Question 1
Our lease requires the resident to give us 60 days' notice before the end of the lease if the resident wishes to terminate the lease and vacate. If the resident does not give us 60 days' notice, we charge a notice penalty. Are we supposed to give the resident any kind of notice as well before the end of the lease, or does the resident just have to leave at the end of the lease?
Answer
You are required to give the resident the same amount of notice as you require from the resident in the lease. If you fail to do so, then under most leases currently in use by apartment communities, the resident would be able to continue residing on the premises as a month to month resident until such time as you properly terminate the month to month tenancy.
Make sure you educate all your staff members involved in renewals and notices, so that you do not run into a situation when you thought the resident would have to vacate, but because you failed to give the required notice, the resident can stay.
Question 2
We just took over a property through an ownership change. When we went to file our first eviction, our attorney informed us that the "fictitious name" had been expired for 5 years, and the attorney warned us that the case could get dismissed or delayed. If the fictitious name has been expired for so long, how did the prior owner file evictions before? Is my attorney just trying to make more money off of us? What is the risk?
Answer
Under Florida law, a company that operates under a name different than the actual name of the ownership entity must file this name with the Florida Secretary of State. For instance, "Mountainview Apartments" may be owned by the "XYZ Apartment Partners, a Georgia Limited Partnership". The ownership entity is operating and holding itself out to the public as "Mountainview Apartments", which is considered a fictitious name. The purpose behind the law is to prevent an ownership entity from hiding itself behind another name.
A fictitious name expires after five years, and often renewing the name is forgotten, or the Secretary of State has an old address for the entity on file, so the renewal notice never makes it to the right person. Additionally, in the event of an ownership change, the new owner is supposed to file for a fictitious name, as the one on file with the Secretary of State will be inaccurate, if it had even been filed at all. Again, this registration requirement is often forgotten by the largest of law firms handling huge transactions.
The reason the expired fictitious name did not apparently cause any problems with the prior company is that no tenants that were under eviction checked on this or knew the law. Many attorneys now do know the law and will check the apartment community's fictitious name filing right away. If it is incorrect, expired or not filed, they will bring this up as a defense and delay or completely derail an eviction case.
Consider that the prior company just got lucky, but make sure that your regional manager takes care of the filing right away. It is inexpensive, quick and easy, and no attorney is needed to do this for you.
Question 3
We just received notification from an attorney stating that we have violated federal bankruptcy laws. According to the attorney, his client is a former resident from two years ago, and he is claiming that our collection agency called his client up demanding payment after the bankruptcy had been filed. I called the former resident's attorney and told his secretary that we had no idea the resident was in bankruptcy, and she stated that we were sent notice of the bankruptcy from the Bankruptcy Court. What is going on here?
Answer
Your office probably did receive a notice from the Bankruptcy Court. This occurs often. You get this notice, do not recognize the person's name, and it ends up in the circular file. Whenever you receive any correspondence from the Federal Bankruptcy Court, you need to take it seriously.
Your first check will be to see if it is pertaining to a current resident. If so, you will cease any type of collection on your end, such as serving a 3-day notice. No more notices! If the resident is under eviction, the eviction stops.
If you discover that the notification concerns a former resident, as is the case here, notify your collection agency immediately by phone and in writing, and make sure you can prove you notified them. There are fairly severe penalties which can be imposed if you or your collection agency continues to attempt to collect a current or old debt if the resident is in bankruptcy.
The next time you see anything from the Bankruptcy Court come in, take it seriously, as the notification will almost always pertain to a current or former resident. When someone files bankruptcy, that person will include everyone to whom money is owed. The fact you received the letter from the Bankruptcy Court shows that the individual believes money is owed to you, and someone, perhaps the collection agency, may be trying to collect from that person.
