The Three Day Notice has expired and the full amount was not tendered.  You arrive at your office on a Monday morning, and in the mail slot is a check or money order from the resident. Most managers know that accepting this payment from the resident will destroy an eviction. Acceptance of any rent or amount owed by a resident will almost surely result in a complete defense to the eviction action, resulting in dismissal of the eviction action or a finding for the resident in court. When a partial payment is tendered by a resident and the manager does not want to take the partial payment, the manager must return the money. The issue here is the manner in which and when the payment is returned. Failure to return the payment promptly or properly is a common mistake made by managers.

Can You Accept the Resident’s Payment?

If the resident is paying you in full as per the notice, you must accept the rent payment.

In our opinion, if you have knowledge of a resident’s partial payment and intentionally hold a resident’s payment for more than one day, this can be considered acceptance of rent. Florida law does not define how long the holding must be before it is considered acceptance, but most judges interpret any delay in returning the money to the resident as acceptance. If the resident “thinks” you have accepted the rent, most judges will feel the same. Depositing the rent is almost surely considered acceptance, unless you can prove to a judge that it was purely accidental, it was caught immediately, and the resident receives the payment rent back immediately. How do you return the payment back if the resident paid by a check and the money was deposited into your account? You can write the resident a check back, but there is an incredible danger that the check you gave the resident will come back NSF and now YOU have paid the resident rent!

How To Return the Payment to the Resident

HAND DELIVERY: The best way to return a resident’s payment is to make a photocopy of the payment, go directly to the resident with a witness present and hand-deliver the payment back to the resident. While the resident may deny receipt in rare circumstances, this is our preferred way to return. At the time you are returning the money, you will have an opportunity to discuss with the resident the fact they must pay in full. Never tell a resident to put the money into the court registry. A manager is not in the business of educating the resident on how the resident can contest an eviction.

CERTIFIED MAIL: If the resident is not available, not home or refuses to accept back the payment that was tendered to you, the manager MUST get the money back to the resident, but at the same time, making sure the resident knows that the money is not being accepted and it is being returned. Here are some steps you can take.

1. Copy the payment
    
2. Call the resident and tell him or her that you are returning the money and that it will not be accepted
    
3. Prepare and copy a letter to the resident stating that you cannot accept rent and that the payment is being sent by certified mail back to the resident that day
    
4. Place that letter in an envelope and tape it securely to the resident’s door. If there is back door or garage that the resident may use, tape an additional envelope and letter to these entrances.

 

The key is to make sure the resident knows the money is not being accepted.
 

5. Send the payment back to the resident by Certified Mail Return Receipt Requested, saving the proof of mailing.
    
6. Notify your attorney so the attorney can make a note in the file.

Common Mistakes

1. Manager receives the payment and holds onto the payment.

 

2. Manager calls resident and tells resident to pick up payment, the payment is not picked up, and the manager holds the payment.

 

3. Resident’s payment is deposited into manager’s account.

 

4. Manager puts payment in an envelope and tapes it to the resident’s door.

 

5. The manager returns the payment to the resident and tells the resident to put the money into the court registry.

 

 

“Serving the Property Management Professional”

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The Three Day Notice has expired, an eviction is filed in county court, and the resident is served with eviction paperwork. You arrive at your office on a Monday morning, and in the mail slot is a check or money order from the resident. Most managers know that accepting this payment without entering into a proper Stipulation with the resident will immediately kill the eviction action. Acceptance of any rent or amount owed by a resident will almost surely result in a complete defense to the eviction action, resulting in dismissal of the eviction action or a finding for the resident in court. When a payment is tendered by a resident after an eviction has actually been filed with the court, the manager must return the money. The issue here is the manner in which and when the payment is returned. Failure to return the payment promptly or properly is a common mistake made by managers.

Can You Accept the Resident’s Payment?

If the resident is paying you in full, and this sum includes your attorney’s fees, costs, late charges and any other amount the resident owes you, there is no great harm in accepting the payment. Under no circumstances should you accept anything other than certified funds such as a certified check or a money order, and you need to be aware that a stop-payment order can actually be made on a certified check or money order, so you are not entirely safe. If the payment is partial and the manager wishes to work with the resident, this can be accomplished with a Stipulation BUT, the manager needs to do this immediately. If the payment is held for more than one day, there is a serious risk of problems.

In our opinion, if you have knowledge of a resident’s payment and intentionally hold a resident’s payment for more than one day, this can be considered acceptance of rent. Florida law does not define how long the holding must be before it is considered acceptance, but most judges interpret any delay in returning the money to the resident as acceptance. If the resident “thinks” you have accepted the rent, most judges will feel the same. Depositing the rent is almost surely considered acceptance, unless you can prove to a judge that it was purely accidental, it was caught immediately, and the resident receives the payment rent back immediately. How do you return the payment back if the resident paid by a check and the money was deposited into your account? You can write the resident a check back, but there is an incredible danger that the check you gave the resident will come back NSF and now YOU have paid the resident rent!

How To Return the Payment to the Resident

HAND DELIVERY: The best way to return a resident’s payment is to make a photocopy of the payment, go directly to the resident with a witness present and hand-deliver the payment back to the resident. While the resident may deny receipt in rare circumstances, this is our preferred way to return. At the time you are returning the money, you will have an opportunity to discuss with the resident the resident’s plans or enter into a Stipulation or even an Agreement to Vacate. We recommend that you call your attorney and get a Stipulation, so you have this in hand in case you will be able to work things out with the resident. Never tell a resident to put the money into the court registry. A manager is not in the business of educating the resident on how the resident can contest an eviction.

CERTIFIED MAIL: If the resident is not available, not home or refuses to accept back the payment that was tendered to you, the manager MUST get the money back to the resident, but at the same time, making sure the resident knows that the money is not being accepted and it is being returned. Here are some steps you can take.

1. Copy the payment
    
2. Call the resident and tell him or her that you are returning the money and that it will not be accepted
    
3. Prepare and copy a letter to the resident stating that you cannot accept rent and that the payment is being sent by certified mail back to the resident that day
    
4. Place that letter in an envelope and tape it securely to the resident’s door. If there is back door or garage that the resident may use, tape an additional envelope and letter to these entrances. The key is to make sure the resident knows the money is not being accepted.
    
5. Send the payment back to the resident by Certified Mail Return Receipt Requested, saving the proof of mailing.
    
6. Notify your attorney so the attorney can make a note in the file.

Common Mistakes

1. Manager receives the payment and holds onto the payment.

 

2. Manager calls resident and tells resident to pick up payment, the payment is not picked up, and the manager holds the payment.

 

3. Resident’s payment is deposited into manager’s account.

 

4. Manager puts payment in an envelope and tapes it to the resident’s door.

 

5. The manager returns the payment to the resident and tells the resident to put the money into the court registry.

Recommendations

Notify everyone in your office that the particular resident is under eviction, and carefully watch that the resident does not try to make a payment. Communication with staff is crucial in avoiding the accidental acceptance of a payment. You may want to go as far as placing a note on the office wall out of the sight of other residents or attaching a note to your bank deposit book simply stating “Do not accept rent from John Doe, Apt 123”. Carefully follow the return of payment steps as outlined above, and be aware that another person may try to slip a payment in or use a check or money order that only indicates to what unit the payment is to be applied. Finally, if a resident has tendered a payment, you need to think Stipulation. A Stipulation is one of the best rent collection and resident retention tools available to a manager.

 

“Serving the Property Management Professional”

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The proper execution of the Writ of Possession is crucial to a successful and completed eviction action. The key word here is completed. Many property managers make serious mistakes at the end of the eviction action, increasing the liability to the manager and potentially defeating the whole purpose of the eviction action. Most evictions result in the resident vacating the premises within a week or two after the eviction action is filed with the court, and many managers have never experienced the execution of the Writ of Possession.

 

The Mechanics

 

Issuance of the Writ: Once a final judgment of eviction is obtained, the manager must decide if a Writ of Possession, hereinafter Writ, is necessary. If the manager decides that a Writ is indeed necessary, the attorney submits the Writ to the Clerk of Court along with a check to the Sheriff’s Department, usually in the amount of $70.00. The Clerk of Court then confirms that a final judgment has indeed been signed by the Judge and “issues” the Writ. The Writ then is taken to the Sheriff’s Department where it is processed by staff of the Sheriff’s Department.

 

Service of the Writ: Once processed, the Writ is assigned to a Deputy for service upon the resident. The Deputy then takes the Writ and serves it upon the resident, or in the absence of the resident, tapes it to the resident’s door. The Writ informs the resident that he must vacate the premises within 24 hours.

 

Notification to the manager: The manager is then called by the Deputy who served the Writ and a date and time is set by the Deputy, at which time the Deputy will come and execute the Writ.

The Problem

 

The purpose of the Deputy’s call to the manager is really twofold. First, it is to inform the manager that the Writ has been served and to schedule the time when the Deputy will meet the manager at the property to give the manager actual possession. Unfortunately, there is another part of the Deputy’s conversation with the manager that causes a problem, and this is the second part of the call. The Deputy, once the date and time for the meeting is set up, will ask the manager if he or she “needs” the Deputy to execute the Writ. If the manager says “no,” the Deputy will return the Writ to the clerk as “unexecuted”, meaning “incomplete”.

 

Why Does The Deputy Ask The Manager If The Writ Is Wanted?

 

The Deputy has many Writs to serve on any given day. Often the Deputy’s schedule will get backed up, as some Writs require more time to serve than others. Sometimes a manager is late to meet the Deputy, and the Deputy will wait a small period of time, causing a ripple effect with the schedule. Occasionally the resident must be physically removed from the premises, resulting in further delay. In some instances, serious disputes or altercations occur, and the Deputy must remain on the premises until the resident is finally removed from the premises and no longer poses a danger to the manager, the manager’s workers or the Deputy. The Deputy wants nothing more than to have the manager tell him that the Writ is not needed. It is completely understandable; the Deputy is just trying to get the Writs served for the day. For each Writ that the Deputy can cancel or return unexecuted, this will free up more time for the Deputy to get to the next Writ that needs to be executed.

 

What Does the Deputy Say?

 

The Deputy will ask the manager if the resident is still in the rental unit. Often the manager is not sure if the resident is still in possession, and the Deputy gives the manager his cell phone number to call. The manager then goes and checks the property. If the property is empty or appears empty to the manager, the manager will notify the Deputy, and the Deputy will then ask the manager if the Writ execution is “needed”. Often the manager will say “no”, thinking that if the resident is not there anymore, then it must be unnecessary to meet the Deputy.

 

The Consequences of Telling the Deputy “NO”

 

If the Deputy is told by the manager that the Writ is not needed, the Deputy returns the Writ to the Clerk’s Office as unexecuted, and it is docketed as such. The resident now officially has NOT been evicted. Yes, an eviction was filed on the resident, BUT the eviction was never completed. The resident has NOT been evicted from the property, even though he may in fact have vacated the premises and will never be seen again.

 

The resident may return: If the resident were to return, he could simply move right back into the unit, and the manager would need to file additional paperwork with the court seeking a new writ of possession, or possibly even be forced into filing a brand new eviction, starting all over again from scratch. The returning resident would not be considered a trespasser, and the Deputy will do nothing to remove the resident without further order from a Judge.

 

The resident may return looking for personal property: If the resident comes back to the premises and the manager has disposed of her personal property, she could hold the manager civilly and possibly criminally liable for the loss of the property. The resident could say just about anything as to what was taken and its alleged value, and it would often be difficult to counter these allegations. When the manager fully executes the Writ and subsequently removes the personal property to the property line, the manager’s liability to the resident for her personal property is negated. When the writ is not executed, the potential liability for improper personal property disposition can be very high.

 

The resident may use the common areas of the property: The manager may observe a former resident using the community pool, exercise room or laundry room. A Deputy may be more reluctant to trespass the “former” resident if the eviction was never completed.

 

You have wasted $90.00

 

A Writ costs $90.00, sometimes a bit more and was paid for by your attorney. You will be billed by your attorney for that Writ. By canceling the Writ, you increased your liability, failed to formally complete the eviction, increased the chance of a big problem and wasted $90.00.

 

When the Deputy Calls, What Should You Say?

 

When the Deputy calls you to set up the Writ execution time and day, if you are asked if the resident is still there or if you still need the Writ, simply say “YES”. Never quit short of the finish line. It is a sure way to lose the race.

 

“Serving the Property Management Professional”

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What is a Stipulation?

A Stipulation is an agreement between the parties of an eviction action that sets out when the resident will pay certain sums, when the resident will vacate in some situations and what will happen if the resident fails to pay the sums or vacate. A Stipulation is a legal document that is submitted to the court and signed by the Judge. Once signed, it becomes an Order of the Court and is enforceable by the manager in the even the resident fails to comply in any way. A Stipulation is not simply a hollow, unenforceable agreement between the parties. It is in essence a Final Judgment that is deferred. If the resident complies, no Final Judgment is ever needed. If the resident fails to comply, a Final Judgment is entered and the resident is removed. The most common misconception is that stipulating means giving up something or caving in to the resident’s demands. This is the farthest from the truth. The decision to use a Stipulation is made by the manager, and the manager calls the shots and sets the terms. If the resident does not agree, no Stipulation is signed and no harm has been done.

Benefits of Stipulations

Stipulations can be an excellent resident retention tool. If a resident is under eviction for nonpayment of rent, the resident has some choices. They can fight the eviction, or they can move out. If a resident is going to move out, they will need money to move. The resident sits back and does not pay rent during the eviction, saving money so they may move. Usually, the manager does not want to play any more games with the resident, as there have already been a number of broken promises. If the resident comes to the manager begging to stay and offering to pay some money, the manager is usually not sympathetic, and the resident either fights the eviction or leaves some time during or at the end of the eviction. This is where the Stipulation comes into play. A Stipulation allows the manager to accept money without jeopardizing the eviction process. A Stipulation also can set a fixed date for the resident to vacate, and if the resident fails to do so, the eviction will continue, lessening the time to remove the resident.

1. Allows the manager to accept rent without killing the eviction.

2. Puts the resident on a Court-ordered and enforceable payment plan.

3. Prevents the resident from contesting the case or contesting the case further if already contested.

4. Sets a fixed date in certain situations for vacating.

5. Allows manager to collect attorney fees, late fees and any other amount on which the parties can agree.

6. Allows the eviction to start right up again upon noncompliance; i.e. failure to pay or vacate, if applicable.

7. Avoids court hearings or trials

8. Allows any rent that was deposited into the court registry to be released to the manager.

9. Cuts down on the anger involved with litigation and prevents angry destruction of the property.

When Can You Stipulate

You can only stipulate after an eviction has been filed with the court. You cannot use a blank Stipulation form or imply that an eviction has been filed. This is a serious mistake that some managers make and can get a manager in a lot of trouble, as it is simulating legal process. Once the eviction is filed, you can stipulate at any time during the process even up to the moment the Sheriff is at the door removing the resident from the premises.

When Should You Stipulate

If the resident’s only problem is nonpayment or late payment of rent, the situation is ripe for Stipulation. Ideally, the manager should only enter into a “Pay and Stay” Stipulation if the resident shows that they have a good portion of what is owed, or will have a good portion within a few days. If the resident has filed an answer and posted rent into the court registry, this is usually a prime situation for a Stipulation. If the resident is asking you for a week or so, or has paid for or wants to pay for an extension, you may want to consider the “Leave at a Fixed Date” Stipulation.

1. The “Pay and Stay Stipulation” – This type of Stipulation should be used only if you are not having any other problems with the resident other than nonpayment or late payment of rent or other charges. You do not want to use a “Pay and Stay” Stipulation if you are having major problems with the resident or just want the resident out. While this Stipulation does not “solve” the resident’s financial problems, it enables you to continue the eviction if any payments are missed. This is an extremely successful Stipulation, and in the vast majority of cases, the resident complies with the Stipulation and gets back on the normal on- time payment routine. This Stipulation has resulted in many residents not having to be evicted from the premises and saves all parties a lot of grief. Additionally, if a resident has posted rent into the court registry, this Stipulation will allow this money to be released to the manager and avoid a court hearing or trial.

2. The “Leave at a Fixed Date” Stipulation – This is an excellent Stipulation to use if there is a problem with your eviction case such as a defect, the resident has contested, or the resident simply is asking for more time to stay. The manager can agree that a certain sum is paid by a certain time, the resident can “buy” more time, or the parties can agree on a fixed date for the resident to vacate with no money being exchanged. Many times a resident just asks for a week or other short period and promises to vacate. The manager is often not apt to want to do this and refuses. The resident the files and answer with the court, the Judge sets a hearing, and the resident ends up staying for a far longer time than the one week for which the resident originally asked. The “Leave at a Fixed Date” Stipulation is excellent to use if the resident has posted rent into the Court registry, or the manager is holding a last month’s rent or advance rent. The Stipulation can address these issues and allow the manager to access these funds quicker.

The Mechanics of Stipulating

If the resident comes to you and wants to “cut a deal”, pay and stay or leave at a fixed date, the manager needs to immediately think Stipulation! The manager should never accept any money, make any agreements or have a Stipulation signed by anything less than ALL the parties to the eviction action. The manager needs to see how much money the resident has, how much the balance is and how the balance will be paid. Once this is determined, it is just a matter of filling in the blanks on the Stipulation that the attorney provides.

Avoiding Stipulation Mistakes

An improperly filled out Stipulation can be worse than not stipulating at all. The manager needs to take their time, read the Stipulation Instruction Form and fill in the blanks step by step.

1. Never accept uncleared funds when stipulating. Insist on money orders.

2. Never stipulate unless all parties are present.

3. Avoid stipulating if resident has absolutely no money, unless it is a “Leave at a Fixed Date” Stipulation and you want them to leave and do not care about the money.

4. Use the proper Stipulation form, be it the “Pay and Stay” or “Leave at a Fixed Date”

5. Send the ORIGINAL Stipulation to your attorney IMMEDIATELY

Suppose the Resident Fails to Follow the Stipulation

Unfortunately, people do not always do what they are supposed to do, so there will be times when the Stipulation is not followed. We have found that the majority of Stipulations are adhered to, making for a happy manager and resident, but there will be times when a payment plan is not met, or the resident fails to vacate per the Stipulation. If this occurs, you need to notify your attorney immediately, and an affidavit of noncompliance is prepared. This affidavit is then submitted to the Judge, and in most cases the Judge signs the final judgment without a hearing, and a writ of possession can be issued for removal of the resident. The entire process of removal of the resident following a noncompliance with the Stipulation takes approximately 10 days, sometimes more, sometimes less. Court is avoided, the resident cannot usually contest or stop the process, and the resident is removed.

 

“Serving the Property Management Professional”

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A Motion to Stay a Writ of Possession is a document that a resident files with the court which has the result of “staying” or “stopping” an eviction action after a final judgment for the manager has already been entered. The Motion to Stay a Writ of Possession is one of the less commonly used legal techniques by residents to stall or stop an eviction action, but it does occur enough to warrant a better understanding of the process by a manager. It is probably the least understood and more baffling Motions, so we will start with a brief overview of the eviction process and see where the Motion fits in.

The Eviction Process in a Nutshell

For the purposes of this article, we will explain the eviction process in its most simplest of forms and use the Uncontested Residential Eviction Action as our example. In an uncontested eviction, the resident is served with the eviction summons and complaint either by the sheriff or a process server. The resident has 5 business days after being served to “fight” the case by filing an answer with the court. In an uncontested case, the resident does not file anything with the court, and the clerk of court enters a “default” against the resident. The file then goes to the judge who after a cursory review of the file will sign the “Final Judgment”. The Final Judgment states that the eviction is granted in favor of the manager, and the Final Judgment orders the clerk of court to “issue” a Writ of Possession, which is a document commanding the sheriff of the county to place the manager in possession of the premises. The sheriff serves it on the person or the door of the premises if the resident is not home and on the Writ of Possession it states the date and time that the sheriff will be back on the premises to remove the resident, this usually being 24 to 48 hours from the time the Writ of Possession is served. The removal of the resident is called the execution of the Writ of Possession. Theoretically, and in most cases, the sheriff comes back on the stated date and time, and the resident is removed from the premises. The catch is that the resident is able to file a motion with the court to derail this entire process at any time after the Final Judgment is signed by the judge and before the sheriff actually physically removes the resident from the premises. This Motion is called a Motion to Stay the Writ of Possession

What is a Motion to Stay the Writ of Possession?

Simply put, the Motion to Stay the Writ of Possession is a document filed with the court asking the judge to “stay” or “stop” the sheriff from executing the Writ of Possession and removing the resident. It can be a typed or handwritten document filed by the resident or the resident’s attorney if one is retained. The Motion to Stay the Writ of Possession may state that the resident paid the rent, the eviction was unfair, the resident needs more time, the case is defective or just about anything on earth that the resident can come up with to convince a judge that the eviction should be stopped or make the judge feel sorry for the resident. If the judge is swayed, the resident gets their day in court.

How Does the Motion to Stay the Writ of Possession Affect the Process?

Once this Motion is filed with the court, it is immediately sent to the judge, an emergency hold is put on the case, and the judge reviews the Motion and the reasons why the resident feels they are entitled to having the Writ of Possession stayed. A Motion to Stay a Writ of Possession is taken very seriously by the court system, and the judge will almost immediately review the Motion. If the judge upon reading the Motion feels that there is some real legal basis why the eviction should be “stayed”, the judge will grant the Motion without a hearing and set it for a later hearing, or will set an EMERGENCY hearing to have the manager and the resident present evidence as to whether or why the Writ of Possession should or should not be stayed. If the judge upon reading the Motion to Stay the Writ of Possession feels it is completely without merit, the judge will enter an Order denying the motion, and the eviction continues on.

The Judge Grants the Motion to Stay the Writ of Possession – Now What?

If the judge grants the Motion to Stay the Writ of Possession, the judge enters an Order Staying the Writ of Possession and will set a hearing, which basically gives the resident a chance to present evidence as if the case were contested and a hearing were set in the beginning stages of the case. If the resident has failed to post the rent money into the court registry, it is doubtful that the resident will prevail, but if the resident can prove that possibly they paid the rent and it was mis-posted by the manager, or placed a large sum of money into the court registry, even if late, there always is a chance that the resident can win the action. Your attorney may file a Motion to Lift the Stay of Writ of Possession if the judge grants the residents Motion to Stay the Writ of Possession.

The Judge Denies the Motion to Stay the Writ of Possession – Now What?

If the judge denies the Motion to Stay the Writ of Possession, the case proceeds on without delay just as if nothing happened. If there is a hearing set, and at that hearing the manager prevails, the judicial assistant or judge will notify the sheriff’s department to execute the Writ of Possession. If your attorney has filed a Motion to Lift the Stay of the Writ of Possession, and the case is heard and decided in the manager’s favor again, the judicial assistant or judge will notify the sheriff’s department to execute the Writ of Possession.

Sounds Confusing Doesn’t it? Is it All That Bad?

The Motion to Stay the Writ of Possession is a bit confusing, as the manager thinks they have won the case completely, only to be thrown this curveball at the end of the process. Will the case be delayed? Often, but usually by only a few days if the judge grants a hearing to the resident. In the vast majority of cases when the resident files a Motion to Stay the Writ of Possession, the judge reads it and denies it right then and there, and not a moment is lost and no hearing occurs. The worst case scenario is that the judge will grant the Motion to Stay the Writ of Possession, a hearing will be set, and the judge will feel your case is defective or there is a good legal basis why the resident should not be evicted. 

Is there Anything That Can Be Done to Prevent the Resident From Filing a Motion to Stay a Writ of Possession?

Absolutely nothing. A manager’s best defense though is to make sure the eviction is filed properly, the notice was done with care, the manager did not take any rent during the eviction action, and the manager’s records are clear and concise.

 

“Serving the Property Management Professional”

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Your attorney filed an eviction on a resident that clearly is two month’s delinquent. There is no disputing the amount and no problems with the premises; the resident just has no money and told you he could not pay the rent. You think it is a slam dunk eviction when out of the blue; your attorney notifies you that the resident has filed a “Motion to Determine Rent”. On top of that, the resident has not posted one dime into the Court Registry and a court hearing is set for next week. How could this be? Doesn’t the resident have to post the rent money into the Court Registry? The Motion to Determine Rent is one of the most annoying time delay tactics a resident can successfully use against a manager and its use is on the rise.

How Can a Resident Defend an Eviction?

Residents have a number of remedies available to them when defending an eviction action. Some but certainly not all include actions whereby the resident can file an Answer with the court, which is basically a statement by the resident of reasons why he or she should not have to leave the premises. The resident can file a Motion to Dismiss whereby the resident tries to say that there is some defect in your paperwork or reason why the case should just be completely dismissed and thrown out of court, or the resident can file what is called a Motion to Determine Rent. This article will examine the Motion to Determine Rent in depth, so you may have a better understanding of how it affects the eviction process.

WHAT IS A “MOTION TO DETERMINE RENT?”

Background

When you file an eviction action for non-payment of rent, you must attach a 3 Day Notice to the eviction complaint and allege in the eviction complaint how much is owed by the resident. This is required by law, as the resident needs to know for what amount he or she is being evicted. Usually this amount is the rent and late charges (if the lease considers late charges as additional rent), plus any other periodic payments due under the lease terms and amounts which are considered rent. Oftentimes the resident disputes this amount or feels that the eviction is unjust and files an “Answer” with the court. By law, the resident when filing an Answer with the court is required to place into the Court Registry the rent amount which is asked for by the manager in the Complaint. Some residents comply, other residents don’t, and often the eviction continues on to completion, regardless of the Answer that the resident filed with the court. In this case, the resident may not get his or her day in court. There is one way a resident can get heard in court WITHOUT filing an answer OR putting any money into the Court Registry. This is by filing a Motion to Determine Rent.

Legal Basis of the Motion

Florida law states that a resident who is contesting an eviction must file an Answer within 5 business days of being served with the eviction summons OR may file a Motion to Determine Rent asking the judge to decide how much rent is owed, and how much if any should be deposited into the Court Registry. This will frequently trigger a court hearing.

Requirements of a Motion to Determine Rent

According to law, a resident may file a Motion to Determine Rent if they are alleging that the rent asked for by the manager on the 3 Day Notice or the complaint is “in error”. It is possible that the manager has overstated the rent amount, the resident paid the rent, the resident is owed something by the manager, the resident has been given multiple 3 Day Notices with conflicting amounts, the resident was to receive a concession, or the premises are so deficient that the resident feels that the amount asked for should not be the amount that they should have to place in the Court Registry, or any other thing the resident can come up with to make it appear that they do not understand what the amount of rent truly should be or how much they should pay. By law, the resident is required to attach documentation to the Motion to Determine Rent showing some proof to the judge that the rent amount alleged in the complaint is in error.

The Problem

Most Motions to Determine Rent are legally insufficient, but they often end up triggering a court hearing nonetheless. The resident does not attach documentation to the Motion showing that the rent is “in error”. Often the Motion simply says, “I want the court to determine how much rent is owed”. Use of the motion can be an outrageous abuse of the system, and judges are acting improperly when they set these matters for hearing. The resident’s Motion to Determine Rent should often be “stricken” by the court as legally insufficient, but in many cases the hearing is set, and off to court we go.

The Result

Unfortunately, some judges will set a hearing on just about any Motion to Determine Rent, regardless of whether the resident has properly filed the Motion, and the courts will do this with or without documentation attached to the Motion. This results in a time wasting hearing in most cases. The resident and the manager must now appear in court, the judge will take some testimony, and then the judge will order the resident to place in the Court Registry the amount the judge feels is the amount of rent owed. Usually, this amount is exactly what the 3 day notice states and the amount that the manager asked for in the complaint plus any rent that may have accumulated during the time the eviction was filed and the time the parties are in court. The eviction case is not heard at this time. It is only a limited hearing to determine how much money the resident must place in the Court Registry.

When does the Court require the money to be posted into the Court Registry?--Sometimes the resident is required to place the money into the Court Registry by 5 PM that day, or sympathetic and often inexperienced judges will give the resident a week or more to deposit the money. Sounds outrageous? It is.

How does the resident even know about this Motion to Determine Rent? --Unfortunately many court clerks tell the resident that he can do this and go as far as to provide the resident with a fill in the blank “Motion to Determine Rent.” Attorneys may represent the resident and file such a motion, and many of the legal aid organizations provide the resident with a form Motion to Determine rent solely for the purposes of delaying the case.

Suppose the resident does not deposit the money into the Court Registry as ordered by the judge?--If the resident fails to comply with the judge’s order, the judge will sign a Final Judgment of Eviction and the case will proceed to completion with no further court hearing.

Suppose the resident deposits the money into the Court Registry as ordered?--The court will then set a trial, and a full-fledged eviction trial will occur sometime when it is suitable for the judge. This could be in a few days or a few weeks depending on the judge’s schedule.

What can be done to minimize the occurrence of the Motion to Determine Rent?--While it is nearly impossible to prevent a resident from filing a Motion to Determine Rent, there are certain things which are done by a property manager that increase the risk that such a motion will be filed. The following will increase the Motion to Determine Rent risk:

 

1. Giving the resident a 3 Day Notice with excessive late charges.
    
2. Giving the resident conflicting 3 Day Notices.
    
3. Giving the resident a notice after the 3 Day Notice
    
4. Allowing a resident to make a repair and having a dispute about a reimbursement or a concession.
    
5. Giving a resident an open ended 3 Day Notice which says they owe a particular amount plus a certain amount per day causing the notice to be ambiguous.
    
6. Carrying over a balance for a long time and then putting this balance on the 3 Day Notice
    
7. Not maintaining the premises, causing the resident to feel they are entitled to a rent abatement
    
8. Making oral payment arrangements with the resident.

CONCLUSION

Unfortunately, we cannot prevent a resident from filing a Motion to Determine Rent, and the frequency of these motions is increasing. A clean 3 Day Notice stating the exact amount owed, breaking out any other charges and making it easy to look at the lease agreement and the notice to see a nice match will be very helpful and is advisable in all cases. An experienced attorney will emphasize to the judge that the amount the resident is to place in the Court Registry is the amount on the 3 Day Notice and any amount that may have accrued. If the resident is claiming that the property value is diminished due to a deficiency with the premises, it is our firm position that the resident should place all the money into the Court Registry and these matters can be sorted out at trial. This separates the scam resident from the legitimate resident and is the whole reason why Florida law requires that the rent money be deposited into the Court Registry in order for a resident to have a trial in court. Now… if only all the judges would follow the law.

FLORIDA STATUTES PERTAINING TO THE MOTION TO DETERMINE RENT

83.60 Defenses to action for rent or possession; procedure … (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. 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.

“Serving the Property Management Professional”

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Almost every day we get a request by phone, email or fax to “stop” an eviction. We don’t mind it, as it is less work for us to stop an eviction than to bring it to completion. However, we immediately ask the property manager why the eviction is being stopped. It is important that we know the answer, as often property managers improperly stop evictions for wrong reasons and find themselves in trouble later, possibly having to file another eviction needlessly. While we don’t mind filing evictions multiple times on the same resident, your company might not like the fact that money is needlessly wasted on attorney’s fees and costs. If the property manager does not completely understand the eviction process or is desperate to collect any money he can, he often will stop an eviction and end up paying a big price later. Do you really want to make your attorney wealthy?

Why Stop an Eviction?

The eviction has been filed, and the property manager subsequently receives the keys, or it appears the resident has vacated. This is a common reason. The resident may come into the office with $1000, representing the rent amount owed, and the manager accepts the rent and figures that the eviction should be stopped. This is another common reason. Sometimes the resident makes a significant partial payment and has promised to come in 5 days later and pay the rest. We hear it all the time. You call and want to stop the eviction. The eviction was filed in error, and the property manager hastily wants the eviction stopped. Whoops. It happens. In this article we are going to examine the reasons why property managers stop evictions and how the eviction should be stopped, if it all.

The Resident Has All of the Rent

The Three Day Notice demanded $750, and since the eviction started, the resident now owes another $750, as you are into the next month. He has a cashier’s check or money order for $1500 and has come into your office. Do you take it or refuse it? The first inclination, especially in these tough economic conditions, is to take the resident’s rent money. Sounds good, right? But Wait! What about the attorney’s fees and costs? A typical eviction attorney who does volume evictions will charge between $125 and $150 in attorney’s fees for the basic eviction, PLUS you have to pay the costs, which at a bare minimum (depending upon how many residents are being evicted) will run you at least $200. Who is going to pay that money? Some property managers think the resident will pay it. Good luck. Not only do they rarely voluntarily pay, but you cannot force them to pay it. By accepting the $1500, the eviction is dead and gone, and the resident cannot be forced to pay the attorney’s fees and costs. Can you deduct it from the security deposit when they vacate? Possibly, but the manager is not really the prevailing party in the eviction lawsuit, as the eviction has been stopped before a judge made a decision, and there probably is not enough money in the security deposit to cover the attorneys fees, costs and possible damages to the premises or rent owed. The lease may state that the resident is liable for all attorney’s fees and costs, but by accepting the rent and voiding the eviction, a resident can fight you on this, especially if she did not realize that you would be trying to take the money owed from the security deposit when she vacated.

The Resident Has a Partial Amount of Rent Owed

In some instances, the resident does not have the full rent but a good portion of the rent owed. The temptation is great, the pressure to collect rent is on, and the property manager accepts the payment. The result? Same as above. The eviction is dead and gone. Good luck collecting attorney’s fees and the remaining rent balance. Hopefully the regional manager or the property owner gave the property manager authorization to “eat” the attorney’s fees and costs and possibly have to incur them again in the next eviction which may have to be filed.

The Resident Has Turned in Keys

The majority of residents under eviction vacate before the process is completed. This is a good thing. Many begin looking for new accommodations the day after they are served with the eviction papers if they have not already begun looking, knowing than an eviction is imminent. The result is that the resident packs up and leaves. In some cases they turn in keys, clean the unit and surrender the premises to the manager. This is the ideal situation. Why not stop the eviction action at this point? Our question we have is why stop it at all? Our attorney’s fees cover the entire eviction from beginning to end. If the resident vacates a day after we file the case or has to be forcibly removed, our fee stays the same. The only additional cost involved is the fee that the Sheriff’s department charges, and the Sheriff is not needed in all cases, especially those where the residents have turned in their keys and fully vacated the unit. Stopping the eviction will result in the resident NOT getting a Final Judgment of Eviction on his or her permanent record. The manager needs to make a decision whether they want the resident to just have an eviction filing on their record or whether they want the resident to have an actual Final Judgment of Eviction on their record. Just because the resident has turned in the keys does NOT mean they have completely surrendered the unit to you. You can never be completely sure. There will come a day when you receive keys from a resident and then will be surprised to find another person living in the unit who tells you they are there with the permission of the resident who turned in the keys to you. The result is that the unit has NOT been completely surrendered and you do NOT have possession. You can see how stopping the eviction at this point will result in you not being able to remove this person.

The Resident Has “Abandoned”

Your maintenance tech goes to the unit under eviction, and it appears that the residents have “abandoned”. The electric is off, the next door neighbor said they saw them driving off in a truck in the middle of the night, and the unit is trashed. Looks abandoned, smells abandoned and probably is abandoned, BUT by law it may not be. Abandonment is defined by Florida law, and we urge you to get a full understanding of this before you ever assume a unit is abandoned. Our recommendation in cases where all the residents have not given you possession, but rather have seemingly abandoned, would be to continue on with the eviction if you are worried at all that the resident is going to come back, or if there is anything left in the unit. Carry the eviction to completion, get the writ of possession, and have the Sheriff execute the writ of possession. This will assure you that the eviction is completed. If the residents were to return, they are not able to retake possession, and you are not liable for any personal property which was put to the property line after the writ of possession was executed. It is the safest route.

The Proper Way to “Stop” An Eviction

The proper way to “stop” an eviction is to not really “stop” it at all. In situations when the property manager is going to accept rent, in full or part, a Stipulation should be used. The Stipulation is the document under which the property manager agrees to take a specific sum, and the resident agrees to pay the balance if any, including the attorney’s fees, costs, late charges or any other amounts owed according to a written “payment plan”. This “payment plan” should not be confused with any other type of payment plan or workout agreement you may enter into with your residents. A “Stipulation” is an actual court document that becomes a “court order” once the judge signs an order approving the Stipulation. This court order will authorize you to obtain a Final Judgment of Eviction if the resident fails to comply with the terms of the Stipulation. Most judges approve Stipulations under which the resident must pay according to the Stipulation AND pay the rent on time for a period of up to 6 months. You see, the eviction is not really “stopped”, but rather it is suspended or deferred by the Court. If the resident pays according to the Stipulation, the resident can stay. If the resident fails to make one or more payments on the past balance owed or the rent as it becomes due, the eviction is revived and your attorney can request a Final Judgment from the judge without having to file an eviction all over again.

Should You Always Use a Stipulation?

We feel that in most cases if you are going to accept a partial or even full payment from the resident, a Stipulation should be used. Obviously, in many cases the resident does not have a significant amount of money, and you should not stipulate, but rather just refuse the rent and continue on with the eviction. If a resident owes $1500 and only can offer you $100, it usually is not appropriate to enter into a Stipulation. The amount you decide to accept in order to enter into a Stipulation is up to your company policy, and this should be established and written down, if not already in place, to avoid inconsistent actions which could result in Fair Housing issues. If you are not stipulating, make sure the resident does not try to slip in a payment without your knowledge, since if this payment is accepted, the resident has essentially paid rent during the eviction, and the eviction may have to be dismissed. It is crucial that you have a system in place to prevent inadvertent acceptance of rent from a resident once an eviction is filed.

The Resident Pays EVERYTHING Including Attorney’s Fees and Costs

You might wonder why you should not stop an eviction if the resident is paying you absolutely everything they owe. It happens. The resident comes into some money, receives a tax refund, settlement or begs, borrows and steals to be sure they can pay and stay. We once had a resident rob a bank and then pay the rent to stop his eviction. If the resident pays you EVERYTHING in full, a Stipulation is not necessary, BUT what about next month’s rent? Will the resident be in the same position of nonpayment next month? If so, you may have to file another eviction on that resident and go through the entire process again. You need to make a decision whether you just will stop the eviction OR enter into a Stipulation under which the resident is ordered by the Court to pay the rent as it becomes due on time for the next 6 months. This is a judgment call on the property manager’s part, and also will depend upon where your property is located. Some judges will only allow Stipulations on past balances owed, but most will allow Stipulations on future payments as well. Your attorney can tell you whether the judge will allow a future rent payment Stipulation. Our recommendation? Stipulate whenever possible, so you can avoid filing an eviction on the resident again within the next 6 months.

The Eviction is Proceeding, the Resident Wants to Pay, and You Are Confused!

Call your attorney! Many property managers only have one or two evictions in a year, and if you are in that lucky category, you are more apt to be confused or make mistakes during your eviction. In a way, it is a good problem. Call your attorney right away if a resident want to pay and stay or you are thinking about stopping an eviction for whatever reason. Your attorney is not hired to just file your eviction, but is there to assist you throughout the entire process. Many things can happen during the eviction process, and your attorney will know exactly how to guide you. Take advantage of the availability and willingness of your attorney to help you. It’s your attorney’s job.

 

“Serving the Property Management Professional”

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Many multi-family unit residents, and in some cases, residents of condo units, either have a garage included in the tenancy, or can choose to have a garage at a cost in addition to their apartment. The way the lease agreement and garage addendum is worded can have major consequences in the event of an eviction action. Failure to use the proper wording can result in the unpleasant situation in which the resident is evicted from the apartment, but the property manager is left trying to deal with a garage full of the resident’s possessions. In a single family home, we do not have these issues, as the garage is usually attached or directly near the premises. In a multi-family setting, the garage is more often detached and may or may not be part of the “premises”.

The Typical Lease

The typical lease will state the monthly rent and then add a section for garage rent or have a check-off section stating that the garage is included. The garage is never mentioned again in the lease, and there is no garage addendum used. Sounds simple enough, and usually there are no problems

The Sales Tax Issue

Most property managers do not realize that if a garage is rented separately from the residential unit, sales tax must be collected on the garage rental. It is crucial to include the garage within the rental for this purpose to potentially avoid any problems with the DOR and sales tax.

We recommend that you have a price stated for units with garages and a price for units without garages. Making a separation of the garage from the rental unit can trigger a sales tax issue. If you ever rent out garages to non-residents, you absolutely MUST collect sales taxes.

The Eviction Problem

As mentioned before, usually the garage is not listed as part of the premises but treated separately. This separate treatment can cause a major problem in an eviction action. Typically, the eviction is served on the rental premises and lists the rental premises as the premises that the resident is leasing. Have you ever seen a garage listed on the 3-Day Notice or eviction action? It is assumed by many property managers and thankfully many residents that in the event they get evicted, they need to remove everything from the garage as well, and most do. This assumption though may be false. A property manager could be faced with evicting the resident but not being able to get the resident to take items out of the garage. In fact, we have seen cases in which a resident moved his or her belongings into the garage, actually sleeps there at night, and the traditional eviction action cannot get the resident or his property removed from the garage.

The Lease Tie In

In the beginning of the lease agreement, we recommend that the lease clearly describes the premises as follows “125 Main Circle Unit 306 and Garage Number 16” We do not recommend separating out the price of the garage from the price of the apartment or condo. Simply add these together to have one amount.

SAMPLE LEASE ADDENDUM FOR GARAGE, CARPORT AND/OR STORAGE UNIT

1. ADDENDUM: This is an addendum to the Lease Contract for Apartment No_____ in the ________________________Apartments ___________, Florida and is made between Resident(s) (hereafter referred to as “Resident(s)”) and Owner and/or Owner’s agent (hereinafter referred to as “Owner”).

 

2. PREMISES: The Premises as defined herein, shall be an enclosed garage, a carport and/or a storage unit (hereinafter referred to as the “Premises”).

 

3. USE: Only those persons whose names appear on this addendum may use the Premises. The Premises may be used solely for private residential storage, and under no circumstances shall any business activity be conducted from or in the Premises. No person shall be permitted to sleep in the Premises at any time or remain in the Premises with the door closed.

 

4. PETS: No pets or animals may be kept in the Premises.

 

5. DEFAULT AND REMEDIES: If Resident(s) default in complying with this addendum or the law, Owner has the right to retake possession as provided by Florida law and institute eviction proceedings. If, Resident(s) or invitee(s) engage in criminal activity on the premises, such action will be a default for which this addendum and the apartment tenancy may be immediately terminated. In addition to any of the foregoing, Owner has all other rights and remedies provided by law.

 

6. RIGHT TO ENTER AND TERMINATE: Resident(s) consent to Owner entering the Premises at any time and for any purpose without notice. Owner reserves the right to terminate this Addendum at any time and for any reason whatsoever, and Resident(s) agree to immediately remove all items from the Premises or face eviction proceedings from the Premises and the apartment unit.

 

7. REPAIR AND MAINTENANCE: Resident(s) acknowledge that they have inspected the Premises and are fully satisfied and accept it in "as is" condition. Resident(s) agrees to be fully responsible for any damage cause to the interior of the Premises, including but not limited to the walls, ceiling, floor and the door(s).

 

8. ALTERATIONS: Resident(s) may not make any alterations or additions to the Premises or affix anything to the floor, ceilings or walls.

 

9. CONTENTS: Nothing may be used or kept in or about the Premises which would in any way affect the terms and conditions of Owner’s fire and extended coverage insurance policy, constitute a violation of the law, or otherwise be a hazard in Owner’s sole judgment. NO FLAMMABLE OR COMBUSTIBLE LIQUIDS OR GASES, BATTERIES, FIREWORKS, EXPLOSIVES OR ANY OTHER ITEM OR SUBSTANCE, WHICH OWNER DEEMS DANGEROUS OR UNACCEPTABLE, MAY BE KEPT IN THE PREMISES. NO ELECTRICITY MAY BE HOOKED UP TO THE PREMISES, AND NO PLANTS MAY BE GROWN IN THE PREMISES.

 

10. PEST CONTROL: Owner will in no way whatsoever be providing any pest control for the Premises and shall not be liable for any damages caused by pests to the Premises.

 

11. LIABILITY: Owner will not be liable for any damage, loss, or injury to persons or property occurring within or about the Premises, whether caused by Owner, someone else, weather, fire, wind, rain, flood or any other acts of god. Resident(s) are responsible for obtaining Resident(s)' own casualty and liability insurance, and, agree to save and hold Owner harmless and indemnify Owner from any liability. OWNER STRONGLY RECOMMENDS THAT RESIDENT(S) SECURE INSURANCE TO PROTECT YOUR PROPERTY. Resident(s) agree to save and hold Owner harmless and indemnify Owner from any liability resulting from injuries arising from the use of the Premises.

 

12. SECURITY: Owner does not provide and has no duty to provide security services for Resident(s)' protection or the protection of Resident(s)' property in the Premises. Resident(s) must look solely to the public police for such protection. The Premises has a lock, which Owner does not warrant in any way. In the event any locks are broken, Resident(s) shall be responsible for the cost of replacement of the locks. Resident(s) may not change the lock(s) on the Premises.

 

13. POLICIES: In addition to the policies herewith and the attached rules and regulations or any other attachments, the receipt of which is hereby acknowledged, Resident(s) agree to observe and be bound by any other reasonable policies or rule changes which may be later implemented by Owner.

 

14. GARAGE SALES: Resident(s) agree that no “garage sales” shall be permitted in or around the Premises, parking areas or common areas, and nothing shall be sold out of or around the Premises, parking areas or common areas without express written permission of the Owner.

ABANDONED PROPERTY: Resident(s) agrees that should they vacate leaving any items in the Premises or should Resident(s) fail to vacate the Premises after notice or eviction, Owner is expressly given permission to dispose of the items in any way, holding the Owner harmless, and Resident(s) agree to be liable for any expenses arising out the disposal with regard to any items left in premises after Resident(s) vacate the Premises. Resident(s) expressly agree to waive all rights and procedures regarding the disposition of abandoned property provided in Florida Statutes.

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

“Serving the Property Management Professional”

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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.

 

“Serving the Property Management Professional”

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