Question 1
We have just terminated one of our maintenance personnel and would like to have him off of the property. He has been living with another resident, Mary, on the property, but is not on Mary's lease agreement. We searched through all our records, and it appears that he did not sign any lease or any type of employee rental addendum. Our company took over management of the property about 2 months ago, and according to payroll records, he has been employed here for about 6 months. His payroll stubs indicate that his address is the apartment where he currently resides. We were going to serve a Seven Day Notice of Noncompliance With Opportunity to Cure on Mary, as the ex-employee is not on the lease; therefore, he is an unauthorized occupant, and Mary is in violation. Is this the correct approach?
Answer
First you need to determine how long the ex-employee has been staying with Mary, and if the prior management knew or consented to this arrangement. Based on the pay stubs, it can be assumed that he most likely did in fact live with Mary for quite a long time. I would imagine that this was known and consented to, and the reason he was not placed on the lease was simply due to sloppiness by the prior management company.
The situation we have here is called "waiver and estoppel". The prior management company allowing the ex-employee to remain with Mary as an occupant, even though it violated the terms of the lease, causes a situation whereby you have now waived your rights to enforce the terms of Mary's lease and are "estopped" from doing so. This is a strong legal argument that attorneys raise when it can be proven that a manager allowed a noncompliance to continue for some time, then decides to enforce the lease.
In the present case, you can serve the Seven Day Notice of Noncompliance with Opportunity to Cure on Mary, but if she does not move or remove the ex-employee, I do not feel you have a strong case. Hopefully there is not much time left on the lease, and you can take the route of non-renewal.
"Waiver and estoppel" is a strong legal defense. When prior management knowingly allowed a lease violation to continue, you may have waived your right to enforce those terms. Non-renewal at lease end may be your best option.
Question 2
We have a community with a lot of young people and college students. Often, we have to deal with our residents hanging school flags and banners from the balconies, and it normally has not been a problem. We usually serve a Seven Day Notice of Noncompliance with Opportunity to Cure, as our lease prohibits the hanging of clothing, banners or any other items from the balconies. Last week, we served notices on two residents, one of whom hung a large United States flag off of the balcony railing, and another who across the courtyard hung a Confederate flag. The resident who is hanging the United States flag came into the office yesterday claiming that he is allowed to do this by law regardless of what the lease says. This resident's father happens to be an attorney, and he is threatening us with legal action if we make him remove the flag. We certainly are not unpatriotic, but it is really making our property look sloppy. Is he correct?
Answer
Florida law makes it a prohibited practice for a property manager to prohibit a resident from displaying a United States flag on the dwelling unit. There are some conditions though. The flag must be removable, not larger than 4.5 feet by 6 feet, must be displayed in a respectful manner and cannot infringe on any space belonging to another resident.
In your situation, if the United States flag complies with these conditions, you will not be able to ask the resident to remove the flag, regardless of what your lease or rules and regulations say.
As for the Confederate flag, you can ask the resident to remove this if it is in violation of a term or condition in your lease or rules and regulations. I would recommend that you give the resident who is displaying the Confederate flag a copy of Florida Statutes Section 83.67, so he does not think you are treating him differently in a discriminatory fashion. The proper notice to serve the Confederate flag displaying resident would be the Seven Day Notice of Noncompliance with Opportunity to Cure.
Florida law protects U.S. flag displays regardless of your lease terms. The flag must be removable, no larger than 4.5' x 6', displayed respectfully, and not infringe on another resident's space. Other flags can still be regulated by your lease.
Question 3
I went to court the other day for an eviction hearing. The tenant presented the judge with bankruptcy paperwork. The resident filed bankruptcy 2 days prior. The judge told me I should get an attorney as the eviction had been put on hold and the eviction is "stayed" until notification by the bankruptcy court. We are obviously upset, and the resident owes 3 months' rent now. How long can the resident remain on our property? What happens now?
Answer
Unfortunately, bankruptcy filings are on the rise. A resident can file for bankruptcy at any time before, during or after an eviction is completed. The most frustrating problem for us is when the resident files for bankruptcy before the eviction is complete.
Once the bankruptcy is filed and you receive notification of this, the first step is to check with the bankruptcy court to see if indeed a bankruptcy has been filed. Residents have been known to fabricate bankruptcy paperwork to give the appearance of a filing, when in fact nothing was filed with the court.
Once the filing is confirmed, your attorney will immediately file a Motion to Lift the Stay of Bankruptcy in Bankruptcy Court. In most cases, you will have to wait approximately 4 weeks for the bankruptcy court to grant the request, and once this occurs, the eviction picks up where it left off. In the meantime, do not serve the resident with any notices regarding any delinquent amounts owed, as this would be a violation of the Federal Bankruptcy rules.
Verify the bankruptcy filing first—residents have been known to fabricate paperwork. Once confirmed, your attorney files a Motion to Lift Stay. Expect about 4 weeks. Do NOT serve any notices about amounts owed during this time.
