VOLUME 12 - ISSUE 2 LEGAL UPDATE
- The Weak Eviction Case
- The Different Non Payment of Rent Notices
- Lease Extensions Month to Month or a New Lease
- Maintaining Safety and Fighting Crime
Maintaining Safety and Fighting Crime
by Brian Wolk, Attorney at Law
Virtually all apartment communities are in some way affected by criminal activity. All the same, property management companies and property owners who are trying to meet their hefty expenses may refrain from beefing up on security related maintenance or spending money on criminal background checks. Even worse, property managers may also be so set on renting the apartment home that they approve applicants who fail criminal background screening tests. This shortsighted mindset may expose the property owner to massive civil liability for crimes committed on the property. In addition resident retention will take a nosedive, and the property value may plummet.
Residents must be Screened
Steven has just applied online to become a resident. He completely filled out the rental application. He lists his previous apartment community as a reference. He also represents on the application that he has never been convicted of a felony and that he has never been evicted. To complete the screening process, you verify that there was no felony conviction, and that the resident has never been evicted. Is this a weak, inadequate screening process? In a word, “yes”. First, no telephone call or other contact was made with the former apartment community. Perhaps that “reference” would have turned out to be anything but a “reference”. Maybe the contact person would have told you about prior conduct problems. Make sure your application contains language authorizing the prior property owner to divulge all information in the resident’s prior file to you. If Steven was served with a Seven-Day Termination Notice for assault and battery by the prior landlord, it is possible that you would have learned of this by taking a few minutes to simply make a phone call or send an email. We always advise our clients to use diligence in determining whether the prior landlord is real and not just a friend of the applicant, so that you are not duped or conned by the applicant. Suppose that the prior apartment community discovered crack cocaine inside Steven’s apartment and issued him a Seven-Day Termination Notice to vacate based upon a police report. If Steven did vacate the unit before an eviction was started, and no arrest was made, no eviction action or criminal conviction would have shown up on your screening report. In fact, even if an eviction lawsuit was commenced, if no final judgment of eviction was obtained, the resident’s prior eviction action may not show up on some background reports. We urge all property managers to access public records to see if there has been any prior eviction action started. Maybe your terrific prospect is under eviction right now. Another mistake made in the above example is not requiring Steven to inform you if there has ever been an “adjudication withheld”. While this might sound like complicated legalese, it is actually easy enough to understand. “Adjudication withheld” simply means that the criminal conduct likely took place and the court is not entering a conviction, usually due to a plea bargain arrangement. The judge sets forth conditions that must be met, and if those conditions are satisfied, the conviction is not entered. For example, If Steven was arrested for possession of cocaine, the judge may order him to attend a treatment program. As a property manager, you want to have the right to exclude from your community applicants who have had an “adjudication withheld” on their record. You also should check the website of the Florida Department of Law Enforcement, “’FDLE”, to see if there is a criminal history. Property managers should be very diligent in researching whether any sexual offenders or predators are living on the premises. You can access that information on the FDLE website.
Tremendous Liability for Failing to Ensure the Safety of Residents and Third Parties
Judges and especially juries will not hesitate to punish apartment communities who fail to take reasonable steps to protect residents and third parties from harm due to criminal activity on apartment community grounds. In general, apartment communities owe a duty to residents and guests of residents to maintain a safe environment. If the apartment community breaches this duty of care, then juries will determine that the apartment community was negligent if a resident or some third party is injured or killed, and that the injury or death was foreseeable in light of the apartment community's failure to take appropriate action. In one instance, a food delivery man was ambushed at an apartment community; the apartment community’s management allegedly had knowledge that many violent crimes took place there in prior years, including murder. The jury believed that the apartment community failed to take adequate security measures, even though the apartment community had hired off-duty police officers to patrol the premises during certain hours of the day. The apartment community was held liable for over three million dollars. In another case, a resident was killed, and there was no sign of forced entry. However, the apartment community’s front entry gate was not working properly. The jury awarded over 4 million dollars to the resident’s family. The jury believed that the property owner was negligent by not maintaining the front entry gate, allowing dangerous people to access the apartment community. The lesson of this particular case is to never delay making repairs to security measures that are already in place. The apartment community should always work in concert with its insurance carrier to make sure adequate security is provided, so that proper insurance coverage can be maintained.
Work with your Attorney to Enforce the Lease
Do not allow the residents to set the ground rules. A property manager needs to fight crime head on and evict residents committing crimes in the apartment community. If the property manager is aggressively fighting crime, that will send a strong message that such conduct will not be tolerated, and some of your problem residents may vacate on their own without the time or expense involved in an eviction. When a resident engages in criminal conduct in violation of your lease, you should already have an attorney working for you that is fast, efficient and is reachable, so that you can respond swiftly. Coordinate with your attorney to build a strong case, so that the appropriate Seven-Day Termination Notice can be issued to the resident. Adequate proof of the crime will be needed. Your attorney will usually need to review the police report, along with a list of residents who are willing to testify against the problem resident. If an eviction action is filed, and the case is contested, neighboring residents may be key witnesses who will need to give testimony to make your case. Disregarding your attorney’s advice will only enable the criminal resident to remain on your property longer and even make your company liable to pay the criminal resident’s attorney’s fees and costs, in the event that the judge rules against you in court. When it comes to lease enforcement, the apartment community manager should regularly inspect the apartment, and should also monitor police arrest summaries available through local news or other sources. Property managers would be shocked to learn how many criminal violations are discovered in these ways. Property managers should also have an “open door” policy for all residents, so that they are encouraged to report criminal behavior to management. It is crucial that property managers learn about all lease noncompliances, not just ones they happen to witness or discover. Neighborhood watch programs can also be an effective way for your residents to assist with crime prevention efforts.
Use Courtesy Officers
Proactive apartment community managers use courtesy officers, as they have a positive impact on the crime rate at many communities. Criminals hate the idea that law enforcement may be watching their every move, and bad residents may end up leaving the apartment community voluntarily. The courtesy officer can respond to many types of prohibited conduct, including late night disturbances; the courtesy office can also call for rapid reinforcement, monitor your pool area and can tag illegally parked cars. You should never refer to courtesy officers as security officers to your other residents, as a judge could find that you are misrepresenting their role, literally giving other residents a false sense of security in the process. It is vital that you sign a written agreement with the courtesy officer which sets forth the understanding of all parties. Your courtesy officer agreement should list all anticipated responsibilities. It should contain language similar to the following: “ The courtesy officer’s responsibilities are the enforcement of federal, state and city laws to protect life and property, to keep the peace, and to notify the property manager as soon as possible after learning of any safety or security issues, even if unrelated to law enforcement”. The courtesy officer should be listed as a vendor in your records. Your company should also have language in the agreement allowing the courtesy officer and property manager to terminate the agreement at any time. If the courtesy officer is living in your apartment community, then a normal market rent lease should be signed along with a courtesy officer addendum.
Utilize a Crime-Free Lease Addendum
The Florida Landlord/Tenant Act does not specifically state that a resident who commits a crime on or near the premises is subject to termination. Therefore, if the resident has signed a crime-free lease addendum under which the resident agrees not to participate in any criminal conduct or allow any criminal activities to occur on your property, a judge will likely be more willing to approve an eviction of the resident who has committed a crime on your property. There are often multi-housing crime free programs available that are free of charge. Both the apartment community and the property manager can receive certification under various programs if certain requirements are met. As part of your crime-free program, it may be advisable to contact your local police department to take advantage of free services they may have. For example, a police department may agree to hold a tactical training exercise in the parking lot one morning in front of a building where you suspect drug activity is taking place. Now, that will surely attract the attention of any criminal residents!
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The Weak Eviction Case
by Harry Heist, Attorney at Law
A nonpayment of rent eviction or an eviction based upon a serious criminal act that occurred on the premises is, well, a piece of cake. Most property managers are familiar with the steps necessary to set up the case for the eviction, the proper notice to be given and the eviction process itself. If a resident has not paid rent, the whole process is usually cut and dry. The resident has not paid the rent, a proper notice is given, the notice expires, and the eviction is filed by your friendly attorney who has filed thousands and thousands of evictions. Well over 75 percent of the cases go through without a hitch, and eventually the resident either vacates voluntarily, or the Sheriff makes the resident vacate. This article is not about those cases. Rather, this will be about the “weak” cases, in which the manager wants the resident out, the regional manager wants the resident out, everybody in the office wants the resident out, BUT your attorney tells you that you have “weak” case.
Before we go on with this, when your attorney tells you that your case is weak, you need to trust him or her. Think about this. If you use an attorney who primarily files evictions, this is how your attorney makes money. If an eviction is not filed, the attorney makes nothing and probably spends at least 20 minutes and 5-10 emails discussing the matter with you. You see, eviction attorneys WANT to file evictions. They want to file as many good cases as they possibly can. If they don’t file a particular case, they make less money. On the other hand, your attorney does not want to lose a case for you. Some managers feel that if you lose an eviction case, you just have to start over again at a later time, and it is no big deal. Well, it can be a big deal, a really big deal. Under Florida law, the losing party, and that may be you, must pay the attorney’s fees of the winning party, and that may be the resident. While most residents do not retain an attorney, more and more do as time goes by. The reason is twofold. First, there are over 100,000 attorneys in Florida, and some are dead broke. They will take any case that walks through the door, hoping to find a reason to make some money. Secondly, since the winning party in an eviction gets an award of attorney’s fees; that desperate attorney may end up getting an award of $10,000 or more against your company! Yes. It is true. We are aware of cases in which fee awards approach $20,000, all over a simple eviction action in which the manager LOST the case. An honest attorney looking out for your best interests will tell you when your case is weak and why. You should trust your attorney if he or she has been practicing in this area of the law for a long time and has plenty of experience. Let’s look at some examples of cases that appear strong to you, but may be weak. Finally, this article will not explain how to actually make these eviction cases stronger, as we have written plenty of articles in depth on each scenario, but this article is meant to point out why some cases are weak and why more has to be done in order to evict a person for an action or inaction if it is indeed even possible.
The Unauthorized Occupant
Simple enough. You see the unauthorized occupant, you speak with the resident, you give a 7-Day Notice to Cure, as you still see the unauthorized resident’s car, and you figure you can file an eviction. Not so fast. What is your proof? Well, you see the unauthorized occupant’s car each night. That is all nice, but is this enough to win the case in court? The resident will claim that the person is a visitor, that this person frequently visits at night and does not live there. This creates quite a mountain for you to overcome. You need to PROVE to a judge who has no idea what is going on at the property that the person is actually LIVING there. You say you have three residents who tell you they see the guy going in and out all the time. Will they come to court? They say they will, but do you know how many times a resident who has been complaining all the time does not show up in court, or if the neighbor is compelled to show up under a subpoena, how the story may change? With no testimony and solid proof, you will lose.
Resident Smoking Marijuana
We weren’t born yesterday, and most of us know exactly what marijuana smells like. Currently it is illegal to use marijuana, so if a resident is using marijuana, that resident is committing a crime. The resident in a second floor apartment tells you she constantly smells marijuana from the resident below, smoking inside the unit or on the lanai. You go over to the resident’s apartment to speak with him, and a cloud of marijuana smoke comes out and hits you in the face. Can you evict based on this proof? No. You would need to have the resident arrested, the marijuana confiscated and field tested, and you would need solid proof a crime was committed on the premises. Easier said than done, especially when the police often do nothing when you call them. To be quite frank, police have bigger fish to fry than your resident who is smoking marijuana on the lanai or inside the unit. A weak case it is.
Excessive, Accumulated Late Fees
Your resident had been paying the rent late each month, and over the past 6 months the late fees have been building and building. You take no action, as you are happy just to get the rent. Your regional manager clamps down on this and tells you that if a resident owes anything which is not paid upon demand, you are to file an eviction. You send the case over to the attorney, based upon a notice demanding $800 in late fees accumulated over 6 months. Can you win this eviction? It is really risky and hard. Your failure to insist on rent with the late fees or your failure to return the rent when it did not include the late fees created a potential waiver defense, and most judges will not want to evict someone based on the fact that it was YOU who failed to enforce your late fee policy. Many judges hate late fees.
The Unauthorized Pet that has Been There Forever
You have knowledge that your resident has an unauthorized pet in the apartment, but you don’t take any action. The pet is quiet, the pet is cute, and you have inspected the unit a few times and did not see any pet related damage. On top of that, your maintenance tech’s kid has taken care of the pet on a couple occasions when the resident was on vacation. You go into the unit now and see pet damage. Now the cute little pet has become incontinent, or the resident is leaving it unattended for extended periods of time. Maybe it has taken up barking loudly. You immediately get angry and want to give a 7- Day Notice to Cure for the unauthorized pet. But wait! The legal principle of waiver kicks in. Your failing to do something the moment you discovered the pet and your subsequent acceptance of rent month after month will cause your case to be almost impossible to win.
Resident vs. Resident Wars
We have all seen cases in which on-site residents in adjoining or nearby apartments engage in a war. One resident complains about noise, yelling, harassment, name calling: the list goes on and on. The other resident frequently has the same complaints. Now if residents get into a squabble, and there is an arrest at the property, the case actually becomes easier to set up for an eviction, but it does not usually rise to this level. It is an ongoing, low-grade war and dispute, and you are the recipient of all the complaints. You recognize that to comply with fair housing laws, you should not take sides, even though you may suspect who the real instigator is. At the end of the day, you simply do not have enough to file an eviction. These are extremely frustrating cases with which to deal, but in the absence of corroborating evidence from some third party, such as a law enforcement officer or staff member, a case against either resident will be weak.
Noise From an Adjoining Apartment
The resident below claims that the resident above is making banging noises on the floor or dropping things. Maybe the resident has a child who is constantly dropping toys on the bare wooden floor or running around. Is it noisy and annoying? Sure, but can you evict the upstairs resident for this? Very doubtful. Part of the problem is that you have no independent proof that there really is noise. You can have 10 reports written up by the downstairs neighbor, but you are not allowed to show these reports in court. Then for the final blow, you find out that the upstairs neighbor is saying that the downstairs neighbor is banging on the ceiling. Without proof, you have nothing. Absolutely nothing. If you try to evict, a judge may even deny the eviction based upon inadequate soundproofing.
The Cluttered Apartment
Some people live in an embarrassing fashion. A first glance will show everything is scattered about: clothes, papers, books, newspapers, magazines and junk. You can’t even see the floor or recognize the room you are in. Can you evict for this? If it is not a true health or fire hazard, the answer is most likely no. What you feel is a fire or health hazard may simply be a messy and cluttered apartment. Without solid proof from a professional who will come to court with you to prove to the judge that some health or building code is being violated, you will lose. People have a right to live how they want. Now, if it smells of rotting food, there are insects, vermin or feces all over, that is a different story, but a cluttered apartment may not reach that level. You often will have to put up with it.
Loitering and Excessive Guests
What is loitering? Is having 5 people sitting on the steps loitering? Is a gathering of people in the parking areas hanging out and talking loitering? You may feel it is, but unless the police agree and take action accordingly, you have nothing. Now if those 5 people on the steps are unreasonably loud or preventing other residents from using the steps for ingress or egress, this is a different story, but just “sitting there” will probably not support an eviction. What constitutes excessive guests? Is a gathering of 20 people in a small apartment excessive? This is not up to you to determine. If there is noise, excessive traffic in and out of the unit, indications of drug dealing, prostitution or other provable problems, you may be able to take some action. However, just because people do things as a group or congregate and “hang’ out, these actions may not support an eviction, and your response in dealing with this activity could result in a fair housing lawsuit or complaint.
The Odd, Annoying Resident
Sometimes you have an “odd” resident. Everyone does. The one that wanders around the apartment community partially clothed, two different shoes, smells funny, mumbling, watching the mail carrier sort the mail for delivery, saying weird things to other residents, coming into the office frequently or sitting in the children’s play area staring at the children. You may want to evict this person for “harassing other residents”, but is this resident really harassing people to the point when the actions will constitute lease violations worthy of an eviction? Very doubtful, and on top of this, the resident may have a mental problem which would qualify that person to be considered disabled under the law. Trying to file an eviction on the odd resident is extremely risky, and all other avenues need to be exhausted. You may just have to put up with that resident.
Don’t hesitate to speak with your attorney even if you have a weak case. Often there are non-eviction means to get compliance or to get a resident to vacate. The key is to understand when you do have a weak case, continue to gather evidence, and follow the advice of your attorney. Many times a weak case becomes a strong case. You never can predict what will occur.
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The Different Non Payment of Rent Notices
by Harry A. Heist, Attorney at Law
If a resident has not paid rent, you simply serve a 3-day notice, correct? Sure, this has been drilled into our brains for years, BUT it is sometimes not accurate. There are many factors which may necessitate giving a notice of DIFFERENT length to the resident. If you give the wrong notice, your notice may be defective, you could lose the case and potentially have to pay thousands in attorney’s fees. You may have to re-do the notice, wasting precious time and losing more money. But you say, my notice has been working for years! Yes. This may be the case, until you get caught by a lawyer or judge who views the law differently.
The Standard “3-Day Notice”
In most cases the resident gets the standard 3-day notice in which the resident is to pay rent within three days, not including Saturdays, Sundays or legal holidays. You can always call our office for the complete list of legal holidays for the year. So many times our clients forget the more obscure legal holidays. This notice is used when the premises are in the same county as the address for the rent payment, the resident is not forced to pay rent by mail to a physical address or a post office box, the 3-day notice was either hand delivered to the resident or posted on his or her door in the resident’s absence, and the lease does not require greater notice.
The Mailed “3-Day Notice”
If you mail a 3-day notice to a resident, the law gives the resident an additional 5 days to receive your notice, and an additional 5 days to mail the rent to you and 3 business days not including Saturdays, Sundays and legal Holidays. What does this make the notice? A “13-day notice”. So, you do not want to label it or call it a 3-day notice, as it will now be called a 13-day notice. Calling it a 3-day notice when the expiration date is really thirteen business days away will render it ambiguous and potentially defective. Mailing a notice to a resident is certainly not the advisable way to go, because the resident is afforded so much time to pay, but it is done especially when the premises are far from the rental office.
The “3-Day Notice” when the Resident must Pay by Mail
Some of our clients like to require residents to pay the rent by mail to a post office box or to a physical address. The manager serves the notice by hand delivery or posting on the door in the absence of the resident, BUT the address on the notice is not an address where the resident is to physically come, but rather the resident is expected to mail the rent to that address. The law requires that 5 additional days are added to the expiration date of the notice in this situation. The 5 days are for the resident to be able to mail the rent. In this case, now the 3-day notice becomes an 8-day notice. So, you do not want to label it or call it a 3-day notice, as it will now be called an 8-day notice. Calling it a 3-day notice when the expiration day is really 8 business days away will render it ambiguous and potentially defective.
The Payment Office is in a County Different than the Premises
Florida Statutes do not address this issue, but case law is split on this issue. We all know that law is created by statutes and by cases decided by judges. Some case law has held that if the address for the resident to pay rent is in another county different than the county where the premises are located, the resident is to be given 5 additional days for mailing time. While we often don’t agree with this line of reasoning, we are not judges, and we have to go by what the judges will say. While not all judges even know about how some other judges have ruled on this issue, sometimes an attorney defending an eviction action will show a judge a case from a county far away in Florida, and that judge will then agree with the holding of the case and rule in accordance with that case. Anything can and does happen in county court, so it is always better to be safe than sorry. If your property is in another county, no matter how close that other county line may be to your office, if you serve a notice, use an 8-day notice.
You may be thinking what you just read is absurd. After all, you have been serving just a standard 3-day notice for years, mailing them, sending them to other counties, having a post office box for a payment address and the like, and NEVER had a problem. Simply put, you were lucky. Most judges will not examine the notice you gave the resident UNLESS the case is contested and you end up in court. The FIRST thing a judge often does in a contested case is to examine the notice with a fine-tooth comb. The majority of eviction cases are lost simply because the notice given was defective. It is such a simple notice that causes so many problems when done incorrectly. Although most cases are uncontested, always assume a resident will get a lawyer and that the case will end up in court. There are tons of attorneys out there today that will take a case for free and then ask the judge for an award of thousands of dollars in attorney’s fees.
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Lease Extensions Month to Month or a New Lease
by Harry Heist, Attorney at Law
Often a resident needs more time or may want to renew for a year or a partial year. There are three basic ways to accomplish this correctly, but depending on the situation, the proper form needs to be used to avoid problems. This article will examine various scenarios and how to use the best form to protect yourself from misunderstandings or situations when the resident does not abide by the agreement. Before we begin, we must point out the worst but all too common way to handle a lease extension is by using a verbal agreement. NEVER do anything verbally. It always needs to be in writing. Verbal agreements cause everyone massive problems.
Resident Wants a 4-Month Extension
A common example of this would be when a resident is in school and needs to stay another semester. The resident asks for a specific amount of time. Often property managers will just put the resident on month to month or allow the lease to become month to month, and this is WRONG. While it is true that most leases simply turn into month to month tenancies automatically, you want to be more hands on. What you want to do is use a LEASE EXTENSION ADDENDUM. This addendum will accomplish a few things: (1) it will memorialize everything in writing, (2) it can provide for a higher rent amount that is clearly spelled out for the extension period, and (3) it can include a clause that provides the resident is to leave on the ending date with no further notice required from either party. It ends on the expiration date PERIOD, and if the resident refuses to move, you can file an eviction the day after the expiration date. No more notices will be needed.
The common error is to just place the resident on a verbal or written month to month agreement. This is a serious mistake. The main reason it is not advisable is that a month to month tenancy will go on forever unless it is terminated properly in writing by either party. If the property manager forgets to terminate the month to month tenancy, a notice of non-renewal will have to be served later, and the resident will be able to stay possibly another month or even more depending on when the notice of non-renewal is given. Why set yourself up for something to forget? Use a LEASE EXTENSION ADDENDUM that has a solid fixed termination date.
The Resident Wants More Time and is not Sure How Much
A typical scenario goes like this. The resident is having a home built and is told by the builder that there will be some delays. The home may be done in 2 months or 5 months. No one knows. In this case, the resident should be put on a MONTH TO MONTH AGREEMENT. This will accomplish a number of things: (1) everything will be in writing, (2) it will indicate the new rent amount if you decide to raise the rent under the month to month tenancy, and (3) it will state how much notice either party must give the other in order to terminate the month to month tenancy. Under Florida law, the landlord can only ask the resident to give a maximum of 15 days’ written notice prior to the end of a monthly rental period and no more. If the resident fails to give proper notice, the resident will owe the full next month, even if the resident has vacated.
The Resident Wants Another Year!
There is a temptation amongst property managers to use a one-page LEASE RENEWAL FORM, or to use a LEASE EXTENSION ADDENDUM giving the resident another year. This is not how it should be done. First, the LEASE EXTENSION ADDENDUM is to be used for a set number of months, NOT a year, and secondly, using a one-page LEASE RENEWAL FORM to renew a lease for a year may seem easy and quick, but what if the law has changed? Laws change, sometimes requiring extensive disclosures, as we saw in 2014. On top of that, leases change. The lease our office prepares is always being improved and changed. If you use a one-page LEASE RENEWAL FORM or a LEASE EXTENSION ADDENDUM to get a lease for another year, you simply are renewing or extending the older, possibly insufficient lease agreement. It is the lazy way out, and it can cause legal problems.
Always get permission from the property owner or your regional manager in writing before ever extending a lease or letting a resident go month to month. The owner or regional may not want this, and your company may have a policy on month to month tenancies, how long they can go on, or how long a lease can be extended. On certain types of properties, month to month tenancies are not even allowed. You want everyone in agreement with no surprises. If you manage single family homes, and your management agreement gives you the power to sign leases on the owner’s behalf, we still advise you check with the property owner.
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