You now have a Final Judgment signed by the judge and have told us to get a Writ of Possession.

 

1. The Court Clerk will issue a Writ of Possession and give this to the Sheriff’s Department.

 

2. The Sheriff’s Department will process the Writ of Possession and assign the Writ to a Deputy.

 

3. The Deputy will serve the Writ of Possession by taping it to the door of the unit.

 

4. The Sheriff’s Deputy will notify you when he/she will return to the property and meet you at the door. This will usually be 1-2 days after the Deputy serves the Writ. DO NOT CANCEL THE WRIT EVEN IF THE TENANT HAS VACATED. The Deputy will encourage this, BUT do not do it.

 

5. You will meet the Sheriff’s Deputy at the door AND AT THAT TIME change the locks, remove every item from the unit and place it on the property line. Do not give the tenant any extension of time, do not store the items, do not allow the tenant back into the unit, do not take any of the items, do not hold the items hostage or do anything to restrict the tenant from getting their items from the property line.

 

Call 1 800 253 8428 if you have any questions about executing the Writ of Possession.

“Serving the Property Management Professional”

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

Executing a Writ of Possession can be a tricky matter. In the best of situations, the evicted resident has removed all their items from the premises, nothing is left in the unit, and the resident is gone. In the worst case, the unit is full of personal property, the resident must be physically removed from the premises by the sheriff’s deputy, and the property manager and staff is left with the task of removing all the personal property left behind to the property line.

The Typical Writ of Possession Execution

The typical writ of possession (hereinafter writ) execution involves meeting the deputy sheriff at the premises door with your maintenance tech or locksmith, where you find the unit almost completely empty, with the exception of the usual obvious trash, such as that unwanted couch and bags of garbage. The locks are changed, and your staff proceeds to remove the items to the property line. If you do not have the staff necessary to do this at the time the writ is executed, you leave the unit, and you send a staff member back later to completely remove any trash or apparently unwanted personal belongings from the premises.

The Problem Situations

Unfortunately, property management life is not always so simple, and the property manager faces two less common situations where far more than the usual trash is left behind. The time will come, if it has not already, when the property manager will be meeting the sheriff’s deputy at the door only to discover that the resident has failed to remove ANY of the personal items from the premises. It will look like he simply up and left with no attempt whatsoever to remove anything. The resident is nowhere to be found, and the property manager is left with a very uncomfortable feeling regarding the situation. Do you remove all the items and place them on the property line? Certainly if the eviction is proper, this is completely allowed by law, but should it really be done right then and there? The other situation occurs when the panicked resident is present at the time you are executing the writ, begging and pleading with you to give him extra time to get help and a truck so he can retrieve all his belongings late in the day or the next day. The resident acts surprised and claims he had no idea that this was going to happen, which is a likely line indeed. In both situations, extreme care must be taken, as the route you take could have unintended consequences.

The Evicted Resident is Not Present and the Unit is Full

If the unit is full of personal items and furniture presumably of value, we strongly recommend that you change the locks and take a breather. It is quite possible that the evicted resident is in jail, is in a hospital, possibly mentally unstable, or just cannot comprehend how the eviction process works in Florida, and went off to work. It is also possible that the resident has paid the rent, is on vacation, and you mistakenly filed the eviction. Anything can and does happen, so it is wise to change the locks and begin the research process. While you may feel that this goes against what you have heard about the law and your rights to take all the items and place them on the property line, we feel it is a best practice to hold off for a bit and begin some research, rather than rush to remove the personal property to the property line. Unless you incorrectly filed the eviction action, you are under no legal obligation to take our recommendations at all; they are simply optional. Go back through your files, and make sure that the eviction was not performed in error, and do whatever it takes to contact the evicted resident.

Contacting the Evicted Resident: Do everything in your power to contact the evicted resident. This includes looking back in the file for email addresses, emergency contact info, cell phone numbers, work numbers; you are seeking any possible hint or information concerning where the resident can be. If calling a work number, there is no need to mention that there is an eviction or an execution of the writ; just stress the urgency of needing to speak with the resident. Here you will see more than ever how maintaining up to date contact information before and during a tenancy is crucial.

Speaking with neighbors: While we always strive to respect the privacy rights of our residents, the eviction once filed becomes public record and can be discussed with the nearby neighbors, at least in a limited context. Often they have some information as to the whereabouts of the resident and some contact information.

If you locate the resident, explain what has occurred, explain how you can by law place all their personal property to the property line, and read on below.

The Evicted Resident Has Been Located OR the Resident is Present When the Deputy Sheriff Arrives

There will be situations where the resident is actually present at the property at the exact time the writ is being executed, or once the writ has been executed, you have been able to locate the evicted resident. The usual request by the resident is for more time to get a truck, hire a mover, call a friend or do whatever it takes to get the personal property out of the unit. It is so important to stand strong as a property manager and get on the phone with your attorney, so that no deadly mistakes are made at this crucial juncture. The resident has been evicted. It is over. Unless you enter into a stipulation with the resident and money changes hands, you must be careful that you do not inadvertently give possession back to the evicted resident, possibly kill the eviction and have to start over again. At the same time, it will be helpful to you and the evicted resident if he or she is able to remove all or most of his or her personal property, so that your staff does not have to undertake this task, and the evicted resident does not lose all their worldly possessions. By giving the evicted resident a bit of extra time, you may be able to avoid the evicted resident breaking into the unit, causing serious damages to the premises or committing some sort of bodily harm to you or your staff. Remember that you may have tracked down the evicted resident who for whatever reason could not comprehend or did not know that the eviction was taking place and fails to recognize the consequences of the writ execution. The last thing you need is for an evicted resident to get out or jail or an institution, only to discover that you took all their personal property to the property line and that it is now all gone.

The Extension Dangers

An inexperienced property manager may give in to the evicted resident’s wishes and tell them they have a few hours or until the end of the day to retrieve their personal property. The deputy sheriff may even encourage this. This is usually done verbally. For example, you tell the resident in front of the deputy sheriff that he must remove all the personal property by 5 pm, you proceed to change the locks, and the evicted resident is “supposed” to do what they say and contact you to let them in that afternoon. 5 o’clock comes and goes and the evicted resident fails to get their belongings. In the meantime, the evicted resident calls your office, and speaks to a staff member who has no idea what is happening with the eviction. Your maintenance tech then comes the next day to the unit and seeing that nothing was removed proceeds to remove all the items to the property line where they quickly disappear. The evicted resident then returns a few hours later infuriated that his personal property is gone and tells you that your leasing agent “agreed” that he could remove the personal property by noon that day, thus claiming a verbal extension. Did that conversation really occur with the leasing agent? If so, the evicted resident may be able to claim that an agreement was made, and now you are responsible for the loss to the evicted resident’s personal property. You see, by giving the evicted resident an extension or the evicted resident successfully claiming an extension was granted, this can result in you becoming a “bailee” of the personal property, and then some responsibility for the safekeeping of the property arises. Did your leasing agent give the evicted resident an additional extension? Now we have a factual dispute which may have to be decided by a judge.

Two Common Scenarios

1. The deputy sheriff says he will return in 2 hours: Some deputy sheriff’s will “hold off’ on executing the writ and will return later or even the next day. Basically, you are having the deputy simply “hold off” on execution of the writ. Make sure you have the deputy sheriff write a note to this effect on his paperwork, because after executing ten writs that day, he may forget you or confuse you with another one he handled that morning. In the meantime the evicted resident should and often will remove his or her personal property. The deputy sheriff then returns 2 hours later or the next day and executes the writ, and it is over. Or is it? The evicted resident may not have removed all the personal property. Removal of an accumulation of personal property (sometimes collected over many years) is often a taller task than it seems. If the evicted resident has removed all the personal property and is gone, you are in great shape. The deputy sheriff executes the writ, and the eviction is complete.

 

2. The deputy sheriff executes the writ. The evicted resident is present or you have contacted him, and you are allowing the evicted resident in to get his belongings, or decide to give the evicted resident an extension of time to remove his personal property:

 

1. Recognize this is dangerous situation, and avoid it if possible. Only use this method if there is a full unit of belongings, or has belongings that the evicted resident wants to retrieve, you have consulted your attorney, AND

 

2. Use a proper form we created called the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION

What is the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION?

This form is not a form provided by Florida law. It is simply a form we have created to assist those property managers who wish to give the evicted resident extra time to remove his personal property. This form can only be used AFTER the deputy sheriff has met you at the property and given you full possession of the unit. It is not an agreement, but is rather a notification by you to the evicted resident that you are, as a courtesy, allowing them to retrieve personal property and most importantly, giving the evicted resident a deadline to remove his personal property. We urge you to avoid these situations, and if at all possible, fully remove all personal property left in a unit to the property line, but we also understand there will be situations when this is not possible, practical, or you feel compelled to assist the evicted resident for whatever reason. We strongly urge that you always contact your attorney if you are going to give an evicted resident any extensions, or decide to use the Personal Property Removal Extension Notification. The axiom in property management is that no good deed goes unpunished, and it definitely applies here.

 

“Serving the Property Management Professional”

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

What is a Writ of Possession? -- The Writ of Possession, hereinafter “Writ”, is an order by the court telling the sheriff to remove all persons from the premises. Once the judge signs the Final Judgment of Eviction, your attorney submits the Writ to the Clerk of Court and the clerk “issues” the Writ. Once issued, the Writ is taken to the Sheriff’s department civil division, a fee of $90.00 (most counties) is paid, and the sheriff’s clerk in the civil division processes the Writ into their computer system and it is given to a sheriff’s deputy to “serve”. The deputy then takes the Writ, along with many others he or she has to serve that day, and either hands it to the resident if the resident answers the door or tapes it to the door if no one is home or the resident fails to answer the door.

NOTE: This article assumes that you have been granted a Final Judgment of Eviction and have instructed your attorney to get a Writ

What it does-- The Writ will give the resident a date and time to get out of the premises, usually 24-48 hours from the day that the Writ is served. The Writ gives the deputy the authority to remove persons from a rental dwelling. The deputy will usually give the property manager a phone call advising the property manager that the Writ has been served and the date and time of execution.

Why does the deputy call the property manager? – The deputy calls the property manager for two reasons. One is to let the property manager know the date and time to meet the deputy and the other is to see if the property manager wants or “needs” the deputy to meet the property manager at the premises.

The big trick – While you may think that the deputy is just being helpful when he or she asks you if the resident is still there and if it is necessary to come back out to execute the Writ, be careful of the question, the deputy may really be trying to avoid having to execute the Writ. The deputy has a lot to do each day and a canceled writ means more time is freed up for those other tasks. Don’t be tempted to cancel the Writ! Once the sheriff’s department receives your Writ, the $90.00 check is processed. You have paid for the complete service so why not get the complete service? You should always follow through and have the deputy execute the Writ even if you think that the resident has vacated the premises.

Suppose the resident does not move after being served? – The sheriff comes out to the property at the designated date and time and “Executes” the Writ, at which time the resident is told (or forced, if necessary) to vacate the premises. If the resident refuses to vacate, the sheriff will physically remove the resident, and the resident may be subject to arrest if he or she fails to vacate.

Procedure when executing the Writ – When the Writ is executed, the property manager needs to be prepared to change the locks on the premises, secure the premises, and, remove all items left in the premises to the property line. The property manager needs to be ready to complete the job and have helpers if necessary to remove the items from the premises. Florida law states that the property can be removed at the time the Writ is executed or at any time thereafter. We highly recommend the former. Get EVERYTHING out of the unit immediately and to the property line. Holding the property until a later time is just asking for trouble.

What can happen if you do not immediately remove the property? The resident may attempt to break in later to get the property causing significant damage, or, the resident can allege you made some sort of deal with them to hold the property until they were able to retrieve the property.

The belligerent or threatening resident – Florida law allows you to DEMAND that the deputy stands by while you are removing the property or securing the premises. If you feel threatened in any way or think that the resident may suddenly appear while you are removing the items to the curb, ask the deputy to stay. By law, the sheriff’s department can charge you but your safety is worth it!

THE MOST COMMON WRIT MISTAKES–

Failure to have the deputy execute the Writ – When you tell the deputy that the resident has vacated, the deputy will write on the paperwork “unexecuted per manager”. This means that your eviction was never completed, you are in danger of the resident coming back and moving right back in, and you are in danger of being held responsible for the resident’s personal property, or, worse yet, what the resident “claims” was the personal property left in the rental unit.

Failure to meet the deputy when the Writ is executed – If you don’t show up to meet the deputy, the Writ is “unexecuted”. The deputy will not do anything without you being present. Your attorney will have to file a motion for an Alias Writ and this can cost you time.

Meeting the deputy and making an agreement with the resident – Property managers often feel sorry for the resident and agree with the resident and the deputy to hold off on the Writ for a day, or for a fixed number of hours. The deputy will usually go along with this and accommodate the wishes of the parties if the property manager agrees. The LAST thing you should be doing is trying to accommodate a resident at this stage of the eviction. We have seen the resident run out and file bankruptcy and derail the entire process. We have also seen cases where the property manager tells the resident that they can come back the next day to retrieve the personal belongings. The resident fails to show up and the property manager disposes of all the property. The resident then shows up and claims that an agreement or extension was made with someone in your office by phone. This can have disastrous and unintended consequences and now you can end up in court in a “he said” “she said” situation.

Failure to have sufficient staff to remove the property from the unit - There is really no good excuse for this. You know when the Writ will be executed and need to be prepared for dealing with a full unit or an empty unit.

Failure to remove the property from the premises - If the eviction is completed and the residents have been evicted from the premises, Florida law does not require you to treat the property left behind in any special way and you can and should dispose of all abandoned property when executing the Writ. You must complete the eviction and meet the deputy at the premises to be allowed to remove the items to the property line without any liability. Too many times, we see property managers shortchanging themselves by failing to completely execute the Writ when there is abandoned property. This is quite unfortunate as the execution process directly relates to the abandoned property. You will have no liability to the resident or any occupants, known or unknown, for the disposition of the abandoned property if you execute the Writ and the eviction was proper. It is rare that the resident will return and try to claim that they left items behind, but there always it this possibility. There is also the possibility that the unknown person appears, claiming items. Since the completion of the eviction relates directly to the disposition of the abandoned property, it is imperative that you execute the writ if you wish to be safe.

Now, some final words on the Writ

Do you always need to follow through and execute the Writ?

 1. ALL residents have vacated, given you the keys and the premises are completely empty – Probably no Writ is necessary

2. ONE resident has given you the keys, the premises are completely empty – Executing the Writ may be a good idea

3. Property is left in the premises – Execute the Writ

4. You have had no contact with the resident – Execute the Writ

Conclusion: The money you spend on the Writ is nothing compared to the liability and problems you may have for not executing the Writ. If a WRIT OF POSSESSION HAS BEEN SERVED, EXECUTE IT.

 

“Serving the Property Management Professional”

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

Almost every property manager has or will eventually have to deal with filing an eviction. While those who file often are fully aware of the procedure, the new or “lucky” property manager often does not know the timeline in the process. A process it is indeed, and there are many steps along the way. The initial filing of the eviction is only the first step in a process in which the paperwork passes through many hands, and eventually ends on the day when the Sheriff meets you at the door and gives you possession of the premises. This article will set out the timeline for an UNCONTESTED eviction and give you an idea on why a typical eviction takes between 20 to 45 days from beginning to end.

1. The Three Day Notice, Seven Day Notice to Terminate, Agreement to Vacate or Non-Renewal Notice has expired.

 

2. The Lease and Notice is transmitted to the attorney, usually by fax or email.

 

3. The attorney and legal assistants review the documents for problems, and the legal assistants input the case into the law firm’s computer system.

 

4. The “Complaint” and “Summons” is generated by the law firm.

 

5. The “Eviction Package” consisting of the “Complaint”, “Summons”, attachments, stamped enveloped and checks for the Clerk of Court and the Process Server (or Sheriff in some counties) is given to the Clerk of Court.

 

6. The Clerk of Court files the eviction by entering the information into the court computer system and in many counties, scans the documents into their system.

 

7. The Clerk of Court mails a copy of the “Complaint”, “Summons” and attachments to the resident in the envelope your attorney has provided to them.

 

8. The “Summons”, “Complaint” and attachment are picked up by the Process Server or Sheriff’s Deputy.

 

9. Server or Sheriff’s Deputy goes to the rental unit and attempts to serve the resident.

 

10. If the resident is not home, the Process Server or Sheriff’s Deputy must make a return trip no less than 6 hours later, and if the resident is still not home, tapes the Complaint, Summons and attachments to the door. The resident is now SERVED.

 

11. The Process Server or Sheriff’s Deputy then enters the information into their computer system and generates a “Return of Service”, which tells the Clerk how and when the documents were “Served”. The Process Server faxes the Return of Service to your attorney.

 

12. The Process Server or Sheriff’s Department clerk then files the “Return of Service” with the Clerk of Court.

 

13. The Clerk of Court enters this information into the computer system and files the “Return of Service” in the file.

 

14. The resident now has five full business days, not including Saturdays, Sundays or legal holidays, to “Answer” the Complaint by writing a letter to the Court giving the reasons why he/she should not be evicted.

 

15. If the resident does not file an “Answer” to the Court, the case is UNCONTESTED.

 

16. On the 6th business day after the resident has been served, the attorney should or will file a “Motion for Default” with the Clerk of Court.

 

17. If the Clerk of Court is satisfied that the resident has not filed an “Answer”, the Clerk of Court will enter a “Clerk’s Default”, file this and enter it into the computer system. NOTE: The Clerk of Court must go through all the mail it has received by the Default date, or it will not enter the “Clerk’s Default”. This means that if the Clerk of Court is behind in opening mail, a delay can occur.

 

18. Once the “Clerk’s Default” is entered, the file is brought to the Judge by the Clerk along with the unsigned “Final Judgment” the attorney has prepared and stamped envelopes for mailing to the resident.

 

19. The file is now with the Judge.

 

20. The Judge reviews the file and if everything is in order, signs the “Final Judgment”. If the Judge is busy, backed up, on vacation, in a Judge’s conference or stuck in trial, a delay can occur in signing the “Final Judgment”.

 

21. The Judge signs the “Final Judgment”, and his/her Judicial Assistant mails out the “Final Judgment” to the attorney and the resident.

 

22. Your attorney’s legal assistants track the file and often know that the “Final Judgment” has been signed before the mail arrives.

 

23. Your attorney will notify you that a “Final Judgment” has been signed and ask you if you want a “Writ of Possession”.

 

24. You check the unit, are absolutely sure the resident has abandoned, nothing is in the unit, no one has been in the unit for a full 15 days, and you may notify the attorney’s office that you do not need a “Writ of Possession”. NOTE: We recommend you do request a “Writ of Possession” and finish up the eviction. It costs nothing for attorney’s fees; it is a $90.00 fee from the Sheriff’s Department, (more in a few counties) but money well spent. THE EVICTION APPEARS OVER, BUT YOU HAVE NOT ACTUALLY COMPLETED IT IF YOU DO NOT REQUEST A “WRIT OF POSSESSION” AND MEET THE SHERIFF AT THE DOOR.

 

25. You tell the attorney that you want a “Writ of Possession”.

 

26. Your attorney submits a “Writ of Possession” to the Clerk, who “issues” it.

 

27. A check for $90.00 (more in a few counties) is attached to the “Writ of Possession” form, which is given to the Sheriff’s Department with the issued writ.

 

28. The Sheriff’s Department processes the “Writ of Possession” into their system and assigns it to a Sheriff’s Deputy.

 

29. The Sheriff’s Deputy goes to the unit and either tapes the “Writ of Possession” to the door or hands it to the resident.

 

30. The “Writ of Possession” gives the resident between 24 and 48 hours to vacate the premises, sometimes a longer period due to weekends and holidays.

 

31. The Sheriff’s deputy calls you and tells you that he/she has posted the Writ of Possession and asks you if the resident has vacated. YOU SAY: “I don’t know and I want to meet you at the property when you execute the Writ of Possession”. You do not say, “I will check the unit,” or “Yes, the resident has vacated.”

 

32. You meet the Sheriff’s Deputy at the unit and change the locks; the Sheriff’s Deputy removes the resident, and you take all the resident’s belongings to the property line.

 

1. If the unit is full, the resident is not present, and you feel the resident may have not known about the eviction, CALL YOUR ATTORNEY.

 

2. The unit has some belongings, trash, etc.; you remove it all to the property line.

 

3. If you did not bring help with you to remove the property, you can remove it at a later time.

 

4. You NEVER make an agreement with the resident that you will extend the Writ of Possession or allow the resident to “come back later” and retrieve the belongings unless you are sure what you are doing and have read the article on this.

FINALLY, ALWAYS CALL YOUR LAWYER IF SOMETHING IS ODD, YOU EXPERIENCE PROBLEMS WHEN EXECUTING THE WRIT OF POSSESSION, OR IF IT APPEARS THAT THE RESIDENT IS NOWHERE TO BE FOUND, BUT THE UNIT IS FULL OF BELONGINGS AS IF THE RESIDENT DID NOT KNOW ABOUT THE EVICTION.

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”

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

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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