VOLUME 9 - ISSUE 6 LEGAL UPDATE

- Resident's Maintenance Obligations under Florida Law
- Property Manager's Maintenance Obligations under Florida Law
- Returning Rent Pre-Eviction

 

 

Returning Rent Pre Eviction
by Harry Heist, Attorney at Law

 

Residents will often attempt to pay a partial rent payment or full rent, when you do not want to accept the rent because the resident is in noncompliance, the lease is up, or for any of the myriad reasons why rent would or should be refused. The resident may pay the partial or full rent payment by hand delivery, throwing a check or money order in a drop box, or by electronic payment. Acceptance of a partial or full rent payment can have significant consequences. The property manager must know exactly how to return this rent payment, be it a partial or a full payment. The issue here is the manner in which and when the payment is returned. Failure to return a partial or full payment promptly or properly is a common mistake made by managers. If your residents have the ability to pay their rent electronically, please read our article on ELECTRONIC RENT PAYMENTS, but fully read and understand this section, as the same principles apply.

Reasons for Returning Partial or Full Payment

There are many situations when a partial or full rent payment should not be accepted. Some of these situations include a continuing noncompliance by the resident, after a Seven-Day Notice of Noncompliance with Opportunity to Cure or Seven-Day Termination Notice has been served, payment made after a resident's Notice of Non-renewal has expired, or when a resident tries to make a partial payment. If rent is to be refused and returned, the manager needs to do this immediately. If a payment is held for even just a few hours, there is a serious risk of problems. If you have knowledge of a resident's payment and intentionally hold a resident's payment, each passing hour and day brings your closer to acceptance of rent, even if the payment is ultimately returned. Florida law does not define how long the holding must be before it is considered acceptance, but many judges interpret any delay in returning the money to the resident to constitute acceptance. If the resident "thinks" you have accepted the rent, most judges will feel the same. If you issue a receipt, that action will put you in the acceptance zone, even if the payment is subsequently returned. Depositing the payment will almost surely be considered acceptance, unless you can prove to a judge that it was purely accidental, it was caught immediately, and the resident receives the payment back immediately. How do you return the payment back if the resident paid by a check and the money was deposited into your account? You can write the resident a check back, but there is an incredible danger that the check the resident gave you will come back NSF, and now YOU have paid the resident rent!

How To Return the Payment to the Resident

Hand Delivery

The best way to return a resident's payment is to make a photocopy of the payment, go directly to the resident with a witness present and hand-deliver the payment back to the resident. While the resident may deny receipt in rare circumstances, this is the preferred way to return the attempted payment. At the time you are returning the money, you will have an opportunity to discuss the resident's future plans.

Certified Mail

If the resident is not available, not home or refuses to accept back the payment that was tendered to you, the manager MUST get the money back to the resident, but at the same time, make sure the resident knows that the money is not being accepted and is being returned. Here are some steps you can take.

1. Copy the payment;

2. Call the resident and indicate that you are returning the money and that it will not be accepted;

3. Prepare and copy a letter to the resident stating that you cannot accept rent and that the payment is being returned by certified mail to the resident that day;

4. Place that letter in an envelope, and tape it securely to the resident's door. If there is a back door or garage that the resident may use, tape an additional envelope and letter to these entrances. The key is to make sure the resident knows the money is not being accepted and under no false impression that it was or will be accepted;

5. Send the payment back to the resident by certified mail, return receipt requested, saving the proof of mailing.

Common Mistakes

1. Manager receives the payment and holds onto the payment;

2. Manager calls and informs the resident to pick up payment; the payment is not picked up, and the manager holds the payment;

3. A receipt is given to the resident, the payment is stamped with manager's bank depository information, or the payment is actually deposited into manager's account.

4. Manager puts payment in an envelope and tapes it to the resident's door.

Recommendations

Notify everyone in your office that either partial rent payments are not accepted, or that you cannot accept a partial or full rent payment from a particular resident, and carefully watch that the resident does not try to make a payment. Communication with staff is crucial in avoiding the accidental acceptance of a payment. You may want to go as far as placing a note on the office wall out of the sight of other residents, or attaching a note to your bank deposit book simply stating, "Do not accept rent from John Doe, Apt 123". Carefully follow the return of payment steps as outlined above, and be aware that another person may try to slip a payment in or use a check or money order that only indicates to what unit the payment is to be applied.

 

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The Resident's Maintenance Obligations under Florida Law
by Brian P. Wolk, Attorney at Law

 

In general, the property manager is responsible to make sure that the apartment community makes needed repairs. Florida law is limited with regard to the maintenance obligations that apartment community residents have. However, apartment community residents still must comply with all obligations as set forth under Florida law.

Property Manager must not Limit the Rights of the Resident

An apartment community property manager may not limit the property owner's duty of habitability or statutory obligations by inserting a lease provision attempting to waive all these repair obligations, or having the resident accept possession of the apartment "as is" for all purposes. Florida law prohibits any lease provision that purports to waive or preclude the rights, remedies, or requirements set forth in the Florida Statutes, or which attempts to limit or preclude any liability of the apartment community to the resident. For example a lease clause which places the responsibility of routine pest control on the resident would not be enforceable in court. However, apartment communities may supplement the statute with proper lease provisions clarifying what is expected of the resident, because the obligations contained in the statute are not very lengthy and often contain only general language.

Resident's Failure to Comply Basis for Seven-Day Notice

While the law recognizes that the bulk of the maintenance requirements fall on the apartment community manager, residents still must respect the property and apartment community in which they reside. After all, a resident is not the owner of the apartment home and must not cause harm to the owner. The title of the applicable Florida statutory provision, "Tenant's Obligation to Maintain the Dwelling Unit", is somewhat misleading. The section really pertains much more to the resident's duty to properly use the apartment home. This statute requires not only the proper physical use of the apartment home, but also the proper behavior of the resident and the resident's guests on the grounds of the apartment community. The resident's failure to comply with the obligations contained in the statute can be the basis for property manager to serve the resident Seven-Day Notice of Noncompliance with Opportunity to Cure. Continued noncompliance by the resident may be cause for the property manager to issue a Seven-Day Termination Notice. However, the property manager should consult with an attorney before doing so.

Building Codes

The statute requires that the resident "comply with all obligations imposed upon residents by applicable provisions of building, housing and health codes". This mirrors the statutory obligation of the landlord in the statute to comply with building, housing and health codes. The definition of "building, housing and health codes" is very broad, and it will likely include any governmental regulation related to housing. The resident will also have obligations under other statutes, regulations and local ordinances.

Clean and Sanitary Conditions

The statute requires the resident to "keep that part of the premises which he or she occupies and uses clean and sanitary." The definition of "premises", which is found in the statute, includes not only the resident's apartment, unit or home, but also the apartment building and the common areas of the apartment community. The statute requires the resident to avoid littering and to clean up litter left on the premises by the resident or guests. It is important to note that the statute does not require the resident to clean the apartment building or common areas. That remains the property manager's responsibility, as long as the resident did not cause the mess.

Removal of Garbage

The statute requires the resident to remove from the resident's apartment home all garbage in a clean and sanitary manner. The statute contains the word dwelling, not apartment home, but an apartment home is considered to be a dwelling for purposes of the statute. However, the statute does not require the resident to provide for the pick-up and removal of the garbage from the apartment community itself. That is the landlord's responsibility under the statute. The property manager should make sure that the lease further clarifies where exactly the resident's trash and garbage should be placed.

Plumbing Fixtures

The statute requires the resident to keep all plumbing fixtures in the dwelling unit or used by the resident clean and sanitary and in repair. Although the term "plumbing fixtures" is used, it is certainly not the responsibility of the resident to repair all plumbing problems. While there may some uncertainty as to what a fixture is, the statute limits the resident's obligation only to the fixtures. This provision requires not only that the fixtures be kept clean and sanitary, but also that the resident is responsible to repair them. If the fixtures, such as faucets, sinks and toilet bowls, are in good repair at the start of the resident's lease, the resident must repair the fixtures during the tenancy. The apartment community manager need not prove that any damage was the result of the resident's intentional act, negligence or lease noncompliance.

Facilities and Appliances

The statute requires that the resident use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators. There is no independent duty to repair the facilities or appliances. The resident would only be responsible for the repair of the facilities or appliances if the resident, occupant or resident's guest broke or damaged them by unreasonable use or operation. If the facilities or appliances broke or malfunctioned due to some other reason, for instance due to age, the landlord is responsible for the repair.

Damage or Removal

The statute mandates that the resident not destroy, deface, damage, impair or remove any part of the premises or property therein belonging to the apartment community, nor permit any person to do so. This is a broad general prohibition against damage or unauthorized removal of the landlord's property. The property manager can rely upon this statutory provision to hold the resident responsible for repairs or replacement of damaged or removed property, as well as for unauthorized alterations.

Resident's Obligation to Report Repairs to Management

The statute does not specifically require the resident to report any needed repairs. The duty to report to prevent further damage can be reasonably inferred from the duties contained elsewhere in the statute and under general legal principles, but it is not an explicit obligation. As such, a property manager cannot be certain that a judge will find a duty to report under the statute. For example, a property manager must not assume that a judge will find a duty to report a growing mold problem in the apartment. In fact, the word mold does not appear in the Residential Landlord/Tenant Act. However, the property manager can point to the statute's requirement that the resident use and operate the ventilating and air conditioning in a reasonable manner as a directive to control humidity. It is still a good idea for the rental agreement to include appropriate provisions requiring the resident to report needed repairs, including any apparent breakdown in the control of humidity, mildew and mold.

Resident's Use must be Reasonable

The statute clearly provides duties for reasonable use and for the resident to refrain from damaging the apartment home. The issue faced by property managers is proving that the resident's use or operation was unreasonable, or that the resident caused the damage or removed the property. A judge will not assume that because something was in good repair at initial occupancy, but failed along the way, that the resident is responsible for the damage or repair.

Burden of Proof on the Property Manager

The apartment community manager must prove that the damage was the result of the intentional act, negligence or some other noncompliance by the resident or the resident's occupants or guests. In some cases the proof is readily available, but sometimes it is not easy to prove that the damage was caused by the resident. The cause for example, could be completely unrelated to the resident's use, such as an appliance malfunction. The property manager has the burden of proving statutory noncompliances. Therefore, testimony in court by third parties, such as neighbors or vendors making repairs, will often be necessary.

 

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The Property Manager's Maintenance Obligations under Florida Law
by Brian P. Wolk, Attorney at Law

 

It is crucial for apartment managers to have a clear understanding of what maintenance and repair obligations Florida Statutes imposes upon them. Judges expect property managers to strictly follow governing statutory provisions, and generally have little patience for a property manager who fails to properly maintain the apartment community. Even worse, there is no shortage of attorneys in Florida who will be ready, able, and willing to file a lawsuit on behalf of an allegedly aggrieved resident. Property managers should not attempt to guess what the applicable maintenance and repair obligations are, since some of the statutory provisions are counterintuitive. Improperly trained apartment managers in this area of law can also severely cripple the ability to evict or non-renew a resident. If the property is not being maintained according to Florida law, the resident may be able to exercise powerful rights to withhold rent or break the lease. Doing your best is sometimes just not enough. Florida Statute 83.51 governs the maintenance obligations of management. In addition to the maintenance obligations imposed by this law, the lease may also create additional obligations on management.

Compliance with Building, Housing and Health Codes

According to Florida law, the property manager must comply with all building, housing and health codes. This obligation is in effect at all times during the lease term, not just at move-in. The definition of building, housing and health codes in the statute signifies any law, ordinance, or governmental regulation concerning health, safety, sanitation or fitness for habitation, or the construction, maintenance, operation, occupancy, use, or appearance, of any dwelling unit."ƒ A dwelling unit is defined by the statute as a structure or part of a structure that is rented for use as a home, residence, or sleeping place by one person or by two or more persons who maintain a common household. This is a broad definition, and if the regulation, ordinance or law is related to housing, then the property manager must comply. Building, housing and health codes include both state and local housing regulations. Since local jurisdictions may enact greater protections for the resident, these codes must be regularly monitored for compliance purposes.

Management should Remedy the Code Violation

If an inspection from code enforcement, the health inspector, or a representative of any regulatory entity results in some infraction being cited, the appropriate response is to make the needed repairs quickly and thoroughly. No delay is acceptable. For example, if the fire marshal cites your apartment community for having defective fire sprinklers, then do not delay; fix the problem. This is important, not only to avoid further fines and citations from the regulatory authority or potential liability for personal injury or property damage, but also because these code related violations could be grounds for the resident to withhold rent, preventing an eviction for nonpayment of rent, or the resident could be in a position to simply terminate the lease. A property manager must also not retaliate against the resident who makes the complaint, as Florida law prohibits such action. Often, an unhappy resident does report the property to the authorities, and the matter escalates. Always look at every resident as someone who may call in code enforcement. Code enforcement officials are notorious for finding far more violations that you initially expected, and they often can be unreasonable.

 

Compliance when there is no Applicable Building, Housing, and Health Codes

If there are no applicable building, housing or health codes, the statute requires that certain building and structural components be kept in good repair and capable of resisting normal forces and loads. The statute requires the property manager to maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls and foundations. It also specifically states that the plumbing be in reasonable working condition. At one time this provision may have been important in those areas of Florida without building, housing and health codes. Today the Florida Building Code applies on a statewide basis. Therefore, this subsection of the statute has limited significance. It is possible a judge who is not familiar with the Florida Building Code may look at the roofs, windows, screens, doors, floors, steps, porches, exterior walls and foundation as a guide to whether the property manager or resident is responsible for the repair.

Pest Control

The property manager at all times during the tenancy must take reasonable action to exterminate. The statute specifically requires the property manager to implement reasonable steps to handle the extermination of rats, mice, roaches, ants, wood destroying organisms and bedbugs. Even seasoned property managers fail to realize that the statute specifically lists bedbug extermination as the property manager's responsibility. The statute authorizes the property manager upon seven days' written notice to require the resident to vacate the apartment home for a period not to exceed four days. In that case the property manager must abate the rent for that period, but the resident will not be entitled to additional damages, such as relocation expenses.

Additional maintenance obligations

The statute also imposes a number of additional maintenance obligations on apartment community property managers during the entire term of the resident's lease. The property manager must establish reasonable procedures with respect to the maintenance of the common areas. The common areas are to be kept in a clean and safe condition. Property managers are also responsible to maintain the locks and keys. For example, if the locks are not working, and the resident did not damage or change the locks, then the property manager must make the needed repair, and if necessary, install new locks. Garbage removal and related outside receptacles, such as dumpsters, trash cans and trash compactors are also the property manager's responsibility. However, in that instance the lease can contain language obligating the resident to pay a fee for trash removal. The property manager must provide for garbage pick-up in areas without county or municipal trash service.

Air Conditioning

The property manager must provide functioning facilities for running water and hot water, and heat must also be provided to the resident. As with trash removal charges, the property manager can obligate the resident to pay for charges related to water, fuel and utilities. The statute does not require that the landlord maintain air conditioning, but the building code may so require, and if the air conditioning was working at move-in, then like any other appliance, a judge would expect the property manager to properly maintain it. Beyond that, failing to provide air conditioning would obviously create conditions conducive to mold growth, and the property manager's company is vulnerable to being sued if the resident suffers personal injury or property damage from not having air conditioning.

Resident Caused the Damage

An apartment community is not liable for maintenance or repairs required under Florida law, if the resident, occupants or guests of the resident caused the damage by negligent conduct or intentional acts. The property manager still must convince the judge that the damage was caused by the resident, occupants or the resident's guests, if the property manager wishes to charge the resident, or justify why repairs were not made by the property manager. The burden of proof in court will be on the manager with regard to these issues. When pursuing a reimbursement claim, the manager must also provide proof of the maintenance or repair cost related to the resident's conduct. The manager must arrange for the necessary vendors to appear in court to testify concerning the cost and cause of the damage. If not, the property manager will likely lose in court.

 

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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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