THE USUAL MEANS OF RETURNING ALL OR PART OF A TENANT’S SECURITY DEPOSIT IS BY CHECK. IT IS POSSIBLE IN MANY CASES TO SEND THE FUNDS ELECTRONICALLY.

 

1.   If you are returning all or part of a Tenant’s security deposit, the law does not require that you use a traditional check.

 

2.   You are allowed to send the Tenant’s funds to them in any way where the Tenant will receive these funds and not be charged a fee.

 

3.   If there are multiple Tenants, this presents an issue as you are NOT permitted to split the security deposit refund UNLESS all parties agree as to the amount of the split using the proper AGREEMENT.

 

4.  If the Tenants agree using the AGREEMENT to a percentage split of the deposit, you can electronically transfer these funds to the Tenants in the split percentage stated in the AGREEMENT.

 

NEVER SPLIT A SECURITY DEPOSIT REFUND UNLESS ALL THE TENANTS AGREE TO THE SPLIT PERCENTAGE IN WRITING.  IF THERE IS NO AGREEMENT, THE SECURITY DEPOSIT REFUND SHOULD BE SENT IN THE NAMES OF ALL TENANTS WITH “AND” BETWEEN EACH NAME AND IT IS UP TO THE TENANTS TO WORK IT ALL OUT.

 

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UNDERSTANDING THE LAW ON SCREENS

 

1.   When the Tenant moves in, screens must be present and in good repair per Florida law.

 

2.  In the event the screens need repair during the tenancy, the Landlord must repair them once annually.

 

3.  Some homes in Florida do not have screens on all windows and some windows do not function properly nor can be easily repaired due to age and lack of parts.

 

4.   If a home is missing screens or windows are inoperable and will not be repaired or made operational, we recommend that this is stated in the lease with the Tenant clearly acknowledging such.

 

5.   The Tenants acceptance at lease signing of the lack of screens or the fact some windows will be inoperable will most likely not matter if the Tenant were to contact code enforcement OR make this an issue in court.

 

 

6.  The Landlord should be informed prior to lease signing that they may be required to provide screens and/or make all windows operational if the Tenant were to press the issue.  

 

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1.  A Lease runs with the land.

 

2.  A Lease is not impacted by a sale.

 

3.  The current Lease does not have to be changed.

 

4.  The Buyer would notify the Tenant where to pay the rent.

 

5.  The Security Deposit and any advanced funds would be transferred into the new Escrow Account of the Buyer.

 

6. The Tenant must be notified of this and told where the funds are.

 

7.   The Buyer may wish to offer the Tenant a new lease or an addendum but the Tenant does not have to accept this as the current lease stands.

 

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UNDERSTANDING RENT ABATEMENTS  

 

1.   Do not offer rent abatements without proper legal guidance.

 

2. If you offer a rent abatement, you must use the proper FORM.

 

3.   Do not offer a rent abatement unless the property owner agrees IN WRITING.

 

4.   IF YOU PUT A TENANT UP IN A HOTEL, WE WILL NOT BE ABLE TO ASSIST YOU. THERE IS NO LEGAL OBLIGATION TO PUT A TENANT IN A HOTEL.

 

5.   If you offer a rent abatement verbally, we will NOT be able to assist you.

 

6.   If a home is uninhabitable, the Tenant should be terminated and removed from the property. Please read our information on this.   

 

 

It is crucial that you contact our office when something serious has occurred to the home or you have a dispute with the Tenant.

 

If you delay too long after a problem has begun, we will be unable to assist you. If you make any “deals” with the Tenant without legal advice first, we will not be able to assist you.

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MOST PROPERTY MANAGEMENT AGREEMENTS GIVE THE PROPERTY MANAGER THE RIGHT TO SIGN LEASES FOR THE PROPERTY OWNER AND TO RENEW THE LEASE. EXTREME CARE MUST BE TAKEN AT RENEWAL TIME.

 

1.  Most successful Property Managers are given a Power Of Attorney by the Property Owner to sign Leases. This is a signed witnessed and notarized document.

 

2.   The Property Management Agreement gives the Property Manager the power to sign the Lease on behalf of the Property Owner and the Power of Attorney makes this legal.

  

3.   Many Property Owners have an expectation that when a Lease is over, the Tenants will vacate. The Property Manager has an expectation that a good Tenant will be renewed for another Lease term. This expectation clash causes problems.

 

4.  The Property Owner may have reasons why they wish that the Tenant is NOT renewed.

 

1.  The Property Owner may wish to sell the house as unoccupied.
2. The Property Owner may wish to move in.
3.  The Property Owner may wish to engage in large renovations.
4. The Property Manager may have some reason unknown to the Property Manager that they do not wish to renew the Tenant.

 

5.  If the Property Manager renews the Tenant, it is possible that this was not the desire of the Property Owner.

 

6.  Once the Property Manager signs the Renewal Lease, the Property Owner is BOUND to honor the Lease.

 

7.  It is possible that the Property Owner has sent an email or communicated with a staff member and indicated that they did NOT want the Lease renewed and expected the Tenant to vacate.  This communication may not get to the Property Manager for whatever reason.

 

8.  It is crucial to CONFIRM one last time with the Property Owner their desire to RENEW a Lease BEFORE the Property Manager offers a renewal Lease or signs a renewal Lease.

 

9.  A communication breakdown can have serious ramifications when the Property Manager has the power to sign a Lease on behalf of the Property Owner.

 

EVEN IF A PROPERTY MANAGEMENT AGREEMENT GIVES THE PROPERTY MANAGER THE FULL LEGAL RIGHT TO SIGN A RENEWAL LEASE, ONE LAST CHECK SHOULD BE MADE WITH THE PROPERTY OWNER AND THIS SHOULD BE DONE IN WRITING.

 

WITH POWER COMES RESPONSIBILITY AND DANGER.

 

ALWAYS CONFIRM WITH THE PROPERTY OWNER PRIOR TO RENEWING A LEASE.

 

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OFTEN ONE TENANT WISHES TO BE REMOVED FROM THE LEASE AS THEY HAVE VACATED, OR A TENANT WISHES THAT A SPOUSE/PARTNER/ ROOMMATE IS REMOVED FROM THE LEASE AS THAT PERSON HAS VACATED

 

1.   You are under NO obligation to agree to allowing anyone off of a Lease.

 

2.   Any marital, roommate, job, or jail problem is the problem of the Tenants and not that of the Property Manager or the Owner.

 

3.   If you allow someone to be removed from a Lease, you just reduced the possibility of rent collection as you released a person from the Lease who may have been contributing towards the rent payment.

 

4.  If you allow someone to be removed from a Lease, they MAY decide to move back in and you cannot then force them to sign the Lease again.

 

5.   Divorce, separation, jail, or roommate disputes are NOT the problems of the Property Manager or the Owner.

 

6.   If you agree that a Tenant will be removed from the Lease, ALL parties must agree IN WRITING and this includes any remaining Tenants.

 

7.   If the remaining Tenants and the removed Tenant do not agree, then you cannot remove a Tenant from a Lease.

 

8.  It is NOT relevant that a Tenant has disappeared, moved, vacated or is in jail. The Tenants signed a lease and are responsible under the lease jointly and severally. If two people buy a car together, they BOTH have rights to the car and BOTH are responsible for paying for the car.

 

9.  If you, the Owner and ALL Tenants  (remaining and removed) agree that one Tenant will be removed from the lease, the PROPER FORM must be used so the person who is removed has NO claim to the Security Deposit/Last Months Rent no matter who paid the Security Deposit/Last Months Rent.

 

WHEN A TENANT ASKS TO BE REMOVED FROM A LEASE OR A TENANT WISHES THAT ANOTHER TENANT IS REMOVED FROM A LEASE, YOUR RESPONSE USUALLY SHOULD BE “NO”.

 

IF YOU AND THE PROPERTY OWNER AGREE THAT ONE TENANT SHOULD BE ALLOWED TO BE REMOVED FROM A LEASE, THE PROPER FORM MUST BE USED OR YOU MAY HAVE A HUGE DISPUTE WHEN THE REMAINING TENANT VACATES AND THE REMOVED TENANT REAPPEARS AND WANTS THE DEPOSIT OR A PORTION OF THE DEPOSIT.

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UNDERSTANDING THE PROCESS SERVER AND HIS OR HER ROLE IN THE EVICTION PROCESS

 

1.   Once your eviction is filed with the County Court, the paperwork is served by the PROCESS SERVER.

 

2.  A PROCESS SERVER is a person appointed/authorized by the Court and is allowed to serve eviction paperwork to speed up the eviction process.

 

3.   The PROCESS SERVER must try to serve an adult person who resides at the home in person.  If a person is not home, the PROCESS SERVER must come back at least 8 hours later.  If a person is still not home, the PROCESS SERVER is allowed to tape the eviction paperwork to the door of the home.

 

4.  The PROCESS SERVER creates an AFFIDAVIT OF SERVICE that is filed with the Court showing when and how the paperwork was delivered.

 

5.  In the event the Tenant claims that they did not receive the eviction paperwork, the PROCESS SERVER is available to come to court and testify that the papers were served.

 

6.  Generally, the PROCESS SERVER charges the same or a bit more than the Sheriff to serve evictions but it is well worth using the PROCESS SERVER for speed and evidence.

 

“Serving the Property Management Professional”

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ALLOWING OR REQUIRING A TENANT TO PRESSURE WASH IS A MAJOR MISTAKE BUT WE WILL PUT THE WORDING IN THE LEASE IF REQUESTED.

 

1.       Who will be pressure washing?
2.       Does the person pressure washing have to be licensed and insured?
3.        Who will be paying for the pressure washing?
4.        When will pressure washing be required?
5.        Who will require the pressure washing?
6.        How will the Tenant be notified?
7.        What exactly will be pressure washed?
8.        When is pressure washing to be started?
9.        When is the pressure washing to be completed?
10. Has the Landlord been fully advised of the dangers in requiring the Tenant to pressure wash?
11. Does the Landlord understand the severe dangers in allowing a Tenant to use a pressure washer?
12. NOTE: SAYING THE PREMISES WILL BE PRESSURE WASHED “AS NEEDED” WILL NOT BE PUT IN THE LEASE BY THE LAW OFFICES OF HEIST, WEISSE & WOLK, PLLC  THIS IS FAR TOO VAGUE AND WILL CAUSE A LEGAL DISPUTE.

 

Allowing a Tenant to have anything to do with pressure washing is dangerous and not advisable. 

 

The Landlord should be fully informed of these dangers and clearly state to the Property Manager in writing that they shall not hold the Property Manager liable for any disasters which may occur.  

 

The Law Offices of Heist, Weisse & Wolk, PLLC will not be responsible for any problems which may occur if the Tenant is allowed to have anything to do with pressure washing.

 

PLEASE WATCH THIS VIDEO: https://vimeo.com/569956374 

“Serving the Property Management Professional”

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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