PROBLEMATIC LEASE CLAUSES

There are thousands of different leases currently in use by Florida managers. They include among many others, the homemade lease, the store-bought lease, the Supreme Court Approved Lease, the lease made by your attorney, the Blue Moon Apartment Lease, the many internet leases and the lease created by the Harvard graduate on the 60th floor of the big law firm in New York City. The problem? Florida law governs the Florida landlord/tenant relationship. If a lease clause violates Florida law, the clause and sometimes the entire lease will be stricken. More often than not, the lease clause does not violate Florida law, BUT can cause the manager problems and actually interfere with the rights the manager is given by Florida law! This article will look at some of the common clauses found in leases and the problems they cause.

The Visitor Clause

Often we see a clause which says that resident may have no visitors for more than 72 hours without the manager’s consent. The clause may say that visitors cannot stay on the premises for more than 5 consecutive days. These clauses are extremely difficult to enforce. The “consecutive day” language would require the manager to basically sit outside the unit for 5 solid days in a row to determine if the visitor is staying there. If the visitor was not there for one of the days out of the 5 days and came back, they would not have been there for more than 5 “consecutive” days.

The Rent Collection Clause

If the lease states that the manager will collect the rent on the 1st day of the month, this means that the manager is under the duty to collect the rent rather than the resident being under a duty to pay the rent!

Rent Paid to a Post Office Box

Sounds fine, the resident is supposed to pay the rent to a post office box. Problem is that Florida law allows a person 5 additional days for mailing time if they are to pay rent by mail. How do you give that person a Three Day Notice? You can’t. You need to give them an 8 day Notice giving them 3 business days to pay the rent not including Saturday, Sunday or court observed holidays PLUS 5 business days. On top of that, you have to deal with the “check must be lost in the mail” routine.

Rent Late Clauses

Many leases state that rent is due on the first of the month and if not paid by the 5th, there will be a late charge. Does that mean the rent is not late until after the 5th? Does this mean that the manager must wait until after the 5th to serve a Three Day Notice? The lease needs to clearly state when the rent is due, when the rent is late and when the resident can receive a Three Day notice.

Late Charges Clause

We constantly see leases which say that a late charge will be due if the rent is not paid by a certain day of the month. The problem is that late charges cannot be put on a Three Day Notice. Only rent is allowed. The ONLY way you can put a late charge on a Three Day Notice is if you define the late charge as rent or additional rent in the lease.  

The “How to Serve Notices” Clause

Florida law only requires ONE notice to be mailed by certified mail, and that is the Notice of Intention to Impose Claim on Security Deposit. We see many leases under which it is stated that ALL notices must be served by mail. This can create a huge problem when the manager serves a notice by posting on the door or even hand delivery, only to find out that the lease clause required the notice to be mailed. One would think that if the lease required a notice to the resident by mail, personal hand delivery should suffice. After all, isn’t the whole idea to get the resident notice? This mailing business is a nice idea thought up by an attorney who thinks everything should be mailed, but this is a no go for serving the usual notices such as the Notice of Non-renewal, Three Day Notice and the Seven Day Notices of Noncompliance.

The Detailed Pet Clause

Some leases go to great lengths talking about pets, size limits, weight limits, etc. This should be left to the pet addendum, NOT the lease. The lease should simply state that no pets are permitted without a pet addendum and the proper pet fee or deposit paid. Too much talk about the pet policy in the lease could be an implicit authorization for  

The Month-to-Month Notice Clause

Florida law states that in the event either party wishes to terminate a month-to-month tenancy, at least 15 days’ notice must be given prior to the beginning of the next monthly rental period. Many leases state that in the event the lease becomes month-to-month, 30 or 60 days’ notice is required. The reasoning behind this is to try to hold a resident to a longer month-to-month tenancy, as they must give you 30 or 60 days’ notice. Nice try, but the essence of a month-to-month tenancy IS the ability to get out of the tenancy with only 15 days’ notice prior to the beginning of the next monthly rental period. The 15 days is stated very clearly twice in Florida Statutes. Result? While the resident only needs to follow the law and give you 15 days’ notice, the manager will be STUCK with the clause in the lease and the manager will be required to give the notice as stated in the lease. There will come a time when you want to get a month-to-month resident out as fast as possible. Do you want to be forced to give 60 days’ notice? We didn’t think so!

The Arbitration/Mediation Clause

Arbitration and mediation is often an excellent way to resolve disputes. Anytime you can avoid full-blown litigation, you have already succeeded. Some attorneys, especially real estate practitioners, are used to the arbitration and mediation clauses found in sales contracts. These clauses sometimes end up in leases. Suppose you file an eviction on a resident, and the resident demands mediation or arbitration? No matter what the result, there will be no way to force the resident out, even if the arbitrator decides that the manager is entitled to possession. You will end up in court. You may be thinking that a mediation or arbitration clause would be good in dealing with a security deposit dispute, but it is unknown whether taking someone’s right to access to the court will be allowed under the Landlord/Tenant Act.

The Military Clause

Many leases include a type of Military Clause which details the requirements for breaking a lease in the event of a military transfer or being called to active duty. The problem is that these laws change on a fairly regular basis, especially in time of war, and it really does not matter whether a military clause is in a lease. The Soldiers and Sailors Relief Act in addition to any state laws will override any clause that is in a lease. By having the clause in the lease, the manager is led to believe that the clause is correct, when in fact it could be obsolete, incomplete or downright illegal.

Occupant Clauses

A common clause found in leases states the number of occupants allowed to live on the premises. Some also state the number of children who are permitted. These clauses are vague, can often lead to having occupants you did not intend to have, and worse yet, a fair housing complaint. We recommend that all adult occupants sign the lease as residents, and if there are children, their names are listed as occupants.

The Solution to the Lease Clause Problem

While some lease clauses are simply an annoyance or inconvenience, others can severely restrict the manager or subject the manager to a potential discrimination action. The lease document needs to be taken seriously and amended as the statutory laws change and case law is created If you are a member of your local apartment association affiliated with the Florida Apartment Association or the National Apartment Association and manage units in apartment communities, you can consider using the Blue Moon Lease.