You have not received rent for the month, go out to the property to serve your Three Day Notice, and the next door neighbor informs you that the resident is in county jail. The property is full of belongings, and the resident’s car is parked in the driveway. Can you evict? Should you post the Three Day Notice on the door? Do you want your resident to come out of jail and find he has been evicted and everything he owns is gone? This situation will occur if you manage property long enough and you need to know how to deal with it properly to avoid liability and/or a serious dispute.

Where Is the Resident?

You may or may not know if in fact the resident is incarcerated. If you were lucky enough to have your property on the news the night before when they did the grow house bust at your rental home, you can be fairly sure that the resident is in the county jail. In other situations, you were simply told the resident was in jail by a neighbor or someone you may have contacted on your emergency number list. To confirm the resident is in jail, you need to call the county jail system and ask for inmate information. This is public record in most cases, and you will be able to find out if the resident is in jail and where, as some counties have more than one location for their jails. If you are unsuccessful, look up the arrest report from the sheriff’s department website and give them a call if necessary.

Do You Need to Locate the Resident?

There is nothing in Florida law that provides you must hunt down a resident in order to serve a Three Day Notice. The law states that you can serve the resident in person or post the notice on the premises in the resident’s absence. In an incarceration situation, clearly the resident is absent; therefore, you could legally post the notice on the door and thus satisfy the requirements of Florida law as far as notice goes. The question then is, “should you locate the resident?” We feel that you should make an attempt.

Why Bother Locating the Resident?

If you post a Three day Notice on the door of the home, you will eventually file an eviction, and at the end of the eviction, you will remove all the resident‘s personal belongings to the street, where the neighbors and passers-by will rummage through everything and take anything of value. Personal items will be taken as well, some with sentimental value. Your resident may get out of jail only to find out that his key no longer works in the door. Your resident then contacts you, only to find out that he has been evicted and everything he owns is now gone. What can happen? The resident can go ballistic and cause you great harm, or decide to destroy or damage your property or the home. A surprised, evicted resident is an extremely dangerous and volatile person. While you may have done everything according to the law, this will not matter with the recently released resident.

You Have Tried to Locate the Resident But Cannot

At this point you need to jump into action, review the file, and begin calling your emergency numbers, contact numbers and employers. Do not give any information, other than you are the manager and just need to contact the resident. Do not tell anyone you know or heard the resident is in jail. Simply work hard to track the resident’s information down. If you cannot locate the resident or get any information that will help you, serve your notice to the property; knock first, and if there is no response, serve the Three Day Notice by posting on the premises. If you do not receive the rent, file an eviction as you would with any other resident.

You Locate the Resident

Now that you have located the resident and know what jail he is in, you can serve your Three Day Notice to him in jail or have a process server do this. Better yet, you can possibly avoid an eviction altogether! Many incarcerated residents do not want to deal with an eviction and would just rather surrender possession to you, if they feel they will be incarcerated for some time. If you are able to call the resident in jail or have the resident call you collect, the resident may tell you to give access to a friend or relative. While this is great, you must get something in writing from the resident under which he is giving possession to you, who is allowed access to the unit, and when you will have possession. We recommend getting the following form signed by the resident while he is in jail. You must be sure that the resident did in fact sign the form, and make sure that no other people are living in the rental unit. You can often make an appointment with the jail’s social worker and visit the resident directly in jail.

ACKNOWLEDGMENT OF VACATING AND DIRECTION AS TO DISPOSITION OF PERSONAL PROPERTY FROM INCARCERATED RESIDENT

 

I _________________ hereby agree that I have completely vacated the premises located at_________________________________________. 

I agree that any personal property that is left behind in the unit or on the premises may be disposed of by Management and/or Owner without notice, and I agree to hold Management, the owners of the premises and any agents or employees harmless for such disposal of personal property.

I agree that this document and my vacating shall have no effect upon any financial obligations under the lease or Florida law unless otherwise agreed to in writing by Management. I agree that my Notice of Intention to Impose Claim on Security Deposit if any shall be sent to the address of my former unit, and I am responsible for putting a forwarding order in with the US Postal Service.

ADD IN SIGNATURE LINE FOR RESIDENT AND 2 LINES FOR WITNESSES 

 

Can You Take Possession of the Unit by “Abandonment”?

Under Florida law, there is a presumption that a unit is considered “abandoned” if it is vacant for one half of the payment period (usually this is 15 days on a monthly payment period), the rent is unpaid, and, the resident has not given you anything in writing telling you that he would be back at some later time. While it may appear that an incommunicado, incarcerated resident would qualify as having abandoned the unit, we do not recommend that you take this route. If you are unable to get possession from the resident in writing by the above form or through an eviction, taking the “abandonment” route is just too dangerous.

Conclusion

It is not every day that you must deal with an incarcerated resident. While this is a good thing, it underscores that you most likely do not have much experience in handling such a situation. In these odd types of situations, we always recommend that you call your attorney for advice before you take any action. There is just no reason to go it alone.

 

“Serving the Property Management Professional”

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

A major repair must be made to the property you are managing, and this repair requires authorization from the property owner, as it exceeds the amount you can spend according to your management agreement. The air conditioning has ceased to work, and the inside temperature is exceeding 100 degrees. You try to contact the property owner, but there is no answer on the phone number you call. Do you go ahead, take a chance and get the repair done? You are not sure if your resident has vacated and want to avoid a potential wasted eviction action, so you try to contact the resident. His phone number is disconnected, he no longer works at the job he had at application, and the emergency number is out of service. Do you file the eviction or take a chance and take possession? The problem in both of these scenarios is that you simply cannot communicate because the information you have is insufficient.

Initial Information

The Resident: Typically through the application process, the manager will ask for the resident‘s phone number and an emergency contact. After a few months, there is a good chance that the resident has defaulted on his cell phone contract and/or has acquired a different phone number. The emergency contact was a friend who has moved and who also has a new number which you do not know. The property manager may have a work number for the resident, but when this number is called, the resident no longer works at that job, and no one there wants to give out any information. This is the reality of residents in Florida. We are a transient population here in Florida, and information and addresses change fast and furiously.

The Manager: When a property is managed by a local property manager, that manager will get the manager’s information at the time the Property Management Agreement is entered into. This information is often the out-of-state manager’s address, home phone number and nothing more. If the manager is not home, the property manager simply does not have any ability to make contact and communicate.

Email: Most residents and managers have email addresses. A few years ago this may not have been the case, but the reality today is that most individuals have email addresses, and many check them on a frequent basis. With multiple residents you will have multiple email addresses, and often you will have work and personal email addresses. The same will apply to the manager. Never assume that if a resident or manager is elderly that they are not computer savvy or do not have email. Often people give an incorrect email address by accident. We recommend that you send a confirmatory email after the resident moves in or after the property owner has signed a management agreement, just to be sure you have not been given incorrect information.

Home and Cell Phone Numbers: While a land line in the past has been the main contact number for most managers and residents, many are now opting to do away with the cost of the land line for cell phones or phone service provided by the local cable company. The property manager may be the last person to find out that the manager or resident no longer has a land line. Cell numbers of all the residents should be acquired at the time of move-in, or in the case of the manager, at the time the property management agreement is signed. The key is to get all the numbers, not simply one person as a contact. The more numbers you have, the greater chance you will be able to make contact.

Work Numbers: Acquiring the work numbers of both the manager and the resident is crucial. In the event you are having difficulty with all other numbers you may have, the work number may provide you with the information needed to track down the party. Most of the time we see the work number of the resident on an application, but in our experience, the property manager often does not have the owner’s work number. In the event the manager or resident is on vacation, you may be able to get information by simply calling and listening to a recording the party has left, or if you must speak to a co-worker, you may find the party. Be extremely careful never to use this method to transmit private information or imply that you are attempting collect rent. When calling a work number, how you identify yourself and the fact that the person you are calling may have caller ID could result in an accusation by the resident that you spoke to a co-worker about the resident’s rent obligation. A desperate resident will make up a story that you called and harassed her boss or spoke to a co-worker about private information.

Fax numbers: A large number of residents and managers have separate fax numbers due to home offices. Make sure that if you acquire a work fax number, care is taken that other employees of the fax recipient will not be viewing private information, and that express written authorization is obtained to transmit private information.

Keeping the information up to date

All information can and does change. Your information may have been accurate at the time it was acquired, but after a few months or sometimes years, this information is useless. It is crucial that the property manager has a system in place to regularly check this information for accuracy; we recommend at least every six months. Sending out requests for information in the owner’s statement or periodically to the resident may achieve the desired results, but if not, property managers need to affirmatively take the time to go through their records and update everything. Updated information will reduce liability, decrease evictions and make property management easier.

 

“Serving the Property Management Professional”

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

It’s that time of year again. A tropical storm will cause mischief somewhere and damage someone’s rental premises. The havoc will interrupt the resident’s possession of the premises as well as the manager’s income. Here are some important repair matters to keep in mind:

Damaged and uninhabitable. If rental premises are damaged in a way that renders them uninhabitable, the resident is not liable for rent for the period that the premises are uninhabitable. The owner is not obligated to pay for a hotel or move the resident to another unit (unless the lease specifically says he should).

Repairs should be completed as quickly as is reasonable. This is often difficult in a post-hurricane period, given the great demand on services. Documentation is key to show that you are making best efforts to get the premises repaired.

Damaged but still habitable. If the premises are damaged but not destroyed, it is wise to work out some "credit" to the rent until repairs are done. How much of a credit depends on the facts of the particular situation. Alternatively, a wise manager will have a clause in the lease that allows the manager the right to terminate the tenancy in the event the premises are “damaged”.

The resident cannot refuse to pay rent. However, some compromise should be reached. If you served a three day notice while significant repairs were ongoing, and then filed an eviction, it is very likely that a judge would consider the damage to be a "diminution" in value. That's enough to mess up an otherwise good eviction case.

When repairs are completed, you will be on solid footing to demand the full rent.

Destruction of premises. If the rental premises are destroyed, the owner might wish to terminate the lease rather than do repairs. Unfortunately, the option to do this is limited. Florida statutes does not entitle the manager to terminate the tenancy under these conditions. The resident can do so, but not the manager.

The manager can terminate the tenancy due to destruction only if the lease says he can. This language is usually found in a paragraph titled “Casualty” or “Maintenance”.

If the lease does not contain language that permits the manager to terminate the tenancy, yet repairs are out of the question, the owner may want to "invite" the resident to terminate the tenancy. The manager would suggest to the resident that the resident could give notice to vacate and be released from the lease.

Data and documentation Sure, everyone knows to take photos of damage after the hurricane, but do you have photos of what the place looks like now? It is sometimes hard to fully appreciate an “after” picture without having a “before”. You should record and document the condition of the rental premises now, before the winds blow.

 

“Serving the Property Management Professional”

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

In these tough economic times, property managers have a vested interest in working together during the application approval process. As occupancy rates decrease, and the pool of applicants with strong credit histories shrinks, creative leasing tools must be utilized by property managers. One such tool is allowing the applicant to obtain a guarantor in order to pass the lease approval process. It is usually cut and dry that the guarantor of an initial lease term can be held responsible for the rent during the term of the lease. However, as you will see, the law may not be on the side of the manager who is attempting to enforce a guarantee agreement for any lease extension or renewal term.

What are Guarantee Agreements?

The typical guarantee agreement involves somebody who agrees to be responsible for the financial obligations of a resident, including the rent as provided under the lease. This person is known as the guarantor. The guarantor is usually not listed on the lease as the resident or occupant of the apartment. Often, but not always, the guarantor is a close relative such as a parent or uncle. If the resident fails to pay rent, the manager has recourse against the guarantor and can recover money damages owed to the manager by the resident.

Are Guarantee Agreements Enforceable?

Florida courts enforce guarantee agreements if the document is worded correctly. While the promise of one person to meet the financial obligations of another is allowed in Florida, the agreement must be in writing according to Sec 725.01 of the Florida Statutes. Therefore, never believe that an oral guarantee agreement will be enforced by a judge, because it will not!

How Should the Guarantee Agreement be Worded?

Be very specific. Courts attempt to look at what the intentions of the parties were at the time of entering in to the contract or agreement. Since it is usually the manager that has drafted the agreement, any ambiguity in regards to the terms of the guarantee will be construed against the manager. What does that mean? If the terms of the agreement are vague enough that there could be multiple meanings, then the resident will “get the benefit of the doubt,” and the court will likely enforce the resident’s belief as to the meaning of the disputed term. Among other things, you should list the names of the parties, reference the lease that the guarantee applies to, and of course the guarantee agreement should spell out in detailed fashion the obligations for which the guarantor will be responsible.

The Lease Renewal Scenario

Bob moved to your apartment community ten years ago from Kansas in order to attend college. Bob, like most college students, was short on cash at the time. Based on his situation, he was advised that he needed to obtain a guarantor in order to have his rental application approved. Lucky for Bob, Uncle Jeb agreed to be the guarantor. As it turns out, Bob was timely in making all of his rental payments for the first nine years and ten months of his tenancy. Bob failed to make his final two rent payments and hopped on a plane for Jakarta, Indonesia, never to be heard from again! You decide to go after Uncle Jeb for the balance of the rent owed by Bob. Uncle Jeb is upset and does not believe that he should be held responsible for nine renewal terms, and claims he should have been notified of each renewal transaction. Your regional manager receives an email from Uncle Jeb’s attorney threatening legal action.

Is Uncle Jeb Responsible Under the Guarantee Agreement for the Lease Renewal Term?

The answer to the above question will depend on how the guarantee agreement was worded. Under Florida law, a guarantee for a lease can be continuing, but it must expressly state that it is intended to cover future transactions for the guarantor to be liable for extensions and renewals. The terms should contemplate a future course of dealing during an indefinite period. If the above conditions are met, the manager would not have a legal duty to notify the guarantor of each transaction between the manager and resident, provided that the particular transactions fall within the description of the terms of the guarantee agreement. Therefore, if there is no mention of the lease renewal in the guarantee agreement, then Uncle Jeb would not have liability in the above fact pattern, because the agreement did not expressly state that he would be responsible for the renewal terms.”

Is Uncle Jeb Financially Responsible if the Lease Guarantee Agreement Specifies That it Applies to Lease Renewals?

As a general rule, if the renewal period mirrors the lease term in every manner, then the guarantee would be enforceable against the guarantor, if the agreement specified that the agreement applied to renewal terms. However, if the renewal lease contains different provisions other than the original lease term, a court may not enforce the guarantee agreement. For example, if the rent has been increased during the renewal term, the court may possibly hold that the lease is not a true “renewal lease”, because not all of the terms were “renewed”. Instead the court may treat the “renewal” lease as a new lease, thereby extinguishing the obligations of the guarantor. The court may refuse to enforce the guarantee agreement in that situation, on the premise that the guarantor never intended to be liable for the higher rent amount. It is possible that a court may enforce the guarantee, if the terms expressly state that the guarantor will remain responsible for any changes, renewals or amendments to the lease that would increase the guarantor’s risk, such as rental increases.

The main point is that courts really prefer to err on the side of caution if the terms of a guarantee agreement are ambiguous and are reluctant to hold the guarantor liable.

What Do We Recommend?

Our firm’s recommendation is both very practical and very simple!

You should update each guarantee agreement for each renewal or lease extension period. Have the guarantor sign again, so that it is clear as to exactly what his financial obligations are to you.

If you really are banking on the guarantor to pay you, it would be risky to leave it in the hands of the courts, when you have the ability to firm up your guarantee agreement by updating it each renewal or lease extension period.

 

“Serving the Property Management Professional”

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

Most property managers of single family homes, condominiums or other rental units will at some point in their career cross paths with an owner that has a property go into foreclosure. Such a situation may cause the tenant, the owner and the property manager significant stress.  However, understanding what legal rights the tenant will have in a foreclosure situation should alleviate this stress in most cases for all involved.    

Legal History

Prior to 2009, laws in many states allowed tenants of foreclosed homes to be immediately evicted when the foreclosing bank or purchaser at auction acquired title to a foreclosed home.  This resulted in many ugly situations. First, as the United States economy entered a recession, more and more tenants of foreclosed homes were evicted. The nastiest part to all of this was that many tenants were shocked to learn that the house was in foreclosure and did not even think eviction was a possibility, sometimes arriving home from work to find the locks changed and all their personal property removed to the street, even when they had paid the rent!   In response to this, Congress passed the Protecting Tenants at Foreclosure Act in 2009, which law created notice requirements to the tenant if the foreclosure was finalized.   However, this federal law expired on December 31, 2014, despite legislative attempts to permanently extend the law, and for a time, there was no law taking the place of the federal law, and a return to the prior legal landscape had seemingly occurred.  

 

Effective June 2, 2015, a new Florida law went into effect dealing with termination of a rental agreement upon foreclosure, offering limited protections to the tenant under foreclosure in the form of a 30-day notice requirement from the new titleholder.  However, this Florida law was subsequently repealed when the original federal law was reinstated in June of 2018.         

Tenant Protections under the Current Law

The Protecting Tenants at Foreclosure Act requires the foreclosing bank or purchaser at auction to honor the existing lease upon obtaining title, or in the case of a purchaser at auction actually planning to move into the property, to provide the tenant with at least 90 days’ written notice.   The purchaser at auction will often be the lending bank or an investor not looking to move in, so the tenant’s full remaining lease interest would need to be honored in those cases, or if the lease has expired or is set to expire in less than 90 days, the bank or investor would need to provide at least 90 days’ notice.   

In order for the tenant to qualify for these rights, the lease must be an arms-length transaction between the tenant and the owner.   Also, the rental rate under the lease must not be substantially below market value, and the tenant cannot be a child, spouse or parent of the owner.   

Can the Tenant Break the Lease?  

The tenant will often be served with the foreclosure lawsuit and other subsequent court documents filed in the foreclosure proceeding and may be spooked.  However, as long as the owner remains the titleholder, the tenant needs to pay rent and honor the lease.  The owner in foreclosure can evict the tenant for defaulting on the lease terms.   Unlike the “old days”, the tenant’s tenancy interest continues to be protected by law.   Therefore, the tenant does not have a right to stop paying rent or terminate the lease early simply by virtue of the foreclosure action being filed.           

What Must the Prior Owner Do?  

Upon title changing under a foreclosure action, the prior owner (or its managing agent) must turn over all security deposit and advance rent to the new titleholder with an accurate accounting.    The foreclosing bank may sometimes indicate no interest in receiving deposit or other escrow money.  After title changes, if the bank clearly disclaims in writing its interest in the security deposit or other escrow money, that money should be returned to the tenant, not the prior owner.    The foreclosing bank may often present the tenant with a cash for keys offer after acquiring title, but the tenant is not obligated to take the bank up on its offer.      

An owner under foreclosure pressure may sometimes turn the deed over to the lender prior to a foreclosure being finalized, and in that situation, the bank would acquire the property subject to the existing tenancy interest.   Similarly, if a “short sale” occurs prior to a foreclosure action being finalized, the new titleholder will acquire the property subject to the existing lease interest, as would be the case with any ‘normal” sale.  

 

“Serving the Property Management Professional”

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

Many companies, including our law firm, purchase goods through the internet or by phone from out of state companies. In our case, it may be computer equipment, video recording equipment, office supplies, electronics, marketing materials, evict.com T-Shirts, paper or the myriad items a firm of our size uses throughout the year in conducting business. These purchases are usually delivered by UPS, FedEx, the USPS and other common carriers. The reason for these purchases is simple. We try to save money so we can pass these savings along to our clients, make more money, and not have to raise our rates. When we can buy locally and support Florida businesses, we do, but money is money, and if a product is less expensive and equivalent in value, we will buy from an out of state company. We are not alone. Millions of Floridians, individuals and businesses buy products through the internet.

Sales Tax

You may have noticed that most out of state purchases do not include sales tax. Unless a company has an agreement with the Department of Revenue (DOR) or otherwise operates and is registered in Florida, the out of state company does not charge you Florida sales tax or sales tax from its respective state, as it is not required to do so. This amounts to a nice savings indeed. An apartment community may purchase thousands of dollars in supplies or equipment from an out of state company. There may be a great deal on patio furniture or fitness room equipment from a company you found on the internet and you may be able to save a substantial amount of money. You may even attend a trade show where a national supplier who does not have a location in Florida is exhibiting, and one of its selling points is that if you purchase from it, not only are you getting a significantly reduced price, but since the items are coming from its North Carolina location, there is no sales tax, and you will thus save another 6% or more. What a great deal! If you can avoid legally paying a tax, why not? Do not the Florida coffers get enough from us already? Not so fast! You may be doing something completely illegal by not paying the taxes, even though you were not charged the taxes, and NOW, the DOR is beginning to crack down.

Do You Have to Pay Taxes on These Internet or Out of State Purchases?

The purchaser of goods from Florida or any other state MUST pay tax on these purchases, and this means YOU. The tax is not called a sales tax, but rather is called a “use” tax. This use tax is a minimum of 6% and may be more in certain counties or municipalities that have an additional “local option tax” or “discretionary sales surtax”. In fact, 59 of Florida’s 67 counties have a sales tax that exceeds 6%. Here are some examples below.

1. Mountain View Apartments in Collier County purchases a $20,000 set of patio furniture from Fred’s Patio World in South Carolina. There is a shipping charge but no sales tax. Result: Mountain View Apartments now owes the DOR a 6% use tax totalling $1200 and MUST report the purchase and pay the use tax.

 

2. XYZ Property Management Company in Orange County needs a new computer router and while looking on Amazon.com finds a great deal on a Linksys router for $600 from Computer World in Chicago. The purchase is made online, and the only extra charge is shipping. Result: XYZ Property management Company now owes the DOR a 7% use tax totalling $42 and MUST report the purchase and pay the use tax.

Why is This Use Tax Just Appearing Now?

The use tax has been in place for years, but most business and individuals are completely unaware of it. Until recently, the DOR did not vigorously pursue the collection or this tax, but the party is OVER. Thousands of businesses like yours and ours were recently sent letters offering Tax Amnesty (which expired on September 30) whereby if you went back 3 years and calculated all that you spent on these out of state purchases and “came clean” on the taxes, there would be no penalty, and only half of the interest on the unpaid amounts were due. Did you throw that letter out when it came in? The Florida DOR collected millions of dollars in use tax in 2010, and they are sure to continue to enforce the tax laws now more than ever. State and county governments are doing everything possible to collect the taxes that already are on the books. For years, state governments have been losing out on billions of dollars due to the massive increase in internet and out of state purchases, and they are not taking it anymore. That company you may be buying products from may receive subpoenas or requests for information from the Florida DOR, and through that information, they WILL find you out. You can run, but you cannot hide.

Are ALL Out of State Purchases Subject to the Use Tax?

The short answer is NO, but MOST are. Let’s say you purchased a Dell computer online. If you look at the bill, you will see that Dell charges you a sales tax, even though you bought it online and it was shipped from Nevada. You see, Dell is registered with Florida or otherwise does actual business in Florida through the use of stores or distribution centers. Therefore, Dell goes ahead and collects and remits the sales tax at the time of sale, and you now owe no further sales tax or use tax. Many other large companies are in this position, so now you need to begin to look at your invoices carefully to see if you have in fact paid the sales tax, as you certainly would not want to pay a use tax that is now not owed. Some, but very few indeed, out of state companies charge you the sales tax that is due in their state when you make a purchase. If that sales tax is less than 6%, you will need to pay the difference in the sales tax paid and the minimum Florida 6% (more in some counties) tax to the DOR. Example the supply costs $100, you paid the 4% Michigan sales tax at the time of purchase, and you now owe at least 2% use tax to the DOR.

How to Begin Paying the Use Tax

There is no better time to start properly paying the taxes that you legitimately owe right now. To do it right, you will need to go back 3 years and look at all your internet or out of state purchases and determine whether you were charged sales tax or not. If you were not, you simply obtain the forms from the DOR, complete them, calculate your interest and penalties, and pay the tax. Once done, they must be paid each quarter and you can rest assured that once you begin paying the use taxes, the DOR will be on top of you to collect them in the future, so do not forget to file or have your accountant file for you.

Is this Something to Worry About?

We feel that paying use taxes is your legal obligation under Florida law, whether we or you like it or not. Evading taxes can result in substantial fines, interest and penalties. If you have made significant purchases and realize you owe use taxes, you may be able to get the interest reduced or penalties waived by the DOR, so we highly recommend you contact your accountant and discuss this issue getting professional tax guidance. The collection efforts of the DOR are not going to stop, but rather they will be on the rise. The DOR has provided online interest calculators if you want to try to do this yourself, and you can register with the DOR online and pay online, with the taxes, penalties and interest, if any due, automatically deducted from the bank account you provide them. If you do not wish to file online, simply download the Out of State Purchase Return, which is form DR-15 MO, fill it out and send it in.

Our necessary disclaimer!

We are not tax professionals or CPA’s, but ignorance is not always bliss when it comes to tax obligations. We highly recommend you speak to your company’s accountant right away, copy this article and send it to your corporate attorney, CFO or broker. Our firm used Noack Mitchell & Company Certified Public Accountants, whose phone number is (239) 936-6144, found on the web at www.noackmitchellcpa.com.

“Serving the Property Management Professional”

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

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”

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

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”

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

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”

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

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”

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