This article will not address the issues of the manager’s response to the denial of access or obtaining access when denied. 

To state the obvious, the manager, as well as anyone else, can enter the rental at any time with the consent of the resident. This is based on the well-known legal principle that someone with the lawful right of possession can invite another onto the property. Florida Statutes confirm the manager’s immediate right of access when the resident so consents.

Lease Provisions

The Landlord/Tenant Act provides for the manager’s right of access to the rental. The manager can expand upon that statutory right of access by well drafted lease provisions. If the lease provision is unreasonable, it runs the risk of being set aside as contrary to the statute or unconscionable. Enumerating specific reasons for entry has the advantage of avoiding arguments on entry for those purposes, but it has the disadvantage of generating arguments when an unlisted purpose arises. If the manager foresees the need to enter for a particular purpose, it is a good practice to list that reason specifically in the lease, without limiting the general right to enter. Some enumerated reasons for access are: estimating repair or refurbishing costs, doing repairs, pest control, and preventive maintenance, such as filter changes or testing or replacing smoke-detector batteries, conducting inspections, preventing waste of utilities, installing, reconnecting, or removing security devices, showing the residence to prospective purchasers or residents, and removing hazardous materials.

Consent of the Resident

Florida Statutes 83.53 provides that the manager may enter the rental “with the consent of the resident” for the purposes “to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, residents, workers, or contractors.” The most common method of gaining access is obtaining consent of the resident, whether it be for inspections, services, repairs, or showings. In response to a phone call or email, the resident approves the entry into the rental. If the resident’s approval is over the phone, the manager should make a note in the resident’s file of the authorization, including time, date and initials of the staff member who spoke to the resident. In cases when a resident disputes his oral approval, a manager should secure future approvals in writing or follow the statutory notice provisions.

The statute is silent on whether the resident’s consent can be implied. Managers, or their repair personnel or vendors, have been known to knock, and when no one answers, enter without any prior notice to the resident. The basis for this access is the “implied” consent of the resident allowing entry in response to the resident’s request for repair, or the lease obligation to provide periodic service or maintenance. A manager’s reliance on implied consent may be more reasonable when it is in response to a request for maintenance or repair. A manager’s reliance on implied consent may be unreasonable when service or maintenance is conducted that is infrequent and likely unexpected by the resident, such as unannounced service of the smoke alarms or air conditioner. In the middle ground are expected services like pest control; a better argument can be made that implied consent is given for those services which occur on a predictable schedule.

Managers should include a provision in their lease confirming that such access is deemed to be with the consent of the resident, unless the resident indicates otherwise in writing to the manager. Even then, managers rely on implied consent at their own risk. Since the statute doesn’t explicitly provide for implied consent, and the common definition of consent would be a verbal or written authorization from the resident, a judge may not be inclined to expand the meaning of consent.

Reasonable Notice

FS 83.53 provides that the manager may enter the rental “upon reasonable notice to the resident and at a reasonable time for the purpose of repair of the premises.” Note that this is access for repair only. Reasonable notice for repair purposes is “notice given at least 12 hours prior to the entry”. Reasonable time for repair is “between the hours of 7:30 a.m. and 8:00 p.m.” Outside of consent, the most common method to gain access for repair is by posting on the door a notice to enter the next day. Although the statute provides that 12 hours is reasonable notice, the 12 hour reasonable time window for access makes same day notice and access totally impractical for non-emergency repairs.

Because the statute provides for a 12-hour notice and 7:30-8:00 time for repairs, these have become the safe harbor as reasonable notice and time for all notices and entries. If the entry is for something that a reasonable person (read here “a judge”) would think needs more notice, then more notice should be given. While a day’s notice may be sufficient for repair of the sink faucet drip, more notice would be reasonable for carpet replacement, when the resident would be required to clear a room or rooms of everything but furniture. Managers are reminded that the preferred method of entry in all situations is a mutually satisfactory time and date with the resident.

Emergency and Protection or Preservation

Florida Statutes 83.53 provides that the manager may enter the rental “at any time for the protection or preservation of the premises.” Additionally, the statute provides that the manager may enter the rental premises without notice “in case of emergency.” The fact that the statute provides separately for access in an emergency and for access to protect and preserve means that they are not always the same thing.

The common understanding of “emergency” is a set of circumstances demanding immediate attention, but there is clearly a subjective element as to whether an emergency exists. In most instances the need to protect or preserve will constitute an emergency. However, if the manager finds herself in a situation in which the resident argues that it was not an “emergency”, and that the manager unlawfully entered, the manager may be able to rely on the broader “protect or preserve” justification. Consider the situation in which the manager can hear a dog howling in the apartment, and the neighbors are upset with good reason. The howling has been going on since the previous evening. The dog’s owner hasn’t been seen, and the manager has been unable to reach the resident. Posting a 24-hour notice to enter could mean another night and day of howling. There may be a serious problem in the apartment, causing the incessant howling. At the very least, the dog hasn’t been out of the apartment to relieve itself. The manager will have a good argument that the situation required her to give entry to the police or animal control to protect and preserve, regardless of whether a true emergency existed.

The manager should not abuse the right to enter by claiming an emergency or the need to protect or preserve. Some sense of urgency should exist before immediate entry is obtained under the justification of protecting and preserving the premises, such as dealing with rotting food left in a refrigerator with no power, or feces left on the flooring. The manager should have a credible belief that a serious and immediate danger to the health or safety of someone exists, or that a real potential for significant damage or destruction to property exists. The danger can be to other residents, guests, the manager’s personnel, vendors, the general public or even the resident himself, or the property of any of them. The manager should remember that his actions may be reviewed by a judge, who can differentiate between good faith access and sham excuses to enter an uncooperative resident’s home. The appropriate response to a denial of access is a Seven Day Notice of Noncompliance with Opportunity to Cure, not a contrived emergency.

Unwarranted Entry

An unwarranted entry into a rental by the manager, his staff or vendors can have serious repercussions and should not be taken lightly. Should the resident appear, the entering individual can find himself being interviewed by the police based on the resident’s claim of trespass, theft or worse. Should the resident be home, the risk of violence is real in a state where shooting someone in the belief that they are entering your home without authorization happens. The resident can claim a breach of the lease and seek termination of the lease and/or damages. When a manager needs entry and is unsure of the guidelines, he should call his attorney.

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The most common lease noncompliance is of course nonpayment of rent. Most managers are quite familiar with this problem and know to serve a Three Day Notice in accordance with the law. If the rent is not paid within the three day time period excluding Saturdays, Sundays and legal holidays, an eviction can be filed, and the resident most likely will be evicted. Life though is just not that simple. Many residents engage in other non-rent noncompliances, such as having the unauthorized occupant, unauthorized pet, excessive noise disturbances or simply having a grill on the balcony which violates the fire code. There are many noncompliances that the resident will engage in, necessitating the manager to serve the Seven Day Notice to Cure. This notice gives the resident seven days to either start doing something he is supposed to do, or stop doing something he is not supposed to be doing, or else the manager may have a right to terminate the tenancy and begin an eviction if the resident fails to vacate. The situation becomes complicated when the resident is out of compliance with a lease provision unrelated to rent AND rent becomes due in the meantime. Timing of the notices and the actions of the manager can determine whether or not the notices will remain valid and support an eviction.

The Continuing Noncompliance

 

Examples of noncompliances that would be considered “continuing in nature” include an unauthorized occupant or unauthorized pet. Here we have knowledge that the resident is in noncompliance, and the resident is served a Seven Day Notice to Cure. Let us assume the resident is served this notice on the 27th of May and on June 1, rent becomes due. The manager goes out to the property on June 5th, presumably to serve a Three Day Notice, as no rent has been received for June. She sees the unauthorized occupant’s vehicle, serves the Three Day Notice and leaves. The resident then comes into the manager’s office and hands the manager the rent check. The manager takes the check and deposits the money. Five days later, which is 13 days after the manager has served the Seven Day Notice to Cure for the unauthorized occupant, the manager again sees the occupant’s truck in the driveway. It is clear that the resident has not cured the noncompliance. Can the manager terminate the tenancy? Quite possibly not. Florida law provides that if rent is accepted with knowledge of a noncompliance, the right to terminate the tenancy is waived, but not for any subsequent or continuing noncompliance. Under the above fact pattern, some judges will interpret the statute to mean that the manager has waived its right to terminate until July. Some judges may also rule that a permanent waiver has occurred, although this does not seem to be a correct reading of the statute.

 

Should a Manager Accept Rent When there is a Continuing Noncompliance?

 

From the preceding example, it appears clear that the manager should NOT accept rent or serve any type of demand for rent, i.e., the Three Day Notice, if a Seven Day Notice to Cure has already been served and the noncompliance has not been remedied.

 

Noncompliances Which Are Not of a Continuing Nature

Unlike the unauthorized pet or occupant situation that is most likely a continuing noncompliance, the manager will encounter situations in which the resident is in noncompliance and then cures the noncompliance, only to go into noncompliance at a later time. Examples might include a gas grill on the balcony or the resident who sporadically plays very loud music. The Fire Marshall may prohibit gas grills, or it may be in violation of the lease or condominium rules and regulations. The manager serves the resident with a Seven Day Notice of Noncompliance with Opportunity to Cure, and the resident removes the grill from the balcony, hopefully not into the unit where it can be a fire hazard. Rent becomes due, a Three Day Notice is served, and the manager accepts rent. Two weeks later, the grill reappears. Since the noncompliance was cured at the time the Three Day notice was served and rent accepted, the manager’s acceptance of rent should NOT jeopardize the ability to terminate the tenancy due to the reappearing grill.

 

Is a Noncompliance Sporadic or Continuing?

 

Sometimes we hear managers say that they thought the resident had cured the noncompliance because the resident had received the notice. Did the manager actually check to see if it was cured, or did the manager just assume it was cured? Did the manager make sure the grill was removed from the balcony? Once a Seven Day Notice of Noncompliance is served, it is incumbent on the manager to investigate to see if the problem was solved before serving the Three Day Notice. If not, it is possible what was assumed to be a sporadic or easily cured noncompliance was not cured.

 

The Tenancy Has Been Terminated By a Seven Day Notice to Terminate

 

If the resident fails to cure a noncompliance, the manager should contact his attorney and seek guidance on whether the tenancy can in fact be terminated. If so, and at last resort, the resident is served a Seven Day Notice of Termination. This is a very powerful notice boldly proclaiming that tenancy has been terminated. A Seven Day Notice to Cure is a warning, while a Seven Day Notice to Terminate says “get out within 7 days”. But wait. Rent is now due, and the manager needs the money. The resident drops off the rent check and the owner who desperately needs the money deposits the check. Yes. You are correct. The Seven Day Notice of Termination is now null and void. The owner now cannot terminate the tenancy because he has accepted the rent.

 

Conclusion

Your best bet is always to have your attorney walk you through the Seven Day Notice procedure and guide you along the way. Always remember that if you have served a Seven Day Notice to Cure or a Seven Day Notice to Terminate, you may or may not be able to accept rent. The next time the situation arises, just remember the slogan, “you cannot have your cake and eat it to”, when you get the urge to accept rent after a seven Day Notice has been served. If you have an office with employees, allow residents to direct deposit or pay by credit card, be sure you have a mechanism in place to prevent a rent check from being inadvertently accepted from the resident in noncompliance.

 

 

“Serving the Property Management Professional”

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Residential oral leases of less than one year are enforceable contracts. The usual form of residential oral leases is monthly, and references in this article to oral leases will be to monthly oral leases. A monthly oral lease does not become a lease of greater than one year if it is renewed and the tenancy continues for more than one year. It remains an enforceable monthly oral lease no matter how long possession continues.

Agents

Oral leases are commonly found in situations in which the manager is directly entering into an agreement with the resident. However, an agent for a management company can enter into an oral lease, on behalf of the manager, with the resident. In this situation, another level of complexity enters the matter as to the agent’s authority, scope of the agent’s employment, etc.

Tenancy At Will

An oral lease creates a tenancy at will, that is, a tenancy that can be terminated by either party at any time without any reason. To have a valid tenancy, there must be some basis for concluding that one party was giving the other party the right to possession of the property. A court won’t create a tenancy without sufficient proof that one was intended to exist.

Filling in the Details

The oral agreement between the parties outlines the terms of the tenancy. Like most oral contracts, an oral lease is usually a general agreement without much detail. So how are the missing details filled-in? Since a lease is a type of contract, contract law applies to leases. Some Florida statutes, which are generally applicable to contracts, apply to leases. Some Florida statutes apply only to leases. Chapter 83, Part II, of the Florida Statutes will supply certain missing terms if not otherwise agreed. For example, absent the parties agreeing, the statutes dictate how much time must be given for a notice of termination, what the manager’s and the resident’s duties are, and some other provisions.

Case law

Where neither the parties nor the statutes supply the terms, a judge may provide them. The judge consults “case law”. These are the legal principles developed on a case by case basis over the years. These principles help the judge interpret and apply the law in manner that is designed to be consistent.

The course of dealing between the parties is a prime example of such a legal principle. This is really a form of the old adage that actions speak louder than words. What the parties are actually doing is the best indication of what they agreed to do. Another such legal principle is looking to industry standards and local custom for guidance. This allows a judge to ascertain what the parties’ agreement probably was by looking to what is usually done by a manager or resident in that situation in that locale.

Testimony

Finally, the judge will rely on testimony of the parties and other witnesses. Factors affecting the evaluation of testimony include the credibility of the witness, the reasonableness and consistency of his story, and the common sense assessment of his position.

 

Warning

One warning: an old legal principle is that the law will not save the manager or resident from a bad deal. Absent fraud or such other reason, the judge will not remake the terms to relieve either party of an oral lease that he no longer wants.

 

“Serving the Property Management Professional”

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Occasionally a manager will be faced with that unfortunate situation where a resident who has an authorized pet, signed a pet addendum and paid a pet deposit, vacates owing rent, has damaged the premises, but none of the damage is pet related. It is extremely difficult for the manager to accept that the resident may be entitled to a refund of the pet deposit, in light of all the other money that is owed by the resident who breached the lease agreement. Unless the manager has structured the deposit agreement the correct way, the manager has no choice but to refund the pet deposit. Having to return a pet deposit to a resident who owes you money, or worse yet, a resident who was evicted, can be frustrating indeed. The problem can be solved simply by proper lease and/or pet addendum wording.

Collecting a Pet Deposit - A pet deposit is by its nature refundable. All “deposits” are refundable, while fees are non-refundable. If something is designated a pet deposit with no other qualifying language, that refundable deposit is for pet damage, and in the event there is no pet damage, the deposit gets refunded. There is no such thing as a non-refundable pet deposit. This is an oxymoron, since all deposits are refundable. If the manager collects a pet deposit, this amount must be kept in the same account that the manager keeps the security deposit or any other advanced rent, and the deposit is treated the same as a security deposit. The deposit cannot be used by the manager while the resident is residing on the premises, unless the resident specifically agrees in writing that the manager is permitted to use this money.

Collecting a “Pet Fee” – A pet fee is an amount paid to the manager for the resident to have the privilege of having a pet on the premises. Once paid, this fee belongs to the manager at the time of payment. It is never refundable, as it would then be a deposit.

Should you collect a Fee or Deposit? – We recommend collecting both a pet fee and a deposit, as there is a high likelihood that even if there is no obvious pet damage, the unit will have fleas which will become evident 1-2 weeks after the residents and their pet(s) vacate the premises. As most pet owners do not believe that their pets have fleas, but most managers know what occurs when a pet is taken from the premises, and the flea eggs hatch and do not have an animal on which to live, there is an almost guaranteed problem and dispute with the resident when the resident is told that he or she will be charged for flea extermination. Since the damage to the premises could be more substantial than just a flea infestation, taking a deposit in addition to a fee is advisable.

The Pet Addendum problem – Most pet addendums simply make a statement that there will be a pet deposit or a pet fee which will be used for pet damage. Even if it does not specifically state that it will be used for pet damage, there is an implication that a pet deposit will only be used for pet related damages. This prevents the manager from using the money for anything other than pet related damage.

The easy solution - In your lease or pet addendum, there needs to be a sentence similar to this: “The pet deposit may be used by management/manager for any damage related to the pet(s) and for ANY other monies owed by resident under the terms of the lease and for physical premises damages, whether pet related or not”.

As you can see, this clause allows you to use the pet deposit for non-pet related damages or other monies which the resident may owe. Some property managers avoid the pet deposit issue altogether by simply charging a higher security deposit which can be used for any monies owed under the lease terms. If you make a decision to charge residents with pets a higher security deposit, make sure that it is clear that the higher security deposit requirement is due to the fact that the resident has a pet. One of our clients was wrongfully charged with discrimination when a fair housing tester who was a member of a protected class was quoted a higher security deposit by the manager, and another tester who was not from a protected class was quoted a lower deposit. On its face, it appears that discrimination had indeed occurred, but the facts showed that the first tester stated that they had a pet, and the manager upped the security deposit accordingly due to the pet. The second tester did not mention the possibility of a pet and thus was quoted a lower security deposit. 

 

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Before Equity v. Yates

 

Prior to the court case of Equity v. Yates, landlords and tenants could agree on just about anything when it came to penalties in the event of a lease break. The decision in Equity v. Yates limited this severely.

 

Before The Law Change

Before the change to Florida Statute 83.595, when a Tenant chose to break a lease by vacating before the end of the lease, commonly called “skipping” or vacating early, the Landlord was only allowed to charge the Tenant rent through the earlier of the lease expiration date or the date a replacement Tenant took occupancy. In addition, many companies also charged a Termination Fee, Termination Penalty or Liquidated Damages charge, BUT in a major Florida class action lawsuit, the judge in that particular case ruled that these various practices were unlawful and inconsistent with Florida Statute 83.595.

The Current Law

A common misconception is that under the current law, when a Tenant vacates early, you can NOW charge the Tenant a Liquidated Damages or Early Termination Fee. This is only partially correct, and it is crucial that you understand the law.

Under the law, you can give the Tenant a CHOICE to either owe a flat fee “Liquidated Damages/Early Termination Fee” OR owe rent until the unit is re-rented. The TENANT makes the choice, NOT you. If you do not want to give the Tenant this choice, you will not use the Addendum, and you can ONLY charge the Tenant your rent loss, as has been the law.

Suppose You Want To Hold The Tenant To All The Rent Due Under The Lease?

If this is what you want to do, then simply do it. The law still allows you to do this. You will not give Tenants a choice in the matter, and if a particular Tenant vacates early, you will charge rent as it becomes due under the terms of the lease until the unit is re-rented. In a soft market, when it may take a while to re-rent a unit, this is your best bet; you really do not need to read any further, AND you will NOT use the Addendum.

Suppose You Want To Charge The Tenant a “Liquidated Damages/Early Termination Fee” When They Vacate Early?

You CAN if and only if 2 things occur:

A. You present the attached Addendum to the Tenant AT THE TIME OF LEASE SIGNING

AND

B. The Tenant picks Choice #1

What Happens If The Tenant Picks Choice #1?

You can charge the Tenant a flat “Liquidated Damages/Early Termination Fee” of a maximum of 2 months’ rent when they vacate early and NOTHING more other than rent, and charges they may owe at the time of vacating early. The Tenant may or not pay it, but if not paid, this 2 months’ rent can be sent to collections.

What Happens If The Tenant Picks Choice #2?

You can charge the Tenant rent that he owes at the time he vacates and rent as it becomes due until the unit is re-rented or the end of the lease, whichever occurs first, just like you have been doing or should have been doing all along.

Can You Charge the Tenant a Concession Payback?

The law does not clearly provide that you can or you cannot. If the Tenant picks Choice #1, it may be dangerous to charge a concession payback, because some judges are apt to consider a liquidated damages charge as exclusive.

Now For Some Q&A:

Q—Do I have to use the Addendum?

A- Absolutely not. It is your choice. If you don’t provide the Addendum to the Tenant to sign, the Tenant will owe rent that is owed at the time the Tenant leaves early PLUS all rent as it becomes due until the unit is re-rented or the end of the lease, whichever occurs first.

Q—Can I have current Tenants come in and sign the Addendum?

A—No. You can only use the Addendum at lease or renewal signing.

Q—Do I need to fill in all the amounts on the addendum before I give it to the Tenant?

A—Yes, do not leave anything blank.

Q—Suppose I use the Addendum and the Tenant picks Choice #1?

A—If the Tenant chooses to vacate early, you can only charge the Tenant 2 months’ rent plus whatever they already owed you for rent or other amounts under the terms of the lease. NOTHING MORE.

Q—Suppose I use the Addendum and the Tenant picks Choice #2?

A—You can charge the Tenant rent that is owed at the time the Tenant leaves early PLUS all rent as it becomes due until the unit is re-rented or the end of the lease, whichever occurs first.

Q—Can I force the Tenant to sign the Addendum?

A—No. If the Tenant refuses to sign, they simply will owe rent that is owed at the time the Tenant leaves early PLUS all rent as it becomes due until the unit is re-rented or the end of the lease, whichever occurs first.

Q—Should I utilize the new law and use the Addendum?

A- It is purely a business decision. In a soft market, it would be better not to utilize the new law and the Addendum. If you feel you will rent out the unit in less than 2 months, it would be better to use the Addendum IF the Tenant picked Choice #1. There is no guarantee what the Tenant will choose.

Q—Can I force the Tenant to pick a particular Choice, #1 or #2?

A—No. If you use the Addendum, you are at the mercy of the Tenant and his choice.

Q—Can we require the Tenant to give notice before he vacates early if he picks Choice #1?

A—Yes, but if he does not, you can only charge the 2 months’ rent amount as if he simply walked out on you tomorrow.

Q—If the Tenant picks Choice #1 and gives us notice, can we charge the Tenant through the notice period PLUS the 2 months’ rent?

A—NO. You can ask the Tenant to give you notice, BUT you cannot hold him to it.

Q—If I decide to use the Addendum, must I offer it to everyone?

A— For Fair Housing purposes if you use it for one, you should use it for all, at least in a given time frame.

Q—Why does the Tenant get to make a choice? Why can’t we just charge them liquidated damages?

A—The Tenant only gets to make a choice if you decide to use the Addendum. The Governor said he would not sign the bill into law unless the Tenant was given a choice, so the bill was amended late in session to get it passed.

 

                                         “Serving the Property Management Professional”

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PURPOSE OF CORPORATE TENANTS: The common reason given by a corporate tenant is that it must be done this way so the company can pay the rent.  The IRS does not care whose name a lease is in be it an individual or a corporation. If it is deductible as a business expense, it will not matter whether it is in a corporate name or not. The usual purpose of a corporate tenant is to avoid personal liability for the occupant at the expense of the property owner with whom the property manager owes a fiduciary duty.

NAME OF CORPORATION: Often the exact name of the corporation is misrepresented by the corporation and ends up on the lease. The corporation must be researched thoroughly and cannot be listed under its fictitious name.

OUT OF STATE CORPORATIONS: Many out of state corporations have not registered in Florida resulting in no way to check the validity of the corporation and requiring that we serve the registered agent in the state of the corporation according to the laws of that state causing huge eviction delays.

NO ASSET CORPORATIONS: Many corporate tenants are the corporate entity that a business holds with no assets for the sole purpose of avoiding liability.

BANKRUPTCY:  If the event a corporation files a bankruptcy, it is usually a Chapter 11 reorganization resulting in a substantial loss of rent and eviction delays of over 3 months in addition to the normal eviction time frame.

AUTHORITY OF SIGNERS:  Often the corporate lease is signed by a party who does not have the actual authorization to sign the lease on behalf of the corporation resulting in the corporation successfully denying liability under the lease.

COLLECTIONS: Collecting against a corporate tenant is almost impossible as a “deadbeat” corporation often is dissolved or has no assets and there is no easy way to mar the credit of the corporation. The occupant’s credit is untouched.

CREDIT CHECKING:  It is nearly impossible to run a proper credit check on a corporation.

OCCUPANTS: If there is a corporate rental, the occupants may have criminal backgrounds or credit issues but this will not be discovered as no proper check can be made on the corporation.

LIABILITY TO THE PROPERTY MANAGEMENT COMPANY: When a corporate tenant must be evicted, breaches the lease or skips on the lease, the property owner is surprised to find out that they have been placed in serious jeopardy by the fact that the tenant was a corporation and often attempts to hold the property management company liable for the loss and failure to warn of the dangers.

RECOMMENDATIONS: Avoid corporate tenants without co-signers at all costs UNLESS it is an established company, the proper name has been researched and the officers of the corporation have authorized the rental in writing.

 

 

“Serving the Property Management Professional”

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Although it is difficult to determine who is winning the race between cable companies and dish networks, there can be no question that more and more residents are opting to get their entertainment through a satellite dish. Can the manager refuse to let the resident install a satellite dish? Are there any restrictions?

The Federal Communications Commission

In 1998, the Federal Communications Commission enacted rules to help TV viewers (and the satellite television industry). The rules prohibit unreasonable restrictions that impair the installation, maintenance or use of satellite dishes that are less than one meter (39") in diameter. The rules state that a manager cannot unreasonably deny a resident from having a satellite dish on the premises that is within the leasehold and under the exclusive use or control of the resident. The rules apply to managers, homeowners' associations, and condo associations (among others).

Placement of the Dish

The manager cannot stop the resident from erecting a dish if it is placed in an area that is under the exclusive control of the resident. That means areas where only the resident (and no one else) has the right to be present. Premises include the interior of the unit, balconies, balcony railings, terraces, patios, yards or gardens.

Premises DO NOT include outside walls, roofs (unless they are under a resident’s exclusive control), window sills, or other common areas. If the resident wants to erect the satellite dish in a common area, then the manager can prohibit the dish.

In the case of a condominium, all property is considered to be common area except the air space of the units and the portions designated as limited common elements (such as a patio or balcony). In other words, condominiums may restrict satellite dishes from being in the common areas. However, the resident has the protection of federal law if he wants to install the dish within the boundaries of the condo unit.

Liability

The resident is liable for any liability arising from the installation of a satellite dish. This is because the dish is located only in a location that under the exclusive control of the resident. The FCC includes this in its rules.

Property Damage

A manager can require that the installation of a satellite dish be done in a way that does not damage the premises. A manager can prohibit drilling holes in walls, using nails or screws, piercing roofs, or causing any damage more than ordinary wear and tear. Clamps or straps should be permitted.

Hopefully, the lease requires the resident to obtain written consent of the manager before beginning any alteration. Such a provision would give the manager a way to protect his property. Property managers should check for installation equipment, and if present, take photos.

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A common mistake when renewing a lease is to use a standard lease renewal or draw up a new lease omitting any reference to money that may be owed from the expired or expiring tenancy. Late charges may have accumulated, the resident may owe for some damage, or there may be NSF charges or some other charges that have been incurred under the prior lease. Once the new lease is executed, while the resident may still owe you the money, there is no enforcement mechanism to collect it. You cannot evict under the new tenancy for money owed under the prior tenancy, UNLESS the new lease or renewal clearly spells out that there is a balance owed and states how the resident shall pay this balance.

What Might Be Owed From the Prior Lease?

A resident can easily have accumulated late charges, NSF charges, unpaid water, sewer or garbage bills, unpaid repair bills or almost any other amount that could have been incurred over the past year. The manager will most likely want to collect this money and does not intend to write the amounts off when giving the resident a new lease. The manager has a full expectation that the resident will pay these sums. But will he?

Tying in the Old Balance to the New Lease

When preparing the new lease, it is crucial that terms of the new lease contain the past or accumulated amount due, a definition of this amount as “additional rent” and the payment arrangements. We recommend that the amount is spread out in a reasonable fashion and due with the resident’s rent payment as “additional rent” until paid in full. Done this way, if the resident fails to pay, the resident can then be given a Three-Day Notice for non-payment, and an eviction can be instituted if necessary. We do not recommend that you accept the normal monthly rent without the resident paying the full rent amount and the “additional rent” at that time. If you wish to have a separate form for dealing with the amounts, terms and conditions we recommend a Past Due Amounts Workout Agreement

The New Lease Does Not Reflect the Past Balance; Is the Money Still Owed?

The execution of a new lease does not wipe out the prior debt, but creates two distinct problems. First, if the prior debt was debatable or in dispute, the manager’s actions in entering into a new lease certainly favors the resident, and secondly, the ability to evict the resident under the new lease for amounts incurred under the old lease are slim at best. With that said, the resident still owes the money, and the manager can at some time attempt to collect this money through litigation or other means, but much of the leverage is gone. Before you renew a lease, always check to see if money is owed, and carefully reflect this in the new lease.

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There will come a time when a resident will want to be removed from a lease, or another resident will want his or her co-resident removed from a lease. In the first instance, the resident comes to you and asks to be “let out” of the lease for whatever reason. Possibly they have “broken” up with the co-resident, having problems with the co-resident, or it could be something as innocent as a job transfer, in which the resident just wants out of the lease obligations. In the touchier situation, a co-resident wants another resident removed from the lease. This usually occurs when one resident has left the apartment, skipped out, is in jail or just plain disappeared. The remaining resident often wants the co-resident removed from the lease so he can get another resident on the lease, or sometimes it is an attempt by one resident to try to keep the other resident away from the property. In other words she is attempting to “evict” the resident in her own way and trying to use you to assist her.

Do You Have to Remove a Resident From a Lease if Requested?

There is absolutely no legal requirement that you must remove a resident from a lease. Sickness, domestic issues with the other resident, job transfers or any other reason why a resident may want out of a lease are not “legal reasons” which would require the manager to remove a resident from the lease. However, there may be instances in which even though the manager is not required to remove a resident from a lease, a judge could feel that the resident’s reason is such that you should. We need to remember that in county court, the court in which most situations regarding manager resident law are heard, you are dealing with judges who will sometimes make decisions not necessarily based upon the law, but rather equity, and what the judge feels is the right thing to do. To put it bluntly, the county court judge will sometimes do whatever he or she wants to do, and you are stuck with it; your only recourse is to appeal the decision in circuit court, and we all know this is not usually economically feasible. If the resident has a particular disability that makes it difficult or not feasible to live on the premises, you may want to consider letting him out of the lease. An example would be a resident living in a second floor unit in a building with no elevator. The resident acquires a disability which is preventing him or her to get up the stairs, and no downstairs units are available. This would probably be a case in which you would allow the resident to be removed from the lease.

One Resident Wants to be Removed From the Lease

If a resident comes to you and wants to be removed from the lease, as we have said, you can just simply say no. The resident will then probably vacate the premises, leaving the other resident behind, and both residents will continue to be liable under the lease terms, regardless that one resident no longer resides on the premises. If the other resident continues to pay the rent, no harm has been done. Our office does not recommend that you remove a resident from a lease, because it is not required, and secondly, you potentially lose your ability to collect your money due under the terms of the lease agreement. With that said, we know that managers sometimes will in fact agree to let a resident be removed from the lease. If this is done though, what about the security deposit? Did not one or both residents pay this security deposit and/or last month’s rent when they moved in? Who gets this money if one resident is removed from the lease? If you are going to allow a resident to be removed from a lease, these issues need to be dealt with in writing.

One Resident Wants the Other Resident Removed From the Lease

If one resident comes to you and asks that you “take the other resident off of the lease”, you can be fairly well assured this will not be possible. In most cases it is requested when a resident has either left the area, is in jail or in domestic violence situations. The one resident feels that you have the power to unilaterally take the other resident off of the lease, and thus the remaining resident can prevent the resident you took off the lease from residing on the property. You just cannot unilaterally remove a resident from a lease, unless the resident who is leaving agrees, and this agreement is in writing. It does not matter where the resident is or what the resident did, the resident has an interest in the property and is subject to all the rights and responsibilities of the signed lease. The fact that the resident was put in jail for murder does NOT give you the power to remove this resident from the lease. When asked by a resident to remove the other resident from the lease, you need to explain that it is not possible.

One Resident Has Disappeared and the Remaining Resident Wants His Friend ADDED to the Lease

Again, it cannot be done. You would be interfering with the lease that both residents signed, specifically that of the resident who is no longer residing on the premises but still has rights and obligations by virtue of signing the lease.

The Lease is up For Renewal But One Resident is now Gone

In the case where the lease is up for renewal, it is possible to renew the lease only in the name of the remaining resident or add another resident if and only if the other original resident on the lease is gone and you can confirm this completely. You need to be extremely careful when doing this, because possibly the resident who is gone is simply temporarily detained in a jail or mental institution. The other big issue is the security deposit. You cannot just transfer the security deposit to the new lease, unless all the original residents are on that new lease. Remember, the security deposit belongs to the residents who originally signed the lease. The fact that one resident is gone does not automatically vest this security deposit in the remaining resident. Prior to entering into a new lease, we recommend that you ask the remaining resident for a brand new security deposit, and you do your normal disposition of the original security deposit by sending out the Notice of Intention to Impose Claim on Security Deposit and following all the procedures required by Florida Statutes 83.49. A very common mistake made by managers is to simply carry over the security deposit to the new lease. This is absolutely wrong if the residents are not the same.

Does the Remaining Resident Have to Agree to the Manager Removing a Resident From the Lease?

It is a good idea. Case law has held that releasing one resident from the lease may result in the release of the other resident from the rent obligations. You might think that a manager has the full right to allow one resident completely out of the lease obligations and hold the remaining resident to the full obligations under the lease but courts hold otherwise. The remaining resident has no say in your decision to allow a resident to be removed from a lease BUT you may be hurting your chances of collection against the remaining resident. Most forms in use today, commonly called ROOMMATE RELEASES have a spot for all the parties to sign but often the remaining resident will refuse to sign the form.

The Mechanics of Removing a Resident From a Lease

In order for you to properly remove a resident from a lease, the manager, the remaining resident and the vacating resident should sign a Resident Vacating Agreement with similar wording to the example below. If the remaining resident refuses to sign, then no one should be released.

RESIDENT VACATING AGREEMENT

The undersigned Resident Mary Jones hereby agrees that she has completely vacated the premises known as 125 Main Street, Mountain Grove, Florida or will vacate the premises no later than June 20, 2006.

Resident Mary Jones understands that Bill Smith shall continue to reside on the premises and shall be subject to all the terms and conditions of the lease agreement and any renewals.

Resident Bill Smith shall continue to reside on the premises and shall be subject to all the terms and conditions of the lease agreement and any renewals and fully liable for all payments due under the lease and amounts owed.

Resident Mary Jones agrees to relinquish all rights to the security deposit, advance rent, any prepaid fees or charges and agrees that nothing is owed to Resident Mary Jones by the Manager or its agent(s).

Resident Mary Jones agrees to release, acquit, satisfy and forever discharge the owner of the premises, any other owners of the rental premises, any agents of the owners, its owners, agents, employees and assigns, for and from all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which resident ever had, now have, or which any personal representative, successor, heir or assign resident, hereafter can, shall or may have, arising out of the tenancy.

Resident Mary Jones agrees to hold the property owner and/or its agent(s) harmless for damage or loss to any items of personal property left on or about the premises by Resident Mary Jones.

If Resident Mary Jones completely vacates the premises as per this agreement and does not return to or otherwise reside on the premises at any future date, the owner hereby shall release resident Mary Jones from the obligations of the lease agreement.

Date area and signature area. Signature lines for the Manager, the remaining resident Bill Smith and the Vacating Resident Mary Jones

 

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There are thousands of different leases currently in use by Florida managers. They include among many others, the homemade lease, the store-bought lease, the Supreme Court Approved Lease, the lease made by your attorney, the Blue Moon Apartment Lease, the many internet leases and the lease created by the Harvard graduate on the 60th floor of the big law firm in New York City. The problem? Florida law governs the Florida landlord/tenant relationship. If a lease clause violates Florida law, the clause and sometimes the entire lease will be stricken. More often than not, the lease clause does not violate Florida law, BUT can cause the manager problems and actually interfere with the rights the manager is given by Florida law! This article will look at some of the common clauses found in leases and the problems they cause.

The Visitor Clause

Often we see a clause which says that resident may have no visitors for more than 72 hours without the manager’s consent. The clause may say that visitors cannot stay on the premises for more than 5 consecutive days. These clauses are extremely difficult to enforce. The “consecutive day” language would require the manager to basically sit outside the unit for 5 solid days in a row to determine if the visitor is staying there. If the visitor was not there for one of the days out of the 5 days and came back, they would not have been there for more than 5 “consecutive” days.

The Rent Collection Clause

If the lease states that the manager will collect the rent on the 1st day of the month, this means that the manager is under the duty to collect the rent rather than the resident being under a duty to pay the rent!

Rent Paid to a Post Office Box

Sounds fine, the resident is supposed to pay the rent to a post office box. Problem is that Florida law allows a person 5 additional days for mailing time if they are to pay rent by mail. How do you give that person a Three Day Notice? You can’t. You need to give them an 8 day Notice giving them 3 business days to pay the rent not including Saturday, Sunday or court observed holidays PLUS 5 business days. On top of that, you have to deal with the “check must be lost in the mail” routine.

Rent Late Clauses

Many leases state that rent is due on the first of the month and if not paid by the 5th, there will be a late charge. Does that mean the rent is not late until after the 5th? Does this mean that the manager must wait until after the 5th to serve a Three Day Notice? The lease needs to clearly state when the rent is due, when the rent is late and when the resident can receive a Three Day notice.

Late Charges Clause

We constantly see leases which say that a late charge will be due if the rent is not paid by a certain day of the month. The problem is that late charges cannot be put on a Three Day Notice. Only rent is allowed. The ONLY way you can put a late charge on a Three Day Notice is if you define the late charge as rent or additional rent in the lease. 

The “How to Serve Notices” Clause

Florida law only requires ONE notice to be mailed by certified mail, and that is the Notice of Intention to Impose Claim on Security Deposit. We see many leases under which it is stated that ALL notices must be served by mail. This can create a huge problem when the manager serves a notice by posting on the door or even hand delivery, only to find out that the lease clause required the notice to be mailed. One would think that if the lease required a notice to the resident by mail, personal hand delivery should suffice. After all, isn’t the whole idea to get the resident notice? This mailing business is a nice idea thought up by an attorney who thinks everything should be mailed, but this is a no go for serving the usual notices such as the Notice of Non-renewal, Three Day Notice and the Seven Day Notices of Noncompliance.

The Detailed Pet Clause

Some leases go to great lengths talking about pets, size limits, weight limits, etc. This should be left to the pet addendum, NOT the lease. The lease should simply state that no pets are permitted without a pet addendum and the proper pet fee or deposit paid. Too much talk about the pet policy in the lease could be an implicit authorization for 

The Month-to-Month Notice Clause

Florida law states that in the event either party wishes to terminate a month-to-month tenancy, at least 15 days’ notice must be given prior to the beginning of the next monthly rental period. Many leases state that in the event the lease becomes month-to-month, 30 or 60 days’ notice is required. The reasoning behind this is to try to hold a resident to a longer month-to-month tenancy, as they must give you 30 or 60 days’ notice. Nice try, but the essence of a month-to-month tenancy IS the ability to get out of the tenancy with only 15 days’ notice prior to the beginning of the next monthly rental period. The 15 days is stated very clearly twice in Florida Statutes. Result? While the resident only needs to follow the law and give you 15 days’ notice, the manager will be STUCK with the clause in the lease and the manager will be required to give the notice as stated in the lease. There will come a time when you want to get a month-to-month resident out as fast as possible. Do you want to be forced to give 60 days’ notice? We didn’t think so!

The Arbitration/Mediation Clause

Arbitration and mediation is often an excellent way to resolve disputes. Anytime you can avoid full-blown litigation, you have already succeeded. Some attorneys, especially real estate practitioners, are used to the arbitration and mediation clauses found in sales contracts. These clauses sometimes end up in leases. Suppose you file an eviction on a resident, and the resident demands mediation or arbitration? No matter what the result, there will be no way to force the resident out, even if the arbitrator decides that the manager is entitled to possession. You will end up in court. You may be thinking that a mediation or arbitration clause would be good in dealing with a security deposit dispute, but it is unknown whether taking someone’s right to access to the court will be allowed under the Landlord/Tenant Act.

The Military Clause

Many leases include a type of Military Clause which details the requirements for breaking a lease in the event of a military transfer or being called to active duty. The problem is that these laws change on a fairly regular basis, especially in time of war, and it really does not matter whether a military clause is in a lease. The Soldiers and Sailors Relief Act in addition to any state laws will override any clause that is in a lease. By having the clause in the lease, the manager is led to believe that the clause is correct, when in fact it could be obsolete, incomplete or downright illegal.

Occupant Clauses

A common clause found in leases states the number of occupants allowed to live on the premises. Some also state the number of children who are permitted. These clauses are vague, can often lead to having occupants you did not intend to have, and worse yet, a fair housing complaint. We recommend that all adult occupants sign the lease as residents, and if there are children, their names are listed as occupants.

The Solution to the Lease Clause Problem

While some lease clauses are simply an annoyance or inconvenience, others can severely restrict the manager or subject the manager to a potential discrimination action. The lease document needs to be taken seriously and amended as the statutory laws change and case law is created If you are a member of your local apartment association affiliated with the Florida Apartment Association or the National Apartment Association and manage units in apartment communities, you can consider using the Blue Moon Lease.

 

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