LEGAL NEWS - DECEMBER 2005

 EDUCATION ! EDUCATION! EDUCATION – An Educated Property Manager is a Successful Property Manager!

2006 will be a big year for educational programs at the Law Offices of Heist, Weisse & Lucrezi. Many classes ranging from 3 to 5 hours are scheduled all over Florida in the coming year. Separate classes are geared to the residential property manager, and attendees receive 3 CE Specialty hour credits, while others are focused on apartment managers and maintenance staff. Invitations are usually sent by mail, but if you are not on our mailing list, all classes will be listed on the Training/Events section of EVICT.COM.

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 LEGISLATIVE ACTIVITIES HEATING UP- WILL YOU GET INVOLVED?

A number of bills directly affecting property managers have been introduced in the Florida Legislature so far this year, with plenty more to come. These bills pertain to criminal penalties for landlords renting to sexual predators, the ability to charge liquidated damages upon voluntary or involuntary lease break, and mold remediation regulations. It is extremely important that you keep up on these bills as they progress, as we may need your help supporting or defeating them as the case may be. Make sure you attend the following Legislative Days in Tallahassee:  March 28-29 Florida Apartment Association, March 29-30 Florida Association of Residential Property Managers.

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 THE MOTION TO STAY THE WRIT OF POSSESSION –
 A Tenant Delay Tactic

Your eviction is speeding right along. The tenant did not file an answer with the court, a default has been entered by the clerk, the judge has signed the Final Judgment, and you told your attorney the tenants have not vacated and you want the sheriff to come out. The Writ of Possession is served by the sheriff, the sheriff is supposed to give you possession on Wednesday at 9 am, and you are already cooling off the champagne for your celebration when you suddenly receive a call from your attorney saying that the Writ of Possession has been  STAYED and the judge wants a hearing! What on earth is going on?

Click here  to understand the Motion to Stay Writ of Possession delay tactic

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 HO-HO-HO! ARE YOUR EVICTIONS DRAGGING IN DECEMBER?
 HERE IS WHY

Every year the Christmas spirit is felt among the County Court judges who handle the eviction actions. Cases mysteriously get held up and delayed by some judges while you are anxiously hoping the sheriff will be calling you to “complete the job”. If you have a court hearing close to Christmas, even if you win, you can count on the judge giving the tenant until after December 25 to vacate. Is this legal? Well, no but….Florida law does not have any provisions governing holiday sympathy delays, but there is not much that can be done. Some Sheriff’s departments, Hillsborough County is one example, actually have written policies where they will not serve the Writ of Possession in the last 2 weeks of December. If you file an eviction in December, expect a delay!
 

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 BILLING FOR WATER NOW OR IN THE FUTURE

Most apartment communities have traditionally included the cost of water in the rent amount. Since there is usually only one meter on the premises, the water bill was paid by the apartment community and the cost passed onto the tenant seamlessly through the rent amount. Due to the increasing cost of water, for many years now apartment communities have been either sub-metering the apartments or using a system where the water is apportioned to the units and charged separately to the tenant. The problem though is transitioning from the old way of the apartment community paying for the water to getting the tenants to pay. Without proper lease terminology, the only way to get the tenants to pay for the water is if there is a new lease or at renewal time, the current tenant signs a new lease, or addendum. Does your lease have the proper wording? We doubt it!
 

Click here to see how your lease can aid you in water bill cost shifting

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 PROHIBITED PRACTICES- WHO ME? NEVER! BUT ARE YOU SURE?

Almost every property manager knows that it is illegal to take a tenant’s door off, shut off the electricity, lock out the tenant or get a big friend to physically remove a problem tenant. While down deep we may want to do these things on occasion, Florida Statutes clearly consider these actions and many others “prohibited practices” entitling the tenant to sue for 3 months’ rent, attorney’s fees and maybe more! The real surprising fact is that many a well meaning property manager commits prohibited practices without realizing they are doing so.
 

Click here to see if you REALLY know about prohibited practices

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 PROCEDURE QUICK TIP – THE FAX COVER PAGE

All day long our office receives faxes of Three Day Notices, Leases and legal questions from our clients. Often we need to respond to the fax, answer the legal question or send requested forms to the client. Surprisingly about half the time, the faxes sent to us have no cover sheet or an insufficient cover sheet attached, so we need to then search around for the property or company name to find out what the return fax number or phone number may be. Result? Time is unnecessarily wasted. Coincidentally, most fax cover sheets we receive have OUR fax number on it. While this is nice, we do happen to know our fax number! It is your fax number that is more important to us! If you do not have a proper fax cover sheet, an easy way to create one is to take your letterhead and first make sure the font is large enough so it can be read when faxed. Confirm you have  the following fields in nice large type: Company name:, To:, From:, Date:, Number of pages including cover sheet:, Re:, Your fax number with area code:, Recipient’s fax number with area code. Lastly, remember that a fax will cut off an approximate ½ inch margin on all sides of the page. If you have your information in this area, it will never be seen by the recipient. It is always important to use a fax cover page with every single fax sent. Not only will it help the recipient, but it creates the all important paper trail for you.
 

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 INDUSTRY LEADER OF THE MONTH - GLENN EVERS 

Glenn Evers is the Regional Vice President for Property Counselors Management Group (PCMG) based in Fort Myers Florida.  Residing in Orlando, he oversees markets in Tampa and Fort Myers with Four Regional Managers and two District Managers reporting to him.

Glenn began in the industry in 1984 working for the largest property management company at the time, Johnstown American, beginning as a part time Leasing Agent and eventually Property Manager.  Since 1984 Glenn has worked for large companies such as AIMCO and MERRY LAND as well as numerous private owners.  He has worked with both upscale and distressed portfolios covering every major market in the state of Florida holding every position from Leasing Consultant to Regional Vice President.

Addicted to the multi-family housing industry, Glenn began his dedication to the apartment associations beginning in the late 80’s, serving on the Board of Directors and holding positions such as Secretary and Vice President of the Bay Area Apartment Association before relocating to South Florida.  Glenn is a CAM, NALP and CAPS instructor and has served as Education Chair for the BAAA.  After some time away from association involvement, Glenn is back with a vengeance and getting heavily involved with both the local associations and the Florida Apartment Association.  He firmly believes it is a great blessing to be in an industry that has associations where your competitors are also your friends! 2006 will be a huge and exciting year for Glenn and PCMG as he helps take their company nationwide!

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 THE FAIR HOUSING CORNER - DIRECT THREAT
 
By Cathy L. Lucrezi, Attorney at Law

The Fair Housing Act protects disabled individuals, including those with mental illness, but it does not protect a tenant who is a “direct threat” to the health or safety of other tenants or who causes substantial physical damage to the property of others, unless a reasonable accommodation can alleviate the situation.

It is wrong to exclude applicants or evict tenants based on fear, speculation, or stereotype about mental illness.  Instead, a determination that a person poses a direct threat must be founded on an individualized assessment that is based on reliable objective evidence.  That assessment has three parts:
 

* What is the nature, duration, and severity of the risk of injury?

* What is the probability that the injury will actually occur?

* Are there any reasonable accommodations that will eliminate the direct threat?

The assessment is not an exact science.  There are no easy rules to apply.  It all depends on the particular conduct that is being displayed.  Management’s use of good judgment is key.    

Note that even if a person poses a “direct threat”, management must consider whether there is a reasonable accommodation that will correct the situation.  Here’s an example used by HUD:

A tenant is arrested for threatening his neighbors while swinging a baseball bat.  You issue a seven day notice of termination due to the criminal behavior, but you then get a phone call from the tenant’s attorney.  The attorney says that the tenant should be given another chance because the tenant is starting a new medication that will control his behavior.  Management should grant this accommodation if the attorney can provide satisfactory assurance that the tenant will receive appropriate counseling and periodic medication monitoring so that he will no longer pose a direct threat during his tenancy.  If the tenant refuses to do this, then management can proceed with its eviction.

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Wishing you a joyous Holiday Season and a New Year of peace and happiness!!


Law Offices of Heist, Weisse & Lucrezi, P.A.

 

January
Legal Holiday Alert

Do not forget to exclude these Legal Holidays when preparing your Three Day Notices in January 2006!

 2 - New Year's Day
16 - Martin Luther King Day

 

In this issue:

Education! Education!

Legislative Activities

Motion to Stay The Writ of Possession

Are your evictions dragging in December?

Billing for Water

Prohibited Practices

The Fax Cover Page

Industry Leader of the Month

Fair Housing Corner

 
 
 

Legal News Archive:

October 2004

November 2004

December 2004

January 2005

February 2005

March 2005

April 2005

May 2005

June 2005

July 2005

August 2005

September 2005

October 2005

November 2005

 
 
 

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Law Offices of Heist, Weisse & Lucrezi, P.A.

Copyright 2004-2005. All Rights Reserved.

Law Offices of Heist, Weisse & Lucrezi, P.A.
Phone: 1-800-253-8428     Fax: 1-800-367-9038
Serving Florida's Property Managers with offices in Orlando, Tampa, and Fort Myers Beach, Principal Office