Most property managers and management will at some time in their career end up in court. Despite the best efforts to settle cases, sometimes court is inevitable and unavoidable. The case may be a simple three minute Motion to Dismiss or a complicated and convoluted eviction with a counterclaim and many witnesses. In some cases the judge will take complete control of the proceedings from the start and simply start asking questions. Some judges closely follow the rules of civil procedure, and court is conducted in a very formal fashion. Some judges do not even hold open court and prefer to deal with the cases in their chambers where the parties all sit around a large conference table. In all cases, the judge is in charge and must be afforded absolute respect. Even if the judge seems relaxed, joking and casual, the parties should remember that the judge will be making a decision, and all court is a serious matter. Sometime court is like what you may see on the daytime court shows, but most of the time, it is NOT like Judge Judy or the People’s Court. Someone may leave that courtroom very unhappy.

Who Must Go To Court

The parties and witnesses who should or must come to court will depend upon the type of case. In an eviction action for nonpayment of rent, the person who is most familiar with the rent records and receipts will need to be in court. This is usually just the property manager or the management, but it can get far more complicated if the resident brings up a defense that he did not receive a Three Day Notice, or that he had made an agreement with your leasing agent, assistant or someone else employed by your company. If other people are involved or had contact with the resident, bring them to court. You can never have too many witnesses with you in court, but failing to bring a necessary witness can doom a case. In a security deposit dispute case, you may have to being in vendors, experts, people who did the work on a unit and all your physical evidence and documentation. Your attorney will tell you who must come to court, what you need, and witnesses may be subpoenaed to try to make sure they actually come to court.

Arriving To Court

We strongly urge you to carefully map out the courthouse and get good directions if you are not familiar with the court location. Many counties have built new or additional courthouses, and it is quite possible that you are assuming you are going to the same courthouse that was there 5 years ago when you last had court. Once you get directions, ARRIVE EARLY. We almost always arrive 30 minutes before court. Many courthouses have severe parking problems and tight security which could result in you being late. Some small courthouses have one x-ray machine and metal detector; others have high tech systems that surpass airport security. You don’t want to accidentally go to the wrong courthouse that is a 35 minute drive from the correct one.

What To Bring and NOT To Bring

Your attorney will tell you exactly what to bring to court. Most likely it will be the resident’s actual file if it is a nonpayment of rent case and copies of the lease and notices. You should organize the file so you can easily take out original documents in the event the judge wants to see something in your file, or if there is a dispute about the authenticity of a copy. There are certain things you should leave at home. Knives, guns, mace, pepper spray and other prohibited items have been brought to court by our clients. They were in a pocket book (or sock) and forgotten. Clear out anything from your pockets, purse or pocketbook before you leave for court and imagine you will be going through an airport screening checkpoint. Leave your switchblade and 9MM at home.

What to Wear

Don’t wear shorts! Even if shorts are part of your work uniform, they should NEVER be worn in court. Females can sometimes get away with it, but why take a chance? Some judges are so strict about this that the bailiff, a sheriff’s deputy, will make you leave the courtroom if you dare to wear shorts. Dress respectfully. A jacket and tie is not necessary unless you are the attorney, but a well-dressed client is nice to have by our side.

Preparation

Many of our clients expect that we will testify for them and do all the talking. While that would be nice and easy, and we try to keep you from having to say too much, our client usually must testify. You will need to know the date you gave the Three Day Notice, how it was delivered, who served it, how much rent was on the Three Day Notice, what the amount on the Three Day Notice represents, when the lease was entered into, when it expires or expired, when you last accepted rent, how much is the total amount owed and just about any other fact regarding the case. If you come across as confused or uncertain, the judge may get angry FAST. You need to prepare before court. Your attorney can be 100% prepared, but if you don’t know the facts of your case, the judge may be unsympathetic or even angry at you. Don’t give the judge an excuse to let the resident win a case or continue or delay the case to a later date. Your attorney will most likely have a sheet with all the information on it in one place. You should do this as well and create your own “cheat sheet” you can look at rather than fumbling through the file. No matter how organized you are, when the judge starts talking, everyone will get nervous, and the most organized person might instantly become disorganized.

Addressing the Court

One of the first things that will happen at the start of the case will be for the judge to ask all parties who will testify to raise their right hand and “swear to tell the truth, the whole truth and nothing but the truth”. Raise your right hand and clearly say “I will” or whatever the judge asks you to say. There is no need to shout this, but failure to say it loud enough for the judge to hear will sometimes anger the judge. You and any witnesses who might testify need to do this, even if you are not sure you will be called as a witness. The judge will often not know whether you are the resident or the manager, so when asked your name, clearly state “Mary Smith – manager of Mountain View Apartments”. Whenever you speak to the judge, refer to him or her as “your honor”: “Yes, your honor”, “No, your honor”, “I do not know, your honor”. Practice this a bit before you go to court.

Behavior During the Proceeding

Speak only when you are asked to speak. Even if the resident says something completely bizarre or tells an outright lie, you must stay quiet, not roll your eyes, laugh, shake your head or act out in any way. There is a strong tendency to want to respond when someone is lying about you or saying something utterly outrageous. Don’t do it. You or your attorney will address the issue. While the resident may be lying, never call the resident a liar. Your attorney will do that for you in the “attorney sort of way”.

Cell Phones

Do you want your phone confiscated by the bailiff or really annoy the judge? Then leave your phone on. Despite verbal requests and signs in the courtroom to put the phones on “vibrate” or “silent”, they end up going off and disturbing the judge. We ask that you turn your phones or Blackberry off completely. You can survive an hour without it. Turn it off and hope the resident forgets to turn his or hers off.

Testifying

The judge may go straight to you and ask you questions or allow the attorney to proceed in a more formal manner with an opening statement. You never know for sure, but usually your attorney will know how a judge generally will proceed and will prepare you accordingly. After your attorney gives an opening statement, you will usually be the first witness, and your attorney will ask you things like your name, where you are employed and if you are familiar with the rent records and receipts. Short and clear answers are all you need to give. Let your attorney direct the questioning. Speak loudly enough so the judge can hear you. Never annoy the judge.

Cross-Examination

Just as your attorney can take testimony from the resident and cross-examine the resident, the resident can cross-examine you. The resident may question you on something you said in response to your attorney’s question to you. This is where a hearing or trial can get completely out of control. This is not time for a conversation or argument with the resident. Just answer the resident’s questions, and if the question is improper, you can pause and your attorney will object. The judge will then direct you to either answer or ignore the question.

Post-Ruling Behavior

If you win the case, which is frequently the case in eviction actions, do not smile and thank the judge. Just put away your papers and follow your attorney out the door. The resident may be angry and make a scene; ignore it all. Your attorney will simply say, “Thank you for your time, your honor” and walk out the door. The judge is not “happy” the resident is being evicted, although you may be, and the judge does not need you to thank him or her for evicting the resident. Try to allow the resident to walk ahead of you, so you do not end up in the elevator with the resident you just evicted, or end up in an altercation outside of the courtroom. If the Judge gives an adverse ruling, do not argue with the Judge or in any way show disdain for the ruling.

Failing to Show Up For Court

As hard as this may be to believe, sometimes our clients decide not to show up for court. Something comes up at the last minute or for some reason our client decides it is not necessary to come to court. A lesser issue is when our client decides to send someone else in his or her place that has little to no knowledge about the case. Is this fatal? It sure can be. We often are able to use the resident’s testimony to win the case, but if the resident‘s testimony is adverse on a key factual issue, there is often no way for the attorney to refute the resident’s distortions or lies. If you have a real emergency, call your attorney immediately, and often the case can be re-set. Always take court seriously. A judge can dismiss a case or worse yet; find for the resident if you do not show up. If the resident has an attorney, you may and most likely will be liable for the resident’s attorney’s fees if you lose.

Communication

It is always advisable for the attorney to have your cell number and for you to have your attorney’s cell number in case there is some reason you will be late to court. Communication is the key, and the judge will usually be willing to hold the case off or take other cases before you in the event you are having a problem getting to the courthouse.

“Serving the Property Management Professional”

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There are three ways a manager obtains possession of a rental unit: surrender, abandonment, or eviction. Surrender and eviction with a writ of possession are covered in other articles. This article deals with some aspects of abandonment.

The manager often finds himself confronted by an empty unit with all, some or none of the resident’s personal property remaining. The manager may have had varying degrees of contact with the resident about his vacating. We will assume that the manager cannot validly claim that the resident has surrendered the property. The choice left is to file for eviction in order to obtain a writ of possession and move the resident’s remaining belongings to the property line OR to consider the rental unit abandoned and dispose of the remaining personal property as the manager sees fit.

The Conclusion

As you read this article, bear in mind the following conclusion. The most important consideration in the manager’s decision to rely on abandonment or file an eviction will usually be the value of the resident’s remaining property. The value of the property should be examined at the outset. A good rule of thumb is this: if the total value of the property is $500.00 or more in the manager’s good faith estimation, then the manager is advised to file eviction and obtain a writ of possession. If the total value of the property is worth less than $500.00, the manager can continue with his examination of the facts to ascertain whether the rental unit has been abandoned.

Special Circumstances

Special circumstances may arise where the lease in question does not have a proper abandoned property clause or there is no lease. If the total value of the property is $500.00 or more in the manager’s good faith estimation, then obtaining a writ of possession becomes an imperative. In these special circumstances, if the total value of the property is less than $500.00 and the manager strongly believes abandonment of the rental unit has occurred, the manager will need to follow abandoned property procedures, including sending an abandoned property letter, as described in Florida Statute 715.105.

The Statute

Florida Statute 83.59(3) (c) sets forth how abandonment of the rental unit is determined: (c) When the resident has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the resident has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the resident has notified the manager, in writing, of an intended absence; or Under Florida law, there are two ways abandonment can be established: (1) the manager has actual knowledge of abandonment, or (2) the manager can meet all three parts of the following test to create a presumption of abandonment: (a) the rent is late, (b) the resident did not inform the manager of an intended absence, and (c) the resident is absent from the premises for at least 15 straight days. (Since almost universally the time under a lease for the periodic rental payment is monthly, we shall speak of 15 days as the “period of time equal to one-half the time for periodic rental payments”. The same is true for month-to-month tenancies.)

The problem with the first standard, actual knowledge of abandonment is that the law does not define this phrase. There at least two major problems with the second standard, presumption of abandonment. First, it can be very difficult to establish 15 straight days of no activity in the absence of around the clock camera surveillance. Second, even if you can prove all three elements of the test, the presumption can be overcome in court.

Unfortunately, the Florida courts are not very helpful in clarifying the presumption, its elements or its application. Court decisions are based on the particular facts of each case, with similar cases being decided differently based on only slight changes in the facts. Since the manager has the writ of possession as the available statutory remedy to remove the resident’s personal property with complete immunity, the courts are inclined to give the benefit of the doubt to the residents in contested abandonment cases.

The Penalty

The penalty for prematurely locking a resident out is the resident’s actual damages with the minimum damages being an amount equal to three months’ rent. An additional three-month rent penalty applies if the manager prematurely disposes of the resident’s personal property, even if the personal property involved is apparently of little value. In addition to his actual or the statutory minimum damages, whichever is greater, the resident is entitled to his court costs and attorney’s fees. Finally, the manager may face a claim for civil theft and possibly criminal charges. The downside is so overwhelming that avoiding the cost of a mistake is well worth the writ of possession, if the manager is ever in doubt about whether abandonment of the rental unit has occurred.

The Practical Guide – The Value of the Property

Since this area is so bereft of any firm statutory guidance, the manager must turn to some practical standards to operate in the real world. The best practical guide is the value of the property left behind. Start with the assumption that most people don’t abandon valuable items. This is just as obvious and logical to the courts as it is to the person on the street.

If the total value of the property is $500.00 or more, than characterizing the rental unit as abandoned is risky. We often advise to forego the abandonment analysis and do the eviction. It’s not that there is never a case of abandonment with property valued over $500.00, only that it is rare and grows rarer as the value of the property increases. If a manager feels that he has such a rare case, he is advised to consult with his eviction attorney before taking any action to repossess the rental unit and dispose of the remaining personal property. If the manager ever finds a rental full of furniture, his attorney’s advice is absolutely necessary.

If the total value of the property is less than $500.00, the manager cannot assume that there has been abandonment. The manager must still proceed with an analysis of the facts to ascertain if he has actual knowledge of abandonment or if he can rely on the presumption. If neither applies, then the manager must file eviction and obtain the writ of possession, even if the value of the property is minimal. That being the case, we turn to a discussion of the statute.

The Statute – Actual Knowledge      

As previously indicated, there is no statutory definition of “actual                                                                                                         knowledge” of abandonment. Neither the attorney nor anyone else can tell the manager if he has actual knowledge. Either he can claim it or he can’t. If he feels comfortable that his contact or correspondence with the resident confirmed that the resident was abandoning the rental unit, including any remaining personal property, then the manager can claim actual knowledge. The manager may at some later date have to explain to a judge how he knew the rental was abandoned. This will be much easier to recall if the manager enters his reasons in the resident’s file along with any resident notes, emails, correspondence, telephone messages or other writings helping to establish the manager’s actual knowledge.

The easiest case may be when the resident tells or writes the manager that he intends to break the lease and leave. The manager checks the property and the resident and all his possessions are gone. A completely cleared out rental should satisfy a judge that the manager has actual knowledge. True trash should not be a concern.

It is common for a manager to talk to the neighbors who will often tell the manager that they “know” the resident left for good. This is not the manager’s actual knowledge. It is a factor that the manager can take into consideration.

The Statute – The Presumption

If the manager doesn’t have actual knowledge of abandonment, then he must rely on the presumption established through its three elements: rent owing, no notice of absence and 15 days not seen. As mentioned above, conclusively establishing 15 days of no activity can be almost impossible. Although some managers have been known to put tape at rental entries to show the requisite lack of activity, for most managers it’s a conclusion drawn as their best guess. It’s based on more or less frequent checks of the rental, talking to neighbors and any other information that the manager can gather indicating that no one has been around. The manager should enter the facts supporting his presumption in the resident’s file.

Any remaining property of a personal nature (clothing, toiletries, personal records, photos, albums) suggests that the resident has not abandoned. Managers who find any usable decent furniture are encouraged to consult with their attorney, even if the items are less than $500.00 in value. This is often an indication that someone may still be occupying the rental unit, at which point eviction is the most prudent route to retake possession. Even when it is fairly clear that no one is actually living in the unit, the resident can still tie up the unit by storing personal property within the unit, again making eviction the best option.

The manager must remember that even if the presumption is established by the manager, it is only a presumption that is being triggered, and it can be rebutted by the resident in court. The manager must accept the risk that the resident will return and litigate in an effort to rebut the presumption. This risk may grow smaller as the amount of rent and damages owed grows larger and as the factors supporting abandonment multiply, but it is nevertheless a risk that the manager must accept in relying on the presumption.

Considerations in Abandonment

In addition to value of personal property remaining on the premises, the following are some other factors to consider that may indicate the resident has abandoned. They may assist the manager in having actual knowledge of abandonment or support the presumption of abandonment.

1. Resident statements or writings;

2. Neighbor statements;
3. Responses from emergency contacts; the manager can only leave a request with the contact for the resident to get in touch with the manager. He cannot disclose any information to the contact, as such is a breach of the resident’s privacy;
4. The type and quantity of personal items left behind;
5. Utilities cancelled, shut-off or rolled over to the manager;
6. Lack of sleeping arrangements (bed, mattress, sleeping bag);
7. No edible food, canned or otherwise;
8. Rotting food in the refrigerator or kitchen in general;
9. No pet food or water, if the resident had a pet;
10. Single family homes: lawn, shrubbery or pool not maintained, when these are the resident’s obligations under the lease.

All the facts should be considered and weighed. No one factor can be seen as conclusive. Something may be nothing more than a lease noncompliance; for instance, the fact that the electric is shut off is not conclusive of abandonment. It may only be a lease noncompliance by a financially struggling resident, who remains in possession.

Pictures  

A final word on proof:  in establishing the condition and value of remaining items or the condition of a rental that gave rise to the manager’s findings of abandonment, pictures are indispensable. In this day and age of cheap digital cameras, there is no reason that digital pictures of the rental and items are not taken and included in the resident’s file.

“Serving the Property Management Professional”

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Do you own or manage buildings that consist of 3 units or greater? If so, new Fire Code rules will affect you. On December 13, 2009, new regulations were passed which require special signage to be affixed to buildings, and failure to comply could result in substantial fines. Compliance is easy. Just purchase your signs and affix them to the building. There are three different signs though, and you need to know which one you need and where to place them. The most important thing is to make sure you are in compliance, as your deadline was March 13, 2010, which is already past. The local Fire Marshals are just beginning their inspections, and you are now on notice! There is no grandfathering, and if you are not in compliance, it will be up to the local Fire Marshal to determine whether fines are imposed.

The Aldridge-Benge Firefighter Safety Act

The Act which was signed into law on December 13 by Governor Crist is in honor of 2 Orange County Florida firefighters, Todd Aldridge and Mark Benge, who were killed when the roof of a burning gift shop collapsed. The purpose of the law is to alert firefighters to the construction type of a structure they may enter in the event of a fire or other emergency operations they may be conducting requiring entry into the building, so they can better prepare for the hazards involved. The State of Florida Fire Marshal’s Office implemented Rule 69-A-60.0081 under the authority of Florida Statutes Section 633.027.

The Type of Construction the Rule Covers

The construction type that is at issue is known as “light frame”, which means construction in which repetitive wood such as beams or trusses are used, or light gauge steel is used, for either roofs, floors or walls. This pretty much covers almost all the construction in Florida with the exception of a concrete building with concrete floors and a heavy gauge steel roofing system. Trusses are prone to failure in a fire, and once one truss fails, the load is shifted to the other remaining trusses, which in turn can cause a catastrophic failure and collapse. Compounding the problem are heavy items which are often placed on floors and roofs, such as air conditioning units, which further contribute to potential roof and/or floor failure.

Are all Structures Covered?

The Rule covers all “commercial structures” of 3 units or more. From a triplex to large multifamily buildings, the Rule would apply. Although you may not look at a triplex as a “commercial” structure, for the purposes of the Rule, it will be considered commercial and covered. In addition to the typical structures where your residents may live, the Rule also possibly covers your clubhouses, maintenance shops, laundry rooms, fitness centers and any other structure which may be on the multifamily property. Interestingly, townhouses are not considered multi-unit residential structures, so they do not need to comply with the rules.

What Are These “Signs”

The signs required, or “approved symbols” as referred to in the Rule, must be a Maltese Cross which measures 8 inches horizontally and 8 inches vertically of a bright red reflective color. The signs may be as simple as a vinyl stick-on sign, or a more substantial, aluminum or composite type of sign. If the structure has light frame truss roofs, it must be marked with the letter “R”. If the building is constructed with a light frame truss floor system, it must be marked with the letter “F”, and if both light frame truss floors and roof are present, the building should be marked with the letters “RF”.

Where Do You Obtain the Signs?

Many sign makers and supply companies for the multifamily housing industry are providing these signs. They are not cost prohibitive, and most companies have them in stock or can have them made in an extremely short period of time. One such company, Giglio Signs, can assist you, keep the signs in stock and have been providing the signs to hundreds of properties throughout Florida.

Placement of the Signs

As is often the case, some laws or rules create more questions than answers, so the following explanation should be a starting point only and not relied on completely. According to the rule, the “symbol” must be placed within 24 inches of the left of the main entry door of the unit and must be placed no less than 4 feet from the bottom of the symbol to the grade, walking surface or finished floor, and no more than 6 feet from grade to the top of the symbol. Does the rule mean the edge of the symbol or the middle of the symbol? We don’t know. The Fire Marshal can get very picky at times, so we urge you to measure carefully and not try to be too close to the upper or lower limits. You can be sure that they will have their measuring tape with them. Remember that we are talking about the symbol, not the actual sign to which the symbol may be affixed, and this will affect the measurements. The symbol itself must be permanently attached to the structure on a contrasting background, or be mounted on a contrasting base material which is permanently attached to the structure. If you are unsure of the placement of the signs or whether your signs are in compliance, we recommend that you call your local Fire Marshal and have them come out to the property to meet and advise you.

Some Final Notes

Due to the importance of compliance with the new Rule and the possibility of serious multiple fines for noncompliance, we urge you to take this matter seriously. If you have not done so already, purchase your signs and call the local Fire Marshal. Many of the local Fire Marshals are overwhelmed right now with these calls, and some are not sure of the sign placement in unique circumstances. Once you have them come to the property, try to retain some kind of proof that you were told where to place the sign by the Fire Marshal and that you complied. It would be unfortunate indeed if you followed the direction of a person from the Fire Marshal’s office who came out to the property, only to have one next year state that you did not comply. See if you can get something from the Fire Marshal in writing once the signs are affixed to the building stating that you are in compliance. When shopping for the signs, you are going to find a wide range of quality and materials used. There is no prohibition on a simple stick on vinyl sign, but will the sign last, or will it be peeled off by a resident or guest? Look around and see what is available, and finally, once you have the signs affixed to the premises, make sure your maintenance staff routinely checks on the signs to see if they are damaged or missing. The local Fire Marshal will not have sympathy for you if you fail to make sure the signs stay on the premises, so keep spare signs handy, and affix them to the premises in a fashion where they are not easily removed or vandalized. Get into compliance now. Not only is it the law, but it can help save a life.

“Serving the Property Management Professional”

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Are you aware that most insurance companies do not cover injuries sustained by people using trampolines, and the mere presence of a trampoline on the property could result in the insurance company canceling the insurance on the premises? Does your lease adequately address this issue? Can you force the tenant to remove the trampoline?

The Deadly Trampolines

Injuries to individuals using trampolines are rising at a dramatic pace, as trampolines are becoming less expensive and easily obtainable at the mega-stores such as Wal-Mart and K-Mart. Serious injuries occur every year to the neck, legs, spine, face and head of users. Over 89,000 people sustained injuries last year alone, many included paralysis, and some even death due to the use of trampolines. The insurance companies are taking swift action!

In our opinion, trampolines should be expressly prohibited on residential rental property, and according to many insurance companies, the mere presence of a trampoline on a rental property will result in the loss of insurance coverage. Does your owner’s insurance coverage permit or prohibit trampolines? If the insurance company decides to prohibit them, can you make the tenant remove the trampoline?

Creating a policy

Your first step needs to be to create a policy that trampolines are prohibited, and this needs to be clearly stated in the lease agreement. By failing to state this in the lease agreement, it becomes difficult to make a tenant remove the trampoline and could even appear that the property owner or manager is discriminating against children by making them remove a trampoline. If you discover that trampolines are prohibited by the insurance company, and your lease fails to address the issue, we still recommend that you give a Seven Day Notice of Noncompliance With Opportunity to Cure, and attempt to force the tenant to remove the trampoline. The tenant’s use or possession of the trampoline is thus affecting the insurance coverage the owner has on the property, so this may be grounds for enforcing the removal of the trampoline and even the tenant if the tenant fails to comply.

Other Recreational Equipment

What about swing sets, above-ground pools or other toys or recreational equipment that may be prohibited by an insurance company now or in the future. Do you need to list out every possible item and prohibit it all? You simply need to have a clause in your lease which makes the tenant agree to not engage in any activities which can affect insurance coverage.

Here is a “Sample Lease Clause which may be helpful:

“No trampolines, athletic equipment, recreational equipment, or any items or activities which can cause interference with or affect the insurance coverage on the premises will be permitted. Tenant agrees to cease any activity and/or remove any items which causes interference with or affects the insurance coverage on the premises immediately upon notice from Landlord or Landlord’s agent”

“Serving the Property Management Professional”

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Many residents abandon the premises or get evicted leaving rental furniture behind. Most managers know how to deal with the property in these situations. Less common is the situation when the furniture rental company calls the manager or shows up at the office asking the manager to allow them access to the unit to retrieve the furniture for which the resident has not paid. Do you oblige? Can you let the representative from the rental furniture company in the unit? Suppose the eviction will be served on Monday morning. Is there any obligation to the rental company?

The Resident is in Possession

Furniture rental companies will often contact you in the event the resident to whom they rented the furniture fails to pay the rental amount. According to the contract the resident signs with the furniture rental company, the resident agrees to allow the company to pick up the furniture in the event the resident is in default. You, as manager though, are not a party to this contract and have no power or authority to grant the company access to the rental unit. If you are notified by the rental company’s representatives, simply tell them you cannot grant them access. They will try to convince you otherwise, but the bottom line is that retrieval of the rental furniture is their problem and not yours.

The Resident is Under Eviction

The fact that the resident is under eviction changes nothing. An eviction is simply a lawsuit by which you are trying to remove the resident. The resident may pay and stay or end up being evicted. The furniture rental company is not a party to the lawsuit and does not have any greater rights to the rental furniture because of the pending eviction.

The Sheriff is Going to Grant You Possession

Near the end of the eviction process, the sheriff’s office will notify you of a fixed date and time when they will come and meet you to give you possession. If the furniture rental company asks you when this is going to occur, simply refer them to the case number, and they can do their homework. If the company wishes to be at the property when the sheriff executes the Writ of Possession, they certainly can, and they can also retrieve the items from the property line after you have placed them there. Do not allow the rental company employees to enter the unit to retrieve the furniture. You are required to take all items to the property line. You neither have any affirmative duty to notify the rental company of when the writ of possession is to be executed, nor do you have any responsibility for the preservation of the property once you take it to the property line.

The Law and Rental Furniture

Florida law requires the furniture rental company to file a lawsuit in County Court, and obtain a writ of replevin in order to have the right to take the rental furniture from a resident without the resident’s consent, if by taking the furniture, the peace will be breached in any way. If for some strange reason the rent furniture was sitting on a first floor open lanai area, the furniture rental company would be able to simply take the item(s) and leave without the necessity of a replevin action. Since most furniture is kept in the unit though, the legal procedure must be followed.

Abandoned Rental Furniture

If the unit is truly abandoned or surrendered to you and you have the proper abandoned property wording in your lease agreement, you may dispose of the rental furniture and any other personal belongings as you see fit. If the furniture is obviously rental furniture or contains markings identifying it as rental furniture, there is nothing improper about calling the rental furniture company and asking them to retrieve their property. Please be absolutely certain that the unit is abandoned according to Florida law or surrendered before ever removing any resident’s personal property. Check to see if your lease has the current abandoned property wording stated clearly:

BY SIGNING THIS RENTAL AGREEMENT, THE RESIDENT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING RESIDENT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE MANAGER SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE RESIDENT'S PERSONAL PROPERTY

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Each year millions of dollars are spent repairing water damage due to bursting toilet, dishwasher, sink, and ice maker supply lines, and washing machine hoses. The washing machine hose alone is one of the top five causes of water damage losses in a home, Oftentimes these losses are not covered by insurance and cost the property owner a significant amount of money in damage repair, and increase the possibility of moisture related problems such as mold and mildew. While there is little we can do about floods and water damage caused by acts of God, there is something we can do right now to minimize the possibility of damage due to the bursting of supply lines and washing machine hoses. The solution is a simple and inexpensive replacement of the cheap worn out supply line and hoses with steel reinforced flexible hoses.

Current Practices

The typical toilet supply line is either metal or plastic. The metal supply lines, while initially workable when installed, are usually made of thin brass tubing that is subject to corrosion over time. These cheaply made pipes are installed at the initial construction of the premises or when a toilet is replaced. Since toilets can last a significant amount of time with only the replacement of the “innards” necessary, the supply line can be extremely old and subject to failure. Due to the corrosion of these lines, they are often not replaced on a regular basis, as removal of the lines will result in a situation in which the valve must be replaced in addition to the lines. The corrosion often welds the cheap valve to the cheap supply line. The other common supply line is the cheap white or translucent plastic/rubber hose which has a fitting attached to each end that enters the valve and the tank. Over time these hoses deteriorate and eventually can fail. In addition to toilets, these cheap supply lines are also used for sinks and faucets, due to the ease of using a flexible line rather than soldering pipes in place. A typical wash tub type of sink will most likely have the plastic/rubber line, and most faucets now are made for the flexible hose, while in the past, they were made for the pipes to be soldered into place.

Washing machine hoses are almost always the standard black rubber type with a fitting on each end. Left untouched, they can last a long time. Some though will deteriorate, harden, or bubble out, and the fittings can corrode on each end. Often a washing machine is owned by the resident, purchased, used or moved from another location. In the process of cleaning or repair, the washing machine is pulled out from and pushed into the location, causing potentially damaging stress on the hose and fittings. In some cases the washing machine hose is a touch too short and is stretched to its maximum when attached.

A Recipe For Disaster

The bottom line is that the high pressure pipes in a house, condo or apartment all feed the weak links, those being the supply lines and washing machine hoses. A supply line or hose failure can and often does occur, with the potential to cause massive damage to the premises. If the problem is not detected immediately, the water will continue to run, cascading down the front steps or into the unit below, until such time as it is noticed. By that time it is simply too late.

Liability Issues

Can the resident be held liable in the event of a bursting supply line? In the case of the resident-owned washing machine, the resident would most likely be held liable. With that said, can you really collect from the resident? Will the resident be able to pay potentially thousands of dollars to repair the premises? It is extremely doubtful. If the resident has renter’s insurance with liability coverage for property damage, there may be some coverage, but the chances of having a covered resident is slim. Liability to the manager can be significant. In the event of damage to other premises owned by other parties, the manager could be held liable, even though there is no real “fault” involved. The interior plumbing, such as supply lines, are owned by the manager, and therefore the manager can be responsible for any damage caused to others when that plumbing is faulty.

Renter’s Insurance and the Resident’s Personal Property

While it is not clear that we can “require” a resident to purchase renter’s insurance, the manager should do whatever is possible to encourage the resident to get covered. While most leases contain a clause that states that the manager is not responsible for damage to the resident’s personal property, this clause may not protect the manager. The implied warranty of habitability can trump all of this, and it can be argued successfully that a resident is entitled to live in a place where the pipes do not break, creating that unwanted swimming pool inside the premises. Managers should never depend solely on a property damage disclaimer clause in the lease, but rather use it as a tool to encourage the renter’s insurance purchase.

Two Action Items

1. Reinforced hoses

As of this writing, a reinforced supply line for a toilet at your local building supply store retails at about $5.00. A washing machine hose, for which you will need two, run around $13.00 each. This is a small price to pay for the peace of mind and increased protection you will receive. Buy and install them now. It should be noted that a reinforced steel braided hose can fail and can be made cheaply as well. Other products are on the market that are even stronger but cost more.

2. Turn off the water!

If the rental premises are vacant, the water should be shut off if at all possible.

We would urge every property manager to take action immediately. Inspections of all hoses are a must. Locating a washing machine at least 4 inches away from a wall can help avoid stress on the hose. Knowing where the shut off valve for the premises is located, and showing the resident the location can prevent a lot of damage. There are further steps which can be taken, such as the installation of electronic water detection systems which alert the resident and/or shut off the water supplies in the event of a flooding situation, but at the bare minimum, replace those hoses and supply lines today with some quality hoses!

“Serving the Property Management Professional”

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Is the property on well/septic? If yes, who is responsible for what?

Is there a stable?  How many stalls?

Is the tenant allowed to use it? Is the tenant allowed to keep horses?

The tenant has one horse and there are 2 horse stalls.   What ends up happening with that other horse stall?  

Can the tenant board horses for others?

Is the tenant allowed to ride horses on the property?

Is there insurance coverage for injury to tenants riding horses?

Is the tenant allowed to have any other animals on the property? What animals? How many?

Is the tenant allowed to construct anything? 

What is the tenant allowed to do on this land?

Is the tenants to maintain the property? What does maintenance mean?

Are there barns, sheds, other buildings?

Does the owner have any personal property in the buildings?

Is the tenant allowed to use the buildings? What are they allowed to use them for?

Who is to maintain the buildings?  Are the barns, sheds and other buildings insured?

What vehicles will be allowed on the property? Any recreational vehicles allowed?

Are recreational vehicles going to be used on the property?

Is there any equipment or farm equipment on the property? Who’s responsible for this equipment?

Who pays for the maintenance? 

Can this equipment be used by the tenant?

Will the tenant be constructing any barn, shed or any other buildings?

Will the tenant be allowed to do any work on the property? What will they be doing?

Does zoning allow commercial activity?

Will customers be coming on the property?

Will the tenant have vehicles or equipment belonging to others on the property?

Does the owner have proper insurance for commercial activity?

Does the owner have insurance for the tenant to do work?

Is the tenant’s personal property insured?

Is there a lawn? Who is responsible for the lawn?

Are there fields? Who’s responsible for maintenance of the fields?

Will the tenant store anything in barns, shed or outbuildings? What will they store? 

Is there fencing? Who is to maintain the fencing? What does that maintenance mean?

If the fencing is damaged does the owner have to repair? Can the owner remove fencing?

Are there gates? Who is to maintain the gates? What does maintenance mean?

Are there trees on the property? Who is responsible for tree maintenance or when one falls in a storm?

Does the property flood? Are there any roads or driveways on or to the property?

Who is to maintain the roads or driveways on or to the property?

Are there any areas or parts of the property that the tenant is prohibited from using? 

Is there electric service going to a barn where the owner has his RV stored with the a/c on?  Who pays for that electricity?  

“Serving the Property Management Professional”

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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”

“Serving the Property Management Professional”

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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.

“Serving the Property Management Professional”

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