's court costs and attorney's fees, which amount could be very significant. Even worse, the former resident may file and prevail on a counterclaim, thus turning the tables on the owner by suing the owner. You should never underestimate the reasons that may arise as to why the resident failed to pay the rent or broke the lease prematurely.

Locating the former resident The first difficulty that a collection attorney must deal with is locating the former resident, as many former residents will essentially seem to vanish into thin air. The collection attorney may need to use outsides sources to obtain that information, which is called skip tracing. While skip tracing is often successful, it is not free.

Serving the former resident with the litigation

If the former resident debtor is located, the next step for the collection attorney is to serve the lawsuit upon that individual, either in person using a sheriff's deputy or process server, or by registered mail if it is a small claims court case. An owner cannot obtain a money judgment against a debtor unless "personal "service" is obtained on that debtor. The debtor may be out of state or often is trying to avoid being served due to owing many people money.

Is the former resident judgment proof?

The debtor may be considered to be judgment proof. That simply means that even if the judgment debtor has property, it may not be available to satisfy a judgment. Often the owner will have wasted considerable sums of money by engaging a collection attorney who is able to collect absolutely nothing.

Florida Law and the debtor

Florida has a reputation as a debtor-friendly state and with good reason. This reputation is based in part on Florida's generous "homestead exemption", which often fully exempts a person's primary residence from collection efforts. However, even for those debtors who do not own a home, there are numerous other protections. For example, there are exemptions for personal income and for vehicles that are owned. The former resident who is judgment proof will have no reason to in most cases to satisfy the judgment, unless that person has a need to improve a credit score and/or obtain a loan or mortgage.

Locating the assets

If a money judgment is obtained against the former resident by the collection attorney, the next step is locating the former resident's assets. Florida law has procedures to assist in locating assets. The former resident can be required to list assets or can be examined to locate assets; however, the process can often turn out to be unproductive if the former resident refuses to cooperate or resorts to deception regarding the information given. In the event that the collection attorney locates assets of the former resident, and these assets are not exempt, the owner must keep in mind that legal actions to aid in collection, such as levy, execution or garnishment, require filing fees to be paid by the property owner. These most certainly add up.

Exemptions

In the event the collection attorney locates assets, frequently these assets are exempt. Federal and Florida law establish what are known as "exemptions" to protect certain property of debtors from creditors, such as the above mentioned homestead exemption. There are also a number of federal or Florida exemptions for particular categories of income originating from government programs. Some of the more common federal and Florida government programs which are exempt include unemployment compensation, social security, public assistance, veterans and disability income benefits, retirement benefits, medical savings accounts, college savings accounts and funeral accounts. Additionally, some large industries have prevailed upon the legislature to exempt their products, such as life insurance proceeds and the cash surrender value of life insurance and annuities. The Florida legislature has exempted alimony, child support and separate maintenance payments, $1,000 equity in a motor vehicle at used car prices, and property held jointly in the name of husband and wife, when only one spouse is the debtor. Finally, Florida exempts $1,000 of a debtor's personal property, including cash or bank accounts. A thousand dollars can cover a lot of property when it is valued as used property. It should be pointed out that these exemptions are per person. So $2,000 total could be claimed by two former residents/debtors still living together.

Head of household exemption

If the former resident is employed, then Florida law provides a process called garnishment by which his wages may be taken. However, there are significant exemptions which include the head of household exemption. If an individual makes $500 or less per week in net wages, and the person is a head of family, those wages are exempt from garnishment. A head of family is a person who provides more than one half of the support for a child or other person. Wages in a bank account that belong to a head of family are exempt from being seized for six months, even if the wages are intermingled with money from other sources. All persons, including those who do not qualify as a head of family, will still have the protection of federal law which limits the amount of wages that can be garnished. Garnished wages cannot exceed more than 25% of a person's net wages or the take home pay that is more than 30 times the federal minimum wage per week, whichever is less.

The former resident's business

If the former resident is operating a business other than a sole proprietorship, a judgment against the former resident may not lead to successful collection against the business under Florida law. If the former resident has followed the proper procedures, such entities as corporations, partnerships, limited partnerships, limited liability companies and others, are considered separate and distinct entities from the debtor. A judgment against the former resident is not usually collectible against the former resident's separate business entity.

Bankruptcy

The former resident also has another weapon in the debt avoidance arsenal; that person can file bankruptcy. A bankruptcy filing and discharge can permanently prevent collection of the debt, so even the future possibility of collecting on a judgment will usually not be an option for the owner. Many bankruptcies will result in all unsecured creditors receiving absolutely nothing once the bankruptcy is complete, so all the time, energy and money spent obtaining a judgment and attempting to collect will likely be in vain.

Conclusion

While some situations warrant taking legal action against a former resident who may owe money, careful thought must go into the decision. A cost/benefit analysis must be done first to avoid throwing good money after bad. Many attorneys will not be forthright with their clients about the chances of collection. If an owner wishes to file a lawsuit, there are plenty of attorneys who will gladly take the owner's money. Few attorneys will actually file a lawsuit for the collection of rent money on a strict contingency due to the small chances of collection, and this should tell you something about the value of "going after" the debtor. In some cases, after careful investigation and evaluation, a reputable attorney will recommend filing a lawsuit. It is quite possible that a resident's circumstances have changed or will soon change, creating a better collection environment. The key is to use a reputable and honest collection attorney with a proven track record. The next time you are asked by an owner to "go after" the resident or find the owner an attorney, send the owner a copy of this article. Let that owner make an informed decision and find a collection attorney. If you recommend your local attorney and the result is unfavorable to the owner, not only will the owner be angry at you for recommending the attorney, but may even try to get your to pay the money owed by the former resident, blaming you for approving and placing the resident in the first place.

 

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The Fair Credit Reporting Act
by Brian P. Wolk, Attorney at Law

 

The Fair Credit Reporting Act is a detailed and extensive federal law with which property managers must comply. This law pertains to the utilization and collection of personal data by the property manager. This law affects all phases of property management. The Fair Credit Reporting Act is relevant to the application process, the actual tenancy and the collection process. This Act covers areas, including but not limited to, denial of applications, criminal background checks, identity theft and the collection of amounts owed by former residents. There is no shortage of attorneys who will sue a property manager over credit reporting violations. There are serious consequences for property managers and their companies who fail to fully comply with laws such as the Fair Credit Reporting Act.

Purpose of the law

The Fair Credit Reporting Act was designed to protect consumers with respect to information collected by credit reporting agencies. Congress wanted consumer reporting agencies to act with impartiality and fairness. Congress wanted those agencies to adopt reasonable regulations for the protection of the consumer. Congress also wanted users of the information provided by credit reporting agencies to be heavily regulated. The Act was amended in 1996 and 2011 to include additional consumer protections. Of particular significance to property managers is the amendments which cover areas that are dealt with on a daily basis, such as identity theft and adverse action notices.

Enforcement of the Act The Federal Trade Commission is the federal agency which promulgates rules and has enforcement powers over violations of the Fair Credit Reporting Act. However, the property manager must keep in mind that the applicant, resident, or former resident can sue over violations of the Act without the blessing of the Federal Trade Commission.

Definitions of consumer report under the Act

A consumer report means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used for a permissible purpose under the Act.

The property manager must obtain authorization from the applicant

Written authorization for the release of a consumer report to the landlord must be obtained from the rental applicant by the property manager. The landlord will have a separate contract with the credit reporting agency, which will typically strictly limit the ability of the landlord to share the information with third parties. However, if an adverse action is taken by the landlord against the applicant, the Act prohibits the credit reporting agency from restricting the landlord (the "user" of the information) from sharing the report with the applicant.

Identity theft

The Fair and Accurate Credit Transactions Act amended the Fair Credit Reporting Act .This amendment imposes regulations for property managers when dealing with the issue of identity theft. In addition, property management companies must have procedures in place designed to protect its applicants and residents from identity theft. For example, it is not legal to list all of the credit card numbers on a receipt.

The fraud alert

The Fair and Accurate Credit Transactions Act authorizes an identity theft victim to include a fraud alert on the consumer credit report. A property manager who notices a fraud alert must pay particular attention to it in order to comply with the law. .

Impact of the fraud alert on the property manager

A property may approve an application if there is a fraud alert. However, a property manager may not decline an applicant based solely on a fraud alert that has been placed on the rental applicant's credit report. If the property manager declines an applicant with the fraud alert, then there must be a completely different reason for the rejection of the application other than the fraud alert.

Identity theft and collections

The Fair and Accurate Credit Transactions Act prohibits the collection of a former resident's debt when a property manager has been alerted that the debt has resulted from identity theft. In that case, a property manager is prohibited by law from collecting that debt.

Request for information by victims of identity theft

The Fair and Accurate Credit Transactions Act requires property managers to provide records to an alleged victim of identity theft, or to a law enforcement entity that is authorized by the alleged victim to investigate on that person's behalf.

The Dodd-Frank Wall Street Reform Act

The Dodd-Frank Wall Street Reform Act amended the Fair Credit Reporting Act effective July 21, 2011. The Fair Credit Reporting Act prior to July 21, 2011 only required a property manager to provide an applicant with notice of any adverse action based on information obtained from the applicant's consumer report. The Dodd-Frank Wall Street Reform Act requires the property manager to disclose the applicant's credit score when the adverse action is based in whole or in part on the applicant's credit score.

Credit score disclosure requirements for adverse action notice

The property manager must disclose the following information in the adverse action notice if any part of the decision making process involved the credit score of the applicant: the credit score number used in making the credit decision, the name of the person or entity that provided the credit score, the date on which the credit score was created, the range of possible credit scores under the model used, and all of the key factors that adversely affected the applicant's credit score, not to exceed four factors. However, if the number of inquiries made with respect to the consumer report is a key factor, no more than five factors should be listed. Also required is a statement that indicates a credit score is a number that takes into account information in a consumer report, and that a credit score can change over time to reflect changes in the consumer's credit history.

Impact on the property manager's resident screening company

If the property manager utilizes a resident screening company, the property manager could easily still be subject to the credit score disclosure requirements. The property manager must ascertain whether the resident screening company uses a credit score as part of its own scoring model. If the answer is yes, then the property manager will be subject to the credit score disclosure requirements. One final point: even if the property manager is not required to provide the applicant with a credit score disclosure, the applicant must still be provided with an adverse action notice when an adverse action is taken due to the content of a consumer report, such as a denial of the application, or if the landlord requires a higher than normal deposit, or requires the applicant to secure a guarantor when one would not normally be required. If rejection of the applicant or other adverse action toward the applicant has nothing to do with the content of a consumer report, then the landlord would not be required to send an adverse action notice.

 

 

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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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