Each year thousands of children are injured due to stoves and other heavy items capable of tilting or falling, such as wall units, bookshelves and entertainment centers. Huge lawsuits have been filed, resulting in large judgments against both property owners and manufacturers of these items. Could a owner or property manager be liable for injuries caused in these situations? Quite possibly. It is crucial that part of the safety evaluation a manager makes of the rental unit includes checking for items which may tip or fall over if misused.

The Tipping Stove

The tipping stove has the potential for causing serious injury due to the secondary injury caused by the child being doused with a hot substance which may be cooking on the stove and subsequently spills or the child can be trapped by the fallen stove and exposed to the hot element. As appliances get lighter each year, the danger increases. Commonly, a child will open the oven door, climb up onto the door and cause the stove to partially or completely tip over. Since gas stoves generally are attached by a rigid or semi rigid pipe, they are less apt to tip. The problem is more prone to occur with electric stoves, and in Florida, electric stoves are predominantly in use.

Who is Liable?

While it is clearly an improper use of the stove for a child to intentionally climb up onto the open oven door, it is possible that a jury may find that if there was a way that a stove could be prevented from tipping, this may place a duty on the owner of the stove, i.e., the manager, to prevent the stove from being able to tip. In many cases we see juries rule against a manager if it can be proven that had the manager done something as simple as installing a light fixture in a darkened area of the property or installing a non-slip surface in an area that often gets wet and slippery, a severe injury to the resident could have been prevented. Here the manager is being held liable for something that the law did not actually require, but had additional, preventative measures been taken, the resident’s injury may have been averted. This is the same principle and legal theory which can create liability on the part of the manager for a tipping stove injury.

The Law

Florida law does not require that the manager take any preventative measures to insure that a stove does not tip over when misused by a child. Nothing in the Landlord/Tenant Act specifically addresses the issue. However, the manager is required to keep the premises in a safe condition, and there may be an implied warranty of habitability imposed upon the manager.

The Tipping Stove Solution

It is simple and inexpensive to anchor a stove to the floor with a u-bolt or other anchoring device and/or attach a strap to the back of the stove securing the stove to a solid and sturdy section of the wall. It is crucial that the strap is secured solidly to either a wall beam or a large molly bolt or wall anchor is used. The cost is minimal, no license is necessary to undertake such a precautionary measure, and you or your maintenance person should be able to handle such a job. Just because many new stoves now come with anchoring mechanisms, you should assume that an installer may not have actually installed it properly or installed it at all.

The Tipping Wall Unit or Entertainment Center

If the manager is renting out a furnished unit, and book cases, wall units, entertainment centers or other items exist that are free standing, the manager could be held liable for injuries sustained due to the tipping over of these items. Again, these items should be anchored properly to prevent injuries from occurring. You may feel that it is absurd that you could be held liable for the obvious gross negligence of a resident or the resident’s child, but a jury could feel otherwise. If the bookcase or entertainment center belongs to the resident, the potential liability on the part of the manager would be decreased dramatically, but in a furnished unit, extreme care must be taken.

Our Recommendations

We recommend that all managers as part of their safety evaluation of the property go through each and every room to determine if there is anything on the premises and belonging to the manager that could potentially tip over in the case of misuse. If any items are discovered, these should be secured to the floor or wall immediately. Do not neglect to check the garage or storage areas, as often these area contain shelves or cabinets that can tip.

 

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The simple question of how much to charge the resident for carpet damage is often more complex than it appears. Straightforward legal principles become muddied when they have to be applied to real-life situations.

 

Simple Legal Principles

 

The legal principles are simple. The manager should use the least expensive, practical method to replace or repair. This is known in legal jargon as mitigating your damages. If it’s possible to remove a stain from the carpet, the manager should remove the stain rather than replace the carpet. If the carpet has a small tear that can be repaired, then the manager should repair rather than replace the whole carpet.

 

Upgrading

 

When the manager must replace the carpet, he should not upgrade at the resident’s expense. He should replace with an equivalent grade. If the same grade is not available, then carpeting at a comparable cost should be used. If upgrading, then the additional upgrade cost should be paid by the manager. The manager should not charge the resident for more than the resident has damaged. If only the bedroom carpet was damaged, then the manager shouldn’t charge the resident for re-carpeting the entire apartment.

 

Undepreciated Cost

 

The manager cannot charge a resident the full cost of new carpet to replace carpet that isn’t new. This would be charging the replacement cost. The manager should charge the resident for the loss of the value that was left in the carpet. This is charging the undepreciated cost. For example, if carpet will last five years (its useful life) and the carpet is three years old when the resident vacated, then you have used 60% (3yrs/5yrs) of its value. The residents’ destruction of the carpet has prevented you from using the other 40% (2yrs) of value in the carpet. If the new carpet costs $600, you can charge the resident $240, which is 40% (the value or useful life that you lost) of the full cost of carpet.

 

Real Life Isn’t as Simple

 

The real life situations are complicated. These are just a few of the host of other factors that are considered. The location of the tear or stain will affect the decision. A tear in the middle of the living room is less acceptable than against the wall under the drapes. The value of the rental as reflected by the amount of monthly rent will affect the latitude the manager has to repair rather than replace. The manager of a $5000 per month rental has a reasonable argument that his renters will be less accommodating to carpet imperfections than the $500 per month renter. The single-family home renter’s expectations with regard to the carpeting scheme will probably be greater than the college student apartment renter. Industry custom may come into play. Although the padding under a carpet may not be damaged, it may be customary to replace the padding when you replace the carpet.

 

The Concept of Presentation

 

There is some intangible in the way things look, feel, flow and match. There is an entire segment of the multi-family industry devoted to helping managers convey the right look and feel for their apartments, such that the prospective resident wants to rent. The tension is between the manager’s desire to preserve presentation to enhance marketability of the apartment versus the resident’s desire to suffer the minimum possible repair or replacement charge.

 

Uncertain Litigation

Finally, these matters are so subjective that they defy prediction of a judicial outcome. The manager should remember that he carries the burden of proof in any claim against a security deposit or in any lawsuit by the manager for damages. The manager must prove the condition of the carpet at move-in and at move-out and that the any damage is greater than ordinary wear and tear. Factors affecting the court’s decisions will be the reasonableness of a party’s position, the demonstrative evidence (pictures), the credibility of the testimony and independent expertise in the particular area. The manager’s opinion that the tear or stain required replacement, or that mismatched carpet in the bedrooms and hallway affects his ability to market the apartment, may strike the court as simple common sense or as self-serving, depending on the availability of comparison pictures. Testimony from an industry expert, such as a carpet or flooring specialist, or an interior decorator, may be required by the court.

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It would be difficult to find a property manager who has not served Three Day Notices for non-payment of rent and Seven Day Notices to Cure for resident noncompliances. The residents usually pay the rent, or in the case of noncompliances, they cure the noncompliance or move right out. Most property managers are well versed in notice serving and have filed evictions on their residents when the notices just did not do the trick. Many property managers have even experienced going to court on contested non-payment of rent cases. The result? Usually the resident is evicted, or the case gets settled. Now ask yourself: How many times have I actually gone to court on a contested eviction on a Seven Day lease noncompliance case and had to prove the noncompliance in court? Very few property managers have experienced going to court on contested noncompliance cases and do not realize how hard these cases can be to win. Proper preparation, hard core proof and good convincing witnesses are necessary to win these cases. Are you ready to prove your case to a judge who will really put YOU to the test?

Winning and Losing the Seven Day Noncompliance Case

Since most property managers have never experienced going to court on a contested noncompliance case, you will just have to trust us here. We have handled many of these cases, and we have LOST many of these cases. You don’t want to lose a case in court. Besides the pain of losing with the resident now getting to stay and smirk at you for the next six months, if that resident retained an attorney, you may be on the hook for attorney’s fees. Recently two cases we lost resulted in around $2000.00 each having to be paid to the resident’s attorney, for which the property manager thought she had a great case, really wanted to get the resident out and insisted that the eviction be filed against our advice.

Is Your Attorney a Wimp?

Once of the most frustrating things for the manager’s attorney is to try to convince a property manager who thinks he has a great case that there is a high chance of losing in court. The property manager needs to understand that the manager’s attorney may make his or her living filing your evictions and has every incentive in the world to file your eviction, BUT also wants to protect you from losing the case and having to suffer the consequences. The manager’s attorney has probably filed hundreds, thousands or in our case, tens of thousands of evictions, winning the vast majority of the evictions, as most are for non-payment of rent. Trust the experience of your attorney. Your attorney is on your side, feels your frustration, but is also under the legal and ethical duty to warn you of the dangers of losing and guide you in the right approach. Your attorney is not a wimp or lazy. Your attorney has the experience to know what is best for you. There have been situations where an unsuccessful Seven Day Noncompliance case has not only been lost in court, but took on a new life when a Fair Housing Discrimination case was filed against the property later!

The Judicial Attitude in the Seven Day Noncompliance Case

When you go to court on a typical residential resident eviction, the resident usually did not pay the rent, did not properly withhold rent or did not post all the money into the court registry. Judges handle thousands of these cases each year, and some of them have no tolerance for listening to the resident’s sad story of losing a job, car breaking down or the myriad other excuses. Most cases for non-payment of rent result in an eviction.

Now we come to the Seven Day Noncompliance eviction. This is far different than the non-payment case. Here the property manager has accused the resident of doing or not doing something that is spelled out in the lease or Florida Law. Notices have been given, these notices must be correct, and now the property manager is put to the test and has to prove the case. Judges do not take these cases lightly and really make the property manager prove the case. Often it seems that the judge is far more sympathetic to the resident, but really it is a proof issue. It is much easier to prove someone has not paid the rent. They either paid it or they did not, and the burden of proof of prior payment is on the resident. Proving a noncompliance is the manager’s burden and can be a real challenge.

How Do We Prove the Case in Court?

Before we even get to court, the property manager must have prepared and served a PROPER Seven Day Notice, be it a Seven Day Notice of Termination or a Seven Day Notice to Cure followed by the Seven Day Notice of Termination. We strongly recommend that you have your attorney prepare these notices for you. We prepare all our clients’ Seven Day Notices for no charge, as we really want them done the way we feel they would be most effective and successful in court.

Now, proving the noncompliances can be a real challenge. We need witnesses, documentation, solid proof, logs, file notes, notices, photos, videotapes, police reports, incident reports, and anything else to help the judge believe that the noncompliance is occurring or has occurred.

Does the Noncompliance Have to be Severe?

Remember that you are asking a judge to kick someone out of their home. Often there are children involved. The noncompliance needs to be substantial, and you need to trust your attorney to help you decide if it is indeed substantial enough to sway a judge your way. It is ironic how when the market is strong and the property has a waiting list, there seems to be so many more residents in noncompliance. Hmm, a coincidence?

I have Petitions and Statements Signed by 5 Residents!

Nice try, but no cigar. The complainers or witnesses MUST appear in court. This even includes the police officer who responded and wrote up the police report. How do we get them into court? We need to subpoena them, but often they just do not show up for court, and the case falls apart. We have had situations where many residents have complained about one resident. Every day they wrote letters and called the office complaining about the noise that the resident was creating. We end up in court, one complaining resident shows up and tells the judge that the problem has stopped. Bang. We lose the case. Never be certain that the complaining residents will actually come to court. Often they are afraid, were threatened or get cold feet at the last minute and do not want to be involved.

What Does Your Attorney Need to Win These Cases?

The proof that you need is wholly dependent on the type of noncompliance involved and is extremely case specific. Let’s go through some of the most common noncompliances and list some of the evidence we may need to potentially prove our case in court.

Unauthorized Occupants – Seems easy, you see the person there all the time. When you go to court, the resident says they are just visiting. You need to now prove that they are no visiting. Proof you may need includes and is not limited to:

1. Multiple photos of the unauthorized occupant’s car morning and night with date and time records;

2. An admission by the resident to you that the unauthorized person is living there;

3. Proof that the unauthorized person is receiving mail;

4. Unannounced visits to the unit with a witness;

5. Police report that the unauthorized person gives the address as his or her address;

6. FDLE sexual predator or offender registration with your address listed;

7 .A lease clause that is clear as to how long someone can stay.

Unauthorized Pets – First you need to make sure the prior manager did not authorize the pet or the pet has not been there for a long time, which can cause a waiver.

1. Pictures of the pet, date and time stamped;

2. Witnesses who have seen the pet;

3. Pictures of the resident walking the pet;

4. Maintenance who will testify to pet food or pet bowls in the unit;

5. Recording of barking when you go to the door, if a dog that is;

6. Picture of the pet damage;

7. Picture of the pet coming to the window;

8. Hard proof after the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

Noise Disturbances – These case are tough, as usually there is no police involvement, and the complaints come from other residents who may just be angry at each other, or a group of residents have it out for one resident. Are we really dealing with a resident versus resident war?

1. Records of multiple resident complaints;

2. Police reports;

3. Resident witnesses who will appear in court;

4. Witnesses who are employees of the manager;

5. Multiple provable disturbances;

6. Courtesy officer who will appear in court.

Unsanitary Unit – Is the unit really unsanitary or just an extremely cluttered mess? Many times we deal with accumulators who throw nothing out and have piles of newspapers, clothes and books throughout a rental unit, with only a small path in which to walk. Is this unsanitary or just strange?

1. Pictures of unit;

2. Pictures of kitchen, bath and anything “unsanitary”;

3. Pictures of exposed and rotting food;

4. Pest control personnel who will come to court;

5. Infestation of vermin;

6. Strong odor;

7. Maintenance staff that must come to court;

8. Other staff that will come to court.

Emotions and the Seven Day Noncompliance case

We see situations where property managers get angry at a resident and “just want them out”. This is the worst possible situation because the anger and frustration of the property manager is now running the show. That unauthorized occupant who was not a problem for three months all of a sudden becomes a big problem, because he came into your office and was belligerent. That person with the unauthorized pet was left alone until it defecated in front of the office or got loose and scared another resident. Never let your emotions dictate your actions when deciding to terminate a resident. Follow the law, get your attorney involved early, and be cautious.

 

“Serving the Property Management Professional”

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THE PROBLEM

Most leases have a clause as follows: “In the event the premises are condemned by a governmental authority of destroyed due to fire, flood or other acts of god, this lease shall terminate as of the date of the condemnation or destruction”. Many leases go on to say that in the event of destruction or condemnation, the resident’s rent will be abated until such time as the premises are ready for the resident to reoccupy. These clauses look good on the surface and definitely serve an important purpose, but there is a serious flaw. What happens if the premises are “damaged” rather than destroyed? Do you have to house the resident? Do you have to make a repair while the resident is living in the unit? Can you make the resident leave permanently? Should you put the resident in another unit? All these questions can be answered and the problems solved easily, if and only if the lease has proper wording. Fires, hurricanes and floods will happen. It is not a matter of if they will happen but when. Are you ready?

FLORIDA LAW AND DAMAGE OR DESTRUCTION OF THE PREMISES

Florida law somewhat addresses the issue of damage or destruction as follows: FS 83.63 Casualty damage: ”If the premises are damaged or destroyed other than by the wrongful or negligent acts of the resident so that the enjoyment of the premises is substantially impaired, the resident may terminate the rental agreement and immediately vacate the premises. The resident may vacate the part of the premises rendered unusable by the casualty, in which case his liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the manager shall comply with s. 83.49(3). Unfortunately, that does not do the manager much good. As you can see, this addresses the resident’s rights in the event of damage or destruction, rather than the manager’s rights.

THE PROPERTY IS SUBSTANTIALLY DAMAGED – CAN WE TERMINATE THE LEASE? -- Unfortunately, Florida law is not clear on this, so we must look to the lease. If we do not have a clause in the lease which allows for the termination of the lease at the manager’s option in the event of damage to the premises, the manager may be stuck having to make a repair while the resident is in the unit, and this may be unpractical or downright dangerous to the resident or other persons, creating a high liability for manager. For example, the resident has a fire and of course blames it on the proverbial “defective stove”. Since the premises may not be actually “destroyed”, the manager may be under a legal obligation to repair the kitchen while the resident is in place or be prohibited for removing the resident due to the fire. The same thing can happen in the event of a flood or worse yet, in the event of a serious mold situation. If we have a proper lease clause, this problem can be solved. Examine the lease clause that follows:

If for any reason the premises are condemned by any governmental authority, or damaged through fire, flood, mold, act of God, nature or accident, this lease shall cease and shall terminate at MANAGER'S option as of the date of such condemnation or destruction, and RESIDENT hereby waives all claims against MANAGER for any damages suffered by such condemnation or destruction

As you can see, this clause enables the manager to have the option to terminate the tenancy and force the resident to vacate the premises.

THE PROPERTY IS DESTROYED – CAN WE TERMINATE THE LEASE? - It is fairly clear that this clause will enable the manager to terminate the lease in the event the premises are destroyed. Will the part of the clause attempting to relieve the manager of liability hold up in court? That is a big unknown, but what we do know is most likely we will be able to deal with the immediate problem of removing the resident from the unit.

WHERE DOES THE RESIDENT GO? - Based on experience and horror stories, we urge the manager never to put the resident into another unit, the corporate unit or the model unit if one is available. We have seen situations where the resident fails to vacate the original unit and the model or corporate unit, fails to pay rent, holds both units hostage or tries to make you pay for damaged personal belongings, and will not vacate until you do so. If you ever have the need to put up the resident, our first recommendation is to place them in a hotel for one or two days, making it clear to them and the hotel that this is only for a fixed short period of time. If you decide to put the resident in another unit on-site, we strongly recommend that you use a TEMPORARY HOUSING ADDENDUM which clearly states that the housing is temporary, lays out all the terms, and has a fixed date when the resident must vacate. Never should you put a resident in another unit without a TEMPORARY HOUSING ADDENDUM.

HOW DO WE TERMINATE THE LEASE? - The resident will need to be given a lease termination notice and most likely a Seven Day Notice of Termination. We urge you to immediately contact your attorney when dealing with these types of situations, and get the attorney involved early on.

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The “Seven Day Notice of Noncompliance With Opportunity to Cure” is second only to the Three Day Notice as the most common notice that a property manager uses, and is often prepared incorrectly or not given at all. Knowing when and how to prepare and serve a “Seven Day Notice of Noncompliance With Opportunity to Cure” is crucial to successful property management.

When a resident is in noncompliance, action needs to be taken. Whether the noncompliance is an unauthorized pet, unauthorized occupant, debris outside a door, unsupervised children or any of the myriad problems which can occur, nothing will be solved until the resident is notified of the problem and told to cease. All too often the property manager writes a letter to the resident or calls them into the office for a meeting. While this may get the desired results, if it fails, the property manager is now faced with a dilemma and a delay, as in most cases, the law only recognizes “notices”. The classic mistake of property managers is sending “letters” to the residents rather than using “notices”. Commonly, when you send a letter to a resident about a problem, the resident solves that problem and all is well. In a sense, by sending the “letter” you are giving the resident a second chance. The problem begins when the resident does not comply with your “letter”. What now? Can you file an eviction? No. An eviction requires “notice”, a legal “notice” such as a “Seven Day Notice of Noncompliance With Opportunity To Cure” for items which are of a curable nature. If the resident continues to be in noncompliance, a further notice may need to be given called the “Seven Day Notice of Noncompliance Notice of Termination”. If the property manager only gave a “letter” previously to the resident, a “second chance”, they now need to serve a “notice” which in essence is giving the resident a third chance. Depending upon the noncompliance, you may be in the process of losing good residents which are neighbors of this noncomplying resident as the process is so delayed.

What types of noncompliances are of a curable nature?

Here are just a few: improper parking of vehicles, unregistered vehicles, failure to supervise children, barking dogs, unauthorized pets, unleashed pets, failing to pick up after pets, changing locks, speeding in the parking areas, denying access to maintenance, loitering in the breezeways, debris in the common areas, failing to pay a utility, failing to put a utility in one’s own name, grill on the lanai, debris on the lanai, violating pool rules, unauthorized occupants, improperly installed satellite dishes, failure to pay the security deposit, unsanitary apartment; the list goes on and on.

How is a Seven Day Notice of Noncompliance With Opportunity to Cure properly worded?

We recommend you always start off your notice by saying “You and/or your guests and/or occupants are in violation of Florida law and/or the lease agreement and/or rules and regulations due to (list reasons)” You should not simply quote a lease clause or name a paragraph number. Your notice should clearly and concisely state what the resident is doing that is in noncompliance. Many notices we see are legally insufficient in that they are too vague or sometimes actually too specific. You might wonder how being too specific could be a problem. Let’s take a case where a resident is leaving their bicycle on the lanai in violation of your lease. If you give the resident a notice just stating this violation, the resident may get the bicycle off of the lanai, but two months from now be accumulating personal items outside the door in your breezeway, a violation of your lease agreement. Will your notice regarding the bicycle that you gave two months ago be sufficient? Possibly not. We would recommend wording the notice as follows: “You and/or your guests and/or occupants are in violation of Florida law and/or the lease agreement and/or the apartment rules and regulations due to keeping or allowing personal items, including but not limited to a bicycle, on the lanai and or in the common areas of the premises.” As you can see, this is specific enough for the bicycle on the lanai and broad enough to include a later violation in the breezeway. It is crucial that the notice is always specific enough to put the resident on sufficient notice as to what the noncompliance may be.

How do we calculate the expiration date of a Seven Day Notice of Noncompliance with Opportunity to Cure?

You simply must give your Seven Day Notice of Noncompliance With Opportunity to Cure and wait seven straight days. Note that you do not have to exclude weekends or holidays as with a Three Day Notice. Once the time period has expired, if you have not achieved the desired results, you may be able to immediately file an eviction or may need to serve a Seven Day Notice of Noncompliance Notice of Termination. Any time you have a lease noncompliance, you must get into the habit of serving the Seven Day Notice of Noncompliance With Opportunity To Cure, if it is in fact a curable problem.

A word of caution: Judges are not apt to want to evict someone on a small noncompliance. Make certain that the noncompliance is fairly serious before you think that you can evict the individual. Proof is a very integral part of success in these cases, so your documentation, witnesses, police reports, videos, etc. will be crucial. If you have a weak case but really want the resident to vacate, there is always the option of offering to let the resident out of the lease agreement and making a mutual agreement on the resident vacating at a fixed date. If a problem is not cured, we recommend that you call your attorney first to see if you have sufficient grounds to serve a “Seven Day Notice of Noncompliance Notice of Termination”, and get the proper wording straight from the attorney. 

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While there is no requirement under Florida law to determine the criminal background, if any, of a potential resident, many property managers choose to run a criminal background check on the applicant. Often these criminal background checks are not completely accurate, and applicants often slip through the cracks. Unfortunately, there are major deficiencies in record keeping and access to the criminal records. Often this is due to the delay of states reporting to the federal databases. Most apartment communities routinely run criminal background checks to help minimize liability, since the resident will be living in close proximity with and interacting with other residents on the premises. Criminal background checking is on the rise among single family home managers, and both single family home managers and multi-family housing managers are creating resident selection criteria which the applicant must pass in order to be approved. The reality of many rental situations is that the background checks are run on the adult applicants, while no information is gathered on the occupant of the rental unit if the occupant is a juvenile. Juvenile records are not available to the public, and a property manager has no way whatsoever to know the background of the child.

The Child Criminal

Thousands of juveniles commit crimes each year, many of an extremely serious nature. In fact, a large percentage of adult criminals have long juvenile records. These crimes could include murder, rape, serious bodily harm and major damage to personal property, such as arson, resulting in incarceration of the child in a juvenile detention center. These juveniles are living in apartment communities and homes and often are not rehabilitated upon release from a juvenile detention facility. This increases the probability that the juveniles will continue to engage in criminal behavior, which is dangerous to society. Traditionally, laws have protected juvenile criminals by sealing their records. After offenders turn 18, their records are expunged or sealed, depending on state law. The philosophy behind this anonymity: juveniles should not be stigmatized for the rest of their lives for acts committed while they were children. The emphasis of the juvenile criminal system is on rehabilitation, not punishment.

The Discovery of the Juvenile Criminal

In most cases, the property manager will have no idea that the juvenile occupant will have a criminal past. It is often discovered when a courtesy officer, who is often a law enforcement officer, runs a criminal background check on a juvenile due to an incident on the property, or a neighbor discovers from some source that the juvenile has a criminal record. The law enforcement officer has greater unrestricted access to this information, and although they are not permitted to disclose this information, the word gets out. When the word gets out, now what?

If the property manager refers back to the application, most likely there will be the question asked of the applicant on the application if the applicant has been convicted of, arrested for, put on probation for, or had adjudication withheld or deferred for a felony offense. The answer will most likely be “no”, and this will be a truthful answer. The problem is not in the answer here, but rather the question asked.

The Proper Question

Instead of limiting the question regarding a criminal past to the applicant only, we recommend that the applicant is asked if any occupants have a criminal past.

A sample more inclusive question would be:
Have you or any occupants ever been convicted of, arrested for, put on probation for, or had adjudication withheld or deferred for a felony offense?

Now it is quite possible that the applicant will answer “no” to this question, you will run your background check, and the applicant will be approved. The key here is that you have asked the question and it is later determined that an occupant does indeed have a criminal past, the resident’s lease can be terminated based upon a misrepresentation on the rental application.

The Misrepresentation Wording

Every lease and/or application should include a clause which states that a tenancy can be terminated in the event the resident lies on the application. Typical wording on an application would be:
Applicant agrees that false, misleading or misrepresented information may result in the application being rejected, will void a lease/rental agreement if any and/or be grounds for immediate eviction with loss of all deposits and any other penalties as provided by the lease terms, if any.

If the application and/or lease includes such or similar wording, and there is a material misrepresentation made, lease termination is usually no problem, and the resident can be evicted if necessary.

Our Recommendations:

In the event it is discovered that a child occupant was convicted of a serious offense, and the resident indicated “no” on the question regarding the applicant or occupants, the manager should speak with the resident and attempt to get the resident or residents to sign an “Agreement to Vacate”. Filing an eviction based on the failure to disclose the child’s criminal past would require that criminal past to be disclosed in court. The problem is these records are sealed and not available to the manager in the civil action, thus making the case difficult if not impossible to prove. If proof is not available, we must rely upon the resident to agree to vacate the premises. Monetary incentives can be used for this if necessary and the Agreement to Vacate will be the proper form. Many residents are desirous of signing the Agreement to Vacate, and it should never be dismissed as an option to have a resident voluntarily vacate the premises. Once an Agreement to Vacate is signed, the failure of a resident to vacate makes for an easy eviction action, as the manager need only prove the resident failed to vacate the premises after signing the agreement. Since the discovery of a criminal child occupant is a relatively uncommon occurrence, we recommend you immediately call your attorney to discuss the matter and the strategy.

 

“Serving the Property Management Professional”

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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”

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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”

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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”

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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