THE MISSING LEASE

 

Missing leases are a fact of life, whether through negligence or theft. Whenever a business deals in as much paperwork as the apartment or home rental business does, misfiled, mislabeled or mistakenly destroyed paperwork, including leases, are bound to happen. Not to mention that the lease, and often the entire file, are taken by an employee for his benefit or the benefit of a friend. How do you deal with these situations? For purposes of this article I will assume that the resident’s rent is due on the first of the month.

 

Other Documents

 

While there may be evidence that a lease once existed - applications, signed addendums, move-in inventory, your computer entries – none of it is conclusive. The burden of proof in court is on you, because you are claiming that the lease once existed and what the lease terms were. The resident can dispute that he ever signed the lease. He can claim that, despite your company policy against changing the preprinted form, his particular leasing agent agreed to changes. It is an uphill battle, and you are better advised to accept that there is no lease than try to prove one existed.

 

Eviction Cases

 

The simple answer in the eviction case is that the resident is month-to-month, but this may not really be an accurate assessment, particularly since oral leases of up to a year can be enforceable. If you are sure that a written lease did exist, and you know the duration of the lease, the attorney can allege in the eviction complaint that the lease is lost, and what the rent amount was under that lease. The monthly rent will typically be the amount that that resident has been paying and which you have been accepting. It is important that you tell your attorney that this is a lost lease case.

 

Non-Eviction Missing Leases

 

Often you will discover a missing lease during your own examination of the files. You will have to investigate carefully whether it appears that the lost lease has already expired, at which point the tenancy has become month to month. Florida Statutes require that the resident give fifteen days notice before the end of a monthly payment period in order to terminate a month-to-month tenancy. When you cannot produce the lease, and the resident attempts to non-renew during the apparent lease period, we would recommend not challenging the resident’s non-renewal notice in most cases, unless you have clear evidence of theft. Accordingly, the resident should not be charged any rent beyond the non-renewal date. The resident can be charged for damages in excess of ordinary wear and tear. The security deposit claim and return procedure 15-day (deposit returned in full) or 30-day (claim against deposit) clock starts when the apartment is vacated at the end of the month.

 

An Operations Decision

 

The resident may have his copy of the signed lease. Since you want the resident on a lease but your occupancy doesn’t afford you the luxury of losing a resident, you have to make an operational decision to tip your hand or not. If you do nothing, the best case scenario is that the resident performs as required under the written contract and pays rent until the end of the lease term. If a skip occurs, your ability to charge rent beyond the month the resident vacated early will be seriously compromised.

 

A Lease is a Must

 

If you want a lease signed, see the resident in person. Nothing replaces face-to-face contact in assessing the resident’s intentions. If he decides to stay but is reluctant to re-sign the old lease or sign a new lease, we don’t recommend trying to force the issue by sending a notice of non-renewal or a notice increasing the monthly rent, unless you are very confident that the missing lease has already expired.

 

LIHTC

 

A missing lease discovered during an audit can be critical in the low income tax credit property. As a rule a lease is always required. You can attempt to address this missing lease with a Seven Day Notice of Noncompliance with Opportunity to Cure, requesting that the resident produce his copy of the lease or re-sign the old lease. If the time period runs, I suggest a second Seven Day Cure. If the second time period runs, then you can send a Seven Day Termination notice, but a judge may be unsympathetic to the management office’s perceived incompetence, and without a signed lease showing the resident’s agreement to comply with LIHTC regulations, the eviction could fail for that reason.

 

Month to Month Fees

 

When you cannot produce a lease, late charges should not be assessed on a Three Day Notice, and your ability to enforce other terms and conditions can also be seriously compromised, such as repayment of concessions, or clauses addressing unauthorized pets or unauthorized occupants. If the lease is missing but one or more addendums is intact, the value of these addendums may be seriously diminished, but they may help in proving the intended duration of the tenancy. We still recommend that the manager adhere to the obligations created under the standard written lease, such as providing 30 or 60 days’ notice of non-renewal prior to the suspected lease expiration date.

 

Re-Signing

 

I’ll close with one last word on re-signing. A lease is a form of a contract. There is no requirement that a lease can only be signed at the beginning of the term. It is permissible for you and the resident to reprint and re-sign his old lease and date your signatures with the current date. This may be particularly helpful when the resident won’t sign a new replacement lease for an increased lease term.

 

 

MILITARY RESIDENTS AND EVICTIONS

Each day it seems as if there is another spot in the world where there is conflict, or where destruction due to a natural disaster has occurred. Members of the armed forces are being deployed in large numbers to areas all around the globe. The event triggering the deployment may be obvious. For example, a war in the Middle East may be the cause of increasing the number of active duty military service-members. The event triggering the deployment can also be one that is less obvious, such as an earthquake in a foreign country where the military mission is to distribute massive relief aid. The increased military presence has also created more questions for property managers from residents who are service-members and family members of service-members who are unclear as to their lease obligations.

Background to the Service-members’ Civil Relief Act

The Service-members’ Civil Relief Act, also known as “SCRA”, is a federal law which affords service-members numerous protections in civil lawsuits. Some of these protections allow service-members or their family members, or dependents in some cases, to delay or suspend civil liabilities. The act was signed in to law by President Bush in 2003. However, the earlier version of the law was enacted during World War I and re-enacted in 1940 during World War II, and previously was known as The Soldiers’ and Sailors’ Civil Relief Act. Why were these laws created? The answer to that question is simple. Lawmakers wanted those who are serving in the military to remain focused regarding their mission to protect our country and did not want the service-members being distracted by civil lawsuits involving them. It is also the belief that service-members are at a distinct disadvantage in terms of defending themselves from a civil lawsuit while being stationed in a far away land. Judges take this law very seriously and will in many cases “give the benefit of the doubt” to the military resident, if the outcome of the case is a close call. The United States Supreme Court in a 1948 opinion stated that the law should be interpreted “with an eye friendly to those who dropped their affairs to answer their country’s call”. The property manager attempting to evict a resident on active duty in the military or a resident in the process of reporting for active duty often encounters the following two areas that the Service-members’ Civil Relief Act covers: protection against the entry of default judgments, and a stay of proceedings when the service-member has notice of the proceeding. “SCRA” covers residential evictions of service-members or their dependents during the period of military service, unless the monthly rent is unusually high (currently an amount exceeding $2900.00; this amount is adjusted each year for inflation). “Dependents” are defined under the Act as the spouse of the service-member, a child of the service-member or an individual for whom the service-member provided more than one-half of the individual's support for 180 days immediately preceding an application for relief under “SCRA”.

Does the “SCRA” Apply to the Residents That I Intend to Evict?

Your three bedroom units are in hot demand because there are so few available in your market. Charlie, Wilma and Andrew are roommates and have stopped paying the monthly $2400 rent. You know that you can relet the unit the minute that the residents are evicted. You are very anxious to take back possession of the apartment. Yesterday, Charlie was called to active duty by the Coast Guard. Wilma is Charlie’s girlfriend, and up until 7 months ago when Charlie was laid off, she was supported entirely by Charlie for the last 27 years. He had paid for all of her living expenses. Much to Wilma’s dismay, Charlie has continued to pay for Andrew’s college expenses, even though Andrew is not a relative. In fact, Charlie has provided Andrew with 55% of his living expenses over the course of the last six months. Are Charlie, Wilma and Andrew covered by “SCRA”? The rent amount is low enough to fall under the act. It is clear that as a member of the Coast Guard on active duty, “SCRA” will apply to an eviction action filed against Charlie. With regard to Wilma and Andrew, they may have coverage if they are treated as “dependents” of a service-member. Unfortunately for Wilma, she is neither the spouse of Charlie, nor has she received enough living expenses in the recent past, since the service-member must provide more than half of the support during the preceding six months. Andrew, on the other hand, is considered a “dependent”, because he received 55% of his living expenses from Charlie during the last six months.

Obtaining a Default Against the Service-member or Dependent of the Service-member.

During the normal eviction scenario, if the resident does not answer the complaint after 5 business days, the manager is entitled to a default which is entered by the clerk of the court. The judge then will sign the final judgment of eviction. In the case of a service-member or dependent of a service-member, the process to obtain a default is more complicated. The judge, not the clerk of courts, must enter the default. To obtain the default, the manager must first provide the judge with an affidavit regarding the resident’s military service or the service-member who is a father, husband or financial supporter.  If the verification is inconclusive as to military status, the judge may enter a default but also require the manager to post a bond in a certain amount to protect the residents from damage, if the judgment is set aside at a later date because it turns out that one of the residents was a service-member. If the military verification shows that the resident, parent, or financial supporter is in the military, then the judge will order that an attorney be appointed to represent the resident. This attorney is called a military ad litem attorney. Extra costs are involved in this process, and courts may pass this cost on to the manager. The military ad litem attorney will attempt to locate the service-member and will review the case file to determine if there are any valid defenses that the service-member may assert. If the military ad litem attorney submits a report to the court that he does not believe that the resident has any valid legal defenses, the court then may enter a default and subsequently award possession back to the manager. Remember this: The Act calls for those who knowingly file false military verification affidavits to be fined and IMPRISONED FOR UP TO ONE YEAR. You read that right! You can end up in jail if you mislead the court here.

Potential 90 Day Stay

Cletus, one of your residents, has been called up for active duty in the Navy. Cletus did not pay the March rent. You deliver a three day notice, and subsequently file an eviction against Cletus after his continued failure to pay the owing rent. Cletus answers the complaint with an admission that he has not paid rent, but claims that there was some sort of oral agreement made with your assistant property manager, allowing him to pay late, and that he has been struggling with his bills since his deployment. Now that Cletus has responded, your attorney tells you that the military ad litem attorney is not required here, since the military resident filed an answer with the court and has therefore appeared in the action. You are happy to hear that, but your happiness is short-lived, because your attorney informs you that Cletus is likely entitled to a stay of the proceedings for at least 90 days. The Act will often entitle Cletus to a stay of at least 90 days, no matter how weak his legal defenses, if he can simply convince the judge his military service is adversely affecting his ability to timely pay the rent. The judge can stay the proceedings for a lesser period of time, but often judges will exercise their considerable discretion in favor of the service-member. The judge also has power to restructure terms of the lease, and has discretion to award a longer stay depending on the facts and circumstances.

Waiver By the Service-member

A property manager should still keep in mind that “SCRA” allows the service member to waive protections afforded under the act. Therefore, entering into a stipulation with the military resident is often a good idea. However, you should consult with your attorney to make sure the waiver wording listed on the stipulation is legally enforceable.

 

MILITARY RESIDENT

No one would dispute that a soldier is deserving of respect. The soldier relinquishes his liberty to join the service and sometimes pays the ultimate sacrifice. Law makers have enacted various laws to protect service personnel in their dealings in the “civilian” world. Regardless of whether the law makers were motivated by esteem or by a desire to please voters, the result is the same. A person serving in the active military is entitled to special housing rights.

Nondiscrimination

A Florida manager may not discriminate against a service-member in offering a dwelling unit for rent or in any of the terms of the rental agreement. A violation of the law could subject the manager to same penalties as for changing the locks or turning off the electric service. Even if the service member had no financial damages, he would be entitled to at least three times the monthly rental rate, plus attorney fees and court costs.

Some counties and municipalities have their own ordinances that make it unlawful to discriminate against service-members. Besides making the manager pay damages, attorney fees and costs, these local laws often authorize the local government agency to investigate and file a complaint on behalf of the service-member. The significance of that is the resident may not need to find an attorney to help him. The city or county can sue the manager on the resident’s behalf.

Early Lease Termination

A resident who is in the military service can terminate the tenancy under certain circumstances. Criteria must be met:

1. The resident must give written notice 30 days prior to vacating.
2. The resident must give you a copy of the military orders that are the basis for the termination.
3. The resident’s circumstances must “fit” into one of the following categories:

A. The service-member is required, pursuant to a permanent change of station orders, to move 35 miles or more from the location of the rental premises;

B. The service-member is prematurely or involuntarily discharged or released from active duty or state active duty;

C. The service-member is released from active duty or state active duty after having leased the rental premises while on active duty or state active duty status and the rental premises is 35 miles or more from the service-member's home of record prior to entering active duty or state active duty;

D. After entering into a rental agreement, the service-member receives military orders requiring him or her to move into government quarters or the service-member becomes eligible to live in and opts to move into government quarters;

E. The service-member receives temporary duty orders, temporary change of station orders, or state active duty orders to an area 35 miles or more from the location of the rental premises, provided such orders are for a period exceeding 60 days; or

F. The service-member has leased the property, but prior to taking possession of the rental premises, receives a change of orders to an area that is 35 miles or more from the location of the rental premises.

Death of a Service-member.

If a service-member dies during active duty, an adult member of his immediate family may terminate the rental agreement by giving the manager a 30 day (at least) written notice of termination. The notice must be accompanied by either a copy of the military orders showing he was on active duty (or a statement signed by his commanding officer) and a copy of the service-member's death certificate.

Consequences of Early Termination

If the rental agreement is terminated under the special military statute, the resident is liable for the rent through the 30 day notice period. A pro-rated amount would be due if the thirty day notice ends in the middle of a month. The resident is not liable for any other rent or damages due to the early termination, no matter what the lease may say. The resident is not obligated to repay concessions.

If the service-member has not yet taken occupancy of the unit and gives at least 14 days notice of the termination, no damages or penalties of any kind can be assessed.

Nonwaiver

No part of the special military statute can be waived by the parties. The manager cannot have the resident sign an agreement that defeats the protections of the statute.

METHAMPHETAMINE IN THE APARTMENT COMMUNITY

The manufacture and use of methamphetamine, a highly dangerous, addictive and illegal drug is rampant throughout the United States. Usually it is manufactured in clandestine labs in trailers and homes in remote areas. Due to the severity of the problem, law enforcement has been making methamphetamine eradication a major priority. One of the big problems with methamphetamine manufacturers is the fact that they are often also seriously addicted to the drug they manufacture and sell. Once arrested, they may serve some time only to be released and resume the manufacture of the methamphetamine.

The Manufacture of Methamphetamine

Methamphetamine can be manufactured in any room of an apartment. The chemicals used are commonly available from the hardware store, paint store and online from chemical supply houses. All the ingredients used in the manufacture of methamphetamine are completely legal. Many of these ingredients are highly flammable, volatile and poisonous. Often a methamphetamine lab is discovered due to a fire or explosion.

What to Look For During Your Inspections

An operating methamphetamine lab will be simple to spot. You will see chemicals, propane tanks, burnt cookware, glassware, bottles of chemicals, and be struck with the odor of the noxious substances used in the manufacturing process. The problem is that in order to see it, you will need to enter the unit. Many property managers fail to conduct regular inspections of their properties and assume if the property looks nice and neat from the outside, an interior inspection is not necessary. All managers need to implement a policy of routine interior and exterior inspections. The interior inspection may be conducted less frequently than the exterior inspection, but in any event, inspections must be done on a regular basis. Severe damage can be done to an extremely valuable asset, and had an inspection been done sooner, often the damage could have been detected, stopped, or the resident could have been removed from the premises.

Items Which Could Indicate a Methamphetamine Lab

Glass jars with liquids or residues, large numbers of boxes of over-the-counter cold tablets, bottles of red phosphorous, iodine, sulfuric acid, hydrochloric acid, marked and unmarked bottles with colored or white solid on the bottom, coffee filters, strong noxious orders, laboratory type glassware, burnt cookware or frying pans, kerosene, paint thinners, acetone and starting fluid, piles of rechargeable batteries, propane tanks, pressure cookers, ice tea jars, gasoline cans with tubing.

Note: Almost all the above listed items are common by themselves. It is the collection of the items in one area which should raise some serious suspicion.

Behavioral Tip-offs

Unusual, paranoid behavior by the resident Nonpayment of rent, unemployment by the resident, blackened windows and drawn curtains, frequent visitors at all hours and excessive traffic, and, extensive security such as additional locks and reinforced doors

You Have Discovered a Methamphetamine Lab, Now What?

If you feel that there is the manufacture of methamphetamine on the premises, you should notify local law enforcement immediately. You should insist that they come with you to do an inspection, as often law enforcement does not immediately wish to shut down drug operations, but unfortunately want to watch the unit in question in operation for an extended period of time to get the “bigger fish”, or arrest a larger number of people. Notify your attorney immediately, and do not serve any notices without the attorney’s consultation and advice. Methamphetamine labs are extremely dangerous and sometimes booby trapped. Do not enter the unit again if you have strong suspicions, and leave this to the professionals.

Remediation and the Law

Many states are enacting laws which require complicated and expensive testing and remediation procedures based on the presence of certain chemicals in a rental unit. Sometimes the amount of the chemical needed to trigger remediation is so minute, it borders on absurdity. Some states have enacted laws which will require disclosure to future residents or adjacent residents. We are watching the laws carefully so Florida does not become one of those states. If your local municipality is dealing with this issue, please feel free to contact our office. Often local municipalities come up with ordinances that have not been properly thought out. We do not need the manager to become the victim in this war on drugs.

 

 

MANAGER’S MAINTENANCE RESPONSIBILITY

The manager’s duty to maintain the rental premises can be found in FS 83.51 of the Florida Residential Landlord and Tenant Act. The statute can be confusing, because it mandates its coverage in broad language and then exempts certain situations and then overrides some exemptions. This is due to Florida’s building, housing and health codes moving from local to statewide application. It is important to understand that the statute requires the manager to comply at all times during the tenancy, not just at the initial occupancy. The manager is subject to regulatory changes throughout the tenancy. Also, note that the statute distinguishes between a single-family home or duplex and a three or more unit building. In this article I will refer to the manager of a single family home or duplex as the “single-family” manager and the manager of three or more units as the “multi-family” manager.

 

FS 83.51(1) Building Codes

 

FS 83.51(1) mandates that the manager comply with all building, housing and health codes (hereafter just “codes” for short) or, in the absence of codes, comply with specific building and structural requirements. The definition of “building, housing and health codes”, which can be found in FS 83.43(1), is so broad as to encompass almost anything that applies to housing. Codes include both state and local housing regulations. Since local jurisdictions may have implemented more stringent regulation than is contained in the state codes and may have implemented other housing regulations, local ordinances should always be checked. If a visit from code enforcement, the health inspector, the fire marshal or any of the other myriad regulatory officials results in some infraction being discovered, the appropriate response is to remedy the deficiency diligently and thoroughly. This is important not only to avoid further issues with the regulatory authority, but also because unresolved violations are grounds for the resident to withhold rent or terminate the lease. Further, the resident may use a violation complaint to a government agency as the basis to accuse the manager of engaging in illegal retaliation, when the manager attempts to enforce rules, serves lease noncompliance notices (Seven-Day Notices), issues a non-renewal notice, or takes just about any action that the resident feels singles him out for alleged discriminatory treatment.

 

If there are no applicable codes, the statute requires that certain building and structural components be kept in good repair and capable of resisting normal forces and loads. It specifically lists roofs, windows, screens, doors, floors, steps, porches, exterior walls and foundations. It also requires that the plumbing be in reasonable working condition. At one time this provision may have been important in those areas of Florida without codes. Today the Florida Building Code and the health code apply on a statewide basis. This part of the statute would have limited, if any, applicability. However, a judge, who is not familiar with the Florida Building Code, may look at the enumerated items as a guide to who should be responsible for the repair, for instance, of the screens.

 

The multi-family manager cannot modify his responsibilities for compliance with the codes. Any attempt to do so by the multi-family manager will be void and unenforceable.

 

FS 83.51(2): More Duties to Maintain

 

FS 83.51(2) contains additional maintenance obligations for the manager. The manager is responsible for:

 

1. Extermination of rats, mice, roaches, ants, wood-destroying organisms and bedbugs. The statute enumerates these pests. Note that bedbugs, a recent plague to managers, are specifically listed.

 

2. Locks and keys. Since the manager’s duty to maintain continues during the tenancy, damaged locks not the fault of the resident must be repaired by the manager.

 

3. The clean and safe condition of the common areas.

 

4. Garbage removal and outside receptacles therefore. The manager must supply outside garbage cans, if appropriate, and, if necessary, a dumpster, trash compactor other proper receptacle. This includes arranging for garbage pick-up in areas without county/municipal garbage service.

 

5. Functioning facilities for heat during winter, running water and hot water. One can immediately notice the absence of what some would say is the most necessary “functioning facility” of all in Florida – air conditioning.

 

The statute provides that the multi-family manager and his residents can agree under written leases that the residents are responsible for these maintenance duties. At one time this part of the statute was a benefit to managers. It is not much benefit today. The majority of codes now adopted in Florida place the responsibility for the duties listed in 1-5 above on the multi-family manager, and the multi-family manager is still responsible for these duties if the codes require it of him. For example, if the codes require a manager to remove garbage, then the codes control. Any agreement by the multi-family manager and his residents otherwise is void and unenforceable.

 

Charging the Resident

 

Although the multi-family manager may have to provide and the single-family manager may choose to provide garbage removal, water, fuel and utilities, they can require the residents to pay the costs and charges for these services.

 

Eviction Defenses

 

The statute contains another provision that at one time was helpful to managers, but with the statewide application of the building and health codes, is not much assistance today. The resident may not use the manager’s failure to comply with the maintenance duties listed in 1-5 above as a defense to an eviction. However, the resident may use the manager’s noncompliance with codes as a defense to an eviction. Since most codes overlap the duties listed in 1-5 above, the codes are the resident’s defense.

 

Smoke Detectors

 

The statute requires the single-family manager to install working smoke detectors at the beginning of occupancy. The statute is silent as to any duty to maintain the detectors during the tenancy, so it appears permissible to require the resident to replace batteries and check that the detectors remain operational. The statute gives guidance on the type of smoke detector required. It gives no guidance on the number or placement of the detectors. Managers should check with their local fire marshals on these points. Although the statute does not require multi-family managers to install smoke detectors, the fire codes require such installation or more.

 

FS 83.51(4) Resident Fault

 

The manager is not liable for maintenance or repairs required by the statute, if the resident, his occupants or guests caused the condition by their negligence, intentional act or noncompliance with the lease or the statutes. While this may seem to shift the cost of maintenance and repairs to the resident when he, his occupants or guests are at fault, it can be difficult to accomplish in practice. The manager bears the burden of proof in any litigation in which the manager claims the damage is caused by the resident, in an effort to hold the resident financially responsible for the repairs and as an explanation why the manager did not undertake the repairs, perhaps in response to the resident’s attempt to withhold rent. The manager must prove that the resident, his occupants or guests caused the damage or that the damage was the result of their lease noncompliance.

 

Sometimes it’s easy to prove, and sometimes it’s not. The manager must also provide proof of the maintenance or repair cost. This may require vendors to appear in court to testify as to the cause as well as to the cost.

 

A manager may want to evict the resident for failure to reimburse the manager for a maintenance or repair bill that is alleged to be the resident’s responsibility. Many judges consider such costs to be a deposit claim issue to be resolved at the end of the lease, not a possession issue. This is true even if the lease provides that the resident is responsible for paying maintenance or repair costs when billed. The exception to this might be if the current costs are significant, exceed the security deposit by a significant amount, and the manager can show the judge the manager's property is being intentionally destroyed or abused. Even then the court outcome is not predictable.

 

Conclusion

 

The statute at one time was more beneficial to managers than it is today. With the advent of statewide codes and the proliferation of local additional codes or more stringent code provisions, the statute’s exemptions are of limited value today. The message of the statute today is that compliance with the codes is a serious matter. The failure to comply with codes can be used by the resident as the basis to withhold rent, terminate the lease or to defend against an eviction.

 

MANAGEMENT STOPPING THE EVICTION ACTION

Almost every day we get a request by phone, email or fax to “stop” an eviction. We don’t mind it, as it is less work for us to stop an eviction than to bring it to completion. However, we immediately ask the property manager why the eviction is being stopped. It is important that we know the answer, as often property managers improperly stop evictions for wrong reasons and find themselves in trouble later, possibly having to file another eviction needlessly. While we don’t mind filing evictions multiple times on the same resident, your company might not like the fact that money is needlessly wasted on attorney’s fees and costs. If the property manager does not completely understand the eviction process or is desperate to collect any money he can, he often will stop an eviction and end up paying a big price later. Do you really want to make your attorney wealthy?

Why Stop an Eviction?

The eviction has been filed, and the property manager subsequently receives the keys, or it appears the resident has vacated. This is a common reason. The resident may come into the office with $1000, representing the rent amount owed, and the manager accepts the rent and figures that the eviction should be stopped. This is another common reason. Sometimes the resident makes a significant partial payment and has promised to come in 5 days later and pay the rest. We hear it all the time. You call and want to stop the eviction. The eviction was filed in error, and the property manager hastily wants the eviction stopped. Whoops. It happens. In this article we are going to examine the reasons why property managers stop evictions and how the eviction should be stopped, if it all.

The Resident Has All of the Rent

The Three Day Notice demanded $750, and since the eviction started, the resident now owes another $750, as you are into the next month. He has a cashier’s check or money order for $1500 and has come into your office. Do you take it or refuse it? The first inclination, especially in these tough economic conditions, is to take the resident’s rent money. Sounds good, right? But Wait! What about the attorney’s fees and costs? A typical eviction attorney who does volume evictions will charge between $125 and $150 in attorney’s fees for the basic eviction, PLUS you have to pay the costs, which at a bare minimum (depending upon how many residents are being evicted) will run you at least $200. Who is going to pay that money? Some property managers think the resident will pay it. Good luck. Not only do they rarely voluntarily pay, but you cannot force them to pay it. By accepting the $1500, the eviction is dead and gone, and the resident cannot be forced to pay the attorney’s fees and costs. Can you deduct it from the security deposit when they vacate? Possibly, but the manager is not really the prevailing party in the eviction lawsuit, as the eviction has been stopped before a judge made a decision, and there probably is not enough money in the security deposit to cover the attorneys fees, costs and possible damages to the premises or rent owed. The lease may state that the resident is liable for all attorney’s fees and costs, but by accepting the rent and voiding the eviction, a resident can fight you on this, especially if she did not realize that you would be trying to take the money owed from the security deposit when she vacated.

The Resident Has a Partial Amount of Rent Owed

In some instances, the resident does not have the full rent but a good portion of the rent owed. The temptation is great, the pressure to collect rent is on, and the property manager accepts the payment. The result? Same as above. The eviction is dead and gone. Good luck collecting attorney’s fees and the remaining rent balance. Hopefully the regional manager or the property owner gave the property manager authorization to “eat” the attorney’s fees and costs and possibly have to incur them again in the next eviction which may have to be filed.

The Resident Has Turned in Keys

The majority of residents under eviction vacate before the process is completed. This is a good thing. Many begin looking for new accommodations the day after they are served with the eviction papers if they have not already begun looking, knowing than an eviction is imminent. The result is that the resident packs up and leaves. In some cases they turn in keys, clean the unit and surrender the premises to the manager. This is the ideal situation. Why not stop the eviction action at this point? Our question we have is why stop it at all? Our attorney’s fees cover the entire eviction from beginning to end. If the resident vacates a day after we file the case or has to be forcibly removed, our fee stays the same. The only additional cost involved is the fee that the Sheriff’s department charges, and the Sheriff is not needed in all cases, especially those where the residents have turned in their keys and fully vacated the unit. Stopping the eviction will result in the resident NOT getting a Final Judgment of Eviction on his or her permanent record. The manager needs to make a decision whether they want the resident to just have an eviction filing on their record or whether they want the resident to have an actual Final Judgment of Eviction on their record. Just because the resident has turned in the keys does NOT mean they have completely surrendered the unit to you. You can never be completely sure. There will come a day when you receive keys from a resident and then will be surprised to find another person living in the unit who tells you they are there with the permission of the resident who turned in the keys to you. The result is that the unit has NOT been completely surrendered and you do NOT have possession. You can see how stopping the eviction at this point will result in you not being able to remove this person.

The Resident Has “Abandoned”

Your maintenance tech goes to the unit under eviction, and it appears that the residents have “abandoned”. The electric is off, the next door neighbor said they saw them driving off in a truck in the middle of the night, and the unit is trashed. Looks abandoned, smells abandoned and probably is abandoned, BUT by law it may not be. Abandonment is defined by Florida law, and we urge you to get a full understanding of this before you ever assume a unit is abandoned. Our recommendation in cases where all the residents have not given you possession, but rather have seemingly abandoned, would be to continue on with the eviction if you are worried at all that the resident is going to come back, or if there is anything left in the unit. Carry the eviction to completion, get the writ of possession, and have the Sheriff execute the writ of possession. This will assure you that the eviction is completed. If the residents were to return, they are not able to retake possession, and you are not liable for any personal property which was put to the property line after the writ of possession was executed. It is the safest route.

The Proper Way to “Stop” An Eviction

The proper way to “stop” an eviction is to not really “stop” it at all. In situations when the property manager is going to accept rent, in full or part, a Stipulation should be used. The Stipulation is the document under which the property manager agrees to take a specific sum, and the resident agrees to pay the balance if any, including the attorney’s fees, costs, late charges or any other amounts owed according to a written “payment plan”. This “payment plan” should not be confused with any other type of payment plan or workout agreement you may enter into with your residents. A “Stipulation” is an actual court document that becomes a “court order” once the judge signs an order approving the Stipulation. This court order will authorize you to obtain a Final Judgment of Eviction if the resident fails to comply with the terms of the Stipulation. Most judges approve Stipulations under which the resident must pay according to the Stipulation AND pay the rent on time for a period of up to 6 months. You see, the eviction is not really “stopped”, but rather it is suspended or deferred by the Court. If the resident pays according to the Stipulation, the resident can stay. If the resident fails to make one or more payments on the past balance owed or the rent as it becomes due, the eviction is revived and your attorney can request a Final Judgment from the judge without having to file an eviction all over again.

Should You Always Use a Stipulation?

We feel that in most cases if you are going to accept a partial or even full payment from the resident, a Stipulation should be used. Obviously, in many cases the resident does not have a significant amount of money, and you should not stipulate, but rather just refuse the rent and continue on with the eviction. If a resident owes $1500 and only can offer you $100, it usually is not appropriate to enter into a Stipulation. The amount you decide to accept in order to enter into a Stipulation is up to your company policy, and this should be established and written down, if not already in place, to avoid inconsistent actions which could result in Fair Housing issues. If you are not stipulating, make sure the resident does not try to slip in a payment without your knowledge, since if this payment is accepted, the resident has essentially paid rent during the eviction, and the eviction may have to be dismissed. It is crucial that you have a system in place to prevent inadvertent acceptance of rent from a resident once an eviction is filed.

The Resident Pays EVERYTHING Including Attorney’s Fees and Costs

You might wonder why you should not stop an eviction if the resident is paying you absolutely everything they owe. It happens. The resident comes into some money, receives a tax refund, settlement or begs, borrows and steals to be sure they can pay and stay. We once had a resident rob a bank and then pay the rent to stop his eviction. If the resident pays you EVERYTHING in full, a Stipulation is not necessary, BUT what about next month’s rent? Will the resident be in the same position of nonpayment next month? If so, you may have to file another eviction on that resident and go through the entire process again. You need to make a decision whether you just will stop the eviction OR enter into a Stipulation under which the resident is ordered by the Court to pay the rent as it becomes due on time for the next 6 months. This is a judgment call on the property manager’s part, and also will depend upon where your property is located. Some judges will only allow Stipulations on past balances owed, but most will allow Stipulations on future payments as well. Your attorney can tell you whether the judge will allow a future rent payment Stipulation. Our recommendation? Stipulate whenever possible, so you can avoid filing an eviction on the resident again within the next 6 months.

The Eviction is Proceeding, the Resident Wants to Pay, and You Are Confused!

Call your attorney! Many property managers only have one or two evictions in a year, and if you are in that lucky category, you are more apt to be confused or make mistakes during your eviction. In a way, it is a good problem. Call your attorney right away if a resident want to pay and stay or you are thinking about stopping an eviction for whatever reason. Your attorney is not hired to just file your eviction, but is there to assist you throughout the entire process. Many things can happen during the eviction process, and your attorney will know exactly how to guide you. Take advantage of the availability and willingness of your attorney to help you. It’s your attorney’s job.

 

NONRENEWING THE RESIDENT

There will inevitably come a time in the landlord/tenant relationship where the manager wishes to end the tenancy at either the end of the lease term or at some later time, if the tenancy has become month-to- month. Successfully terminating the tenancy will depend upon the terms of the lease and the proper timing and service of the Notice of Non-renewal. Failure to non-renew properly can result in an unwanted extension of the tenancy. An improperly served or timed Notice of Non-renewal does not cure itself by the passage of time and thus becomes void to the resident’s favor. Just as the resident has a right to leave after the expiration of a lease, the manager also has a right to make a resident leave at the expiration of the lease. In this article, we will examine non-renewing a resident at lease end and non-renewing the month-to-month resident.

NON-RENEWING A RESIDENT AT LEASE END

DO YOU NEED A REASON TO NON-RENEW AT LEASE END? A manager can non-renew a resident for any reason or no reason at all, as long as the non-renewal is not based upon any illegal, discriminatory or retaliatory reason. A manager is not required to provide the resident with the reason for the non-renewal. It is imperative that if there is a reason for the non-renewal, that the manager has this well documented in the manager’s files. Often a resident who is non-renewed claims that the non-renewal was based upon race, handicap, familial status or almost any other reason related to their status as a protected class. In the event the resident files a discrimination lawsuit, a complaint with HUD or the local fair housing office, the manager will be required to provide proof that the non-renewal was not based upon an illegal discriminatory reason, but was rather based upon some valid business decision or due to the resident’s noncompliance with the lease or Florida law.

DO YOU NEED TO PROVIDE A RESIDENT WITH NOTICE OF NON-RENEWAL PRIOR TO LEASE END? If the lease is silent as to any notice requirements at the end of the lease term, the lease will automatically end at the lease ending date, the manager shall have the right to immediately file an eviction action, and the resident will be considered a holdover resident, thus owing double rent for each day the resident remains on the premises. No notice at all from the manager is legally or contractually required in this instance. Although it may not be required by the lease and is certainly not required by Florida law, we highly recommend that the manager give a Notice of Non-renewal to the resident at least 30 days prior to the end of the lease. This will help prevent any misunderstandings or the possibility that the resident may have forgotten that the lease is ending and may be expecting that it will continue if the manager does not advise otherwise.

HOW MUCH NOTICE SHOULD BE GIVEN PRIOR TO LEASE END? If the lease requires notice by the manager prior to lease end, as many leases do, this must be strictly followed per the lease terms, otherwise the lease will automatically convert into a month-to-month tenancy. In some cases the lease is silent as to notice requirements by the manager but does have a notice requirement on the resident. In this case we recommend that the manager follow the same notice requirement that is imposed on the resident. If you are asking the resident to give you 30 days’ written notice prior to the lease end, you should give the resident at least 30 days’ written notice.

NON-RENEWING THE MONTH TO MONTH TENANCY

WHAT IS A MONTH-TO-MONTH TENANCY? A month-to-month tenancy occurs when a resident is residing on the premises after the lease has expired, or if there was never a lease in the first place. Since we highly recommend against a manager failing using a lease agreement of some sort, and there are sales tax ramifications of moving a resident into a property without a lease, we will deal here with cases where the lease has expired and has become a month-to-month tenancy. The lease becomes a month-to-month tenancy when the manager allows the resident to continue to reside on the premises after the lease expires, collecting the rent from the resident and basically carrying on business as usual, with the only difference being that the lease has expired. All the same terms and conditions of the lease still will apply, and it is not required that the manager charge or collect sales tax when the lease becomes month-to-month.

CAN THE MANAGER CHARGE THE RESIDENT MORE RENT WHEN THE TENANCY BECOMES MONTH-TO-MONTH? The law is not clear whether the manager can arbitrarily raise the rent on the resident and force the resident to pay the higher amount on a month-to-month tenancy. The manager will probably be safe in giving the resident 30 days written notice that the rent will be increasing, but should make it clear that the month-to-month tenancy is terminating and the manager is offering a new month to month tenancy at a higher rent amount. Here, by the resident staying on the premises, there is an implicit agreement that rent will be at the higher amount. Many leases contain a clause which states that in the event the lease becomes a month-to-month tenancy and the resident remains on the premises with the consent of the manager, the rent will increase by a specified amount. This is highly recommended, as it will increase the rent and/or encourage the resident to sign a new lease or renew a lease with you.

DO YOU NEED A REASON TO NON-RENEW A MONTH-TO-MONTH TENANCY? A manager can non-renew a resident who is on a month-to-month tenancy for any reason or no reason at all, as long as the non-renewal is not based upon any illegal discriminatory reason. See the discussion above regarding non-renewing a resident at lease end. All the same reasons apply.

HOW MUCH NOTICE NEEDS TO BE GIVEN TO NON-RENEW A MONTH-TO-MONTH TENANCY? If the resident is remaining on the premises under a month-to-month tenancy, and the lease has expired, either party may terminate the tenancy by giving the other no less than 15 days’ notice prior to the beginning of the next monthly rental period IF AND ONLY IF the expired lease agreement does not require a different notice period. This is extremely important!! The lease agreement which the resident signed and is not expired often has a clause which states that either party must give a particular number of days notice to terminate the tenancy after it becomes month-to-month. If this is the case, the manager will be held to the notice requirement in the lease agreement, while the resident simply needs to give no less than 15 days notice to the manager. Here we have an apparent conflict with the lease terms and Florida law. Why should not the resident be bound to the lease terms? This is an example where the resident has a clear right under the law to terminate their month-to-month tenancy by giving no less than the 15 days notice. The lease cannot take this right away from them.

WHAT DOES “AT LEAST 15 DAYS NOTICE PRIOR TO THE BEGINNING OF THE NEXT MONTHLY RENTAL PERIOD” MEAN? The manager or the resident must give the notice at least 15 days before the beginning of a monthly rental period. If the rent period begins on the first day of the month and either party gives 15 days’ notice on the first day of the month stating they will be out on the 15th day of the month, the notice is NO GOOD. The resident will owe rent for the entire month, even if the resident vacates on the 15th. If the notice came from the manager, the notice will be invalid, and the resident can remain on the premises as until the manager give proper notice. If the rental payment period begins on the first day of the month, either party must give the notice no later than the 13th, 14th, 15th, or 16th of the month in order for the notice to be valid, and as mentioned previously, the manager may have to give even more notice if the lease requires the manager to do so.

SUPPOSE YOU ARE HOLDING A LAST MONTH’S RENT AND DECIDE TO NON-RENEW A MONTH-TO-MONTH TENANCY? If you are holding a last month’s rent, when you serve your Notice of Non-renewal, you need to state to the resident in writing that you are applying the last month’s rent to the last month of the tenancy. For example, if you are holding a last month’s rent, you cannot accept rent from the resident in June and then serve them a Notice of Non- renewal on June 1st stating that they must vacate on June 30th. Your acceptance of June’s rent implies that they can stay until the end of June, and your holding another month’s rent implies that you are not going to make them move at the end of June!

SERVICE OF NOTICE OF NON-RENEWAL. Serving a Notice of Non-renewal incorrectly will result in a nullity of a notice, and the tenancy will continue as if no notice was given. Shorting a notice by a few days will not mean that the manager simply has to wait those few additional days and the resident will then have to vacate. The manager will be at square one. Florida law does not state how a notice must be served, so the lease must be examined. If the lease requires that the manager gives the resident 30 days’ notice prior to the end of the lease term, that notice must be actually received by the resident no less than 30 days prior to the ending date. A common mistake is for the manager to mail the notice without giving the required 5 business days for mailing, or just sending the notice by certified mail believing that this is a sure way to prove that the resident got notice, only to realize that the resident failed to pick up or refused the certified mail. We recommend that a Notice of Non-renewal be served multiple ways, including mail, only if time permits and hand- delivery or posting on the premises in the resident’s absence. First and foremost, the notice must be served in accordance with the lease. Sometimes a resident will fail to put a notice in writing, and the manager will then seek to take advantage of this and try to prove that since proper notice was not given, the resident owes an additional month’s rent. Most judges feel that if the resident can prove that they put you on notice, then the requirement of written notice is not as important. If a resident gives you verbal notice that they are leaving, follow this up with a confirmatory letter stating, “This will confirm our conversation whereby you have indicated that you are vacating the premises on (insert date). The manager should also then serve a Notice of Non-renewal to the resident just to be safe.

SUPPOSE THE RESIDENT REQUESTS MORE TIME? We see more problems develop when the manager and resident come to some sort of agreement but fail to memorialize this agreement in writing. If the resident requests more time, the manager and resident should sign a document whereby the manager agrees to the new vacating date and the resident agrees to vacate at that time. If the resident is going to be paying for this privilege, all this should be spelled out. NEVER MAKE VERBAL AGREEMENTS ON EXTENSIONS.

WHAT HAPPENS WHEN THE RESIDENT FAILS TO MOVE? Would it not be nice if people did what they said they were going to do when they said they were going to do it? If the resident fails to move at the expiration of the Notice of Non-renewal, the manager has some choices. The manager can file an eviction immediately, wait to see if the resident will move or give the resident an extension. If the resident has not vacated, the manager should immediately contact the resident to see what the resident’s intentions are. It may be the case that the resident is almost out or just needs a couple days. The manager may want to wait it out. If the resident needs an extension, we recommend that the resident sign an Agreement To Vacate. Never assume that just because the resident is supposed to be out or says he or she will be out, that the manager now has a right to take possession of the premises. The only way the manager can take possession of the premises, even after a Notice of Non-renewal has expired is by surrender, abandonment or eviction. Always call your attorney if you have any doubt whatsoever that the resident may not be completely out.

 

MANAGEMENT NONRENEWING THE MONTH TO MONTH TENANCY

The date the resident notifies you he is vacating will affect what the resident owes you, if anything. While this is all nice, the fact remains that the resident often will just do what she wants, tell you she is leaving, pack up and leave. Good luck penalizing the resident or collecting the following month’s rent because the resident failed to follow the law. However, it is not worthless to require proper notice, as many residents do follow the law and live up to their obligations. Therefore, it is crucial for you to know the mechanics, so you can properly advise the good, responsible resident on how and when to give you notice. More importantly, when you are non-renewing the month to month resident, you must strictly follow the law. Unfair as this may seem, the resident can hold you to the law, and doing the notice improperly could lead to serious legal ramifications, especially if it was crucial to you or the property owner that the resident vacate according to the Notice of Non-renewal. If you fail to properly non-renew a month to month tenancy, your attempt becomes void, and basically you must start over again from scratch. The fact that you may have given short notice or even the proper number of days notice can be nullified by when or even how you gave notice to the resident. You might think that if you shorted the notice or gave it on the wrong date, you simply need to wait until the end of the next month or until the time on your notice elapses, but unfortunately, time will not cure a defective notice. Just like giving a Three Day Notice that expires a day early, your waiting a couple more days does not “cure” the defective notice. You have to start all over again.

The Dangers of Doing It Wrong

Usually there is a definite reason you or the owner want to non-renew a month to month resident. It may be that the owner wants to move back into the unit, the resident is chronically late, the owner wants to sell or rehab the property, the property has been sold or is under contract, the residents are causing problems: the list goes on and on. If you non-renew the month to month resident incorrectly and must start all over again, serious time can be wasted. In other words, a simple error in non-renewing a month to month resident could result in killing an important real estate transaction, in which huge amounts of money are at stake, or resulting in you losing good residents who may living in surrounding units if you can’t get the problem resident out and become delayed.

How Much Notice is Needed to Non-Renew the Month to Month Resident?

15 days of course, right? Hold on there.  While the resident only must give at least 15 days’ notice prior to the end of the monthly rental period, the manager is actually held to a different standard. If the lease is silent on notice, the manager has to give at least 15 days’ notice prior to the end of the monthly rental period just like the resident, BUT if the lease requires MORE notice, the manager MUST follow the lease agreement. You may feel that since the lease agreement is expired, it has no meaning, but this is completely incorrect. You still are held to the terms of the expired lease. The first step is to examine the lease carefully. We recommend that the manager give at least the same amount of notice to terminate the month to month tenancy as the manager has required of the resident. The number of days notice and the timing of the notice are the two main factors that can get the manager or manager in huge trouble if the Notice of Non-renewal is incorrect. Always remember that the number of days notice is the minimum number of days’ notice to be given PRIOR to the end of the monthly rental period. The most common mistake by managers is to think that they can give 15 or 30 days’ notice any time they wish, and that the resident must vacate at the end of that 15 or 30 day time period.

How Must the Notice Of Non-Renewal be Served?

Florida law does not explicitly provide how you must serve the notice; the important thing is that you can prove the resident got the notice. Again, you must go to the expired lease and carefully look to see if there are any requirements of the parties to serve notices to each other in a certain fashion. If your expired lease requires that the notice be mailed, you MUST add 5 additional business days on the front end of the notice for mailing time. Don’t think that since you mailed it in the 15 or 30 days before the end of the monthly rental period as required by Florida law or the expired lease, you just have to wait another 5 days, and your notice is now fine. Your notice was defective the minute you failed to mail it at least 5 business days before 15 or 30 days prior to the end of the monthly rental period. Time does not cure the defective notice, and again, even though the lease is expired, you still must follow what the expired lease provides.

Best Practices on Notice of Non-Renewal Serving

There will come a time when your resident is extremely upset that the month to month tenancy is being non-renewed, especially if the month to month tenancy has gone on for some time. The resident may deny getting the notice. Serving the Notice of Non-renewal multiple ways is your safest bet. Serving the Notice of Non-renewal by regular mail, certified mail, hand delivery and posting on the door of the unit if the resident is not home or refuses to answer the door, may seem excessive, but just wait for the day when the resident denies he ever got notice. Private process servers also are available to serve notices and their word and affidavits of service are well respected by the judicial system. If you need a name of a private process server, give us a call, as we use them all over the state.

Concrete Examples of Non-Renewing the Month to Month Tenancy

The below examples assume that the monthly rental payment period begins on the first day of the month. If the lease requires the rent to be paid on a day other than the first day of the month, we recommend that you call your attorney for advice on when to give the Notice of Non-renewal, as things can get tricky and confusing, another reason to always have rent due on the first day of the month.

Example Set #1- Lease is silent on how many days’ notice for terminating the month to month tenancy, or lease states 15 days

1. Manager gives resident Notice of Non-renewal on 5th of September, stating the resident must vacate by 30th of September.

Result: This is perfectly proper notice, and if the resident fails to vacate, eviction can begin.

2. Manager gives residents notice on the 4th of September, stating they must vacate on the 28th of September.

Result: This is not proper notice, and the residents do not have to vacate, and the manager will have to start over again. The notice should have ended on September 30th.

3. Manager mails resident notice on 15th of September, stating he must vacate by the 30th of September.

Result: This is not proper notice, and the resident does not have to vacate, and the manager will have to start over again. The notice is short.

4. Manager gives resident notice on 1st of September, stating she must vacate by the 16th of September.

Result: This is not proper notice, and the resident does not have to vacate, and the manager will have to start over again. The notice should have stated that the resident was required to vacate by September 30th.

5. Manager gives residents notice on the 17th of September, stating they must vacate by the 5th of October.

Result: This is not proper notice, and the residents do not have to vacate, and the manager will have to start over again.

Example Set #2- Lease states 30 days’ notice must be given to terminate a month to month tenancy

1. Manager gives resident notice on 31st of August stating he must vacate by the 30th of September.

Result: This is proper notice, and if the resident fails to vacate, eviction can begin.

2. Manager gives resident Notice of Non-renewal on 5th of September, stating the resident must vacate by the 6thth of October.

Result: This is not proper notice, and the resident does not have to vacate, and the manager will have to start over again.

3. Manager gives resident notice on 5th of September, stating she must vacate on the 30th of September.

Result: This is not proper notice, and the resident does not have to vacate, and the manager will have to start over again.

4. Manager gives residents notice on 1st of September, stating they must vacate on the 30th of September.

Result: This is arguably not proper notice, and the residents do not have to vacate, and the manager will have to start over again. Arguably, it is short by one day.

5. Manager gives resident notice on 20th of September, stating he must vacate by the 20th of October.

Result: This is not proper notice, and the resident does not have to vacate, and the manager will have to start over again.

The Extension Request

Inevitably you will be put in a situation when the resident requests more time. This request and your response has to be treated with extreme care, as it can result in false expectations, misunderstandings and potentially create a situation in court where you have a “he said/she said” battle, which may or may not involve an out of state owner of the property who may or may not have to appear in court. When asked by resident for an extension of time, if you feel it is warranted, or you feel the property owner may agree, clearly tell the resident that no extension will be granted unless the property owner agrees and everything is put into writing. If it is your own property, this is not an issue, as you can make a decision immediately, but if you are managing for another, you will need to check with the property owner, obtain clear direction from the property owner in writing (email is fine), and then relay it to the resident immediately with the resident signing an “Agreement to Vacate” form. If there are multiple residents, all residents must sign this form. If only one resident is available, give the resident a deadline to have all residents available to sign the Agreement to Vacate, or indicate the Notice of Non-renewal stands. This is when everything usually falls apart. It is crucial to be definitive and firm with the resident, and document everything in writing with the resident. Any delay or failure on your part to get back to the resident with an answer will be conveniently interpreted by the resident as implicit agreement to the requested extension, while you have no agreement in writing. By telling a resident that he can have an extension, you essentially have voided your Notice of Non-renewal. You can’t then fall back on the original Notice of Non-renewal. If the resident does not sign an Agreement to Vacate if an extension is granted, you could lose an eviction action, or have to re-do the Notice of Non-renewal, resulting in potentially damaging delays if the resident fails to vacate on the new agreed upon date. Never trust that residents will do “what they are supposed to do”. Assume the opposite, and if you are not sure how to handle an extension request, the best thing you can do is call your attorney immediately before doing anything.

 

 

MAILING THE THREE DAY NOTICE

Mailing the Three Day Notice is fraught with problems The resident can deny receipt of the notice, extra days must be added to the expiration date of the notice due to mailing, potentially more days added if payment is to be by mail, and the notice should not be called a Three Day Notice at all, since it will be far more than three days. Since a mailed notice will not be a true Three Day Notice, we will refer to the notice in this article as a “Notice to Pay Rent or Vacate”

Why Mail a Notice?

1. The lease may require it. The lease agreement may actually require that a Notice to Pay Rent or Vacate be mailed. A property manager will often inherit leases from other states or those drafted by attorneys who are unfamiliar with the workings of Florida law. The property manager faced with an unfamiliar lease needs to carefully read the lease to see if there are any clauses pertaining to the mailing of notices. Many attorneys, feeling that mailing is a preferred way of the manager getting notice, draft a reciprocal clause in the lease requiring all parties to give notice by mail. If the lease requires notice by mail, this must be followed, even though Florida law does not require the mailing. While it may seem sensible to require a resident to give the manager notice by mail, unfortunately requiring the manager to do the same is unwise and can result in serious delays.

2. The manager chooses to mail the notice. Managers often choose to mail the Notice to Pay Rent or Vacate if the property is an excessive distance from their home or office. No manager wants to drive a long distance to serve a notice; thus, mailing is often the preferred choice. While we do not recommend it, we know that the realities of a long distance resident, where the manager may not have a local property manager, dictates this method of delivery.

How To Date the Notice to Pay Rent or Vacate if the Notice is Mailed

The expiration date of the Notice to Pay Rent or Vacate is dictated by the date of mailing of the notice and by how the resident is to pay the manager the rent.

Notice is Mailed and Resident is to pay rent by mail: 5 days must be given for mailing time, 5 days must be allowed for the resident to pay rent by mail and 3 business days must be given. The result? The notice has now become a Thirteen Day Notice to Pay Rent or Vacate which gives the resident 13 days excluding Saturdays, Sundays and Legal holidays from the date the manager mails the notice. Since weekends will always fall in the 13 business day period, we must allow at least 3 business days exclusive of the mailing times. As you can see this method of delivery and payment will result in a substantial amount of time for the resident to pay the rent, resulting in a large loss of income for the manager in the event of nonpayment, as no eviction can be filed until the notice expires.

Notice is mailed and Resident is to drop off rent: If the Notice to Pay Rent or Vacate is mailed and the resident is to drop off the rent, the manager must use an Eight Day Notice. 5 days are given for mailing plus the 3 business days as required by Florida Statutes, not including Saturdays, Sundays or legal holidays. Again, mailing a Notice to Pay Rent or Vacate is not the preferred method, as it results in delay.

Mailing AND Posting or Hand delivering the Notice to Pay Rent or Vacate

With the exception of certain properties governed by special federal regulations, a Notice to Pay Rent or Vacate should NEVER be mailed AND posted on the premises or hand delivered, or unless it is (strangely) required by the lease agreement. If the manager posts a Notice to Pay Rent and then mails one, presumably the resident will receive the Notice to Pay Rent by mail between 2 and 5 days after the notice is posted. This causes confusion. In one case you are telling the resident they have a certain number of days not including Saturdays, Sundays or legal holidays to pay the rent, but then the resident receive the notice by mail at a later date, which says the same thing. Which notice applies? The mailed one might not allow enough time, while the posted or hand-delivered one may. This conflict causes confusion and ambiguity. The second notice received may cancel out the first notice, the second notice is possibly short, and the bottom line is that the notice is just legally improper. Never serve a Notice to Pay Rent or Vacate by BOTH mail and posting on the premises or hand delivery. While it may seem logical that this will insure that the resident gets notice, the technicalities will render it invalid.

To Whom Must the Resident Pay Rent?

Typically, a resident pays rent to the same person at the same address throughout the tenancy. The problem arises when this address changes. How is the resident notified that the payment address has changed? Should the resident simply pay to whatever address is listed on the Notice to Pay Rent or Vacate? Due to the increasing numbers of out-of-state managers who are intent on managing their property from afar, situations will arise where the out-of-state manager decides to hire a property manager or designate someone his or her agent for the purposes of collecting delinquent rent. A new address on a Notice to Pay Rent or Vacate is not enough. The manager must notify the resident in writing of an address change or agent change, and often this is not done. Beware of the out-of-state manager who wishes that you “help” them with serving a notice or collecting rent. Proper authorization and direction by the manager is a must.

 

LOCKED OUT RESIDENT ACCESS PROCEDURES

If you have a policy whereby if a resident is locked out of the premises, he or she is to call a locksmith, you may not have to read any further. In this case, you have no involvement with the situation, and hopefully the locksmith will not have damaged the lock and/or changed out the lock. Hopefully as well, the resident does indeed call a real locksmith rather than simply break the lock to gain access. Many of our clients do have a policy of opening up a locked door for a resident and sometimes will charge the resident for this service. How the manager goes about giving access to a resident can have a serious effect on the manager’s liability.

The Scenario

It is 3 a.m., and your on-call maintenance tech or maybe you receive the dreaded phone call or knock on the door. The “resident” has misplaced his keys and is obviously intoxicated. You are quite familiar with this resident, having seen him at the pool, you have seen him drop off rent in the office, and he plays volleyball on Sundays, uses the exercise room and has even made maintenance requests. You simply grab the keys and allow him access. The problem is that he is not an actual resident, but has been an unauthorized occupant for quite some time. He has now decided; once you grant him access, to take his roommate’s valuables, leave, never to return again.

The Problem

It is quite obvious what the problem is in this case. You failed to see if this person was indeed the resident on the lease, and the ramifications could be severe. Each year we see this scenario unfold, and managers are faced with paying fairly large sums of money to the actual resident who was not home when you allowed the unauthorized person access. You may argue that it was not your fault that the unauthorized person took his roommate’s personal property, as after all they have been living together for quite some time, but the problem remains. You allowed an unauthorized occupant, not on the lease, access to the rental premises.

Creating a Policy

Your first step should be to create a written policy for your company regarding lock outs. All employees who engage in allowing a locked out resident access should be required to read this policy and sign a statement that they have read it and agree to abide by the policy. No exceptions should ever be made to the policy. Your next step will be to provide the lock out access rules or procedures to the resident and make this part of the lease, the Community Rules and Regulations, or a separate addendum to which the resident has clearly agreed.

Lock Out Access Procedure

In the event a resident is locked out, they need to follow certain procedures for you to even act upon this lock out. They should be required to provide you with 2 forms of government issued identification. This identification should then be brought to the office and compared with the copies of the identification you have in the resident’s file. Names should match up completely, and a visual examination of the picture ID you have in the file should match up with not only the ID the resident is showing you, but the resident himself. Once this match is established to the satisfaction of you or the bleary eyed maintenance tech who was just awakened, the identification provided by the locked out resident should be copied, notes made on the copy, and the copy of the ID placed in the file. If the resident cannot provide you with the required ID, the resident should not be given access. If the resident cannot provide you the required identification, there is no doubt that the resident will not be satisfied, and an altercation or argument could ensue. Keep your lock out policy handy in the event the resident is not able to satisfy your requirement, express regret, and tell him he must hire a locksmith.

But, We Know This Resident!

Most of the legal problems we deal with occur when the manager or an employee makes an exception to the rule. Every time an exception is made, the chances of a problem increase dramatically. If an exception is made once, it may be expected that an exception is made the next time. If you make an exception for one resident but not another, you run the risk of being accused of discrimination. People often look alike, especially when related to one another. Most recently, we dealt with a situation where the brother of a resident gained access due to looking similar to the actual resident. Had the maintenance tech carefully looked at the identification and made the comparison, the difference would have been evident, but this was not done and the manager paid the price.

The Inherent Problems With Lock Out Access

1. The person giving access will need to have both access to the keys to the unit and the resident’s file. Due to privacy issues, it is recommended that there is limited access to the resident’s file.

 

2. Some companies fail to keep a copy of the resident’s identification in the file. There is absolutely nothing illegal about keeping a copy of the resident‘s identification in the resident’s file. This is not a fair housing violation. We strongly urge you to keep a copy of the picture identification in the resident’s file.

 

3. Many managers do not have a written policy for the employee who will be engaged in granting access. This is simple. Write one up now.

 

4. Many managers have not provided the policy or rules to the resident regarding lock outs. Create your rules, and distribute them to all residents.

Charging the Resident For Giving Access

After reading this article, you may have decided to take the route of telling the resident that he must call a locksmith, but some of you may have decided that you will assist in lock outs and should be compensated if you grant access. We agree. The extra work involved and the increased liability on the manager justifies a reasonable charge to the resident. Some of our clients require this to be paid before the access is granted; others charge it as additional rent which must be paid with the normal rent at the next payment period. If you are going to charge the resident for anything, it must be clearly agreed to by all parties involved. Managers often create charges upon a whim and expect that they can force the resident to pay the charge. Clearly state the charge in your lease or whatever is incorporated in your lease, such as the community rules and regulations.