PROTECTING YOUR RESIDENT PAPER INFORMATION

 

Identity theft occurs when someone uses another individual’s personal identifying information, such as name, Social Security number, or credit card number, without that individual’s permission, to commit fraud or other crimes.

 

Public awareness on this issue is high. When you ask your applicants to complete the rental application, you should be prepared to answer some basic questions:

 

1. Why do you need this information? Is the answer that you need it to run the credit and criminal background checks and to contact prior managers the whole answer? Do you use the information for anything else? Statistical analysis of your resident profile? Marketing? Do you need all the information? Many applications ask for more information than is truly needed. Review your application.

 

2. Who will use this information? You give this information to your background service. Do you or your staff run any background checks (sexual predator website) or contact the prior manager? Do you do follow-up criminal checks periodically during the lease? At time of renewal?

 

3. How will you protect this information? Be careful here. The temptation is to overpromise with broad, reassuring statements like, “We keep everything under lock and key with tight security.” Yet in reality you give all your staff access to the resident files. People may legally rely on your statements. When those statements are false, they may be entitled to compensation for their damages.

 

4. Is there an alternative to giving you this information? Some people are trying to hide their disqualifying past. Others are concerned about the widespread abuse of private information.

 

Personal information is everywhere in your office. The obvious places are the file cabinets, the computers, and the mail. However, what about the less obvious places like the pad with the name, apartment and credit card number of the resident who called because he has to extend his vacation to deal with a family emergency? The half completed application in the trash can?

 

Dispose of all trash properly. Your leasing office trash is a gold mine for identity thieves. Paperwork bagged and placed in the dumpster doesn’t protect against dumpster diving. There’s no excuse for not having a paper shredder. The shredder is worthless without a shredding policy. The policy is worthless without enforcement.

 

Protect your paper files. Are they kept in a secure filing cabinet? Who has keys? Access to keys? A secure cabinet is not much protection for the files left on your desk overnight or for the week because you’re busy or have given keys to staff for follow-up who keep them in their unlocked desk drawers.

 

Protect your mail. Does it sit in an “Outgoing” box accessible to anyone coming into the leasing office? Is the incoming mail left on an unoccupied desk until you can get to it?

 

Protect you resident payments. How secure is your drop box? How hard is it to reach the payments inside? We get calls from managers who have drop box break-ins. If the manager permitted payments through a drop box, then the loss is on the manager. Why do you think bank night payment drops are so secure? In a drop box break-in situation it is impossible to disprove the claims of the many residents who allege deposit of cash payments into the drop box. Your drop box should have a prominent notice stating that its use is at the risk of the payer.  Protecting the resident’s payments includes protecting the information on any payments that you are returning. For instance, the resident makes a partial payment of rent by check in the drop box. You don’t permit partial payments. How do you return the check? Never post it on his door, even if it is in an envelope. Void the check and return it to him in a letter to protect the privacy of his bank information. Post a copy of the letter in an envelope on his door, so he will know immediately that his payment was refused.

Insist that an information release accompany any rental verification request. Best practice is to confirm with the resident before answering any such requests.

 

PROTECTING YOUR RESIDENT ELECTRONIC INFORMATION

 

You’re very careful about your resident paper files. They are kept secure under lock and key with very limited access. You have a paper shredder and use it faithfully for any disposed documents with resident personal information. Your mail and drop box are secure. You’ve done your part to protect your residents’ information. Maybe not. What about the electronic files?

 

Password Protection.

 

Your security is only as good as your password protection. The craftiest password is worthless when it is stored on slip of paper inside your desk drawer. Worse is the practice of keeping all your passwords on a list in your desk. We are required to have a password in so many programs and websites that keeping them all straight almost requires a list. Many software experts suggest only two or three passwords, one each for minimum and maximum security to be used according to your assessment of the site or program. One separate password should be used for your banking.

 

Update Your Computer Software.

 

Most software vendors are constantly updating their software to counter the developing threats against it. In this day and age of unwanted extra programs in the automatic update, you don’t have to necessarily automatically update. You can set you computer to notify you of the update for your review before downloading. Use antivirus software, and it should update automatically. Use a firewall as a guard to monitor outside attempts to access your system.

 

Spyware Infection.

 

Know the warning signs of spyware infection. Emails are sent that you didn’t originate. Check your sent emails regularly. Your computer inexplicably slows down. It doesn’t function properly and reports unexplained error messages. It serves pop ups repeatedly, especially if you aren’t on the web. You find web pages that you aren’t visiting opening; they seem to self-generate. It fails to shut down or it won’t restart.

 

Attachments, Downloads, Websites

 

Exercise judgment in opening file attachments. Free software may be tempting but costly in the long run when unwanted programs, spyware or viruses come as hidden extras. Bad software (malware) can be found in many free games, file sharing programs and customized toolbars. If you send an attachment, include a text message in the email to explain the attachment or, at least, to notify the recipient that you generated the email. The immense popularity of social networking sites is irresistible to those who would harm your computer programs or files for fun or profit. An internet usage policy is a must, and to be effective it must be enforced. One staff member in the wrong place can compromise the computer files of everyone on a poorly protected network.

 

Report violators.

Report suspected hacking or viruses to you internet service provider (ISP) and to the hacker’s ISP. Reputable internet service providers will use your report to prevent further abuse. You can contact the IC3 at www.ic3.gov. The Internet Crime Complaint Center (IC3) is a partnership between the Federal Bureau of Investigation (FBI), the National White Collar Crime Center (NW3C), and the Bureau of Justice Assistance (BJA). The IC3 website has comprehensive information on internet threats and the methods to protect you files

PROPERLY EXECUTING THE WRIT OF POSSESSION

 

The proper execution of the Writ of Possession is crucial to a successful and completed eviction action. The key word here is completed. Many property managers make serious mistakes at the end of the eviction action, increasing the liability to the manager and potentially defeating the whole purpose of the eviction action. Most evictions result in the resident vacating the premises within a week or two after the eviction action is filed with the court, and many managers have never experienced the execution of the Writ of Possession.

 

The Mechanics

 

Issuance of the Writ: Once a final judgment of eviction is obtained, the manager must decide if a Writ of Possession, hereinafter Writ, is necessary. If the manager decides that a Writ is indeed necessary, the attorney submits the Writ to the Clerk of Court along with a check to the Sheriff’s Department, usually in the amount of $70.00. The Clerk of Court then confirms that a final judgment has indeed been signed by the Judge and “issues” the Writ. The Writ then is taken to the Sheriff’s Department where it is processed by staff of the Sheriff’s Department.

 

Service of the Writ: Once processed, the Writ is assigned to a Deputy for service upon the resident. The Deputy then takes the Writ and serves it upon the resident, or in the absence of the resident, tapes it to the resident’s door. The Writ informs the resident that he must vacate the premises within 24 hours.

 

Notification to the manager: The manager is then called by the Deputy who served the Writ and a date and time is set by the Deputy, at which time the Deputy will come and execute the Writ.

 

The Problem

 

The purpose of the Deputy’s call to the manager is really twofold. First, it is to inform the manager that the Writ has been served and to schedule the time when the Deputy will meet the manager at the property to give the manager actual possession. Unfortunately, there is another part of the Deputy’s conversation with the manager that causes a problem, and this is the second part of the call. The Deputy, once the date and time for the meeting is set up, will ask the manager if he or she “needs” the Deputy to execute the Writ. If the manager says “no,” the Deputy will return the Writ to the clerk as “unexecuted”, meaning “incomplete”.

 

Why Does The Deputy Ask The Manager If The Writ Is Wanted?

 

The Deputy has many Writs to serve on any given day. Often the Deputy’s schedule will get backed up, as some Writs require more time to serve than others. Sometimes a manager is late to meet the Deputy, and the Deputy will wait a small period of time, causing a ripple effect with the schedule. Occasionally the resident must be physically removed from the premises, resulting in further delay. In some instances, serious disputes or altercations occur, and the Deputy must remain on the premises until the resident is finally removed from the premises and no longer poses a danger to the manager, the manager’s workers or the Deputy. The Deputy wants nothing more than to have the manager tell him that the Writ is not needed. It is completely understandable; the Deputy is just trying to get the Writs served for the day. For each Writ that the Deputy can cancel or return unexecuted, this will free up more time for the Deputy to get to the next Writ that needs to be executed.

 

What Does the Deputy Say?

 

The Deputy will ask the manager if the resident is still in the rental unit. Often the manager is not sure if the resident is still in possession, and the Deputy gives the manager his cell phone number to call. The manager then goes and checks the property. If the property is empty or appears empty to the manager, the manager will notify the Deputy, and the Deputy will then ask the manager if the Writ execution is “needed”. Often the manager will say “no”, thinking that if the resident is not there anymore, then it must be unnecessary to meet the Deputy.

 

The Consequences of Telling the Deputy “NO”

 

If the Deputy is told by the manager that the Writ is not needed, the Deputy returns the Writ to the Clerk’s Office as unexecuted, and it is docketed as such. The resident now officially has NOT been evicted. Yes, an eviction was filed on the resident, BUT the eviction was never completed. The resident has NOT been evicted from the property, even though he may in fact have vacated the premises and will never be seen again.

 

The resident may return: If the resident were to return, he could simply move right back into the unit, and the manager would need to file additional paperwork with the court seeking a new writ of possession, or possibly even be forced into filing a brand new eviction, starting all over again from scratch. The returning resident would not be considered a trespasser, and the Deputy will do nothing to remove the resident without further order from a Judge.

 

The resident may return looking for personal property: If the resident comes back to the premises and the manager has disposed of her personal property, she could hold the manager civilly and possibly criminally liable for the loss of the property. The resident could say just about anything as to what was taken and its alleged value, and it would often be difficult to counter these allegations. When the manager fully executes the Writ and subsequently removes the personal property to the property line, the manager’s liability to the resident for her personal property is negated. When the writ is not executed, the potential liability for improper personal property disposition can be very high.

 

The resident may use the common areas of the property: The manager may observe a former resident using the community pool, exercise room or laundry room. A Deputy may be more reluctant to trespass the “former” resident if the eviction was never completed.

 

You have wasted $90.00

 

A Writ costs $90.00, sometimes a bit more and was paid for by your attorney. You will be billed by your attorney for that Writ. By canceling the Writ, you increased your liability, failed to formally complete the eviction, increased the chance of a big problem and wasted $90.00.

 

When the Deputy Calls, What Should You Say?

 

When the Deputy calls you to set up the Writ execution time and day, if you are asked if the resident is still there or if you still need the Writ, simply say “YES”. Never quit short of the finish line. It is a sure way to lose the race.

THE PROPER USE OF STIPULATIONS

What is a Stipulation?

A Stipulation is an agreement between the parties of an eviction action that sets out when the resident will pay certain sums, when the resident will vacate in some situations and what will happen if the resident fails to pay the sums or vacate. A Stipulation is a legal document that is submitted to the court and signed by the Judge. Once signed, it becomes an Order of the Court and is enforceable by the manager in the even the resident fails to comply in any way. A Stipulation is not simply a hollow, unenforceable agreement between the parties. It is in essence a Final Judgment that is deferred. If the resident complies, no Final Judgment is ever needed. If the resident fails to comply, a Final Judgment is entered and the resident is removed. The most common misconception is that stipulating means giving up something or caving in to the resident’s demands. This is the farthest from the truth. The decision to use a Stipulation is made by the manager, and the manager calls the shots and sets the terms. If the resident does not agree, no Stipulation is signed and no harm has been done.

Benefits of Stipulations

Stipulations can be an excellent resident retention tool. If a resident is under eviction for nonpayment of rent, the resident has some choices. They can fight the eviction, or they can move out. If a resident is going to move out, they will need money to move. The resident sits back and does not pay rent during the eviction, saving money so they may move. Usually, the manager does not want to play any more games with the resident, as there have already been a number of broken promises. If the resident comes to the manager begging to stay and offering to pay some money, the manager is usually not sympathetic, and the resident either fights the eviction or leaves some time during or at the end of the eviction. This is where the Stipulation comes into play. A Stipulation allows the manager to accept money without jeopardizing the eviction process. A Stipulation also can set a fixed date for the resident to vacate, and if the resident fails to do so, the eviction will continue, lessening the time to remove the resident.

1. Allows the manager to accept rent without killing the eviction.

2. Puts the resident on a Court-ordered and enforceable payment plan.

3. Prevents the resident from contesting the case or contesting the case further if already contested.

4. Sets a fixed date in certain situations for vacating.

5. Allows manager to collect attorney fees, late fees and any other amount on which the parties can agree.

6. Allows the eviction to start right up again upon noncompliance; i.e. failure to pay or vacate, if applicable.

7. Avoids court hearings or trials

8. Allows any rent that was deposited into the court registry to be released to the manager.

9. Cuts down on the anger involved with litigation and prevents angry destruction of the property.

When Can You Stipulate

You can only Stipulate after an eviction has been filed with the court. You cannot use a blank Stipulation form or imply that an eviction has been filed. This is a serious mistake that some managers make and can get a manager in a lot of trouble, as it is simulating legal process. Once the eviction is filed, you can Stipulate at any time during the process even up to the moment the Sheriff is at the door removing the resident from the premises.

When Should You Stipulate

If the resident’s only problem is nonpayment or late payment of rent, the situation is ripe for Stipulation. Ideally, the manager should only enter into a “Pay and Stay” Stipulation if the resident shows that they have a good portion of what is owed, or will have a good portion within a few days. If the resident has filed an answer and posted rent into the court registry, this is usually a prime situation for a Stipulation. If the resident is asking you for a week or so, or has paid for or wants to pay for an extension, you may want to consider the “Leave at a Fixed Date” Stipulation.

1. The “Pay and Stay Stipulation” – This type of Stipulation should be used only if you are not having any other problems with the resident other than nonpayment or late payment of rent or other charges. You do not want to use a “Pay and Stay” Stipulation if you are having major problems with the resident or just want the resident out. While this Stipulation does not “solve” the resident’s financial problems, it enables you to continue the eviction if any payments are missed. This is an extremely successful Stipulation, and in the vast majority of cases, the resident complies with the Stipulation and gets back on the normal on- time payment routine. This Stipulation has resulted in many residents not having to be evicted from the premises and saves all parties a lot of grief. Additionally, if a resident has posted rent into the court registry, this Stipulation will allow this money to be released to the manager and avoid a court hearing or trial.

2. The “Leave at a Fixed Date” Stipulation – This is an excellent Stipulation to use if there is a problem with your eviction case such as a defect, the resident has contested, or the resident simply is asking for more time to stay. The manager can agree that a certain sum is paid by a certain time, the resident can “buy” more time, or the parties can agree on a fixed date for the resident to vacate with no money being exchanged. Many times a resident just asks for a week or other short period and promises to vacate. The manager is often not apt to want to do this and refuses. The resident the files and answer with the court, the Judge sets a hearing, and the resident ends up staying for a far longer time than the one week for which the resident originally asked. The “Leave at a Fixed Date” Stipulation is excellent to use if the resident has posted rent into the Court registry, or the manager is holding a last month’s rent or advance rent. The Stipulation can address these issues and allow the manager to access these funds quicker.

The Mechanics of Stipulating

If the resident comes to you and wants to “cut a deal”, pay and stay or leave at a fixed date, the manager needs to immediately think Stipulation! The manager should never accept any money, make any agreements or have a Stipulation signed by anything less than ALL the parties to the eviction action. The manager needs to see how much money the resident has, how much the balance is and how the balance will be paid. Once this is determined, it is just a matter of filling in the blanks on the Stipulation that the attorney provides.

Avoiding Stipulation Mistakes

An improperly filled out Stipulation can be worse than not stipulating at all. The manager needs to take their time, read the Stipulation Instruction Form and fill in the blanks step by step.

1. Never accept uncleared funds when stipulating. Insist on money orders.

2. Never stipulate unless all parties are present.

3. Avoid stipulating if resident has absolutely no money, unless it is a “Leave at a Fixed Date” Stipulation and you want them to leave and do not care about the money.

4. Use the proper Stipulation form, be it the “Pay and Stay” or “Leave at a Fixed Date”

5. Send the ORIGINAL Stipulation to your attorney IMMEDIATELY

Suppose the Resident Fails to Follow the Stipulation

Unfortunately, people do not always do what they are supposed to do, so there will be times when the Stipulation is not followed. We have found that the majority of Stipulations are adhered to, making for a happy manager and resident, but there will be times when a payment plan is not met, or the resident fails to vacate per the Stipulation. If this occurs, you need to notify your attorney immediately, and an affidavit of noncompliance is prepared. This affidavit is then submitted to the Judge, and in most cases the Judge signs the final judgment without a hearing, and a writ of possession can be issued for removal of the resident. The entire process of removal of the resident following a noncompliance with the Stipulation takes approximately 10 days, sometimes more, sometimes less. Court is avoided, the resident cannot usually contest or stop the process, and the resident is removed.

PROPER THREE DAY NOTICE

Nothing is more important to the typical eviction action than a proper Three Day Notice. That most common notice, the first one a property manager learns to prepare, is the key to a successful eviction action. After the notice expires, an eviction action is filed, and voila, the judge signs the final judgment, and the resident is evicted. The notice prepared by an untrained manager often contains deficiencies. If the eviction is successful, it would seem them that the Three Day Notice is really not that important after all. This assumption is correct if the judge fails to look at the Three Day Notice or views the deficiencies as excusable, or the resident does not know the law or the resident fails to retain an attorney who most likely does know the law.

The Good Old Days

Up to about 2007, many judges would not carefully examine the Three Day Notice that was attached to the eviction complaint, and most residents would not be able to afford to retain an attorney. After all, they did not have the money to pay the rent, and most residents did not know the laws regarding the Three Day Notice. What changed? With the advent of the massive number of foreclosure cases, the larger number of defective evictions being filed by non-attorneys, and the increase in residents hiring attorneys to help them fight the eviction actions on a contingency basis like auto accident cases, preparing an accurate Three Day Notice became much more important. Many judges began to be criticized for not looking at the papers they were signing and decided it was time to start being a bit more careful, lest they get their names splattered in the newspapers as being sloppy judges who did not care about the law. Attorneys who previously would have turned away a resident under eviction, opting for a more lucrative real estate closing, began to lose business with the economic slowdown and then began to decide to spend some time with the residents who walked into their office for help. Some attorneys started to realize that it could actually be lucrative to represent residents, because if the eviction was dismissed due to a technicality or the resident won the case, the attorney representing the resident could not only get a substantial award of attorneys fees against the property owner, BUT could potentially get what is known as a “multiplier” whereby the judge could double or even triple the attorney’s fee award, forcing the manager to have a judgment against them for many thousands of dollars. All of the above has created a firestorm of epic proportions, and NOW, the property manager must be EXTRA careful to make sure there is no technicality that can cause the eviction to be dismissed or the resident winning in court.

What technicality is the most common defense to an eviction action? The improper Three Day Notice. The law provides that the resident must place the rent money into the court registry before any defenses can be raised; including claims that the notice is defective, BUT some judges allow motions to dismiss and trials to occur even when there is not a dime posted in the registry of the court. Is it wrong that many judges are apparently not following the law? We think so, but the judge has the final say in the absence of an expensive and time consuming appeals process. Fortunately, most legal scholars are of the opinion that in order to raise the defense of a defective notice, the resident must post the rent money into the registry of the court, and most judges do follow this interpretation of the law. YOU must be prepared for the judge who disagrees with this interpretation of the law.

For years, our firm has been accused of being “picky” when it came to requiring clients to prepare and serve the Three Day Notice correctly, but most of our clients recognize why this scrutiny is important. The manager does not want to pay out exorbitant fees to a resident’s attorneys due to mistakes on the Three Day Notice. We catch the mistakes, force our clients to redo the Three Day Notice, and better yet, train our clients to prepare them correctly the first time around. You can go through a red light so many times and not get caught, speed all day long and not get caught, but sooner or later, not only will your number be up, BUT an “accident” could occur, and this “accident” could mean your company pays out a large amount of money to a resident’s attorney. Some attorneys now are actually seeking out residents under eviction and making “resident eviction defense” a lucrative cottage industry. It makes no difference that the resident has not paid rent in 3 months. It is all about technicalities. You have a choice. Prepare your Three Day Notice correctly, or take an expensive gamble.

This article will simply go through the Three Day Notice step by step, and you can ask yourself if you or your company is preparing them correctly or taking an unnecessary risk. The article does not cover all aspects of the Three Day Notice. We have many more articles covering individual aspects in depth you can read on www.evict.com. If your company refuses to prepare the Three Day Notices correctly, feel free to ask us to show you case upon case in which attorneys are nailing property management companies for significant amounts of money. Times have changed, and so should you.

The Resident’s Name

The names you put on the Three Day Notice must match the names on the lease, and if the name or names on the lease are incorrect, as they often are, you need to find out the proper name and put it on the Three Day Notice like this: John Smith a/k/a (also known as) as John Smyth. Leasing agents routinely input the information incorrectly into the computer when generating the lease, and this incorrect information carries over for the entire year and even at renewals. You can’t depend on residents to point out a mistake. Rather, expect them to leave a mistake alone, as it may go to their advantage, and they know it.

If a resident has been added or subtracted from a lease, make certain that this is reflected. Blind reliance on your computer information causes mistakes. Never use just one name when there are 2 lease signers, or use Mr. or Ms., or rely on a catch all of “and all other occupants”. Just get the names right. It is that easy. If one person has not signed the lease but is in the computer as a resident, CALL YOUR ATTORNEY for advice. We see leases that have 2 names listed, but only one person signed. Filing an eviction against the person who has not signed could trigger a lawsuit. Remember, it was your mistake that allowed both to move in with only one signing, so do not exacerbate the mistake. Get advice. Possibly your attorney will tell you to put both names on the Three Day Notice, BUT this advice will depend on the particular facts and circumstances.

There is no need to put children on the notice who are not lease signers on the lease. Sounds silly, right? But it happens, because your computer program often generates the names, and they end up on the Three Day Notice. We have even seen pet names on the Three Day Notice because of the computer programming issues.

The Address

The address MUST match the lease AND the official address that the United States Post Office (which the sheriff relies upon) has for the resident. Did your company decide to change street names or building numbering? It happens all the time and wreaks havoc on addresses. Was the address put in the lease and computer incorrectly? If so, it ends up carrying over onto the Three Day Notice, and possibly you will not find out the mistake until it is too late. Some addresses contain internal company codes that have nothing to do with the real address. Get rid of them. They are useless and should not be on the Three Day Notice. If an address is slightly incorrect, the process server may encounter a resident who indicates the address on the court paperwork is wrong, and that the correct resident lives across the hallway. The process server then walks to the correct door, knocks, gets no answer and posts the papers on the door. No problem, right? Wrong. The eviction goes along, you get a final judgment, and when the sheriff goes to serve and execute the writ of possession, your case is TOAST. The sheriff will NOT serve the papers to any other address than that on the eviction papers, and remember that that address was WRONG. You might actually have to start the eviction all over again from scratch depending on the circumstances. Get the address correct and confirm. Finally, is the address on the door, or did someone rip off the number or letter? Never assume the sheriff will decide what door is the correct door. Assume that if there is any doubt, the sheriff will non-serve the writ of possession,

The Date

The date of the notice is the date that you are serving the notice: not the day before, not the day after. It is the date you or a staff member is actually going out and serving the notice. Sometimes notices are prepared, and there is no time left in the day to serve them, so they sit on the desk and are served the next day. No harm done you think, but the date is wrong. You then sloppily change the date if you notice it, or try to say that the date on the bottom of the notice, the “Certificate of Service” section, is correct. While this may be the case, the top date of the notice is wrong or sloppily changed and causes the Three Day Notice to be defective or look defective. Sometimes the date is not just one day off but can even be a month or more off. How does this happen? Your computer system generates a wrong date, or you pull up a Three Day Notice from the month before and forget to change the date. These dating mistakes happen all the time and can be fatal to your case.

What Does the Resident Owe?

The resident owes what the computer says they owe, right? Technically this may be correct, but you can ONLY put RENT on a Three Day Notice. What is rent? Rent is what your lease says indicates is rent, and this may include late charges, periodic charges such as washer and dryer fees, and other charges, but the real “rent” is what your attorney tells you is rent. Some judges do not allow anything but base rent on the Three Day Notice, prohibiting all late charges, and will throw a case right out of court if he or she sees amounts that are not base rent. How would you have known this? After all, at the prior property you managed, this was not a problem. You must ask your attorney what is permissible to put on the Three Day Notice. It does not matter what your company says is rent or what is actually owed; it only matters what the judge will allow on the Three Day Notice. The amount you put on the Three Day Notice should be an exact amount. It should not grow with time. Writing things like, “plus $5 a day”, can and often does render the notice fatally defective. There are long lines of cases growing each day in which judges have thrown out the Three Day Notice for this exact reason. But your company wants you to put this on the notice!! Go ahead. Follow your company’s advice, but remember that if you file the eviction with the incorrect wording, your risk of having the case being thrown out increases exponentially. The problem really lies in your company wanting to collect the money, and rightly so. If your company insists, prepare the Three Day Notice with whatever you want on it, BUT be prepared to prepare and serve a NEW Three Day Notice and wait the required time period for expiration if you are going to file the eviction action. Got away with putting any amount you wanted on the Three Day Notice in the past? Do what you want. You have been warned.

The Expiration Date of the Three Day Notice

When you serve a Three Day Notice, you cannot count the date of service, and it expires 3 business days after the date of posting after you exclude Saturdays, Sundays and court observed legal holidays. Serve the notice on Monday? It expires on Thursday as long as Tuesday, Wednesday or Thursday are not court observed legal holidays. What is a court observed legal holiday? It is a legal holiday when the judges are not working. The “court” is observing the holiday. You most likely had to work that day, BUT the judges did not; therefore, it is a court observed legal holiday. Does your attorney provide you with a holiday list? Call and check if you are not sure. We provide a list each year of the court observed legal holidays and each month without fail tell you what they are on our Email Newsletter. Read it! There is NO excuse for forgetting legal holidays when counting the three business days. NONE. Mark your calendar, and make sure you always ask your attorney if there are any court observed legal holidays, or if you are not sure, just consider the day a court observed legal holiday, and you will be safe. Some court observed legal holidays actually pop up by surprise. How does this happen? The judges get together, meet and decide that a particular day, often a religious holiday will be a court observed legal holiday, and so it happens. Will you know this? Most likely not, BUT your attorney will, so you need to ask. Sometimes we get asked if Halloween or Valentine’s Day is a legal holiday. Funny, huh? At least the property manager is keenly aware of the importance of excluding court observed legal holidays, so it certainly is not in the “stupid question” category.

The Resident Did Not Pay by Closing Time

Nothing in the law provides that the resident must pay you by office closing time. The law indicates the resident has three business days to pay, not including Saturdays, Sundays or court observed legal holidays. This business of trying to say that a resident did not pay on time because he dropped off the check in the drop box at midnight will only cause you grief. If the money is in the drop box in the morning, consider that he paid within the time period allotted by the Three Day Notice. When you try to jam a resident and refuse the rent or hit them with additional late charges, you are just asking for trouble with judges, who can see right through the refusal of rent. Oftentimes under this scenario, a judge will determine that you really just want the resident out, and that even though a Three Day Notice for unpaid rent was given, the eviction is really about other beefs you have with the resident. Judges were not born yesterday, and your eviction is not the first one they have seen. Most deal with hundreds or thousands of these cases a year.

Late Charges

The law does not address late charges; therefore, it is not clear what is legal or not to charge. What we do know is that when a judge sees incredibly high late charges, the judge can decide to throw the whole case out. Charging a resident $400 for rent plus $700 accumulated late charges is an outrage, but we sometimes see this scenario, usually because the computer program continues to hit the resident for late charges if there are any balances owed, no matter how small. Property managers who continue to accept rent from a resident without demanding that the resident pay the late charge set themselves up for failure. The managers we work with who are most successful at collecting late charges will refuse the late rent payment if it does not include the late charges, and this sets the tone early on with the resident for future payments. Want to keep accepting rent and letting late charges build up until your regional manager has a fit? Go right ahead. A similar dynamic applies when you fail to collect the water charges, and they build up each month. You will pay the price when your attorney refuses to file the eviction with a Three Day Notice with excessive late or non-rent charges. Someday we may have legislation which sets limits on late charges, but until such time, check with your attorney to see if your late charge policy is in line with what the judges in your areas are currently allowing.

Extraneous Writing on the Three Day Notice

Many property managers place statements on the notice like, “Only Money Orders or Certified Funds will be Accepted”, or, “No Checks Will Be Accepted”. Where did this come from? If the lease does not clearly allow the property manager to demand payment in this particular form, you cannot demand it on the Three Day Notice. Never hand-write any little messages or notes on the Three Day Notice. Stick to the proper form as provided for you by Florida law, and keep the little notes or messages off the Three Day Notice.

Some Final Words

Many of you reading this article have heard it all and seen it all before, but simply are following your company’s direction or preparing the Three Day Notices the same way for years. Take the time to call your attorney and speak directly with your attorney, not just a paralegal or secretary, and almost universally, you will hear confirmation of everything you have read in this article. Most of the larger landlord/tenant law firms have been around long enough to see how things have indeed changed, and it is time to change with the times or be in for an expensive surprise. When your attorney turns down an eviction or tells you to redo and reserve your Three Day Notice, your attorney is not making any money. They don’t want to tell you the bad news or disappoint you. Your attorney is looking out for the best interests of you and your company.

 

PROMISSORY NOTE AND PAST DUE AMOUNTS WORKOUT AGREEMENT USE

There will come a time when a resident who has vacated the premises owing you money returns and tries to make payments arrangements to pay what is owed to you. In other situations, a current resident may fall seriously behind or owe you for something due under the lease, such as an accumulated water bill, a bounced security deposit check or some damages they did to the premises. The form you use will determine the action you can take in the event the resident fails to pay pursuant to the arrangement you have made. Unfortunately, we always need to be prepared for what will occur when the resident fails to abide by an agreement. An agreement without consequences is useless, and using a wrong agreement can often be worse than using nothing at all. This article will examine a very common form known as a promissory note and a less common form developed by our office called the Past Due Amounts Workout Agreement. These forms are not the same and are to be used in specific situations.

The Promissory Note

A promissory note is simply an agreement when one party agrees to pay another party a particular past due sum or currently due sum on a particular date or dates.

When Should it be Used?

A promissory note should be used only with a PAST or departing resident who owes you money and desires to pay you on a certain date or dates according to the payment arrangement spelled out on the promissory note. Never should it be used with a current resident. The resident may vacate owing you past due rent, late charges, unpaid utility bills or anything owed under the terms of the lease or Florida law. This will memorialize the debt in writing and can be used later if the past resident defaults, and you wish to pursue the debt.

When Should a Promissory Note Never be Used?

A promissory note should not be used with a current resident who owes you money. This is a common mistake by managers. This is the scenario: the resident will be in default for 2 months’ rent in the amount of $1600.00. The manager, thinking that the promissory note is the way to go, will write up the document stating that the resident owes $1600.00 and will pay $200.00 per week beginning on a particular date until paid in full. Now for the problems. First, unless the promissory note clearly states that the amount is “rent” due under the terms of the lease, the manager may have unwittingly converted past due rent into simply a monetary obligation for which he will not be able to evict the resident using a Three Day Notice! The second problem is that if the resident fails to make a payment, what is owed: the full balance all at once, OR only that missed payment? Without an acceleration clause in the promissory note, the resident will only be in default for that one payment, rather than the whole amount. This was certainly not the intention of the manager when the promissory note was created.

Procedural Aspects of the Promissory Note

Filling out a promissory note incorrectly can be worse than not ever having one. Take your time, and fill out all the dates and amounts carefully, have the document signed, preferably with 2 witnesses. If a person other than the actual debtor is going to give you a promissory note, the signature of that person MUST be witnessed by 2 witnesses per Florida law. It is not necessary to have the document notarized, but certainly will not hurt if the debtor tries to say that he or she did not sign the promissory note. The payment plan, if any, dates and amounts should be spelled out with as much particularity as possible. Having the exact date and amount of each payment clearly listed out is preferable to stating “$200.00 per week”, and not having a starting date can really cause a problem. You will see that the sample promissory note below has an “acceleration clause”. The purpose of this clause is to make the full balance due and owing immediately if a payment is missed. We do not recommend that this acceleration clause ever be used maliciously, but allowing deviation from a payment plan can adversely affect enforceability of the promissory note, much as accepting rent late over and over again can cause a waiver and estoppel issue. You may notice this wording in the promissory note: “In the event the payments are not timely made, the acceptance of the payment(s) late or in partial amounts not according to the above schedule shall not constitute a waiver in any way of the creditors”. While you would think that this would prevent a waiver from occurring, in reality, your course of conduct may still create a waiver.

THE SAMPLE “PROMISSORY NOTE”

THE UNDERSIGNED HEREBY AGREE THAT AS OF ___________ (DATE) THE SUM OF$_______________ IS OWED TO _______________________________________________. (INSERT NAME OF MANAGEMENT COMPANY, APARTMENT COMMUNITY, YOUR NAME)

THE UNDERSIGNED AGREES TO PAY ABOVE DUE AMOUNT OWED IN THE FOLLOWING MANNER :( INSERT EXACT PAYMENT SCHEDULE)

$________ DUE _________
$________ DUE _________
$________ DUE _________
$________ DUE _________

IN THE EVENT THE UNDERSIGNED FAILS TO MAKE THE ABOVE PAYMENTS IN THE MANNER PRESCRIBED, THE FULL AMOUNT OF THE DEBT MINUS ANY AMOUNTS PAID SHALL BE DUE AND PAYABLE IMMEDIATELY. IN THE EVENT THE PAYMENTS ARE NOT TIMELY MADE, THE ACCEPTANCE OF THE PAYMENT(S) LATE OR IN PARTIAL AMOUNTS NOT ACCORDING TO THE ABOVE SCHEDULE SHALL NOT CONSTITUTE A WAIVER IN ANY WAY OF THE CREDITORS. IN ANY LITIGATION, THE PREVAILING PARTY SHALL BE ENTITLED TO AN AWARD OF ATTORNEY'S FEES AND COSTS.

THE UNDERSIGNED AGREES THAT THIS CONSTITUTES THE ENTIRE AGREEMENT REGARDING PAST DUE AMOUNTS AND ANY MODIFICATION TO THIS AGREEMENT MUST BE IN WRITING TO BE CONSIDERED VALID.

Dated: ___________________

___________________________ NAME

_____________________________
Witness

_____________________________
Witness

The Past Due Amounts Workout Agreement

When Should it be Used?

This form should be used if a manager wishes to make payment arrangements with a CURRENT resident on past or current amounts owed by the resident. This is a resident who is currently residing on the premises and intends to stay and pay the amounts owed.

What Can Be Put on the Past Due Amount Workout Agreement?

Rent, late charges, bounced security deposit check, damages the resident has caused, and any other amounts due to the manager all can be put on this agreement. The major difference here is that the resident is living on the premises, and the manager needs to not only memorialize the debt in writing, but also needs to be able to take swift definitive action to REMOVE the resident in the event the resident fails to pay according to the agreement. Unlike the promissory note, the Past Due Amounts Workout Agreement converts the amount due completely into RENT. If that “rent” is not paid as per the agreement, the manager can then put the amount on a Three Day Notice and proceed with an eviction. Again, an acceleration clause is used which will make the full amount owed at once if the resident fails to make the payments per the agreement. We have seen many situations in which the manager used a homemade agreement, puts in all the payment amounts and due dates, only to find out that when the resident defaulted, all the manager could put on the Three Day Notice was the missed payment, or possibly, was not able to use a Three Day Notice at all, causing confusion and delay.

Procedural Aspects of the Past Due Amounts Workout Agreement

The same procedures should be used as with the promissory note. Specific payment dates and amounts should be listed. If there is more than one resident on the lease or residing on the premises, get ALL residents to sign. This is crucial.

THE SAMPLE “PAST DUE AMOUNTS WORKOUT AGREEMENT”

The undersigned Resident(s) hereby agree that as of _____________________ (DATE) the sum of _______________ is owed to Manager for the following
__________________________________ (List things like past due rent, bounced check, check charges, utilities etc)

In addition to all other amounts which may become due under the terms of the tenancy or Florida law, Resident(s) agree to pay the past due amounts owed in the following manner: (insert exact payment schedule)

$________ DUE _________
$________ DUE _________
$________ DUE _________
$________ DUE _________

In the event Resident(s) fail to make the above payments in the manner prescribed, the full amount of the original debt minus any amounts paid shall be due and payable immediately as rent and Resident may be served with a Three Day Notice for these amounts owed. Failure by Manager or its agent to serve a Three Day notice in the event the payment(s) are not timely made, or the acceptance of the payment(s) late or in partial amounts not according to the above schedule shall not constitute a waiver in any way of the Manager's rights, and Manager and/or its agent may still serve a Three Day Notice demanding full payment at any time if Resident(s) are in default.

Resident(s) agree that this constitutes the entire agreement regarding the above mentioned past due amounts owed, and any modification to this agreement must be in writing to be considered valid.

Dated: ___________________

__________________________
RESIDENT

_____________________________
Witness

_____________________________
Witness

 

PROHIBITED PRACTICES

If you were to ask a typical manager if they would ever engage in a prohibited practice, you would most likely get a resounding “of course not”. Most managers realize that self- help evictions are no longer allowed, and doing drastic things like taking off the resident’s door will certainly result in a lawsuit these days. Florida Statutes Section 83.67 clearly lists out the prohibited practices and imposes a penalty of 3 months’ rent to the resident, plus the manager will have to pay the resident’s attorney’s fees in the event an attorney is involved with the case. Many attorneys will readily take a prohibited practices case if it is clear that the manager is in violation, and the various legal aid organizations have a list of attorneys in private practice who will take these on a referral basis. Surprisingly, many managers commit prohibited practices intentionally and unintentionally to this day, and are often found in court having to pay significant sums of money to the resident. It is not relevant that the resident may not have paid rent for months or is the world’s worst resident. The case will completely hinge on whether or not the manager committed a prohibited practice. This article will examine Florida Statutes 83.67 and focus on some common prohibited practices that even the most seasoned professional manager commits without even realizing it.

Interruption of Services

A common problem that arises is when the resident is supposed to put the electricity in their own name and either does not do so, or the electric service reverts back into the owner’s name if the resident has service and then fails to pay for such service. The latter situation is extremely common in apartment communities where the arrangement with the electric company is to have the electric service on in the apartment community’s name unless it is in the resident’s name. Commonly, the manager discovers that the electric service is in his or her name, and rightly upset, decides to call the electric company, tell the electric company that is was supposed to be in the resident’s name and then tells the electric company to shut off the electric. In single family home rentals, the resident’s failure to put the electric in their own name is usually discovered when the out of state owner receives a huge electric bill and calls the property manager. The actual manager or the property manager thinks it is then permissible to call the electric company and tell them to shut it off. In the apartment setting, the on-site property manager usually discovers this when the bill comes in. In both cases, it is a prohibited practice to directly or indirectly shut off the electric. Directly would mean that you called the electric company and told them to take it out of your name; indirectly would be to fail to pay for the service if the manager received a shut off warning. Our office receives calls concerning this issue on a regular basis, and many of our clients either ask if they can have the electricity shut off or have already done so. As you can see, this prohibited practice is alive and well!! Electricity is not the only utility covered under “service”. The statute also includes water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration and although not mentioned, the court may interpret cable, satellite or phone as a service. The key to avoiding the problem is to make sure that the services are not on when the resident moves into the unit and avoid any situation where the services revert to the manager in the event the resident fails to pay.

LAW FS 83.67(1) No manager of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any utility service furnished the resident, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the manager.

Lockout of the Resident

Locking out a resident as a means of self-help eviction was legal a very long time ago. It is legal no more, and most managers would never do such a thing, so you may think. Suppose you are trying to get the resident to come to the office to see you. You change the locks and put a note on the door asking the resident to come to the office. The resident comes home at 7 pm, the office is closed, and he is locked out. Prohibited practice? You bet. You can never change the locks on a resident’s door to “get the resident’s attention” or for any reason; unless the resident requests that the locks are changed. Now what about a situation where one resident asks you to change the locks? You oblige, and a week later the other resident on the lease comes to you and says he or she can’t get in, as her co resident/roommate changed the locks. Are you required to let this person in? If they are on the lease, you are, and your failure to let them in could result in a prohibited practices charge against you. We recommend that in any case where a resident wants a lock changed; all the residents put this in writing on one request form.

LAW FS 83.67(2)A manager of any dwelling unit governed by this part shall prevent the resident from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks or using any bootlock or similar device

Armed Forces Discrimination

Is it risky to rent to someone in the United Stated Armed Forces? Absolutely. The laws protecting service members have been broadened not only to allow them to break their lease if they go on active duty, but to allow an active duty service member to break a lease to move onto base housing which could be right down the street. The recent law changes have made many managers hesitant to rent to service members, and some managers have decided to try to avoid renting to service members at all costs. A few years ago, this was not considered a prohibited practice, but now it is.

LAW FS 83.67(3) No manager of any dwelling unit governed by this part may discriminate against a member of the United States Armed Forces in offering a dwelling unit for rent or in any of the term of the rental agreement.

Display of Flags

Most leases have clauses which prohibit hanging any items from the premises. Often managers have to deal with situations where a resident hangs clothing, banners or flags from their balcony. These could be anything from a sports related flag or banner to a large flag from the resident’s country of origin. A few years ago, the law was specifically changed to make to a prohibited practice to prohibit a resident from displaying a United States flag on the premises in accordance with the law. There is no exception in the law for managers of single family homes or condo in condo associations or homeowner's associations.

LAW FS 83.67(4) - A manager may not prohibit a resident from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and one-half feet by 6 feet, in a respectful manner in or on the dwelling unit, regardless of any provision in the rental agreement dealing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The manager is not liable for damages caused by a United States flag displayed by a resident. Any United States flag may not infringe upon the space rented by any other resident.

Abandoned Property and Removal of Items

Removal of Items: As we mentioned previously, most managers are keenly aware that you cannot remove a resident’s door in a self-help eviction situation. This prohibition also extends to locks, roof, walls and windows. The only exception to this would be for a manager to remove such items for the purposes of maintenance or repair. Some unscrupulous managers remove such items under the guise of making a repair on the item and delay the repair so as to influence the resident to vacate.

Abandoned Property: Abandoned property removal is one of the most common prohibited practices committed by even the best managers. The usual cases involve those where the manager thinks the items are abandoned, when in actuality they are not, and the manager then disposes of the property, only for the resident to come back and demand the property. The manager can be charged with a prohibited practice, conversion, civil theft and even criminally. It is crucial that the manager knows what abandoned property is and has the proper wording clearly in the lease. The lease wording is as follows:

BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY.
 

Even with the proper lease wording, the unit must be “abandoned” before the manager can dispose of the “abandoned property”. Legal abandonment has nothing to do with what our common sense may tell us. Abandonment is defined in the law, and if all the elements of abandonment are not present, the items left behind are not abandoned property.

Self-Help and Personal Property

The resident has junk outside their door, cars parked on the front lawn, bicycle chained to the railing, chairs in the breezeway and a lanai full of everything, including the prohibited gas grill. Code enforcement is citing the property each day. Can the manager clean up the place and throw out any of these items? They should be able to, but unfortunately the law would most likely consider this a prohibited practice, subjecting the manager to the 3 month rent penalty, attorney’s fees, conversion charges, civil theft charges and possible criminal charges. The manager’s only recourse is to serve the resident with a proper 7 Day Notice of Non Compliance with Opportunity to Cure and treat this like any other lease and/or law noncompliance.

LAW FS 83.67(5) A manager of any dwelling unit governed by this part may not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, repair, or replacement; and the manager may not remove the resident's personal property from the dwelling unit unless the action is taken after surrender, abandonment, or a lawful eviction. If provided in the rental agreement or a written agreement separate from the rental agreement, upon surrender or abandonment by the resident, the manager is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the resident's personal property; if provided in the rental agreement there must be printed or clearly stamped on such rental agreement a legend in substantially the following form: BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY.
 For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).

What are the Penalties for Committing a Prohibited Practice?

The easy answer as mentioned before is 3 months’ rent plus attorney’s fee and court costs in the event the resident decided to hire an attorney. Unfortunately the penalty could be much higher, and potentially one prohibited practice could contain multiple violations and increase the penalty. We dealt with a case where a manager had shut off the electricity, which in turn shut off the well pump and the result was a 6 month rent penalty plus attorney’s fees. We have seen numerous cases of self-help cleaning up of the property where the resident’s property was thrown away resulting in thousands of dollars being paid out to the resident. The electric shut off by the manager when he or she realizes the resident has not put the electric in the resident’s name is a common occurrence. Prohibited practices are alive and well. Follow the law and exercise caution. Common sense and instinct have absolutely nothing to do with the law.

LAW FS 83.67 (6) A manager who violates any provision of this section shall be liable to the resident for actual and consequential damages or 3 months' rent, whichever is greater, and costs, including attorney's fees. Subsequent or repeated violations that are not contemporaneous with the initial violation shall be subject to separate awards of damages. (7) A violation of this section constitutes irreparable harm for the purposes of injunctive relief. (8) The remedies provided by this section are not exclusive and do not preclude the resident from pursuing any other remedy at law or equity which the resident may have. The remedies provided by this section shall also apply to a service member prospective resident who has been discriminated against under subsection (3).

 

 PROBLEMATIC LEASE CLAUSES

There are thousands of different leases currently in use by Florida managers. They include among many others, the homemade lease, the store-bought lease, the Supreme Court Approved Lease, the lease made by your attorney, the Blue Moon Apartment Lease, the many internet leases and the lease created by the Harvard graduate on the 60th floor of the big law firm in New York City. The problem? Florida law governs the Florida landlord/tenant relationship. If a lease clause violates Florida law, the clause and sometimes the entire lease will be stricken. More often than not, the lease clause does not violate Florida law, BUT can cause the manager problems and actually interfere with the rights the manager is given by Florida law! This article will look at some of the common clauses found in leases and the problems they cause.

The Visitor Clause

Often we see a clause which says that resident may have no visitors for more than 72 hours without the manager’s consent. The clause may say that visitors cannot stay on the premises for more than 5 consecutive days. These clauses are extremely difficult to enforce. The “consecutive day” language would require the manager to basically sit outside the unit for 5 solid days in a row to determine if the visitor is staying there. If the visitor was not there for one of the days out of the 5 days and came back, they would not have been there for more than 5 “consecutive” days.

The Rent Collection Clause

If the lease states that the manager will collect the rent on the 1st day of the month, this means that the manager is under the duty to collect the rent rather than the resident being under a duty to pay the rent!

Rent Paid to a Post Office Box

Sounds fine, the resident is supposed to pay the rent to a post office box. Problem is that Florida law allows a person 5 additional days for mailing time if they are to pay rent by mail. How do you give that person a Three Day Notice? You can’t. You need to give them an 8 day Notice giving them 3 business days to pay the rent not including Saturday, Sunday or court observed holidays PLUS 5 business days. On top of that, you have to deal with the “check must be lost in the mail” routine.

Rent Late Clauses

Many leases state that rent is due on the first of the month and if not paid by the 5th, there will be a late charge. Does that mean the rent is not late until after the 5th? Does this mean that the manager must wait until after the 5th to serve a Three Day Notice? The lease needs to clearly state when the rent is due, when the rent is late and when the resident can receive a Three Day notice.

Late Charges Clause

We constantly see leases which say that a late charge will be due if the rent is not paid by a certain day of the month. The problem is that late charges cannot be put on a Three Day Notice. Only rent is allowed. The ONLY way you can put a late charge on a Three Day Notice is if you define the late charge as rent or additional rent in the lease.  

The “How to Serve Notices” Clause

Florida law only requires ONE notice to be mailed by certified mail, and that is the Notice of Intention to Impose Claim on Security Deposit. We see many leases under which it is stated that ALL notices must be served by mail. This can create a huge problem when the manager serves a notice by posting on the door or even hand delivery, only to find out that the lease clause required the notice to be mailed. One would think that if the lease required a notice to the resident by mail, personal hand delivery should suffice. After all, isn’t the whole idea to get the resident notice? This mailing business is a nice idea thought up by an attorney who thinks everything should be mailed, but this is a no go for serving the usual notices such as the Notice of Non-renewal, Three Day Notice and the Seven Day Notices of Noncompliance.

The Detailed Pet Clause

Some leases go to great lengths talking about pets, size limits, weight limits, etc. This should be left to the pet addendum, NOT the lease. The lease should simply state that no pets are permitted without a pet addendum and the proper pet fee or deposit paid. Too much talk about the pet policy in the lease could be an implicit authorization for  

The Month-to-Month Notice Clause

Florida law states that in the event either party wishes to terminate a month-to-month tenancy, at least 15 days’ notice must be given prior to the beginning of the next monthly rental period. Many leases state that in the event the lease becomes month-to-month, 30 or 60 days’ notice is required. The reasoning behind this is to try to hold a resident to a longer month-to-month tenancy, as they must give you 30 or 60 days’ notice. Nice try, but the essence of a month-to-month tenancy IS the ability to get out of the tenancy with only 15 days’ notice prior to the beginning of the next monthly rental period. The 15 days is stated very clearly twice in Florida Statutes. Result? While the resident only needs to follow the law and give you 15 days’ notice, the manager will be STUCK with the clause in the lease and the manager will be required to give the notice as stated in the lease. There will come a time when you want to get a month-to-month resident out as fast as possible. Do you want to be forced to give 60 days’ notice? We didn’t think so!

The Arbitration/Mediation Clause

Arbitration and mediation is often an excellent way to resolve disputes. Anytime you can avoid full-blown litigation, you have already succeeded. Some attorneys, especially real estate practitioners, are used to the arbitration and mediation clauses found in sales contracts. These clauses sometimes end up in leases. Suppose you file an eviction on a resident, and the resident demands mediation or arbitration? No matter what the result, there will be no way to force the resident out, even if the arbitrator decides that the manager is entitled to possession. You will end up in court. You may be thinking that a mediation or arbitration clause would be good in dealing with a security deposit dispute, but it is unknown whether taking someone’s right to access to the court will be allowed under the Landlord/Tenant Act.

The Military Clause

Many leases include a type of Military Clause which details the requirements for breaking a lease in the event of a military transfer or being called to active duty. The problem is that these laws change on a fairly regular basis, especially in time of war, and it really does not matter whether a military clause is in a lease. The Soldiers and Sailors Relief Act in addition to any state laws will override any clause that is in a lease. By having the clause in the lease, the manager is led to believe that the clause is correct, when in fact it could be obsolete, incomplete or downright illegal.

Occupant Clauses

A common clause found in leases states the number of occupants allowed to live on the premises. Some also state the number of children who are permitted. These clauses are vague, can often lead to having occupants you did not intend to have, and worse yet, a fair housing complaint. We recommend that all adult occupants sign the lease as residents, and if there are children, their names are listed as occupants.

The Solution to the Lease Clause Problem

While some lease clauses are simply an annoyance or inconvenience, others can severely restrict the manager or subject the manager to a potential discrimination action. The lease document needs to be taken seriously and amended as the statutory laws change and case law is created If you are a member of your local apartment association affiliated with the Florida Apartment Association or the National Apartment Association and manage units in apartment communities, you can consider using the Blue Moon Lease.

 

 PROPERLY EXECUTING THE WRIT OF POSSESSION

 

The proper execution of the Writ of Possession is crucial to a successful and completed eviction action. The key word here is completed. Many property managers make serious mistakes at the end of the eviction action, increasing the liability to the manager and potentially defeating the whole purpose of the eviction action. Most evictions result in the resident vacating the premises within a week or two after the eviction action is filed with the court, and many managers have never experienced the execution of the Writ of Possession.

 

The Mechanics

 

Issuance of the Writ: Once a final judgment of eviction is obtained, the manager must decide if a Writ of Possession, hereinafter Writ, is necessary. If the manager decides that a Writ is indeed necessary, the attorney submits the Writ to the Clerk of Court along with a check to the Sheriff’s Department, usually in the amount of $70.00. The Clerk of Court then confirms that a final judgment has indeed been signed by the Judge and “issues” the Writ. The Writ then is taken to the Sheriff’s Department where it is processed by staff of the Sheriff’s Department.

 

Service of the Writ: Once processed, the Writ is assigned to a Deputy for service upon the resident. The Deputy then takes the Writ and serves it upon the resident, or in the absence of the resident, tapes it to the resident’s door. The Writ informs the resident that he must vacate the premises within 24 hours.

 

Notification to the manager: The manager is then called by the Deputy who served the Writ and a date and time is set by the Deputy, at which time the Deputy will come and execute the Writ.

 

The Problem

 

The purpose of the Deputy’s call to the manager is really twofold. First, it is to inform the manager that the Writ has been served and to schedule the time when the Deputy will meet the manager at the property to give the manager actual possession. Unfortunately, there is another part of the Deputy’s conversation with the manager that causes a problem, and this is the second part of the call. The Deputy, once the date and time for the meeting is set up, will ask the manager if he or she “needs” the Deputy to execute the Writ. If the manager says “no,” the Deputy will return the Writ to the clerk as “unexecuted”, meaning “incomplete”.

 

Why Does The Deputy Ask The Manager If The Writ Is Wanted?

 

The Deputy has many Writs to serve on any given day. Often the Deputy’s schedule will get backed up, as some Writs require more time to serve than others. Sometimes a manager is late to meet the Deputy, and the Deputy will wait a small period of time, causing a ripple effect with the schedule. Occasionally the resident must be physically removed from the premises, resulting in further delay. In some instances, serious disputes or altercations occur, and the Deputy must remain on the premises until the resident is finally removed from the premises and no longer poses a danger to the manager, the manager’s workers or the Deputy. The Deputy wants nothing more than to have the manager tell him that the Writ is not needed. It is completely understandable; the Deputy is just trying to get the Writs served for the day. For each Writ that the Deputy can cancel or return unexecuted, this will free up more time for the Deputy to get to the next Writ that needs to be executed.

 

What Does the Deputy Say?

 

The Deputy will ask the manager if the resident is still in the rental unit. Often the manager is not sure if the resident is still in possession, and the Deputy gives the manager his cell phone number to call. The manager then goes and checks the property. If the property is empty or appears empty to the manager, the manager will notify the Deputy, and the Deputy will then ask the manager if the Writ execution is “needed”. Often the manager will say “no”, thinking that if the resident is not there anymore, then it must be unnecessary to meet the Deputy.

 

The Consequences of Telling the Deputy “NO”

 

If the Deputy is told by the manager that the Writ is not needed, the Deputy returns the Writ to the Clerk’s Office as unexecuted, and it is docketed as such. The resident now officially has NOT been evicted. Yes, an eviction was filed on the resident, BUT the eviction was never completed. The resident has NOT been evicted from the property, even though he may in fact have vacated the premises and will never be seen again.

 

The resident may return: If the resident were to return, he could simply move right back into the unit, and the manager would need to file additional paperwork with the court seeking a new writ of possession, or possibly even be forced into filing a brand new eviction, starting all over again from scratch. The returning resident would not be considered a trespasser, and the Deputy will do nothing to remove the resident without further order from a Judge.

 

The resident may return looking for personal property: If the resident comes back to the premises and the manager has disposed of her personal property, she could hold the manager civilly and possibly criminally liable for the loss of the property. The resident could say just about anything as to what was taken and its alleged value, and it would often be difficult to counter these allegations. When the manager fully executes the Writ and subsequently removes the personal property to the property line, the manager’s liability to the resident for her personal property is negated. When the writ is not executed, the potential liability for improper personal property disposition can be very high.

 

The resident may use the common areas of the property: The manager may observe a former resident using the community pool, exercise room or laundry room. A Deputy may be more reluctant to trespass the “former” resident if the eviction was never completed.

 

You have wasted $90.00

 

A Writ costs $90.00, sometimes a bit more and was paid for by your attorney. You will be billed by your attorney for that Writ. By canceling the Writ, you increased your liability, failed to formally complete the eviction, increased the chance of a big problem and wasted $90.00.

 

When the Deputy Calls, What Should You Say?

 

When the Deputy calls you to set up the Writ execution time and day, if you are asked if the resident is still there or if you still need the Writ, simply say “YES”. Never quit short of the finish line. It is a sure way to lose the race.

PREVENTING FLOOD DAMAGE

Each year millions of dollars are spent repairing water damage due to bursting toilet, dishwasher, sink, and ice maker supply lines, and washing machine hoses. The washing machine hose alone is one of the top five causes of water damage losses in a home, Oftentimes these losses are not covered by insurance and cost the property owner a significant amount of money in damage repair, and increase the possibility of moisture related problems such as mold and mildew. While there is little we can do about floods and water damage caused by acts of God, there is something we can do right now to minimize the possibility of damage due to the bursting of supply lines and washing machine hoses. The solution is a simple and inexpensive replacement of the cheap worn out supply line and hoses with steel reinforced flexible hoses.

Current Practices

The typical toilet supply line is either metal or plastic. The metal supply lines, while initially workable when installed, are usually made of thin brass tubing that is subject to corrosion over time. These cheaply made pipes are installed at the initial construction of the premises or when a toilet is replaced. Since toilets can last a significant amount of time with only the replacement of the “innards” necessary, the supply line can be extremely old and subject to failure. Due to the corrosion of these lines, they are often not replaced on a regular basis, as removal of the lines will result in a situation in which the valve must be replaced in addition to the lines. The corrosion often welds the cheap valve to the cheap supply line. The other common supply line is the cheap white or translucent plastic/rubber hose which has a fitting attached to each end that enters the valve and the tank. Over time these hoses deteriorate and eventually can fail. In addition to toilets, these cheap supply lines are also used for sinks and faucets, due to the ease of using a flexible line rather than soldering pipes in place. A typical wash tub type of sink will most likely have the plastic/rubber line, and most faucets now are made for the flexible hose, while in the past, they were made for the pipes to be soldered into place.

Washing machine hoses are almost always the standard black rubber type with a fitting on each end. Left untouched, they can last a long time. Some though will deteriorate, harden, or bubble out, and the fittings can corrode on each end. Often a washing machine is owned by the resident, purchased, used or moved from another location. In the process of cleaning or repair, the washing machine is pulled out from and pushed into the location, causing potentially damaging stress on the hose and fittings. In some cases the washing machine hose is a touch too short and is stretched to its maximum when attached.

A Recipe For Disaster

The bottom line is that the high pressure pipes in a house, condo or apartment all feed the weak links, those being the supply lines and washing machine hoses. A supply line or hose failure can and often does occur, with the potential to cause massive damage to the premises. If the problem is not detected immediately, the water will continue to run, cascading down the front steps or into the unit below, until such time as it is noticed. By that time it is simply too late.

Liability Issues

Can the resident be held liable in the event of a bursting supply line? In the case of the resident-owned washing machine, the resident would most likely be held liable. With that said, can you really collect from the resident? Will the resident be able to pay potentially thousands of dollars to repair the premises? It is extremely doubtful. If the resident has renter’s insurance with liability coverage for property damage, there may be some coverage, but the chances of having a covered resident is slim. Liability to the manager can be significant. In the event of damage to other premises owned by other parties, the manager could be held liable, even though there is no real “fault” involved. The interior plumbing, such as supply lines, are owned by the manager, and therefore the manager can be responsible for any damage caused to others when that plumbing is faulty.

Renter’s Insurance and the Resident’s Personal Property

While it is not clear that we can “require” a resident to purchase renter’s insurance, the manager should do whatever is possible to encourage the resident to get covered. While most leases contain a clause that states that the manager is not responsible for damage to the resident’s personal property, this clause may not protect the manager. The implied warranty of habitability can trump all of this, and it can be argued successfully that a resident is entitled to live in a place where the pipes do not break, creating that unwanted swimming pool inside the premises. Managers should never depend solely on a property damage disclaimer clause in the lease, but rather use it as a tool to encourage the renter’s insurance purchase.

Two Action Items

1. Reinforced hoses

As of this writing, a reinforced supply line for a toilet at your local building supply store retails at about $5.00. A washing machine hose, for which you will need two, run around $13.00 each. This is a small price to pay for the peace of mind and increased protection you will receive. Buy and install them now. It should be noted that a reinforced steel braided hose can fail and can be made cheaply as well. Other products are on the market that are even stronger but cost more.

2. Turn off the water!

If the rental premises are vacant, the water should be shut off if at all possible.

We would urge every property manager to take action immediately. Inspections of all hoses are a must. Locating a washing machine at least 4 inches away from a wall can help avoid stress on the hose. Knowing where the shut off valve for the premises is located, and showing the resident the location can prevent a lot of damage. There are further steps which can be taken, such as the installation of electronic water detection systems which alert the resident and/or shut off the water supplies in the event of a flooding situation, but at the bare minimum, replace those hoses and supply lines today with some quality hoses!