VOLUME 10 - ISSUE 2 LEGAL UPDATE
- Resident Death Revisited
- E-Filing in Florida and You
- Dealing With Odd Abandoned Property
- The Recent Increase In Blanket Subpoenas
- The Fair Housing Lady Q & A
E-Filing in Florida and You
by Harry Heist, Attorney at Law
Florida’s judicial branch is attempting to go paperless. The Florida Rule of Judicial Administration 2.525 will affect all divisions of Civil, Probate, Small Claims and Family Courts, which includes evictions.
Starting April 1, 2013 all attorneys are required to file their evictions electronically via the State E-Filing Portal (“E-Portal”), which means your evictions will be electronically filed and submitted to the court. The electronic filing of the case is an instantaneous process, and the filing fee and related costs are due at the moment the case is filed. Only attorney’s offices will have access to the E-Portal.
You and Your Evictions – a Quick Q & A
Q: Do I have to send any additional information/paperwork to the attorney’s office?
A: You will send the same paperwork as before, but you may be required to provide the Social Security number and date of birth of each resident who signed the lease in order to confirm if the resident is or is not serving actively in the military.
Q: Can I still cancel an eviction once I fax or e-mail the paperwork to your office?
A: Yes, you can cancel your eviction without incurring any charge before it is entered into the E-Portal. Whenever you cancel an eviction, be sure to follow our office cancellation procedure, and always make sure that we have received the cancellation. Do not rely 100% on email or fax. Since the costs of filing are high, you want to make sure that a cancellation is received. Once we submit your eviction via the E-Portal, you can still stop the eviction, but you will incur the full initial court costs and attorney’s fees associated with the case once the eviction is electronically filed.
After the paperwork has been submitted, you should always inform our office if the resident(s) has vacated and/or turned in keys or is attempting to pay. If you received any money from the resident(s), you should immediately inform our office to be advised on the options you might have.
Q: Are the attorney’s fees for the eviction going to change?
A: No. Our office is not raising our attorney’s fees.
Q: Are the costs for the eviction going to change?
A: Yes; the State requires payment at the time the case is electronically filed, and we anticipate an additional $3.00 to $10.00 in costs associated with charges in processing payment of the case and subsequent processing of the eviction case by the county clerk, which total amount will vary depending upon the county in which the case is filed.
Q: Will this change the time it takes to complete an eviction?
A: The speed of processing on our end will not change, and this is a very important focus of our office. This is an effort by the Florida courts to go paperless. We all know there might be some delays in the beginning of the process on the court’s end until the logistics are worked out properly. We expect the counties to experience a lot of difficulties initially.
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Resident Death Revisited
by Harry Heist, Attorney at Law
Resident deaths are on the rise. Our aging population, natural deaths, suicides and homicides have resulted in more deaths than ever of residents. Ideally when a resident dies, the relatives would immediately hire an attorney and begin the process of opening up a probate estate. One main objective of a probate estate is to establish a person to administer the estate; this person is called a “personal representative” in Florida, and is often called an “executor” in other states. Both titles mean the same thing. When the court appoints this person, the property manager can deal directly with this person in the same way the property manager would deal with the resident when the resident was alive. Access to the unit can be granted to the personal representative, or if the personal representative fails to pay the rent or remove the personal belongings, the property manager can file an eviction against the estate of the deceased resident by suing the personal representative, who now “stands in the shoes” of the deceased resident.
Upon a resident’s death, legal matters enter a state of limbo. You cannot sue a deceased resident, you cannot evict a deceased resident, and most importantly, you cannot grant access to any relatives who often show up in a very distressed state asking for access. The person requesting access may claim to be the sole child or the sole heir of the deceased resident. The person may even claim there is a will that confirms this information. While this information may even be accurate, until a probate judge ratifies that person’s authority to take action on behalf of the estate, the property manager is unable to deal with that person legally. Not much is more disturbing or disconcerting than having angry, distressed relatives being told they cannot be given access to the apartment, but the bottom line is that they cannot. If the property manager gives access to someone that does not have the authority bestowed by the probate court to act on the estate’s behalf, another person claiming interest in the deceased resident’s personal property can appear later and file a huge lawsuit against the property manager, the property management company and the owner of the property. Knowing what to do upon a resident’s death is crucial, and the first person you should contact is your attorney. Do not panic, and do not begin a long dialogue with the distressed relatives.
Speaking with Relatives or Friends
You are not prohibited from speaking with relatives or friends that are attempting to deal with the situation, but they often will not like the information you are conveying. You need to firmly inform anyone seeking access about the need for a probate court order. The relatives or friends will immediately think that you are trying to cause them further grief or obstruct them. Since they do not know the law and often are suspicious, this is understandable. Sometimes, your attorney may be able to directly speak with a relative seeking access and calm that person down. However, your attorney cannot legally advise this individual, other than to point out the legal position you are forced to take, and that you are not trying to give anyone a hard time.
Resident Found in Unit
Often a resident is found deceased in the apartment by a friend, relative or staff member of the apartment community. The body is removed, and if possible, management should do everything in its power to notify family members if they are not already aware of the situation. This is one reason why it is crucial to have updated emergency contact information, not old information originally received years ago when the resident moved in. Read our article again on the importance of updated contact information, and see how you are shaping up. If you have not asked your current residents for updated information, do so immediately.
If law enforcement designates the area as a crime scene pending the determination and cause of death, no one should enter the unit, including any biohazard professionals, until law enforcement verifies in writing that the unit may be entered. Keep in close contact with law enforcement, as if they determine that no crime has been committed, they may not bother to tell you that the unit is cleared, leaving you unaware that you are able to move forward with normal procedures.
Though an unpleasant subject, sometimes this becomes an issue. Do not attempt to take any shortcuts in this matter and put you or your maintenance staff at any health risk. The cleanup sometimes must occur immediately, but there are personal belongings in the unit which may or may not be of value. If the biohazard professional were to remove valuable items intentionally or by accident, liability could occur to management. Sometimes personal property must be removed from the unit; there is no choice. Furniture, clothing, drapes, bedding, and porous materials are the most common items that have to be removed immediately and properly disposed of. These items will often become permeated with liquids or even just odors forcing their removal from the unit. Demand that your biohazard professional videotape, photograph and document anything that is actually removed from the unit for disposal. Always use a professional biohazard removal company that is fully insured and bonded, and if you do not already have one in place, this is the time to shop around and look for a company that is available to you when or if the time comes. Prices for biohazard cleanup range significantly, so begin to look for companies that are used by other property management companies or apartment communities.
At times due to advanced decomposition, odors travel to adjoining apartments. Sometimes this is how a deceased resident is discovered. If you have an available unit for resident transfer, offer this immediately. If not, and a resident in an adjacent unit is complaining about lingering odors, we recommend you allow the resident to break the lease without penalty. This is done by providing the resident with a lease break letter under which the resident is given the option to vacate with no penalty.
Access by Friends and Relatives
You cannot grant access to a third party absent a court order. You must advise the relatives to contact an attorney and begin the process. There are a number of expedited procedures which may allow relatives to obtain access, a probate court order authorizing management to open the unit, or a summary probate process available for low value estates when a personal representative is appointed quickly. Most relatives refuse to go through this process, feeling it is unnecessary. When they do not take action, there is no other good option for management other than waiting the 60 days from the date of death, as will be discussed below. Are you under a legal duty to change locks, guard the unit or otherwise prevent access to third parties? Nothing in the law addresses this, but it is clear that with regard to an individual that does not already have access, you should not give access to that third party absent a court order. The sole surviving son or daughter of the deceased has no more right to enter the unit than a stranger on the street. If you give access that was otherwise not available, you open your company up to massive liability. You have no idea of the value of the items inside; we have seen cases in which individuals lived like absolute paupers but had personal property of very high value stashed in the apartment upon death. We have seen cases in which the resident informed the property manager that the resident had no relatives, but by some strange magic, a relative did indeed appear upon death, wanting nothing more than to get in, take a few items of value, and leave the manager with the rest.
Power of Attorney
In some cases, you may have a resident who gave a power of attorney to a friend or relative. This power of attorney details what the friend or relative is able to do on behalf of the resident. The power of attorney allows the holder or “attorney in fact” to sign contracts such as the lease, make health care decisions, sell property, and almost anything else that the power of attorney enumerates. There is one really huge limitation with a power of attorney. It ceases and becomes null and void upon the death of the resident. If you have a power of attorney for a resident in the resident’s file, it becomes 100% useless upon death.
In 2007, due to the legal and logistical problems created for management and owners by a resident’s death, Florida law was amended to provide an alternative route of regaining possession of the unit for management when relatives refuse to ever get a probate estate opened, or show no interest in the unit and the possessions at all. It is not a perfect solution, but was created to address the reality that relatives would often never have a probate estate opened up. This dynamic was holding apartments hostage for a long time. Under current law, if a probate estate is not opened or no other probate court order is obtained within 60 days of the resident’s death, and no one else is occupying the rental premises at the end of the 60-day period, management has the right to take back the apartment. What about the remaining personal property? If the operative lease contains a proper abandoned property clause, management may also dispose of any remaining personal property without liability at the end of the 60-day period. Unlike the rules that normally govern abandoned property, you can see the waiting period is far longer. While it may seem like a long time to wait, it is the best the law provides for us. If the operative lease does not have a proper abandoned property clause, a serious quandary remains with regard to disposition of the remaining personal property.
Your Lease Agreement and a Look at the Actual Law
If you examine your lease agreement, there should be a section, often at the end, dealing with “Abandoned Property”. This is not just a convenient or informational section; it is required by law if you wish to easily deal with the abandoned property, be it in a case of death or just normal abandoned property. Many leases still have not been brought up to date in this regard.
The proper wording is as follows, with emphasis by us on the part dealing with “death”, which is often missing from older leases that have not been updated. The following comes from FS 83.67 and this is what you need in your lease:
FS 83.67 “BY SIGNING THIS RENTAL AGREEMENT, THE RESIDENT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING RESIDENT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE MANAGER SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE RESIDENT'S PERSONAL PROPERTY.
Recovery of Possession
If you read the above and the bolded section, you have to establish “recovery of possession”. It does not simply mean that the person is deceased, but this is when the 60 days come into play. Here is the next section of the applicable law that will further clarify.
Florida Statute 83.59 reads in part:
FS 83.59..“When the last remaining resident of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the manager has not been notified in writing of the existence of a probate estate or the name and address of a personal representative…”
So as you can see, your lease must have the “proper wording” and you need “recovery of possession” in accordance with the law: two crucial elements.
Resident Death Checklist
In order to get possession of a unit after resident death, you should follow this simple checklist:
1. Resident has died and you have confirmed the date of death through an official death certificate;
2. Relatives/friends are notified to determine if anyone is planning on hiring an attorney to open up a probate estate;
3. If you are notified that a probate estate is being opened, you will attempt to obtain the information as soon as possible with regard to the attorney or person handling the legal procedure in probate court;
4. If a probate estate is opened, you can deal directly with the personal representative. You can allow access, and you can evict by suing the estate by serving the personal representative;
5. If a probate estate is not opened, you need to count 60 days from the resident’s death;
6. Your attorney can confirm that no probate estate has been opened, and you will confirm that you have not been sent any paper from any courts in Florida or otherwise indicating a probate estate is opened;
7. After the 60 days have elapsed, the unit is yours; with a proper abandoned property clause in place, the belongings can also be disposed of in any way you see fit
Fortunately, dealing with a resident’s death is not an everyday issue; therefore, you may not know what to do or be tempted to do something which may seem logical or correct, but may be illegal. Simply call your attorney the moment you have a resident death, and he or she will walk you through the process. If you have a new manager who may be from another state where the laws differ, or your regional manager is telling you something that conflicts with the information we are providing here, be sure to know the law to avoid a very costly mistake. Never assume a person has no relatives, and never assume that your resident has nothing of value in the unit, no matter what you observe. You just may receive a call from that long lost nephew claiming his uncle left him a valuable antique baseball card collection, and if it ends up in litigation, your company may be paying the nephew big bucks.
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Dealing With Odd Abandoned Property
by Harry Heist, Attorney at Law
In the process of executing a writ of possession or removing abandoned property from a unit, the law provides that the property manager place the items “to or near the property line”. The law is not clear as to what the actual property line is, but generally if you examine the purpose of the law, it is to place the items in a place where the evicted individual who is removed from the property may gain access to the personal property. At a single family home, this may mean the curb in front of the home; in an apartment community, it may mean actually placing the items in front of the apartment community, something that you really don’t care to do. However, what happens when you are in the process of removing all the items from a unit and you come across certain things which would not be appropriate to allow the public access to? Guns, medication, pornography, computers, weapons and all types of items are left behind. Should these be brought “to or near the property line”?
Inappropriate or Problematic Items
When executing a writ of possession, if the resident is actually there retrieving the items from the property line, it is not your place to deny access to anything that belongs to the resident, regardless of what it may be. Your maintenance staff brings the items to the property line and the resident retrieves them. It is not your maintenance tech’s place to make a determination as to what the resident who is at the property line can or cannot have. The personal property belongs to the evicted resident no matter what. This is usually not the problem case; rather, it is when the resident is no longer in possession, has abandoned the apartment, been evicted and has left these “treasures” behind for you to deal with. This is where things get tricky.
Medications and Hypodermic Needles
Medications and even empty prescription bottles should neither be brought to the property line, nor should they be disposed of by throwing them in the dumpster or down the drain or toilet. “Dumpster divers” are everywhere, and besides the risk of a dumpster diver selling or ingesting discarded medication, often prescription bottles have information which could result in someone obtaining refills of the medications. It is tempting to simply dump a bottle of medication down the drain. Works pretty well, right? It has been proven that traces of medication have shown up in water supplies and ground water due to the large amounts that are disposed of in this fashion. If you find medications, call your local health department and ask them what to do, as there are certain methods how they can be disposed of in the trash safely. Often the local health department has disposal containers for medications, and may even come to retrieve them or direct you on proper disposal techniques. Hypodermic needles pose an extreme risk to your maintenance staff, so exercise extreme care when cleaning out a unit, and again, call the local health department for disposal advice.
We recommend that you shred this if possible, and do not place it to the property line. If it appears to be illegal pornography, or consists of a large amount of videos, DVDs, etc., contact law enforcement immediately, and they may agree to remove it for you.
If possible, and of course if the resident is not at the property line retrieving items, you can consider shredding this information, such as checks, records, bills, statements, etc. There should be no public safety issue with financial documents or other documents containing personal information. Although you are under no legal obligation to protect a resident from identity theft, if the resident is not at the property line retrieving items, and the items are being scavenged through by others, this information arguably should not be placed at the property line. However, you need to be mindful of the axiom that no good deed goes unpunished; if the resident shows up fifteen minutes after financial documents have been shredded, problems can ensue. Another possible approach is to delay the removal of these particular financially sensitive items to the property line for a day or so, to allow for the possibility that the resident will show up a few hours after the writ of possession was executed, even though our usual recommendation is to remove all personal property to the property line at the same time.
Any unopened, accumulated mail should be marked “return to sender” and given to your postal carrier or dropped off at the post office. Many residents who vacate or are evicted fail to place a forwarding order with the post office, so the receipt of a former resident’s mail may go on for some time.
Guns, Ammunition and Weapons
Although the items may be perfectly legal, call law enforcement immediately, and they will come out and retrieve these items. Insist that they come out without delay, so you are not causing yourself any greater liability for storing the items which could later be stolen.
Drug Manufacturing Equipment or Paraphernalia
Occasionally a resident who is running from the law will vacate suddenly, leaving behind drug manufacturing chemicals, controlled substances or drug use paraphernalia. Simply call law enforcement if you suspect this, and in the event chemicals are present, instruct your maintenance staff not to touch or remove these items until it is determined to be safe.
Abandoned Property versus Writ of Possession Property
There is a big difference. If you are dealing with “abandoned property”, you are NOT required to place it at the property line, and basically you can do whatever you want with it. Keep it, sell it, discard it, or give it away to charity. The key though is to make 100% certain that it is indeed “abandoned property”. When you are executing a writ of possession, you are NOT dealing with “abandoned property”. You are dealing with the resident’s property in a way that is designated by the law. Before you decide that something is abandoned property, read our article on this carefully, and make certain your lease has the proper abandoned property wording. Again, items left behind by a resident after an eviction is finalized are NOT abandoned property.
There will be times when you or your maintenance techs are tempted to keep something that belongs to the resident. It is a hard thing to bring out valuable items to the property line, only for someone else to take off with them. The items may be of value, and you just do not feel right about bringing them to the property line. It is a hard thing to take perfectly good items and hand them over to the scavengers who often follow the sheriff to retrieve items that are removed during the execution of a writ of possession. Do not take these items for yourself; they go to the property line.
Saving Items for the Resident
In the process of executing a writ of possession, you may make a decision that the resident would definitely want the items that were left behind. You may know for a fact that the resident is mentally unstable, and you are fearful as to what could happen if you were to bring these items to the property line. Here is where a real problem begins. How do you make a determination as to what you should or should not hold? Does the law permit you to do this? If you hold some items, could you be opening yourself up to even further liability? Unsure what to do? Give your attorney a call. The writ of possession is always executed during business hours, and when you call the attorney’s office, be sure to state that it is an emergency, and speak directly with the attorney, not a paralegal.
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The Recent Increase In Blanket Subpoenas
by Jeffrey Greenberger, Attorney at Law
THE RECENT INCREASE IN BLANKET SUBPOENAS
We have received reports for years of the occasional facility receiving some sort of all encompassing subpoena from a law enforcement agency, meaning a subpoena to produce information about all occupants at the facility. However, in the last six to eight months we have noticed a marked uptick in these reports. These subpoenas tend to come from Federal agencies such as the FBI or ICE. These subpoenas are normally delivered by an agent and the agent expects you to on-site produce all the documentation requested, which is often a list of all of your tenants’ names, addresses, social security numbers, credit cards used to pay, etc. Some of these subpoenas even go so far as to request full copies of all files. On site staff is asked to make a decision about their patriotism towards their country while an agent flashes a badge and waits for their response.
Issue #1: Can these agencies do this?
Except for the FBI investigating drug cases, there does not seem to be authority for a Federal agency to be allowed to “fish” with “blanket” subpoenas for information at a self-storage facility, or anywhere else for that matter. Generally, the existence of the subpoena is supposed to be made known to the person about whom information is being subpoenaed; however, there are obviously investigations by which providing notice to people that their information is being subpoenaed would lead to interference with the investigation. Thus, it does not appear that every tenant needs to be notified by the agency that a subpoena has been issued before you respond, but a blanket subpoena is really a different matter.
Issue #2: Do you have to give the information while the agent is standing there?
The answer is certainly not. If you look at the subpoena it is generally called a Duces Tecum Subpoena indicating that you are supposed to provide information within a certain period of time. The Federal Rules of Civil Procedure seem to indicate the minimum amount of time to provide information under a subpoena is seven (7) days. The subpoenas our clients have been served with recently have given them 24 to 48 hours to respond, but that is at least enough time to follow the rest of the advice in this column and contact your attorney.
Issue #3: Should you comply?
The answer to this question is difficult. If you have been properly subpoenaed, the subpoena is not defective, and you believe the agent to be a legitimate person issuing a legitimate subpoena (as opposed to checking on his/her girlfriend’s new boyfriend) then you are more likely than not required to comply. However, we have been able to resolve many of these situations by asking the agent or contacting the agent’s supervisor to reach some sort of agreement about what is really being sought in the subpoena. We generally begin these conversations by saying we do not believe it is absolutely necessary for the agency to subpoena our entire tenant list and, some of the information that they may be requesting you may not be able to provide such as a screening or tenant report. We also warn the agency that we believe we must notify every tenant that their information was subpoenaed after we turn it over. No Federal agency likes citizen calls from senators or congressmen so the agency generally negotiates. If asked, the agency will generally back down on the subpoena because they are looking to figure out who a person was that entered a facility during a certain band of time, or they are looking for a certain list of names. By asking for this information, we can often negotiate down the subpoena to provide information that is more specifically targeted to what the agency is looking for. For example, if they are looking for anyone who entered the facility between 4:00 p.m. and 8:00 p.m. on a certain date, providing the gate log for four hours is a much easier pill to swallow than providing the name, address, social security number, credit card number, etc., of all of your tenants. Conversely, the agency may be looking for certain people. They could give us a list of twenty names, some real, some fake, and we could tell them whether those files exist, and then they could specifically subpoena those files or we could provide them specific information from the files of the people that are a match at our facility. Naturally, you do not want to interfere with a criminal investigation. Thus, it is not your responsibility or duty to disclose anything to anyone until after the information has been tendered, and you may come to an agreement with the agency that the fact that the information was subpoenaed needs to be kept a secret for a longer period of time. You should come to an agreement with the agency so that you do not accidently cross the line into interfering with a criminal investigation. The short answer to all of this is contact your attorney if you are served with one of these subpoenas. Do not provide all of the documents on-site just because an agent is intimidating or seems to think they are entitled to it. Let your attorney negotiate with the agency to figure out what really needs to be turned over, if anything, and turn that information over to the agency, if your attorney tells you it is a proper subpoena, within the time lines reasonably provided. No one wants you to interfere with appropriate law enforcement responsibilities in the United States government or local government; however, there is a trust between you and your tenants that their information will be reasonably protected by you if possible. Although there is no law on the subject of their privacy, once a subpoena is served, that expectation of privacy is probably out the window; however, the more you can do to keep an appropriate buffer away from lawsuits by tenants and not interfere or impede a criminal investigation the better you are. That is the reason we recommend your attorney negotiate these subpoenas as quickly as possible after you are served with one.
Jeffrey J. Greenberger is a Partner with the law firm of Katz, Greenberger, & Norton LLP, in Cincinnati, Ohio and is licensed to practice in the states of Ohio and Kentucky. Mr.Greenberger’s practice focuses primarily on representing the owners and operators of commercial real estate, including self-storage owners and operators. This column is for the purpose of providing general legal insight into the Self-Storage field and should not be substituted for the advice of your own attorney. Jeffrey’s website, www.selfstoragelegal.com, contains Jeffrey’s legal opinions and insights into the self-storage industry, as well as an article archive. You can send your questions, comments, or suggestions for future topics to Jeffrey J. Greenberger at firstname.lastname@example.org, or mail them to Jeffrey J. Greenberger, c/o Katz, Greenberger, & NortonLLP, 105 E. Fourth Street, Suite 400, Cincinnati, Ohio, 45202, or you can reach Mr.Greenberger at (513) 698-9350.
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THE FAIR HOUSING LADY Q & A
by Nadeen Green, Attorney at Law
Dear Fair Housing Lady,
I have always subscribed to the mantra of “get it in writing” – I have found that this is a pretty good idea in both my property management and personal lives (although sometimes it seems as if all I have is a property management life!). But recently I heard someone say that sometimes, because of fair housing concerns, we can’t ask for something to be in writing. I’ve racked my brain, but haven’t been able to see why or when it would be a problem to “get it in writing”. Am I missing something here?
Puzzled a Tad
Let’s see if I can clear up your puzzlement, because I think I know what it is that you may be missing. It is a pretty routine requirement for property management folks to tell their residents that all work orders have to be in writing. This helps avoid the problems that can occur when residents see the maintenance professionals and ask to have things done without routing the issue through the proper channels. And there is nothing wrong with the policy except (and you knew there would be an exception!) when an oral communication is not just a work order request, but a request for reasonable accommodation made by a person with a disability. If you think this is the case, then don’t ignore a request just because it is oral (over the phone or in person); staff can write down their understanding of what is being asked for and then verify that they have understood correctly. In exchange for this helpful tidbit (which was not legal advice), now I’d like you to do two things. First, share this information with all on-site folks, including maintenance. Second, tell your folks that when in doubt (work order v. reasonable accommodation request) to always decide it is likely the latter. A bit more hassle for on-site folks? Perhaps. A lot less hassle than a fair housing investigation, charge or lawsuit. For sure!
Sincerely, The Fair Housing Lady
This Dear Fair Housing Lady article was originally posted on Nadeen Green's blog at fairhousing.forrent.com" Nadeen is known nationwide as a Fair Housing Law expert and she is proud to be Senior Counsel with For Rent Media Solutions
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