DEALING WITH THE GAS GRILL

Each year thousands of explosions and accidental fires occur due to the use and misuse of gas grills, resulting in of thousands of injuries, millions of dollars in property damage and approximately 20 deaths. Gas grills are dangerous and are usually prohibited in multi-family housing and condominiums, either due to company policy or fire code.  

The Mechanics of the Gas Grill Danger

1. Failure to use proper ventilation. Many residents fail to realize that gas grills emit carbon monoxide, an odorless gas which can kill. Resident sometimes will use a gas grill in an enclosed patio due to inclement weather or actually use a gas grill completely inside the premises.

 

2. Explosion of gas when during ignition. Most gas grill users at one time or another turned on the gas, had trouble lighting the grill, had the grill top down and experienced the mini-startling explosion when the grill finally lit. Usually the result is embarrassment and some singed hair. This explosion can be far greater if the grill user forgets the gas is still on and running and a significant delay occurs between turning on the valve and eventual ignition. A larger explosion can injure a user or cause fire to flammable materials which may be near the grill.

 

3. Venting. Propane tanks have a pressure relief valve which allows the propane to vent in the event the pressure inside the tank exceeds a manufacturers pre-set PSI (pounds per square inch). This is a safety mechanism to prevent the entire tank from rupturing in the event the pressure becomes too high. Pressure in a tank can become too high if the temperature around the tank is high, such as when the tank is sitting in the trunk of a vehicle, in the sun or in a very hot car. Propane has a chemical additive called ethyl mercaptan which is use to give the propane a distinct odor, but often this odor dissipates or is not detected by a user. The propane can be steadily venting, and a simple spark or lit cigarette can spell disaster.

 

4. Defective valves and hoses Any long time user of a gas grill will experience the gas grill falling apart in time. The first thing to go is the igniter, the burner on the side goes shortly thereafter, and with time, the hoses can deteriorate. Leaks can and do occur, and a build up of undetected propane can result in a major explosion and often a resulting fire.

So, Do You Really Want That Grill on the Rental Property?

A resident has no inherent right to use a gas grill on or near the premises, and the lease can simply prohibit its use.

Sample Clause

“No gas (propane or any other flammable gas or liquid) grill or tank or tanks containing any flammable gas or liquid shall be used or stored on or rental premises. The premises for the purpose of this section includes the interior of the premises, the exterior, any common areas, balconies, hallways, lanais, storage areas or garages.”

Dealing With the Resident Noncompliance

Some residents believe rules governing grills are meant to be broken. The manager needs to take swift, firm action against the resident to get compliance. Failure to take action will increase the manager’s liability and may result in a violation of the state or local fire codes. A prohibited gas grill is a violation of a curable nature. The resident needs to be served a “Seven Day Notice of Noncompliance With Opportunity to Cure. This gives the resident seven full days to remove the grill. Failure by the resident to remove the grill is a continuing noncompliance, and the manager then needs to document the presence of the grill after the seven day cure period has expired by way of photos, videos and witnesses. The manager should also consult with an attorney, who will probably recommend that the resident be served a Seven Day Notice of Noncompliance, Notice of Termination. Failure to vacate the premises will then result in an eviction action.

Suppose Rent is Due While the Resident Has the Grill and is Noncompliance?

Our office recommends that you do not accept rent from the resident if the resident is in noncompliance. Accepting rent is tantamount to giving the resident a green light for the month in which rent was accepted and can cause your notice to be voided out.

Self-Help Grill Removal

Our office never recommends that the manager conducts self-help by removing a resident’s personal property, and this could include a gas grill. The resident could accuse the manager of civil theft or even criminal theft. But, what if the Fire Marshall is demanding that the grill is removed and is ready to fine the manager or the manager is aware that the resident has the grill inside the rental unit? Possibly it will be permissible for the manager to remove the grill or at least the propane tank in such emergency circumstances, BUT we advise that you give your attorney a call before taking any self-help measures. 

 

DAYCARE AND BABYSITTING SERVICES

Most managers prohibit a resident from conducting business in the residential unit. In most cases the lease clearly states or should state that the premises are to be used only for residential purposes, and that commercial activity is prohibited. It is usually clear when commercial activity begins to occur in a residential unit, as customers will be showing up, traffic in and out of the unit will increase, and the resident may be so bold as to advertise his or her services or products using the address of the residential unit. What about babysitting? Is this a commercial activity? While many people love children, it is doubtful that an individual will voluntarily take on the responsibility of watching another person’s child or children on a regular basis for no compensation.

Babysitting and Daycare Services

In both apartment communities, babysitting and daycare services are being conducted for compensation. It starts out with one child, and then the babysitter begins to realize that more money can be made by watching more children, and soon you have a unit full of children with their parents or guardians dropping the child off and picking the child up. Money is exchanged, and often this is “under the table” or cash. Seems harmless enough right? Wrong. What is occurring here is a commercial activity on a residential property. This is a lease violation and may or may not be a violation of law.

Legal Daycare Services in a Residential Home

Many counties and municipalities actually allow small scale day care services to operate legally and with a permit in a completely residential area. In response to the need for affordable child care or child watching, these activities are in many cases permitted with some limits, but often without many regulations. Do you want to allow a resident to conduct a babysitting or daycare service in the apartment? ABSOLUTELY NOT.

The Liability

Massive liability to both the caregiver and the owner of the premises can be created in the care of children. Now you may wonder why a daycare center would ever operate at all. Simple. Insurance. A legitimate daycare or babysitting service will have liability insurance to cover just about anything that could occur that may cause the injury or death of the child. Not only will the business be carrying insurance, but the property owner, if separate from the business owner, will also be carrying insurance, and the insurance company will be put on notice as to what type of business is being conducted on the premises. Everything is disclosed, proper permits and licensing are in place, and the insurance is tailored to the activity which is being conducted on the premises.

The “No Insurance” Problem

In many cases of babysitting or small scale daycare services, these activities are occurring in the residential unit with no license, no permission from the manager and NO INSURANCE. The property owner may have the normal liability insurance coverage, but you can rest assured that this insurance does NOT cover a business being conducted on the premises, and in the event there is a claim, the insurance company will fight all the way to prove that they did not cover commercial activity on the residential premises.

What “Bad” Things Can Happen?

We have seen cases in which children have nearly drowned in the pool of the babysitter’s home, been molested by a boyfriend of the babysitting resident, overdosed on medicines the child found in the babysitter’s medicine cabinet, and most recently a situation in which a child climbed on a table near a window and fell three stories to the ground below. As you can see, the potential dangers are limitless. Is the manager liable? Possibly, especially if the manager had knowledge that the babysitting was occurring on the premises.

Did the Manager Have Knowledge That Babysitting Was Occurring?

Whether or not the manager had knowledge that babysitting was occurring on the premises can be a crucial factor in whether the manager can be held liable for the injury or death suffered by a child, or whether the insurance carrier will in fact cover a potential claim. Some of our clients actually have knowledge that babysitting is occurring on the premises, because they have personally observed it, and some have even encouraged it! Recently while giving an in-house legal class, we observed a number of notices on the community bulletin board in the clubhouse where residents were advertising their services for babysitting on the premises. This knowledge by the manager and the failure to act swiftly to stop the activity can result in serious liability to the manager.

You Discover Babysitting, Now What?

If a manager is made aware that babysitting and or daycare type activities are occurring on the premises, the resident needs to be immediately served with a Seven Day Notice of Noncompliance With Opportunity to Cure, which your attorney will assist in drawing up for you. Follow-up is crucial, and it needs to be determined if the activity has stopped or is still occurring. There is nothing wrong with observing the premises and asking a parent if in fact the resident is babysitting their child. If you observe children and parents coming and going on a regular basis, it can be safely assumed that babysitting and or daycare is occurring. This assumption will not be enough for termination and eviction, so we recommend that you document the unit carefully, and if necessary, take video surveillance of the entrance to the premises. If you feel that the authorities need to be notified that an illegal daycare or babysitting service is occurring, reporting and follow-up is crucial.

Fair Housing Considerations

You must have a written policy regarding babysitting and a strong clause in your lease prohibiting such activity, but you do not want to be accused of familial status discrimination. We recommend that you post a sign in the common area clearly stating that no commercial activity is permitted on the premises, and that this includes running a daycare or babysitting service. Monitor the community bulletin board regularly, as this is where advertisements for babysitting frequently occur. A resident could say that you are preventing their child from having friends come over to play, or that you are trying to only have residents who have no children. You will need to counter such accusations by clear proof that the resident was actively engaged in babysitting on the premises, and better yet, be able to prove that the resident was receiving compensation for doing so.

You suspect your resident is engaged in babysitting or running a daycare service? Call your attorney as soon as possible.

 

 

 

DANGERS OF THE TIPPING STOVE

Each year thousands of children are injured due to stoves and other heavy items capable of tilting or falling, such as wall units, bookshelves and entertainment centers. Huge lawsuits have been filed, resulting in large judgments against both property owners and manufacturers of these items. Could a owner or property manager be liable for injuries caused in these situations? Quite possibly. It is crucial that part of the safety evaluation a manager makes of the rental unit includes checking for items which may tip or fall over if misused.

The Tipping Stove

The tipping stove has the potential for causing serious injury due to the secondary injury caused by the child being doused with a hot substance which may be cooking on the stove and subsequently spills or the child can be trapped by the fallen stove and exposed to the hot element. As appliances get lighter each year, the danger increases. Commonly, a child will open the oven door, climb up onto the door and cause the stove to partially or completely tip over. Since gas stoves generally are attached by a rigid or semi rigid pipe, they are less apt to tip. The problem is more prone to occur with electric stoves, and in Florida, electric stoves are predominantly in use.

Who is Liable?

While it is clearly an improper use of the stove for a child to intentionally climb up onto the open oven door, it is possible that a jury may find that if there was a way that a stove could be prevented from tipping, this may place a duty on the owner of the stove, i.e., the manager, to prevent the stove from being able to tip. In many cases we see juries rule against a manager if it can be proven that had the manager done something as simple as installing a light fixture in a darkened area of the property or installing a non-slip surface in an area that often gets wet and slippery, a severe injury to the resident could have been prevented. Here the manager is being held liable for something that the law did not actually require, but had additional, preventative measures been taken, the resident’s injury may have been averted. This is the same principle and legal theory which can create liability on the part of the manager for a tipping stove injury.

The Law

Florida law does not require that the manager take any preventative measures to insure that a stove does not tip over when misused by a child. Nothing in the Landlord/Tenant Act specifically addresses the issue. However, the manager is required to keep the premises in a safe condition, and there may be an implied warranty of habitability imposed upon the manager.

The Tipping Stove Solution

It is simple and inexpensive to anchor a stove to the floor with a u-bolt or other anchoring device and/or attach a strap to the back of the stove securing the stove to a solid and sturdy section of the wall. It is crucial that the strap is secured solidly to either a wall beam or a large molly bolt or wall anchor is used. The cost is minimal, no license is necessary to undertake such a precautionary measure, and you or your maintenance person should be able to handle such a job. Just because many new stoves now come with anchoring mechanisms, you should assume that an installer may not have actually installed it properly or installed it at all.

The Tipping Wall Unit or Entertainment Center

If the manager is renting out a furnished unit, and book cases, wall units, entertainment centers or other items exist that are free standing, the manager could be held liable for injuries sustained due to the tipping over of these items. Again, these items should be anchored properly to prevent injuries from occurring. You may feel that it is absurd that you could be held liable for the obvious gross negligence of a resident or the resident’s child, but a jury could feel otherwise. If the bookcase or entertainment center belongs to the resident, the potential liability on the part of the manager would be decreased dramatically, but in a furnished unit, extreme care must be taken.

Our Recommendations

We recommend that all managers as part of their safety evaluation of the property go through each and every room to determine if there is anything on the premises and belonging to the manager that could potentially tip over in the case of misuse. If any items are discovered, these should be secured to the floor or wall immediately. Do not neglect to check the garage or storage areas, as often these area contain shelves or cabinets that can tip.

 

 

DANGERS OF PREPAID RENT     

Collecting rent has been the biggest and most basic challenge of managers since the first cave was rented out in 1300 BC. Typically, residents are required to pay rent on a specific day of the month, the 1st being the most common day of payment. Situations arise in which residents are desirous of paying rent in advance, and most managers do not perceive this as a problem, but rather see it as a plus. Many reasons abound for a resident’s prepayment of rent. The resident may be going on an extended vacation or job assignment, may have come into a substantial sum of money, or simply doesn’t want to be bothered with making monthly payments and is willing to pay the entire term of the lease, possibly in exchange for a more favorable rent amount. In a perfect world, accepting prepaid or advance rent would be an advantage, but there are many dangers and pitfalls which should be considered before the decision is made to accept prepaid rent. Additionally, there are legal considerations which govern how the prepaid rent is held and disbursed.

The Law and Prepaid Rent

Florida Statutes require that advance rent be kept in the same account in which the security deposit is held. If interest is to be earned, Florida Law must be followed regarding the payment of this interest and notifications to the resident. The money can be removed from this account for use by the manager only as it becomes due. This would prohibit a manager from accepting prepaid rent from the resident and immediately utilizing it for the manager’s general purposes if it has not in fact become due. In a typical lease, the term is for a year, and the payments are made monthly. This means that the manager is only entitled to the rent when the due date arrives.

The Lease and prepaid rent

However, there is a way that a manager can legally take all or part of prepaid rent and utilize it at any time and for any purpose, but the lease must be drawn up differently. Instead of having a lease for a year, payable with monthly rental payments, the lease is for a set term, and the resident is required to pay rent for the entire term. be it 3 months, 6 months or even the entire year. In this case, the lease is not a typical monthly lease, but simply a lease for a fixed term, and the lease states the amount of rent due for that term. Most leases are not structured this way, but this is a possibility and an available option to the manager and resident.

Prepaid Rent and a Resident’s Unwarranted Breach

If the manager is holding prepaid rent, and the resident breaches the lease by vacating prior to the expiration date of the lease, the manager will be able to tap into that prepaid rent that is or should be held in the security deposit account only when it becomes due. Acceleration of rent is not looked upon favorably by the courts in Florida, so the manager would need to wait each month to be able to actually utilize the prepaid rent. The law is not entirely clear regarding any duty by the manager to try to rerent the unit to mitigate their damages, because presumably, there are no damages if the manager is holding the rent. In the situation in which the resident breaches the lease with no legal basis whatsoever, having prepaid rent will definitely be advantageous to the manager.

Suppose the Resident Has a Warranted Breach?

Many residents who breach a lease by vacating prior to the expiration date have or will fabricate a legal reason why they are breaking the lease. Reasons may include a failure by the manager to provide peaceful quiet enjoyment of the premises to the resident, defects in the property, failure on the part of the manager to make a legally required repair, or a host of other reasons which seem to come out of left field and astound the manager when the breach occurs and the resident is demanding a refund of the prepaid rent. That perfectly nice resident, when faced with having to break a lease for a job transfer or divorce, will come up with novel or bizarre reasons why breaking the lease was completely warranted and legal under Florida law. It is bad enough that resident can completely fabricate reasons why he will break a lease when there is no prepaid rent in the picture, and this only gets worse and more common if in fact the resident has more at stake. Possibly the resident’s breach is completely warranted. Let’s say the resident just moved into an apartment. Two months after move-in, contractors begin replacing or repairing the concrete balconies. This resident, who coincidentally has a night job and sleeps during the day, now is faced with listening to jackhammers and construction crews all day long. Can this person break the lease? While the construction noise may not be the fault of the condo owner, it is clear that the resident’s peaceful quiet enjoyment of the premises is interfered with significantly. If there were no prepaid rent, the resident most likely would simply give notice and walk out of the lease, and the manager would have a difficult time enforcing the remaining balance of the lease, as this would probably be considered a good reason to break a lease by most judges. If there is prepaid rent, many managers will insist on keeping the rent, and many residents will insist on getting it back. The result? Litigation. In the event of litigation, the manager will be faced with trying to convince a judge that the resident’s breach was improper, illegal and unwarranted. The resident will have an entirely different story, and if there are attorneys involved in the case, it will often become a bad situation.

Is the Manager “Used” to Accepting Prepaid Rent?

Most managers are not accustomed to accepting prepaid rent. They are more accustomed to chasing after current or past rent owed! This increases the risk that the prepaid rent is mis-posted in the computer system that the manager uses for managing the property. Recently a client accidentally failed to post the rent prepaid by a resident. The computer system incorrectly showed that the rent was delinquent, the resident was evicted, and all his possessions were removed to the street. The resident returned a month later, only to find that all his possession were gone and that he had been evicted. The result? Most likely a lawsuit will be filed. If a manager is not accustomed to accepting prepaid rent, the danger increases dramatically.

The Conclusion

Are you convinced yet? Often things that appear good turn out to be fraught with dangers. We urge you to think long and hard before you deviate from the standard and time tested way of charging and accepting rent monthly.

CREDIT REPORTS AND DISMISSALS

In the “Public Records” section of your typical credit report, you will see things like evictions, foreclosures, suits for money and bankruptcy filings. Most application processing companies obtain and compile this data to allow the manager to make a more informed decision on whether or not they will rent to the applicant. Often you will see that an eviction was filed on the applicant, and the disposition was “Voluntary Dismissal” or “Dismissed”. Does this mean that the resident was not evicted or that everything was amicably resolved? Don’t be so sure.

The “Dismissal”

Not all residents who have evictions filed against them are actually “evicted” by the Sheriff. A number of things can happen. The resident may vacate the premises voluntarily shortly after the eviction is filed. The resident may pay all the money owed, and the manager requests that the eviction be stopped. The resident may enter into a Stipulation with the manager, under which payment arrangements are made, and the resident successfully stays and pays pursuant to the settlement terms. In all these scenarios, the eviction filing will show up in the public record and will be in this public record for many years. Eventually, the eviction matter is “dismissed” and is recorded as such. There are two main ways an eviction is dismissed. It will either be by the manager’s attorney filing a “Voluntary Dismissal”, or the court entering a “Dismissal for Failure to Prosecute”. In both cases, the public record will show the case as being dismissed, BUT it does not always mean that things were worked out or that the resident paid the rent. Usually, it is quite the opposite and simply means the resident vacated and the eviction was not processed further.

The Voluntary Dismissal

When a resident vacates, the attorney may file a “Voluntary Dismissal”. This means that the case is no longer being prosecuted, as no further action is necessary on the file. The manager got what they wanted, which is possession of the premises. In the situation where a Stipulation is entered into by the parties, the Stipulation may provide that the case will be voluntarily dismissed upon the resident making the payments as planned. Unfortunately, the manager, when looking at a “Voluntary Dismissal”, usually has no way of knowing why the case was dismissed. Without further information, the best assumption a manager can make is that the eviction was filed and that the resident vacated.

Many evictions are filed as Two-Count Complaints. Under the first count the manager is asking for possession, and under the second count the manager is suing for money damages. In order to get a judgment for money damages in Count Two, the resident will have had to be served personally with the eviction action or will have filed an answer to the complaint. Often, neither of these two contingencies occur, and at the end of the eviction or some time after the eviction is over, the attorney will file the Voluntary Dismissal with the court to close the case out. There may even have been a Final Judgment for Eviction somewhere in the public records, but the final action showing up may be that “Voluntary Dismissal as to Count Two”

The Dismissal for Failure to Prosecute

If an eviction is filed, the resident vacates and the attorney takes no further action, the Clerk of Court’s office will eventually send out a notice to the attorney and the resident stating that the case will soon be dismissed by the court on its own, if the attorney for the manager or the resident does not pursue the case any further. This could be six months after the case has been filed, or even more than a year. The attorney will either then file a Voluntary Dismissal closing out the case or do nothing, and the Court will go ahead and dismiss the case. If a Two-Count complaint has been filed and no personal service has been affected on the resident, the Court will know that the case is probably not going to proceed any further and will want the case dismissed. This dismissal by the court happens to tens of thousands of cases each year. The Court does not want to keep files unnecessarily open and will purge them from their active case system. When the manager looks at the public record results, it will show as a “Dismissal”.

What Should the Manager Do When the Record Shows “Dismissed”?

There is a high probability that the applicant had an eviction filed against him or her by a prior manager and just vacated. It is imperative that if any eviction filing shows up on the public record, the manager looks into the matter deeply to find out exactly what happened during the eviction. Did the resident pay and stay? Did the resident vacate? Did the resident get fully evicted? These are all questions that can be answered by looking at the Court file further and contacting the prior manager. Most counties are now online on the internet, and a lot of information will be available to the manager by simply going to the website of the Clerk of Court where the resident had the eviction filing and examining the docket.

 

COURT REQUIRED WHEN NO MONEY IN THE COURT REGISTRY

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

Law regarding Court Registry Deposits

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

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

Purpose of the Law

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

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

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

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

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

The Law Versus Reality

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

Your Attorney’s Role

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

The Manager’s Role

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

 

COURT ETIQUETTE AND PROCEDURES

 

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

 

Who Must Go To Court

 

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

 

Arriving To Court

 

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

 

What To Bring and NOT To Bring

 

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

 

What to Wear

 

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

 

Preparation

 

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

 

Addressing the Court

 

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

 

Behavior During the Proceeding

 

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

 

Cell Phones

 

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

 

Testifying

 

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

 

Cross-Examination

 

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

 

Post-Ruling Behavior

 

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

 

Failing to Show Up For Court

 

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

 

Communication

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

 

 

CORPORATIONS AS RESIDENTS

 

While we strongly recommend against having corporations as residents in residential leases, sometimes it is necessary and often actually works out fine. How the lease is executed with the corporation becomes a big problem, and rarely do we see leases with corporations executed correctly. The name of the corporation, who signs, the personal guarantee and how it is signed will determine if you will potentially have a successful lease or major problems later. This article will not address the dangers of the corporate resident, but will rather show you how to enter into a lease with the corporate resident in the proper legal fashion.

 

The “Corporation Only” as a Resident

 

There will be times when the resident will be the corporation. Granted, a human being will be the occupant in the residential property, but the lease named resident will be a corporation and nothing more. This means that the corporation as resident is responsible for paying the rent, is bound to the lease and incurs all the obligations and benefits as a leaseholder. If the leaseholder corporation is in default of the lease, the manager’s only recourse will be to sue the corporation as the resident, and the manager will be bound by all the legal requirements and procedures necessary to sue a corporation. No individual person is responsible for payment of the rent or liable for failure to pay the rent.

 

Why Would a Lease Only Be in the Corporate Resident’s Name?

 

In the case of a medium to large corporation, no one is going to personally sign or guarantee a corporate lease in most situations. Usually the corporation is placing employees, officers or directors in the rental unit. The manager deals directly with the employee, officer or director of the corporation. Neither the occupant nor the corporation, officers, employees of directors will have any individual being liable under the lease. The corporation is the only liable party.

 

Who Is the Corporation?

 

Before you can even think of entering into a lease with a corporation, it is crucial to know the exact legal entity’s name as it is registered with the Florida Secretary of State or the state in which it is incorporated. “Joe’s Painting Company” is not the proper corporate name, if in fact the corporate name filed with the Secretary of State indicates, “Joe’s Painting and Contracting, Incorporated”. We see a massive amount of sloppiness in how the name appears on the lease. We recommend you always get a printout from the internet, and even possibly get a copy of the Articles of Incorporation. While you may not think this is important, when it comes time for the corporation to break a lease, skip out on you or get evicted, this sloppiness can really cause serious complications. Never assume that the name of the corporation that is being provided to you is in fact the exact legal name of the corporation. Always investigate and confirm.

 

How Is the Pure Corporate Resident Lease Drafted?

 

The corporate resident should be on the lease exactly as it appears in the Secretary of State records. The lease should clearly state who the occupants will be, and if you routinely do criminal background checks on your residents, failing to do criminal background checks on the occupants could be a Fair Housing violation. Years ago, a client found out that one of the occupants in a unit rented under a corporate name was in fact a registered sexual offender. Since the occupant never filled out an application and the manager never did a criminal background check, the occupant could not be evicted.

 

How Does the Pure Corporate Resident Sign?

 

In the signature section of the lease, the corporate name needs to be listed as the resident along with the name of the person signing the lease on behalf of the corporation.

 

Example: XYZ Engineering and Surveying, Inc., by John Smith, President.

 

Is John Smith now liable at all if the corporation fails to pay the rent or gets evicted? No. John Smith is simply signing as his authorized capacity as president of the corporation.

 

Who is Authorized to Sign on Behalf of the Corporation?

 

This is not an easy question to answer. Someone may have apparent authority, but due to the bylaws of the corporation, only certain people or persons can actually bind the corporation. Your attorney can help you investigate this. Never assume that the person signing the lease is in fact authorized. You will sadly find out that he was not authorized to sign when the corporation is trying to get out of the lease, and the corporation’s attorneys can prove that this person had no actual authority.

 

The Corporate Resident and the Person With Individual Liability

 

Unless you are dealing with a solid corporation with a proven track record and know for sure that the person signing the lease has the absolute authority to bind the corporation, you will want to have someone sign “individually” in addition to signing in a corporate capacity. This person signing “individually” is actually bound to the terms, conditions and all obligations of the lease as if there were no corporation in the picture at all. This is the best possible way you can execute a corporate lease.

 

Example: In the beginning of the lease, it will state that something like “Bill Jones and Mary Jones, Manager and XYZ Engineering and Surveying Corporation, through its agent John Smith, President AND John Smith Individually”

 

At the signatory section of the lease, you will have a place for Bill and Mary Jones to sign (unless you are signing on their behalf with a Power of attorney) and 2 more places for signatures:

 

XYZ Engineering and Surveying Corporation, by John Smith President _______________________ (sign here)
and

 

John Smith, Individually ______________________ (sign here)

 

Common mistakes we see

 

1. The corporate name is incorrect or incomplete.

 

2. The lease is signed by a person in the corporation that has no authority.

 

3. The lease fails to include a signature line creating individual liability.

 

4. There is a signature line, but it fails to state whether the person signing is doing so individually or on behalf of the corporation, causing legal confusion.

 

Our Recommendation

Besides all the dangers of entering into corporate leases in residential units which we promised not to address in this article, we strongly recommend that unless you are sure you know how to enter into a corporate lease, give your attorney a call so that you will know how to draft the lease correctly.

 

 

 

COPYING IDENTIFICATION

Many managers are reluctant to copy the resident’s identification due to a fear that this will trigger a Fair Housing violation. By not having a copy of the identification, the manager is at a distinct disadvantage when this identification is needed later in the tenancy or for collection purposes. Should the identification be copied? Is it legal? Let’s look at the risks and benefits of copying the ID and get some advice from our nation’s Fair Housing Experts.

The Application Process

Most managers have been advised that copying an applicant’s identification and keeping it with the file can open you up to a Fair Housing complaint. The theory behind this is the fact that you can gather up numerous applications, sit down and review them, look at the photos of the applicant and decide to discriminate against the applicant based on race, religion, color, nationality or anything else you may be able to determine by viewing the image of the applicant. Possibly, the applications are gathered and sent to a third party in your company who makes the ultimate decision as to accepting or rejecting the applicant. This person can easily sort through the applications and make decision based on what they see on the applications. In the event of a Fair Housing complaint, the investigator may and probably will want to see all your applicants’ files, and in the event there appears to be a pattern of discrimination against someone based upon a protected class that can be determined by the ID copies, you will have a lot of explaining to do. Is it illegal to make copies of the ID at the time of application? Nadeen Green, a nationally respected Fair Housing expert and Senior Counsel with For Rent Media Solutions says this:"If you feel a need to have a copy of the applicant’s photo prior to them being approved, (1) know the risk, (2) be consistent within the policy, and (3) be sure you can absolutely justify the decision making procedures and process as to why one person got an apartment and another did not. Otherwise there could easily be the illusion that decisions were based on factors about the people, with those factors being identified through the photos." Let’s look at what she is saying.

1. Know the risk. The risk is that you will be accused of discrimination, as you can often easily identify a person of a protected class by the photo on the ID. Will not having a copy of the photo ID keep you safe? Of course not, but having a copy certainly elevates this risk.

 

2. Consistency in your policy. If you are taking a copy of photo ID for the purposes of identification of the applicant, you must do this with all your applicants. Never pick and choose or make exceptions unless these exceptions are not based upon any discriminatory purpose. If you have a policy to copy photo ID, you will need to have a written policy for when a person does not have a photo ID. Note the emphasis on “written” when it comes to all your policies.

 

3. Justifying your application approval/rejection decision. All managers need to have a written Resident Selection Criteria and/or other written policy which must be followed for the application acceptance or rejection. Careful file notes should be kept with the full reasons for which a resident was denied.

Copying the ID at Lease Signing

While some managers may be hesitant to copy ID during the application process, it is crucial that ID is copied at the lease signing. This gives the manager another chance to look at the ID, compare it with the information provided, and have a firm way to identify the resident at a future date. A copied ID often is useful in a resident lock-out, pursuing a bad check, and dealing with identity theft or in an unauthorized resident matter. Both Doug Chasick of Call Source and Fair Housing Trainer Nan Cavarretta agree that copying ID at lease signing is both legal and recommended, but feel that copying during the application process is risky.

Your Decision?

When dealing with any potential fair housing issue, caution is key. If you have a good Resident Selection Criteria and detailed policy and procedures AND you follow them, documenting everything along the way, you will probably be safe copying the ID at application time. Short of that, we recommend you hold out until the lease signing. Finally, when it comes to copying the ID, no matter when you do it, as Doug Chasick of Call Source will tell you, "most copy machines at leasing offices don’t make good copies of photographs anyway!"

CONSTRUCTIVE AND RETALIATORY EVICTIONS

 

The vast majority of managers understand that a resident who vacates prior to the lease end date may be liable to some extent for future rent. Likewise, most managers have comfort that if they comply with all of the terms of the lease, then they will prevail if sued by the resident at a later date. While there is some truth to the above assumptions, it is definitely not the whole truth. Let’s see why a manager can get in to “hot water” if they fail to look past the obvious.

 

The Constructive Eviction Scenario

 

Larry appeared to be the ideal prospect. His application was approved, and he paid all of his deposits and moved in. After being in the unit for only three days you received his first work order. The washing machine was leaking. Soon after, you fixed the problem. However, two weeks later, the pipe below the washing machine bursts, and the kitchen and living room is flooded. Your maintenance staff responds and the pipe is fixed. Soon after, you start receiving repeated calls from Larry that his carpet has a strong foul odor. Larry then sends in another work order stating that the apartment home has a bed bug issue. Your exterminator confirms the existence of bed bugs inside the unit. Larry has nine months left on his lease and had already written to you two weeks earlier that he is withholding the rent until the manager remedies the situation. You figure that it will cost a substantial amount of money to fix the apartment, and you cannot bear to think about dealing with Larry for nine more months. The next day you receive keys from Larry and a note which says, “I HAVE VACATED”. “Good riddance”, you say to yourself. You plan to sue Larry for breaking his lease and will hold him responsible for future rent until the property is leased. Good news? Nope! The manager is now vulnerable to a constructive eviction claim by the resident.

 

What is a Constructive Eviction?

 

Did you know that you can end up illegally evicting one of your residents who voluntarily vacated the premises even if you never posted any notices on their door and never requested that your attorney file an eviction action in court. Florida Courts will allow a resident to break their lease and move out of the premises if the judge rules that a constructive eviction took place. A constructive eviction may occur if the manager has neglected the leased premises to the point where it is unsafe or unfit for use by the resident for the purposes for which they were leased. There is also Florida Statute 83.63 below:

 

“Casualty damage.--If the premises are damaged or destroyed other than by the wrongful or negligent acts of the resident so that the enjoyment of the premises is substantially impaired, the resident may terminate the rental agreement and immediately vacate the premises. The resident may vacate the part of the premises rendered unusable by the casualty, in which case the resident's liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the manager shall comply with s. 83.49(3).

 

A judge may rule that a resident is constructively evicted if the manager turned off the utilities or was cited for health or housing code violations, such as mold or roach infestation. In one court case, the manager was unable to remedy excessive noise disturbances by other residents. The judge ruled that there was a constructive eviction. Although threats of a future eviction usually would not constitute a constructive eviction, a court allowed a resident to assert a constructive eviction defense when the resident reasonably believed that the manager was about to lock out the resident after refusing the rent and threatening the resident with an eviction. The manager may also be liable for a partial constructive eviction if part of the premises is unusable.

 

You should also keep in mind that residents can sue for damages for the fair market value of the apartment for the period that the unit was not habitable. If they prevail, you would have to pay their attorney’s fees and court costs, or the residents can elect to remain on the premises by sending a notice to withhold rent as specified in Florida Statute 83.56 (1).

 

FS 83.56(1) If the manager materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the resident specifying the noncompliance and indicating the intention of the resident to terminate the rental agreement by reason thereof, the resident may terminate the rental agreement. If the failure to comply with FS 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the manager and the manager has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows:

 

1. If the manager's failure to comply renders the dwelling unit untenantable and the resident vacates, the resident shall not be liable for rent during the period the dwelling unit remains uninhabitable.

 

2. If the manager's failure to comply does not render the dwelling unit untenantable and the resident remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance.

 

The Retaliatory Eviction Scenario

 

Before Moe leased a unit, your residents all thought that you were a strong property manager. Well those days are over! Ever since Moe discovered that other residents along with himself had faulty air conditioning and heating units, he has created havoc for the property management office.

 

Moe started a resident association at your apartment community. They have meetings every Monday night. As a result, work orders have increased by over 80%! The manager is beside herself that she has incurred all of those maintenance costs. Every day it seems like you are receiving complaints from residents covering all aspects of the apartment community. You definitely feel that this unwanted attention brought on by Moe will cause your residents to decide not to renew their leases.

 

You want to resolve this situation. You feel that the only way to do this is for Moe to live somewhere else where he can be another property manager’s nightmare. What can you do? Moe has paid his rent on time. He lives very quietly; in fact, you have never issued to him a Seven Day Notice to Cure. Then your idea hits like a bolt of lightning!

 

Moe’s lease expires in two months. The manager’s lease stated that renewal is at the discretion of the manager. Moe is sent a letter stating that he will not be allowed to renew his lease. Moe walks in to your office and tells you he would like to renew at the market rate. Moe does not vacate as of the lease expiration date. You have your attorney file a holdover eviction action. Now you just had a phone call with your attorney, in which it is revealed that Moe has hired an attorney. He also tells you that you may very well end up losing the eviction action and that you will likely have to pony up money to Moe’s lawyer as well to cover legal fees and costs. You wish that you had understood the term “retaliatory eviction”.

 

What Is a Retaliatory Eviction?

 

Since 1983, the Florida Statutes have protected residents from being evicted for retaliatory reasons. Thus, retaliatory evictions are illegal in Florida! The Statute is below: 83.64 Retaliatory conduct.-- (1) It is unlawful for a manager to discriminatorily increase a resident's rent or decrease services to a resident, or to bring or threaten to bring an action for possession or other civil action, primarily because the manager is retaliating against the resident. In order for the resident to raise the defense of retaliatory conduct, the resident must have acted in good faith. Examples of conduct for which the manager may not retaliate include, but are not limited to, situations where: (a) The resident has complained to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises; (b) The resident has organized, encouraged, or participated in a residents' organization; (c) The resident has complained to the manager pursuant to s. 83.56(1); or (d) The resident is a service-member who has terminated a rental agreement pursuant to s. 83.682. (2) Evidence of retaliatory conduct may be raised by the resident as a defense in any action brought against him or her for possession. (3) In any event, this section does not apply if the manager proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter. (4) "Discrimination" under this section means that a resident is being treated differently as to the rent charged, the services rendered, or the action being taken by the manager, which shall be a prerequisite to a finding of retaliatory conduct.

 

As you can see, there is much conduct on the part of the resident that is protected. The statute prohibits the manager from retaliating against a wide range of resident related activities, including but not limited to: residents that make written complaints regarding the manager’s noncompliance with the lease, residents that make complaints to government agencies to report building or health code violations, or members of the military who terminate their lease in accordance with Section 83.682.

 

Section 83.64(1) (b), shown above, will protect Moe from being evicted due his activities related to the resident’s group that he founded. In fact, the statute specifically makes even the THREAT of eviction unlawful.

 

Acts That Will Get the Manager in to “Hot Water”.

 

The Florida retaliation statute prohibits the manager from treating the resident who takes part in the conduct above, differently than other residents with regards to services provided, rent charged or other actions on the part of the manager. The manager may not retaliate by cutting or reducing services such as utilities, raising the rent, threaten to or file eviction or other civil lawsuits.

 

What Were They Thinking?

 

Courts will attempt to get inside the heads of managers to see if they were acting in a retaliatory manner. In the case of Moe, the manager will need to convince the court that the eviction was not primarily related to Moe’s resident association activities. You should not feel that the manager is powerless over a resident who complains. The key question to ask is this: what was the real reason behind the manager’s action? To change the facts of our above example, if the manager’s primary reason for evicting Moe was related to a history of paying the rent late, then there would likely not be a violation of the statute. Why? Because the main reason for the eviction was NOT related to Moe’s resident group activities.

 

A Final Word of Caution

A common trait shared by many managers who are successfully sued by residents due to constructive or retaliatory eviction related conduct is one that you have probably already figured out. They are managers who fail to maintain the premises in accordance with their lease and Florida law. If one decides to become a manager, then there are many responsibilities the go along with that title. Those responsibilities should be taken very seriously! If not, then only bad things will be in store for them, including being tagged with large money judgments against them obtained by residents and their attorneys.