POWERS AND LIMITATIONS OF POLICE REPORTS

One type of eviction seems to generate the most confusion among property managers. Of course, I am referring to eviction for lease noncompliances other than nonpayment of rent. Why you ask? Evictions for nonpayment of rent are generally not complicated, because whether rent has been paid or not can usually be established fairly easily. Moreover, when the resident claims payment of a disputed amount, the resident has the burden of proof in court. On the other hand, attempting to evict a resident for criminal conduct or noise and disturbance related conduct can be very difficult. The reason these cases cause difficulty even for the most seasoned property manager is that judges require solid proof of bad activity on the part of the resident since rent was last accepted, and the burden of proof in this type of eviction case is on the manager. If you file your eviction case based on the resident’s conduct without strong, rock solid proof, then you risk losing your case. The repercussions of losing your case are enormous. First, the problem resident is allowed to remain on the premises, and often will continue to cause the same types of problems that led to the eviction action; neighboring residents will not be happy. Adding insult to injury, you may be held responsible for the resident’s legal fees and costs, an amount which could be quite substantial! Your Regional Manager will be none too pleased with that lousy outcome to your eviction case. A good attorney would counsel his or her client property manager to refrain from filing eviction lawsuits without the necessary proof. One source of information that is often needed to prove these kinds of cases are police reports. This article will serve as a guide to help the diligent property manager utilize police reports to help prove their lease noncompliance eviction actions. We will also point out the many myths and misconceptions that property managers have regarding police reports.

Police Reports are Inadmissible in Court

Jay is the community manager of a mid-sized apartment community. Over the past few months there has been a rash of burglaries. From the start, Jay had suspected Terrence and Lawrence to be the guilty parties, the residents in Apartment 2-B, as these issues began shortly after these residents moved in. Jay called his attorney and asked if he could evict based on the circumstantial evidence. Jay’s attorney told him that there was not nearly enough proof to cause a judge to approve an eviction of Terrence and Lawrence. Jay was disappointed, but was determined to remedy the burglary problem plaguing his community. Jay extended the hours that his courtesy officer was employed, and sure enough, one night the courtesy officer noticed Lawrence and Terrence kneeling in front of another resident’s window. The courtesy officer alertly called the local police who arrived on the scene. The police then caught the residents in the act of committing a burglary. The next day Jay obtained the report of the courtesy officer. Three days later Jay received his copy of the police report. Among the details in the police report was a notation that the resident was arrested, and the officer signed the report. An eviction was commenced, and Jay was unable to arrange for the courtesy officer or police officer to attend the hearing. Jay is stunned to learn that judge will not even look at the reports of either the courtesy officer or police officer, because they are “hearsay” and therefore inadmissible in court!

Explanation of “hearsay”

Hearsay is defined as an out of court oral or written statement offered to prove the truth of the matter being asserted. Many property managers believe that hearsay simply means that a person told you something, and you are prevented from admitting that statement into evidence at a court hearing. That is true to some extent, unless that person is in court with you. The reason is simple. If the witness cannot be called to the stand and cross-examined by the opposing party, then the statement is inadmissible. It would be unfair if you did not have the ability to cross-examine witnesses. However, there are many other types of evidence that property managers wrongly believe can be admitted in to evidence. For example, you cannot prove that a resident vandalized a unit by showing bills for the repairs to the judge, unless the vendor showed up in court with you and is a witness who could be cross-examined. The same applies to affidavits, whether they are notarized or not, estimates, and signed written witness statements, no matter how many. Whether it is 3 witness statements or 30, it is still hearsay, unless those residents or witnesses who authored the statements show up in court to testify. Likewise, if you have a police report in your possession which indicated the bad conduct on the part your resident, you are not getting that admitted into evidence, unless the officer who authored the report testifies in the court proceeding. It should be noted that the Florida law permits exceptions to the “hearsay” rule, including statements for the purpose of medical diagnosis and treatment, statement of a child abuse victim 11 years of age or less, and business records made at or near the time of the event, by a person with knowledge, kept in the course of normal business activity, provided that it was a regular practice of the business to make such a record. Police reports are not an exception to the “hearsay” rule in Florida. It should also be noted that in cases involving juvenile defendants, officers may be prohibited from testifying, which severely diminishes the value of the police report. Also, if an arrest is made by an undercover officer, typical in drug raids, the arresting officer’s name may be blacked out on the report, and you would not be able to have the officer testify in court. They might only testify in a criminal proceeding, not an eviction action, due to the confidential and dangerous nature of their job.

Police Reports Can and Will Help You Determine if Your Case is Strong.

It is essential that you are not surprised at your eviction hearing as to the facts of your case. A clear and detailed police report will help you determine if indeed the lease was violated. It should give you the relevant facts upon which you are basing your eviction. There should be dates and times and a narrative describing the improper conduct. If you believe that your resident committed a crime on the property, the police report better support that. For example, you may see an arrest take place right on the grounds of your apartment community. Does that mean that a crime took place on apartment community grounds? Of course not! Maybe there was an outstanding warrant, or the crime was committed 50 miles away. Many property managers locate the “Booking” report which is available online in many counties. These reports usually only contain the names, dates and reason for the arrest. They almost never tell you where the crime took place and often no written narrative or details are provided. If you request a police report from your local law enforcement agency, and they refer you to the “booking” report, tell them you need a police report with a full narrative, or else you will be unable to evict the problem resident. In most cases law enforcement will be sympathetic and will help you obtain the full police report.

Police Reports and Noise

Jane, against the advice of her attorney, decides to file an eviction based on noise disturbances. She has lined up two residents who have agreed to testify in court. Jane’s attorney warned her that residents rarely show up in court to testify against another resident at an eviction hearing. Guess what? The resident witnesses failed to appear at the hearing, and Jane’s eviction request was denied by the judge. Had Jane counseled her residents to call the police, she may have obtained a police report which verified the disturbance. Jane could have later issued a subpoena to the officer requiring his attendance at the hearing. Better yet, maybe the officer would have issued a noise citation to the problem resident. An effective property manager stresses to residents complaining of noise or disturbances that it is imperative they call the police.

Police Reports and Drugs

Miriam is the manager of a large apartment community. Last month, as she was walking into her office, she smelled pot. As she continued walking she saw a man in the breezeway smoking what appeared to be cannabis. Miriam would like to evict. Can she? The answer is no. The above scenario takes place all the time; Miriam should have contacted law enforcement. In this type of situation, the police will confiscate the suspected drug and will test it. You are not going to evict anybody for illegal drug use or possession unless the police confiscate the drug and obtain a positive field test, information that can be verified in the subsequent police report.

THE POWER OF ATTORNEY

One situation which often causes a leasing office to come to a grinding halt occurs when a prospective resident fails to show up to sign the lease, and instead, a person who is not listed on the lease or the application shows up and announces that he has a power of attorney and will sign the lease. At that point, the leasing agent may call the property manager, who in turn may call the regional manager, and still there may be no consensus as to what the proper course of action should be. Issues involving the power of attorney, (hereinafter referred to as a “POA”) crop up during a resident’s tenancy and even after the term of the lease has expired. Therefore, it is important for property managers to have a basic understanding as to what a POA document is, and how to deal effectively in regard to this area of the law with past, present and future residents along with third parties. This article will help you obtain a basic understanding of the POA process. However, as with other legal issues which property managers must navigate through on a daily basis, it is important that you contact your attorney if there is any doubt on your part as to what you should be doing. Make sure that your attorney is accessible, as POA related issues frequently pop up unexpectedly and require quick direction from your attorney.

What Does the Legal Term “Power of Attorney” Mean?

A POA is a legal instrument authorized by law under which one person or entity grants authority to an entity or one or more individuals to make decisions and take actions on the grantor’s behalf. The authority that is granted will be contained in the body of the POA. The authority can encompass a wide variety of transactions, known as a General POA, or can be limited to just one use or purpose, known as a Limited POA. The person granting the authority is referred to as the “principal”. The individual who is receiving the authority for the conduct or transaction is called the “attorney in fact”. In some circumstances a financial institution may be the “attorney in fact”. Do not be fooled by this fancy name; if somebody tells you he is an “attorney in fact”, that in no way means he is a licensed attorney authorized to practice law. The attorney in fact is considered a fiduciary and is obligated to act responsibly, due to the “trust” bestowed upon him by the principal. The party with whom the attorney in fact conducts a transaction is known as the “third party”. That is the role that the property manager or management has in these kinds of situations.

Florida Statute 709.08 Durable Power of Attorney

Tim, the property manager, made an appointment to meet with three prospective residents, Lucy, Cindy and Dwayne. Lucy and Cindy appear at Tim’s office, but Dwayne is nowhere to be found. Instead, Pablo subsequently arrives at the office and tells Tim that Dwayne gave him a POA. Tim asks Pablo where Dwayne is. Pablo tells Tim that he had invited Dwayne to Pablo’s 18th birthday party last week. While at the party, Dwayne decided to give Pablo and Pablo’s brother, Tommy, a Durable POA, authorizing them to handle any real estate transactions for Dwayne. Pablo displays the Durable POA document to Tim, and it lists Pablo and Tommy as attorneys in fact. Tim is wondering whether Pablo, at just 18 years of age, is old enough to take part in this process. In fact he is suspicious that the POA arrangement exists in the first place. Tim is also perplexed because there are two people who were given POA rights by Dwayne. Finally, Tim has never heard the term “Durable” used in conjunction with the POA process, and so this is further adding to his confusion. Florida Statute 709.08 sets forth the law regarding Durable POA documents in Florida drafted after October 1, 1995. This statute authorizes the attorney in fact to handle real estate transactions. In fact, it authorizes the attorney in fact to sell the house of the principal! Section 709.08 (1) states that a durable power of attorney is a written power by which a principal designates another as the principal’s attorney in fact. The section further adds that with the correct wording, the Durable POA can survive the subsequent incapacity on the part of the principal.

Are the Property Manager’s Concerns Addressed by the Statute?

Tim‘s concern regarding Pablo’s age is addressed by Section 709.08(2) which sets 18 as the minimum age to serve as an attorney in fact. Since Pablo is 18, he is old enough to be to be an attorney in fact. It turns out that Tim was right to have concern over there being two attorneys in fact. Section 709.08 (9) (a) requires that both attorneys in fact concur with respect to any exercise of the Durable POA unless the Durable POA document provides otherwise. Therefore, Tommy would need to sign the lease along with Pablo in order to bind Dwayne to the contractual terms of the lease. As mentioned, Tim is clearly skeptical that Pablo is the attorney in fact. The statute authorizes him to request that the attorney in fact sign a notarized affidavit attesting to (but not limited to) the following: that he is indeed the attorney in fact named in the Durable POA executed by the principal, the location of where the principal is domiciled, that the Durable POA is currently exercisable by the attorney in fact, and to the best of the attorney in fact’s knowledge, that the principal is not deceased, and that there has been no revocation of the POA by the principal or any outside judicial authority. If the above affidavit is provided to Tim, and both Pablo and Tommy are willing to sign the lease on behalf of Dwayne, then Tim better think twice before he refuses to allow the attorneys in fact to assert their powers. Section 709.08 (11) states that the unreasonable refusal of a third party to allow an attorney in fact to act pursuant to the power could subject the third party to liability for attorney’s fees and costs if the third party is sued and loses in court. That dollar amount could be quiet substantial. It is best to call your attorney if there is any doubt in how you should proceed before refusing to allow the attorney in fact to act. As you know, litigation can be very costly! You should also be aware that Florida recognizes the deployment-contingent POA. Section 709.11 of the Florida Statutes requires a property manager to accept a valid power of attorney that is signed in advance by the principal which takes effect once the principal is deployed by the military.

Common Mistake Scenario #1 (Improperly signed lease)

Marta, the property manager, is under the belief that she is leasing a one bedroom apartment to Chester Turnkey. Chester did not sign the lease. Robert Jones executed the lease on behalf of Chester instead. It turns out Robert was given a Durable POA by Chester. Robert showed the paperwork to Marta, and she sincerely believed the POA was valid. Marta handed the lease to Robert, who “signed” the lease by simply writing Chester’s name. Big mistake! The written lease was executed incorrectly. If Chester did move into the apartment, then there may be other legal grounds to evict him. However, if there is some unknown third party that moved into the unit other than Chester, there is no way Chester would be held responsible for the lease, and a more complicated legal procedure than an eviction may be required. Life would have been a whole lot easier for Marta had she made sure that Robert signed the lease properly as displayed below: The principal’s name (Chester Turnkey) By__________ Robert Jones Attorney-in-fact

Common Mistake Scenario #2 (Third party access)

It is very common for a property manager to receive paperwork from a resident, who for one reason or another, is located out of town. The resident will grant a POA to a friend to help manage his personal affairs. Why do you need to be careful in this type of situation? Massive liability for the property manager and/or Owner can follow if you allow the attorney in fact into the resident’s unit without proper documentation. A good property manager will read the POA that is presented to her with caution, and if need be, check with her attorney. It is very easy for the property manager who is in a hurry to make errors. For example, the POA form is often a pre-printed form which lists a number of different potential powers to be checked off. If the specific power governing disposition of personal property is not checked off, and you let the attorney in fact into the unit, you can be sure that the resident will sue you if anything real or imaginary is missing!

 

POST THREE DAY NOTICE COMMUNICATIONS

A common practice among managers is to serve the Three-Day Notice, and if no payment has been made, serve the resident with an additional notice or letter to induce payment. This notice or letter is usually entitled “Final Warning”, “Eviction Notice”, “24 Hour Notice” or some kind of variation on this theme. The purpose obviously is to give the resident a final chance at paying the rent to avoid the necessity of an eviction filing by the property manager. Does it work? Yes, often the “post” Three-Day Notice letter or notice is highly effective, especially when a resident has received one before and has paid after the expiration of the Three-Day Notice. The problem is that the notice can cause serious problems with the procedure and prerequisites of filing an eviction action.

The Sacred Three-Day Notice

The Three-Day Notice is a condition precedent and jurisdictionally required notice which must be given in a non-payment of rent situation in order for the manager to proceed to filing an eviction action. It is a very specific notice, clearly spelled out in Florida Statutes, must be of a certain form, with specific rent items only allowed, and it must be prepared and served properly in order for it to be a valid Three-Day Notice. If there are any defects in the Three-Day Notice, it is quite possible that the eviction action will be dismissed, resulting in a further loss of rent by the manager, delays and potential liability for paying the resident’s attorneys fees.

The Effect the “Post” Three-Day Notice Communication Has on the Three-Day Notice

If a manager gives the resident any type of “post” Three-Day Notice letter or notice regarding the payment of rent or a last chance to pay, some case law has shown that the original Three-Day Notice is nullified or made void by the later notice or letter. While this doesn’t seem to make practical sense, the reasoning lies in the fact that Florida Statutes alone provides for and requires a specific notice prior to an eviction action. Any notices given after the Three-Day Notice can confuse the resident, and since not Florida Statute provided, will be made up by the manager and could create confusion on the part of the resident.

Should We Discontinue Using the “Post” Three-Day Notice Letter or Notice?

Our recommendation is that you cease using any notice after the service of the Three-Day Notice. As more and more cases are being contested at a higher rate, with more sophisticated and knowledgeable residents and attorneys, it is not advisable to do anything that can jeopardize the eviction action. If you have been using the “post” Three-Day Notice letter or notice in the past, a problem is created for future cases, as the resident who has received such a notice or letter before will be expecting this notice before you file an eviction. This detrimental reliance by the resident on your “post” Three-Day Notice letter or notice can actually now provide the resident with a defense when you did not use the notice or letter!

Practical Considerations

If you have been using a “post” Three-Day Notice letter or notice in the past, we recommend that you immediately cease this practice. It will be important though to notify the residents of this change in policy or procedure. You may want to use language such as the following:

Dear Resident,

In the past, our company has been sending out a “Last Chance Letter”, “24 hour Notice”, (insert name of your notice) after the expiration of the Three-Day Notice giving the residents a final chance to pay rent to avoid eviction.

From this point on, we will only be serving a Three-Day Notice as required by law. Any rent tendered after the expiration of the Three-Day Notice may be refused by us, and eviction proceedings may be commenced. This letter shall serve as notification that in the event you do not pay according to the stated due date on your lease, you may be subject to receiving a Statutory Three-Day Notice giving you three business days to pay the rent. No further notice or letter will be given.

Can We Continue Using the “Notice” or “Letter”?

Many managers will opt to continue using a “post” Three-Day Notice letter or notice, as it is without a doubt very effective in getting the resident to pay the rent. It is quite possible that the risks in giving the letter or notice are outweighed by the benefit of reducing evictions and receiving the rent. Each manager must decide the route to take. All we can say is, “You have been warned.”

 

POST HURRICANE CONSIDERATIONS

 

Many legal issues arise after there is damage or destruction of occupied premises. All situations should be dealt with on a case by case basis and you should get your attorney involved immediately. Often your compassionate accommodation of a resident will result in greater problems and liability to you and the property owner if not done properly.

RELEASING RESIDENTS FROM THE LEASE: It is imperative when releasing a resident from a lease that a proper release form is used which deals with the security deposit, prepaid rents, damages to the premises, date of vacating and abandoned property. We recommend the MUTUAL RELEASE.

TERMINATING THE TENANCY: If your lease agreement has a clause which states that the lease may be terminated at the manager’s option upon the damage or destruction of the premises, you are probably safe to give a Seven Day Notice of Termination to the resident. If the lease fails to have a clause allowing such termination, we advise that you call your attorney immediately to see what options you may have. Check your lease carefully. Most leases only give the manager the option to terminate the tenancy if the premises are “destroyed”. This is a major problem as more often a property is not “destroyed” but is “damaged” to the point where you want the resident to vacate. Review and have your lease revised immediately.

TRANSFERRING A RESIDENT: It is not advisable to transfer a resident to another unit unless a Resident Transfer Addendum is signed by all parties. Failure to use such addendum can result in you having two units occupied by the resident and/or their belongings. If a resident is transferred, all items should be removed from the original premises before the resident is allowed to take possession of the new premises.

RENT REDUCTIONS AND CONCESSIONS: No rent reductions should be given or offered unless and until such time as you have consulted with your attorney and have written permission from the property owner. If the property is damaged and the resident is demanding a rent reduction or concession, please remember that if you and the resident cannot come to an agreement, a judge may eventually make the agreement for you with less than desirable results. Once an agreement is made, your attorney will write up a contract detailing all the terms. Nothing should be done verbally.

SECURITY DEPOSIT AND ADVANCE RENT: Once a resident has vacated the premises, you have 30 days to make the claim upon the security deposit. If you are not making any claim, you have 15 days to refund the entire security deposit and last month’s rent if applicable. If you are refunding the security deposit or prepaid rents in an emergency fashion, it is imperative that you use the proper form. Call your attorney immediately.

MOLD AND MILDEW: There is an incredible increase in mold and mildew situations due to water intrusion and power outages. Over the next year, this will worsen as properties have suffered severe water intrusion and attorneys will be capitalizing on mold litigation. If you have a proper Mold Addendum, you will be able to terminate the tenancy if there is mold or mildew present. Call your attorney immediately if you receive complaints of mold or mildew and check each property carefully for mold and mildew.

 

THE PET APPLICATION

 

Pets can be a real nuisance and liability for the property manager or management. Beside the higher chances of damage to the premises, each year pet related injuries cost managers millions of dollars, some of which is not covered by insurance. Many insurance companies now simply disallow pets on the insured premises, and the manager must sign an agreement that pets are not allowed and if there is a pet related injury, the insurance company will not cover the claim. Most managers require the resident to sign a pet addendum or agreement which details the terms and conditions of the pet on the premises, and requires the resident to pay either a non-refundable pet fee or a pet deposit.

 

Ironically, the applicant for a rental is made to go through a vigorous application procedure under which the applicant’s credit, criminal background, and prior manager references are carefully checked, while the resident simply has to fill out a pet addendum and pay the required sum of money for a pet. The resident gets approved, the pet sums are paid, and the resident and his pet move into the premises. Three months into the rental, you inspect the property or have to repair a maintenance issue and you discover that the 25 pound Terrier on the application is indeed now a 40 pound Pit Bull Terrier. You were expecting this cute little dog and now are completely surprised to see this fierce and dangerous dog on the premises. Of course the resident assures you that the pet never bites, is great with children and is adorable, but you don’t agree, and if your insurance company found out, your coverage might be cut off FAST.

 

What Did the Manager Do Wrong?

 

The manager’s surprise is due solely to the fact that the pet was not shown to the manager prior to taking the resident’s pet fee or deposit and signing the pet addendum or agreement. Had the manager actually seen the pet at the application process, this never would be happening. This is purely an example of a problem that was completely avoidable if the manager simply interviewed not only the applicant, but was able to see the applicant’s pet BEFORE approval. Whose fault is it really that the resident now has a 40 pound Pit Bull? It is the property manager’s or the management’s fault. It is quite possible that the resident was telling the truth about her pet at the time of application. After all, a Pit Bull Terrier is a terrier and it could have gained 15 pounds in 3 months.

 

The Easy Solution

 

The easy solution that has been discovered by the savvy property manager and management in Florida is to have the resident fill out a pet application. The pet application deals with a number of issues, and the resident can be required to pay a fee for the pet application. The pet application is not to be confused or substituted for a properly executed pet addendum. This is the application for the pet. Like an application and approval is the prerequisite for a resident signing a lease, the pet application and approval is the prerequisite for the resident executing the pet addendum.

 

What Does the Pet Application Accomplish?

 

The pet application is the applicant’s request for permission to have the pet. The resident is not simply filling out a pet addendum and paying a fee; this is a permission based process. The pet application makes it clear that the fee for the pet application is an administrative fee and is NOT to compensate the owner for any pet damage which may occur. It is an application fee, pure and simple. The pet application makes it clear that the manager does not have to approve a pet, just like in most cases a manager does not have to approve a resident for residency. Information about the pet is provided, and most importantly, the applicant is required to bring the pet to the management office (or parking area) so the manager can observe the pet, take a photo and observe the demeanor of the pet. If the breed looks suspect, management can ask for further verification, just as with a resident. Finally, the applicant is asked about the pet’s history in an attempt to reduce liability for management. In the below sample, the pet application fee is refundable if the pet is not approved. You can modify this to make it non-refundable whether the pet is approved or not. This is up to you.

 

SAMPLE PET APPLICATION

 

This Pet Application is made as a part of the rental application for the property located at: _________________________________, Florida. I do hereby request that my pet be approved to reside with me during the term of my lease agreement. If my pet is a “Service Animal” or a “medically necessary pet” I will notify management in writing and this Pet Application will not be applicable.

 

NOTE: This is a Pet Application only and not approval for a pet unless approved by Management, a Pet Addendum is executed by all parties and all sums and fees are paid according to the Pet Addendum. In order for the pet to be permitted on the premises, the pet must be fully approved by Management, a Pet Addendum signed by Residents and Management and all fees paid including but not limited to an additional security deposit, pet deposit, pet fee or additional rent as required by Management.

 

I understand that Management is under no obligation to approve my pet for occupancy. The following pets will not be accepted under any circumstances: German Shepherds, Dobermans, Pit Bulls, Chows or Rotweillers, any mix of the aforementioned or any other breed or mixture thereof which Management decides to not approve.

 

In consideration of having a pet go through this application process, I agree to pay a Pet Application fee of $__________ to Management. I further understand that the Application Fee is strictly an administrative fee paid to Management and is not considered a security deposit or pet deposit. Management requires a photo of the pet for Management’s files, a copy of the pet’s vaccination information from the veterinarian and the pet must be brought to the parking area of the Management office for inspection by a representative of Management.

 

The Pet Application Fee will be refunded if Management does not approve the pet.

 

Breed: ___________________ Name: ___________________

 

Weight: ________________ lbs. Sex __M ___F Age: _______

 

Estimated Pet weight at maturity ______________ lbs.

 

I do hereby certify the following:

 

My pet is well trained, is not dangerous to others and does not have a propensity to be vicious. My pet has never bitten, clawed or caused harm to another person or other pet, and it does not bark excessively when I am home or not home. No other manager or person has ever complained about my pet or its behavior.

 

My pet is not pregnant and will not become pregnant while we are residing on the premises. If my pet becomes pregnant, I will be in violation of this agreement and the pet and any offspring must be immediately removed from the premises

 

I agree that there shall be no other pets, other then listed above on the premises without the express written approval of Management. Should I desire additional pets, I agree to apply to Management for approval, submit another Pet Application and obtain approval prior to pet occupancy.

 

In the event that my pet causes damage or destruction to persons or property, I agree that all costs of said damage or destruction shall come out of our Security Deposit and/or Pet Deposit. Should the Security Deposit or Pet Deposit be insufficient to cover the cost of any pet damage or destruction, then I agree to be financially responsible for damages above and beyond the amount of my security deposit.

 

If the pet becomes a nuisance or causes damage or destruction to the premises or otherwise violates the terms of this pet application, Management may terminate the pet’s right of occupancy and/or my lease agreement subjecting me to eviction.

 

I hereby agree to the terms and conditions of this Pet Application form this _____ day of

 

__________________, 20____.

 

___________________________ Applicant

 

____________________________Applicant

 

____________________________Management

 

_____PET IS HEREBY APPROVED ___/____/____

 

______________________________ Management

 

 

PARTIAL RENT ACCEPTANCE

 

In the current economic situation, managers are beginning to get desperate for the rent. Any rent. Residents are in financial hardships. and rather than choosing not to pay rent at all, many will tender a partial payment of rent with possibly a promise to pay the rest at a later date. Many managers faced with this scenario will accept the partial payment and may or may not receive the rest of the rent at a later date. Other residents will pay partial rent for reasons that have nothing to do with their ability to pay, but rather due to some complaint they have concerning the premises that has not been rectified by the manager. This form of self-help on the part of the resident manifests itself in the resident sending the manager a partial payment, possibly accompanied by a letter indicating why the payment is partial and demanding some sort of repair. In either case, the manager is forced to make a choice to accept the partial rent or return the rent.

 

The Financial Hardship

 

Most commonly, the partial rent payment tender is due to a financial hardship the resident is suffering. The resident feels that by paying some rent to the manager, the manager will be appeased enough to hold off on filing an eviction action. This partial payment may or may not be accompanied by an explanation and a promise to pay the rest of the money at a future set date. Is it legal to accept a partial payment? Absolutely. Can you simply accept the partial payment and then give the resident a Three Day Notice for nonpayment of the balance? Yes, in most counties. The more important question is whether you should accept a partial payment due to other ramifications with the potential to cause future legal problems.

 

The “Lone” Partial Payment

 

There are usually two types of partial payments given in the financial hardship setting. One is the payment accompanied by a letter promising the rest of the money at a later fixed date, and the other is what we call the “lone” partial payment, which is simply the check or money order in the envelope for less than the full amount of rent. If you accept the lone partial payment, you can and should serve the resident with a Three Day Notice for the balance of the rent in most counties. If the balance is not received by the expiration date, you can then file an eviction against the resident.

 

The Partial Payment and “Letter”

 

If the partial payment is tendered to you and is accompanied by a letter in which the resident states when the next payment will be made to you on the balance, it is a bit more risky to accept the payment. While no real contract between you and the resident is created by such a letter or promise to pay, an inference can be made that by accepting the partial payment, you are accepting it under the terms laid out by the resident. In other words, by taking the money, you have agreed to the payment arrangements. Unless you are agreeing to the proposed payment arrangement, we do not recommend accepting the partial payment by the resident in this situation.

 

The Law and the Partial Payment

 

Florida law does not address the legal ramifications of accepting a partial payment and then giving a Three Day Notice to the resident and filing an eviction. Most Florida judges have no problem whatsoever with you accepting a partial, serving the notice and proceeding as usual. Some, and fortunately very few, judges feel that by accepting a partial payment form the resident, you waive your right to file an eviction in the month that the payment was made. Always check with your attorney to see if the judge or judges in your county have this view on partial payments. You would not want to be in a position where accepting a partial payment could result in tying your hands for the rest of the month.

 

The Waiver Issue

 

One of the big issues in Florida law is the “waiver issue”. Simply put, this means that by engaging in a course of action contrary to the terms of your lease, you have created a new payment method, and that you have possibly waived your rights to enforce the lease as it is written. Your course of conduct in allowing partial payments may be used by the resident to show that since partial payments were made a few times, this has now become a permissible way to make payment, and you as the manager are “stuck” with is. The waiver argument can be compelling in court, and judges are often unsympathetic to the manager who does not enforce the lease terms on multiple occasions and then suddenly decides that partial payments will not be accepted. The manager may have “waived their rights” and are then “estopped” from enforcing the lease terms. Many leases have clauses which clearly provide that the manager’s deviation from the lease terms will not create a waiver, but these clauses can become meaningless if the resident can show that the manager has a pattern of not enforcing the lease.

 

Should You Accept Partial Payments at All?

 

In a financial hardship situation, this is purely a business decision. Refuse them, and possibly you will get nothing, the resident will skip out on you, or you will have to evict. Accept them, and live with the consequences.

 

The “Non-Financial Hardship” Partial Rent Payment

 

While non-financial hardship partial rent payments are often financial hardship cases in disguise, there are many times when a resident feels that for some reason he should not have to pay the full amount of rent. There may be completely legitimate reasons, and the reasons can be many. The resident has a huge water bill and feels that there is a leak. The a/c has been out for days. The electric bill is excessive, possibly due to an a/c problem. A toilet is broken. A stove is broken. The list can be endless.

 

Can a Resident Withhold Rent?

The short answer is yes, under limited circumstances. This article will not address how, why and the mechanics of a proper resident rent withholding, but rather what to do when the resident simply takes it upon himself to deduct an amount from the rent.

 

The Resident Has Been Making Complaints

 

Although every situation is unique, you may deal with the resident making complaints about an alleged problem that is not addressed for whatever reason, and when the rent check arrives, it is a partial payment of rent. In a situation such as this, your acceptance of a partial rent can be governed by the aforementioned information in this article, but the chance that the rest of the rent will be paid later in the month is diminished greatly, as the resident feels that the value of the rental has been diminished and has taken matters into his own hands. We recommend that you do not accept this partial rent payment, and you address the resident’s issues immediately, asking your attorney for an opinion as to whether the resident has a right to withhold rent, or that allowing a reduced rent is the proper route to take. Remember that if you allow a resident to pay you a partial rent payment just one time because she is not satisfied with something in the unit, you open yourself up to the resident continuing to make partial rent payments in the months that follow under similar pretenses.

 

The Resident Gives You Complaint Letter Along With The Partial Payment

Along with the partial rent payment, the resident provides you with a letter stating why the rent is only being partially paid and outlines the complaints the resident may have, or even attaches bills for out of pocket expenses the resident may have incurred in repairing something. This is probably the most dangerous time to ever accept a partial rent payment. By accepting the partial payment along with the resident’s letter, a good argument can be made that you have agreed to accept the amount paid by the resident as full settlement of the outstanding rent balance. By accepting the money, you are arguably accepting it in accordance with the resident’s terms, and you have also potentially opened the door to the resident doing future repairs. In such cases we recommend that you not accept the partial rent payment and return it immediately. Again, if there are items that need to be addressed, they certainly should be to avoid later problems or litigation.

 

ORAL LEASES

 

Residential oral leases of less than one year are enforceable contracts. The usual form of residential oral leases is monthly, and references in this article to oral leases will be to monthly oral leases. A monthly oral lease does not become a lease of greater than one year if it is renewed and the tenancy continues for more than one year. It remains an enforceable monthly oral lease no matter how long possession continues.

 

Agents

 

Oral leases are commonly found in situations in which the manager is directly entering into an agreement with the resident. However, an agent for a management company can enter into an oral lease, on behalf of the manager, with the resident. In this situation, another level of complexity enters the matter as to the agent’s authority, scope of the agent’s employment, etc.

 

Tenancy At Will

 

An oral lease creates a tenancy at will, that is, a tenancy that can be terminated by either party at any time without any reason. To have a valid tenancy, there must be some basis for concluding that one party was giving the other party the right to possession of the property. A court won’t create a tenancy without sufficient proof that one was intended to exist.

 

Filling in the Details

 

The oral agreement between the parties outlines the terms of the tenancy. Like most oral contracts, an oral lease is usually a general agreement without much detail. So how are the missing details filled-in? Since a lease is a type of contract, contract law applies to leases. Some Florida statutes, which are generally applicable to contracts, apply to leases. Some Florida statutes apply only to leases. Chapter 83, Part II, of the Florida Statutes will supply certain missing terms if not otherwise agreed. For example, absent the parties agreeing, the statutes dictate how much time must be given for a notice of termination, what the manager’s and the resident’s duties are, and some other provisions.

 

Case law

 

Where neither the parties nor the statutes supply the terms, a judge may provide them. The judge consults “case law”. These are the legal principles developed on a case by case basis over the years. These principles help the judge interpret and apply the law in manner that is designed to be consistent.

 

The course of dealing between the parties is a prime example of such a legal principle. This is really a form of the old adage that actions speak louder than words. What the parties are actually doing is the best indication of what they agreed to do. Another such legal principle is looking to industry standards and local custom for guidance. This allows a judge to ascertain what the parties’ agreement probably was by looking to what is usually done by a manager or resident in that situation in that locale.

 

Testimony

 

Finally, the judge will rely on testimony of the parties and other witnesses. Factors affecting the evaluation of testimony include the credibility of the witness, the reasonableness and consistency of his story, and the common sense assessment of his position.

 

Warning

One warning: an old legal principle is that the law will not save the manager or resident from a bad deal. Absent fraud or such other reason, the judge will not remake the terms to relieve either party of an oral lease that he no longer wants.

 

ONE RESIDENT VACATING AND OTHERS REMAINING

 

When a lease is signed by two or more residents, what happens at the end of the lease when one resident gives notice to the manager that he or she will be vacating, and in fact does subsequently vacate? What if no notice is provided by one of the original residents, but it appears that a particular resident has clearly abandoned the premises some time during the original lease period? In either case, is the departing resident still responsible for lease obligations beyond the original lease term? Is the manager able to enter into a new lease with the remaining resident(s) and/or replacement resident(s)? What happens to the security deposit?

 

The Landlord/Tenant Act neither contains any specific provisions governing a change in parties after the original lease period, nor does the statute specifically indicate that the security deposit “stays with the property”.

 

If a month-to-month tenancy is created after the lease expiration date, a good argument can be made that all the original residents are still financially responsible for the ongoing tenancy. However, some judges may not hold this view, particularly if the departing resident gave written notice of vacating, and in fact vacated, prior to the original lease expiring. If a new lease is entered into with the remaining resident(s) and/or possibly even additional resident(s), then a change of parties from the original lease has occurred, and this is not a true “renewal” lease. If one of the original residents has apparently vacated for good but never provided any notice, we advise managers to be very careful before adding new parties to a subsequent lease. The manager should be very clear that the original resident is gone for good and that none of that resident’s personal property is still on the premises.

At the point where the manager contemplates a new lease involving a change of parties from the original lease, we recommend that a new security deposit be collected from the resident(s) on the new lease, and that an accounting take place on the original security deposit consistent with Florida Statute 83.49, with any refund check made payable to all original residents. If no new lease has been signed, but one or more of the departing resident(s) from the original lease demand a return of the security deposit, we recommend trying to collect a new deposit from the remaining resident(s) and making the accounting as described above. If the remaining resident(s) are unwilling or unable to put up a new deposit, then we recommend non-renewing the existing month-to-month tenancy, and to then make an accounting for the deposit by following the provisions of Florida Statute 83.49 with regard to all residents on the original lease.

 

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.