Firework usage in Florida during the Independence Day period and New Year’s Eve ranks right up with baseball, hotdogs and apple pie. On top of that, Florida is one of the few states in the US where fireworks are completely legal if used to scare off birds, illuminate railroad tracks, agricultural uses or to start a race. WHAT? Then how come anyone can buy them? Fireworks stores get around the law by having customers sign a statement that they're at least 18 years old, and promise to use the fireworks for the exempted purposes. I am not just talking about sparklers or bottle rockets, but huge rockets, large exploding fireworks with up to 500 grams of gunpowder, firecrackers and aerial bombs. Fireworks that can kill or maim are for sale to the public in Florida every day of the year.

Close to 10,000 people are hospitalized each year due to injuries suffered through the use of legal fireworks. Many fires are started each year due to the use of fireworks, resulting in millions of dollars of damage The US Consumer Product Safety Council gives a chilling account of the dangers of fireworks. The problem the property management industry faces is that most leases do not address fireworks or prohibit them in any way. I am sure the board of directors of the condo where you rent out a unit will love that. This needs to change beginning now. All your new leases should contain a clause such as the one below which prohibits the use of or possession of fireworks on the premises. Can you change or add this to the rules and regulations of your current residents who signed leases prior to your decision to make this prohibition? Most judges would feel that this is a reasonable change or addition to your rules and regulations or community policies, but you need to notify each and every resident of this new prohibition. Enforcement is another issue. Prior to Independence Day or New Year’s Eve, a letter should be posted on every resident’s door advising of your rule and that you are absolutely serious about enforcement. You should make sure your staff abides by this rule as well, as if a resident sees a staff member violating the rule, your enforcement capabilities will be pretty weak. Can you evict someone for violating your fireworks prohibition? Possibly, but do not count on it. In apartment communities, we recommend having staff members patrol the property during the holiday periods where the use of fireworks increases. Many local jurisdictions have prohibitions on the use of fireworks, so the resident may be committing a crime. Suppose fireworks on the property you manage injure someone? Can your company be held liable? Absolutely, especially if you are failing to enforce your rules.

SAMPLE CLAUSE FOR LEASE, RULES/REGS, COMMUNITY POLICY

“Explosive devices, smoke bombs, firecrackers, flares, sparklers, fireworks or any other noise, smoke, flame or spark-creating item or novelty is expressly prohibited in the rental premises or anywhere on the premises or common areas. Possession of and/or use of any of the foregoing by the resident, any occupants or guests of the resident whether or not the items are legal or illegal to purchase, possess or use under the laws of the State of Florida, may subject the resident to eviction from the premises and shall constitute a serious default under the terms of the lease agreement”

 

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The electricity is off in apartment, and the new resident is to have it turned on in his name according to the lease. While moving in, boxes are placed on the counter and electric stove top. Children love to play with knobs of course, and the resident’s child turns the stove burner on. No harm done. The electricity is off. The next afternoon, the resident has the electric put in her name, and it is turned on. You guessed it. The unit burns to the ground. Could this have been avoided by the actions of the property manager? To a large extent, yes.

Electric Issues

Ideally, an apartment can just sit there vacant with the electricity off. Due to the need for air conditioning to continue to run to avoid mold growth, this is impractical at times. It is important that the property manager coordinates the electric issues along with the resident to avoid confusion, and to avoid situations in which the residents will stay in a unit where the electricity is on in the owner’s name and fail to put it in their name. Failing to follow up to see if in fact the electricity has been put in the resident’s name is a recipe for disaster, and you will find that out 2 months after the resident takes possession you get a $400.00 electric bill.

Should the Electricity Be Shut Off Before Occupancy?

If the electricity is shut off or the order placed for shut off is done prior to the resident’s occupancy, you run the risk that the resident will begin moving into the unit while there is no electric service on. As a force of habit, the resident will switch on light switches or turn on knobs and realize that the electricity is off. The problem is that the switch or knob is not always turned back to the off position. Frequently, children will play with the stove knobs, and since the electric is off, it will go unnoticed if the knob is left in the “on” position. Items such as boxes and fragile goods are often placed on the countertop and stove top during the move-in process, as the furniture has not arrived, and the counter is the only handy or convenient place to put the items. Upon the resident having the electricity turned on, disastrous results can occur.

Requiring Electric To Be On Before Keys Are Given to Resident

One possible way to avoid the fire problem is to withhold the keys until such time as the resident has paid the deposit and the electricity is now on in the resident’s name. This is a sure way to avoid an accidental fire, but could be met with resistance by the resident who may be insistent upon gaining access immediately. We would not want this strategy to be construed as any type of breach of contract by the manager or allow a resident to say that possession was not granted. If you choose this route, we recommend that the resident agrees to this in writing.

Precautionary Steps

If the possession of the unit will be granted to the resident without the requirement that the electricity is turned on or a confirmation thereof, the knobs should be removed and placed in a cabinet out of the reach of children. If possible, place tape over the knobs with a warning that the electric is not on and items should not be placed on the stovetop. Warnings should always be given to the resident regarding electrical safety with instructions not to place items on the stove. We recommend that you prepare a warning notice right away, and make this a part of your move-in procedures. When the keys are given to the resident, the warning should be given as well.

Liability Issues.

When managing property, if the property manager orders the electricity to be turned on, as is often the case after a resident vacates or a unit has been vacant, it is crucial that an inspection is done first to assure that the stove is in fact off and nothing is placed on the stove. Often when units are being rehabbed between residents, workers will put a tarp on the counter or otherwise use the counter and stovetop for flammable items. It is bad enough that a fire can be caused by a resident who possibly did not know the dangers. Now that you know, you have a responsibility to make sure you are never the one at fault.

 

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Experiencing a unit fire is inevitable in a property manager’s career. Most often in the early morning hours and due to a cooking incident, a unit fire results in chaos, and decisions are often made hastily by the property manager who has little experience with such an event.

 

Since a unit fire is fortunately not an everyday occurrence for the manager, preparation needs to be taken now for the time when a fire will occur. There are a myriad of issues that have to be dealt with under the worst of conditions. After the fire, the next day and days to follow will hold even further surprises and challenges that the manager has absolutely no experience in dealing with. What seems to be the best thing to do at the time, or using common sense, will most likely result in the wrong decision. This article will examine the preliminary problems that arise at the time of a fire and shortly thereafter.

The Night of the Kitchen Fire

Your parking lot is filled with fire trucks, all the residents are outside, and the fire department is using its usual massive amount of water to put out the kitchen fire, cut holes in the walls and break all the windows in the unit. Seems odd, but we will leave that alone. It just seems to be the way it is done. The fire is out, and now you are dealing with one or more units that are uninhabitable due to fire, smoke or water damage and along with that are the displaced residents who have no idea what is going to happen next. But wait! You have 2 vacant furnished corporate units and a model unit. So what do you do? Nothing, right yet.

Calling Your Water Extraction Professional While the Fire is Burning!

Any reputable water extraction and drying company will have an emergency number and will be out to your property immediately, usually within the hour. This is their job. It is your job to have such a company set up far ahead of time, have their number on speed dial, and take the drying of the affected units as seriously as possible. You cannot let the most heavily destroyed unit overshadow the other units which may have experienced flood damage. The sooner these units are attended to with proper drying and water extraction, the less money you will have to spend later on mold remediation or major replacement of drywall, cabinets and carpeting. More importantly, if you end up experiencing mold growth, or it is discovered later that you have to replace more carpet and drywall; you increase the odds of having legal problems when residents try to withhold rent, claim damages to their personal property or complain of health issues. If your company has tried to take the dangerous shortcut and bought a bunch of blowers, understand that using these blowers could dramatically increase your liability and legal exposure. Blowing around mold spores is not the way you dry out carpets or walls.

The Big Mistake

Your water extraction/drying company is on their way, so that potential problem is addressed. Naturally, you are feeling extreme sympathy for the displaced residents and want to make them as comfortable as possible and as soon as possible. After all, it is all about customer service and resident retention, correct? So you get the keys to the corporate units and the model unit and tell the residents that they can temporarily use the units, units which by the way are nice, clean and filled with beautiful rental furniture. What’s the problem here? The problem comes a little later.

Allowing the Residents Who Caused the Fire in Their Unit to Occupy a Corporate Unit or Model

Although your residents caused the fire due to their own negligence, you have placed them in your corporate unit. The unit where the fire occurred turns out to be badly damaged; the rehab of the unit will be thousands of dollars, and the residents will NOT be able to move back in any time soon. Then, there becomes a dispute about how the fire started. WHAT? The residents say that the stove was defective. You know that they just had a grease fire that was their fault. However, the Fire Marshal cannot make a proper determination, since the stove has been so badly damaged by the fire, and the firefighters who pulled it from the wall pretty much tore everything up in the process. The residents’ family now are comfortable in the corporate unit with the rental furniture and wide screen TV’s, and even though you have other vacant units for them to move into, they have decided not to leave. It is now a full week after the fire. You call your attorney, and he tells you that the eviction may be extremely difficult if there is no lease agreement or if it is unclear what type or arrangement has been created. Without a true landlord/tenant relationship, the Landlord/Tenant Act does not apply, and you cannot file an eviction. Possibly a wrongful detainer action will need to be filed if the residents refuse to vacate.

Allowing Other, Innocent Residents Affected to Occupy a Corporate Unit or Model

Often, other units have been affected by the fire, smoke and most commonly water that has cascaded down the walls. Again, you decide to help the affected residents out the night of the fire, and you put them in your nice model unit. After all, it will just be a couple days, right? Now comes the fun part. The affected unit below the unit that had the fire was flooded pretty badly, still smells like smoke, and within 3 days mold is already growing on the walls and furniture. The residents refuse to move back in until you replace their furniture, or if they do move to another unit in your community or elsewhere, they want moving expenses and money that they believe is owed, as much of their furniture needs to be replaced and is covered in mold. The fire was not their fault, and they feel that you should do something about it and make them whole. You just rolled into the next month, and the residents are refusing to give you a dime, all the while using your model unit and all the utilities. Again, you call your attorney and he gives you the same story: no lease, and possibly no tenancy under which an eviction is possible.

Avoiding the Problem

When there is a fire or any other natural disaster for that matter, the Red Cross is well equipped to deal with the immediate needs of individuals. They are prepared and equipped to assist the person whose unit had the fire and others who were affected by the fire. The Red Cross will give the individuals vouchers for hotels, clothes and food. Hundreds of Red Cross volunteers throughout Florida respond to fires and disaster every single day, and they are the ones to whom you need to leave the task of housing the residents. While this may seem harsh or cruel when you have empty units, models or corporate units just sitting there, please trust us on this. We see this all the time, and we know what we are talking about. While you may deal with a fire once every 5 years, we deal with them every single week, due to the sheer number of property managers we represent. Just resist the temptation and don’t house the displaced residents. If for some reason the Red Cross is not there and the residents have absolutely nowhere to go, call a local hotel, pay for a specified number of nights, and make it clear that you will absolutely not pay for one more night. You do not want the resident for whom you are paying to fail to leave the hotel room and have your company stuck with the bill. If the hotel serves food, place reasonable limits on what can be spent. Florida law does NOT require you to house, clothe or feed a displaced resident. It only requires you to abate the rent for the period of time the resident cannot occupy the unit.

You Can’t Control Yourself and Want to Put the Resident in the Model or Corporate Unit

We fully understand that some property managers just will insist on putting the residents in their available corporate units or models. It is human nature to want to help out those in their time of need. Is it completely fatal to take this risk? Will things always turn out badly? Actually, chances are that everything will turn out okay, but why take the gamble? The main thing if you do decide to place the residents in the corporate unit or model is to use a Temporary Housing Agreement in this situation. Keep it handy though, because remember, it is 3:00 a.m., and you are not in a condition to have to start up your computers and locate files. The purpose of this form is to create a real legal tenancy with the resident or residents, so that in the event things go bad and they refuse to vacate, you will be able to evict them. Without using the form, it can be very unclear as to what tenancy has actually been created, or it may be that no tenancy has been created. It is up to you how much time you will allow your displaced resident to stay in the unit, and this will depend upon the severity of the fire. At 3:00 a.m., you probably have no accurate information about the extent of the damage, so keep the time limit short; you can always extend later. When you examine this form, you will see it is simply a miniature, pared down, bare bones lease. Will it create a tenancy? Yes, one that can be terminated by you and will allow for a fairly cut and dry eviction action if necessary. Of course we don’t want to have to file an eviction on someone who is occupying a corporate or model unit; therefore, we strongly recommend that even though we have helped you in this situation by providing this form, you will be far better off NOT housing your residents. The Red Cross will find them a place to stay temporarily, or you can take the hotel route we discussed.

What to do with the tenant

If the unit is damaged to the point where it is not habitable, you must get the tenants to vacate.  Often, they will refuse to vacate OR will vacate leaving their personal property and they will delay in getting the property out.

 

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Any good property manager will tell you how essential customer service is to running a successful apartment community or property management company.

In fact, most corporate offices will attempt to measure the amount of satisfaction current residents have through the use of survey tools.

Making your residents happy has many positive consequences.

Most importantly, it increases resident retention.

After all, it is a lot less costly and time consuming to renew your existing residents than to market those units again and deal with the expenses associated with move-out.

That point is magnified even more in   troubled economic times. One of the key components of your residents’ satisfaction is how the property manager communicates with them.

Are service requests being responded to promptly?

Is the property manager returning phone calls and responding to emails quickly?

So with customer service and resident retention being high on the agenda of most property management companies, it is no wonder that many managers feel pressure from their corporate office and their knee jerk reaction is to accommodate residents who make requests which initially do not sound unreasonable.

In some situations, an innocent sounding request made by a resident can result in massive problems for the property manager if that request is granted.

 

You will see examples when property managers acting in good faith and who sincerely are looking to help their resident end up paying dearly in time and money for this altruism.

Like the saying goes, no good deed goes unpunished!

 

Taking Personal Checks at Move-In

 

You have been trying for weeks to rent the one bedroom apartment next to the parking garage that nobody wants.

Two months ago, Arthur, a prospect, walked into your management office unannounced and declared that he wanted to lease a unit at once.

Ultimately, Arthur filled out his application paperwork, and the next morning executed a lease to begin that day, receiving a copy of the lease and the keys.

Your normal policy is to require certified funds prior to executing the lease, but Arthur claimed he was strapped for time, and smoothly represented that his two personal checks covering the security deposit and prorated rent would not bounce.

Arthur’s credit report results were good, so you took him at his word.

Ten days later, you find out that Arthur was actually strapped for cash when his checks bounce. Now you are facing the prospect of filing an eviction without ever collecting any money under the lease transaction.

Allowing Third Party Access

Your resident has lived at your community for the past 5 years and is well liked by just about everyone, including you!

During a conversation with the resident last year, you learned that she has a drug dependency condition.

Sadly, the resident was arrested for heroin possession and incarcerated.

She is not able to post bail. A few days ago, a man claiming to be the resident’s son visited your office and told you that the resident will be in jail for a very long time.

He told you that he had the resident’s authority to clear out the unit and turn in keys.

You really felt sorry for the resident and decided to open the apartment door the let the alleged son enter the apartment home.

Not only did you open the door to the unit, you also have opened the door to potentially huge lawsuit.

For what reason you ask? You had no authority to allow anybody to enter into the apartment home except the resident.

This resident could hold your owner responsible for all of her personal property that was removed.

Worse yet, if you took back possession of the unit, the manager could be liable for triple rent under the landlord/tenant act, and potentially triple the value of lost property under civil theft statutes.

In this case, you should have demanded proof that the son had the authority of the resident to enter the unit, possibly in the form of valid power of attorney.

This scenario also creeps up in the context of the deceased resident.

Unless the third party has received authority from the probate court and displays that proof to you, the third party should not be allowed into the unit, no matter how sad the story is.

It is irrelevant that it is a close family member or the only remaining family member. You have to confirm the third party has legal authority to enter the unit; it is as simple as that!

Accepting Late Rent Payments

Jethro has always been late paying rent.

Not only does he pay the rent late, he usually pays about two weeks after the expiration of the Three Day Notice.

Jethro is in great financial distress, and you really feel sorry for him.

He has assured you that he will get back on his feet and start a new job.

Besides, you reason that if you need to evict him later, at least the judge will know that we bent over backwards to try and assist the resident before evicting.

After 6 months you decide that you cannot allow Jethro to continue this delinquent payment arrangement, and you send his file over to your eviction attorney.

This example is perhaps the most common scenario in which extra work on your part to help a resident backfires. The unseasoned property manager does not realize that the eviction may become incredibly more complicated.

Many judges will strictly interpret the wording of the lease and Section 83.56 of the Florida Statutes and allow the manager to evict if payment is not made before the expiration of the Three Day Notice.

However, there are also a significant number of judges who may find that there is an issue regarding waiver.

This simply means that by not enforcing the lease terms as written, the manager’s subsequent actions modified the lease.

Thus, the resident is no longer obligated to pay the rent by the due date contained in the lease. Favoring one resident in this way may also trigger fair housing concerns, as discussed in more detail below.

Storing Personal Property

Donovan has three kids and is a single father.

You feel terrible that the sheriff will be executing the writ of possession in a few minutes.

Donovan now calls you and tells you he is leaving, but would like you to hold all personal items in your office that he was unable to move, and he will come by later to pick them up.

Seems reasonable enough, right? Not so fast! You never want to exercise control over the personal items of the resident.

What if Donavan fails to return?

You are not able to throw out those items, and in fact a bailment situation is created.

That means the law requires that you exercise reasonable care while continuing to store these items.

You probably see where this is headed. Donovan may later allege that items were damaged or destroyed, or even worse, he may claim that you stole expensive items that you believe never existed.

-Becoming Vulnerable to a Fair Housing lawsuit

You should always keep in mind that when you do favors for your residents, there may be other residents who feel slighted, and if they are a member of a protected class, then you may be in violation of fair housing laws.

It is unlawful to discriminate in the terms and conditions of a rental based on a person’s race, color, religion, sex, national origin, familial status, handicap or military status.

For example, if your tennis courts close at 7:00 p.m. in the summer, but children can only use the courts until 5:00 p.m., there may be no reasonable reason to justify this policy, such as a safety motivated concern, because it does not become dark outside until after 7:00 p.m. In this case, your policy was instituted at the request of some of your older residents who formed an informal tennis league. In the process, you may become vulnerable to a fair housing lawsuit, as it would appear that families are not having equal access to the amenities of the apartment complex.

Remember this again. No good deed goes unpunished in property management.

 

“Serving the Property Management Professional”

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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.

“Serving the Property Management Professional”

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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. 

“Serving the Property Management Professional”

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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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