ABANDONED PROPERTY WORDING  WHICH NEEDS TO BE IN ALL LEASES

 

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

 

Explanation: Florida Law now allows us to bypass the abandoned property notice procedures if this wording is in the lease agreement AND the tenant has indeed abandoned the property. We urge you to exercise extreme caution in using this as a means of disposing of abandoned property.  Please make sure the unit is legally abandoned prior to disposing of the property. If you are not 100% sure that the unit is abandoned, we recommend eviction as the safest route.

 

NOTE: The tenant must have abandoned. They must be completely gone for 15 days and rent must be unpaid

 

CAUTION: If the unit is LOADED with items and you think the tenant may be in jail, a mental hospital, or they might come back, you are safer giving a 3 Day Notice and filing an eviction.

 

If there is any sign that someone is sleeping there at night or coming in or out, IT IS NOT AN ABANDONED UNIT

 

“Serving the Property Management Professional”

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As unemployment rates rise in this tough economy, many studies have shown that criminal activity will also increase. Even worse, as property owners face difficulties with their mortgage payments, they may skimp on spending money on security related maintenance or criminal background checks. They may also be so anxious to rent the property that they approve renters who fail applicant screening tests. This type of thinking will cost the property owner more money in the long run, as resident retention will plummet, and the property value will spiral downward, while civil liability for crimes committed on your property could zoom out of control.

The Starting Point: Screen Your Residents!

Elizabeth has just arrived at your leasing office. She fills out the rental application and lists her previous manager as a reference. She also represents on the application that she has never been convicted of a felony and has never been evicted. You verify that there has been no felony conviction, and that the resident has never been evicted. Is this a strong screening process? We say no! Why, you ask? To start with, no telephone call or other contact was made with the former manager. Maybe that “reference” would have turned out to be anything but a “reference”. Perhaps they would have told you about prior conduct problems that the resident had. Make sure your application contains language authorizing the prior manager to divulge all information in its residential file to you. If Elizabeth was served with a Seven Day Termination Notice for drug possession by the prior manager, it is possible that you would have learned of it by simply making a phone call. We always advise our clients to use diligence to determine whether the prior manager is real, and not just a friend of the applicant, so that you are not “conned” by the applicant. Suppose that the prior manager discovered “crystal meth” inside Elizabeth’s apartment and issued her a Seven Day Termination Notice. If Elizabeth bailed from the unit before an eviction was started, the eviction action would not have shown up on the prior eviction screening report that you ran, because there was no eviction in the first place; the resident skipped out. In fact, even if an eviction lawsuit is commenced, if there is no final judgment of eviction, the resident’s prior eviction action may not show up at all on the report. At our seminars, we also urge all property managers to access to public records to see if there have been prior eviction actions started. Maybe your “hot” prospect is under eviction now! Another mistake you made here is not requiring Elizabeth to inform you if there has ever been an “Adjudication Withheld”. While this might sound like some fancy legal language, it is easy enough to understand. “Adjudication Withheld” simply means that the criminal conduct likely took place, but the court is not entering a conviction. The judge sets forth conditions that must be met, and if those terms are satisfied, the conviction is not entered. For example, Elizabeth was arrested for drug possession. The judge may order her to attend a treatment program. As a property manager, you want to have the right to exclude from your community applicants who have had an ‘Adjudication Withheld” on their record. You also should have checked the FDLE website to see if there is a criminal history. You should also be very diligent in researching whether any sexual offenders or predators are living on the premises. You can access that information on the FDLE website.

Enforce Your Lease, and Team up With Your Attorney

Word travels quickly through an apartment community if the property manager is reluctant to enforce the terms of the lease regarding conduct because the manager does not like confrontation. Do not let the “inmates run the asylum”. A property manager needs to fight crime head on and evict the “rotten apples” from the community. If the property manager is aggressively fighting crime, that message will also spread fast, and some of your problem residents may move out on their own without the time or expense involved in an eviction. When a resident engages in criminal conduct in violation of your lease, you should already have an attorney in place that works fast, efficiently and is very reachable, so that you can respond swiftly to the situation. Work with your attorney to build your case, so that the appropriate seven day notice of lease termination can be issued to the resident. You will need PROOF! Often police reports will be needed, along with a list of residents who are willing to testify against the resident, in the event an eviction action is contested and a hearing is scheduled. The important thing is not to act impulsively. Disregarding your attorney’s advice will only enable the criminal resident to remain on your property longer, and even may make you accountable and liable to pay the resident’s attorney’s fees and costs in the event that the judge rules against you in court. When it comes to lease enforcement, the property manager should regularly inspect. You would be surprised how many criminal violations are discovered in this way. You should also have an “open door” policy for your other residents, so that they report criminal behavior to you. You want to learn about all lease noncompliances, not just ones that you discover. Neighborhood Watch programs may also be an effective way for your residents to take back control of your community.

Use Courtesy Officers.

A property manager should consider using a “Courtesy Officer”, as that may have a positive impact on the crime rate at your community. Criminals usually do not like additional people looking over their shoulders and may end up leaving your community voluntarily. The “Courtesy Officer” can respond to many types of prohibited conduct, including but not limited to late night/early morning disturbances. They can also contact police to report criminal activity, monitor your pool area and can tag illegally parked cars. There are many other security measures that a proactive property manager can take.  With regard to “Courtesy Officers”, never give the impression to your residents that you “have security”, as a judge could find that you gave the resident a false representation, since “Courtesy Officers” have limited responsibilities. For instance, they might just roam around the apartment community or answer complaints. It is vital that you sign a written agreement with the “Courtesy Officer” which sets forth the understanding of all parties. Your “Courtesy Officer” agreement should list the responsibilities of the “Courtesy Officer”. It should contain something similar to this: “ The Courtesy Officer’s responsibilities are the enforcement of federal, state and local laws, to protect life and property, to keep the peace, and to notify the property manager as soon as possible after learning of any safety or security issues, even if unrelated to law enforcement”. You should also have the “Courtesy Officer” acknowledge that there is no employer-employee relationship, and not treat the officer like an employee. The “Courtesy Officer” should be listed as a vendor in your records. Your company should also have language in the agreement allowing the “Courtesy Officer” and property manager to terminate the agreement at any time. If the “Courtesy Officer” is living in your apartment community, then you should be using a normal market rent lease along with a Courtesy Officer Addendum.

Crime-Free Lease Addendum

Florida Statutes surprisingly do not specifically state that a resident who commits a crime on or near the premises is subject to termination. If the resident has signed a Crime-Free Lease addendum in which he agrees not to participate in any criminal conduct or allow any criminal activities to occur on or near your property, a judge will likely be more inclined to approve the eviction of the resident who has committed a crime on or near your property. There are Multi-Family crime free programs available that are free of charge. Both the property and the property manager can receive certification under the program if certain requirements are met. As part of your crime free program, it may be advisable to contact your local police department to take advantage of free services that they may have. For example, a police department may agree to hold a “SWAT” training exercise in the parking lot one night in front of a building where you suspect drug activity is taking place. Now, that is one great message to send to your criminal resident!

 

“Serving the Property Management Professional”

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An unnecessary, self-inflicted injury is a client’s failure to disclose to his attorney all the facts. It is human nature that a person doesn’t want to disclose his mistakes or case weaknesses. Maybe they’ll magically disappear, won’t be discovered or won’t make any difference. They don’t disappear. The resident knows about them, and they do make a difference when the resident springs them on the manager’s lawyer in court.

Your attorney’s general advice to you is based upon the facts. Without knowledge of all the facts, his advice may at best be worthless and at worst harmful. It’s never a good idea for the client to prejudge what he thinks the attorney needs. Your attorney is in the best position to judge which facts and documents are important and which is not.

Seven Day Notice of Termination

Our office rigorously examines a client’s request for a Seven Day Notice of Noncompliance Without Opportunity to Cure (a Seven Day Notice of Termination). We require the client to provide proof of the noncompliance: police reports, witnesses’ names, addresses, and possibly statements, etc. Often we find that a client has omitted key facts. The reasons range from innocent omissions to intentional concealment to aid in obtaining the Seven Day Notice of Termination. Your attorney works to protect you, not the resident. Requiring a vigorous screening of a Seven Day Notice of Termination protects you. Slipping something past your attorney harms you by exposing you to a potentially invalid Seven Day termination case.

When negative facts are later discovered, at a minimum you may be withdrawing the Seven Day Notice of Termination. This will embolden the already difficult-to-deal-with resident. At worst it may result in a legal action against you by the resident.

Three Day Notice

Even a straightforward Three Day Notice nonpayment eviction can go awry when you fail to tell your attorney all the facts. Were there other notices regarding payment sent with or after the Three Day Notice was served? Did you enter into any other agreements as to payment of the balance? What about other correspondence regarding payment or nonpayment? Are there any emails or letters from the resident regarding rent withholding, maintenance complaints, retaliatory claims, or code enforcement notices? Is there any reason to think a Fair Housing claim may be made by the resident? Has the resident claimed protected class status?

Before the Hearing:

It is probable that the undisclosed fact or document will be supplied to the judge by the resident. The result can be an outright dismissal by the judge, an unnecessary delay while your attorney responds to the resident’s claim, or an unnecessary hearing, perhaps with no money deposited into the court registry. A resident’s “answer” may mislead the judge with untrue or unsupported claims that have slivers of truth from the undisclosed facts or documents. The point is that your attorney usually can deal with these issues, if disclosed, before filing the eviction, either by advising against filing or by explaining them in the complaint or a separate filing.

At the Hearing:

 

The stakes are higher when the non-disclosures are revealed at a hearing. You attorney’s ability to win your case can be seriously hampered. Documents needed to counter the unexpected development have not been obtained. Case law to support your position has not been researched. Cross examination of the defendant’s witnesses has not been prepared. Witnesses needed by the manager are not in court prepared to testify. The benefit of the eviction procedure providing for quicker hearings with less discovery becomes a disadvantage when confronted by surprise documents and testimony.

Consequences:

If the defendant has an attorney, an adverse court decision will likely result in a substantial defendant’s attorney fee award paid by the manager. This is in addition to any damages recoverable by the defendants. If the manager’s undisclosed actions have been statutorily prohibited practices, for instance locking the resident out or improperly disposing of his property, there are statutory damages tripling the monthly rent amount. Often the resident will file a counterclaim for defamation, harm to credit standing, or impairment of future ability to obtain housing caused by the filing of the eviction. A lost eviction case can lead to a fair housing complaint. Clients, who have not experienced the financial exposure or legal complications resulting from an unfavorable outcome, have difficulty understanding the seriousness of filing even the simple Three Day Notice nonpayment eviction. Non-disclosure by the client to his attorney can result in the attorney seeking to withdraw from the case or demanding additional attorney fees.

Ask Your Attorney:

I’m not implying that a client has to send his attorney the resident’s entire file. Someone with even a little experience in property management knows when a document or other fact should be disclosed. A good rule of thumb is that if you question whether it should be disclosed, it should be. Talk to your attorney. Allow your attorney to decide what is or is not relevant to your case.

“Serving the Property Management Professional”

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A common request by the vacating resident is that she accompany you during the move-out inspection. Sounds reasonable enough, but the practice of walking a unit with the resident upon move–out is fraught with problems.

Why is the Resident Making This Request?

There is a good chance that a previous manager of the resident took all or part of the resident’s security deposit in a prior tenancy, and the resident is now expecting that you will do the same. The resident is afraid that you may charge her for something for which she is not responsible, or damage which she did not do. This should be your first clue that the resident is suspect. The resident may be hiding something, and if he accompanies you on the walk-through, he may be successful. The resident may be intimidating, and he knows that you may not charge him for something due to the intimidation factor. Finally, the resident may just be an honest person who feels that it is best that she do the walk-through with you, so she can show you how nice everything was left. Be afraid. Be very afraid.

The Typical Accompanied Walk-Through Scenario

Here you are, walking through a home with the resident behind you. There is a hint of Fabreze in the air. You feel a bit uncomfortable and maybe even a little intimidated. Will you look carefully inside the oven? Will you inspect the bathroom? Open drawers? Smell the carpet? Most likely not. You smell some cigarette odor but really don’t want to mention it. The walls look yellow, but you are not sure if they were this color at move-in. You will not want to engage in any controversy or altercation with the resident, and even if you think there may be a charge for some damage, you avoid bringing the issue up. Probably you will want to get the inspection over with as soon as possible and will be asked the usual question, “When will we be receiving the security deposit back?” You tell the resident that everything looks fine, and that she will get her deposit back within a couple weeks. This is a huge mistake. She will hang on these words and not let you forget them.

Fast Forward One Week

Your maintenance person has headed over to the unit to do the usual cleaning, touch up and the like. Upon entering the hot unit, as the electric has been turned off, he immediately detects an odor of pet urine and smoke. Walking around the unit, the pet urine odor become stronger, and he kneels down in a corner and smells the carpet, only to come to the conclusion that it is cat urine. Standing up, he sees fleas jumping on his pant legs. This is interesting. The resident was not supposed to have any pets, and no cat was present during the walk-through inspection. Walking through the house, he lifts up a throw rug; under the rug is a large bleach stain on the carpet. The walls seem to have been touched up, and it is quite evident, as the paint is bubbling up in each spot where the new paint was applied. Your maintenance person heads out back and sees a huge oil stain on the floor of the driveway, and behind a newly planted bush in the patio area, he notices that the vinyl siding is warped from a “grill gone wild”. But wait. You told the resident everything looked fine and that she would be getting back her deposit.

The Problem

By initially telling the resident that everything looked fine, you created an expectation on the resident’s part that the security deposit would be returned. This will be used against you in the event that you make a claim on the deposit. Once the resident receives your claim, she will be sure to dispute the claim, and if you were to go to court, you would need to explain to the Judge why you said what you said, and why you made a claim contrary to those statements. Often there is undiscovered damage which becomes evident only later when the property is properly inspected at your leisure by you or your staff. Proper inspection is the key here, and no property can be properly inspected with the resident in tow.

Proper Procedure

You need to develop a firm policy and procedure on inspecting the premises upon move-out. This will mean that never will you inspect a property upon move- out with the resident present. Immediate inspection upon move-out, without the resident, is a must, but more importantly, a later inspection when the air conditioning may be off is in order, so previously masked odors can be detected. All throw rugs should be moved and inspections made of all the appliances, closets, garage, storage areas and every other area which may not be immediately apparent. The next time residents ask or demand that they be present with you on the move-out inspection, simply tell them that it is not your company policy to allow this, and if they are afraid you will treat them unfairly, they should take their own photographs of the premises.

 

“Serving the Property Management Professional”

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Many employees of apartment communities live on-site and are provided an apartment as part of their compensation package. This apartment may be free of charge or at a reduced rental amount as long as the resident is employed by the apartment community. Thousands of employees are in this situation and are living on-site, usually under some form of employee rental agreement or addendum. However, the time comes when the employment of the resident may end, either voluntarily or involuntarily, fancy words for the employee quitting or getting fired. Sometimes it is an amicable breakup with the employee getting another job, while other times the employee is fired and you want him or her off the property as soon as possible, preferably yesterday! The mechanics of removing the ex-employee from the property all depend on the employee rental addendum and how you or your company deals with the situation. Mistakes are constantly being made, resulting in difficult evictions or delays in having the former employee leave the premises. In some cases the continued presence of the former employee on the property causes increased liability to the apartment owner or manager, and can seriously affect operations. The former employee may begin to act in a vindictive fashion, causing disturbances, badmouthing management, or otherwise interfering with business operations. Let’s face it: sometimes residents go “off the deep end”, and your former employee is no more or less likely to do this than any of your other residents.

Termination of Employment

This is handled in most companies by upper management according to the guidelines of their human resources department, and laws or rules covering this will not be covered in this short article. Your job will be to make sure that the former employee gets off of the property, and we highly recommend you immediately call your attorney for guidance from the very start.

The Employee Lease Addendum

For this discussion, we are going to assume your former employee signed an Employee Lease Addendum. If they did not, you have more significant problems. A typical Employee Lease Addendum will state what will happen if the resident quits or is fired. For us attorneys, the most important clause is the one that states how long the resident has to vacate the premises. We typically see timeframes between 3 days and 2 weeks as to when the resident must vacate.

The Call

Our office usually gets the call from the property manager about a week after the former employee was to vacate the property, desperately asking us to get the resident evicted as soon as possible. This is when we begin to ask some crucial questions, the answers to which will have an impact on how or if we are able to evict the resident.

1. Are there more than one resident’s on the lease, and did all of them sign the Employee Lease Addendum?

 

We often see that Bill and Jane both signed the lease, but only Bill, the maintenance tech, signed the Employee Lease addendum. This can pose a major problem, as really the Employee Lease Addendum only applies to Bill and not his wife Jane. Big mistake. ALWAYS make sure all the residents sign the Employee Lease Addendum, not just the employee. This mistake is made all the time and will completely complicate if not make an eviction impossible.

 

2. How much time does the former employee have to vacate and did you give them notice?

 

Notice you ask? What notice? You assume that since the Employee Lease Addendum states that the employee must vacate within 15 days, this is notice enough. Think about this. Your lease states that the resident is supposed to pay the rent, but you have to give them a Three Day Notice. To non-renew a resident, you need to give the resident a Notice of Non-Renewal. A resident who has unauthorized occupants needs to get a Seven Day Notice to Cure. Why are you not giving the former employee a notice to vacate? Because you don’t have one! Is it really necessary to give the former employee notice? Perhaps not, but it cuts down on any confusion as to the firing or quitting date, or exactly what date the resident must vacate. It is wise to use an Employee Lease Termination Addendum which clearly states the day the former employee must vacate.

The Former Employee Needs More Time

A common request by former employees who must vacate per the Employee Lease Addendum is that they need more time. They ask you and you say, “no”, they ask your regional manager who says “no”, and then they get high up in the corporate offices, and some big wig says “yes”, trying to avoid any kind of litigation. Now when does the former employee have to vacate? They have been given a verbal extension by someone in New York! If you are going to allow the former employee more time, make sure they sign an Agreement to vacate. Who are “they”?: the former employee and anyone else who is on the lease agreement, and hopefully on the Employee Lease Addendum.

“Serving the Property Management Professional”

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NOTE: Before reading this article, we urge you to read Understanding The New Early Termination Law so you fully understand the new law before examining how it may apply to single family home management.

Should the new law be used in Single Family Management?

As you can see, if the new law is to be used, the tenant must be given an addendum at the time of lease signing which will give the tenant a choice of what they will owe if they vacate the premises before the expiration of the lease. The tenant can choose to owe a fixed sum of money not to exceed 2 months' rent or can choose to owe the rent due under the terms of the lease as it becomes due until the unit is re-rented or the end of the lease, whatever occurs first. Let us assume that you decide to use the new law, you provide the tenant with the addendum at lease signing, and he tenant chooses to owe the 2 months' rent if she vacates the lease early. What happens?

1. Just because the tenant made the choice to owe the 2 months' rent, it by no means that she will ever pay it. She simply will owe it.

2. The unit may stay vacant for more than 2 months, and the property owner may wish to go after the tenant to collect. When the owner finds out that he is limited to only going after the tenant for 2 months' rent, he will be surprised and angry, wondering what happened, and now will be looking to you for redress.

Full disclosure and permission is needed

If you wish to use the new law and are prepared to present the tenant with the addendum at lease signing, you MUST get prior permission from the property owner to do this, and fully explain to the owner that if the tenant chooses liquidated damages, you will not be able to charge the tenant ANYTHING other than the liquidated damages of up to 2 months' rent plus the rent that was owed to you, if any, at the time the tenant vacated. If you have a clause in your lease which states that the tenant is liable to pay a commission or any other non- physical premises damages, you probably CANNOT charge this to the tenant. A good argument can be made that a liquidated damages charge is a fixed amount, and that you cannot add other amounts to it.

Permission in writing

If you wish to use the new law, the property owner should give you this permission in writing. No verbal agreement should be allowed in this situation, as the use of the addendum and the tenant picking the liquidated damages choice can seriously infringe upon the rights of the property owner to pursue the tenant. Many property owners will not understand the new law. You do not want to give the property owner any idea or expectation that just because the tenant may pick the liquidated damages choice that the tenant will ever pay the money. More likely, the tenant will not pay the money.

When is the new law advantageous?

The new law is only advantageous to the property owner if the following occurs:

1. The unit is able to be re-rented within 2 months.
2. The tenant picks the liquidated damages choice.
3. The tenant actually pays the money he or she owes.

These three things must all occur for the new law to have any real benefit to the property owner. If you are in a situation under which it usually takes more than 2 months to re-rent a unit, you would definitely not want to use the new law.

Conclusion

Unfortunately the new law is not as useful as it may seem to the single family home manager. While it started out good, it had to be amended to appease the Governor, and now gives the tenant a choice in the matter. We have no control over that choice. The new law is more beneficial in the multi-family management situation, when there is one property owner who has decided that being able to charge liquidated damages, if the tenant so chooses, is a wise business decision. For now, we do not recommend its use in single family management.

 

“Serving the Property Management Professional”

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In the event of domestic violence, a party is able, by filing a sworn affidavit with the court, to get a temporary injunction for protection, also known as a restraining order, against another party. This injunction goes into effect almost immediately, and a hearing is set at a later time when a judge determines if the injunction is to continue or if it will be dismissed. The main purpose of an injunction is to keep one person away from another person, to prevent a possible escalation or continuation of violence or threats of violence.

A property manager is often made aware of the existence of an injunction by the person who has sought the injunction, the Petitioner. In most but not all, the Petitioner is a female resident. Situations will arise where the property manager is unwillingly brought into the picture. The property manager may be asked to change locks or may be asked by the Respondent to have access to the rental unit.

What Is Domestic Violence?: Domestic Violence as used in F.S. 741.28 - 741.31: "Domestic Violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit.

"Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who have a child in common, regardless of whether they have been married or have resided together at any time.

What is Repeat Violence?: Violence as used in Florida Statute 784.046, means any assault, battery, sexual battery, or stalking by a person against any other person. "Repeat Violence" means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member.

What is Dating Violence? Dating violence means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature.

What Will an Injunction Do for the Petitioner?

It will legally prevent an alleged abuser from committing any further acts of violence to the Petitioner or from threatening the Petitioner.

It may provide the Petitioner sole possession of a dwelling the Petitioner and the Respondent shared.

It may restrain the Respondent from going to, in or within 500 feet of Petitioner’s residence, place of employment, place of school, or places the Petitioner and family frequent.

It may provide no contact between the parties, in any manner.

It may require the Respondent attend counseling, treatment or a batterer's intervention program.

It may require the Respondent not to possess a firearm or to surrender any firearms to law enforcement.

It may address awarding temporary custody of any minor child (ren) between the parties, and visitation of the child (ren).

How Does A Party Get An Injunction Against Another Person?

The Petitioner must go to the courthouse and file a complaint. The person should bring with them police reports or referral cards furnished by a law enforcement officer, if any, proof of identification, specific dates of abuse or threats of abuse, specific locations where abuse or threats occurred, a mailing address of a friend or relative if the Petitioner chooses to keep the residence address "confidential" as provided by law, a picture, if any of the Respondent, to provide to Sheriff's Department for service purposes. The Petitioner must know and disclose the full legal name of Respondent, physical description of Respondent, current residence address of Respondent, including telephone number, social security number, if possible, and driver’s license number, Respondent's employer and employer's address and phone number, if possible, and Respondent's vehicle information, including make, model, color, year and tag number if any.

The “Temporary Injunction”

Upon review, the court may issue a “temporary injunction” which must then be served on the Respondent. The Petitioner can notify the Sheriff as to the whereabouts of the Respondent so the Respondent can be served. The key word here is “temporary”. The injunction will only last a certain fixed number of days, and then a court hearing will be set and held, at which the judge will decide if the injunction will be made permanent, the terms of the injunction, or if the injunction will be dropped. If the Petitioner fails to show up in court and pursue the injunction, the injunction will be dissolved. This is a common occurrence, so it is important that the property manager understands that an injunction may not be in effect when the Petitioner says it is in effect. This is where law enforcement comes into play, as they know through their computer system the actual status of the injunction. Never take the Petitioner’s or Respondent’s word for anything regarding the injunction. Get law enforcement involved.

Requests to Change Locks

In the event a property manager is asked to change locks on the premises, our office recommends that this is not done by the property manager, unless the property manager is specifically directed to do so by a court order. If the Petitioner wishes to changes the locks, we recommend that the Petitioner not be stopped from changing the locks and the Petitioner should be required to provide the property manager with a key.

Request For Access

A common scenario occurs when the Respondent comes into the property manager’s office and demands to be let into the unit or demands a key to the unit. Since the lease contract is between the parties and the property manager, it may seem that the property manager is required to grant the Respondent access. The police should be called immediately and asked to come to the property. Often the Respondent simply wishes to get clothing or other personal items from the property. The police will often accompany the Respondent to the rental unit, at which time the property manager, upon request, can grant access to the police and the Respondent. Often when the property manager indicates that the police will need to be involved, the Respondent takes off out of the office and does not wish to deal with the police. Never should the property manager take it upon himself or herself to assist the Respondent. Law enforcement should be involved.

Requests To Be Let Out Of The Lease

The Petitioner or the Respondent may request to be let out of the lease, either because they no longer have legal access due to the injunction, or the Petitioner wishes to move away from the property to a place where the Respondent cannot locate him or her. It will be a business decision by your owner or company as to whether this request will be granted. If it is granted, the other party does not have to agree to this request, and you can let either or both parties out of the lease obligation. Your attorney should be called in cases such as these, so the proper documents can be executed. Remember that if you let the Petitioner out of the lease, the Respondent still has a contract with you and has a legal right to possession of the rental unit, even though this right of possession may not be able to be exercised due to the injunction. Never remove the Respondent’s property from the unit or take possession, unless it is certain that all parties have relinquished to you full possession of the premises.

Requests By The Petitioner To Take the Respondent Off the Lease

In some cases, once the injunction becomes permanent or in the event the Respondent is incarcerated or otherwise indisposed, the Petitioner will request that the Respondent be taken off of the lease. One resident cannot unilaterally take another resident off of a lease. The party being taken off of the lease must agree to this. No matter what story you get from the resident, you cannot take the Respondent off of the lease. Your contract is with both the Petitioner and the Respondent. Their personal issues are not your problem, and unless you are ordered by a judge to remove an individual from a lease, you cannot oblige.

The Petitioner Vacates – Is the Unit Abandoned or Surrendered?

The Petitioner who was granted occupancy of the rental unit by the court may vacate the premises. Is the unit abandoned? Can it be surrendered? We are not sure. Since the lease agreement is valid with both parties, the fact that the Petitioner vacates most likely cannot grant possession to the manager. After all, the Respondent would be living there if he or she could, but simply cannot as the injunction prohibits this. Personal property may be left behind by the Petitioner who vacates the premises, and this property may belong to the Respondent. The Respondent may even petition the court to have the right to use the premises in the event the Petitioner vacates. This is an odd situation, and we urge you to call your attorney to see what options you may have based on the fact pattern.

Our Recommendations

Since an injunction is not an everyday occurrence the property manager must deal with, we strongly urge you to call your attorney the moment the issue arises. Handling the matter incorrectly could result in serious liability for the manager or property manager. Most importantly, never get emotionally involved with a dispute between residents. Taking sides can often lead to poor judgment calls, surprises and retaliation against the property manager.

 

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Identity theft is one of the fastest growing crimes in the United States today, affecting approximately 10 million people each year. Criminals are engaging in everything from sophisticated computer hacking to dumpster diving to obtain private information on individuals, which can be later used to obtain credit, or access for emptying out bank accounts. A typical manager will be in possession of documents which would be highly valuable to an identity thief. The primary documents which have the most information useful to an identity thief are the Application for Residency and the Consumer Report. The application will have the name, date of birth, Social Security number and bank account information of the applicant, all of which can be used by a thief. The Consumer Report will contain a list of all the applicants’ credit cards and other valuable information. In response to the rapid increase in identity theft fraud, the Federal Government through the Federal Trade Commission (FTC) has enacted new laws which directly affect the manager.

The Disposal Rule

Effective June 1, 2005, if you are a business that uses a consumer report, more commonly known as a Credit Report, you must dispose of this information in a specific fashion. Since most managers ask for an Application and subsequently receive a Credit Report, it is apparent that the Disposal Rules apply to the manager. The Disposal Rule requires disposal practices which are “reasonable and appropriate” to prevent the unauthorized access to or use of information in a “consumer report”. You will note that the law says “consumer report” and not “Application”. Many Federal rules when initially introduced are vague and confusing. As time goes by, the courts and the FTC “interpret” the rule. Obviously the purpose of the rule is to prevent identity theft; thus we strongly recommend that you apply the rule to the application as well as the Credit Report, as this is consistent with the intent and legislative history of the rule.

How Long and Where Should We Keep Documents?

The statute of limitation regarding disputes arising out of a contract such as a lease is 5 years. We recommend that you do not dispose of any files for a minimum of 5.5 years from the time the resident vacates the premises. While this may seem a bit extreme and cumbersome, if you are sued and do not have your file, anything can and will happen in court, and it will not be pleasant. Some people intentionally wait until the Statute of Limitations is almost up; as they know that most people will not have kept the records for this length of time. Your documents need to be kept in a safe place in your office and subsequently in storage. Most managers do not keep these files locked up or have a written plan in place as to file security or destruction. This needs to change.

Paper Records

Files should always be kept in a locked room or locked filing cabinets with access limited to persons designated in writing as having permission. These should only be employees that are bonded. Most managers do not consider the value the paper files have to an identity thief and are not in any compliance whatsoever. If records are sent to storage, there needs to be a specific procedure in place to prove chain of custody and detailing exactly who has access to files and when they accessed the files.

Computer Records

Most people find it difficult to throw out old computers. They pile up in the back room and eventually get thrown out or donated years after they will not run current programs. Most managers do not have password protection in place on their computers, making them vulnerable to an identity thief. Finally, most managers who are careful about backing up their computer data do not have a specific procedure for storing these backups. Managers need to immediately evaluate the safety of the data and create a written procedure which needs to be followed. If information from the resident’s application and consumer report will not be stored on or transmitted through a computer, the danger is significantly lessened.

How Should Documents, Hard Drives and Backups be Destroyed?

Paper documents should be shredded or pulverized. There are different levels of paper document destruction available, and we recommend that the documents are pulverized to avoid any problems later. Many managers purchase store bought shredders and pulverizes, but if operating on any kind of a large scale, document destruction companies will need to be utilized to carry out the larger document destruction tasks. Many local garbage disposal companies are jumping into the business of document destruction, and it is prudent to check this in addition to the smaller private companies. As chain of custody is crucial, most of the document destruction companies provide an on-site service that can be observed by the manager to avoid someone taking the documents to another location and using them for illegal means. Hard drives and backups can be physically destroyed by a manager or destroyed by the document destruction companies who deal with this as well as paper documents. The key is to have a plan in place, and this should be part of your written procedures for document safekeeping and disposal.

Does Everything Have to be Disposed of Properly?

Fortunately only certain information has to be disposed of according to the FTC rules. An examination of your resident files will probably show that only a few sheets contain information which could be successfully used by an identity thief. Most likely only the application and the consumer report will contain the sensitive information; therefore your procedure may limit the disposal to the destruction of only those documents.

FEDERAL TRADE COMMISSION INFORMATION

Disposing of Consumer Report Information?
New Rule Tells How

In an effort to protect the privacy of consumer information and reduce the risk of fraud and identity theft, a new federal rule is requiring businesses to take appropriate measures to dispose of sensitive information derived from consumer reports.

Any business or individual who uses a consumer report for a business purpose is subject to the requirements of the Disposal Rule. The Rule requires the proper disposal of information in consumer reports and records to protect against “unauthorized access to or use of the information.” The Federal Trade Commission, the nation’s consumer protection agency, enforces the Disposal Rule.

According to the FTC, the standard for the proper disposal of information derived from a consumer report is flexible, and allows the organizations and individuals covered by the Rule to determine what measures are reasonable based on the sensitivity of the information, the costs and benefits of different disposal methods, and changes in technology.

Although the Disposal Rule applies to consumer reports and the information derived from consumer reports, the FTC encourages those who dispose of any records containing a consumer’s personal or financial information to take similar protective measures.

Who Must Comply?

The Disposal Rule applies to people and both large and small organizations that use consumer reports. Among those who must comply with the Rule are:

Consumer reporting companies
Lenders
Insurers
Employers
Managers
Government agencies
Mortgage brokers
Automobile dealers
Attorneys or private investigators
Debt collectors

Individuals who obtain a credit report on prospective nannies, contractors, or residents Entities that maintain information in consumer reports as part of their role as service providers to other organizations covered by the Rule

What Information Does the Disposal Rule Cover?

The Disposal Rule applies to consumer reports or information derived from consumer reports. The Fair Credit Reporting Act defines the term consumer report to include information obtained from a consumer reporting company that is used – or expected to be used – in establishing a consumer’s eligibility for credit, employment, or insurance, among other purposes. Credit reports and credit scores are consumer reports. So are reports businesses or individuals receive with information relating to employment background, check writing history, insurance claims, residential or resident history, or medical history.

What is ‘Proper’ Disposal?

The Disposal Rule requires disposal practices that are reasonable and appropriate to prevent the unauthorized access to – or use of – information in a consumer report. For example, reasonable measures for disposing of consumer report information could include establishing and complying with policies to:

burn, pulverize, or shred papers containing consumer report information so that the information cannot be read or reconstructed;

destroy or erase electronic files or media containing consumer report information so that the information cannot be read or reconstructed;

conduct due diligence and hire a document destruction contractor to dispose of material specifically identified as consumer report information consistent with the Rule. Due diligence could include:

reviewing an independent audit of a disposal company’s operations and/or its compliance with the Rule;

obtaining information about the disposal company from several references;

requiring that the disposal company be certified by a recognized trade association;

reviewing and evaluating the disposal company’s information security policies or procedures.

The FTC says that financial institutions that are subject to both the Disposal Rule and the Gramm-Leach-Bliley (GLB) Safeguards Rule should incorporate practices dealing with the proper disposal of consumer information into the information security program that the Safeguards Rule requires ( ftc.gov/privacy/privacyinitiatives/safeguards.html).

The Fair and Accurate Credit Transactions Act, which was enacted in 2003, directed the FTC, the Federal Reserve Board, the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, the National Credit Union Administration, and the Securities and Exchange Commission to adopt comparable and consistent rules regarding the disposal of sensitive consumer report information. The FTC’s Disposal Rule became effective June 1, 2005. It was published in the Federal Register on November 24, 2004 69 Fed. Reg. 68,690, and is available at http://www.ftc.gov/os/2004/11/041118disposalfrn.pdf

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit FTC.GOV or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

Your Opportunity to Comment The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency’s responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal. To comment, call toll-free 1-888-REGFAIR (1-888-734-3247) or go to www.sba.gov/ombudsman.

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Manager may not prohibit resident from displaying United States Flag on premises

PRIOR LAW: Prior to July 1, 2004 a manager could prohibit resident by the lease terms from displaying or hanging a flag or any other item from or on the premises.

NEW LAW: A manager may not prohibit a resident from displaying a United States flag on the premises as long as it meets certain requirements.

SAMPLE LEASE WORDING: "Resident may display a "United States Flag", commonly known as the "Stars and Stripes", as long as this flag is portable, removable, cloth or plastic with a size not larger than 4.5 feet by 6 feet and is displayed in a respectful manner. This flag may not infringe on any other resident's area or space rented by another resident, including but not limited to a downstairs resident's lanai space if any. This flag, its pole or its base may not constitute a safety hazard to any person or property. In displaying the flag, resident shall not destroy, deface, damage, impair, or remove any part of the premises or property therein belonging to the manager nor permit any person to do so".

TEXT OF THE NEW FLAG LAW

FS 83.67 AS AMENDED

4) A manager may not prohibit a resident from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and one-half feet by 6 feet, in a respectful manner in or on the dwelling unit, regardless of any provision in the rental agreement dealing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The manager is not liable for damages caused by a United States flag displayed by a resident. Any United States flag may not infringe upon the space rented by any other resident.

 

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Your worst nightmare has come true. One of your residents comes into your office with a print out from the Florida Department of Law Enforcement  website showing a sexual predator or offender, hereinafter SP/SO, is registered at your property. He looks familiar to you. You look up the lease for the unit, and he is not on the lease. Whew, an unauthorized occupant. What if he is on the lease? Possibly he slipped through the cracks in the application process. How do you get him out fast?

 

Confirming Status and Address

 

Simply go to the Florida Department of Law Enforcement website and look up the individual in question. If the person is a SP/SO, it will show up and give a brief description of the offense along with a physical description of the individual and a photo. An important aspect of the information will be the address that the individual has registered with the FDLE. This address may be the address of the rental unit or some completely different address. If it is the address of the rental unit, you can contact the FDLE, as possibly the SP/SO is in violation of the rules regarding the terms of his probation if he is in too close proximity to children. If it is not the address of the rental unit, we urge you to call the FDLE and report the fact that the SP/SO appears to be living at your property, and that your address is NOT what is listed on the website. It is possible that the SP/SO has registered the new address but the website is not yet updated.

 

Contacting the Resident

 

You immediately should contact your resident, making her aware that you know of the presence of an unauthorized person living with her on the premises and that the SP/SO needs to leave. If you get any pushback from the resident, feel free to let her know that you are fully aware this person is a registered SP/SO, not that it really makes much difference. Note that we call this person an “unauthorized person” or “unauthorized occupant”. Many property managers think that just because the person is a SP/SO, this somehow makes the offense by the resident in having an unauthorized person worse, or that it will make it easier to evict the person. It makes no difference. An unauthorized poodle may be an unauthorized pet as much as an unauthorized pit bull, the latter of which may be a breed you restrict. The breed of the pet or the status of the person will not have much relevance at all on your ability to take action. The unauthorized occupant is an unauthorized occupant plain and simple, and your resident is in violation of the terms of the lease agreement if that person resides in the unit for a period longer than the lease allows. Most leases allow guests or visitors for period of 72 hours to 2 weeks, and then require the resident to get your permission for the “guest extension”, thus the person does not become unauthorized until such time as the allowed guest period under the lease is exceeded. Once you contact the resident, you will most likely get the usual story, “The person is just visiting”. If the person is indeed “visiting”, they will be allowed to visit. “Residing” there is another story. Once you can prove the person is not simply “visiting” but is residing on the premises, you will need to put in motion your usual procedure for dealing with the unauthorized occupancy lease noncompliance, by giving notice and proving the person is in fact residing on the premises and not just visiting.

 

The SP/SO Has Your Address Registered

 

Although this is unnerving to you and your other residents or neighbors, this makes our job easier. We do not have much to prove here. The SP/SO registered his address as your property address. You serve the proper notices, and if you do not get compliance, eviction can begin. The first notice is of course the Seven Day Notice of Noncompliance with Opportunity to Cure. This gives the resident 7 straight days, INCLUDING Saturdays, Sundays and legal holidays, to get the unauthorized occupant removed. If the person is not removed and you can prove it, a Seven Day Notice of Termination is then served, and after 7 more days elapse, an eviction can be filed if you can prove the SP/SO failed to timely vacate pursuant to the original cure notice. One of the ways you can prove this is to contact the FDLE and see if the address the SP/SO registered with it is still the unit address.

 

Visitor or Resident?

 

While we have dealt with this in other articles regarding unauthorized occupants, as a review, you will need to PROVE the person is not just visiting. A SP/SO is allowed to be a visitor, like it or not. Proving occupancy can be extremely difficult, because few if any property managers have 24 hour surveillance of the premises to definitively prove the person is occupying the unit as a resident and not simply coming and going occasionally or staying overnight once in a while. Ironically, if you saw a person coming each day to the unit at 9 a.m. and leaving at 3 p.m., you might assume he visits each day. If the same person came at midnight and left at 6 a.m., you would assume he is living there. These are all just assumptions and not solid evidence, and circumstantial evidence can make for tough proof cases.

 

Notification to Other Residents

 

Under Florida law, you are under no legal obligation to notify the other residents that a SP/SO is on the property. Much to your dismay, most will find out fairly quickly, as the word spreads fast. Some residents upon becoming aware that there is a SP/SO living near them will copy the FDLE printout and plaster your property or surrounding residences with the flyer. If you are approached by angry residents demanding what action will be taken, you simply tell them you are completely on top of the situation and are taking all legal steps to have the person removed, and that it is a legal process that takes some time.

 

The SP/SO is on the Lease!

 

There are times where you run a criminal background check and a particular offense will not show up. The applicant is approved and moves in. How do we handle this situation when this person turns out to be a registered SP/SO? Suppose the person is not listed on the lease as a “resident”, but is listed as an occupant. Listing an adult as an occupant is a major mistake that many property managers make. For some strange reason, property managers think that if someone does not qualify, he should just be listed as an occupant. Sometimes the applicant who is approved will ask you to list her spouse or friend as an occupant, not as a lease signer. ALWAYS have all adults who will be occupying the unit go through the entire application process and sign the lease.

 

The first thing you need to do if you realize that the actual lease signer or occupant is a SP/SO is to get out the application and examine if there was a misrepresentation made on the application. Go straight to the question where you ask if the applicant was convicted of a felony, and see what the answer is. If the applicant lied on the application, and your lease and/or the application has the proper wording that allows you to terminate the tenancy if a misrepresentation was made, you are in good shape. A Seven Day Notice of Termination will be given to the resident, and an eviction can be filed.

 

One problem we see in the question you ask of the applicant is that on most applications, you are only asking if the “applicant” was convicted of a felony. What about the “occupant”? Make sure your question always asks if the “applicant or any occupant” was convicted of a felony. This will help protect you if you made the additional mistake of not having all adults sign the lease. Check your application wording right now!

 

Unfortunately, there are some real, worst case scenarios due to mistakes made by the property manager. Suppose in the answer section of your criminal background question section, the applicant failed to circle either “yes” or “no”. Did the applicant lie or make a misrepresentation? The argument can be made that they did not lie, and you will be in a world of trouble. ALWAYS make sure that an application is completely filled out and no spaces are left bank or questions left unanswered. Not answering a question with the hopes that it will slip through the cracks is a clever technique by an applicant to trick an unwary property manager.

 

Some Practical Tips

 

Get an “admission” -- If your resident “admits” to you that she has this unauthorized occupant, SP/SO or not, this “admission” can be used in court. If the resident tells you and your leasing agent, “Yes, I know, he is looking for a place to live”, you and your leasing agent can testify to this in court. Of course the judge may not believe you, but it is part of our evidence we use.

 

Log your evidence -- Create a log of when the SP/SO’s car is parked on the property, when it comes and goes, and take pictures. This type of detective work helps you win cases.

 

Try the “Agreement to Vacate” – If your resident is “in love” enough with this SP/SO, the resident may agree to just move out. Get the resident to sign an Agreement to Vacate, and in our opinion, release her from the lease so you can get them out as soon as possible.

 

Try a written promise -- It may be possible to get your resident to sign a form stating that they will have the SP/SO removed at a date certain, and if the SP/SO returns after that date, she agrees that her tenancy is terminated. This memorializes the fact that the SP/SO is actually living there, and makes it more difficult for the resident to fight you.

Call your attorney -- The last thing you need is a revolt on your property and residents wanting to break their leases because of the presence of a SP/SO on the property. Many residents, especially those with children, will want to use this as a way to break their leases, and if the matter were to be litigated, a sympathetic judge may feel that particular residents were justified in breaking their lease. The minute you find out that a SP/SO is on the property, call your attorney immediately, so you and your attorney can develop a strategy for removal of the SP/SO, resident or both.

“Serving the Property Management Professional”

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