PRE-CLOSING LEASE/PRE-CLOSING OCCUPANCY AGREEMENT

 

This is a lease (also called an occupancy agreement) where the Buyer will rent the home PRIOR to the closing.   Our office does not prepare these leases because they are extremely dangerous.

 

1. The sale may never occur, and the Tenant will often fight the seller and REFUSE TO VACATE.  Now you have a real estate dispute PLUS a Landlord/Tenant dispute.

 

2. Often there are deposit or escrow funds which will be fought over if the sale does not happen.

 

 

3.       You have no way to know if or when the sale will actually go through despite what you may think.

 

4. Depending on the sales contract, you may not be able to evict and you will have a complex case to deal with.    

 

 

5. PRE-CLOSING LEASES/OCCUPANCY AGREEMENTS should be drafted by a seasoned real estate attorney who fully understands the law.

 

 

POST-CLOSING LEASE/POST-CLOSING OCCUPANCY  AGREEMENT

 

Our office prepares these all the time.  This is where once the closing occurs, the Seller becomes a Tenant.  It is a specially drafted lease but has most of the similar terms and conditions of a lease.

 

1. Simply go to www.attorneylease.com and send in your Lease Request like normal and state in the special stipulations that you are requesting a POST-CLOSING LEASE/POST-CLOSING OCCUPANCY AGREEMENT.

 

2. You will think about all the normal terms and conditions that you would want in a normal lease. The only thing different is that the Seller is becoming a Tenant once the closing occurs.

 

3. You must take this seriously as the Seller who becomes a Tenant, and the Buyer now are Landlord and Tenant and all the Landlord/Tenant Laws apply.

 

4. OFTEN the Seller who becomes a Tenant cannot find a place to move as they had planned and the Buyer who is now a Landlord may not want to let the Tenant stay.  You MUST be prepared for this.

 

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HAVING A RECORD OF THE EXACT PAINT OR TILE USED IN A HOME WILL SAVE TIME AND MONEY

 

1.   Many rental homes were recently painted or re-tiled.

 

2.   Paint or tile is often left on the premises in the garage or closets.

 

3.   If the paint or tile was NOT left on the premises, the person who painted or tiled or the owner may know the paint or tile code, brand, type, or style and the Property Manager should find out this information and put it into the Owner file.

 

4.   If the paint or tile is left on the premises, the Tenant needs to be told to LEAVE IT ALONE and, the Property Manager needs to document exactly what it is.

 

5.   Having the partially used or leftover paint or tile OR, knowing the paint or tile code, brand, type, and/or style can eliminate the need for fully repainting  rooms or retiling floors as more can easily be purchased and you can get often the EXACT color or style used for a near perfect match with repainting, touchup or tile repairs.

 

6.  The Property Manager is an ASSET MANAGER and should take the time to document the paint or tile anticipating that there will be a repair, repaint or touchup needed in the future.

 

7.  When you do your initial inspection or routine inspections, you need to verify the presence of the paint or tile if some was left behind by the painter, tile person or Owner. Ask the Owner for all info on any paint or tile used.

 

8.  If there is paint or tile left on the premises, the Lease Agreement should state that it shall remain with the premises BUT, you cannot trust the Tenant to leave it untouched.  Often it will disappear.

 

THINK AHEAD TO THE FUTURE WHEN THE PREMISES HAS DAMAGE TO THE PAINT OR TILE. SAVE YOUR OWNER TIME AND MONEY BY FULL DOCUMENTATION OF ANY PAINT OR TILE USED.

 

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ANY PERSONAL PROPERTY BELONGING TO THE OWNER LEFT ON THE PREMISES MUST BE ADDRESSED IN THE LEASE

 

1.   Owners will often leave personal property on the premises of the rented home.

 

2.   Personal property may consist of items such as patio furniture, a grill, a lawnmower, garden tools, furniture, paint, tile and many other possible items.

 

3.   If the Owner leaves personal property on the premises and the Lease does not address who can or cannot use the property or if it is to belong on the premises, disputes may occur.

 

4.   When taking on an account for management, the Property Manager and the Owner must be clear on what if anything will stay on the premises and whether or not the Tenants can use the personal property or are responsible for it.

 

5.   If a Tenant demands that personal property left by the Owner is to be removed from the property, the Owner must remove the personal property as the Tenant has full rights of possession of the entire premises without any of the Owner’s personal property taking up space or interfering with the Tenant’s use.

 

6.  If the Owner wishes to leave personal property on the premises, this must be clearly addressed in the Lease.

 

7.   If the Owner’s personal property is not addressed in the Lease, the Owner greatly increase their risks of having to be required to remove the personal property and greatly increases the risks of the Tenant removing, disposing of and/or damaging the personal property with the Owner having no recourse.

 

8.  If the Tenant is permitted to use the Owner’s personal property, the Owner will be required to maintain, repair and or replace the personal property UNLESS the Lease clearly addresses this and shifts the responsibility to the Tenant.   

 

TAKE THE TIME TO ADDRESS ANY PERSONAL PROPERTY LEFT ON THE RENTAL PREMISES BEFORE THE TENANT TAKES POSSESSION AND IN THE LEASE AGREEMENT OR YOU MAY HAVE TO PAY THE PRICE LATER WITH A CLASH OF EXPECTATIONS THAT MAY OCCUR.

 

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ALLOWING THE PROPERTY OWNER TO HOLD TENANT DEPOSIT FUNDS IS DANGEROUS AND IS TO BE AVOIDED

 

1.   The Owner may not place the deposit funds in a proper Florida escrow account as required by Florida law.  

 

2.   The Owner may comingle the funds or spend the Tenant’s deposit funds.

 

3.  The Owner may die or be foreclosed on while holding the Tenant’s deposit funds.

 

4.  The Owner may file bankruptcy while holding the Tenant’s deposit funds.

 

5.  The Property Manager is not allowed to transfer the deposit funds out of state.

 

6.   The Property Manager loses control of the funds and cannot properly make a claim on the funds when the Tenant vacates.

 

7.   The property may sell and the Property Manager has no control of the deposit funds transfer if the transfer even occurs.

 

8. The Tenant will look to the Property Manager for the deposit funds when the Property Manager has no control over them.

 

9.  The Tenant may sue the Property Manager or Property Management Company for deposit funds that the Property Manager or Property Managment Company has no control over.

 

10.  If the Owner actually still has the deposit funds, the Property Manager must rely upon the Owner to disburse any deposit funds due to the Tenant upon the Tenant vacating in the timeframe required by law.

 

11.  The Property Manager must use a proper DISCLOSURE telling the Tenant at lease signing that they do not have the deposit funds or any control over the deposit funds.

 

DEPOSIT FUNDS SHOULD BE KEPT IN THE ESCROW ACCOUNT OF THE PROPERTY MANAGEMENT COMPANY IF THE PROPERTY WILL BE MANAGED BY THE PROPERTY MANAGEMENT COMPANY.

 

IF IT IS A FINDER’S FEE ONLY TRANSACTION, THE FUNDS SHOULD BE SENT DIRECTLY TO THE PROPERTY OWNER BY THE TENANT, THE LEASE MUST BE CLEAR AS TO WHO IS HOLDING THE FUNDS AND A PROPER DISCLOSURE SHOULD BE USED SO THE TENANT IN NO WAY THINKS THE FINDER’S FEE ONLY AGENT HAS ANY CONTROL OVER THE FUNDS.

 

                                                        LAW OFFICES OF HEIST, WEISSE & WOLK, PLLC

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OFTEN YOU WILL SERVE A THREE DAY NOTICE, THE TENANT WILL PAY PARTIAL OR IN FULL AND THE PAYMENT WILL BE NSF. YOU DO NOT NEED TO SERVE A NEW THREE DAY

1.   Tenants will pay partial or full after receipt of a Three Day Notice BUT, the payment may be NSF.

 

2.  You are not required to serve a new Three Day Notice and can proceed on the one you PREVIOUSLY served. 

 

3.   You MUST make sure the Tenant KNOWS that the payment came back NSF if you wish to proceed on the Three Day Notice you previously served.   

 

4.   Notify the Tenant IN WRITING that the payment they made is NSF before sending the case over to our office for filing an eviction.   

 

5.  In your notification, tell the Tenant you will be filing an eviction on the previously served Three Day Notice.

 

IF YOU HAVE SERVED A THREE DAY NOTICE AND THE PAYMENT CAME BACK NSF, IT IS IMPORTANT TO BE 100% SURE THAT THE TENANT KNOWS THIS SO YOU WILL HAVE A SUCCESSFUL EVICTION AS SOMETIMES THE TENANT IS UNAWARE THAT THEIR PAYMENT WAS NSF.

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THERE ARE TIMES WHEN YOU CAN CHOOSE BETWEEN FILING AN EVICTION FOR NONRENEWAL OR NONPAYMENT

Lease is almost up and the Tenant has been properly served a Notice of Nonrenewal?

You might be safer to wait and file the eviction on a Notice of Nonrenewal.

 

You took over the property, the Tenant owes a massive amount of money AND might have a good defense?

You might be safer to wait and file the eviction on a Notice of Nonrenewal.

 

Tenancy has already been terminated and the Tenant is holding over?

You would NOT want to give a Three Day Notice, you would file the eviction on the Notice of Nonrenewal.

 

Tenant is Month to Month and your city or county does not require more than 15 days notice from the end of a rental period?

You would be safer to Nonrenew and file on a Notice of Nonrenewal.

   

JUST BECAUSE A TENANT OWES RENT, A NON PAYMENT OF RENT EVICTION MIGHT NOT BE THE PRUDENT APPROACH. CHECK WITH OUR OFFICE FIRST SO WE CAN MAKE SURE YOU HAVE THE BEST CHANCE OF WINNING.

 

IF YOUR TENANT IS MONTH TO MONTH OR THE LEASE IS ENDING SOON AND THE TENANT HAS BEEN PROPERLY NONRENEWED, NONPAYMENT OF RENT EVICTION MIGHT NOT BE THE SMART MOVE.

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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.

 

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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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