Question 1 — Bad Check Fee: Is the Resident Right?
We seem to be getting a lot of bad checks lately even though most pay electronically. Most of the time, we just post a letter on the resident's door, and they quickly come to the office and give us a money order or a certified check to cover the bad check and the service charge, but occasionally, they simply ignore us. Usually we give a Bad Check Letter for the bad check, and if they do not pay within 7 days, we give a 3-Day notice and file an eviction. One of our residents received a 3-Day Notice and paid by check within the 3-Day Notice period. The check was returned to us NSF; we notified the resident who is trying to make good on the $500.00 bad check but is refusing to pay our bad check charge and says it is illegal. I can't understand this, as our lease clearly says that the bad check fee will be $50.00. Do we have to accept his money without the bad check fee? Our bank charged us, so why can't we charge him?
Answer
The first mistake I see in your scenario is that you are accepting checks when the rent is late. I recommend that you examine your lease to see if you can require a money order or certified funds on late rent and if not, you need to modify your lease as soon as possible. A proper clause may look like this: "Rent paid after the first day of the month must be paid by certified funds or money order". By having such a clause, you can refuse a check if it is tendered after the first day of the month, and more importantly, you can put a notation on your 3-Day Notices that clearly says, "Certified funds or money order only".
Now getting back to your specific problem, I see that you are charging a $50.00 NSF charge on a $500.00 check. Florida law states that you can impose a service charge of no more than the greater of 5% of the check amount or $40.00 if the check is for $300.00 or more. Since $50.00 is more than 5% of the check amount, you have exceeded the amount as allowed by Florida law, and the resident is correct that you are overcharging him. The maximum fee you can charge him in this situation is $40.00, so I recommend revising your bad check letter or simply serving a 3-Day Notice including the $40.00 service charge if and only if your lease states that NSF charges are "additional rent". If your lease failed to define NSF charges as "additional rent", I would give a 3-Day Notice for the base rent amount of $500.00 and serve a 7-Day Notice of Non Compliance with Opportunity to Cure for the $40.00. Since you made a mistake in this case, I would not advise that you attempt to collect any late charges.
Be sure to follow Florida law as it pertains to the allowable bad check fee. Many states differ, so you may be getting incorrect advice from your corporate office.
Question 2 — Resident Death: Can We Give a Relative Access?
We recently had one of our residents die after a short stay in a nearby nursing home. Her rent was paid by her daughter for the 2 months that she was in the nursing home, and we were aware that her daughter had a key to the apartment as we observed her checking on the apartment, and she occasionally would stay in the apartment. This month we have received no rent from the daughter, the daughter is nowhere to be found, and the apartment is full of personal belongings and furniture. We just received a call from the resident's son who is asking that we let him into the apartment to remove the items. Can we let the son in? Can we file eviction? Is the unit abandoned?
Answer
A number of situations arise out of the death of a resident, the most common being an apartment left completely abandoned and containing personal property of the deceased, and no one is attempting to retrieve the items, or one or more friends or relatives want to gain access to the apartment and presumably the belongings. If there is another resident on the lease and they continue to reside in the apartment, we really have no problem, but often, the deceased was living in the apartment by themselves. While I would like to give you easier advice, the fact is that no one can be given access to that apartment unless and until such time as the court authorizes such through a document called "letters of administration". These are official court documents which appoint a specific person as the "personal representative", and you are then able to deal directly with that person, give that person access or file an eviction against the "estate", as one will now exist.
The real Catch-22 is that most relatives will not want to open up an estate if there are no real assets other than personal items, and often the resident did not own any property or the bank accounts were held jointly with a son or daughter, therefore not necessitating an estate being opened. Our standard recommendation is to tell the son or daughter that you cannot let them into the apartment and hope that they will gain entry somehow and remove ALL the items. If you were to give someone access, you risk a relative popping up out of nowhere who may accuse you of removing valuable items from the apartment.
There are many variables that can occur with the death of a resident, so get your attorney involved right away, and remember never to trust an attorney who is working for a relative of the deceased, as their interests greatly conflict with yours. Recently one of our clients received a letter from an attorney for one of the children which stated that no other relatives objected to this person gaining access to the apartment to remove the personal belongings. This was a meaningless letter as it was not a court document, and had the property manager relied on this letter, they could have gotten into serious trouble if another relative were to appear later and claim an interest in the property.
Regardless of the wording in your lease, specific law must be followed in the event of a resident death. Your best approach is to STOP and do nothing but notify one of the attorneys in our office who will guide you through the process.
Question 3 — Military Resident Breaking a Lease for Base Housing
We have a situation where one of our residents who is in the military and works at a nearby army recruiting office is asking us if he can be let out of the lease he just signed, as he wants to move onto base housing which is about 5 miles from our property. I was always under the impression that the laws that applied to the military only applied if the tenant is a civilian and then called to active duty. In our case, the resident was in active duty when he rented to us. We told him that he could break his lease, but he had to follow our standard early termination requirements whereby he had to give us 60 days notice and pay a penalty of one month's rent in addition to forfeiting his security deposit and paying his rent until the end of this notice period. He says what we are doing is illegal and is having the JAG officer (Army lawyer) call us. I don't want to be unpatriotic, but this just does not seem right. Do we have to let him out of his lease?
Answer
The law requires you to let this resident break his lease without penalty if he is moving to base housing even if he is not ordered to do so. Three sections in Florida law governing persons in the service are applicable. Florida Statute 83.67(3) now specifically states that no landlord shall discriminate against a member of the United States Armed Forces in offering a dwelling unit for rent or in any of the terms of the rental agreement. You are certainly not discriminating here, but Florida Statutes 83.682(1)(d) is more relevant as it states, among many other things that any servicemember may terminate his or her rental agreement by providing the landlord with a written notice of termination to be effective on the date stated in the notice that is at least 30 days after the landlord's receipt of the notice, if after entering into a rental agreement, the servicemember receives military orders requiring him or her to move into government quarters, or the servicemember becomes eligible to live in and opts to move into government quarters.
Here we see that the servicemember merely needs to voluntarily "opt" to move into government quarters in order to break the lease. Your only real protection here is that the servicemember is required to give 30 days notice to you. The Florida legislature wanted to send a firm message to property managers who were considering denying lawful requests by servicemembers to terminate their leases. F.S. 83.64(1)(d) specifically states that such a denial by the landlord would be considered unlawful retaliatory conduct.
Now, if this happens often, or you are near some nice government housing and you see many servicemembers breaking their leases, you may be tempted to avoid renting to them in the first place. This is where Florida Statute 83.67(3) comes into play and would consider that illegal discrimination and a prohibited practice and would subject the property manager to a minimum three-month rent penalty.
A servicemember can break the lease to move into government quarters under Florida Statute 83.682(1)(d) — even without orders — as long as they give you at least 30 days written notice. Do not impose your standard early termination penalties; denying a lawful request is unlawful retaliatory conduct under F.S. 83.64(1)(d). And never refuse to rent to servicemembers to avoid this, as that is illegal discrimination under Florida Statute 83.67(3) and carries a minimum three-month rent penalty.
