LEGAL NEWS - SEPTEMBER 2005


TENANT EVICTIONS - “The times they are a changin”

The days of filing an eviction and the tenant just packing up and leaving are over. More tenants than ever are contesting cases. Occupancy is high, rents are on the rise, and tenants are filing answers with or without an attorney at a record level. Now is the time to review your procedures concerning evictions, update your checklists, and follow them carefully. Over 50% of the Three Day Notices and Leases we receive when requested to file an eviction are defective in some way. This is a completely unnecessary and avoidable waste of time and money.

Click here for the Three day Notice Checklist and Speedy Eviction Tips.

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SETTLING THE EVICTION CASE

“Settlement“ is NOT a bad word. Unfortunately we often think of “settlement” as having to give up something. This is rarely the case in an eviction action. In fact, settling an eviction action is often the smartest route to take. Any seasoned property manager will tell you how when they file an eviction, they often enter into a Stipulation with the tenant. Did the property manager give up anything? Absolutely not. The property manager got the tenant to pay the rent, attorney’s fees, stipulation fee, accumulated late charges AND held the threat of an expedited removal process to the tenant’s head if the tenant fails to follow the stipulation. We are baffled when a management company says it is “not their policy” to enter into stipulations, or the property manager makes no attempt to contact a tenant after an eviction is filed, only to end up entering into a stipulation on the courthouse steps and wasting more time and money. Often it is just a complete misunderstanding of what a stipulation is and what it can accomplish.
 

Click here for an article on "Stipulations".

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CHARGING A TENANT FOR INSUFFICIENT NOTICE  

Are you still confused? The tenant vacates at the end of the lease with no notice given. Your lease states that the tenant must pay a fee to you if they fail to give notice and vacate. You impose the fee, the tenant disputes, and your attorney says you did it wrong. Not again. What now? Florida law puts specific requirements on you if you wish to charge the tenant a “failure to give notice fee”. The law is confusing and relatively new. Do you understand the law? Most property managers have no clue whatsoever on the new requirements and end up charging the tenant improperly, resulting in the charge appearing on a credit report and a huge lawsuit 2 years from now. This all can be avoided with a better understanding of the law.

Click here  to see how to charge the tenant an “Insufficient Notice Fee”.

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SECURITY DEPOSIT CLAIM AND REFUND TIMING  

Just about everyone knows that the Notice of Intention to Impose Claim on Security Deposit must be sent out by certified mail after the tenant vacates, but when does the tenant have to receive the refunded money? In 30 Days? 15 Days? 45 Days? Are you sure?

 

Click here for a review of the Notice Timing Issues.


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PRACTICE AND PROCEDURE QUICK TIP – “A/C FILTERS”   

You get the dreaded news from the a/c repair person. The air handler is so clogged up, the motor has burned out and the bill will be $1500.00.  You are shocked! The tenant was “supposed” to change the air filters. Yup. The tenant is “supposed” to do a lot of things. Can this have been avoided? It is our opinion based on 15 years of experience that the property manager or maintenance staff should change all a/c filters on a regular basis. By doing so, it enables the property manager to inspect the premises and prevent a costly repair or replacement to the a/c system. Unfortunately we do not live in a perfect world, and many tenants rarely do what they are “supposed” to do. There is no reason to entrust the health of the a/c system to a tenant. 

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LOCAL ISSUES – Licensing and inspection of rental units 

The Florida Apartment Association is diligently working on the epidemic problem of municipalities and counties imposing onerous licensing charges and inspection fees on owners of rental units. On August 14, Gary Scarboro, Government Affairs Director for the Florida Apartment Association (FAA), Harry Heist, general council for FAA and Jodi Chase, Lobbyist for FAA, met in Tallahassee with representatives from the Division of Business and Professional Regulation, the Florida Association of REALTORS and the Florida League of Cities to discuss this serious problem. Please keep an eye on your municipality or county and notify Gary at gary@aago.org  or Harry at harry@evict.com  the moment you see discussion of or a movement towards licensing or inspection. There are over 400 municipalities in Florida and 67 counties, so “watchdogs” are a must. We need your help!
 

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INDUSTRY LEADER OF THE MONTH - MARK DECKER  

Mark Decker is a Regional Manager with Northland Investment Corporation, which is headquartered out of Boston, MA. Northland Investment is a fully integrated real estate operating company focused on the acquisition, development, operation and long-term ownership of multifamily and commercial real estate throughout the United States. 
 

In Florida, Mark is responsible for the company’s 7 multifamily communities, as well as their 5 communities in North Carolina. He began his property management career in Illinois as a community manager many years ago after graduating from Western Illinois University and briefly working in the counseling field with underprivileged youth. Upon relocating to Florida in 1982 with a large syndication firm, Mark worked his way up the ranks into multi-site management and eventually a position as Vice President. He obtained his Certified Property Manager® designation in 1993. Mark decided to give back to the industry that has supported him and began his volunteer work as a board member with the Apartment Association of Greater Orlando (AAGO) over 10 years ago. He remembers telling the nominating committee he had no aspirations to move up the ladder, but soon found himself on the executive committee of AAGO. In 2000 he served as their President. Mark is the current President-Elect of the Florida Apartment Association, which he has served tirelessly for the past 5 years. He has done volunteer speaking for different industry groups, has dedicated himself to serving the industry and looks forward to meeting more of its professionals. Mark is a firm believer in education and can often be seen in the educational seminars sitting alongside the property managers. Mark and his wife of 29 years, Debbie, have 3 grown children, which they have tried to replace with a 1 year old Labrador puppy. When he is not revising bylaws for the Florida Apartment Association, Mark likes to golf, camp and snow ski.

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LEGAL SEMINAR NEWS  

On August 18, 2005 the Property Manager’s Council of the Orlando Regional Realtors Association hosted the first 5-hour Landlord/Tenant Law seminar coordinated by Jill Boles and taught by attorney Harry Heist. The seminar was completely sold out with an extensive waiting list. While Mr. Heist had been teaching the 3-hour CE class for years, this was the first time that the class was extended to 5 hours. The amount of material has steadily increased over the years, and the 5-hour seminar will become the norm. The next 5 hour class will be held by the Northeast Florida Association of Residential Property Managers (NEFARPM) on October 21, 2005 in Jacksonville, Florida. Watch EVICT.COM for a date in your area.

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THE FAIR HOUSING CORNER - DO YOU CURFEW?
By Cathy L. Lucrezi, Attorney at Law

As a teenager, your parents may have imposed a curfew on you to make sure you did not get into trouble.  If you were out past your curfew, you knew to expect some form of parental punishment!  Can the same concept be applied to minors who live at apartment communities?  Generally, the answer is no, for two main reasons. 

The primary reason is that a curfew which is directed at minors is considered a violation of the federal Fair Housing Law.  The curfew is a rule directed only to the conduct of families with children.  It discourages families with children from living at the apartment community. 

The second reason is that a curfew is a restriction of liberty.  Such restrictions of liberty are prohibited by the U.S. Constitution.  The only time curfews are ok under the constitution is when they are lawfully initiated by the government.  [A good example are the various curfews imposed by the authorities after the Katrina disaster.]  Because an apartment community is not part of the government, it is hard to imagine any curfew passing muster under constitutional law.

Often, when an apartment community is considering creating a curfew, it is due to disturbances caused by minors on the property.  Perhaps a group of teenagers is “hanging out” in the parking lot at late hours.  Or, some unsupervised toddlers are vandalizing property in the evening.  The solution to the problem is not a curfew.  Instead, the property manager can serve a seven day notice of noncompliance with opportunity to cure, citing the disturbance or vandalism or other noncompliant behavior.  If illegal activity is suspected, law enforcement should be called.

Initiating a curfew at the apartment community is an invitation to a claim of housing discrimination or violation of civil rights.  Avoid that risk by enforcing your lease terms with the use of notices of noncompliance.

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In this issue:

Smooth Tenant Eviction Tips

Proper Use of Stipulations

Notice Prior to Lease End

Security Deposit Timing

Practice Quick Tip - AC Filters

Local Issues

Industry Leader of the Month

Legal Seminar News

Fair Housing Corner

 
 

October
Legal Holiday Alert

Do not forget to exclude these Legal Holidays when preparing your Three Day Notices in October 2005!

 4 - Rosh Hashanah

 10 - Columbus Day

 13 - Yom Kippur

* Note: The above dates may not be Legal Holidays in your county, but we recommend excluding them anyway.

 

CATHY LUCREZI
ELECTED PRESIDENT OF FLORIDA KIWANIS FOUNDATION

Cathy Lucrezi of the Law Offices of Heist, Weisse & Lucrezi  was recently elected to serve as President of the Florida Kiwanis Foundation, a nonprofit organization dedicated to serving the children of Florida.  She is the first woman in the history of the organization to serve in this leadership position. Cathy’s term begins Oct. 1 and will involve her in the activities of Kiwanians from the panhandle to the Keys.  We congratulate her and wish her good luck.

 
 

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

 
 
 

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

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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