Typically, Tenants are required to pay rent on a specific day of the month, the 1st being the most common day of payment. Situations arise in which Tenants are desirous of paying rent in advance, and most

Landlords do not perceive this as a problem, but rather see it as a plus. Many reasons abound for a Tenant’s prepayment of rent. The Tenant may be going on an extended vacation or job assignment, may have come into a substantial sum of money, or simply doesn’t want to be bothered with making monthly payments and is willing to pay the entire term of the lease, possibly in exchange for a more favorable rent amount.

In a perfect world, accepting prepaid or advance rent would be an advantage, but there are many dangers and pitfalls which should be considered before the decision is made to accept prepaid rent. Additionally, there are legal considerations which govern how the prepaid rent is held and disbursed

The Law and Prepaid Rent

Florida Statutes require that advance rent be kept in the same account in which the security deposit is held.   The money can be removed from this account for use by the Landlord only as it becomes due. This would prohibit a Landlord from accepting prepaid rent from the Tenant and immediately utilizing it for the Landlord’s general purposes if it has not in fact become due. In a typical lease, the term is for a year, and the payments are made monthly. This means that the Landlord is only entitled to the rent when the due date arrives.

Prepaid Rent and a Tenant’s Unwarranted Breach

If the Landlord is holding prepaid rent, and the Tenant breaches the lease by vacating prior to the expiration date of the lease, the Landlord will be able to tap into that prepaid rent that is or should be held in the security deposit account only when it becomes due.

Acceleration of rent is not permitted by the courts in Florida, so the Landlord would need to wait each month to be able to actually utilize the prepaid rent.  In the situation in which the Tenant breaches the lease with no legal basis whatsoever, having prepaid rent will definitely be advantageous to the Landlord.

Suppose the Tenant Has a Warranted Breach?

Many Tenants who breach a lease by vacating prior to the expiration date have or will fabricate a legal reason why they are breaking the lease. Reasons may include a failure by the Landlord to provide peaceful quiet enjoyment of the premises to the Tenant, defects in the property, failure on the part of the Landlord to make a legally required repair, or a host of other reasons which seem to come out of left field and astound the Landlord when the breach occurs and the Tenant is demanding a refund of the prepaid rent. That perfectly nice Tenant, when faced with having to break a lease for a job transfer or divorce, will come up with novel or bizarre reasons why breaking the lease was completely warranted and legal under Florida law. It is bad enough that Tenant can completely fabricate reasons why he will break a lease when there is no prepaid rent in the picture, and this only gets worse and more common if in fact the Tenant has more at stake.

Possibly the Tenant’s breach is completely warranted. Let’s say the Tenant just moved into an apartment. Two months after move-in, contractors begin replacing or repairing the concrete balconies. This Tenant, who coincidentally has a night job and sleeps during the day, now is faced with listening to jackhammers and construction crews all day long. Can this person break the lease? While the construction noise may not be the fault of the Landlord, it is clear that the Tenant’s peaceful quiet enjoyment of the premises is interfered with significantly. If there were no prepaid rent, the Tenant most likely would simply give notice and walk out of the lease, and the Landlord would have a difficult time enforcing the remaining balance of the lease, as this would probably be considered a good reason to break a lease by most judges.

If there is prepaid rent, many Landlords will insist on keeping the rent, and many Tenants will insist on getting it back. The result? Litigation. In the event of litigation, the Landlord will be faced with trying to convince a judge that the Tenant’s breach was improper, illegal and unwarranted. The Landlord will need to explain why he or she violated the law and touched the prepaid rent UNLESS the rent was already due. The Tenant will have an entirely different story, and if there are attorneys involved in the case, it will often become a bad situation.  

SOME NEGATIVE RESULTS OF PREPAID RENT

1. Tenant may break lease for whatever reason they come up with and prepaid rent can cause litigation.

 

2. Something may happen to the property and prepaid rent can cause litigation.

 

3. The tenant can file bankruptcy and you can be drawn into litigation by the Trustee regarding prepaid rent.
    
4. The tenant may be hiding money and this can be a fraudulent transfer so the rent may have to be frozen or returned to someone else.

 

5. You can’t give it all to the Landlord, you must give the monthly rent out each month.

 

6. It causes unnecessary excess money in your trust account and more trust accounting work.

 

7. The parties may divorce or one may vacate and this causes litigation.

 

8. The tenant may be in lease violation and prepaid rent will complicate the eviction and may cause you to lose.

 

9. The tenant may die and you can get dragged into a probate case.

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Taking prepaid OR advance rent for some or all of the term of a lease is dangerous and laws must be followed.

In most cases it is NOT recommended.

 

Requiring a last month rent is normal and while considered “advance” or “prepaid” rent, the same dangers do not apply. Note that this last month rent payment cannot be used by the Landlord until is legal to use it and it must be kept in the same account as the security deposit. 

Q. Can the Landlord use the prepaid rent now?   

A. Prepaid rent must be held in the same account as the security deposit.  It cannot be used or touched until it becomes due each month.

Q. What can occur if the Landlord uses prepaid rent that is not yet due for the month?

A. The Landlord can be charged with civil or criminal theft as the money does not belong to the Landlord until the money is due each month.

Q. If the Tenant pays prepaid rent and backs out of the deal can all the prepaid rent be retained by the Landlord and used by the Landlord?

A. NO.  Forfeitures are illegal. Prepaid rent can only be touched and/or used when it becomes due each month.

Q. Why can’t the Landlord use the prepaid rent immediately if the Tenant backs out or breaks the lease? 

A. It is illegal to touch or use any prepaid rent until the rent is due each month.  When a Tenant breaks a lease, the Tenant owes rent as it becomes due.  Acceleration of rent or “forfeiture” of that rent to the Landlord is illegal.

Q. This does not seem FAIR. Why can’t the Landlord take all the rent and use it?

A. Because it is illegal.  A Tenant owes rent as it becomes due until the lease is up or until the home is re-rented.

Q. If the Tenant fails to pay rent during the term of the lease and it is not the last month of the lease, can a last month rent held by the owner be applied?

A. NO.  Only if the Landlord and Tenant agree in writing at that time and use the proper form our office provides.

Q. Why even bother taking prepaid rent?

A. Taking prepaid rent creates an illusion of security for the Landlord and the negatives outweigh most of the positives.

Q. Can the property manager retain all the commissions from the prepaid rent when the Tenant pays the prepaid rent and moves in?

A. NO.  The money does not belong to the Landlord and no commissions can be taken from the money until such month where the prepaid rent is due and applied to that month.

Q. Are there other resources I can use to understand this?

A. Yes. The Landlord and property manager should watch the videos below and also read the below articles.

 

PREPAID RENT DANGERS VIDEO  https://vimeo.com/295649162

PREPAID RENT EXPLANATIONS VIDEO https://vimeo.com/295615477

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.

 

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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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