Did you ever get that horrible feeling when you realized that you forgot to send the “Notice of Intention to Impose Claim on the Security Deposit” out to the resident? For years we have drilled into our clients’ heads the importance of sending the Notice (we will call it that from this point on) out within 30 days of the resident vacating, but sometimes it just gets forgotten. You may have evicted the resident, and the last thing on your mind is returning any money to the resident as the resident owes so much to you. The resident may have skipped out in the middle of the night owing 3 months’ rent, and again you would not think of returning any money to him, or you realize the resident is gone and there is $5000.00 worth of damage to the unit. Unfortunately, the fact that the resident owes you and will not be getting a dime back does not excuse you from sending out the Notice. Your failure to send out the notice within the time period as required by law could result in you having to return the entire security deposit to the resident. This could be a devastating occurrence especially if the security deposit was a significant amount of money. So, you forgot to send the Notice out within 30 days of the resident vacating. Is it over now? Do you have to return the money to the resident? Possibly NOT. Florida law has carved out an exception to the 30 day rule which MAY be able to save you.

The General Rule

The general rule which almost every property manager knows is found in Florida Statutes 83.49, the security deposit statute. The statute provides that upon the “vacating of the premises for termination of the lease”, the manager shall have 30 days from that date to send out the Notice to the resident’s last known address, which of course is the unit the resident was renting unless they gave you a new address. The law used to be 15 days, but through the efforts of the Florida Apartment Association in getting the law changed, the manager has 30 days to send out this Notice. The confusing part of the statute has to do with the wording “vacating the premise for termination of the lease”. This wording is open to more than one interpretation. Obviously it would apply to the resident leaving at the end of the lease, but what about an eviction? Does an eviction terminate the “lease”, or does it terminate the “tenancy”? A good argument can be made that if a resident does not fulfill the lease term, whether by abandonment, surrender, or eviction, and the manager tries to rerent the unit on the residents’ account under Florida Statute 83.595, the 30-day counting period should not start until the lease expiration date or the date a replacement resident takes occupancy, whichever occurs earlier. Under this statutory interpretation, the date under which the resident loses the right of possession and the date under which the lease obligations are terminated can be two very different dates. However, some judges may not accept this argument, and will start the 30-day counting period strictly from when the unit was physically vacated. Therefore, the safe approach is to remember to send the Notice out within 30 days from the date the resident physically vacates. If you know when the resident vacates, as in an eviction being finalized with the sheriff, or at the end of a lease, you know when to begin counting your 30 days. But wait. We forgot to send the notice out, and this is what this article is all about!!!!

The Penalty For Not Following the Rule

If you fail to send the Notice out within 30 days, you forfeit the right to impose a claim on the security deposit. In other words, you must return the full security deposit to the resident.

The Exception to the Rule

There is an exception to the rule that you must send out the Notice within 30 days. We are going to tell it to you, but after you read this article, we want you to forget you ever heard about the exception, and we want you to ALWAYS get the Notice mailed within 30 days.

FS 83.49 (5) Except when otherwise provided by the terms of a written lease, any resident who vacates or abandons the premises prior to the expiration of the term specified in the written lease, or any resident who vacates or abandons premises which are the subject of a tenancy from week to week, month to month, quarter to quarter, or year to year, shall give at least 7 days' written notice by certified mail or personal delivery to the manager prior to vacating or abandoning the premises, which notice shall include the address where the resident may be reached. Failure to give such notice shall relieve the manager of the notice requirement of paragraph (3) (a) but shall not waive any right the resident may have to the security deposit or any part of it.

An Examination of this Exception

As you can see under FS 83.49(5), if a resident abandons or vacates before the end of the lease, the resident is required to give at least 7 days’ written notice by certified mail or personal delivery, telling you he is vacating and giving you a forwarding address. AHA! Many residents do not do this. They simply skip out in the middle of the night, or tell you they are leaving and then leave. In this case YOU DO NOT have to send out the NOTICE within 30 days! If the resident is not on a lease but the tenancy is now month to month or week to week, the same rule applies. If the resident fails to give you the notice of vacating and a forwarding address at least 7 days before they vacate, you DO NOT have to send out the Notice to them. Here is a recap.

1. The resident must give you at least 7 days’ written notice before they vacate, advising you that she is vacating.

 

2. The notice from the resident must be hand delivered or sent to you by certified mail.

 

Why Does the Law Provide This Exception?

The reason this exception exists is so that you are not under the 30-day requirement when you have no idea if the resident has in fact vacated. Often you do not know the date the resident vacates, so you should not be held to a timetable when you do not know when that time period starts. This is a manager protection exception.

The Danger of Using the Exception

In all the years of training property managers, we frequently avoid talking about the exception to the rule that you must send the Notice out within 30 days, and you might have wondered why. The reason is simple. People are dishonest, and when the resident finds out that he was supposed to give you at least seven days’ written notice by hand delivery or certified mail stating when he was leaving and giving you his new forwarding address, a copy of this notice can miraculously appear, and the resident will tell the judge that he in fact DID give you this notice. Now you are faced with having to explain to a judge that you did not receive the notice, and the resident will try to convince the judge that he did give you the notice. Who will the judge believe? You or the resident? Never underestimate how convincingly someone can lie to a judge.

You Know the Exception, Now What?

Now that you know the exception to the rule, forget about it. Always get the Notice out within the 30-day time period as required by law. Assume the resident will lie and say that he DID give you at least 7 days’ notice before he left, and that he DID give you a forwarding address. Only use the exception to the rule if you are in a bind and have forgotten to send out the Notice within the 30 days; possibly the exception will be there to help you. If you do forget to send out the Notice, go ahead and do it anyway even if you are outside the 30-day window. There is no need to alert the resident to the fact that they did not give you the required 7 day notice, because this will give the resident ample opportunity to fabricate the notice after the fact. A number of years ago, one of our clients was being sued by an attorney who argued to the judge that our client failed to send the Notice out within 30 days. It was true. Our client did not send the Notice out. We turned to the resident and asked if he had given our client a notice at least 7 days prior to vacating with his new forwarding address. The resident said “no”, and we won the case. Let this limited, technical exception work in your favor when needed; don’t open yourself up unnecessarily to having to use it. As soon as you think the resident has vacated, begin counting your days and get your Notice out!!! Whether it be a skip, an eviction or the natural ending of the lease, get the Notice out.

“Serving the Property Management Professional”

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

A common misconception among landlords is that the tenant who breaches his lease automatically forfeits his security deposit as the minimum damages. Some landlords believe the forfeited security deposit is in addition to any other damages. Most landlords bolster their claim to the automatic forfeiture of the security deposit for breach of the lease with supporting lease language. As a general rule we advise that landlords avoid automatic security deposit forfeitures for breach of the lease. There are some exceptions to the general rule and I touch on them at the end of the article.

An invitation to litigation

The automatic security deposit forfeiture is an invitation to litigation. First, the fact that it is an automatic forfeiture doesn’t relieve the landlord of the responsibility of timely sending the notice of claim on the security deposit. Second, the tenant receives a notice of claim that states the deposit is forfeited. It may or may not include additional itemized damages for the lease breach.

Most Florida county court judges will feel that the automatic security deposit forfeiture is inequitable. They will find the lease forfeiture clause unconscionable and refuse to enforce it, citing the Florida statute that permits them to do so. If that is the landlord’s only reason on the notice for claiming the deposit, the landlord’s reason is now invalid, and the notice of claim may be found to be statutorily insufficient. The landlord may lose at this point without any opportunity to present his case.

The judge may allow the landlord to present proof of the damages. Relying on the automatic forfeiture clause, the landlord may not have done an inspection of the premises or obtained any proof of the damage (pictures) or saved any evidence of the cost of repair. Even the fair claims of the landlord can fail for lack of proof.

The lawsuit scenario

Unfortunately for the landlord the scenario in which this happens is the tenant’s lawsuit for return of his security deposit. If the tenant recovers any portion of his security deposit, he is generally entitled to his attorney fees. As we are all too well aware, attorney fees can be astronomical compared to the small amount of deposit money recovered.

A trap for the unwary

If the litigation risk wasn’t enough, the automatic security deposit forfeiture is a trap for the unwary landlord. The legally unsophisticated landlord or the attorney inexperienced in landlord/tenant law may draft an automatic forfeiture clause that inadvertently limits the landlord to the security deposit as the only damages amount.

The rules of lease interpretation provide that ambiguities are decided against the lease drafter. Landlords commonly include lease provisions providing for other damages (rent until relet, cleaning charges, use beyond ordinary wear and tear) or for damages as provided under Florida law. These provisions are in addition to the automatic security deposit forfeiture for breach of the lease. Poorly drafted lease language can result in the court holding that the damages clauses are confusing, ambiguous or even contradictory. The security deposit forfeiture can become the landlord’s exclusive remedy, in spite of actual damages exceeding the security deposit amount.

The exception

As I indicated above there are exceptions to the rule. Security deposit forfeiture clauses may be found valid when used as the damages for the failure to give notice at the end of the lease. This is treated in other articles. They are valid as part of well drafted vacate agreements.

Having read this article I hope landlords will see that the automatic security deposit forfeiture for breach of the lease is a risky method to collect a deposit. If the tenant’s breach results in damages in excess of the security deposit, then the landlord should forego even mentioning any automatic forfeiture and apply the damages to the deposit. If they are less than the deposit, then the landlord should contemplate his explanation to a judge for keeping the “unearned” money, while the tenant’s attorney smiles at his easy attorney fees.

 

“Serving the Property Management Professional”

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

Everybody knows about security deposits, right? You’ve been handling them for so long, you could do them in your sleep. Nothing new to learn. Yikes – Sounds like a situation ripe for a crisis. Although you learned the basics when you started your career, bad habits may have crept into your repertoire.

Security deposits are handled by every property manager. The basics are learned when one starts in the business and then, for the most part, forgotten as habits become learned. Complacency is dangerous, for some of the procedures that become ingrained are simply wrong. Here are a few “bad notions” to be corrected.

“We Don’t Send a Claim if the Resident Was Evicted.”

An eviction does not mean the resident automatically forfeits her security deposit. Even though a resident was evicted, she is entitled to receive the claim you are making against her deposit.

Every time a resident vacates, a claim on the security deposit should be sent. This is true whether the resident vacates under a writ of possession or surrenders keys four months before the lease expires.

It is common that a resident who was evicted “used up” all of the security deposit. Typically, the resident owes more than the amount of the security deposit. Nonetheless, a claim must be made on the deposit.

“We use the deposit for repairs during the tenancy if the tenant caused damages.”

The deposit can only be disbursed or used after the tenant has vacated and the claims process has been followed. Never can the manager use part of the deposit to do repairs during the tenancy. Never can the manager start cutting checks from the deposit before the claims process has run its course.

The only exception is if both the landlord and the tenant sign an agreement for the deposit to be used in this manner. Even if the parties are willing to sign such an agreement, the landlord needs to consider whether this is a wise move. Certainly, it allows for a “band-aid” fix to an immediate problem, but it also depletes the reserve for other crises that may arise down the line.

“We give the deposit to the owner if he asks to hold it in his own account.”

Florida law requires that all security deposits and advance rent shall be held in a Florida banking institution and that the funds not be commingled with other funds. Let’s break that down.

The account must be in a bank that is chartered to do business in Florida. Most, but not all, banks that are physically located within the state fit into this category. [Not sure about your bank? Ask them if they are chartered in Florida. They easily know the answer.] If an out-of-state owner wants to hold the deposit in his own account, it needs to meet this criteria. It is not sufficient for the owner to place the deposit in a national bank located in his home state which has branches in Florida.

The deposit and advance rent must be kept separate from other funds. Property managers know this means the deposit cannot be placed in the operating account. Owners are less likely to understand the issue. If an owner is holding a deposit, it must be in an account that is set up for the purpose of holding the deposit. It cannot be mixed in with the owner’s other funds in a checking or saving account.

We send a Statement of Account and do not use any special form.

By law, you must send the Notice of Intention to Impose Claim on the deposit which is similar to what Florida Statutes priovides.

This wording is crucial and must be on the form: This is a notice of the Landlord's intention to impose a claim for damages upon your security deposit.  It is sent to you as required by section 83.49(3), Florida Statutes.  You are hereby notified that you must object in writing to this deduction from your security deposit within fifteen (15) days from the time you receive this notice or the Landlord will be authorized to deduct its claim from your security deposit.  Your objection must be sent to the Landlord at the address shown below.

We do not disburse the deposit until both landlord and tenant agree about how it is to be used.”

This would be nice to do, but it is not always practical, and it is not required by the law. Rather, Florida law requires a property manager to follow the claims process as well as honor the obligations to the property owner who is her client.

Florida law requires that a landlord return the security deposit within 15 days after the tenant vacates the premises OR that the landlord make a claim against the deposit by sending the written claim by certified mail within 30 days after the tenant vacates the premises. Once a claim is made, a tenant has 15 days to write his objection.

If the property manager receives an objection from the tenant, the property manager must give it consideration. She does not have to accept the objection as the final word on the matter. If the property manager and the owner feel the tenant’s objection is without merit, then the property manager may disburse the deposit according to the directions of the owner (which should be consistent with the claim that was made). Such a discretionary disbursement is proper under the law, provided the owner’s directions are not unlawful. However, the agent’s thankless job of exercising discretion may still carry some risk, even though the deposit would ultimately be allocated between the owner and the tenant in litigation.

“We don’t send a claim if the resident told us to keep the security deposit.” Sometimes a resident will orally tell the manager to keep the deposit. “Use it for what I owe you.” No matter how much you trust the resident’s word, send the claim on the security deposit.

Every time a resident vacates, a claim on the security deposit should be sent. Even if the resident consents to the manager keeping the deposit, the resident is still entitled to receive a claim on the deposit.

Oral directions are only as good as the paper they are written on. They give no protection to the manager.

In addition, if there is more than one resident on the lease, getting the “go ahead” from one resident simply cannot waive the rights of the other residents. Send the claim to all the residents on the lease.

“We Don’t Send a Claim if the Resident Didn’t Give Us a Forwarding Address.”

The statute requires the manager to send a claim on the deposit no later than 30 days after the resident has vacated. The statute also says, in a situation where the resident vacates the premises early, the claim only has to be sent if the resident gave the manager a forwarding address seven days before the resident vacated. Sounds like a great loophole. It’s not. It should never be relied upon.

Every time a resident vacates, a claim on the security deposit should be sent. It should be sent to the last known address, even if that is the unit he just vacated.

The problem with the “loophole” is it contains its own loopholes, making it very difficult for folks (including judges!) to figure out. It is far better to spend the money for the mailing, than to risk being forced to return the security deposit.

 

“Serving the Property Management Professional”

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

Managers and leasing teams invest their time and effort in guiding an applicant through the application process. They may even turn other applicants away or hold the rental for him. After a successful application process (completed application, credit check, criminal background) the applicant informs you that he won’t be renting. He wants his application deposit back. Under what circumstances can you keep it?

Any actual damages?

At the outset please note we advise that the application deposit be returned unless the landlord can show actual damages, that is a financial loss, such as holding the unit while turning away other qualified applicants. An apartment community with an inventory of similar apartments may have difficulty showing this type of financial loss. A residential property manager with distinct single family homes would be more likely to have a held-off-the-market loss of rent.

Penalties and forfeitures are disfavored.

Our analysis begins with the recognition that Florida law in general does not look favorably upon contract penalties or forfeitures. Penalties and forfeitures are not enforceable in numerous areas of Florida law, either by express statutory prohibition or by judicial interpretation relying on such concepts as unconscionable provisions.

The documents.

With that caution in mind we turn to an examination of the application and any other documents relied upon for the right to retain the deposit. The wording both to avoid the forfeiture and to authorize forfeiture must be clear and unambiguous: the grace period, the time and method of the landlord’s application acceptance, the time and method of the applicant’s cancellation, the amount of forfeiture, etc. The burden of proof will be on the landlord. Not only will the lack of strict compliance, but also the inability to prove strict compliance, with the terms of the forfeiture be fatal. If the amount to be retained on the application form is left blank, or other sections of the application addressing deposit forfeiture are left blank, this is often a fatal error.

The oral contradiction.

Even a clearly written, unambiguous document can be contradicted by the oral misrepresentations of the landlord’s representatives. The applicant will often state that the leasing staff assured him that his application deposit would be returned without mentioning any conditions. A good counter to this claim is a leasing checklist, checked-off and signed by the leasing agent, which includes the disclosure of the application deposit policy. A separate applicant signature line or initial space is often placed next to the forfeiture language for emphasis.

Is there an agreement to lease?

Has the applicant, who has not reviewed the leasing documents before signing the application, entered into any agreement to rent, regardless of a signed deposit forfeiture? The point of the transaction is the rental of a unit. A rental is not accomplished when the application is accepted, but only when the applicant signs the lease. An accepted applicant who in good faith rejects certain lease provisions or any other leasing document provisions (community rules and regulations) has never agreed to rent, but only agreed to enter into negotiations to rent. Rather it is the landlord who by refusing to negotiate the lease terms is refusing to rent. The application deposit should be returned.

Is the application deposit a security deposit?

Is the application deposit a security deposit under the Chapter 83, The Florida Residential Landlord Tenant Act? Neither the statutes themselves nor the case law answers this question directly. We can postulate that at the application stage we don’t have a rental agreement yet. Without a rental agreement, we don’t have a landlord/tenant relationship. Without a landlord/tenant relationship, Chapter 83 doesn’t apply. Further, FS 83.43(7) defines a rental agreement as providing for the use and occupancy of premises. FS 83.49 addresses money deposited on a rental agreement. A good argument can be made that with no lease agreement, the deposit is not subject to the bank deposit and notice of claim requirements of FS 83.49.

Florida Real Estate Commission rules

For residential property managers there is one more consideration, the Florida Real Estate Commission, FREC has not taken a clear position on whether section FS 83.49 applies. To be on the safe side, assume it does, and if you are going to keep the deposit, follow the normal claim upon the security deposit as outlined in FS 83.49, even though it may not in fact be a security deposit.

The risk of litigation.

As you can see from this article the pitfalls in keeping an application deposit are many. For this reason we advise our clients that the application deposit should be returned unless the client can show actual monetary loss. The time, effort and expense to defend a small claims case will outweigh any income derived from tenuous application deposit forfeiture, not to mention the potential for a class action claim.

 

“Serving the Property Management Professional”

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

All security deposits and advanced rents are governed by Florida Statute Section 83.49.  The statute obligates the landlord to inform the tenant of particular information whenever a security deposit or advance rent is held.

When disclosures must be made.

No later than 30 days after a landlord receives advance rent or a security deposit, the landlord must make the disclosures to the tenant.  The notification must be in writing and given in person or mailed to the tenant.

Many times, the disclosure is in the lease itself.  This is the best way to present the information, because later, there can be no dispute that the disclosure was made. 

What must be disclosed.

The landlord must disclose where and how the security deposit and advance rent is being held.  The disclosure must tell the tenant the rate of interest, if any, the tenant is to receive and when the interest payments are to be paid to the tenant.

The written disclosure must show:

-- The name and address of the depository where the advance rent or security deposit is being held;

It is best to use the whole street address of the bank, not just the name of the City. However, the complete name of the bank and the name of the City is likely to be considered adequate.

-- Whether the advance rent or security deposit is being held in a separate account for the benefit of the tenant or is commingled with other funds of the landlord;

It does NOT mean that it is ok to commingle the funds.

-- Whether the funds are deposited in an interest-bearing or non-interest bearing account.
If the account is interest-bearing, the disclosure must state when the interest payments will be made to the tenant.

-- Include a copy of the provisions of Florida Statute 83.49 (3).

Subsequent disclosures.

After the landlord makes the initial disclosures, circumstances can change – a bank closes, a new owner takes over, etc.  If the landlord changes the manner or location in which the funds are being held, the landlord must notify the tenant, in writing, within 30 days of the change.

Consequences of non-disclosure.

Unlike other portions of the security deposit statute, there is no clearly defined “penalty” to be applied to a landlord who fails to make the disclosures.  Thus, a tenant who sues a landlord for failing to make the required disclosures must prove that the non-disclosure resulted in losses suffered by the tenant.

For licensed real estate professionals, the failure to make the disclosures can be a violation of FREC rules. 

Even if there is no lawsuit or FREC complaint, the failure to disclose marks a very sloppy lease-up procedure.  It tends to cast the landlord in a very poor light, which can be problematic if the landlord has to defend himself before a judge. 

 

“Serving the Property Management Professional”

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

A hundred years ago, a landlord had few obligations in how he handled the security deposit. There was no statute telling him to keep it separate from his other funds. There was no obligation to make a “claim” on the deposit. He did not have to tell the tenant where the deposit was being held. That was then, this is now.

What does the statute cover?

All security deposits are governed by Florida Statute Section 83.49. The statute defines a security deposit as all funds that are “deposited or advanced by a tenant on a rental agreement as security for performance of the rental agreement or as advance rent for other than the next immediate rental period.” That means that any money held for some future event, like future rent coming due or repairing damages after the tenant moves out, is covered by the statute.

Three ways to hold the funds.

The landlord is obligated to hold the security deposit and advance rent in one of three ways.

The first option is to hold it in a separate non-interest-bearing account in a Florida banking institution. The landlord cannot commingle the money with any other funds of his or otherwise make use of the funds, until the funds are actually due the landlord.

The second option is to hold the security deposit in a separate interest-bearing account in a Florida banking institution. If this option is used, the tenant is entitled to receive interest. The amount of interest shall either be 75 percent of the annualized average interest rate payable on the account OR 5 percent per year, simple interest. The landlord chooses. As with the first option, the landlord cannot commingle the money with any other funds of his or otherwise make use of the funds, until the funds are actually due the landlord.

The third option is to post a surety bond. The bond must be in an amount equal to the total amount of the security deposits and advance rent or $50,000, whichever is less. This option is so rarely used that this article will skip the remaining details.

Keeping the deposit in a Florida bank.

Any security deposit account, whether interest bearing or not, MUST be kept in a Florida bank.

The account must be in a bank that is chartered to do business in Florida. Most, but not all, banks that are physically located within the state fit into this category. [Not sure about your bank? Ask them if they are chartered in Florida. They easily know the answer.] If an out-of-state owner wants to hold the deposit in his own account, it needs to meet this criteria. It is not sufficient for the owner to place the deposit in a national bank located in his home state which has branches in Florida.

Keeping deposit funds separate.

The deposit and advance rent must be kept separate from other funds.

If an agent collects the funds on behalf of the landlord, the agent should either deposit them into the escrow account that is set up in the agent’s office, OR send the funds to the Florida bank account that the landlord has set up. It is not proper to send them directly to the landlord.

If an owner is holding a deposit, it must be in an account that is set up for the purpose of holding the deposit. It cannot be mixed in with the owner’s other funds in a checking or saving account.

 

“Serving the Property Management Professional”

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

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.