THE CURABLE NONCOMPLIANCE EXAMINED PART 2
by Harry Heist, Attorney at Law

The article is the second in a multi-part series examining specific curable noncompliances and how the property manager must deal with getting compliance or setting the case up for a potential future eviction action. Each noncompliance is unique; many are dealt with in a similar way, but often the proof needed to proceed with legal action if the noncompliance is not cured differs. The legal papers filed in the court for an eviction for a non-rent lease noncompliance are very similar to those filed for a nonpayment of rent case, but if the case is contested, the property manager must be prepared to prove AND win the case.

The vast majority of property managers have prepared and served a Seven-Day Notice of Noncompliance with Opportunity to Cure to a resident. Some property managers have had to file evictions when the noncompliance was not cured. Only a small fraction of property managers have had to deal with a contested case concerning a noncompliance eviction, in which the resident has fought to stay in the unit. Finally, in an even smaller percentage of those cases, the resident was represented by an attorney fighting the case, but when all those elements are present, the property manager stands to LOSE a majority of those cases.

BARKING/NUISANCE NOISE PETS

PROBLEM: Resident’s authorized pets are causing a nuisance due to noise.

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “Your pet is causing unreasonable disturbances on the premises due to barking and is disturbing the peaceful, quiet enjoyment of the premises for other residents” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)

RENT ACCEPTANCE: Do not accept rent after you have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the pet disturbances have ceased. Acceptance of rent may waive your ability to proceed. If the disturbances cease, you may accept rent.

PROOF ISSUES: Most likely you have received complaints from other residents. You need them to write down the dates and times they were disturbed and what they heard. You need to explain to them that they may have to come to court and testify if you end up having to file an eviction. You may think that you can simply present letters from the residents or reports in court, but you cannot. Letters and reports are usually inadmissible hearsay. Please read our article on hearsay so you better understand this. You and or your staff should hear the noise disturbances yourself, documenting the dates and times. Finally, a recording of the barking or other noise could be crucial to winning the case in court. An hour of recorded noise could spell success in court. The absence of sufficient or proper proof spells disaster.

1. Internal reports you and your staff have created based on complaints.

2. Written reports detailing dates and times from your residents.

3. Written letters or reports from other residents.

4. Residents of the community who will testify in court that they heard the noise and that it was severe.

5. Audio recording of barking, chirping, noise, etc. of the unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired.

GAS GRILL ON BALCONY

PROBLEM: Resident has a gas grill on the balcony, patio, lanai area in violation of the lease, rules and regulations or local law.

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “You have a gas grill on your balcony in violation of the terms of your lease, rules and regulations and/or law, code or ordinance” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)

RENT ACCEPTANCE: Do not accept rent after you have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the grill has been removed. Acceptance of rent will act to waive your ability to proceed and could end up authorizing the grill.

PROOF ISSUES: You need to take photos of the balcony, patio, and lanai area and have witnesses, such as other employees, who will testify in court if necessary.

1. Photos of the gas grill before, during and after the curative period, if not cured.

2. Employee witnesses who can testify in court.

FOLLOW UP AFTER GRILL REMOVAL

Oftentimes, the grill is removed from the balcony only to end up in the unit. This is extremely dangerous. Any unauthorized grill issue should be followed up with an interior inspection of the unit, including closets, to confirm the grill is not being stored in the unit.

POOR HOUSEKEEPING

PROBLEM: Resident has poor housekeeping to the point of filth, infestation, hoarding, rotting food and/or noxious odors. The situation goes far beyond clutter or mess.

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “You are failing to maintain your unit in a clean and sanitary condition due to an accumulation of trash, filth, and rotting food, resulting in noxious odors and infestation of insects” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)

RENT ACCEPTANCE: Do not accept rent after you have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the unit has been cleaned to your satisfaction.

PROOF ISSUES: A messy or cluttered unit is not a lease violation. It must be bad. Real bad. Courts are very reluctant to evict a resident for housekeeping issues unless the housekeeping problem is extreme. If the lease is close to the expiration date, you are far better off non-renewing the tenancy, NOT trying to evict based upon a Seven-Day Notice of Noncompliance. Often the report of poor housekeeping will come from your pest control professional. This must be immediately followed up by staff. While you will be getting written reports, remember that those reports will be inadmissible hearsay, and the person who actually saw the unit and wrote the report will be required to come to court and testify. After the curative notice expires, you should give written notice of inspection, and be prepared to document again with photos the condition of the unit.

1. Written reports from pest control if applicable.

2. Testimony from pest control if applicable.

3. Photos of the unit’s condition by pest control and maintenance staff.

4. Written reports from maintenance staff.

5. Any correspondence between the resident and staff.

6. Any correspondence from residents in surrounding units who may have complained about noxious odors and/or pest infestation.

A Cautionary Note

In some cases, the resident’s disability, be it physical or mental, may have contributed to the situation. Speak with your attorney, as you do not want a housekeeping issue to develop into a Fair Housing complaint.

 

THE WRIT OF POSSESSION – WHAT IT IS

What is a Writ of Possession? -- The Writ of Possession, hereinafter “Writ”, is an order by the court telling the sheriff to remove all persons from the premises. Once the judge signs the Final Judgment of Eviction, your attorney submits the Writ to the Clerk of Court and the clerk “issues” the Writ. Once issued, the Writ is taken to the Sheriff’s department civil division, a fee of $90.00 (most counties) is paid, and the sheriff’s clerk in the civil division processes the Writ into their computer system and it is given to a sheriff’s deputy to “serve”. The deputy then takes the Writ, along with many others he or she has to serve that day, and either hands it to the resident if the resident answers the door or tapes it to the door if no one is home or the resident fails to answer the door.

NOTE: This article assumes that you have been granted a Final Judgment of Eviction and have instructed your attorney to get a Writ

What it does-- The Writ will give the resident a date and time to get out of the premises, usually 24-48 hours from the day that the Writ is served. The Writ gives the deputy the authority to remove persons from a rental dwelling. The deputy will usually give the property manager a phone call advising the property manager that the Writ has been served and the date and time of execution.

Why does the deputy call the property manager? – The deputy calls the property manager for two reasons. One is to let the property manager know the date and time to meet the deputy and the other is to see if the property manager wants or “needs” the deputy to meet the property manager at the premises.

The big trick – While you may think that the deputy is just being helpful when he or she asks you if the resident is still there and if it is necessary to come back out to execute the Writ, be careful of the question, the deputy may really be trying to avoid having to execute the Writ. The deputy has a lot to do each day and a canceled writ means more time is freed up for those other tasks. Don’t be tempted to cancel the Writ! Once the sheriff’s department receives your Writ, the $90.00 check is processed. You have paid for the complete service so why not get the complete service? You should always follow through and have the deputy execute the Writ even if you think that the resident has vacated the premises.

Suppose the resident does not move after being served? – The sheriff comes out to the property at the designated date and time and “Executes” the Writ, at which time the resident is told (or forced, if necessary) to vacate the premises. If the resident refuses to vacate, the sheriff will physically remove the resident, and the resident may be subject to arrest if he or she fails to vacate.

Procedure when executing the Writ – When the Writ is executed, the property manager needs to be prepared to change the locks on the premises, secure the premises, and, remove all items left in the premises to the property line. The property manager needs to be ready to complete the job and have helpers if necessary to remove the items from the premises. Florida law states that the property can be removed at the time the Writ is executed or at any time thereafter. We highly recommend the former. Get EVERYTHING out of the unit immediately and to the property line. Holding the property until a later time is just asking for trouble.

What can happen if you do not immediately remove the property? The resident may attempt to break in later to get the property causing significant damage, or, the resident can allege you made some sort of deal with them to hold the property until they were able to retrieve the property.

The belligerent or threatening resident – Florida law allows you to DEMAND that the deputy stands by while you are removing the property or securing the premises. If you feel threatened in any way or think that the resident may suddenly appear while you are removing the items to the curb, ask the deputy to stay. By law, the sheriff’s department can charge you but your safety is worth it!

THE MOST COMMON WRIT MISTAKES–

Failure to have the deputy execute the Writ – When you tell the deputy that the resident has vacated, the deputy will write on the paperwork “unexecuted per manager”. This means that your eviction was never completed, you are in danger of the resident coming back and moving right back in, and you are in danger of being held responsible for the resident’s personal property, or, worse yet, what the resident “claims” was the personal property left in the rental unit.

Failure to meet the deputy when the Writ is executed – If you don’t show up to meet the deputy, the Writ is “unexecuted”. The deputy will not do anything without you being present. Your attorney will have to file a motion for an Alias Writ and this can cost you time.

Meeting the deputy and making an agreement with the resident – Property managers often feel sorry for the resident and agree with the resident and the deputy to hold off on the Writ for a day, or for a fixed number of hours. The deputy will usually go along with this and accommodate the wishes of the parties if the property manager agrees. The LAST thing you should be doing is trying to accommodate a resident at this stage of the eviction. We have seen the resident run out and file bankruptcy and derail the entire process. We have also seen cases where the property manager tells the resident that they can come back the next day to retrieve the personal belongings. The resident fails to show up and the property manager disposes of all the property. The resident then shows up and claims that an agreement or extension was made with someone in your office by phone. This can have disastrous and unintended consequences and now you can end up in court in a “he said” “she said” situation.

Failure to have sufficient staff to remove the property from the unit - There is really no good excuse for this. You know when the Writ will be executed and need to be prepared for dealing with a full unit or an empty unit.

Failure to remove the property from the premises - If the eviction is completed and the residents have been evicted from the premises, Florida law does not require you to treat the property left behind in any special way and you can and should dispose of all abandoned property when executing the Writ. You must complete the eviction and meet the deputy at the premises to be allowed to remove the items to the property line without any liability. Too many times, we see property managers shortchanging themselves by failing to completely execute the Writ when there is abandoned property. This is quite unfortunate as the execution process directly relates to the abandoned property. You will have no liability to the resident or any occupants, known or unknown, for the disposition of the abandoned property if you execute the Writ and the eviction was proper. It is rare that the resident will return and try to claim that they left items behind, but there always it this possibility. There is also the possibility that the unknown person appears, claiming items. Since the completion of the eviction relates directly to the disposition of the abandoned property, it is imperative that you execute the writ if you wish to be safe.

Now, some final words on the Writ

Do you always need to follow through and execute the Writ?

 1. ALL residents have vacated, given you the keys and the premises are completely empty – Probably no Writ is necessary

2. ONE resident has given you the keys, the premises are completely empty – Executing the Writ may be a good idea

3. Property is left in the premises – Execute the Writ

4. You have had no contact with the resident – Execute the Writ

Conclusion: The money you spend on the Writ is nothing compared to the liability and problems you may have for not executing the Writ. If a WRIT OF POSSESSION HAS BEEN SERVED, EXECUTE IT.

 

 

 

 

THE WRIT OF POSSESSION AND THE FULL UNIT

Executing a Writ of Possession can be a tricky matter. In the best of situations, the evicted resident has removed all their items from the premises, nothing is left in the unit, and the resident is gone. In the worst case, the unit is full of personal property, the resident must be physically removed from the premises by the sheriff’s deputy, and the property manager and staff is left with the task of removing all the personal property left behind to the property line.

The Typical Writ of Possession Execution

The typical writ of possession (hereinafter writ) execution involves meeting the deputy sheriff at the premises door with your maintenance tech or locksmith, where you find the unit almost completely empty, with the exception of the usual obvious trash, such as that unwanted couch and bags of garbage. The locks are changed, and your staff proceeds to remove the items to the property line. If you do not have the staff necessary to do this at the time the writ is executed, you leave the unit, and you send a staff member back later to completely remove any trash or apparently unwanted personal belongings from the premises.

The Problem Situations

Unfortunately, property management life is not always so simple, and the property manager faces two less common situations where far more than the usual trash is left behind. The time will come, if it has not already, when the property manager will be meeting the sheriff’s deputy at the door only to discover that the resident has failed to remove ANY of the personal items from the premises. It will look like he simply up and left with no attempt whatsoever to remove anything. The resident is nowhere to be found, and the property manager is left with a very uncomfortable feeling regarding the situation. Do you remove all the items and place them on the property line? Certainly if the eviction is proper, this is completely allowed by law, but should it really be done right then and there? The other situation occurs when the panicked resident is present at the time you are executing the writ, begging and pleading with you to give him extra time to get help and a truck so he can retrieve all his belongings late in the day or the next day. The resident acts surprised and claims he had no idea that this was going to happen, which is a likely line indeed. In both situations, extreme care must be taken, as the route you take could have unintended consequences.

The Evicted Resident is Not Present and the Unit is Full

If the unit is full of personal items and furniture presumably of value, we strongly recommend that you change the locks and take a breather. It is quite possible that the evicted resident is in jail, is in a hospital, possibly mentally unstable, or just cannot comprehend how the eviction process works in Florida, and went off to work. It is also possible that the resident has paid the rent, is on vacation, and you mistakenly filed the eviction. Anything can and does happen, so it is wise to change the locks and begin the research process. While you may feel that this goes against what you have heard about the law and your rights to take all the items and place them on the property line, we feel it is a best practice to hold off for a bit and begin some research, rather than rush to remove the personal property to the property line. Unless you incorrectly filed the eviction action, you are under no legal obligation to take our recommendations at all; they are simply optional. Go back through your files, and make sure that the eviction was not performed in error, and do whatever it takes to contact the evicted resident.

Contacting the Evicted Resident: Do everything in your power to contact the evicted resident. This includes looking back in the file for email addresses, emergency contact info, cell phone numbers, work numbers; you are seeking any possible hint or information concerning where the resident can be. If calling a work number, there is no need to mention that there is an eviction or an execution of the writ; just stress the urgency of needing to speak with the resident. Here you will see more than ever how maintaining up to date contact information before and during a tenancy is crucial.

Speaking with neighbors: While we always strive to respect the privacy rights of our residents, the eviction once filed becomes public record and can be discussed with the nearby neighbors, at least in a limited context. Often they have some information as to the whereabouts of the resident and some contact information.

If you locate the resident, explain what has occurred, explain how you can by law place all their personal property to the property line, and read on below.

The Evicted Resident Has Been Located OR the Resident is Present When the Deputy Sheriff Arrives

There will be situations where the resident is actually present at the property at the exact time the writ is being executed, or once the writ has been executed, you have been able to locate the evicted resident. The usual request by the resident is for more time to get a truck, hire a mover, call a friend or do whatever it takes to get the personal property out of the unit. It is so important to stand strong as a property manager and get on the phone with your attorney, so that no deadly mistakes are made at this crucial juncture. The resident has been evicted. It is over. Unless you enter into a stipulation with the resident and money changes hands, you must be careful that you do not inadvertently give possession back to the evicted resident, possibly kill the eviction and have to start over again. At the same time, it will be helpful to you and the evicted resident if he or she is able to remove all or most of his or her personal property, so that your staff does not have to undertake this task, and the evicted resident does not lose all their worldly possessions. By giving the evicted resident a bit of extra time, you may be able to avoid the evicted resident breaking into the unit, causing serious damages to the premises or committing some sort of bodily harm to you or your staff. Remember that you may have tracked down the evicted resident who for whatever reason could not comprehend or did not know that the eviction was taking place and fails to recognize the consequences of the writ execution. The last thing you need is for an evicted resident to get out or jail or an institution, only to discover that you took all their personal property to the property line and that it is now all gone.

The Extension Dangers

An inexperienced property manager may give in to the evicted resident’s wishes and tell them they have a few hours or until the end of the day to retrieve their personal property. The deputy sheriff may even encourage this. This is usually done verbally. For example, you tell the resident in front of the deputy sheriff that he must remove all the personal property by 5 pm, you proceed to change the locks, and the evicted resident is “supposed” to do what they say and contact you to let them in that afternoon. 5 o’clock comes and goes and the evicted resident fails to get their belongings. In the meantime, the evicted resident calls your office, and speaks to a staff member who has no idea what is happening with the eviction. Your maintenance tech then comes the next day to the unit and seeing that nothing was removed proceeds to remove all the items to the property line where they quickly disappear. The evicted resident then returns a few hours later infuriated that his personal property is gone and tells you that your leasing agent “agreed” that he could remove the personal property by noon that day, thus claiming a verbal extension. Did that conversation really occur with the leasing agent? If so, the evicted resident may be able to claim that an agreement was made, and now you are responsible for the loss to the evicted resident’s personal property. You see, by giving the evicted resident an extension or the evicted resident successfully claiming an extension was granted, this can result in you becoming a “bailee” of the personal property, and then some responsibility for the safekeeping of the property arises. Did your leasing agent give the evicted resident an additional extension? Now we have a factual dispute which may have to be decided by a judge.

Two Common Scenarios

1. The deputy sheriff says he will return in 2 hours: Some deputy sheriff’s will “hold off’ on executing the writ and will return later or even the next day. Basically, you are having the deputy simply “hold off” on execution of the writ. Make sure you have the deputy sheriff write a note to this effect on his paperwork, because after executing ten writs that day, he may forget you or confuse you with another one he handled that morning. In the meantime the evicted resident should and often will remove his or her personal property. The deputy sheriff then returns 2 hours later or the next day and executes the writ, and it is over. Or is it? The evicted resident may not have removed all the personal property. Removal of an accumulation of personal property (sometimes collected over many years) is often a taller task than it seems. If the evicted resident has removed all the personal property and is gone, you are in great shape. The deputy sheriff executes the writ, and the eviction is complete.

 

2. The deputy sheriff executes the writ. The evicted resident is present or you have contacted him, and you are allowing the evicted resident in to get his belongings, or decide to give the evicted resident an extension of time to remove his personal property:

 

1. Recognize this is dangerous situation, and avoid it if possible. Only use this method if there is a full unit of belongings, or has belongings that the evicted resident wants to retrieve, you have consulted your attorney, AND

 

2. Use a proper form we created called the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION

What is the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION?

This form is not a form provided by Florida law. It is simply a form we have created to assist those property managers who wish to give the evicted resident extra time to remove his personal property. This form can only be used AFTER the deputy sheriff has met you at the property and given you full possession of the unit. It is not an agreement, but is rather a notification by you to the evicted resident that you are, as a courtesy, allowing them to retrieve personal property and most importantly, giving the evicted resident a deadline to remove his personal property. We urge you to avoid these situations, and if at all possible, fully remove all personal property left in a unit to the property line, but we also understand there will be situations when this is not possible, practical, or you feel compelled to assist the evicted resident for whatever reason. We strongly urge that you always contact your attorney if you are going to give an evicted resident any extensions, or decide to use the Personal Property Removal Extension Notification. The axiom in property management is that no good deed goes unpunished, and it definitely applies here.

 

TRUSS MARKING RULE

Do you own or manage buildings that consist of 3 units or greater? If so, new Fire Code rules will affect you. On December 13, 2009, new regulations were passed which require special signage to be affixed to buildings, and failure to comply could result in substantial fines. Compliance is easy. Just purchase your signs and affix them to the building. There are three different signs though, and you need to know which one you need and where to place them. The most important thing is to make sure you are in compliance, as your deadline was March 13, 2010, which is already past. The local Fire Marshals are just beginning their inspections, and you are now on notice! There is no grandfathering, and if you are not in compliance, it will be up to the local Fire Marshal to determine whether fines are imposed.

The Aldridge-Benge Firefighter Safety Act

The Act which was signed into law on December 13 by Governor Crist is in honor of 2 Orange County Florida firefighters, Todd Aldridge and Mark Benge, who were killed when the roof of a burning gift shop collapsed. The purpose of the law is to alert firefighters to the construction type of a structure they may enter in the event of a fire or other emergency operations they may be conducting requiring entry into the building, so they can better prepare for the hazards involved. The State of Florida Fire Marshal’s Office implemented Rule 69-A-60.0081 under the authority of Florida Statutes Section 633.027.

The Type of Construction the Rule Covers

The construction type that is at issue is known as “light frame”, which means construction in which repetitive wood such as beams or trusses are used, or light gauge steel is used, for either roofs, floors or walls. This pretty much covers almost all the construction in Florida with the exception of a concrete building with concrete floors and a heavy gauge steel roofing system. Trusses are prone to failure in a fire, and once one truss fails, the load is shifted to the other remaining trusses, which in turn can cause a catastrophic failure and collapse. Compounding the problem are heavy items which are often placed on floors and roofs, such as air conditioning units, which further contribute to potential roof and/or floor failure.

Are all Structures Covered?

The Rule covers all “commercial structures” of 3 units or more. From a triplex to large multifamily buildings, the Rule would apply. Although you may not look at a triplex as a “commercial” structure, for the purposes of the Rule, it will be considered commercial and covered. In addition to the typical structures where your residents may live, the Rule also possibly covers your clubhouses, maintenance shops, laundry rooms, fitness centers and any other structure which may be on the multifamily property. Interestingly, townhouses are not considered multi-unit residential structures, so they do not need to comply with the rules.

What Are These “Signs”

The signs required, or “approved symbols” as referred to in the Rule, must be a Maltese Cross which measures 8 inches horizontally and 8 inches vertically of a bright red reflective color. The signs may be as simple as a vinyl stick-on sign, or a more substantial, aluminum or composite type of sign. If the structure has light frame truss roofs, it must be marked with the letter “R”. If the building is constructed with a light frame truss floor system, it must be marked with the letter “F”, and if both light frame truss floors and roof are present, the building should be marked with the letters “RF”.

Where Do You Obtain the Signs?

Many sign makers and supply companies for the multifamily housing industry are providing these signs. They are not cost prohibitive, and most companies have them in stock or can have them made in an extremely short period of time. One such company, Giglio Signs, can assist you, keep the signs in stock and have been providing the signs to hundreds of properties throughout Florida.

Placement of the Signs

As is often the case, some laws or rules create more questions than answers, so the following explanation should be a starting point only and not relied on completely. According to the rule, the “symbol” must be placed within 24 inches of the left of the main entry door of the unit and must be placed no less than 4 feet from the bottom of the symbol to the grade, walking surface or finished floor, and no more than 6 feet from grade to the top of the symbol. Does the rule mean the edge of the symbol or the middle of the symbol? We don’t know. The Fire Marshal can get very picky at times, so we urge you to measure carefully and not try to be too close to the upper or lower limits. You can be sure that they will have their measuring tape with them. Remember that we are talking about the symbol, not the actual sign to which the symbol may be affixed, and this will affect the measurements. The symbol itself must be permanently attached to the structure on a contrasting background, or be mounted on a contrasting base material which is permanently attached to the structure. If you are unsure of the placement of the signs or whether your signs are in compliance, we recommend that you call your local Fire Marshal and have them come out to the property to meet and advise you.

Some Final Notes

Due to the importance of compliance with the new Rule and the possibility of serious multiple fines for noncompliance, we urge you to take this matter seriously. If you have not done so already, purchase your signs and call the local Fire Marshal. Many of the local Fire Marshals are overwhelmed right now with these calls, and some are not sure of the sign placement in unique circumstances. Once you have them come to the property, try to retain some kind of proof that you were told where to place the sign by the Fire Marshal and that you complied. It would be unfortunate indeed if you followed the direction of a person from the Fire Marshal’s office who came out to the property, only to have one next year state that you did not comply. See if you can get something from the Fire Marshal in writing once the signs are affixed to the building stating that you are in compliance. When shopping for the signs, you are going to find a wide range of quality and materials used. There is no prohibition on a simple stick on vinyl sign, but will the sign last, or will it be peeled off by a resident or guest? Look around and see what is available, and finally, once you have the signs affixed to the premises, make sure your maintenance staff routinely checks on the signs to see if they are damaged or missing. The local Fire Marshal will not have sympathy for you if you fail to make sure the signs stay on the premises, so keep spare signs handy, and affix them to the premises in a fashion where they are not easily removed or vandalized. Get into compliance now. Not only is it the law, but it can help save a life.