Often management or property manager will be ordered to attend mediation in an eviction action. Depending on the complexity of the case, the mediation could last anywhere from minutes to hours, although most will take 30-60 minutes to complete. On some occasions the mediation will be scheduled so that a court hearing will take place on the same day in the event that the mediation is unsuccessful. Usually the mediation will take place in a room located in the courthouse. Please keep in mind that if you have been ORDERED to attend the mediation by the judge in your case, then you MUST attend. If you fail to attend, the judge may and likely will enter a default against you. You should NOT treat this as a voluntary process.

The Basics of the Mediation

Mediation is a process in which a person who does not have an interest in the outcome of the case, the mediator, attempts to promote understanding between the parties to a lawsuit. The ultimate goal of the mediator is for the property manager/management and resident to resolve their differences by reaching a settlement. The mediator has no power to force the parties to settle. In most Florida Counties there is no charge for an eviction-related court ordered mediation, if the County Court has jurisdiction in the case. For cases which are filed in Circuit Court, a fee may apply. Some counties pay their mediators, while others only use volunteers. Most mediators are not manager/resident attorneys. In fact, most are not lawyers! Some mediators may have little or no experience in property management matters. You should keep that in mind, so you are not frustrated at the mediation. Being disrespectful towards a mediator can only lead to trouble for you, as you want the mediator to persuade your opponents that their case is weak. If you do not treat the mediator in a dignified manner, they may reverse the tables on you and go out of their way to portray to the other parties that your case is weak.

Why You Have Been Sent to Mediation

Judges typically order parties to mediation for a number of reasons. First, if the residents’ answer to your lawsuit raises some issues, then your case may be a candidate for mediation. Next, most judges have a very full schedule of cases and would prefer to avoid placing a trial or hearing on their docket without encouraging the parties to settle their outstanding disputes. Finally, you have been sent to mediation, because they WORK. More often than not, the mediation process does encourage settlement. Some judges may require the residents to place fully accrued rent money in the court registry as a condition of mediation. Other judges may require that some money be deposited, and some judges may ignore this requirement.

Benefits of the Mediation

For many property managers/management, the thought of losing a lawsuit can be quite stressful. A loss in court can mean long delays before your problem resident is removed, wasted legal fees and perhaps responsibility to pay the residents’ attorney’s fees. Additional time spent in court also prevents the property manager from devoting valuable time to his or her property. Energies that could be directed towards other aspects of the real estate business, marketing for example, instead must be used to deal with the problem residents. It is also comforting to know that if you settle your case, then you have retained greater control of your destiny, eliminating the uncertainty of a judicial determination. Once you leave the outcome of your case in the hands of the judge, then only one thing is almost CERTAIN: there will be a LOSER and a winner. It is usually all or nothing! It is very hard to get inside the mind of a judge, and different judges may give very different rulings when presented with essentially the same set of facts. In fairness to judges, they often do not have the authority to “split the baby” and make all parties feel good. Going to court is always a gamble, even when both the facts and law appear to be in your favor. With the proper attorney representing you, the odds should be even more in your favor, but there is ALWAYS the possibility that you may NOT win your case. Mediation can also be used to effectively keep the property manager’s/management accounts receivables in line. For example, during a resident eviction, if the residents place money in the court registry, you can obtain that money faster by settling, if the residents agree to turn that money over to you. Waiting until a hearing is scheduled if the mediation is unsuccessful can cause the property manager or management to wait weeks until the registry money can be obtained, and this assumes the judge’s ultimate ruling will be favorable regarding a disbursement to the manager. Also, while your residents who are under eviction are living in the premises, the rental delinquency amount continues to rise, which could cause a very ugly accounts receivables report. If you manage to work things out at mediation such that your residents agree to move out, then you can turn your attention to finding a paying resident instead of a waiting for a trial or hearing. Finally, if your mediation is successful, you can have “PEACE OF MIND” that your case has been resolved, and that you can move on! It cannot be overstated how stressful ongoing, contentious litigation can be, and the toll certain cases can take on one’s ability to enjoy life.

Action to be Taken Before the Mediation

It is very important to have all of your “ducks in a row” prior to your scheduled mediation. First, make sure that you are very familiar with not only your version of the dispute, but the argument made by your opponent. If it is an eviction matter which is being litigated then the property manager should bring copies of the payment ledger, lease and Three Day Notice. You should review the residents’ answer or motion sent to the court, so that you can persuade the mediator of your position and downplay the merits of your opponent’s position. Also, by reviewing the residents’ response with your attorney, you are less likely to get caught off guard at the mediation by last minute surprises. For example, if the property manager accidentally accepted payment from the residents after the eviction complaint was filed in court, and the residents noted this in their written response to the court, then you would likely be wasting your time at the mediation, since you would probably lose your case under Florida law because of a waiver problem. Maybe you did not accept payment in the above example, but somebody else in your office held on to the check for 3 weeks before sending it back to the residents placed under eviction. If the information contained within the residents’ answer turns out to be true, you may be willing to compromise more in the mediation process, since the odds of losing at trial have just increased. Make sure you know the exact location of the room number and full address of the location of the mediation. DO NOT BE LATE! Remember, if you do not appear, the judge assigned to your case may treat your non-appearance as a default and DISMISS your case. Be clear on what your settlement authority is.

The Mechanics of the Mediation

At the start of the mediation, the mediator will introduce himself. The party that filed the lawsuit (the plaintiff) will then be invited to verbally lay out their case. The defendant will then be given a chance to respond. After that, the mediator will likely ask both the property manager and the resident’s questions, so that they can determine the strength and weaknesses of the lawsuits. DO NOT INTERRUPT the residents or mediator when they speak. You will come across as overly emotional, and it is very disrespectful to the mediator and the process. Next, the mediator may want to caucus. This simply means that the mediator will speak in private with each party and attempt to move them closer to settlement. Now you will better understand why being prepared and respectful towards the mediator is vital to your success. It is very often at the caucus stage that the mediator will make their strongest presentation to the resident as to why the resident should settle, if the mediator believes that your case is strong. Having the mediator do this has a very profound psychological effect on the residents. In fact, since the residents understand that the mediator is unbiased, it can be devastating for them to hear that they will likely lose their case. It is a very useful strategy to utilize the “caucus”. If you see that progress is not being made at your mediation, it may be wise to suggest to the mediator that him or her caucus with the residents, if you sincerely feel that you have a strong case. Another useful strategy to keep in mind, especially if you are in a mediation regarding an eviction, is to remind the residents that by settling the case prior to a potential final judgment, the residents can protect their rental history from reflecting a final judgment. Having a final judgment of eviction on their rental history can make it extremely difficult for the residents to rent elsewhere. If you and the residents cannot come to a settlement over the amount owed, then another useful tactic is to try and convince the residents to turn in keys and VACATE, especially, if you can lease the property sooner than later. Finally, if you can reach a settlement, the mediator will have the parties sign a legally binding document, and then the judge may approve the agreement in private, or call the parties into court to verify that they understand the terms of the settlement. If monies are to be paid to you by the residents as reflected in the agreement, then you should request that the payments be made in money orders or cashier’s checks, and the settlement agreement can reflect that condition. The agreement should also state that the property manager is entitled to a final judgment of eviction should the residents fail to meet any of their obligations listed in the settlement agreement. One final word: the types of stipulation forms used at mediation can be provided by our firm prior to the mediation date. If the case can be settled at mediation, it can often be settled prior to mediation. This can really cut down on time spent away from the office and additional expenses, when all residents who signed the lease sign a stipulation in the comfort of your own office, early in the eviction process.

“Serving the Property Management Professional”

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Your resident owes you 3 months’ rent and is currently under eviction. The air-conditioning breaks and the resident places a work order. The eviction is almost completed. Must you make the repair? The answer is a simple “yes”. The resident has three unauthorized occupants living in your apartment, and his garbage disposal is broken. Do you need to get it fixed? You bet. The rent delinquency, noncompliance or eviction status has nothing to do with your obligations under the lease and Florida law to maintain the premises and make necessary repairs. No matter how angry you are at the resident or how delinquent the resident may be in rent or other monetary obligations, the manager must proceed as if the resident is completely current and not in violation of any of the lease terms or under eviction.

The Manager’s Obligations

The manager’s obligations are many. Florida Law Section 83.51 clearly states the manager’s obligations, and they must be followed unless specifically excluded in the lease agreement. The lease agreement may add further obligations on the manager, and finally there is the common law implied warranty of habitability.

1. The Manager’s Obligations under the law

83.51 Manager's obligation to maintain premises. (Annotated) (1) The manager at all times during the tenancy shall:

As you can see, there is no exception here for evictions or when the resident is in default. The manager’s obligations are “at all times during the tenancy”

1. Comply with the requirements of applicable building, housing, and health codes; or

All state and local building housing and health codes are included here. These can be obtained by the manager ahead of time, or you can wait until you get an inspection by the DBPR if you are an apartment community and you will surely find out!

2. Where there are no applicable building, housing or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition… The manager's obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex.

The above requirements apply to all multi-family housing. 

2a.Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the manager of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for:

This wording is a bit confusing, but the following obligations apply to apartment communities.

1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs…
2. Locks and keys.

This does not require that the manager re-key after each move-out, but we recommend it.

3. The clean and safe condition of common areas.

This is a very serious obligation, especially in light of the “safe condition” requirement.

4. Garbage removal and outside receptacles therefore. 5. Functioning facilities for heat during winter, running water, and hot water.

Note that air conditioning is not mentioned here. This is an example in which the lease will govern and/or if there is air conditioning provided, the manager must keep it working. Also, many local building codes do contain provisions requiring central air conditioning or screens on windows.

2b. Unless otherwise agreed in writing, at the commencement of the tenancy of a single-family home or duplex, the manager shall install working smoke detection devices. As used in this paragraph, the term "smoke detection device" means an electrical or battery operated device which detects visible or invisible particles of combustion and which is listed by Underwriters Laboratories, Inc., Factory Mutual Laboratories, Inc. or any other nationally recognized testing laboratory using nationally accepted testing standards. (4) The manager is not responsible to the resident under this section for conditions created or caused by the negligent or wrongful act or omission of the resident, a member of his family, or other person on the premises with his consent.

In the event a resident intentionally or negligently breaks or damages something that would normally be the manager’s obligation, the manager does not need to take action. However, the problem is proving the resident’s actions or negligence. Always document and photograph a repair after it is completed, as some residents will intentionally break something again in an attempt to withhold rent.

Common Repair Requests

 

Some common requests by a resident during an eviction would be items such as pest infestation problems, plumbing problems, garbage disposal repair, water heater repair, and quite often, air-conditioner repair. We recommend that the items are dealt with immediately, just as you would for any other resident. The property manager or management must completely put out of his or her mind the fact that the resident may be delinquent or under eviction.

The Manager’s Obligations Under the Lease

The manager may have further obligations to the resident for repairs or maintenance under the terms of the lease. We always recommend shifting as much of this as practical, but there will be many situations where the manager is contractually liable to maintain or repair something on the premises, or this liability is implied. An example of this might be a hot tub or pool. While we doubt that either of these are a necessity of life, if they exist on the premises and are not excluded from the manager’s obligations, these items would need to be fixed and put in working condition just like any other item, regardless of the resident’s delinquent rent or eviction status.

The Consequences of Not Making a Repair

The manager may have filed a typical eviction for nonpayment of rent. During the eviction, the resident requests a maintenance issue be attended to. The manager refuses to deal with the problem, and a hearing is set by the court. Even though the manager’s failure to make a repair after an eviction action is filed or after the resident is delinquent should not become a part of the testimony put forth in an eviction trial, this type of thing invariably will come out in court, causing the judge to possibly not look kindly on the manager. The manager may be placed in a position in which he or she will have to explain to the judge why something that was indeed the manager’s obligation was not fixed. If the judge is not satisfied with this reason, the sympathy factor for the resident increases dramatically, and if the resident had other repair or maintenance issues prior to the eviction which he or she is using as an eviction defense as the reason for rent withholding, the manager will definitely not look good.

Once You Pay the Rent, I Will Make the Repair!

Unfortunately, we hear that managers say this to their residents on occasion. This is probably one of the worst things you can say to a resident, and if a judge knew you did, you would be in some hot water in court. This is clearly not allowed under Florida law.

The Dangerous, Threatening or Belligerent Resident

A resident under eviction or delinquent in rent may be a danger to the manager. Tempers may flare during a repair which could result in a serious altercation involving injury or even death. If necessary, retain the services of the police when going to the rental premises if you feel in any way that you are in danger, and refrain from discussing the eviction or delinquency at all costs.

 

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Most property managers have a solid handle as to what their attorney will require before filing an eviction for nonpayment of rent. In that situation, property managers expect to fax over a Three Day Notice for Nonpayment of rent, the lease and sometimes the payment ledger. Assuming the Three Day Notice, the lease and the payment ledger present no issues; your attorney will file the case. After a while this routine becomes like clockwork for the property manager. Like all good things, this walk in paradise will come to an end, once the property manager attempts to file an eviction based upon a noncompliance of the lease terms by the resident other then for nonpayment of the rent. In this situation, a good attorney looking to protect the property manager will refuse to file an eviction based upon a Seven Day Notice of Termination of Lease unless all of the statutory requirements have been satisfied, and the attorney is certain that there is enough proof to win in court. 

Let Your Attorney Protect You

You may be wondering about who or what your attorney is protecting you from when your lawyer declines to file an eviction based upon a weak Seven Day Notice case. First and foremost, your attorney with be protecting you from yourself! That is right. A property manager can be his or her own worst enemy by impulsively filing an eviction in the heat of the moment. In those moments, the property manager is so focused on removing the bad resident that a shutdown occurs when the attorney advises that the case will likely not hold up in court. The seasoned attorney will stand up to the manager and respectfully warn that the manager could be on the hook for substantial legal fees if the resident contests the case and hires an attorney. Worse yet, you could be wasting valuable time, because the bad resident will still be residing in the unit, creating the same problems and making life very stressful. The solution? Let your attorney do his or her job in these kinds of eviction cases. Your attorney must be given proof of the noncompliance by the resident so that the judge in your eviction matter will rule in your favor. Florida law has some very clear guidelines as to what type of proof can be submitted to the judge during the eviction trial. In a nutshell, your proof is the means by which your lawyer can capture the attention of the judge to rule in your favor. The tricky part is turning your proof into evidence that is reviewed by the judge. If your proof is not considered evidence, then it is of absolutely no value to you. The purpose of this article is to provide property managers with a basic understanding of Florida Evidence law, so that they can successfully litigate their eviction case if and when a court hearing becomes necessary.

The Florida Evidence Code

The Florida Evidence Code was adopted by the Florida Legislature in 1976 and became effective in 1979. The evidentiary provisions are found in Florida Statutes Chapter 90. Many of these provisions have procedural components and therefore have been adopted by the Florida Supreme Court as rules of procedure. The Code in Sections 90.201 through 90.207 authorizes a court to treat something as fact without the need for further proof at trial; this is called judicial notice. The court can take judicial notice of a matter at anytime during your hearing. Usually these are rules of the Florida Supreme Court, acts of the Florida Legislature or Florida Ordinances. The Court can also take judicial notice of facts that are easily ascertainable, such as the fact that July 4, 2010 was a Sunday. Property managers will rarely if ever be lucky enough to have their key evidence judicially noticed at trial. The property manager who is dealing with a resident hosting loud parties will not have the evidence regarding the noise judicially noticed; such a noncompliance will have to be proven by testimony of witnesses or some other form of evidence.

Documentary Evidence

Todd and Lisa live in two separate second floor units at the Lakes of Transylvania apartment complex. Sam is their downstairs neighbor. Sam is often heard yelling while on his cell phone out in the common areas and playing loud music very late at night inside his apartment, along with excessive guest traffic in and out of his apartment. Todd and Lisa complained to the apartment manager, who correctly recommended that they call the police and obtain further proof in regard to Sam’s obnoxious conduct. Todd and Lisa also began playing private detective. Todd found an old tape recorder, and when Sam acted up again one night, Todd turned the machine on and recorded the loud music along with Sam yelling profanities. Meanwhile, Lisa snapped a bunch of pictures which showed at least 30 people near the front door of Sam’s apartment with some of those 30 people inside the unit.

Laying the Foundation

Fast forward to Sam’s eviction trial. In order for the tape recording and photographs to be admitted into evidence, your eviction attorney must lay a foundation through witnesses. All that fancy language means is that your eviction attorney will need to ask Todd and Lisa very specific questions prior to the judge allowing the evidence to be admitted. For example, Todd will be asked questions about how he physically recorded the tape and kept custody of the tape; he will be asked if he ever heard Sam’s voice in the past and how many times he has heard it. Then Todd will be asked if heard the recording which has been listed as an exhibit. The attorney would then ask Todd if he recognizes the voice, and finally Todd would be asked whose voice it actually was. Finally, the eviction attorney would request that the judge enter the tape recording into evidence. With regard to Lisa’s photographs, she would be asked if she was familiar with the photographs, how the photographs were developed, if and how she was familiar with the area contained in the photographs, and if the photographs accurately depict what Lisa saw on the date and time of the incident. One other key point to remember: if the resident that you are trying to evict attempts to offer impermissible evidence at trial, your eviction attorney needs to object at the hearing, or you will have waived your right to contest that evidence in any appeal. Suppose Todd or Lisa failed appear in court, like so many other resident witnesses who tell a property manager that they will attend court and testify against the resident that you are evicting. There would be hearsay implications if Todd or Lisa failed to attend the eviction hearing, which leads us to our next evidence issue.

WHAT IS HEARSAY?

The hearsay rule in Sections 90.801 through 90.806 of the Florida Statutes prohibit admission of oral or written out of court statements to prove the truth of the matter being asserted, but out of court statements may be admitted for a purpose other than proving the truth of the matter asserted if the statements are relevant to prove a material fact and are not outweighed by any prejudice. Some property managers assume that hearsay means that a person told you something and you are prevented from admitting that statement into evidence at a court hearing. That is not true if that witness is in court with you. The reason is simple. If the witness cannot testify at trial and submit to cross-examination by the opposing party, then the statement is inadmissible. Out of a principle of fairness, the law gives those being accused the right of cross-examination. In the above example, had Todd or Lisa failed to appear in court, the photographs or tape recording would have been inadmissible, since Sam would not have been able to cross-examine Todd or Lisa. This same principle applies to the property manager who takes pictures of a unit after the resident vacates for purpose of proving damages made to the property by the former resident. Take the pictures yourself if feasible, because a third party may not be associated with you three years later. You might not be able to locate that witness, and if you do, he still may not show up in court, even if subpoenaed.

HEARSAY MISCONCEPTIONS?

Perhaps the biggest myth regarding hearsay is that you can use a police report in court as proof without the police officer who signed the report being present. Make no mistake about this: police reports are not an exception to the “hearsay” rule in Florida. The same holds true for repair bills. A representative from the company that undertook the repair must appear in court to testify. The same holds true for written statements from residents. The property manager must understand that obtaining signed; notarized letters from your residents loaded with complaints against another resident will not make their way into evidence. Load those complaining residents into your van and take them to court, because they will be required to testify, or you can kiss your eviction goodbye…unless you were savvy enough to obtain a police report and subpoena the officer! Florida law permits some exceptions to the “hearsay” rule, which include statements for the purpose of medical diagnosis and treatment, statement of a child abuse victim 11 years of age or less, and business records made at or near the time of the event, by a person with knowledge, kept in the course of normal business activity, provided that it was a regular practice of the business to make such a record.

 

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Most property managers understand the eviction process in very general terms. They know that a Three Day Notice to Pay rent must be served upon the resident prior to filing a nonpayment eviction action. Likewise, virtually all property managers understand that the final stage of the eviction process involves the sheriff executing the writ of possession. Unfortunately, many property managers do not have a real clue as to what takes place during the time in between the time an eviction starts and is completed. Why is this “in between time” so important? If your eviction attorney navigates through this process skillfully, they not only help you prevail in court, they can shorten the eviction process, so that you can place somebody in a unit who is not living rent free. It is not enough for a property manager to grasp that there is important work to be performed by your eviction attorney in the period after an eviction action is started. A property manager should also have a solid grasp as to what goes on during this “in between period”.

Why, you ask? First, you will be better able manage your property, because the timing of the eviction process will not be a mystery to you. This knowledge will allow you to plan ahead and better organize and budget for your property accordingly. Your boss or owner and those you deal with at the corporate headquarters will also appreciate that you are able to explain to them in detailed terms the status of the eviction case against your residents. They will have comfort that their property manager is on top of things, and it will please them that you have made it a priority to remove the residents who are living “rent free”. Central to understanding the “in between” period of the eviction process is learning how motions are strategically used to advance the eviction effort.

The Motion for Default

Lou missed his February rent payment. You served him a proper Three Day Notice to Pay Rent which has expired. You have now asked your attorney to file an eviction action. The eviction is filed in court on Monday, February 8th. The Clerk of the Court mails Lou a copy of the eviction complaint and summons which Lou receives on Tuesday, February 9th. The process server delivers the eviction complaint and summons to Lou on Wednesday, February 10. In the meantime, Lou has decided not to respond to the eviction complaint and has tossed his copies in to the waste basket. Florida law requires that the resident respond to the eviction complaint within 5 business days after being served with the eviction complaint. Failure on the part of Lou to respond within the allotted time will subject Lou to a “Default”, which may be entered Clerk of the Court after the submission of the Manager’s Motion for Default. The word “default” sounds like a mysterious legal term to many. It is not! A default simply means that one has failed to perform an obligation. In the context of an eviction, the resident’s obligation is to respond to the Clerk of the Court within five business days after being served with the eviction complaint. If not, the resident will then be in default. In fact, on the eviction summons, the resident is instructed to send the Clerk of the Court reasons why they should not be evicted.

Now what? The answer is simple. Your attorney may file a Motion for Default on February 18^th (the sixth business day after service of process). With the exception of a few counties in Florida, the date the resident is sent a mailed copy of the eviction complaint from the Clerk of the Court is irrelevant. The key date for purposes of when the Motion for Default will be ripe is the date the resident was served with the eviction complaint and summons by the process server. In the case of Lou, the key date for timing purposes is February 10th; the date Lou was served with the eviction papers. On February 18th, five business days have passed without Lou responding to the Clerk of the Court. Now your attorney should file a Motion for Default with the following language: “Plaintiff moves for an entry of a Default by the Clerk against Defendant for failure to serve any paper on the undersigned or file any paper as required by law. I do hereby certify that no copy of the answer or other pleading of the Defendant in the above styled cause has been served upon the Plaintiff or his/her attorney, to the time of the filing of the above Motion For Default”. Once the Clerk of the Court enters the Default, the Judge will then sign the Final Judgment for Eviction, which will authorize the Clerk to issue the writ of possession to the Sheriff.

Motion for Default and Default Judgment

The resident has answered the eviction complaint. What does your eviction attorney do now? Section 83.60 (2) of the Florida Statutes answers that question.   Section 83.60 (2) contains the following: “In an action by the manager for possession of a dwelling unit, if the resident interposes any defense other than payment, the resident shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the resident of such requirement in the summons. Failure of the resident to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the resident's defenses other than payment, and the manager is entitled to an immediate default judgment for removal of the resident with a writ of possession to issue without further notice or hearing thereon. In the event a motion to determine rent is filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing residents or residents receiving rent subsidies shall be required to deposit only that portion of the full rent for which the resident is responsible pursuant to federal, state, or local program in which they are participating”.

The above statutory language requires conventional property residents to deposit into the Court Registry the rent alleged in the eviction complaint and all rent that becomes due in the future while the lawsuit is ongoing. According to Section 83.60 (2), if the resident files a motion to determine rent, they must attach sufficient documentation supporting the position that the rent owed as alleged in the complaint is wrong. Consider the following scenario: Arthur is served with his eviction papers on March 14th. The manager alleges that one full month of rent has not been paid. On March 18th Arthur files his answer with the court. Arthur deposits no money into the Court Registry and briefly writes that that he will receive his tax refund check soon and requests a court hearing. Arthur responded in time to avoid a default being entered against him by the Clerk of the Court. What course of action will your attorney take in this case? After five business days have elapsed from the date of service or process, your attorney will file with the Court a Motion for Default and Default Judgment. Your attorney in that motion should request that the Judge enter the default and enter a default final judgment for eviction. The motion may read in part like the following: Plaintiff moves for entry of a default and default judgment by the Court against Defendant for failure to deposit the rent amount alleged in the complaint into the Court Registry as required by Florida Statute 83.60(2)”. Likewise, in the above example, If Arthur had written that he is requesting a hearing to determine rent because he disagreed with the amount owed, but gave no reasons why he believed that to be true, then your attorney would add the following language to the above mentioned Motion for Default and Default Judgment: “Defendant has attached no documentation showing the rent amount alleged in the complaint to be in error, as required by Florida Statute 83.60(2)”. It is also important to note that some judges prefer that the eviction attorney file a Motion To Strike Defendant’s Answer and For Order Entering Default and Default Judgment instead of the motion for default and default judgment. Both motions have the same basic language, except that the Motion to Strike requests the Judge to “strike” the resident’s pleading because they are defective. If the above motions are granted, then the judge will sign the final judgment of eviction, authorizing the Clerk of the Court to issue the writ of possession to the Sheriff. These motions are vital, because you can often navigate through the eviction process without the need to attend mediation and/or court hearings, which saves you time and money!

Motion for Default and Default Judgment for Failure to Deposit the accrued rent into the Court Registry

Elvis, your resident, was served with an eviction complaint on July 28th because he has not paid the July rent. The next day Elvis files an answer to the eviction complaint with the Clerk of the Courts. He points out that the Three Day Notice to Pay rent was not prepared properly, and he deposits the July rent into the Court Registry. It is now August 10th, and rent is due on the first of each month according to the lease. No additional monies have been deposited by Elvis into the Court registry. At this point a seasoned eviction attorney will file a Motion for Default for Failure to Deposit the Accrued Rent into the Court Registry. While sounding technical, this motion is easy enough to understand. Florida Statute 83.60 (2) requires the residents who are defending their evictions to deposit not only the rent alleged in the complaint, but all future rents as it comes due while the lawsuit is pending.

Under this scenario, many judges will grant the eviction without a hearing (forcing Elvis to leave the building), since his failure to deposit accrued August rent into the Court Registry resulted in a WAIVER OF ALL DEFENSES other than payment, according to Section 83.60(2). Elvis’ defective Three day notice defense is not a defense of payment, and therefore, that defense will not be available for use by Elvis. The motion may contain language like this: “Plaintiff moves for entry of a default and default judgment by the Court against Defendant for failure to deposit the accrued August-2010 rent into the Court Registry as required by Florida Statute 83.60 (2).

 

A motion for disbursement of the Court Registry funds is also usually filed at the same time the motion for default is filed. Unless there is some real dispute as to whether the money deposited into the Court Registry is actually owing, the disbursement order will also often be granted without a hearing. However, a judge will sometimes grant the eviction without a hearing, but withhold ruling on disbursement of the Court Registry funds until a future hearing is held, particularly if the resident is complaining about alleged problems with the apartment or indicating other disputes.

 

“Serving the Property Management Professional”

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For over 20 years now, we have been able to observe the habits and traits of property managers. Some of these habits and traits are good, and some are just plain bad. One interesting aspect has stood out above the rest and is readily apparent in our firm, since we file so many evictions for so many property managers. Some property managers seem to be able to decrease the number of evictions they have when they begin managing a particular property or portfolio of properties. How do they do it? This article will examine some of the habits or procedures of property managers who seem to have found the trick to reducing evictions. Reducing evictions is crucial to the bottom line. Not only are you avoiding the costs of an eviction, the headaches, the uncertainty and all that goes with evicting, you are also minimizing damage to the property. Residents who are evicted generally do not clean the unit upon move out, and worse yet, many maliciously damage or destroy the premises and take off with the appliances, resulting in thousands of dollars in expenses.

 

Communication is the Key

 

Many residents are already preparing to move from the premises, so when you file the eviction, it is actually a waste of money. Often the resident vacates immediately upon getting served with eviction papers. Is this because they got the papers? Often the answer is no; they were planning on moving anyway, but you did not know it. The result is that you wasted the money. Some residents need to be reminded to pay the rent. Funny how the resident all of a sudden pays right after you spoke with them. Some residents are simply late payers and pay on their own schedule. You file an eviction, and they come running into your office, but are now unable to get caught up because of the attorney’s fees and costs you incurred.

 

1. Notice serving: A Three Day Notice or any other notice for that matter, unless the statute or your lease requires otherwise, should never be served by posting (taping) on the door unless the resident is not home. You are allowed by law to post a Three Day Notice “in the absence of the resident”. Common practice by many property managers is to “tiptoe, tape and take off”. The manager puts the tape on the notice ahead of time, creeps up to the door and lightly places the notice on the door, and then gets out of there before the residents’ unauthorized dog begins to bark. Why? Because the property manager does not want to confront the resident. The result is that the resident will look at the notice, throw it in the trash and maybe pay the rent or not. No communication has occurred, except for the property manager serving the notice, and even that service was legally improper because the manager failed to knock on the door. Knock on that door! If you feel uncomfortable doing it, have someone come with you, or delegate it to someone else.

 

2. Face to face communication: Speaking with the resident face to face is the best way to communicate and see what the resident’s intentions are. When serving the Three Day Notice or at any time thereafter, the manager should knock and try to engage the resident in conversation. The manager may find out information from the resident at that time which could avoid an eviction:

 

1. The resident may pay the rent. This is the best and desired result.

 

2. The resident may tell you they are going to pay tomorrow or give you a fixed date which may be soon after the expiration of the Three Day Notice.

 

This will then affect your decision whether to hold off a couple days or go straight to eviction after the expiration of the Three Day Notice.

 

c. The resident may indicate he is moving. You look in; see a bunch of boxes and over the weekend the resident moves out. By making the decision to hold off, you have averted an eviction and saved some time and money.

 

3. Past Due Amount Workout Agreement: Upon being able to make the face to face communication happen, the resident may indicate that they do not have all the rent due but can pay you at a future date. Not wanting to lose the resident, you may decide to agree to the payment on a fixed date or date and in a particular fashion. It is a payment plan. By using the Past Due Amount Workout Agreement, this memorializes the agreement and prevents a situation in which the resident claims you gave a verbal extension.

 

4. The Agreement to Vacate: The resident may ask for a few more days and the property manager, hoping the resident will live by his word agrees. If the property manager agrees, the resident can sign an Agreement to Vacate giving a fixed vacating date. We have found that most residents who sign an Agreement to Vacate will indeed do as they say. Another eviction not filed!

 

5. Phone or email communications: The next best thing to face to face communication is to speak to the resident on the phone or email them. Generally regular mail is not the preferred method, as mail can take up to 5 days, and each day without rent is lost money. The problem is that many managers fail to have the up to date information necessary to contact the resident and find out his or her intentions. We highly recommend you read this article as soon as possible Importance of Updated Contact Information

 

6. The 24 Hour Notice: Many property managers give a final “24 hour Notice” to the resident after the Three day Notice has expired. This notice tells that that they have one last chance to pay the rent before their file is sent to the attorney for eviction. Payment demand notices that are given to the resident after the Three Day Notice can compromise the eviction, but that said, use your own judgment as to whether or not you are going to do this. While some judges have ruled that such a notice invalidates the prior Three Day Notice, it can be very effective! We cannot tell you to do this, but we know it is done all the time. If you do decide to send a final notice or 24 hour notice, if a dollar amount is referenced on the reminder notice, it should not conflict with the amount cited on the prior Three Day Notice.

 

“Serving the Property Management Professional”

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To evict a tenant for failure to remove an unauthorized pet or pets, you first need to have served a proper Seven Day Notice of Non Compliance with Opportunity to Cure.

 

In order to serve a Seven Day Notice to Terminate, you must be absolutely certain that you can prove to a judge that the tenant has not removed the unauthorized pet AND that the pet was not “authorized” by you or prior management’s failure to act quickly. If the pet has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management and/or you have accepted rent with this knowledge, you will not be successful evicting as you have “authorized” the pet by failing to act. This is due to the legal principle of Waiver and Estoppel.

 

SOME PROOF THAT IS NECESSARY PRIOR TO TERMINATING THE TENANT FOR FAILURE TO REMOVE AN UNAUTHORIZED PET

 

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

 

2. Verbal or written admission by the tenant(s) that they have an unauthorized pet.

 

3. Employees of the apartment community or pest control who will testify in court that they saw the pet AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

 

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

 

5. Tape recording and/or video recording of the pet and the pet barking, if a dog pet AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

 

6. Photos of pet bowls, litter pan and pet taken AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

 

IF YOU DO NOT HAVE A STRONG CASE AND THE TENANT HAS A DEFENSE. YOU WILL LOSE. EXPECT THE TENANT TO DENY THAT THE PET IS LIVING ON THE PREMISES.

 

REMEMBER THE JUDGE WILL NEED TO BE CONVINCED THAT THE PET LIVES THERE AND DID NOT JUST VISIT.

 

“Serving the Property Management Professional”

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You see the unauthorized person there every morning. You see their car parked there every night. The unauthorized person even comes into your office complaining about something. Can you force them out? Can you prove your case? It is harder than you think.

To evict a resident for having an unauthorized occupant, you first need to have served a proper Seven Day Notice of Non Compliance with Opportunity to Cure. In order to serve a Seven Day Notice to Terminate, you must be absolutely certain that you can prove to a judge that the resident has an unauthorized occupant residing on the premises, not just visiting, and that the occupant was not “authorized” by you, the manager or prior management’s failure to act quickly. If the occupant has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management, and/or you have accepted rent with this knowledge, you will not be successful evicting, as you have “authorized” the occupant by failing to act. This is due to the legal principles of waiver and estoppel.

SOME PROOF THAT IS NECESSARY PRIOR TO TERMINATING THE RESIDENT FOR FAILURE TO REMOVE AN UNAUTHORIZED OCCUPANT:

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

 

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

 

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

 

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

 

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

 

6. Police report where the unauthorized occupant gives your address as his or her address AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

 

IF YOU DO NOT HAVE A STRONG CASE, YOU WILL LOSE. EXPECT THE RESIDENT TO DENY THAT THE PERSON IS LIVING ON THE PREMISES. REMEMBER THE JUDGE WILL NEED TO BE CONVINCED THAT THE PERSON LIVES THERE AND IS NOT JUST VISITING.

 

“Serving the Property Management Professional”

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Often our office is asked to evict a tenant or tenants due to noise, partying, or other disturbances. These are all grounds for eviction if the tenant has been given a proper Seven Day Notice of Noncompliance with Opportunity to Cure and the noncompliance continues and you can prove this in a court of law.  Proof is where the problem lies.

 

In order to serve a Seven Day of Noncompliance Notice of Termination, you need to have hard core solid proof that you will be able to submit into court to completely and without a doubt prove to the judge that the tenant is engaged in actions which are seriously bad.  Most property managers do not have this solid proof and feel that a lot of small occurrences add up to being able to evict. They do not.  We need a serious noncompliance or noncompliances to be successful and we need proof. If we are not provided with this, we will not file the eviction case as it puts the owner and management company at a serious liability for losing the case and for having to pay the tenant’s attorneys fees which often average $3000.00.  Losing a Noncompliance case can also result in a Federal Discrimination case against the owner if the tenant is of a protected class. Frequently we are asked to evict tenants who live in condos for alleged violations of the lease or Florida law. MORE OFTEN THAN NOT, the condo residents or association have little or no proof but are raising a big stink about the tenant. These are our toughest cases. No proof, and we will not file the case.

The main proof we need to prevail in a Noncompliance case is a serious occurrence or occurrences which took place SINCE YOU LAST ACCEPTED RENT. If a tenant does something seriously wrong and you accept rent, THE TENANT IS FORGIVEN in the eyes of the law.

PROOF WE NEED TO PREVAIL IN A NOISE OR DISTURBANCE TYPE CASE

Police reports

Police who will appear in court

Courtesy officer reports

Multiple neighbor witnesses

Multiple neighbors who will appear in court

Property management witnesses

Property management witnesses who will appear in court

Multiple noncompliances

Serious noncompliances

Arrest for noise

Citations for noise

Dates and times of each occurrence

Photos proving parties

Audio tapes of noise

All other proof to convince the judge

NOTE: WRITTEN STATEMENTS BY POLICE OR NEIGHBORS ARE NOT ADMISSIBLE IN COURT. THIS IS INADMISSIBLE HEARSAY. THE PERSON WHO WROTE THE STATEMENT MUST APPEAR IN COURT.

“Serving the Property Management Professional”

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To evict a resident for housekeeping issues, the condition of the unit must be BAD. That means it must be MORE THAN messy, full of stuff, or cluttered. A sink full of dirty dishes does not constitute a violation that rises to the level of a noncompliance with the lease or Florida law.

 

To terminate a tenancy for poor housekeeping issues, you first need to serve a proper Seven Day Notice of Non Compliance with Opportunity to Cure. A Seven Day Notice to Terminate might follow if you are able to prove that the housekeeping issues listed on the cure notice were not rectified and that the housekeeping is indeed a serious problem that affects the health and safety of others, or that it is damaging the property.

SOME PROOF THAT IS NECESSARY PRIOR TO TERMINATING THE RESIDENT FOR HOUSEKEEPING REASONS:

1. Photos or video of the condition of the unit. The photos or video should show the condition of the place as of the time the cure notice was served AND as of the time the termination notice was served.

 

2. Employees or other residents (witnesses) of the apartment community who will testify in court about how they are affected by the poor housekeeping. Perhaps a neighbor has been infested with roaches from the resident’s apartment. Or, the noxious fumes from the pet waste are bothering a neighbor.

 

3. If available, a copy of an inspection report from code enforcement or Section 8. If the agencies have not done an inspection, do not request one.

Common Problems That Arise in These Cases Include:

1. The resident got the cure notice and cured some, but not all, of the problems. This means it may be best to serve another cure notice for the problems that persisted.

 

2. The place is a mess, but it is not a lease violation. A manager’s perception of what is sanitary and what is not may be very different than what is a genuine lease violation.

 

3. The manager is using “poor housekeeping” as a reason for eviction where the real problem is something else. If the housekeeping issue is a pre-text for some other motivation, the case will surely lose.

 

4. The resident has a disability that affects the person’s ability to maintain the apartment. In this situation, you may need to make a reasonable accommodation for the resident. One reasonable accommodation (there may be others) is to permit more than the seven days to cure the noncompliance.

 

If you request a notice from your attorney, be sure to include lots of detail about the condition of the apartment. It is NOT sufficient to merely allege “poor housekeeping” or “place is dirty”. Give us the low-down, dirty (pun intended) details so your attorney can draft a notice that paints a picture for a judge. The more detail, the better.

 

“Serving the Property Management Professional”

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In order for a resident to have his or her day in court, the resident must place the rent money that is owed into the Court Registry, right? You would think so, because it is the law. Unfortunately, many judges do not follow the law and set eviction trials when no money at all is deposited in the Court Registry or fail to require accruing rent to be deposited into the court registry. The result? More time wasted and more money lost. How does this happen?

Law regarding Court Registry Deposits

Florida Statutes clearly state that if a resident is contesting an eviction, the resident must place the rent money as alleged in the eviction complaint and money as it becomes due during the time period from when the case is filed into the Court Registry until a final hearing, or file a Motion to Determine Rent, which will often allow the resident to get into court without placing any money into the Court Registry. This article will only deal with the resident filing an answer with the court, not the Motion to Determine rent, which is dealt with in the article entitled Motion to Stay Writ . If the resident claims that he or she has PAID the rent to you in full, or has paid you rent after you after you served the Three Day Notice, most judges will set the case for a hearing. Payment of rent is a complete defense to an eviction, and a judge will not take any chances or require the resident put up more money into the court registry other than money which may become due as the case progresses into the next month. While it is not too common that a resident will outright lie and say they have paid the rent, this resident delay tactic will be dealt with in a future article.

Florida Statutes section 83.60 Defenses to action for rent or possession (2) In an action by the manager for possession of a dwelling unit, if the resident interposes any defense other than payment, the resident shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the resident of such requirement in the summons. Failure of the resident to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the resident's defenses other than payment, and the manager is entitled to an immediate default judgment for removal of the resident with a writ of possession to issue without further notice or hearing thereon…

Purpose of the Law

The purpose behind the law is to protect the manager from a potential greater loss of rent by the resident filing an answer to the complaint, delaying the action while the rent owed continues to build up. It also is meant to cut down on unnecessary court hearings in which the resident has no real defenses to the law. Basically the law says to the resident, “PUT YOUR MONEY WHERE YOUR MOUTH IS or you will not be entitled to a hearing.” There is no surprise here to the resident, as this requirement is clearly stated in the eviction summons as required by the law. A number of years ago, this statute only stated that the manager was entitled to a “default” if the resident failed to place the rent money into the court registry. This gave an easy “out” for judges, and many would enter a default but still set the case for a hearing or eviction trial, allowing for a further delay and loss of rent to the manager. The statute was modified and now states that the manager is entitled to an “immediate default judgment”, which made it clear that if the money was not in the Court Registry, a final judgment of eviction would be entered against the resident and a writ of possession could issue.

Suppose the Resident Files an Answer and Places the Rent into the Court Registry?

1. ALL RENT DEPOSITED - Under current law, if the resident places ALL the rent into the court registry as it is alleged due in the complaint that your attorney files, the resident has an absolute right to be heard in court, at which time the resident can bring forth any and all defenses to the eviction action. This is assuming that no more rent has accumulated during the eviction action, i.e., we have not gone into another month and more rent is owed.

2. PARTIAL RENT DEPOSITED - If the resident only places a partial amount into the court registry, not the full amount, some judges will set the case for a hearing. For instance, the complaint when filed states that $600.00 is owed, but the resident only places half this much into the Court Registry. The law states that the judge should enter a default judgment against the resident. Unfortunately the partial rent deposit can trigger a court hearing even though it DOES NOT comply with the law.

3. ALL RENT DEPOSITED BUT NOW MORE RENT IS OWED - An eviction is commonly filed sometime in the middle or towards the end of the month. Often the resident will place the amount of money owed as alleged in the complaint into the Court Registry, but NOW another month is owed. Under the law, the judge should enter a default judgment against the resident, but often this does not happen, and again a hearing is set.

The Law Versus Reality

As you can see, the law says one thing, but in reality often another thing occurs. How can this happen? Some judges are not aware of the law. This can occur when a judge is new and has just been put on the bench, or another judge who does not handle evictions may be sitting in for a judge on vacation or home ill. Other judges simply are more lenient to the resident and have taken a stance that they will do what they will. A judge new to the bench is often lenient in the beginning, then as times goes on, they realize why the law was written and how the failure to follow the law results in unnecessary hearings, a burden on the court and a greater loss of rent to the manager.

Your Attorney’s Role

When a resident files an answer with the court and has not complied with the law requiring the deposit of the rent money into the Court Registry, your attorney will file a Motion for Default for Failure to Post Rent Into the Court Registry. Our firm files detailed motions in these cases, and we never fail to remind the judge what the law is in the matter. If the eviction rolls into another month and the accrued rent is not deposited as required by law, we file another Motion for Default for Failure to Post Rent Into the Court Registry to again show the judge what the law is, in hopes that he or she will sign the judgment. Will the judge sign the default judgment after receiving the motion? Yes, in most cases. In the other cases, the judge will require a hearing, and unfortunately you will end up in court. Your attorney will often know the particular judge’s stance in these cases and may be able to advise you whether there will be a high chance of a hearing, or whether the judge will most likely sign the judgment.

The Manager’s Role

There is not much the manager can do when the judge requires a hearing, but there are some things that increase the risk of the judge setting a hearing when a resident files an answer. A Three Day Notice with odd amounts will often raise the suspicion of a judge that something may be improper on the Three Day Notice. Strange amounts can be due to late charges, acceptance of partial payments in the past, a running balance, accumulated late charges, excessive rent owed or many other reasons. If the Three Day Notice clearly states how you arrived at the amount you are demanding, this makes a judge more comfortable in entering a default if no money has been placed in the Court Registry. Many managers who file their own evictions do not know that only rent or amounts defined as rent in the lease can be placed on a Three Day Notice. Judges see improper Three Day Notices all day long. Take your time, prepare your Three Day Notice with care, and always ask your attorney what can or cannot be put on the Three Day Notice.

 

“Serving the Property Management Professional”

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