Question 1 — Changing Policy: Cashier's Check or Money Order Only
Our company policy is to require a resident who is paying the rent late to pay only by cashier's check or money order. The prior manager at our property was not enforcing this rule, but my regional manager insists that I refuse any payment other than a cashier's check or money order if it is paid to us after the due date. On all our Three-Day Notices, this policy is printed clearly on the bottom of the notice. We served one of our residents a Three-Day Notice this month, and he is insisting that we have to accept his personal check, because the prior manager accepted his checks even when late, and because our lease does not state that he must pay by certified check or money order if paid late. He is absolutely refusing to give us a cashier's check or money order and says we can try to evict him, and he will win. Is he correct? Should we just take his check?
Answer
Your resident is absolutely correct that the lease must state that no personal checks will be accepted for late rent if you want to prevent the resident from paying by personal check. If your lease does not state this, revise the lease immediately for all new residents and renewals.
The other problem lies in the prior manager's actions and how they affect the current situation. You stated that the prior manager would deviate from your company policy and often accept personal checks that were paying late rent. Even if your lease clearly stated that no checks were accepted for late rent, the prior manager's acceptance of the checks could result in a great waiver and estoppel argument by the resident, and most likely the resident would win in court. While you may be a strict manager and wish to follow company policy, there is no way to get around the unwritten lease modification that occurs when a policy is not followed and the resident is allowed to violate the policy over and over.
Whenever you are dealing with a policy that has not been followed in the past, you may be able to overcome the damage done by sending all the residents a letter reiterating the lease terms and warning the residents that from a certain point on, the lease must be followed. This may help you get the residents back on track. In the current situation, I would recommend that you accept the personal check from the resident and keep your fingers crossed!!
Be sure your lease clearly states your ability to demand a cashier's check or money order — and understand the principle of "waiver," which may require you to send all residents notification of the specific lease term and that no exceptions will be made in the future.
Question 2 — No Pets Now: Suddenly Enforcing the Policy
Our apartment community has a pet problem. The prior management company allowed pets, but about 6 months ago, the owners decided that there will be a No-Pet policy from that point on due to the increased expenses from the pet damage and the liability for injuries from dog bites. To be perfectly honest, occupancy has been terrible, and we have not been doing our job in enforcing the No-Pet policy if the pets are quiet and we do not receive any complaints. One of our second floor residents is keeping her dog on the screened in balcony, and the dog is urinating on the balcony, resulting in the urine dripping down to the lanai area of the first floor resident. Obviously the first floor resident is livid, so we immediately served the offending resident with a Seven Day Notice of Non Compliance with Opportunity to Cure, telling her that she had to remove the pet from the premises. The resident stormed into the office the other day stating that she has had the dog for months and will not get rid of the dog, as so many other residents have dogs. Can we make her remove the dog or evict her if she does not comply? Does it matter that other residents have dogs, as they are under the old lease which allowed them?
Answer
To answer your second question first, the fact that other residents are breaking a rule or other residents are grandfathered in so to speak does not have any bearing on a current resident under a new lease and new rules, as long as there is not a situation where you are singling out this resident over other residents under the new lease and new rules in a discriminatory fashion. Most judges do not have sympathy for the resident when the judge hears the "but everyone else is doing it" argument. The residents under the old lease will be able to have their authorized pets, but you must be careful to non-renew them and only allow a renewal if and only if the pets are removed, and you have solid proof of this.
As far as asking her to remove the dog as you may consider it an unauthorized pet, here you may have a problem. If you or any of your staff including maintenance, were aware that the resident had a dog, albeit unauthorized, your failure to do anything about the dog for a number of months implies that the dog is authorized and a waiver of your lease has occurred. With that said, do you have to tolerate the fact that the resident is not walking the dog and is allowing it to urinate on the balcony? NO. You should serve her with a Seven Day Notice of Non Compliance With Opportunity to Cure stating the following: "You are failing to abide by the terms of your lease and/or Florida law due to allowing an unsanitary condition to result on the premises including but not limited to failing to walk your dog, resulting in the dog urinating on the balcony and into the surrounding areas". Once served, do your routine inspections, speak to the downstairs neighbor, and if you have solid proof that the resident is still in violation, call your attorney for wording of a Seven Day Notice of Termination.
Sudden enforcement of a lease term can result in serious pushback and a legal defense if an eviction is filed. The defense of waiver is strong, so you may be stuck with a problem which may only be rectified by your refusing to renew a resident. Take it slow and get the advice you need to overcome the "sins" of past management.
Question 3 — Lease Extension vs. Month-to-Month
Some of our residents are choosing not to sign a new lease but want to remain on the property as month to month residents. We really do not have a big problem with this but want to have some security that they do not just up and leave whenever they wish. We were thinking about having short lease extensions rather than just having them stay month to month, where we know that they can just give 15 days notice prior to the beginning of the next month and leave. A lease extension would give some certainty. Should we have some kind of written addendum? Can we charge them a month to month premium or any kind of administrative fee?
Answer
You are absolutely correct in stating that in the event the resident is on a month to month tenancy, they are allowed to give management at least 15 days notice prior to the beginning of the next monthly rental period and leave at the beginning of that monthly rental period. Although many leases say otherwise, this is firmly written in Florida law and attempts by your lease agreement or any addendum to make the resident give more notice could be stricken down by a judge. A month to month tenancy is clearly dealt with in the law and gives the resident an easy way out with a short notice period.
This is a major disadvantage of a month to month tenancy but can be a blessing if management does not bind itself to a greater notice period. We often recommend allowing a resident to remain as a month to month resident if you are not sure that you want to have them for another full year. If you are not having any difficulties with the resident and would like to extend the lease, we recommend short extensions of the original lease which spell out the terms of notice, the possible higher rent amount and/or administrative fees. We urge you to speak with us about any such administrative fees, as these recently have become the subject of lawsuits.
The two alternatives to a resident staying on after lease expiration are month to month or a Lease Extension Agreement. Understanding how a Lease Extension Agreement works can give you a better alternative. Keep the forms handy and download from www.evictforms.com.
