NO MORE NOTICE AFTER NOTICE OF NONRENEWAL

 

Once the manager has sent the resident a Notice of Non-Renewal, that resident’s file should be tagged for special identification The manager will want to avoid taking any action which would jeopardize his right to retake possession of the rental unit or to double rent in the case of a hold-over resident.

 

The following discussion has to be placed in the context of modern communications: distribution list emails, mass mailings, computer-generated statements. A manager is often sending documents without verifying the specific recipients.

 

The Superseding Agreement:

 

If the resident is unwilling or unable to move, he will be looking for any opportunity to extend his tenancy. Many residents will use an inappropriately sent letter or notice as evidence to bolster their position that there was an oral agreement. This correspondence superseded the Non-Renewal Notice and permitted him to renew his lease or to remain month-to-month. Even a complete fabrication can be convincing to a judge if there are documents of the manager that seem to support the fabrication. In fairness to the residents who operate in good faith, inconsistent documents of the manager can create enough confusion that the resident assumes he can stay.

 

Renewal Notice Sent in Error:

 

If the manager has sent the resident emails, letters or notices implying, suggesting or offering renewal, then the manager must immediately notify the resident of the error. I do mean “immediately”. I suggest that an email (with a delivery and read receipt if available in the email system) be sent to the resident. A follow-up letter or even the printed email should be immediately posted on the resident’s door and mailed to the resident via certified mail. The renewal information was sent in error and is withdrawn. The manager wants to notify the resident before the resident can seize the information as a renewal offer and accept it.

 

The focus is not the legal arguments with regard to contract formation. The important point is to avoid providing the resident with an opportunity to make these arguments in court.

 

Helpful Reminders:

 

After the manager has served the Non-Renewal Notice, the manager gives the resident additional non-renewal reminders or warnings at the manager’s own risk. While these reminders are sent under the pretext of helping the resident, they are usually sent for the benefit of the manager. Any contradictions or deviations from the original Non-Renewal Notice can result in voiding the original Non-Renewal Notice. The most common mistake is a contradictory vacating date or an incorrect calculation of the time remaining until the vacating date.

 

Seven Day Notices After the Non-renewal Notice:

 

Our firm generally advises against serving Seven Day Cure and Seven Day Termination Notices after a Non-Renewal Notice.

 

While the manager may still serve a Seven Day Notice of Noncompliance with Opportunity to Cure (a Seven Day Cure Notice), one has to question both the effectiveness of the notice and the wisdom of antagonizing a resident that has been non-renewed. Additionally, serving such a notice, when there are less than seven days until the vacating date, creates the confusion that we are trying to avoid. (Similarly, serving a Three Day notice that expires outside the vacating date is a bad idea). Serving a Seven Day Notice of Noncompliance Without Opportunity to Cure (a Seven Day Termination Notice) actually can worsen the manager’s ability to remove the resident. What would have been a straightforward holdover eviction becomes a complicated Seven Day termination eviction with all the attendant burden of proof problems that the manager must bear.

 

That being said, there are times when the health and safety of the staff or other residents requires a Seven Day Cure or Seven Day Termination Notice. This is a matter for the manager to discuss with his attorney.

 

Notices After the Vacate Date:

 

Serving a Three Day Notice, a Seven Day Cure Notice or a Seven Day Termination Notice to a holdover resident after the vacating date may be fatal to the non-renewal. A manager would only have the right to serve these notices if the tenancy was continuing. This means that the manager waived the non-renewal demand. Sending the resident a billing statement or account balance notice charging rent beyond the vacating date or other monthly services (pest control, valet waste) gives rise to the same argument that the tenancy is continuing. Accounting notices may be more easily explained and excused than the statutory notices. A court can easily reason that a manager should be more careful about the statutory notices.

 

Consult the Attorney:

As a final thought, it is always advisable for the manager to consult his attorney as soon as he discovers that he has mistakenly sent a notice, letter, or other communication to the resident that may jeopardize his Non-Renewal Notice.

 

 

NO CURE RESIDENT TERMINATIONS

Just about every manager will at one time have to deal with a resident’s noncompliance. The usual culprits are the unauthorized person or pet, failure to maintain the premises, noise and parties, among many other possible lease violations. Almost all resident noncompliances are of a curable nature, and the manager knows that they must first give the resident a Notice of Noncompliance With Opportunity to Cure. After service of this notice, usually the resident cures the noncompliance and life goes on. There are limited circumstances where the resident is NOT given an opportunity to cure a noncompliance, and the manager is able to go straight to the Seven Day Notice of Termination. It is imperative that the manager knows when and how to use this notice, as this notice is drastic. The manager is taking the unilateral step to terminate an important and valuable property use right of a resident.

The Law Regarding the Seven Day Notice of Termination

Florida law gives the manager the authority to terminate a tenancy in FS 83.56(2) (2) If the resident materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the manager may:
(a) If such noncompliance is of a nature that the resident should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the manager of a similar violation, deliver a written notice to the resident specifying the non-compliance and the manager's intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the resident should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the manager's or other residents' property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the manager may terminate the rental agreement, and the resident shall have 7 days from the date that the notice is delivered to vacate the premises…

When is a Noncompliance Not of a Curable Nature?

The examples Florida law gives us are destruction, damage, or misuse of the manager's or other residents' property by intentional act or a subsequent or continued unreasonable disturbance. The law also states that the manager is not limited to these specific items but does not elaborate any further. This creates a problem, since we are not sure whether a noncompliance which is not listed in the statute is to be considered of a curable nature or a non-curable nature.

Destruction, Damage, or Misuse of the Manager's or Other Residents' Property by Intentional Act

If a resident were to break out all the windows in the unit, intentionally set a fire on the premises or smash the windshield of another resident’s vehicle, it would be fairly clear that the manager could go straight to termination. In most situations, it is not so clear. Residents often have fights and end up breaking a window in the unit. They claim it was an accident. You now have to prove it was intentional. Were you there at the time? Probably not. The resident’s door is kicked in, and there is a fight on the premises. It looks like intentional damage, but the resident claims some unknown person came to the unit and kicked in the door. You inspect a unit and there are stains all over the carpet and writing on the walls. It doesn’t look like an accident, but will a judge evict someone for this, or expect you to take the damages out of the security deposit when the resident vacates? The resident has a fire in the unit resulting in severe smoke and water damage. They claim it was an accident. Can you prove otherwise?

Criminal Acts on the Premises

Most managers feel that if a resident commits a crime on the property, this is cause for immediate termination. These crimes may include, but are not limited to, a weapons offense, molestation, battery, sexual offense, domestic violence or a drug offense. It would seem clear that if the resident commits a crime, this is not a situation where the resident should be given the opportunity to cure. The big problem though is that the resident is considered innocent until proven guilty in a court of law. The same resident who got hauled off to jail last night for a serious crime is considered completely innocent in the eyes of the law and most likely will be out on bail in a short period of time. It is interesting that the statute does not mention the commission of a crime as a basis for immediate termination. However, the statute does indicate that the listed immediate termination items are not an exclusive list, so it may be possible in some circumstances to go straight to termination, even though the resident has not been and will not be convicted of any crime by the time you file the eviction.

The Drug and Crime Free Addendum

Many managers wonder why it is necessary to use a Drug and Crime Free Addendum. The Drug and Crime Free Addendum specifically states that in the event of a commission of a crime on the property, the tenancy may be immediately terminated. Here the resident is contractually agreeing to the termination of the tenancy without being given the opportunity to cure.

Falsification of Information on a Rental Application

Most applications and leases have or should have a clause dealing with the ability to terminate a resident if the resident falsifies information on the rental application. In most cases, if it was a material falsification, you can go straight to termination. Here again, we see a contractual agreement by the resident that in the event of falsification, immediate termination will be the consequence.

Continued Unreasonable Disturbances

The law allows for immediate termination in the event of “continued unreasonable disturbances” on the premises, which likely include constant fighting, police responses, multiple parties and other disturbance type activities. The first element is that they have to be continual, meaning they have to either be repeated on different occasions or non-stop. The second element states that they must be “unreasonable” disturbances. This is where most cases will fall apart. While the resident’s actions may be unreasonable to the surrounding residents, you must be able to convince a judge that they were indeed unreasonable. This will require heavy proof, neighboring residents testifying in court, and often testimony from a law enforcement officer. The judge may feel that the resident should have been given an opportunity to cure the problem rather than the immediate resort to a termination notice.

When Should You Decide to Serve a Seven Day Notice of Termination?

In our opinion, you should NEVER make the decision to go straight to termination. Your attorney will want to be certain that there is a solid case established, and your attorney should not only make the decision for you but also prepare the wording for the notice. A solid case can be lost on the basis that the notice is worded improperly. Most managers have never been in court on a contested Seven Day Notice termination case and do not realize that it is far different than your typical nonpayment of rent case. As in any eviction, the prevailing party is entitled to an award of attorney fees and costs. Typically if you lose a Seven Day Notice termination case, and the resident has an attorney, you will be faced with paying a substantial amount of attorney fees to the resident’s attorney, and you will have a higher chance of being hit with a Fair Housing complaint in the event the person you unsuccessfully attempted to evict is of a protected class.

 

MOVE IN INSPECTION PROCEDURES

One of the biggest mistakes a manager makes often occurs at the time the resident moves into the unit, and this mistake has major ramifications when the resident moves out. The condition of a rental unit must be documented when a resident moves in. This is crucial, as when the resident moves out and there are damages found in the unit, the manager needs to prove that the damages were not pre-existing and were indeed caused by the resident. Residents routinely say, “It was like that when I moved in”, and often, “I left it better than when I moved in”. Every manager has heard these comments made by the resident. When the resident makes these allegations, the manager must be able to prove that the damages did not exist at the time the resident moved in to prevail. How does the manager do this? A really thorough manager will have taken pictures and maybe even a video tape of the unit prior to or at the time of move in. While this may seem excessive to some managers, it is indeed the best approach, but unfortunately, we all know this is only done by a small percentage of managers. The usual method of documenting the move in condition is the Move In Inspection Form or Condition Report, and for this article we will call it the Condition Report. A thorough manager will have a detailed Condition Report which lists just about anything inside and outside of the unit that the resident could be responsible for or potentially damage. Now here is the big question: who completes the Condition Report? The manager or the resident?

The Resident Completes the Condition Report?

Probably 50% of all managers, especially those who manage multifamily housing units, give the resident the Condition Report and ask them to take the report, write down anything that is wrong with the unit, and get the report back to the manager. The manager then tells the resident that if they don’t get the Condition Report back to the manager, it will be assumed that there is no pre-existing damage to the unit. Sounds reasonable enough right? Wrong. It is not only the lazy way to get the unit inspected, but it can have grave legal consequences.

What Will the Typical Resident Do With the Condition Report?

1. The Picky Resident Some residents will take the condition report and go over the unit with a fine tooth comb, marking down every possible little thing wrong with the unit. When you receive it back, you would think the unit was in terrible condition, and your receipt of the Condition Report from the resident has put you on legal notice of deficiencies. All you wanted the resident to do was mark down any cosmetic issues, but NOW you have a report from the resident which you requested that makes your unit look awful.

 

2. The Wish List Resident Some units are not perfect, but are legally sufficient to rent out. The carpet may not be perfect, and there may be cosmetic issues in the unit. No big deal to the manager, but the “wish list” resident uses the Condition Report to not only tell you about the damages in great detail, but expects you to deal with everything on the list. The resident’s assumption is that you are giving them the Condition Report to fill out, so YOU will know what to fix or change. You have no intention whatsoever to replace the carpet or the countertop, but now the resident feels you should, and by filling out the Condition Report has made the request. Now the resident has an expectation that you are going to have the carpet cleaned again, replace the carpet or give them a new counter top.

 

3. The Sloppy Resident Possibly the carpet has a couple small stains, the walls have a few scuff marks, and there is a chip in the countertop and some deep knife grooves when the last resident used the counter top to chop vegetables with his Ginsu Knives. This is how the “sloppy resident” writes it up on the Condition Report. “Carpeting Stained”, “Marks on walls”, “Chipped Countertops” “Damaged Countertops”. This sounds reasonable to the resident and is in fact true. Now, let us suppose when this resident moves out that there are severely stained carpets, the walls have been marked up so badly that they must be repainted, and that the resident has completely destroyed the countertops. You want to charge the resident for the damage. The manager then goes ahead and charges the resident on the Notice of Intention to Impose Claim on Security Deposit. The departed resident NOW responds back and says, “It was like that when I moved in! Just look at my Condition Report! I told you about these problems a year ago!” The manager is dumbfounded, because while it was true that there was some damage to the carpets, walls and the countertop when the resident moved in, it certainly wasn’t THAT bad. The resident takes the manager to court, the resident shows the judge the Condition Report, and the manager LOSES.

 

4. The Forgetful Resident The resident is in a hurry to move in and the last thing on his mind is to complete a Condition Report. He throws it into the kitchen drawer and it sits there for the next year. The manager never receives the Condition Report. Now the resident moves out, there are damages, and the manager has absolutely no Condition Report to form the baseline as to the condition of the unit. The manager charges the resident for damages, the resident objects, disputing the charges, and maybe the resident claims he did indeed fill out the condition report and get it back to the manager by giving it to your leasing agent who was fired 3 months ago. Worse yet, the dishonest resident finds the blank Condition Report in his kitchen drawer upon move out and decides to fill in the CURRENT damages that he caused during the tenancy, keeps a copy and claims he gave you the original 2 days after he moved in! This resident’s claim, “It was like that when I moved in,” will be hard to beat in court when you don’t have the Condition Report.

The Solution

As you can see by the examples above, giving the resident the Condition Report is just plain wrong, silly, lazy, and the list goes on and on. The manager should be the one who inspects the unit and fills out the Condition Report. You cannot give control over such an important aspect of property management to a person who is not skilled in or has no knowledge of inspecting a unit. The manager knows or should know how to do this properly and will go through the unit marking down preexisting cosmetic damages. Ideally, the inspection and Condition Report will be accomplished with the resident present, but if not, it will be done before the resident moves into the unit along with the video taping of the unit and plenty of digital pictures. Many of our clients, especially the large multifamily ones, insist on allowing the resident to complete the Condition Report. We can assure you that when our client performs the move in inspection and completes the Condition Report, the chance of a security deposit dispute, or in the worse case scenario, losing a dispute in court, is diminished greatly. It is simply the right way to do YOUR job.

 

 

 

 

MOTION TO STAY WRIT OF POSSESSION DELAY TACTIC

A Motion to Stay a Writ of Possession is a document that a resident files with the court which has the result of “staying” or “stopping” an eviction action after a final judgment for the manager has already been entered. The Motion to Stay a Writ of Possession is one of the less commonly used legal techniques by residents to stall or stop an eviction action, but it does occur enough to warrant a better understanding of the process by a manager. It is probably the least understood and more baffling Motions, so we will start with a brief overview of the eviction process and see where the Motion fits in.

The Eviction Process in a Nutshell

For the purposes of this article, we will explain the eviction process in its most simplest of forms and use the Uncontested Residential Eviction Action as our example. In an uncontested eviction, the resident is served with the eviction summons and complaint either by the sheriff or a process server. The resident has 5 business days after being served to “fight” the case by filing an answer with the court. In an uncontested case, the resident does not file anything with the court, and the clerk of court enters a “default” against the resident. The file then goes to the judge who after a cursory review of the file will sign the “Final Judgment”. The Final Judgment states that the eviction is granted in favor of the manager, and the Final Judgment orders the clerk of court to “issue” a Writ of Possession, which is a document commanding the sheriff of the county to place the manager in possession of the premises. The sheriff serves it on the person or the door of the premises if the resident is not home and on the Writ of Possession it states the date and time that the sheriff will be back on the premises to remove the resident, this usually being 24 to 48 hours from the time the Writ of Possession is served. The removal of the resident is called the execution of the Writ of Possession. Theoretically, and in most cases, the sheriff comes back on the stated date and time, and the resident is removed from the premises. The catch is that the resident is able to file a motion with the court to derail this entire process at any time after the Final Judgment is signed by the judge and before the sheriff actually physically removes the resident from the premises. This Motion is called a Motion to Stay the Writ of Possession

What is a Motion to Stay the Writ of Possession?

Simply put, the Motion to Stay the Writ of Possession is a document filed with the court asking the judge to “stay” or “stop” the sheriff from executing the Writ of Possession and removing the resident. It can be a typed or handwritten document filed by the resident or the resident’s attorney if one is retained. The Motion to Stay the Writ of Possession may state that the resident paid the rent, the eviction was unfair, the resident needs more time, the case is defective or just about anything on earth that the resident can come up with to convince a judge that the eviction should be stopped or make the judge feel sorry for the resident. If the judge is swayed, the resident gets their day in court.

How Does the Motion to Stay the Writ of Possession Affect the Process?

Once this Motion is filed with the court, it is immediately sent to the judge, an emergency hold is put on the case, and the judge reviews the Motion and the reasons why the resident feels they are entitled to having the Writ of Possession stayed. A Motion to Stay a Writ of Possession is taken very seriously by the court system, and the judge will almost immediately review the Motion. If the judge upon reading the Motion feels that there is some real legal basis why the eviction should be “stayed”, the judge will grant the Motion without a hearing and set it for a later hearing, or will set an EMERGENCY hearing to have the manager and the resident present evidence as to whether or why the Writ of Possession should or should not be stayed. If the judge upon reading the Motion to Stay the Writ of Possession feels it is completely without merit, the judge will enter an Order denying the motion, and the eviction continues on.

The Judge Grants the Motion to Stay the Writ of Possession – Now What?

If the judge grants the Motion to Stay the Writ of Possession, the judge enters an Order Staying the Writ of Possession and will set a hearing, which basically gives the resident a chance to present evidence as if the case were contested and a hearing were set in the beginning stages of the case. If the resident has failed to post the rent money into the court registry, it is doubtful that the resident will prevail, but if the resident can prove that possibly they paid the rent and it was mis-posted by the manager, or placed a large sum of money into the court registry, even if late, there always is a chance that the resident can win the action. Your attorney may file a Motion to Lift the Stay of Writ of Possession if the judge grants the residents Motion to Stay the Writ of Possession.

The Judge Denies the Motion to Stay the Writ of Possession – Now What?

If the judge denies the Motion to Stay the Writ of Possession, the case proceeds on without delay just as if nothing happened. If there is a hearing set, and at that hearing the manager prevails, the judicial assistant or judge will notify the sheriff’s department to execute the Writ of Possession. If your attorney has filed a Motion to Lift the Stay of the Writ of Possession, and the case is heard and decided in the manager’s favor again, the judicial assistant or judge will notify the sheriff’s department to execute the Writ of Possession.

Sounds Confusing Doesn’t it? Is it All That Bad?

The Motion to Stay the Writ of Possession is a bit confusing, as the manager thinks they have won the case completely, only to be thrown this curveball at the end of the process. Will the case be delayed? Often, but usually by only a few days if the judge grants a hearing to the resident. In the vast majority of cases when the resident files a Motion to Stay the Writ of Possession, the judge reads it and denies it right then and there, and not a moment is lost and no hearing occurs. The worst case scenario is that the judge will grant the Motion to Stay the Writ of Possession, a hearing will be set, and the judge will feel your case is defective or there is a good legal basis why the resident should not be evicted. 

Is there Anything That Can Be Done to Prevent the Resident From Filing a Motion to Stay a Writ of Possession?

Absolutely nothing. A manager’s best defense though is to make sure the eviction is filed properly, the notice was done with care, the manager did not take any rent during the eviction action, and the manager’s records are clear and concise.

MOTION TO DETERMINE RENT DELAY TACTIC

Your attorney filed an eviction on a resident that clearly is two month’s delinquent. There is no disputing the amount and no problems with the premises; the resident just has no money and told you he could not pay the rent. You think it is a slam dunk eviction when out of the blue; your attorney notifies you that the resident has filed a “Motion to Determine Rent”. On top of that, the resident has not posted one dime into the Court Registry and a court hearing is set for next week. How could this be? Doesn’t the resident have to post the rent money into the Court Registry? The Motion to Determine Rent is one of the most annoying time delay tactics a resident can successfully use against a manager and its use is on the rise.

How Can a Resident Defend an Eviction?

Residents have a number of remedies available to them when defending an eviction action. Some but certainly not all include actions whereby the resident can file an Answer with the court, which is basically a statement by the resident of reasons why he or she should not have to leave the premises. The resident can file a Motion to Dismiss whereby the resident tries to say that there is some defect in your paperwork or reason why the case should just be completely dismissed and thrown out of court, or the resident can file what is called a Motion to Determine Rent. This article will examine the Motion to Determine Rent in depth, so you may have a better understanding of how it affects the eviction process.

WHAT IS A “MOTION TO DETERMINE RENT?”

Background

When you file an eviction action for non-payment of rent, you must attach a 3 Day Notice to the eviction complaint and allege in the eviction complaint how much is owed by the resident. This is required by law, as the resident needs to know for what amount he or she is being evicted. Usually this amount is the rent and late charges (if the lease considers late charges as additional rent), plus any other periodic payments due under the lease terms and amounts which are considered rent. Oftentimes the resident disputes this amount or feels that the eviction is unjust and files an “Answer” with the court. By law, the resident when filing an Answer with the court is required to place into the Court Registry the rent amount which is asked for by the manager in the Complaint. Some residents comply, other residents don’t, and often the eviction continues on to completion, regardless of the Answer that the resident filed with the court. In this case, the resident may not get his or her day in court. There is one way a resident can get heard in court WITHOUT filing an answer OR putting any money into the Court Registry. This is by filing a Motion to Determine Rent.

Legal Basis of the Motion

Florida law states that a resident who is contesting an eviction must file an Answer within 5 business days of being served with the eviction summons OR may file a Motion to Determine Rent asking the judge to decide how much rent is owed, and how much if any should be deposited into the Court Registry. This will frequently trigger a court hearing.

Requirements of a Motion to Determine Rent

According to law, a resident may file a Motion to Determine Rent if they are alleging that the rent asked for by the manager on the 3 Day Notice or the complaint is “in error”. It is possible that the manager has overstated the rent amount, the resident paid the rent, the resident is owed something by the manager, the resident has been given multiple 3 Day Notices with conflicting amounts, the resident was to receive a concession, or the premises are so deficient that the resident feels that the amount asked for should not be the amount that they should have to place in the Court Registry, or any other thing the resident can come up with to make it appear that they do not understand what the amount of rent truly should be or how much they should pay. By law, the resident is required to attach documentation to the Motion to Determine Rent showing some proof to the judge that the rent amount alleged in the complaint is in error.

The Problem

Most Motions to Determine Rent are legally insufficient, but they often end up triggering a court hearing nonetheless. The resident does not attach documentation to the Motion showing that the rent is “in error”. Often the Motion simply says, “I want the court to determine how much rent is owed”. Use of the motion can be an outrageous abuse of the system, and judges are acting improperly when they set these matters for hearing. The resident’s Motion to Determine Rent should often be “stricken” by the court as legally insufficient, but in many cases the hearing is set, and off to court we go.

The Result

Unfortunately, some judges will set a hearing on just about any Motion to Determine Rent, regardless of whether the resident has properly filed the Motion, and the courts will do this with or without documentation attached to the Motion. This results in a time wasting hearing in most cases. The resident and the manager must now appear in court, the judge will take some testimony, and then the judge will order the resident to place in the Court Registry the amount the judge feels is the amount of rent owed. Usually, this amount is exactly what the 3 day notice states and the amount that the manager asked for in the complaint plus any rent that may have accumulated during the time the eviction was filed and the time the parties are in court. The eviction case is not heard at this time. It is only a limited hearing to determine how much money the resident must place in the Court Registry.

When does the Court require the money to be posted into the Court Registry?--Sometimes the resident is required to place the money into the Court Registry by 5 PM that day, or sympathetic and often inexperienced judges will give the resident a week or more to deposit the money. Sounds outrageous? It is.

How does the resident even know about this Motion to Determine Rent? --Unfortunately many court clerks tell the resident that he can do this and go as far as to provide the resident with a fill in the blank “Motion to Determine Rent.” Attorneys may represent the resident and file such a motion, and many of the legal aid organizations provide the resident with a form Motion to Determine rent solely for the purposes of delaying the case.

Suppose the resident does not deposit the money into the Court Registry as ordered by the judge?--If the resident fails to comply with the judge’s order, the judge will sign a Final Judgment of Eviction and the case will proceed to completion with no further court hearing.

Suppose the resident deposits the money into the Court Registry as ordered?--The court will then set a trial, and a full fledged eviction trial will occur sometime when it is suitable for the judge. This could be in a few days or a few weeks depending on the judge’s schedule.

What can be done to minimize the occurrence of the Motion to Determine Rent?--While it is nearly impossible to prevent a resident from filing a Motion to Determine Rent, there are certain things which are done by a property manager that increase the risk that such a motion will be filed. The following will increase the Motion to Determine Rent risk:

 

1. Giving the resident a 3 Day Notice with excessive late charges.
    
2. Giving the resident conflicting 3 Day Notices.
    
3. Giving the resident a notice after the 3 Day Notice
    
4. Allowing a resident to make a repair and having a dispute about a reimbursement or a concession.
    
5. Giving a resident an open ended 3 Day Notice which says they owe a particular amount plus a certain amount per day causing the notice to be ambiguous.
    
6. Carrying over a balance for a long time and then putting this balance on the 3 Day Notice
    
7. Not maintaining the premises, causing the resident to feel they are entitled to a rent abatement
    
8. Making oral payment arrangements with the resident.

CONCLUSION

Unfortunately, we cannot prevent a resident from filing a Motion to Determine Rent, and the frequency of these motions is increasing. A clean 3 Day Notice stating the exact amount owed, breaking out any other charges and making it easy to look at the lease agreement and the notice to see a nice match will be very helpful and is advisable in all cases. An experienced attorney will emphasize to the judge that the amount the resident is to place in the Court Registry is the amount on the 3 Day Notice and any amount that may have accrued. If the resident is claiming that the property value is diminished due to a deficiency with the premises, it is our firm position that the resident should place all the money into the Court Registry and these matters can be sorted out at trial. This separates the scam resident from the legitimate resident and is the whole reason why Florida law requires that the rent money be deposited into the Court Registry in order for a resident to have a trial in court. Now… if only all the judges would follow the law.

FLORIDA STATUTES PERTAINING TO THE MOTION TO DETERMINE RENT

83.60 Defenses to action for rent or possession; procedure … (2) In an action by the manager for possession of a dwelling unit, if the resident interposes any defense other than payment, the resident shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the resident of such requirement in the summons. Failure of the resident to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the resident's defenses other than payment, and the manager is entitled to an immediate default judgment for removal of the resident with a writ of possession to issue without further notice or hearing thereon. In the event a motion to determine rent is filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing residents or residents receiving rent subsidies shall be required to deposit only that portion of the full rent for which the resident is responsible pursuant to federal, state, or local program in which they are participating.

 

MOLD ADDENDUM POWERS

Most managers are finally using some sort of Mold Addendum due to the problems related to mold and the press which mold has been getting as of late. The Mold Addendum often addresses the resident’s obligations to keep the premises mold free and the requirements on the resident in the event there is mold found on the premises. The problem with most mold addendums that are in use is that they really do not address what the manager can do with regard to the resident if mold is present on the premises, or if the manager needs the resident to vacate to rectify the mold problem. This problem can be solved simply by using a proper Mold Addendum or inserting some wording into the current addendum.

Educating the Resident

While we in no way wish to put ideas into a resident’s head that there may be mold on the premises, it is important to give the resident some information about the dangers of mold. Here is a sample clause which can be used. This can give the resident a basic understanding of mold and the potential dangers.

MOLD: Mold consists of naturally occurring microscopic organisms which reproduce by spores. Mold breaks down and feeds on organic matter in the environment. The mold spores spread through the air, and the combination of excessive moisture and organic matter allows for mold growth. Not all, but certain types and amounts of mold, can lead to adverse health effects and/or allergic reactions. Not all mold is readily visible, but when it is, can often be seen in the form of discoloration, ranging from white to orange and from green to brown and black, and often there is a musty odor present. Reducing moisture and proper housekeeping significantly reduces the chance of mold and mold growth

Mold and the Landlord/Tenant Act

Nowhere in the Landlord/Tenant Act is mold mentioned. Can a resident break a lease because of mold? Does the manager have to remove the mold for the resident? Can the resident withhold rent due to the mold? Suppose the resident’s actions or inactions cause the mold problem? Can we simply terminate the tenancy because of the mold? These are tough questions in an incredibly grey area.

The Resident’s Responsibilities

In a perfect word, the resident would do everything they could to live in a mold free environment, but we cannot force a resident to keep the air conditioning on or be there 24 hours a day to observe the resident’s behavior or actions in the unit. The most we can do is advise a resident on ways to live in manner that is not conducive to mold growth. A well drafted Mold Addendum will detail the resident’s responsibilities to reduce the amount of moisture present in the unit, and to compel the resident to report both mold and situations which could create a mold situation. The resident’s obligation to maintain the premises according to Florida law are as follows:

83.52 Resident's obligation to maintain dwelling unit. The resident at all times during the tenancy shall:

1. Comply with all obligations imposed upon residents by applicable provisions of building, housing, and health codes.
    
2. Keep that part of the premises which he occupies and uses clean and sanitary.
    
3. Remove from his dwelling unit all garbage in a clean and sanitary manner.
    
4. Keep all plumbing fixtures in the dwelling unit or used by the resident clean and sanitary and in repair.
    
5. Use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances, including elevators.
    
6. Not destroy, deface, damage, impair, or remove any part of the premises or property therein belonging to the manager nor permit any person to do so…

As you can see, an obligation on the resident to keep the premises free from mold is not specifically mentioned in the statute. Section 2 states that the resident shall keep the premises in a clean and sanitary condition. If the resident lives in a manner that causes mold growth, could this be considered a violation of this section? Section 5 states that the resident shall use the air conditioning in a reasonable manner. Does this mean they must run it all the time or maintain a particular temperature? We don’t know.

The Manager’s Responsibilities

According to Florida law, the manager is required to comply with all applicable building, housing and health codes. On top of this, there is an implied “warranty of habitability”. If a unit has a mold problem, and the mold was not caused by the resident in any way, the manager would clearly be responsible, and if the unit were inspected, the unit would probably fail inspection, thus putting the manager in violation of FS 83.51.

83.51 Manager's obligation to maintain premises. (1) The manager at all times during the tenancy shall:

1. Comply with the requirements of applicable building, housing, and health codes; or

 

2. Where there are no applicable building, housing or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition…

Mold is Discovered, Now What?

Once mold is discovered in a unit the manager needs to take swift action to determine the existence of the mold, the dangers, if any, and the source of the problem. Whether this requires a professional mold remediatior or inspector will depend on the situation. If in fact mold is discovered and it is determined that the resident must removed from the premises, this is where the fun begins.

The Big Problem

Here is the scenario. The resident stops paying rent and complains to you about mold, claiming that he is getting sick, has breathing problems, is missing work and his doctor is telling him that mold is the cause. You go check out the unit, and sure enough, in one of the closets where the back of the closet is against an outside wall, there is a strong musty odor. The resident is demanding that you fix the problem. You have a mold inspector and remediator come in to inspect, and it is recommended that a large portion of the wall be removed and the outside of the building repaired and sealed with a moisture barrier. The mold remediator states that there is no safe way that the job can be done with the resident living in the unit, that remediation will require establishing a containment area and decontaminating the entire unit, and that the estimated time for the repair is 3 weeks. Now for the real problem. The resident is refusing to vacate and refusing to pay the rent. Has the resident violated the law? Maybe not. Is this mold problem the fault of the resident? No. Is the manager required to provide a habitable place to live, complying with all building and health codes? Yes. Is the manager required to get rid of the mold problem and fix the unit? Yes. Florida statutes would require the manager to make the unit habitable and presumably free from a mold problem, but the resident is refusing to vacate the premises and is now withholding rent as potentially allowed by law. What can we do?

The Solution

Proper wording in a Mold Addendum could be the answer to our dilemma. Since mold can be a serious problem requiring the manager to terminate the tenancy, we recommend that the parties agree by way of the Mold Addendum that the tenancy can be terminated in the event of a mold situation. Many leases have clauses which allow termination in the event of damage to or destruction of the premises. The Mold Addendum clause deals exclusively and specifically with termination due to mold. Can the resident terminate if there is mold? While it is not mentioned in our sample clause, the answer is yes. If a manager receives notice of mold from the resident and the manager does not rectify the situation within 7 days, the resident by law can most likely terminate the tenancy or withhold rent. Our recommendation is to use a Mold Addendum which includes the sample clause below, and ALWAYS get your attorney involved early on in any mold situation.

SAMPLE MOLD ADDENDUM CLAUSE

TERMINATION OF TENANCY: Owner or agent reserves the right to terminate the tenancy, and RESIDENT(S) agree to vacate the premises in the event owner or agent in its sole judgment feels that either there is mold or mildew present in the dwelling unit which may pose a safety or health hazard to RESIDENT(S) or other persons, and/or RESIDENT(S) actions or inactions are causing a condition which is conducive to mold growth.

 

 

MODIFYING THE RENT AMOUNT

Unfortunately these days’ managers often have to lower rent rather than raise rent each year. With the huge surplus of vacant homes and condos in the rental market at the moment, residents are balking at paying the same amount of rent at renewal time, and are even asking the manager to lower the rent during the tenancy, knowing they can find cheaper accommodations. Out of desperation, many managers are agreeing to lower the rent rather than have a vacant unit. Usually the resident initiates contact with the owner during the lease or at renewal time to discuss the rental rate, and the usual threat is made that if the rent is not lowered, the resident will be moving.

Owner Issues

If the resident is dealing directly with the property owner or agent in an apartment setting, the negotiations can be done directly with the resident. It is crucial that the manager does not imply a particular rent amount will be owed unless this has been decided. Any promise or implication that the rent will be lowered will be latched onto by the resident and relied upon. It must be made clear that no deal will be consummated unless it is done in writing and signed by all the parties involved.

Mid-Lease Modifications

A mid-lease modification can be handled by a simple addendum stating the new rent amount and signed by all parties. This may present a good opportunity for the property manager to have the resident sign a brand new lease, thus extending the tenancy, but some residents may wish only to stay until the natural expiration of the lease, and an addendum will be the appropriate vehicle. If the resident also pays other amounts in addition to the rent, it is imperative that this addendum wording does not end up inadvertently reducing the rent further than what the manager expected. Often there is “base” rent plus other items making up the “entire” rent. The resident may currently be paying a rent amount of $700 plus $50 for the garage and $25 for cable. In the resident’s mind, rent is $775, because that is what he pays each month. In your mind, “rent” is the base amount of $700 plus the other charges, and you are lowering it to $650. Putting a clause in an addendum that states that the parties simply agree that the rent shall be lowered to $650 will cause an ambiguity. Is the total rent now $650 as the resident may assert, or is it now $725 as you will assert? Any ambiguity in the agreement is construed against the party creating the document (most often the manager), so the ambiguity will almost always work in the resident’s favor; this presents a clear danger to the manager.

An Early Payment Option

As an incentive for the resident to pay the now reduced rent, it is possibly to place a clause in your addendum stating that the rent shall be $X amount if paid by a certain date and $Y amount if paid by a later date. Many managers are already familiar with early payment discounts, but this is structured a bit differently and has 2 distinct rent amounts. Problems occur when the resident pays the lower amount at the later date; this can cause disputes, so care and thought should go into making such an addendum.

New Lease Rent Modifications

The parties may agree to a lower rent amount in a new lease. We recommend that any negotiations be memorialized in writing prior to lease signing and that all parties execute the new lease before the beginning date. In lease execution, care should be taken to have all residents sign the new lease, never allowing just one resident to sign if other residents are listed on the lease.

What About Prepaid Last Month’s Rent?

The resident may have paid a last month’s rent upon moving into the unit. How is this affected by the rent modification? The resident of course will want to be refunded any amount to the extent that the last month’s rent exceeds the new rent amount. When will this occur? Now? At the beginning of the last month? We recommend that this refund is done at the time of vacating the premises, and this can be addressed in the addendum to the lease. Another option is that the excess in the last month’s rent shall be added to the security deposit, which will give the manager a larger sum to use in the event of damages or other money owed. Anything can be done; it is all in the addendum wording.

Fair Housing Considerations

In the multi-family setting, if you reduce a resident’s rent, word will spread like wild fire throughout the apartment community. You should expect other residents to come into your office asking for a rent reduction. Is everyone entitled to a rent reduction? Should you only reduce rent where you know a resident has lost her job? It is imperative that a written policy is in place before you ever begin negotiating rent with a current resident. It is bad enough when new residents are getting concessions and lower rents, and now you have to deal with the irate resident who has been with you for 5 years. Failure to give a rent reduction to someone of a protected class could result in a discrimination complaint that you may have difficulty overcoming.

MISTAKES AND INCIDENTS

There will invariably come a time when a manager simply makes an honest mistake. How the manager handles the mistake can have a great effect on the outcome and resolution of the matter. The resident is the consumer, and consumers often feel that they are entitled to some sort of compensation from the manager. Whether they truly are entitled to compensation is really not the issue; the bottom line is that they feel that they are. Making the wrong statements or taking the wrong actions can turn a small problem into a tremendous time consuming and expensive proposition. This article will examine some of the common mistakes made by managers and some suggested courses of action.

You Thought The Resident Vacated

This is a common mistake. The lease is up or almost up, the manager checks the unit, the electricity is off, and all appearances seem to indicate that the resident is indeed gone. There are a few items left behind, but the manager does not feel they are of any value, and the manager throws the items away and changes the locks. The resident returns furious and is demanding the items back, and then compensation when he realizes they are gone.

Recommendation :Keep the resident as calm as possible, make him understand that you were under the impression that he had vacated, and give him an “Incident Report” to fill out. Once this is filled out and firmly in your control, you can decide to come to an agreement with the resident for compensation. It is crucial that you do not act excited or scared, as the goal is to have the resident tell the truth and to accept a fair settlement. Once you agree on an amount, we recommend strongly that you have the resident sign a release if money exchanges hands.

You Served a Three Day Notice But the Resident Had Already Paid the Rent

This seemingly innocent mistake can enrage a resident and potentially have legal ramifications, especially if you served the notice in a fashion where neighbors could see the notice. The resident is embarrassed and enraged.

Recommendation: Keep the resident as calm as possible, downplay the notice, and tell her it simply was a mistake. Profuse apology is not necessary. Use the opportunity to change the subject, and ask her if there are any maintenance requests or problems.

You Accidentally Filed An Eviction But the Resident Had Paid the Rent

You would be amazed how often this occurs. An accounting error results in an eviction being accidentally filed, or you forget to cancel the eviction with your attorney. The resident will most assuredly call you or storm into the office with eviction papers in hand.

Recommendation: Call your attorney immediately, have him or her prepare and file a Voluntary Dismissal immediately, and give a copy to the resident. Your attorney can do this immediately while the resident is fuming in your office. If the resident asks whether this will show up on the credit record, you may have to admit that the eviction filing will be a matter of public record, and you will be happy to provide a letter that the resident can use showing that the eviction was simply filed in error. If you don’t immediately dismiss the case, or the resident gets an attorney, you could end up paying hundreds if not thousands of dollars in attorney’s fees. Take action fast, and again downplay the situation

You Engaged In Some Sort of Self-Help Personal Property Removal

Your resident has an old couch in the yard, a rusty bike and a car transmission on the front lawn. Code enforcement is citing the property, and you send your maintenance staff to remove the items and take them to the trash heap. The resident is furious at you and now wants you to pay for his valuable items.

Recommendation: Keep the resident calm, do not let the resident know you may have committed a crime, or at the bare minimum, civil theft, have the resident fill out an “Incident Report”, and try to settle. As with any settlement, use a General Release. You do not want to involve police or lawyers in this matter.

You Told the Resident “You Should Have Purchased “Renters Insurance”

Many casualties can occur in a rental unit that are through no fault of the resident. A few examples are pipe breaks, water heater breaks, water intrusion due to a roof leak, and power surges due to a faulty wire. Are these the resident’s responsibility or the owner’s responsibility? No one is sure. Many managers rely on the clause in the lease that states that the manager is not responsible for the resident’s personal property. Will this clause be upheld in court? Maybe not, if a judge believes the resident receives an implied warranty of habitability, or if the disclaimer clause is overreaching. One of the worst things a manager can say when the resident asks for reimbursement for a damaged item is, “You should have renter’s insurance.” This infuriates the resident, and instead of the resident wanting $500.00, the resident goes to an attorney, and the amount now goes up to $5000.00.

Recommendation: The next time casualty occurs to a resident’s personal property, get them to fill out an “Incident Report” immediately, and DO NOT immediately tell them that you are not going to pay for the damage. You may later refuse to pay or you may settle, but in the meantime, you want the resident to memorialize the amount in writing to avoid future problems.

The “Incident Report”

Below is the Incident Report we recommend you use.  

INCIDENT REPORT

TO BE FILLED OUT BY RESIDENT

 

Resident Name _____________________________________

Apartment number ________________ Date: _______/_______/______

Date of incident____/____/_____

_____PERSONAL PROPERTY DAMAGE OR LOSS

_____APARTMENT DAMAGE

_____VEHICLE DAMAGE

_____INJURY TO PERSON(S)

Detailed description of event, loss etc: BR>

________________________________________________________

_________________________________________________________

_________________________________________________________

_________________________________________________________

_________________________________________________________

__________________________________________________________

__________________________________________________________

Cost estimate of damage/loss $________________

Witnesses to damage/loss:

Name_____________________ Phone_____________________

Name: ________________________ Phone_____________________

I hereby swear that the statement I have made regarding the aforementioned incident is true.

______________________________
SIGNATURE OF RESIDENT

DATE_________________________

 

 

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.