Once the manager has sent the resident a Notice of Non-Renewal, that resident’s file should be tagged for special identification The manager will want to avoid taking any action which would jeopardize his right to retake possession of the rental unit or to double rent in the case of a hold-over resident.

The following discussion has to be placed in the context of modern communications: distribution list emails, mass mailings, computer-generated statements. A manager is often sending documents without verifying the specific recipients.

The Superseding Agreement:

If the resident is unwilling or unable to move, he will be looking for any opportunity to extend his tenancy. Many residents will use an inappropriately sent letter or notice as evidence to bolster their position that there was an oral agreement. This correspondence superseded the Non-Renewal Notice and permitted him to renew his lease or to remain month-to-month. Even a complete fabrication can be convincing to a judge if there are documents of the manager that seem to support the fabrication. In fairness to the residents who operate in good faith, inconsistent documents of the manager can create enough confusion that the resident assumes he can stay.

Renewal Notice Sent in Error:

If the manager has sent the resident emails, letters or notices implying, suggesting or offering renewal, then the manager must immediately notify the resident of the error. I do mean “immediately”. I suggest that an email (with a delivery and read receipt if available in the email system) be sent to the resident. A follow-up letter or even the printed email should be immediately posted on the resident’s door and mailed to the resident via certified mail. The renewal information was sent in error and is withdrawn. The manager wants to notify the resident before the resident can seize the information as a renewal offer and accept it.

The focus is not the legal arguments with regard to contract formation. The important point is to avoid providing the resident with an opportunity to make these arguments in court.

Helpful Reminders:

After the manager has served the Non-Renewal Notice, the manager gives the resident additional non-renewal reminders or warnings at the manager’s own risk. While these reminders are sent under the pretext of helping the resident, they are usually sent for the benefit of the manager. Any contradictions or deviations from the original Non-Renewal Notice can result in voiding the original Non-Renewal Notice. The most common mistake is a contradictory vacating date or an incorrect calculation of the time remaining until the vacating date.

Seven Day Notices After the Non-renewal Notice:

Our firm generally advises against serving Seven Day Cure and Seven Day Termination Notices after a Non-Renewal Notice.

While the manager may still serve a Seven Day Notice of Noncompliance with Opportunity to Cure (a Seven Day Cure Notice), one has to question both the effectiveness of the notice and the wisdom of antagonizing a resident that has been non-renewed. Additionally, serving such a notice, when there are less than seven days until the vacating date, creates the confusion that we are trying to avoid. (Similarly, serving a Three Day notice that expires outside the vacating date is a bad idea). Serving a Seven Day Notice of Noncompliance Without Opportunity to Cure (a Seven Day Termination Notice) actually can worsen the manager’s ability to remove the resident. What would have been a straightforward holdover eviction becomes a complicated Seven Day termination eviction with all the attendant burden of proof problems that the manager must bear.

That being said, there are times when the health and safety of the staff or other residents requires a Seven Day Cure or Seven Day Termination Notice. This is a matter for the manager to discuss with his attorney.

Notices After the Vacate Date:

Serving a Three Day Notice, a Seven Day Cure Notice or a Seven Day Termination Notice to a holdover resident after the vacating date may be fatal to the non-renewal. A manager would only have the right to serve these notices if the tenancy was continuing. This means that the manager waived the non-renewal demand. Sending the resident a billing statement or account balance notice charging rent beyond the vacating date or other monthly services (pest control, valet waste) gives rise to the same argument that the tenancy is continuing. Accounting notices may be more easily explained and excused than the statutory notices. A court can easily reason that a manager should be more careful about the statutory notices.

Consult the Attorney:

As a final thought, it is always advisable for the manager to consult his attorney as soon as he discovers that he has mistakenly sent a notice, letter, or other communication to the resident that may jeopardize his Non-Renewal Notice.  

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One of the biggest mistakes a manager makes often occurs at the time the resident moves into the unit, and this mistake has major ramifications when the resident moves out. The condition of a rental unit must be documented when a resident moves in. This is crucial, as when the resident moves out and there are damages found in the unit, the manager needs to prove that the damages were not pre-existing and were indeed caused by the resident. Residents routinely say, “It was like that when I moved in”, and often, “I left it better than when I moved in”. Every manager has heard these comments made by the resident. When the resident makes these allegations, the manager must be able to prove that the damages did not exist at the time the resident moved in to prevail. How does the manager do this? A really thorough manager will have taken pictures and maybe even a video tape of the unit prior to or at the time of move in. While this may seem excessive to some managers, it is indeed the best approach, but unfortunately, we all know this is only done by a small percentage of managers. The usual method of documenting the move in condition is the Move In Inspection Form or Condition Report, and for this article we will call it the Condition Report. A thorough manager will have a detailed Condition Report which lists just about anything inside and outside of the unit that the resident could be responsible for or potentially damage. Now here is the big question: who completes the Condition Report? The manager or the resident?

The Resident Completes the Condition Report?

Probably 50% of all managers, especially those who manage multifamily housing units, give the resident the Condition Report and ask them to take the report, write down anything that is wrong with the unit, and get the report back to the manager. The manager then tells the resident that if they don’t get the Condition Report back to the manager, it will be assumed that there is no pre-existing damage to the unit. Sounds reasonable enough right? Wrong. It is not only the lazy way to get the unit inspected, but it can have grave legal consequences.

What Will the Typical Resident Do With the Condition Report?

1. The Picky Resident Some residents will take the condition report and go over the unit with a fine tooth comb, marking down every possible little thing wrong with the unit. When you receive it back, you would think the unit was in terrible condition, and your receipt of the Condition Report from the resident has put you on legal notice of deficiencies. All you wanted the resident to do was mark down any cosmetic issues, but NOW you have a report from the resident which you requested that makes your unit look awful.

 

2. The Wish List Resident Some units are not perfect, but are legally sufficient to rent out. The carpet may not be perfect, and there may be cosmetic issues in the unit. No big deal to the manager, but the “wish list” resident uses the Condition Report to not only tell you about the damages in great detail, but expects you to deal with everything on the list. The resident’s assumption is that you are giving them the Condition Report to fill out, so YOU will know what to fix or change. You have no intention whatsoever to replace the carpet or the countertop, but now the resident feels you should, and by filling out the Condition Report has made the request. Now the resident has an expectation that you are going to have the carpet cleaned again, replace the carpet or give them a new counter top.

 

3. The Sloppy Resident Possibly the carpet has a couple small stains, the walls have a few scuff marks, and there is a chip in the countertop and some deep knife grooves when the last resident used the counter top to chop vegetables with his Ginsu Knives. This is how the “sloppy resident” writes it up on the Condition Report. “Carpeting Stained”, “Marks on walls”, “Chipped Countertops” “Damaged Countertops”. This sounds reasonable to the resident and is in fact true. Now, let us suppose when this resident moves out that there are severely stained carpets, the walls have been marked up so badly that they must be repainted, and that the resident has completely destroyed the countertops. You want to charge the resident for the damage. The manager then goes ahead and charges the resident on the Notice of Intention to Impose Claim on Security Deposit. The departed resident NOW responds back and says, “It was like that when I moved in! Just look at my Condition Report! I told you about these problems a year ago!” The manager is dumbfounded, because while it was true that there was some damage to the carpets, walls and the countertop when the resident moved in, it certainly wasn’t THAT bad. The resident takes the manager to court, the resident shows the judge the Condition Report, and the manager LOSES.

 

4. The Forgetful Resident The resident is in a hurry to move in and the last thing on his mind is to complete a Condition Report. He throws it into the kitchen drawer and it sits there for the next year. The manager never receives the Condition Report. Now the resident moves out, there are damages, and the manager has absolutely no Condition Report to form the baseline as to the condition of the unit. The manager charges the resident for damages, the resident objects, disputing the charges, and maybe the resident claims he did indeed fill out the condition report and get it back to the manager by giving it to your leasing agent who was fired 3 months ago. Worse yet, the dishonest resident finds the blank Condition Report in his kitchen drawer upon move out and decides to fill in the CURRENT damages that he caused during the tenancy, keeps a copy and claims he gave you the original 2 days after he moved in! This resident’s claim, “It was like that when I moved in,” will be hard to beat in court when you don’t have the Condition Report.

The Solution

As you can see by the examples above, giving the resident the Condition Report is just plain wrong, silly, lazy, and the list goes on and on. The manager should be the one who inspects the unit and fills out the Condition Report. You cannot give control over such an important aspect of property management to a person who is not skilled in or has no knowledge of inspecting a unit. The manager knows or should know how to do this properly and will go through the unit marking down preexisting cosmetic damages. Ideally, the inspection and Condition Report will be accomplished with the resident present, but if not, it will be done before the resident moves into the unit along with the video taping of the unit and plenty of digital pictures. Many of our clients, especially the large multifamily ones, insist on allowing the resident to complete the Condition Report. We can assure you that when our client performs the move in inspection and completes the Condition Report, the chance of a security deposit dispute, or in the worse case scenario, losing a dispute in court, is diminished greatly. It is simply the right way to do YOUR job.

 

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Unfortunately these days’ managers often have to lower rent rather than raise rent each year. With the huge surplus of vacant homes and condos in the rental market at the moment, residents are balking at paying the same amount of rent at renewal time, and are even asking the manager to lower the rent during the tenancy, knowing they can find cheaper accommodations. Out of desperation, many managers are agreeing to lower the rent rather than have a vacant unit. Usually the resident initiates contact with the owner during the lease or at renewal time to discuss the rental rate, and the usual threat is made that if the rent is not lowered, the resident will be moving.

Owner Issues

If the resident is dealing directly with the property owner or agent in an apartment setting, the negotiations can be done directly with the resident. It is crucial that the manager does not imply a particular rent amount will be owed unless this has been decided. Any promise or implication that the rent will be lowered will be latched onto by the resident and relied upon. It must be made clear that no deal will be consummated unless it is done in writing and signed by all the parties involved.

Mid-Lease Modifications

A mid-lease modification can be handled by a simple addendum stating the new rent amount and signed by all parties. This may present a good opportunity for the property manager to have the resident sign a brand new lease, thus extending the tenancy, but some residents may wish only to stay until the natural expiration of the lease, and an addendum will be the appropriate vehicle. If the resident also pays other amounts in addition to the rent, it is imperative that this addendum wording does not end up inadvertently reducing the rent further than what the manager expected. Often there is “base” rent plus other items making up the “entire” rent. The resident may currently be paying a rent amount of $700 plus $50 for the garage and $25 for cable. In the resident’s mind, rent is $775, because that is what he pays each month. In your mind, “rent” is the base amount of $700 plus the other charges, and you are lowering it to $650. Putting a clause in an addendum that states that the parties simply agree that the rent shall be lowered to $650 will cause an ambiguity. Is the total rent now $650 as the resident may assert, or is it now $725 as you will assert? Any ambiguity in the agreement is construed against the party creating the document (most often the manager), so the ambiguity will almost always work in the resident’s favor; this presents a clear danger to the manager.

An Early Payment Option

As an incentive for the resident to pay the now reduced rent, it is possibly to place a clause in your addendum stating that the rent shall be $X amount if paid by a certain date and $Y amount if paid by a later date. Many managers are already familiar with early payment discounts, but this is structured a bit differently and has 2 distinct rent amounts. Problems occur when the resident pays the lower amount at the later date; this can cause disputes, so care and thought should go into making such an addendum.

New Lease Rent Modifications

The parties may agree to a lower rent amount in a new lease. We recommend that any negotiations be memorialized in writing prior to lease signing and that all parties execute the new lease before the beginning date. In lease execution, care should be taken to have all residents sign the new lease, never allowing just one resident to sign if other residents are listed on the lease.

What About Prepaid Last Month’s Rent?

The resident may have paid a last month’s rent upon moving into the unit. How is this affected by the rent modification? The resident of course will want to be refunded any amount to the extent that the last month’s rent exceeds the new rent amount. When will this occur? Now? At the beginning of the last month? We recommend that this refund is done at the time of vacating the premises, and this can be addressed in the addendum to the lease. Another option is that the excess in the last month’s rent shall be added to the security deposit, which will give the manager a larger sum to use in the event of damages or other money owed. Anything can be done; it is all in the addendum wording.

Fair Housing Considerations

In the multi-family setting, if you reduce a resident’s rent, word will spread like wild fire throughout the apartment community. You should expect other residents to come into your office asking for a rent reduction. Is everyone entitled to a rent reduction? Should you only reduce rent where you know a resident has lost her job? It is imperative that a written policy is in place before you ever begin negotiating rent with a current resident. It is bad enough when new residents are getting concessions and lower rents, and now you have to deal with the irate resident who has been with you for 5 years. Failure to give a rent reduction to someone of a protected class could result in a discrimination complaint that you may have difficulty overcoming.

 

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There will invariably come a time when a manager simply makes an honest mistake. How the manager handles the mistake can have a great effect on the outcome and resolution of the matter. The resident is the consumer, and consumers often feel that they are entitled to some sort of compensation from the manager. Whether they truly are entitled to compensation is really not the issue; the bottom line is that they feel that they are. Making the wrong statements or taking the wrong actions can turn a small problem into a tremendous time consuming and expensive proposition. This article will examine some of the common mistakes made by managers and some suggested courses of action.

You Thought The Resident Vacated

This is a common mistake. The lease is up or almost up, the manager checks the unit, the electricity is off, and all appearances seem to indicate that the resident is indeed gone. There are a few items left behind, but the manager does not feel they are of any value, and the manager throws the items away and changes the locks. The resident returns furious and is demanding the items back, and then compensation when he realizes they are gone.

Recommendation :Keep the resident as calm as possible, make him understand that you were under the impression that he had vacated, and give him an “Incident Report” to fill out. Once this is filled out and firmly in your control, you can decide to come to an agreement with the resident for compensation. It is crucial that you do not act excited or scared, as the goal is to have the resident tell the truth and to accept a fair settlement. Once you agree on an amount, we recommend strongly that you have the resident sign a release if money exchanges hands.

You Served a Three Day Notice but the Resident Had Already Paid the Rent

This seemingly innocent mistake can enrage a resident and potentially have legal ramifications, especially if you served the notice in a fashion where neighbors could see the notice. The resident is embarrassed and enraged.

Recommendation: Keep the resident as calm as possible, downplay the notice, and tell her it simply was a mistake. Profuse apology is not necessary. Use the opportunity to change the subject, and ask her if there are any maintenance requests or problems.

You Accidentally Filed An Eviction But the Resident Had Paid the Rent

You would be amazed how often this occurs. An accounting error results in an eviction being accidentally filed, or you forget to cancel the eviction with your attorney. The resident will most assuredly call you or storm into the office with eviction papers in hand.

Recommendation: Call your attorney immediately, have him or her prepare and file a Voluntary Dismissal immediately, and give a copy to the resident. Your attorney can do this immediately while the resident is fuming in your office. If the resident asks whether this will show up on the credit record, you may have to admit that the eviction filing will be a matter of public record, and you will be happy to provide a letter that the resident can use showing that the eviction was simply filed in error. If you don’t immediately dismiss the case, or the resident gets an attorney, you could end up paying hundreds if not thousands of dollars in attorney’s fees. Take action fast, and again downplay the situation

You Engaged In Some Sort of Self-Help Personal Property Removal

Your resident has an old couch in the yard, a rusty bike and a car transmission on the front lawn. Code enforcement is citing the property, and you send your maintenance staff to remove the items and take them to the trash heap. The resident is furious at you and now wants you to pay for his valuable items.

Recommendation: Keep the resident calm, do not let the resident know you may have committed a crime, or at the bare minimum, civil theft, have the resident fill out an “Incident Report”, and try to settle. As with any settlement, use a General Release. You do not want to involve police or lawyers in this matter.

You Told the Resident “You Should Have Purchased “Renters Insurance”

Many casualties can occur in a rental unit that are through no fault of the resident. A few examples are pipe breaks, water heater breaks, water intrusion due to a roof leak, and power surges due to a faulty wire. Are these the resident’s responsibility or the owner’s responsibility? No one is sure. Many managers rely on the clause in the lease that states that the manager is not responsible for the resident’s personal property. Will this clause be upheld in court? Maybe not, if a judge believes the resident receives an implied warranty of habitability, or if the disclaimer clause is overreaching. One of the worst things a manager can say when the resident asks for reimbursement for a damaged item is, “You should have renter’s insurance.” This infuriates the resident, and instead of the resident wanting $500.00, the resident goes to an attorney, and the amount now goes up to $5000.00.

Recommendation: The next time casualty occurs to a resident’s personal property, get them to fill out an “Incident Report” immediately, and DO NOT immediately tell them that you are not going to pay for the damage. You may later refuse to pay or you may settle, but in the meantime, you want the resident to memorialize the amount in writing to avoid future problems.

The “Incident Report”

Below is the Incident Report we recommend you use. 

INCIDENT REPORT

TO BE FILLED OUT BY RESIDENT

 

Resident Name _____________________________________

Apartment number ________________ Date: _______/_______/______

Date of incident____/____/_____

_____PERSONAL PROPERTY DAMAGE OR LOSS

_____APARTMENT DAMAGE

_____VEHICLE DAMAGE

_____INJURY TO PERSON(S)

Detailed description of event, loss etc: BR>

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

Cost estimate of damage/loss $________________

Witnesses to damage/loss:

Name_________________________ Phone_______________________

Name: ________________________ Phone_______________________

I hereby swear that the statement I have made regarding the aforementioned incident is true.

 

______________________________
SIGNATURE OF RESIDENT

DATE_________________________

 

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Missing leases are a fact of life, whether through negligence or theft. Whenever a business deals in as much paperwork as the apartment or home rental business does, misfiled, mislabelled or mistakenly destroyed paperwork, including leases, are bound to happen. Not to mention that the lease, and often the entire file, are taken by an employee for his benefit or the benefit of a friend. How do you deal with these situations? For purposes of this article I will assume that the resident’s rent is due on the first of the month.

Other Documents

While there may be evidence that a lease once existed - applications, signed addendums, move-in inventory, your computer entries – none of it is conclusive. The burden of proof in court is on you, because you are claiming that the lease once existed and what the lease terms were. The resident can dispute that he ever signed the lease. He can claim that, despite your company policy against changing the pre-printed form, his particular leasing agent agreed to changes. It is an uphill battle, and you are better advised to accept that there is no lease than try to prove one existed.

Eviction Cases

The simple answer in the eviction case is that the resident is month-to-month, but this may not really be an accurate assessment, particularly since oral leases of up to a year can be enforceable. If you are sure that a written lease did exist, and you know the duration of the lease, the attorney can allege in the eviction complaint that the lease is lost, and what the rent amount was under that lease. The monthly rent will typically be the amount that that resident has been paying and which you have been accepting. It is important that you tell your attorney that this is a lost lease case.

Non-Eviction Missing Leases

Often you will discover a missing lease during your own examination of the files. You will have to investigate carefully whether it appears that the lost lease has already expired, at which point the tenancy has become month to month. Florida Statutes require that the resident give fifteen days’ notice before the end of a monthly payment period in order to terminate a month-to-month tenancy. When you cannot produce the lease, and the resident attempts to non-renew during the apparent lease period, we would recommend not challenging the resident’s non-renewal notice in most cases, unless you have clear evidence of theft. Accordingly, the resident should not be charged any rent beyond the non-renewal date. The resident can be charged for damages in excess of ordinary wear and tear. The security deposit claim and return procedure 15-day (deposit returned in full) or 30-day (claim against deposit) clock starts when the apartment is vacated at the end of the month.

An Operations Decision

The resident may have his copy of the signed lease. Since you want the resident on a lease but your occupancy doesn’t afford you the luxury of losing a resident, you have to make an operational decision to tip your hand or not. If you do nothing, the best case scenario is that the resident performs as required under the written contract and pays rent until the end of the lease term. If a skip occurs, your ability to charge rent beyond the month the resident vacated early will be seriously compromised.

A Lease is a Must

If you want a lease signed, see the resident in person. Nothing replaces face-to-face contact in assessing the resident’s intentions. If he decides to stay but is reluctant to re-sign the old lease or sign a new lease, we don’t recommend trying to force the issue by sending a notice of non-renewal or a notice increasing the monthly rent, unless you are very confident that the missing lease has already expired.

LIHTC

A missing lease discovered during an audit can be critical in the low income tax credit property. As a rule a lease is always required. You can attempt to address this missing lease with a Seven Day Notice of Noncompliance with Opportunity to Cure, requesting that the resident produce his copy of the lease or re-sign the old lease. If the time period runs, I suggest a second Seven Day Cure. If the second time period runs, then you can send a Seven Day Termination notice, but a judge may be unsympathetic to the management office’s perceived incompetence, and without a signed lease showing the resident’s agreement to comply with LIHTC regulations, the eviction could fail for that reason.

Month to Month Fees

When you cannot produce a lease, late charges should not be assessed on a Three Day Notice, and your ability to enforce other terms and conditions can also be seriously compromised, such as repayment of concessions, or clauses addressing unauthorized pets or unauthorized occupants. If the lease is missing but one or more addendums is intact, the value of these addendums may be seriously diminished, but they may help in proving the intended duration of the tenancy. We still recommend that the manager adhere to the obligations created under the standard written lease, such as providing 30 or 60 days’ notice of non-renewal prior to the suspected lease expiration date.

Re-Signing

I’ll close with one last word on re-signing. A lease is a form of a contract. There is no requirement that a lease can only be signed at the beginning of the term. It is permissible for you and the resident to reprint and re-sign his old lease and date your signatures with the current date. This may be particularly helpful when the resident won’t sign a new replacement lease for an increased lease term.

 

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Each day it seems as if there is another spot in the world where there is conflict, or where destruction due to a natural disaster has occurred. Members of the armed forces are being deployed in large numbers to areas all around the globe. The event triggering the deployment may be obvious. For example, a war in the Middle East may be the cause of increasing the number of active duty military service-members. The event triggering the deployment can also be one that is less obvious, such as an earthquake in a foreign country where the military mission is to distribute massive relief aid. The increased military presence has also created more questions for property managers from residents who are service-members and family members of service-members who are unclear as to their lease obligations.

Background to the Service-members’ Civil Relief Act

The Service-members’ Civil Relief Act, also known as “SCRA”, is a federal law which affords service-members numerous protections in civil lawsuits. Some of these protections allow service-members or their family members, or dependents in some cases, to delay or suspend civil liabilities. The act was signed in to law by President Bush in 2003. However, the earlier version of the law was enacted during World War I and re-enacted in 1940 during World War II, and previously was known as The Soldiers’ and Sailors’ Civil Relief Act. Why were these laws created? The answer to that question is simple. Lawmakers wanted those who are serving in the military to remain focused regarding their mission to protect our country and did not want the service-members being distracted by civil lawsuits involving them. It is also the belief that service-members are at a distinct disadvantage in terms of defending themselves from a civil lawsuit while being stationed in a faraway land. Judges take this law very seriously and will in many cases “give the benefit of the doubt” to the military resident, if the outcome of the case is a close call. The United States Supreme Court in a 1948 opinion stated that the law should be interpreted “with an eye friendly to those who dropped their affairs to answer their country’s call”. The property manager attempting to evict a resident on active duty in the military or a resident in the process of reporting for active duty often encounters the following two areas that the Service-members’ Civil Relief Act covers: protection against the entry of default judgments, and a stay of proceedings when the service-member has notice of the proceeding. “SCRA” covers residential evictions of service-members or their dependents during the period of military service, unless the monthly rent is unusually high (currently an amount exceeding $2900.00; this amount is adjusted each year for inflation). “Dependents” are defined under the Act as the spouse of the service-member, a child of the service-member or an individual for whom the service-member provided more than one-half of the individual's support for 180 days immediately preceding an application for relief under “SCRA”.

Does the “SCRA” Apply to the Residents That I Intend to Evict?

Your three bedroom units are in hot demand because there are so few available in your market. Charlie, Wilma and Andrew are roommates and have stopped paying the monthly $2400 rent. You know that you can relet the unit the minute that the residents are evicted. You are very anxious to take back possession of the apartment. Yesterday, Charlie was called to active duty by the Coast Guard. Wilma is Charlie’s girlfriend, and up until 7 months ago when Charlie was laid off, she was supported entirely by Charlie for the last 27 years. He had paid for all of her living expenses. Much to Wilma’s dismay, Charlie has continued to pay for Andrew’s college expenses, even though Andrew is not a relative. In fact, Charlie has provided Andrew with 55% of his living expenses over the course of the last six months. Are Charlie, Wilma and Andrew covered by “SCRA”? The rent amount is low enough to fall under the act. It is clear that as a member of the Coast Guard on active duty, “SCRA” will apply to an eviction action filed against Charlie. With regard to Wilma and Andrew, they may have coverage if they are treated as “dependents” of a service-member. Unfortunately for Wilma, she is neither the spouse of Charlie, nor has she received enough living expenses in the recent past, since the service-member must provide more than half of the support during the preceding six months. Andrew, on the other hand, is considered a “dependent”, because he received 55% of his living expenses from Charlie during the last six months.

Obtaining a Default Against the Service-member or Dependent of the Service-member.

During the normal eviction scenario, if the resident does not answer the complaint after 5 business days, the manager is entitled to a default which is entered by the clerk of the court. The judge then will sign the final judgment of eviction. In the case of a service-member or dependent of a service-member, the process to obtain a default is more complicated. The judge, not the clerk of courts, must enter the default. To obtain the default, the manager must first provide the judge with an affidavit regarding the resident’s military service or the service-member who is a father, husband or financial supporter.  If the verification is inconclusive as to military status, the judge may enter a default but also require the manager to post a bond in a certain amount to protect the residents from damage, if the judgment is set aside at a later date because it turns out that one of the residents was a service-member. If the military verification shows that the resident, parent, or financial supporter is in the military, then the judge will order that an attorney be appointed to represent the resident. This attorney is called a military ad litem attorney. Extra costs are involved in this process, and courts may pass this cost on to the manager. The military ad litem attorney will attempt to locate the service-member and will review the case file to determine if there are any valid defenses that the service-member may assert. If the military ad litem attorney submits a report to the court that he does not believe that the resident has any valid legal defenses, the court then may enter a default and subsequently award possession back to the manager. Remember this: The Act calls for those who knowingly file false military verification affidavits to be fined and IMPRISONED FOR UP TO ONE YEAR. You read that right! You can end up in jail if you mislead the court here.

Potential 90 Day Stay

Cletus, one of your residents, has been called up for active duty in the Navy. Cletus did not pay the March rent. You deliver a three day notice, and subsequently file an eviction against Cletus after his continued failure to pay the owing rent. Cletus answers the complaint with an admission that he has not paid rent, but claims that there was some sort of oral agreement made with your assistant property manager, allowing him to pay late, and that he has been struggling with his bills since his deployment. Now that Cletus has responded, your attorney tells you that the military ad litem attorney is not required here, since the military resident filed an answer with the court and has therefore appeared in the action. You are happy to hear that, but your happiness is short-lived, because your attorney informs you that Cletus is likely entitled to a stay of the proceedings for at least 90 days. The Act will often entitle Cletus to a stay of at least 90 days, no matter how weak his legal defenses, if he can simply convince the judge his military service is adversely affecting his ability to timely pay the rent. The judge can stay the proceedings for a lesser period of time, but often judges will exercise their considerable discretion in favor of the service-member. The judge also has power to restructure terms of the lease, and has discretion to award a longer stay depending on the facts and circumstances.

Waiver By the Service-member

A property manager should still keep in mind that “SCRA” allows the service member to waive protections afforded under the act. Therefore, entering into a stipulation with the military resident is often a good idea. However, you should consult with your attorney to make sure the waiver wording listed on the stipulation is legally enforceable.

 

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No one would dispute that a soldier is deserving of respect. The soldier relinquishes his liberty to join the service and sometimes pays the ultimate sacrifice. Law makers have enacted various laws to protect service personnel in their dealings in the “civilian” world. Regardless of whether the law makers were motivated by esteem or by a desire to please voters, the result is the same. A person serving in the active military is entitled to special housing rights.

Nondiscrimination

A Florida manager may not discriminate against a service-member in offering a dwelling unit for rent or in any of the terms of the rental agreement. A violation of the law could subject the manager to same penalties as for changing the locks or turning off the electric service. Even if the service member had no financial damages, he would be entitled to at least three times the monthly rental rate, plus attorney fees and court costs.

Some counties and municipalities have their own ordinances that make it unlawful to discriminate against service-members. Besides making the manager pay damages, attorney fees and costs, these local laws often authorize the local government agency to investigate and file a complaint on behalf of the service-member. The significance of that is the resident may not need to find an attorney to help him. The city or county can sue the manager on the resident’s behalf.

Early Lease Termination

A resident who is in the military service can terminate the tenancy under certain circumstances. Criteria must be met:

1. The resident must give written notice 30 days prior to vacating.
2. The resident must give you a copy of the military orders that are the basis for the termination.
3. The resident’s circumstances must “fit” into one of the following categories:

A. The service-member is required, pursuant to a permanent change of station orders, to move 35 miles or more from the location of the rental premises;

B. The service-member is prematurely or involuntarily discharged or released from active duty or state active duty;

C. The service-member is released from active duty or state active duty after having leased the rental premises while on active duty or state active duty status and the rental premises is 35 miles or more from the service-member's home of record prior to entering active duty or state active duty;

D. After entering into a rental agreement, the service-member receives military orders requiring him or her to move into government quarters or the service-member becomes eligible to live in and opts to move into government quarters;

E. The service-member receives temporary duty orders, temporary change of station orders, or state active duty orders to an area 35 miles or more from the location of the rental premises, provided such orders are for a period exceeding 60 days; or

F. The service-member has leased the property, but prior to taking possession of the rental premises, receives a change of orders to an area that is 35 miles or more from the location of the rental premises.

Death of a Service-member.

If a service-member dies during active duty, an adult member of his immediate family may terminate the rental agreement by giving the manager a 30 day (at least) written notice of termination. The notice must be accompanied by either a copy of the military orders showing he was on active duty (or a statement signed by his commanding officer) and a copy of the service-member's death certificate.

Consequences of Early Termination

If the rental agreement is terminated under the special military statute, the resident is liable for the rent through the 30 day notice period. A pro-rated amount would be due if the thirty day notice ends in the middle of a month. The resident is not liable for any other rent or damages due to the early termination, no matter what the lease may say. The resident is not obligated to repay concessions.

If the service-member has not yet taken occupancy of the unit and gives at least 14 days notice of the termination, no damages or penalties of any kind can be assessed.

Nonwaiver

No part of the special military statute can be waived by the parties. The manager cannot have the resident sign an agreement that defeats the protections of the statute.

 

“Serving the Property Management Professional”

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The manufacture and use of methamphetamine, a highly dangerous, addictive and illegal drug is rampant throughout the United States. Usually it is manufactured in clandestine labs in trailers and homes in remote areas. Due to the severity of the problem, law enforcement has been making methamphetamine eradication a major priority. One of the big problems with methamphetamine manufacturers is the fact that they are often also seriously addicted to the drug they manufacture and sell. Once arrested, they may serve some time only to be released and resume the manufacture of the methamphetamine.

The Manufacture of Methamphetamine

Methamphetamine can be manufactured in any room of an apartment. The chemicals used are commonly available from the hardware store, paint store and online from chemical supply houses. All the ingredients used in the manufacture of methamphetamine are completely legal. Many of these ingredients are highly flammable, volatile and poisonous. Often a methamphetamine lab is discovered due to a fire or explosion.

What to Look For During Your Inspections

An operating methamphetamine lab will be simple to spot. You will see chemicals, propane tanks, burnt cookware, glassware, bottles of chemicals, and be struck with the odor of the noxious substances used in the manufacturing process. The problem is that in order to see it, you will need to enter the unit. Many property managers fail to conduct regular inspections of their properties and assume if the property looks nice and neat from the outside, an interior inspection is not necessary. All managers need to implement a policy of routine interior and exterior inspections. The interior inspection may be conducted less frequently than the exterior inspection, but in any event, inspections must be done on a regular basis. Severe damage can be done to an extremely valuable asset, and had an inspection been done sooner, often the damage could have been detected, stopped, or the resident could have been removed from the premises.

Items Which Could Indicate a Methamphetamine Lab

Glass jars with liquids or residues, large numbers of boxes of over-the-counter cold tablets, bottles of red phosphorous, iodine, sulfuric acid, hydrochloric acid, marked and unmarked bottles with colored or white solid on the bottom, coffee filters, strong noxious orders, laboratory type glassware, burnt cookware or frying pans, kerosene, paint thinners, acetone and starting fluid, piles of rechargeable batteries, propane tanks, pressure cookers, ice tea jars, gasoline cans with tubing.

Note: Almost all the above listed items are common by themselves. It is the collection of the items in one area which should raise some serious suspicion.

Behavioral Tip-offs

Unusual, paranoid behavior by the resident Nonpayment of rent, unemployment by the resident, blackened windows and drawn curtains, frequent visitors at all hours and excessive traffic, and, extensive security such as additional locks and reinforced doors

You Have Discovered a Methamphetamine Lab, Now What?

If you feel that there is the manufacture of methamphetamine on the premises, you should notify local law enforcement immediately. You should insist that they come with you to do an inspection, as often law enforcement does not immediately wish to shut down drug operations, but unfortunately want to watch the unit in question in operation for an extended period of time to get the “bigger fish”, or arrest a larger number of people. Notify your attorney immediately, and do not serve any notices without the attorney’s consultation and advice. Methamphetamine labs are extremely dangerous and sometimes booby trapped. Do not enter the unit again if you have strong suspicions, and leave this to the professionals.

Remediation and the Law

Many states are enacting laws which require complicated and expensive testing and remediation procedures based on the presence of certain chemicals in a rental unit. Sometimes the amount of the chemical needed to trigger remediation is so minute, it borders on absurdity. Some states have enacted laws which will require disclosure to future residents or adjacent residents. We are watching the laws carefully so Florida does not become one of those states. If your local municipality is dealing with this issue, please feel free to contact our office. Often local municipalities come up with ordinances that have not been properly thought out. We do not need the manager to become the victim in this war on drugs.

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The manager’s duty to maintain the rental premises can be found in FS 83.51 of the Florida Residential Landlord and Tenant Act. The statute can be confusing, because it mandates its coverage in broad language and then exempts certain situations and then overrides some exemptions. This is due to Florida’s building, housing and health codes moving from local to statewide application.

It is important to understand that the statute requires the manager to comply at all times during the tenancy, not just at the initial occupancy. The manager is subject to regulatory changes throughout the tenancy. Also, note that the statute distinguishes between a single-family home or duplex and a three or more unit building. In this article I will refer to the manager of a single family home or duplex as the “single-family” manager and the manager of three or more units as the “multi-family” manager.

FS 83.51(1) Building Codes

FS 83.51(1) mandates that the manager comply with all building, housing and health codes (hereafter just “codes” for short) or, in the absence of codes, comply with specific building and structural requirements. The definition of “building, housing and health codes”, which can be found in FS 83.43(1), is so broad as to encompass almost anything that applies to housing. Codes include both state and local housing regulations. Since local jurisdictions may have implemented more stringent regulation than is contained in the state codes and may have implemented other housing regulations, local ordinances should always be checked. If a visit from code enforcement, the health inspector, the fire marshal or any of the other myriad regulatory officials’ results in some infraction being discovered, the appropriate response is to remedy the deficiency diligently and thoroughly. This is important not only to avoid further issues with the regulatory authority, but also because unresolved violations are grounds for the resident to withhold rent or terminate the lease. Further, the resident may use a violation complaint to a government agency as the basis to accuse the manager of engaging in illegal retaliation, when the manager attempts to enforce rules, serves lease noncompliance notices (Seven-Day Notices), issues a non-renewal notice, or takes just about any action that the resident feels singles him out for alleged discriminatory treatment.

If there are no applicable codes, the statute requires that certain building and structural components be kept in good repair and capable of resisting normal forces and loads. It specifically lists roofs, windows, screens, doors, floors, steps, porches, exterior walls and foundations. It also requires that the plumbing be in reasonable working condition. At one time this provision may have been important in those areas of Florida without codes. Today the Florida Building Code and the health code apply on a state-wide basis. This part of the statute would have limited, if any, applicability. However, a judge, who is not familiar with the Florida Building Code, may look at the enumerated items as a guide to who should be responsible for the repair, for instance, of the screens.

The multi-family manager cannot modify his responsibilities for compliance with the codes. Any attempt to do so by the multi-family manager will be void and unenforceable.

FS 83.51(2): More Duties to Maintain

FS 83.51(2) contains additional maintenance obligations for the manager. The manager is responsible for:

1. Extermination of rats, mice, roaches, ants, wood-destroying organisms and bedbugs. The statute enumerates these pests. Note that bedbugs, a recent plague to managers, are specifically listed.

 

2. Locks and keys. Since the manager’s duty to maintain continues during the tenancy, damaged locks not the fault of the resident must be repaired by the manager.

 

3. The clean and safe condition of the common areas.

 

4. Garbage removal and outside receptacles therefore. The manager must supply outside garbage cans, if appropriate, and, if necessary, a dumpster, trash compactor other proper receptacle. This includes arranging for garbage pick-up in areas without county/municipal garbage service.

 

5. Functioning facilities for heat during winter, running water and hot water. One can immediately notice the absence of what some would say is the most necessary “functioning facility” of all in Florida – air conditioning.

 

The statute provides that the multi-family manager and his residents can agree under written leases that the residents are responsible for these maintenance duties. At one time this part of the statute was a benefit to managers. It is not much benefit today. The majority of codes now adopted in Florida place the responsibility for the duties listed in 1-5 above on the multi-family manager, and the multi-family manager is still responsible for these duties if the codes require it of him. For example, if the codes require a manager to remove garbage, then the codes control. Any agreement by the multi-family manager and his residents otherwise is void and unenforceable.

Charging the Resident

Although the multi-family manager may have to provide and the single-family manager may choose to provide garbage removal, water, fuel and utilities, they can require the residents to pay the costs and charges for these services.

Eviction Defenses

The statute contains another provision that at one time was helpful to managers, but with the state-wide application of the building and health codes, is not much assistance today. The resident may not use the manager’s failure to comply with the maintenance duties listed in 1-5 above as a defense to an eviction. However, the resident may use the manager’s noncompliance with codes as a defense to an eviction. Since most codes overlap the duties listed in 1-5 above, the codes are the resident’s defense.

Smoke Detectors

The statute requires the single-family manager to install working smoke detectors at the beginning of occupancy. The statute is silent as to any duty to maintain the detectors during the tenancy, so it appears permissible to require the resident to replace batteries and check that the detectors remain operational. The statute gives guidance on the type of smoke detector required. It gives no guidance on the number or placement of the detectors. Managers should check with their local fire marshals on these points. Although the statute does not require multi-family managers to install smoke detectors, the fire codes require such installation or more.

FS 83.51(4) Resident Fault

The manager is not liable for maintenance or repairs required by the statute, if the resident, his occupants or guests caused the condition by their negligence, intentional act or noncompliance with the lease or the statutes. While this may seem to shift the cost of maintenance and repairs to the resident when he, his occupants or guests are at fault, it can be difficult to accomplish in practice.

The manager bears the burden of proof in any litigation in which the manager claims the damage is caused by the resident, in an effort to hold the resident financially responsible for the repairs and as an explanation why the manager did not undertake the repairs, perhaps in response to the resident’s attempt to withhold rent.

The manager must prove that the resident, his occupants or guests caused the damage or that the damage was the result of their lease noncompliance.

Sometimes it’s easy to prove, and sometimes it’s not. The manager must also provide proof of the maintenance or repair cost. This may require vendors to appear in court to testify as to the cause as well as to the cost.

A manager may want to evict the resident for failure to reimburse the manager for a maintenance or repair bill that is alleged to be the resident’s responsibility. Many judges consider such costs to be a deposit claim issue to be resolved at the end of the lease, not a possession issue. This is true even if the lease provides that the resident is responsible for paying maintenance or repair costs when billed. The exception to this might be if the current costs are significant, exceed the security deposit by a significant amount, and the manager can show the judge the manager's property is being intentionally destroyed or abused. Even then the court outcome is not predictable.

Conclusion

The statute at one time was more beneficial to managers than it is today. With the advent of statewide codes and the proliferation of local additional codes or more stringent code provisions, the statute’s exemptions are of limited value today. The message of the statute today is that compliance with the codes is a serious matter. The failure to comply with codes can be used by the resident as the basis to withhold rent, terminate the lease or to defend against an eviction.

 

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Mailing the Three Day Notice is fraught with problems The resident can deny receipt of the notice, extra days must be added to the expiration date of the notice due to mailing, potentially more days added if payment is to be by mail, and the notice should not be called a Three Day Notice at all, since it will be far more than three days. Since a mailed notice will not be a true Three Day Notice, we will refer to the notice in this article as a “Notice to Pay Rent or Vacate”

Why Mail a Notice?

1. The lease may require it. The lease agreement may actually require that a Notice to Pay Rent or Vacate be mailed. A property manager will often inherit leases from other states or those drafted by attorneys who are unfamiliar with the workings of Florida law. The property manager faced with an unfamiliar lease needs to carefully read the lease to see if there are any clauses pertaining to the mailing of notices.

Many attorneys, feeling that mailing is a preferred way of the manager getting notice, draft a reciprocal clause in the lease requiring all parties to give notice by mail. If the lease requires notice by mail, this must be followed, even though Florida law does not require the mailing. While it may seem sensible to require a resident to give the manager notice by mail, unfortunately requiring the manager to do the same is unwise and can result in serious delays.

2. The manager chooses to mail the notice. Managers often choose to mail the Notice to Pay Rent or Vacate if the property is an excessive distance from their home or office. No manager wants to drive a long distance to serve a notice; thus, mailing is often the preferred choice. While we do not recommend it, we know that the realities of a long distance resident, where the manager may not have a local property manager, dictates this method of delivery.

How To Date the Notice to Pay Rent or Vacate if the Notice is Mailed

The expiration date of the Notice to Pay Rent or Vacate is dictated by the date of mailing of the notice and by how the resident is to pay the manager the rent.

Notice is Mailed and Resident is to pay rent by mail: 5 days must be given for mailing time, 5 days must be allowed for the resident to pay rent by mail and 3 business days must be given. The result? The notice has now become a Thirteen Day Notice to Pay Rent or Vacate which gives the resident 13 days excluding Saturdays, Sundays and Legal holidays from the date the manager mails the notice. Since weekends will always fall in the 13 business day period, we must allow at least 3 business days exclusive of the mailing times.

As you can see this method of delivery and payment will result in a substantial amount of time for the resident to pay the rent, resulting in a large loss of income for the manager in the event of nonpayment, as no eviction can be filed until the notice expires.

Notice is mailed and Resident is to drop off rent: If the Notice to Pay Rent or Vacate is mailed and the resident is to drop off the rent, the manager must use an Eight Day Notice. 5 days are given for mailing plus the 3 business days as required by Florida Statutes, not including Saturdays, Sundays or legal holidays. Again, mailing a Notice to Pay Rent or Vacate is not the preferred method, as it results in delay.

Mailing AND Posting or Hand delivering the Notice to Pay Rent or Vacate

With the exception of certain properties governed by special federal regulations, a Notice to Pay Rent or Vacate should NEVER be mailed AND posted on the premises or hand delivered, or unless it is (strangely) required by the lease agreement. If the manager posts a Notice to Pay Rent and then mails one, presumably the resident will receive the Notice to Pay Rent by mail between 2 and 5 days after the notice is posted. This causes confusion. In one case you are telling the resident they have a certain number of days not including Saturdays, Sundays or legal holidays to pay the rent, but then the resident receive the notice by mail at a later date, which says the same thing. Which notice applies? The mailed one might not allow enough time, while the posted or hand-delivered one may. This conflict causes confusion and ambiguity. The second notice received may cancel out the first notice, the second notice is possibly short, and the bottom line is that the notice is just legally improper.

Never serve a Notice to Pay Rent or Vacate by BOTH mail and posting on the premises or hand delivery. While it may seem logical that this will insure that the resident gets notice, the technicalities will render it invalid.

To Whom Must the Resident Pay Rent?

Typically, a resident pays rent to the same person at the same address throughout the tenancy. The problem arises when this address changes. How is the resident notified that the payment address has changed? Should the resident simply pay to whatever address is listed on the Notice to Pay Rent or Vacate? Due to the increasing numbers of out-of-state managers who are intent on managing their property from afar, situations will arise where the out-of-state manager decides to hire a property manager or designate someone his or her agent for the purposes of collecting delinquent rent. A new address on a Notice to Pay Rent or Vacate is not enough. The manager must notify the resident in writing of an address change or agent change, and often this is not done. Beware of the out-of-state manager who wishes that you “help” them with serving a notice or collecting rent. Proper authorization and direction by the manager is a must.

 

“Serving the Property Management Professional”

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