Your resident has signed a Pet Addendum, but now you received a letter from the insurance company stating that no pets of a particular breed are allowed. Possibly the resident’s pet was aggressive or gets loose too often. Maybe you noticed carpet damage and a foul odor during a recent inspection. Can you just ask the resident to remove the pet? Will you end up in court having to prove what the resident’s pet done? Will there be a dispute over the breed of the pet? Unless we are dealing with service animals, the fact that a resident is allowed to have a pet on the premises should be a privilege and not a right. This privilege is granted to the resident through the lease agreement and particularly the Pet Agreement or Pet Addendum. Problems will arise during a tenancy which may not easily be dealt with due to defects in the Pet Agreement or Pet Addendum, hereinafter the “Agreement.”

The Typical “Agreement”

The typical Agreement deals with the charges for the pet, number of pets, weight limits, breed, conduct of the pets, and damage due to pets. Most Agreements are clear that a pet must be kept on a leash at all times, use certain areas to do their business, should not disturb neighbors, and limitations are imposed on offspring.

The Pet Problems

Breed – While many Agreements prohibit certain breeds, somehow pets slip through the cracks, because the property manager does not get a letter from a vet as to the breed, the breed is a strange name or the pet is of a breed that is mixed with one of the prohibited breeds. Now we have a dispute as to whether the dog is a prohibited breed. A diligent property manager confirms the breed before taking the pet fee or pet deposit.

Weight – Often the dog’s weight is not checked or increases dramatically over time and now is in violation of the weight limit five months into the tenancy. What is the resident supposed to do, put the dog on a diet?

Aggressive behavior – Many dogs appear to be aggressive or exhibit what we call aggressive behavior. This is extremely subjective, as a dog lover or owner may consider the dog to be affectionate, while someone else may be in fear of her life just upon seeing the dog. How do we gauge or define what aggressive behavior really may be?

Creating unsanitary conditions – Many residents are just plain lazy and refuse to use the designated areas for the pets to defecate and urinate, or fail to clean up after their pet. Are we going to follow the resident every time they walk their dog and take a video?

Damage to the premises – Pets can and often do damage carpeting and walls in a short period of time. You could serve a resident a Seven Day Notice of Noncompliance with Opportunity to Cure for the damage, but is the resident going to replace the carpet? If they do, will the damage cease?

Barking – Many pets behave like a charm when their owners are home, but the minute the owners leave, howl and bark all day and night. The resident denies this profusely as they never hear this happening. Are you going to set up recording equipment?

Fact Issues

All the aforementioned problems with pets are factual issues. Factual issues can and are disputed in COURT. In order to win in court, you must prove that the Agreement is violated and present the “facts” which will be disputed in court. Residents who are asked to remove their pet are not apt to just say OK and will often fight you in court.

A Privilege and Not a Right

We feel that a resident being able to have a pet on the premises is a privilege and not a right. This privilege should be a revocable one at your sole discretion. However, if your Agreement does not clearly spell this out, you will have a major problem getting a resident to either remove the pet or vacate the premises. By using the following wording, you will have a better chance of being successful in either getting the resident to remove the pet, or if this does not occur, evicting the resident and their pet from the premises. As always, before you serve a Seven Day Notice to Cure to the resident, we recommend that you call your attorney for the proper wording.

SAMPLE LANGUAGE FOR YOUR PET AGREEMENT OR PET ADDENDUM

Resident(s) agree that approval, denial, or continuing permission to keep a pet or pets on the premises is at the sole discretion of owner or agent. Manager, owner or agent reserves the right to withdraw consent at any time by giving the Resident(s) 7 days written notice to remove pet(s) from the premises for any reason at all including but not limited to noise, barking, biting, odor, damage by pet, unsanitary conditions caused by pets, breed of pet, disturbances, or threatening behavior towards other Resident(s), employee(s) of owner or agent or any person(s). In the event the pet(s) are not removed after notice, Resident(s) will be subject to eviction and shall be in breach of the lease and this agreement. Resident(s) agree that keeping a pet on the premises is a fully revocable privilege and not a right.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

WARNING!!! Terminating a tenant by serving a Seven Day Notice of Termination requires that you have solid proof that the action was of a non curable nature or a prior Seven Day Notice of Non Compliance with Opportunity to Cure was properly prepared, served on the tenant and expired.  These cases require strict proof and we need to see what your proof is before we can give you a notice.  This is the proof that you will potentially need to convince a tenant friendly judge that the tenant is in serious non compliance and needs to be evicted. These cases are NOT like non payment of rent cases where it is usually easy to determine if the rent has not been paid.

 

Depending upon the reason for termination, we need you to show us what you have as evidence.  Below are some examples of what we need.

 

PRIOR SEVEN DAY CURE

INCIDENT REPORTS

COURTESY OFFICER REPORTS

PICTURES, VIDEOS

WITNESSES

POLICE REPORTS

WITNESS STATEMENTS (Note that the witness must come to court)

STAFF WITNESSES

RESIDENT WITNESSES

PHYSICAL EVIDENCE

 

NOTE: You can not evict a tenant on hearsay or allegations that you cannot prove. Written statements are not admissible in court unless the person who wrote the statement testifies in court 

 

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

Just about every manager will at one time have to deal with a resident’s noncompliance. The usual culprits are the unauthorized person or pet, failure to maintain the premises, noise and parties, among many other possible lease violations. Almost all resident noncompliances are of a curable nature, and the manager knows that they must first give the resident a Notice of Noncompliance With Opportunity to Cure. After service of this notice, usually the resident cures the noncompliance and life goes on. There are limited circumstances where the resident is NOT given an opportunity to cure a noncompliance, and the manager is able to go straight to the Seven Day Notice of Termination. It is imperative that the manager knows when and how to use this notice, as this notice is drastic. The manager is taking the unilateral step to terminate an important and valuable property use right of a resident.

The Law Regarding the Seven Day Notice of Termination

Florida law gives the manager the authority to terminate a tenancy in FS 83.56(2) (2) If the resident materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the manager may:
(a) If such noncompliance is of a nature that the resident should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the manager of a similar violation, deliver a written notice to the resident specifying the non-compliance and the manager's intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the resident should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the manager's or other residents' property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the manager may terminate the rental agreement, and the resident shall have 7 days from the date that the notice is delivered to vacate the premises…

When is a Noncompliance Not of a Curable Nature?

The examples Florida law gives us are destruction, damage, or misuse of the manager's or other residents' property by intentional act or a subsequent or continued unreasonable disturbance. The law also states that the manager is not limited to these specific items but does not elaborate any further. This creates a problem, since we are not sure whether a noncompliance which is not listed in the statute is to be considered of a curable nature or a non-curable nature.

Destruction, Damage, or Misuse of the Manager's or Other Residents' Property by Intentional Act

If a resident were to break out all the windows in the unit, intentionally set a fire on the premises or smash the windshield of another resident’s vehicle, it would be fairly clear that the manager could go straight to termination. In most situations, it is not so clear. Residents often have fights and end up breaking a window in the unit. They claim it was an accident. You now have to prove it was intentional. Were you there at the time? Probably not. The resident’s door is kicked in, and there is a fight on the premises. It looks like intentional damage, but the resident claims some unknown person came to the unit and kicked in the door. You inspect a unit and there are stains all over the carpet and writing on the walls. It doesn’t look like an accident, but will a judge evict someone for this, or expect you to take the damages out of the security deposit when the resident vacates? The resident has a fire in the unit resulting in severe smoke and water damage. They claim it was an accident. Can you prove otherwise?

Criminal Acts on the Premises

Most managers feel that if a resident commits a crime on the property, this is cause for immediate termination. These crimes may include, but are not limited to, a weapons offense, molestation, battery, sexual offense, domestic violence or a drug offense. It would seem clear that if the resident commits a crime, this is not a situation where the resident should be given the opportunity to cure. The big problem though is that the resident is considered innocent until proven guilty in a court of law. The same resident who got hauled off to jail last night for a serious crime is considered completely innocent in the eyes of the law and most likely will be out on bail in a short period of time. It is interesting that the statute does not mention the commission of a crime as a basis for immediate termination. However, the statute does indicate that the listed immediate termination items are not an exclusive list, so it may be possible in some circumstances to go straight to termination, even though the resident has not been and will not be convicted of any crime by the time you file the eviction.

The Drug and Crime Free Addendum

Many managers wonder why it is necessary to use a Drug and Crime Free Addendum. The Drug and Crime Free Addendum specifically states that in the event of a commission of a crime on the property, the tenancy may be immediately terminated. Here the resident is contractually agreeing to the termination of the tenancy without being given the opportunity to cure.

Falsification of Information on a Rental Application

Most applications and leases have or should have a clause dealing with the ability to terminate a resident if the resident falsifies information on the rental application. In most cases, if it was a material falsification, you can go straight to termination. Here again, we see a contractual agreement by the resident that in the event of falsification, immediate termination will be the consequence.

Continued Unreasonable Disturbances

The law allows for immediate termination in the event of “continued unreasonable disturbances” on the premises, which likely include constant fighting, police responses, multiple parties and other disturbance type activities. The first element is that they have to be continual, meaning they have to either be repeated on different occasions or non-stop. The second element states that they must be “unreasonable” disturbances. This is where most cases will fall apart. While the resident’s actions may be unreasonable to the surrounding residents, you must be able to convince a judge that they were indeed unreasonable. This will require heavy proof, neighboring residents testifying in court, and often testimony from a law enforcement officer. The judge may feel that the resident should have been given an opportunity to cure the problem rather than the immediate resort to a termination notice.

When Should You Decide to Serve a Seven Day Notice of Termination?

In our opinion, you should NEVER make the decision to go straight to termination. Your attorney will want to be certain that there is a solid case established, and your attorney should not only make the decision for you but also prepare the wording for the notice. A solid case can be lost on the basis that the notice is worded improperly. Most managers have never been in court on a contested Seven Day Notice termination case and do not realize that it is far different than your typical nonpayment of rent case.

As in any eviction, the prevailing party is entitled to an award of attorney fees and costs. Typically if you lose a Seven Day Notice termination case, and the resident has an attorney, you will be faced with paying a substantial amount of attorney fees to the resident’s attorney, and you will have a higher chance of being hit with a Fair Housing complaint in the event the person you unsuccessfully attempted to evict is of a protected class.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

For years our office has been preparing 7 Day Notices for our clients. The service is still free and we are usually able to prepare a notice for the client the same day. Obviously other items take priority over this FREE service.

We have in our database thousands of prepared 7 day notices. Some are usable as is but most have to be tweaked for the client.

To promptly receive a 7 Day Notice from us we need your assistance or you will not get your notice and we are serious!

TIPS WHEN PREPARING THE REQUEST FORM

1. Be clear and concise. A long narrative is not necessary.

2. Stick to the facts. Suspicions are not enough.

3. List out the noncompliances. Example: loud yelling, loud music, screaming, loud profanities, rotting rood, noxious odors etc.

4. Be specific. Avoid general statements like “NOISE”, “HOUSEKEEPING”, “PETS”  “TRASH”, “DISTURBANCES”, “LOUD NOISES”, “DIRTY APARTMENT”. We are not at the property. You need to explain it to us or you will not get your notice.

5. If attaching a lease or rules and regs, circle the section that is violated. We will not read the whole lease to find the clause or wade through the letters and attachments. It is just impossible for us to do this and keep the service free.

6. If you have bad handwriting, please try to print or use the computer version.

The more specific, detailed and concise you are, the faster you will receive a completed 7 Day Notice. If we need to figure out what the problem is, you will not get your notice.  

If we need more info, we will ask for it BUT you have to put it on the 7 Day Notice Request Form.   Please remember, we are doing this work for free so you need to give us what we need on the 7 Day Notice Wording Request Form. 

 

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

You are in the process of making your periodic inspections of units; you have given written notice and find out that your key does not work in the door. Apparently the tenant has changed the locks without your permission and has failed to give you the keys. In another situation, the tenant has called in and requested that a repair be made in the unit. You send your maintenance staff over, and the tenant refuses to let your staff in to make a repair, saying it is not a convenient time. Your tenant requests a repair to be made, you call to schedule the repair, and the tenant states that you can only send the maintenance staff in if the tenant is home, which happens to be after 7:00 p.m. Do these scenarios happen? You bet. This article will address the situation in which the tenant is playing the “denial of access game”

 

The Law on Access

 

Florida law specifically addresses access rights by the manager, and your lease agreement may further address the issue.

83.53 Manager's access to dwelling unit.—

 

1. The tenant shall not unreasonably withhold consent to the manager to enter the dwelling unit from time to time in order 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, tenants, workers, or contractors.

 

2. The manager may enter the dwelling unit at any time for the protection or preservation of the premises. The manager may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The manager may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

 

1. With the consent of the tenant;

 

2. In case of emergency;

 

3. When the tenant unreasonably withholds consent; or

 

4. If the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the manager of an intended absence, then the manager may enter only with the consent of the tenant or for the protection or preservation of the premises.

 

The Tenant Lock Change

 

If the tenant changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the tenant is forbidden to change the locks. The tenant is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the tenant has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized tenant lock change really is the easy case and does not pose too many problems if the tenant complies and gives you a key. There are many reasons why a tenant may have changed the locks, and as long as the manager has access, this is usually not a real problem.

 

The Denial of Access “Game”

 

If your tenant has requested a repair and then denies you or your maintenance staff access, or makes it unreasonably difficult or impossible to make repairs by telling you that she must be present, or requiring you to come after business hours, you must jump into action. Tenants will use the request for repairs as a way to either set up a lease break scenario or put themselves into a rent withholding posture. If the tenant ends up breaking the lease or withholding the rent with an eviction ensuing, the tenant may try to claim that numerous requests for repairs went unmet. You may then need to establish to a judge that you were denied access. The tenant will have a wonderful story of how numerous repair calls were made, work orders were turned in, and no one was ever sent to make the repair. You will be flabbergasted and tell the judge that you made several attempts, and eventually gave up as the tenant was making it nearly impossible to get the repairs accomplished. Now you are at the mercy of the judge to either believe you or the tenant, who may be able to lie more convincingly than you can tell the truth. This is bad position to be in.

 

Repair Requests and Strategy

 

The moment a repair request is made by the tenant, it should be dealt with quickly. Can you simply go to a unit and make a repair after a phone call from the tenant? Yes, but it is a bit risky if the tenant did not expect you to come when you did, and you and your maintenance staff can be accused of theft or trespass when the tenant is surprised. If you go to the unit without any notice and the tenant is home, the tenant may deny you access, and it could be looked on as legitimate by a judge. Your lease or tenant handbook should clearly lay out the procedures for repair requests, but as we know, many managers fail to do so.

 

Once the repair request is made, if it is something that needs immediate attention, the tenant should be called and told that you or your maintenance staff will be out within a specific time window. The tenant may have a pet that needs to be secured, and it is just a matter of courtesy to coordinate something like this with the tenant. At this point in time, the tenant may begin to deny you access. If the tenant insists that she be home for the repair, this should be accommodated if possible. However, if the repair need is of an emergency nature, do the repair without accommodating this request, if need be. If the tenant demands that you come after normal business hours, this may be construed as a denial of access, especially if your tenant handbook or lease clearly states the hours that repairs will be made. The tenant may verbally agree to you coming to the premise for the repair, and upon arrival the tenant informs you that you cannot make the repair at that time. This is when you must jump into action.

 

The Tenant Refuses You Access

 

If the tenant has already stated when you can or cannot come to make a repair, or has made it clear that your staff or repair person cannot come during regular business hours, you must immediately begin to document the steps you are taking to get the repair accomplished and the roadblocks that the tenant is putting up. All phone calls, work orders, responses and witnesses need to be documented for later use. If you go out to make the repair and the tenant flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the tenant when you will be back using a written notice. If the tenant refuses access again, attempt to have the tenant sign your notice proving that she refused the repair. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the tenant unreasonably denying access after have been provided notice of repair. Now it is time to try again. You have given the tenant a WRITTEN notice of when you will be returning to effectuate the repair; honor the notice. If the tenant again refuses you access, document everything all over again. If you don't expect cooperation by the tenant, always have a witness with you to show that the tenant has refused the repair. You see, you are now part of the game, and you want to give yourself the best chance to win this game if you end up in court. Everything must be done in writing, and every denial of access must be documented.

How far do you go?

You may wonder how may times you must try to make a repair and be denied; there is no firm number. Ask your attorney if you have enough proof that you could potentially present into court to prove your attempts and the tenant’s actions. Remember that your word in court will not go too far in this game. Your clear documentation and persistence at attempting a repair, and the tenant’s thwarting of same, will be the key to success in winning an eviction in which the rent was withheld, or attempting to collect rent from a tenant who has breached the lease by complaining about repairs and vacating prior to lease end.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

You are in the process of making your periodic inspections of units; you have given written notice and find out that your key does not work in the door. Apparently the tenant has changed the locks without your permission and has failed to give you the keys. In another situation, the tenant has called in and requested that a repair be made in the unit. You send your maintenance staff over, and the tenant refuses to let your staff in to make a repair, saying it is not a convenient time. Your tenant requests a repair to be made, you call to schedule the repair, and the tenant states that you can only send the maintenance staff in if the tenant is home, which happens to be after 7:00 p.m. Do these scenarios happen? You bet. This article will address the situation in which the tenant is playing the “denial of access game”

 

The Law on Access

 

Florida law specifically addresses access rights by the manager, and your lease agreement may further address the issue.

83.53 Manager's access to dwelling unit.—

 

1. The tenant shall not unreasonably withhold consent to the manager to enter the dwelling unit from time to time in order 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, tenants, workers, or contractors.

 

2. The manager may enter the dwelling unit at any time for the protection or preservation of the premises. The manager may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The manager may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

 

1. With the consent of the tenant;

 

2. In case of emergency;

 

3. When the tenant unreasonably withholds consent; or

 

4. If the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the manager of an intended absence, then the manager may enter only with the consent of the tenant or for the protection or preservation of the premises.

 

The Tenant Lock Change

 

If the tenant changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the tenant is forbidden to change the locks. The tenant is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the tenant has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized tenant lock change really is the easy case and does not pose too many problems if the tenant complies and gives you a key. There are many reasons why a tenant may have changed the locks, and as long as the manager has access, this is usually not a real problem.

 

The Denial of Access “Game”

 

If your tenant has requested a repair and then denies you or your maintenance staff access, or makes it unreasonably difficult or impossible to make repairs by telling you that she must be present, or requiring you to come after business hours, you must jump into action. Tenants will use the request for repairs as a way to either set up a lease break scenario or put themselves into a rent withholding posture. If the tenant ends up breaking the lease or withholding the rent with an eviction ensuing, the tenant may try to claim that numerous requests for repairs went unmet. You may then need to establish to a judge that you were denied access. The tenant will have a wonderful story of how numerous repair calls were made, work orders were turned in, and no one was ever sent to make the repair. You will be flabbergasted and tell the judge that you made several attempts, and eventually gave up as the tenant was making it nearly impossible to get the repairs accomplished. Now you are at the mercy of the judge to either believe you or the tenant, who may be able to lie more convincingly than you can tell the truth. This is bad position to be in.

 

Repair Requests and Strategy

 

The moment a repair request is made by the tenant, it should be dealt with quickly. Can you simply go to a unit and make a repair after a phone call from the tenant? Yes, but it is a bit risky if the tenant did not expect you to come when you did, and you and your maintenance staff can be accused of theft or trespass when the tenant is surprised. If you go to the unit without any notice and the tenant is home, the tenant may deny you access, and it could be looked on as legitimate by a judge. Your lease or tenant handbook should clearly lay out the procedures for repair requests, but as we know, many managers fail to do so.

 

Once the repair request is made, if it is something that needs immediate attention, the tenant should be called and told that you or your maintenance staff will be out within a specific time window. The tenant may have a pet that needs to be secured, and it is just a matter of courtesy to coordinate something like this with the tenant. At this point in time, the tenant may begin to deny you access. If the tenant insists that she be home for the repair, this should be accommodated if possible. However, if the repair need is of an emergency nature, do the repair without accommodating this request, if need be. If the tenant demands that you come after normal business hours, this may be construed as a denial of access, especially if your tenant handbook or lease clearly states the hours that repairs will be made. The tenant may verbally agree to you coming to the premise for the repair, and upon arrival the tenant informs you that you cannot make the repair at that time. This is when you must jump into action.

 

The Tenant Refuses You Access

 

If the tenant has already stated when you can or cannot come to make a repair, or has made it clear that your staff or repair person cannot come during regular business hours, you must immediately begin to document the steps you are taking to get the repair accomplished and the roadblocks that the tenant is putting up. All phone calls, work orders, responses and witnesses need to be documented for later use. If you go out to make the repair and the tenant flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the tenant when you will be back using a written notice. If the tenant refuses access again, attempt to have the tenant sign your notice proving that she refused the repair. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the tenant unreasonably denying access after have been provided notice of repair. Now it is time to try again. You have given the tenant a WRITTEN notice of when you will be returning to effectuate the repair; honor the notice. If the tenant again refuses you access, document everything all over again. If you don't expect cooperation by the tenant, always have a witness with you to show that the tenant has refused the repair. You see, you are now part of the game, and you want to give yourself the best chance to win this game if you end up in court. Everything must be done in writing, and every denial of access must be documented.

How far do you go?

You may wonder how many times you must try to make a repair and be denied; there is no firm number. Ask your attorney if you have enough proof that you could potentially present into court to prove your attempts and the tenant’s actions. Remember that your word in court will not go too far in this game. Your clear documentation and persistence at attempting a repair, and the tenant’s thwarting of same, will be the key to success in winning an eviction in which the rent was withheld, or attempting to collect rent from a tenant who has breached the lease by complaining about repairs and vacating prior to lease end.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

The Law on Access

 

Florida law specifically addresses access rights by the landlord/agent/manager, and your lease agreement may further address the issue.

 

83.53 Manager's access to dwelling unit.—

 

1. The resident shall not unreasonably withhold consent to the manager to enter the dwelling unit from time to time in order 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.

 

2. The manager may enter the dwelling unit at any time for the protection or preservation of the premises. The manager may enter the dwelling unit upon reasonable notice to the resident and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The manager may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

 

1. With the consent of the resident;

 

2. In case of emergency;

 

3. When the resident unreasonably withholds consent; or

 

4. If the resident is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the resident notifies the manager of an intended absence, then the manager may enter only with the consent of the resident or for the protection or preservation of the premises.

 

The Resident Lock Change

 

If the resident changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the resident is forbidden to change the locks. The resident is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the resident has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized resident lock change really is the easy case and does not pose too many problems if the resident complies and gives you a key. There are many reasons why a resident may have changed the locks, and as long as the manager has access, this is usually not a real problem.

 

Seven Day Notice

 

If your resident is refusing access for showings, the resident must be served a Seven Day Notice To Cure. In an eviction action you may then need to establish to a judge that you were denied access by making written appointments and being able to prove that each time, you were denied access.  You must be able to prove you gave written notice to the resident and the resident has told you that you have no access or you went to the unit and the tenant denies you access.

 

The Resident Refuses You Access

 

If the resident has already stated when you can or cannot come to show the unit, or has made it clear that you cannot come during regular business hours, you must immediately begin to document everything and the roadblocks that the resident is putting up. All phone calls, emails, responses and witnesses need to be documented for later use. If you go out to show the unit and the resident flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the resident when you will be back using a written notice. If the resident refuses access again, attempt to have the resident sign your notice proving that he or she refused you access. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the resident unreasonably denying access after have been provided notice. Now it is time to try again. You have given the resident a WRITTEN notice of when you will be returning to honor the notice. If the resident again refuses you access, document everything all over again. If you don't expect cooperation by the resident, always have a witness with you to show that the resident has refused access. Everything must be done in writing, and every denial of access must be documented.

 

EVICTION

 

If you can prove you gave notice on multiple occasions and the resident has refused your showing on multiple occasions, we may be able to file an eviction.

 

NOTE: You can never force yourself in for showings or show the unit if you have been told you cannot show the unit and if you do, you may be civilly sued or possibly arrested and criminally charged.

 

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

The article is the second in a multi-part series examining specific curable noncompliances and how the property manager must deal with getting compliance or setting the case up for a potential future eviction action. Each noncompliance is unique; many are dealt with in a similar way, but often the proof needed to proceed with legal action if the noncompliance is not cured differs. The legal papers filed in the court for an eviction for a non-rent lease noncompliance are very similar to those filed for a nonpayment of rent case, but if the case is contested, the property manager must be prepared to prove AND win the case.

The vast majority of property managers have prepared and served a Seven-Day Notice of Noncompliance with Opportunity to Cure to a resident. Some property managers have had to file evictions when the noncompliance was not cured. Only a small fraction of property managers have had to deal with a contested case concerning a noncompliance eviction, in which the resident has fought to stay in the unit. Finally, in an even smaller percentage of those cases, the resident was represented by an attorney fighting the case, but when all those elements are present, the property manager stands to LOSE a majority of those cases.

BARKING/NUISANCE NOISE PETS

PROBLEM: Resident’s authorized pets are causing a nuisance due to noise.

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “Your pet is causing unreasonable disturbances on the premises due to barking and is disturbing the peaceful, quiet enjoyment of the premises for other residents” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)

RENT ACCEPTANCE: Do not accept rent after you have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the pet disturbances have ceased. Acceptance of rent may waive your ability to proceed. If the disturbances cease, you may accept rent.

PROOF ISSUES: Most likely you have received complaints from other residents. You need them to write down the dates and times they were disturbed and what they heard. You need to explain to them that they may have to come to court and testify if you end up having to file an eviction. You may think that you can simply present letters from the residents or reports in court, but you cannot. Letters and reports are usually inadmissible hearsay. Please read our article on hearsay so you better understand this. You and or your staff should hear the noise disturbances yourself, documenting the dates and times. Finally, a recording of the barking or other noise could be crucial to winning the case in court. An hour of recorded noise could spell success in court. The absence of sufficient or proper proof spells disaster.

1. Internal reports you and your staff have created based on complaints.

2. Written reports detailing dates and times from your residents.

3. Written letters or reports from other residents.

4. Residents of the community who will testify in court that they heard the noise and that it was severe.

5. Audio recording of barking, chirping, noise, etc. of the unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired.

GAS GRILL ON BALCONY

PROBLEM: Resident has a gas grill on the balcony, patio, lanai area in violation of the lease, rules and regulations or local law.

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “You have a gas grill on your balcony in violation of the terms of your lease, rules and regulations and/or law, code or ordinance” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)

RENT ACCEPTANCE: Do not accept rent after you have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the grill has been removed. Acceptance of rent will act to waive your ability to proceed and could end up authorizing the grill.

PROOF ISSUES: You need to take photos of the balcony, patio, and lanai area and have witnesses, such as other employees, who will testify in court if necessary.

1. Photos of the gas grill before, during and after the curative period, if not cured.

2. Employee witnesses who can testify in court.

FOLLOW UP AFTER GRILL REMOVAL

Oftentimes, the grill is removed from the balcony only to end up in the unit. This is extremely dangerous. Any unauthorized grill issue should be followed up with an interior inspection of the unit, including closets, to confirm the grill is not being stored in the unit.

POOR HOUSEKEEPING

PROBLEM: Resident has poor housekeeping to the point of filth, infestation, hoarding, rotting food and/or noxious odors. The situation goes far beyond clutter or mess.

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “You are failing to maintain your unit in a clean and sanitary condition due to an accumulation of trash, filth, and rotting food, resulting in noxious odors and infestation of insects” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)

RENT ACCEPTANCE: Do not accept rent after you have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the unit has been cleaned to your satisfaction.

PROOF ISSUES: A messy or cluttered unit is not a lease violation. It must be bad. Real bad. Courts are very reluctant to evict a resident for housekeeping issues unless the housekeeping problem is extreme. If the lease is close to the expiration date, you are far better off non-renewing the tenancy, NOT trying to evict based upon a Seven-Day Notice of Noncompliance. Often the report of poor housekeeping will come from your pest control professional. This must be immediately followed up by staff. While you will be getting written reports, remember that those reports will be inadmissible hearsay, and the person who actually saw the unit and wrote the report will be required to come to court and testify. After the curative notice expires, you should give written notice of inspection, and be prepared to document again with photos the condition of the unit.

1. Written reports from pest control if applicable.

2. Testimony from pest control if applicable.

3. Photos of the unit’s condition by pest control and maintenance staff.

4. Written reports from maintenance staff.

5. Any correspondence between the resident and staff.

6. Any correspondence from residents in surrounding units who may have complained about noxious odors and/or pest infestation.

A Cautionary Note

In some cases, the resident’s disability, be it physical or mental, may have contributed to the situation. Speak with your attorney, as you do not want a housekeeping issue to develop into a Fair Housing complaint.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

The article is the first in a multi-part series examining specific curable noncompliances and how the property manager must deal with getting compliance or setting the case up for a potential future eviction action. Each noncompliance is unique. Many are dealt with in a similar way, but often the proof needed to proceed with legal action if the noncompliance is not cured differs. The legal papers filed in court for an eviction based upon a lease noncompliance other than nonpayment of rent are similar to that of a nonpayment of rent case, but if the case is contested, the property manager must be prepared to prove the case AND win the case.

The vast majority of property managers have prepared and served Seven-Day Notices of Noncompliance with Opportunity to Cure to a resident. Some property managers have had to file evictions when the noncompliance was not cured. Only a small fraction of property managers have had to deal with a contested case on a noncompliance eviction in which the resident has fought to stay in the unit. In an even smaller percentage of those cases that were fought, the resident was represented by an attorney. In a large percentage of those cases in which an attorney represented the resident, the property manager LOST the case in court.

Here is a question for you: “Did you ever have an eviction action for a noncompliance in which the resident had an attorney and fought you in court?” We can almost guarantee that you will say no. Very few property managers have experienced this, but they MUST be prepared for it.

THE UNAUTHORIZED OCCUPANT – EXCESSIVE TRAFFIC - THE UNAUTHORIZED PET

UNAUTHORIZED OCCUPANCY:

PROBLEM: Resident has an unauthorized person or persons residing in the rental unit not on the lease agreement

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “You have an unauthorized person residing in the premises in violation of the terms of your lease agreement”

RENT ACCEPTANCE: Do not accept rent after you become aware of the noncompliance and have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the unauthorized occupant has been removed. Acceptance of rent can interfere with your ability to proceed and could act to “authorize” the unauthorized person.

PROOF ISSUES: You may see the unauthorized person there every morning. You see that person’s car parked there every night. The unauthorized person even comes into your office complaining about something. While it may seem like a simple matter, this is one of the hardest noncompliances to prove in court, because some residents are good liars, and these cases often hinge upon circumstantial evidence, not direct proof. Moreover, you will usually have to prove that your guest policy has been exhausted before giving a Seven-Day Notice of Noncompliance with Opportunity to Cure, which can be particularly difficult if your lease allows guests to stay for 14 consecutive days, for example. Before giving a Seven-Day Notice of Noncompliance with Opportunity to Care, you should have at least the equivalent of probable cause that the noncompliance is occurring, and in order to terminate, you will need hard-core solid proof; this is not to be taken lightly.

To terminate and evict a resident for unauthorized occupancy, you first need to have served a proper Seven-Day Notice of Noncompliance with Opportunity to Cure. In order to serve a Seven-Day Termination Notice, you must be reasonably certain that you can prove to a judge that the resident has an unauthorized occupant residing on the premises, not just visiting, and that the occupant was not “authorized” by you, the manager or prior management’s failure to act quickly. If the occupant has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management, and/or you have accepted rent with knowledge of the unauthorized occupancy, you most likely will not be successful evicting, as you have “authorized” the occupant by failing to act. This is due to the legal principles of waiver and estoppel. Sometimes managers will tolerate an unauthorized occupant until something happens, and the manager gets angry at the resident or the occupant. This is not the way to go. Depending on the situation, the following is some proof you may need to win.

1. Photos of the unauthorized occupant AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.

2. 24-hour Video surveillance tapes or a written admission by the resident(s) acknowledging the unauthorized occupant AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.

3. Employees of the apartment community who will testify in court that they know for a fact the unauthorized occupant is still living on the premises AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired, and are prepared to show the judge proof.

4. Dates and times the unauthorized occupant was seen on the premises AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired. The more you document the dates and times, the better.

5. 24-hour Video surveillance of the unauthorized occupant’s vehicle AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired.

6. Police report in which the unauthorized occupant gives your address as his or her address AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired. Ironically, if an unauthorized person gets arrested for some incident on the property or tells the police that he is living there, it can help the case immensely.

UNAUTHORIZED PETS:

PROBLEM: Resident has an unauthorized pet or pets in the apartment not permitted by the lease agreement

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “You are keeping an unauthorized pet on the premises in violation of the terms of your lease agreement.” Remember, DON’T quote leases clauses!

RENT ACCEPTANCE: Do not accept rent after you become aware of the unauthorized pet and have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the pet or pets have been removed. You will want to do a good inspection. You can waive your ability to proceed and could act to authorize the unauthorized pet or pets by accepting rent with knowledge of the noncompliance.

PROOF ISSUES: You may see the unauthorized pet each day, you observe the resident walking the pet, the pet bites another person or bites or kills another pet, you have received a complaint of barking, or your maintenance tech discovers the pet during a routine inspection or service call. Discovery can occur in many ways. If the resident claims the animal is an assistance animal, you should contact your attorney, because if the resident has a legitimate assistance animal, you are not dealing with an unauthorized pet, and your pet policies don’t apply. You should have solid proof before serving a Seven-Day Notice of Noncompliance with Opportunity to Cure for an unauthorized pet. A justified suspicion is not proof, and you need proof to support a successful eviction. To evict a resident for failing to remove the unauthorized pet, you first need to have served a proper Seven-Day Notice of Noncompliance with Opportunity to Cure. To evict, you must be absolutely certain that you can prove to a judge that the resident has failed to remove the unauthorized pet, and that the pet was not “authorized” by you, the manager or prior management’s failure to act quickly. If the pet has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management, and/or you have accepted rent with knowledge that the resident had an unauthorized pet, you most likely will not be successful evicting, as you have “authorized” the unauthorized pet by failing to timely act. In one case, the son of the maintenance tech had fed and walked the pet while the resident was on vacation. This knowledge of the pet was imputed to the manager, even though the manager never really knew about this. As with unauthorized occupants, the legal principles of waiver and estoppel can kick in. Depending upon the situation, the following is some proof you may need to evict.

1. Photos of unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired. This could be as simple as getting on a letter, getting the pet to come to the window and taking a photo.

2. Video surveillance or photographs of the pet or written or verbal admissions by the resident(s) that they have failed to remove the unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.

3. Employees of the apartment community who will testify in court that they know for a fact the unauthorized pet is being kept on the premises AFTER the Seven- Day Notice of Noncompliance with Opportunity to Cure expired and are prepared to show the judge proof.

4. Other residents of the apartment community who will testify in court that they know for a fact the unauthorized pet is still being kept on the premises AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired and are prepared to show the judge proof.

5. Dates and time the unauthorized pet was seen on the premises AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

6. Evidence of pet food or water bowl AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.

7. Audio recording of barking, meowing, chirping, noise, etc. of the unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired.

EXCESSIVE TRAFFIC:

PROBLEM: Resident has excessive traffic in and out of the unit an all hours of the day and night, most likely for the sale of drugs or prostitution. Everyone has a right to have visitors, but visitors who stop by for really short periods of time usually indicates that something illegal is going on. Since we may not be able to prove actually illegal activity, we are often able to prove excessive traffic.

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “You have excessive traffic in and out of your apartment disturbing the peaceful, quiet enjoyment of the premises for other residents.” This can be modified to also add vehicular traffic if this is occurring, and it often does.

RENT ACCEPTANCE: Do not accept rent after you have served your Seven- Day Notice of Noncompliance with Opportunity to Cure unless you are certain the excessive traffic has completely ceased. You can waive your ability to proceed or delay matters by accepting rent with knowledge of an ongoing problem.

PROOF ISSUES: Often you see the excessive traffic or hear about it from other residents, some of whom actually get knocks on their door, as the visitors don’t have the correct address. This is quite upsetting for a resident to have this happen at 3:00 a.m.! Discovery can occur in many ways. Legitimate complaints from neighboring residents are enough to support service of the Seven-Day Notice of Noncompliance with Opportunity to Cure, but if the ultimate case is contested, some of the complaining neighbors will need to testify in court.

To evict a resident for excessive traffic, you first need to serve a proper Seven- Day Notice of Noncompliance with Opportunity to Cure. In order to serve a Seven-Day Termination Notice, you must be absolutely certain that you can prove to a judge that the resident has excessive traffic and it is a problem. The following is some proof you may need depending upon the situation:

. 1. Photos of people coming and going. You never need permission to photograph a person to create this proof.

2. Video surveillance or verbal admissions by the resident(s) that people are coming and going. Do not record conversations though, as that is not legal in Florida without permission.

3. Employees of the apartment community who will testify in court that they have seen an excessive number of people coming and going, staying for short periods of time.

4. Other residents of the apartment community who will testify in court that they have seen people coming and going, AND most importantly, that this has caused a disturbance to them of their peaceful, quiet enjoyment of the premises.

5. Dates and time people are seen coming and going AFTER the Seven Day-Notice of Noncompliance with Opportunity to Cure expired.

 

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

Much to the chagrin of many a manager, the unauthorized pet that she wants removed has somehow become authorized. This is particularly distressing when the unauthorized pet is an aggressive pit bull or a 100 pound Labrador. How did this happen? Note that this article does not apply to service animals, as they are statutorily authorized by the various fair housing laws, regardless of any lease provisions to the contrary.

The Correct Procedure

As everyone knows, the correct procedure for an unauthorized pet is to send a Seven Day Notice of Noncompliance with Opportunity to Cure. Seven days after service of the notice, you gather the evidence that will be needed to support a Seven Day Notice of Noncompliance Notice of Termination and then serve it. A good practice is to offer an agreement to vacate to the resident responding to the notice. The agreement serves the best interests of both the manager and resident. The manager avoids the expense of filing an eviction and the prohibition against accepting payment from the resident while the Seven Day Notice of Noncompliance Notice of Termination is outstanding. The resident avoids the stigma of an eviction. Whether the resident is released from any further financial obligations under the lease (rent until relet) is a separate matter of negotiation. If the manager does not want to force the issue of lease termination, it is legally permissible to serve another Seven Day Notice of Noncompliance with Opportunity to Cure to give the resident additional time to dispose of or apply for authorization of the pet.

Waiver and Estoppel

Every manager should be mindful of two legal concepts: “waiver” and “estoppel”. Waiver is a legal concept under which a party is found to have foregone his legal right by his actions. The lease gives the manager the right to demand that an unauthorized pet be removed. However, his actions are so inconsistent with enforcing that legal right that he is deemed to have “waived” that right. The most obvious example of a waiver is renewing a lease when he knows that the resident has an unauthorized pet.

Estoppel is a legal principle holding that if a party makes a legal representation to another party and the other party relies on that representation, the first party is prohibited from taking an action contrary to that representation to the detriment of the other party. He is “estopped” from taking legal action that takes unfair advantage of the other party’s trust in his representation. For example, the lease prohibits pets, but the manager’s agent indicates that the provision is not enforced as long as the pet causes no problems. The resident with the pet relies on that representation and signs the lease. The manager cannot enforce the no pet policy against that resident, because the resident relied upon the agent’s statement in signing the lease. It does not matter that at the time the agent made the statement it was the truth and that the manager has recently decided to enforce the no pet policy.

A Continuing Breach?

Florida Statutes provide that, if the manager has knowledge of the resident’s breach of the lease and accepts payment from the resident, the manager waives that breach. (“Acceptance of money is forgiveness”). This prevents managers from dredging up old lease violations to suit their needs.

The unauthorized pet is thought to be a continuing lease violation, because the unauthorized pet breach continues after payment. A county court judge may not agree. His opinion may be that it was the act of obtaining the unauthorized pet that was the lease breach. Acceptance of payment without objection from the manager, after the manager has knowledge of that lease breach, is a statutory waiver of that breach forever. The Seven Day Notice of Noncompliance with Opportunity to Cure helps to refute this argument, since it indicates the manager’s objection.

When Does the Manager Know?

The manager’s knowledge of the unauthorized pet is the trigger which subjects him to the resident defenses outlined above. The manager is imputed to have the knowledge of all of his past and present agents. This means that even the best, new manager is stuck with whatever the old manager and staff knew.

This concept makes it advisable for a new manager to examine all the resident files for evidence that there are known unauthorized pets. The most obvious evidence will probably be complaints from other resident about unauthorized pets. The manager should interview each staff member for any known lease violations, including unauthorized pets. Perhaps a maintenance person knows of a harmless cat owned by a nice resident and in a mistaken act of kindness has said nothing.

Pet Addendum

Having found yourself with a deemed authorized pet, what about demanding that the resident sign a pet addendum and pay a pet fee, pet deposit or pet rent? It can be argued that the manager has also waived these. I believe the better argument is that the manager has waived objecting to the pet but has not waived that the resident’s compliance with the process of authorizing the pet.

Demand can be made to fill out a pet application and sign a pet addendum. The resident is subject to the standard rules and regulations regarding pets. Likewise, I think the resident has to pay the standard pet fee (the fee for the privilege of having a pet on premises) and the standard pet deposit or increase in the security deposit, whichever is the manager’s policy, and the standard monthly pet rent prospectively. It is unclear if past pet rent would be collectible. The failure to charge it at the time the manager knew of the pet probably resulted in its waiver.

A word of caution about implementing your standard pet procedures: this is just my opinion, and many county court judges may feel that the pet fee, deposit and/or rent have been waived completely. Lastly, my opinion changes if a renewal is involved and the pet is known at the time of renewal. Renewing a resident with a known pet operates as a waiver of all pet associated fees, deposits and rent. The manager may not even be able to demand that the resident sign the pet addendum, which was ignored at the time of lease renewal.

I hope this article makes clear that a delay in addressing the unauthorized pet may in effect authorize that pet. It may even operate to waive the ability to collect a pet fee, pet deposit and pet rent.

 

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com