1.       Mold is everywhere. Many homes can have a positive air quality test and there will be nothing wrong with the home.   The detection of elevated mold spore levels may indicate a problem.

 

2.       Store bought mold testing kits are unreliable.

 

3.       Termination using the Mold Addendum of the Heist Weisse & Wolk lease can be done if the professional mold or air quality test clearly states that the home is so dangerous that the Tenant must vacate.

 

4.       If your Tenant states there is mold, the home should be visually inspected first, and if you have any concerns or doubts, it should be professionally inspected for mold.

 

5.       If the mold problem can be fixed easily, it should be immediately fixed. If you must repair or replace an area no greater than 10 square feet and there are no air quality issues, you do not need a licensed mold remediator.

 

6.       If repairs needed are such that the Tenant MUST vacate the premises for an extended period of time, then you may be able to terminate the lease in accordance with the Mold Addendum of the Heist Weisse & Wolk Lease.

 

7.        Most HVAC ducts are filthy and disgusting. Duct cleaning is often unnecessary and is often a scam. Duct cleaning can also damage flexible ducts causing greater problems.

 

8.          Terminating a Tenant using the Mold Addendum is not to be taken lightly or used simply as a method to try to remove a complaining Tenant. It is an ADMISSION that there is a serious problem and could subject the owner to liability.

 

9.         If you do see that there is a mold problem and you do not want the Tenant there anymore, you should always try to have the Tenant sign an Agreement to Vacate or a Mutual Termination of Tenancy or offer in writing that the Tenant can break the lease with ZERO penalty.

 

10. Always determine what the Tenant wants before serving notices as the Tenant may willingly vacate.

 

11. Often there is a limited amount of mold caused by a small leak or moisture source.  Once the leak or moisture source is corrected, the mold can usually be cleaned up and the problem is usually solved. Always have your licensed contractor view the problem prior to contacting a professional mold or air quality testing company.

 

12.  Heist, Weisse & Wolk cannot review a mold or air quality test.  We can only assist you in terminating the lease if you have something in writing from the professional mold or air quality testing company that clearly states that the home is so dangerous that the Tenant must vacate or repair work must be done which requires that the Tenant vacate the premises.

 

13. Do not share any mold or air quality test with your Tenant or allow any mold or air quality test professional to have any discussions with your Tenant.

 

14. Judges do not care about your insurance or lack thereof and have no mercy for delays caused by you “working with” or “waiting for” your insurance company or the adjuster.  

 

15. We can only try to assist you if you come to us immediately when there is a report by the Tenant of mold.

 

16. You are not required by law to put a Tenant up in a hotel. You must get proper advice from us before taking any action or we cannot assist you.

 

17. Any leak or moisture intrusion should be dealt with immediately if necessary.  You are NOT required to wait for permission from the insurance company to have water damage mediation done.  You should notify your insurance company immediately, and you are allowed to mitigate the damages immediately.

 

18. Only use a professional water damage mitigation company that is reputable and has experience in handling water, mold, and flood damage in rentals.

 

“Serving the Property Management Professional”

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Unless your lease REQUIRES the mailing of a Notice to your Tenant, mailing is NOT a good method.

 

1.  You must add 5 business days to the expiration date of a mailed Notice.

 

2.  A 3 Day Notice requires the addition of 5 business days for mailing and 5 business days for payment. The proper form must be used as the name 3 Day Notice conflicts with what the notice actually is.

 

3. A Notice of Nonrenewal would need to be mailed at least 5 business days PRIOR to when you normally would need to serve the Notice of Nonrenewal.

 

4. Certified Mail is the worst possible way to send a 3 Day, 7 Day or Notice of Nonrenewal.

 

5. Do yourself a favor.  Serve in person, serve by posting on the premises and/or use a Private Process Server as long as your lease does not require mailing.

 

6. If a Tenant denies receiving a Notice, you will need to prove they did in fact receive it. 

 

MANY EVICTIONS HAVE FAILED BECAUSE THE TENANTS STAND IN COURT, STATE THEY DID NOT RECEIVE THE NOTICE AND THE JUDGE EITHER BELIEVES THEM OR PUNISHES YOU FOR MAILING AND DENIES THE EVICTION.

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Florida law does not specifically address all that can and cannot be put into a lease.  This lack of clarity allows consumer law attorneys to come up with reasons or test novel legal theories as to why something should or should not be legal.  If there is litigation, this leaves it up to a County or Circuit Court Judge or Jury to rule upon a specific clause in a lease.

Unless something is specifically egregious or outright illegal, we will prepare the lease based on what our clients want.  It is crucial to understand though that there are gray areas which could put the property manager, property management company, and/or owner of the property at risk.  It is up to you as to how much risk you wish to take.

In the event there is litigation and the tenant prevails, there are consequences.  In Florida, the property manager, property management company, and/or owner is responsible for the legal fees of the tenant if the tenant prevails.  Tenants do not need to incur legal fees.  Tenants may find an attorney willing to take the case for free but, if the tenant prevails, the attorney may go after legal fees. These fees range from $250 to $450 an hour.  To make matters worse, consumer law attorneys can file class action lawsuits. The class in the class action are those tenants who were impacted by the actions of the property manager, property management company, and/or owner.  This means if the same conduct occurred with multiple tenants, you could be subject to a class action lawsuit where, win or lose, it could cost you a substantial amount of money and time.

Normally consumer law attorneys do not file class actions when the class is small or there are no “deep pockets” but some do.  Your E & O insurance may or may not cover the costs to defend you in such a case.

Please carefully read some of the things that are in a gray area of law.

EXCESSIVE LATE FEES – There is no law on the amount of a legal late fee but at some level, a Judge or Jury may feel a late fee is excessive. You may need to prove in court that you sustained “damages” equal to the late fee you are charging.  If rent is looked upon as a debt or loan, the “interest” rate would often be usurious.

ADMINISTRATIVE FEES – While these are common in the industry, and have been for years, a Judge or Jury may find your fee excessive.

MANDATORY DEDUCTIONS FROM A SECURITY DEPOSIT – A Judge or Jury may feel that only damages that exceed “ordinary wear and tear” can be deducted from a security deposit. Mandatory fees such as key fees, carpet cleaning fees, mandatory repainting fees, and other miscellaneous cleaning/repair fees could be held illegal even though the tenant agreed to them in the lease.

FINES – Florida law does not mention any fines for anything in the Landlord/Tenant Act. A Judge or Jury may feel that since they are not in the law, they are illegal.

LEASE RENEWAL FEES – Florida law does not mention any lease renewal fees. A Judge or Jury may feel that since they are not in the law, they are illegal.

RESIDENT BENEFIT PACKAGES – A growing number of property managers are requiring the tenant to pay for “benefits” that they may or may not want. A Judge or Jury may feel that since the “benefits” are mandatory that the cost of these benefits are excessive or one or more of the benefits have no real value to the tenant. The property manager, property management company, and/or owner could be held liable for the “benefit” the tenant received or was promised.

POSTAGE/PREPARATION FEES – Florida law requires that the tenant receives a Notice of Intention to Impose Claim on Security Deposit by certified mail in the event that any money will be deducted from the security deposit. Charging the tenants to prepare the notice or the postage fees could be found illegal by a Judge or Jury.

NOTICE POSTING FEES – Florida law requires that certain notices are delivered to the tenant and some property managers and owners are charging the tenant for the delivery of these notices. Charging the tenant the notice delivery fees could be found illegal by a Judge or Jury.

FAILURE TO DISCLOSE ALL FEES EARLY – If you collect any nonrefundable funds from applicants and then ask them to sign a lease that they have never seen that includes your terms and fees, the tenant could claim that you misrepresented the true cost of renting from you. This could be considered bait and switch or an unfair and deceptive trade practice.

HIDDEN PROFITS – If you profit off of any goods or services provided to the tenant through kickbacks or discounts with vendors and this is not disclosed to and agreed with by the tenant, this could be found to be illegal or deceptive by a Judge or Jury.

FORFEITURE OF FUNDS – The Landlord/Tenant Act does not allow any automatic forfeiture of the tenant’s funds in the event the tenant breaks the lease or is evicted. While it is rare that a tenant would ever receive their deposit back if they were evicted or left owing sums of money, there is no automatic forfeiture of funds.

PAYMENT METHODS – There are many different kinds of payment methods today. Additional charges for certain payment methods are common.  It is possible that a Judge or Jury could find these charges illegal.

Many of the common fees and practices of Florida landlords are not legal in some other states. Fees have been steadily growing over time and practices by some Florida property managers, property management companies, and/or owners have become more risky.  This practice has gained nationwide attention and has recently drawn the ire of the federal executive branch which is calling for more regulation.

Take some time to review your company’s practices and decide whether you wish to take certain risks or put the property manager, property management company, and/or owner at risk. 

Understand that simply because the tenant agreed to something in a lease by signing that lease, this does not make the lease fully legal and could subject the property manager, property management company, and/or owner to expensive legal challenges later in court.

 

“Serving the Property Management Professional”

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IF A TENANT IS HURT ON THE RENTAL PROPERTY, OFTEN NOT ONLY WILL THE OWNER BE SUED BUT THE PROPERTY MANAGER AND THE PROPERTY MANAGEMENT COMPANY MAY BE SUED.

 

1.  You MUST be sure your E & O policy covers things like personal injury to the Tenants.

 

2.   You MUST understand what you are or are not covered for.

 

3.   You MUST strive to have you and your company named as the “ADDITIONAL INSURED” to the Landlord’s homeowner’s policy.

 

4.  Many Landlord’s policies will refuse to name you as “ADDITIONAL INSURED”.  

 

5.  At the BARE MINIMUM, you will have you and your company named “ADDITIONAL INTEREST”.

 

6.  “ADDITIONAL INTEREST” means that in the event the Landlord’s policy is cancelled for whatever reason, you will be notified.

 

7.  If you and your company are named as “ADDITIONAL INSURED”, in the event the Tenant sues you or your company, you most likely will be insured and defended by the Landlord’s insurance company.

 

8.  If you are NOT named as “ADDITIONAL INSURED” AND your E & O policy does NOT cover you, you WILL be forced to hire an attorney to defend you and this will be EXPENSIVE.

 

DO NOT DELAY. MAKE SURE YOU ARE PROTECTED FROM A PERSONAL INJURY CLAIM BY A TENANT.

 

IF DOES NOT MATTER IF YOU WIN OR LOSE. IT DOES NOT MATTER IF IT IS FRAUD OR ABSURD.  WHEN YOU ARE SUED, YOU MUST DEFEND THE LAWSUIT OR YOU WILL LOSE THE LAWSUIT.

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ALMOST EVERY PROPERTY MANAGER WILL FACE WATER DAMAGE, LEAKS, FLOODING, OR DRIPPING SITUATION DUE TO A CLOGGED A/C CONDENSATE LINE.  IT DOES NOT HAVE TO OCCUR.

 

1.  When an air conditioning system is running, water drains off of the Evaporator Coil which is located within the Air Handler in the wall, attic, closet or garage.

  

2.   Generally, the water slowly drains out the Condensate Pipe.

 

3.   The Condensate Pipe is a white PVC pipe that runs through the attic, in closets, or in walls and eventually runs to the outside of the house and steadily drips water in an inconspicuous place.

 

4.  Normally the Tenant will not even see where the water drips outside the house when the system is properly running.

 

5.  The Condensate Pipe gets clogged eventually with mold, moss, fungus, plants and even critters.

 

6.  When the Condensate Pipe gets clogged, the water backs up into a pan underneath the Air Handler and USUALLY there is a float switch that will turn the A/C OFF. Often the switch is inoperable and will not shut the system down. There might not even be a switch present.

 

7.  OFTEN, if the Condensate Pipe is clogged, water will drip from the ceiling or closet into the home. This dripping may start out slow and may not be reported until there is damage to the premises, mildew and mold.

 

8.  The Condensate Pipe should be inspected and cleaned once per year.  If it is not cleaned, you run a high risk of clogging and damage.  

 

9.  Failure to have this preventive maintenance done is a disservice to the Property Owner.  Often this service can cost approximately $100 to $150. 

 

10. Smart Property Managers urge the Property Owner to get preventive maintenance done and even smarter ones tell the Property Owner it will be done and allow the Property Owner to OPT OUT.  Most Property Owners will NOT OPT OUT.

 

 

UNDERSTANDING THE RISKS INVOLVED WITH AN HVAC SYSTEM, HOW IT WORKS, AND THE BENEFITS OF PREVENTIVE MAINTENANCE CAN SAVE THE PROPERTY OWNER THOUSANDS OF DOLLARS AND AVOID HOUSE OF GREIF.

 

“Serving the Property Management Professional”

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UNDERSTAND THE SERIOUS RISKS WITH HOT TUBS

BEFORE EVER ALLOWING ONE

 

1.   Is the HOT TUB in compliance with city or county code/ordinances, the HOA and/or Florida law?

 

2.  Who will install the HOT TUB, get permits and hook up all electrical systems?

 

3.   Who will pay for installation and electrical work?

 

4.   Are the legally required safety features installed and who will maintain them?

 

5.  Will the Landlord’s insurance cover the HOT TUB?

 

6. Has the Landlord’s insurance company been notified and is the HOT TUB permitted?

 

7.   Who is responsible for maintaining and repairing:
   1. The HOT TUB itself?
   2. The pump and filter?
   3. Chemicals?
   4. Electrical to the pump or accessories?
   5. The HOT TUB accessories?
   6. The HOT TUB cover?
   7. The HOT TUB Heater?
8. Is the Tenant responsible for removing the HOT TUB at the tenancy end and repairing or replacing grass?

 

9. Does the Landlord have the power in the lease to ask the Tenant to remove the HOT TUB for any reason?

 

10. If the HOT TUB is to be removed, how many days will the Tenant have to remove the HOT TUB?  

 

DO NOT TAKE HOT TUBS LIGHTLY. THERE ARE SERIOUS ISSUES INVOLVED WHICH MUST BE HANDLED AND PUT IN THE LEASE.

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YOUR PROPERTY OWNER SHOULD NEVER HAVE A HOMESTEAD EXEMPTION ON THE RENTAL PROPERTY YOU MANAGE

 

1.   Prior to taking over management and once per year, you should confirm that your property owner has not filed for Homestead Exemption.

 

2.   A rental property is not allowed to claim a Homestead Exemption.

 

3.   Some owners will fraudulently file for a Homestead Exemption to save money on taxes or to falsely claim a Florida residency when they are NOT Florida residents.

 

4.   You as the Property Manager do not want to be pulled into any fraudulent attempt by a property owner to illegally file for Homestead Exemption or to falsely claim Florida residency.  

 

NEVER UNDERESTIMATE WHAT A PROPERTY OWNER MAY DO TO FALSEY CLAIM THEIR RENTAL PROPERTY TO BE THEIR HOMESTEAD OR TO USE THE PROPERTY AS THEIR RESIDENCE TO FALSELY CLAIM FLORIDA RESIDENCY. ONCE CAUGHT, THE OWNER MAY BLAME YOU FOR THIS AND PULL YOU INTO A CRIMINAL LEGAL ACTION.   

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HOLDING OFF ON AN EVICTION CAN RESULT IN THE PROPERTY MANAGER BEING SUED BY THE PROPERTY OWNER FOR LOST RENT AND ATTORNEY’S FEES

 

1.  Tenants often promise to pay and the Property Manager will hold off on filing an eviction.

 

2.  If the Tenant pays, then no harm is done.

  

3.  If the Tenant fails to pay and the Property Manager has held off, the Tenant will owe more money that the Property Owner most likely will never see.

 

4.  The Property Manager should have a policy of filing an eviction on a specific day of the month or after a set period has elapsed after the Three Day Notice has been served.

 

5.  If the Tenant seeks an extension or promises to pay on a specific date, if the Property Manager decides to wait and hold off, the Property Manager should get written authorization for this from the Property Owner using the EVICTION HOLD OFF NOTICE.  

 

6.  Failure to get written permission to hold off on filing an eviction can result in further financial damage to the Property Owner.

 

7.  Property owners can and do sue Property Managers for negligence and breach of contract if the Property Manager holds off on an eviction and the Tenant fails to pay.

 

8.  Any risks in holding off on an eviction should be passed to the Property Owner and not undertaken by the Property Manager without written permission.

 

THE PROPERTY MANAGER SHOULD FILE AN EVICTION IN ACCORDANCE WITH COMPANY POLICY.  IF THE PROPERTY MANAGER WISHES TO HOLD OFF ON FILING AN EVICTION PENDING POSSIBLE PAYMENT, THIS MUST BE AUTHORIZED BY THE PROPERTY OWNER.

 

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YOU HAVE 30 DAYS FROM THE DATE THE TENANT VACATES TO SEND THE NOTICE OF INTENTION TO IMPOSE CLAIM ON SECURITY DEPOSIT

IF YOU FORGET, YOU MAY QUALIFY UNDER THE EXCEPTION TO THE RULE

1.   The Law requires you to SEND the Notice of Intention to Impose Claim out by certified mail within 30 days of the tenant vacating.

 

2.  The Law provides a limited EXCEPTION to the rule. 

 

3.   You qualify for the EXCEPTION if:

 

1. The Tenant abandons or vacates PRIOR to the end of the lease OR month to month term.

 

AND

2. The Tenant DOES NOT give you at least 7 days written notice by certified mail or hand delivery stating they will be vacating and also giving you a forwarding address.

 

4.   It is EXTREMELY dangerous to rely on the EXCEPTION as the Tenant can fabricate the 7 Day Notice and claim they handed it to you.

 

5.  The PURPOSE of the EXCEPTION is that if you don’t know the Tenant has vacated and don’t know a forwarding address, it is not fair to you to be held to a strict time period.   

 

6.  If you 100% know a tenant has vacated and STILL do not get the Notice of Intention to Impose Claim on Security Deposit out by certified mail, using the EXCEPTION to the rule can be difficult.  

 

DO NOT WAIT UNTIL THE LAST MINUTE TO GET THE NOTICE OF INTENTION TO IMPOSE CLAIM ON SECURITY DEPOSIT OUT BY MAIL.  IF YOU DO NOT HAVE A FORWARDING ADDRESS, YOU SIMPLY USE THE ADDRESS OF THE HOME YOU WERE RENTING TO THE TENANTS.

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