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

The Law and Prepaid Rent

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

 Prepaid Rent and a Resident’s Unwarranted Breach

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

Suppose the Resident Has a Warranted Breach?

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

Is the Manager “Used” to Accepting Prepaid Rent?

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

The Conclusion

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

 

“Serving the Property Management Professional”

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One type of eviction seems to generate the most confusion among property managers. Of course, I am referring to eviction for lease noncompliances other than nonpayment of rent. Why you ask? Evictions for nonpayment of rent are generally not complicated, because whether rent has been paid or not can usually be established fairly easily. Moreover, when the resident claims payment of a disputed amount, the resident has the burden of proof in court. On the other hand, attempting to evict a resident for criminal conduct or noise and disturbance related conduct can be very difficult. The reason these cases cause difficulty even for the most seasoned property manager is that judges require solid proof of bad activity on the part of the resident since rent was last accepted, and the burden of proof in this type of eviction case is on the manager. If you file your eviction case based on the resident’s conduct without strong, rock solid proof, then you risk losing your case. The repercussions of losing your case are enormous. First, the problem resident is allowed to remain on the premises, and often will continue to cause the same types of problems that led to the eviction action; neighboring residents will not be happy. Adding insult to injury, you may be held responsible for the resident’s legal fees and costs, an amount which could be quite substantial! Your Regional Manager will be none too pleased with that lousy outcome to your eviction case. A good attorney would counsel his or her client property manager to refrain from filing eviction lawsuits without the necessary proof. One source of information that is often needed to prove these kinds of cases are police reports. This article will serve as a guide to help the diligent property manager utilize police reports to help prove their lease noncompliance eviction actions. We will also point out the many myths and misconceptions that property managers have regarding police reports.

Police Reports are Inadmissible in Court

Jay is the community manager of a mid-sized apartment community. Over the past few months there has been a rash of burglaries. From the start, Jay had suspected Terrence and Lawrence to be the guilty parties, the residents in Apartment 2-B, as these issues began shortly after these residents moved in. Jay called his attorney and asked if he could evict based on the circumstantial evidence. Jay’s attorney told him that there was not nearly enough proof to cause a judge to approve an eviction of Terrence and Lawrence. Jay was disappointed, but was determined to remedy the burglary problem plaguing his community. Jay extended the hours that his courtesy officer was employed, and sure enough, one night the courtesy officer noticed Lawrence and Terrence kneeling in front of another resident’s window. The courtesy officer alertly called the local police who arrived on the scene. The police then caught the residents in the act of committing a burglary. The next day Jay obtained the report of the courtesy officer. Three days later Jay received his copy of the police report. Among the details in the police report was a notation that the resident was arrested, and the officer signed the report. An eviction was commenced, and Jay was unable to arrange for the courtesy officer or police officer to attend the hearing. Jay is stunned to learn that judge will not even look at the reports of either the courtesy officer or police officer, because they are “hearsay” and therefore inadmissible in court!

Explanation of “hearsay”

Hearsay is defined as an out of court oral or written statement offered to prove the truth of the matter being asserted. Many property managers believe that hearsay simply means that a person told you something, and you are prevented from admitting that statement into evidence at a court hearing. That is true to some extent, unless that person is in court with you. The reason is simple. If the witness cannot be called to the stand and cross-examined by the opposing party, then the statement is inadmissible. It would be unfair if you did not have the ability to cross-examine witnesses. However, there are many other types of evidence that property managers wrongly believe can be admitted in to evidence. For example, you cannot prove that a resident vandalized a unit by showing bills for the repairs to the judge, unless the vendor showed up in court with you and is a witness who could be cross-examined. The same applies to affidavits, whether they are notarized or not, estimates, and signed written witness statements, no matter how many. Whether it is 3 witness statements or 30, it is still hearsay, unless those residents or witnesses who authored the statements show up in court to testify. Likewise, if you have a police report in your possession which indicated the bad conduct on the part your resident, you are not getting that admitted into evidence, unless the officer who authored the report testifies in the court proceeding. It should be noted that the Florida law permits exceptions to the “hearsay” rule, including statements for the purpose of medical diagnosis and treatment, statement of a child abuse victim 11 years of age or less, and business records made at or near the time of the event, by a person with knowledge, kept in the course of normal business activity, provided that it was a regular practice of the business to make such a record. Police reports are not an exception to the “hearsay” rule in Florida. It should also be noted that in cases involving juvenile defendants, officers may be prohibited from testifying, which severely diminishes the value of the police report. Also, if an arrest is made by an undercover officer, typical in drug raids, the arresting officer’s name may be blacked out on the report, and you would not be able to have the officer testify in court. They might only testify in a criminal proceeding, not an eviction action, due to the confidential and dangerous nature of their job.

Police Reports Can and Will Help You Determine if Your Case is Strong.

It is essential that you are not surprised at your eviction hearing as to the facts of your case. A clear and detailed police report will help you determine if indeed the lease was violated. It should give you the relevant facts upon which you are basing your eviction. There should be dates and times and a narrative describing the improper conduct. If you believe that your resident committed a crime on the property, the police report better support that. For example, you may see an arrest take place right on the grounds of your apartment community. Does that mean that a crime took place on apartment community grounds? Of course not! Maybe there was an outstanding warrant, or the crime was committed 50 miles away. Many property managers locate the “Booking” report which is available online in many counties. These reports usually only contain the names, dates and reason for the arrest. They almost never tell you where the crime took place and often no written narrative or details are provided. If you request a police report from your local law enforcement agency, and they refer you to the “booking” report, tell them you need a police report with a full narrative, or else you will be unable to evict the problem resident. In most cases law enforcement will be sympathetic and will help you obtain the full police report.

Police Reports and Noise

Jane, against the advice of her attorney, decides to file an eviction based on noise disturbances. She has lined up two residents who have agreed to testify in court. Jane’s attorney warned her that residents rarely show up in court to testify against another resident at an eviction hearing. Guess what? The resident witnesses failed to appear at the hearing, and Jane’s eviction request was denied by the judge. Had Jane counseled her residents to call the police, she may have obtained a police report which verified the disturbance. Jane could have later issued a subpoena to the officer requiring his attendance at the hearing. Better yet, maybe the officer would have issued a noise citation to the problem resident. An effective property manager stresses to residents complaining of noise or disturbances that it is imperative they call the police.

Police Reports and Drugs

Miriam is the manager of a large apartment community. Last month, as she was walking into her office, she smelled pot. As she continued walking she saw a man in the breezeway smoking what appeared to be cannabis. Miriam would like to evict. Can she? The answer is no. The above scenario takes place all the time; Miriam should have contacted law enforcement. In this type of situation, the police will confiscate the suspected drug and will test it. You are not going to evict anybody for illegal drug use or possession unless the police confiscate the drug and obtain a positive field test, information that can be verified in the subsequent police report.

 

“Serving the Property Management Professional”

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One situation which often causes a leasing office to come to a grinding halt occurs when a prospective resident fails to show up to sign the lease, and instead, a person who is not listed on the lease or the application shows up and announces that he has a power of attorney and will sign the lease. At that point, the leasing agent may call the property manager, who in turn may call the regional manager, and still there may be no consensus as to what the proper course of action should be. Issues involving the power of attorney, (hereinafter referred to as a “POA”) crop up during a resident’s tenancy and even after the term of the lease has expired. Therefore, it is important for property managers to have a basic understanding as to what a POA document is, and how to deal effectively in regard to this area of the law with past, present and future residents along with third parties. This article will help you obtain a basic understanding of the POA process. However, as with other legal issues which property managers must navigate through on a daily basis, it is important that you contact your attorney if there is any doubt on your part as to what you should be doing. Make sure that your attorney is accessible, as POA related issues frequently pop up unexpectedly and require quick direction from your attorney.

What Does the Legal Term “Power of Attorney” Mean?

A POA is a legal instrument authorized by law under which one person or entity grants authority to an entity or one or more individuals to make decisions and take actions on the grantor’s behalf. The authority that is granted will be contained in the body of the POA. The authority can encompass a wide variety of transactions, known as a General POA, or can be limited to just one use or purpose, known as a Limited POA. The person granting the authority is referred to as the “principal”. The individual who is receiving the authority for the conduct or transaction is called the “attorney in fact”. In some circumstances a financial institution may be the “attorney in fact”. Do not be fooled by this fancy name; if somebody tells you he is an “attorney in fact”, that in no way means he is a licensed attorney authorized to practice law. The attorney in fact is considered a fiduciary and is obligated to act responsibly, due to the “trust” bestowed upon him by the principal. The party with whom the attorney in fact conducts a transaction is known as the “third party”. That is the role that the property manager or management has in these kinds of situations.

Florida Statute 709.08 Durable Power of Attorney

Tim, the property manager, made an appointment to meet with three prospective residents, Lucy, Cindy and Dwayne. Lucy and Cindy appear at Tim’s office, but Dwayne is nowhere to be found. Instead, Pablo subsequently arrives at the office and tells Tim that Dwayne gave him a POA. Tim asks Pablo where Dwayne is. Pablo tells Tim that he had invited Dwayne to Pablo’s 18th birthday party last week. While at the party, Dwayne decided to give Pablo and Pablo’s brother, Tommy, a Durable POA, authorizing them to handle any real estate transactions for Dwayne. Pablo displays the Durable POA document to Tim, and it lists Pablo and Tommy as attorneys in fact. Tim is wondering whether Pablo, at just 18 years of age, is old enough to take part in this process. In fact he is suspicious that the POA arrangement exists in the first place. Tim is also perplexed because there are two people who were given POA rights by Dwayne. Finally, Tim has never heard the term “Durable” used in conjunction with the POA process, and so this is further adding to his confusion. Florida Statute 709.08 sets forth the law regarding Durable POA documents in Florida drafted after October 1, 1995. This statute authorizes the attorney in fact to handle real estate transactions. In fact, it authorizes the attorney in fact to sell the house of the principal! Section 709.08 (1) states that a durable power of attorney is a written power by which a principal designates another as the principal’s attorney in fact. The section further adds that with the correct wording, the Durable POA can survive the subsequent incapacity on the part of the principal.

Are the Property Manager’s Concerns Addressed by the Statute?

Tim‘s concern regarding Pablo’s age is addressed by Section 709.08(2) which sets 18 as the minimum age to serve as an attorney in fact. Since Pablo is 18, he is old enough to be to be an attorney in fact. It turns out that Tim was right to have concern over there being two attorneys in fact. Section 709.08 (9) (a) requires that both attorneys in fact concur with respect to any exercise of the Durable POA unless the Durable POA document provides otherwise. Therefore, Tommy would need to sign the lease along with Pablo in order to bind Dwayne to the contractual terms of the lease. As mentioned, Tim is clearly skeptical that Pablo is the attorney in fact. The statute authorizes him to request that the attorney in fact sign a notarized affidavit attesting to (but not limited to) the following: that he is indeed the attorney in fact named in the Durable POA executed by the principal, the location of where the principal is domiciled, that the Durable POA is currently exercisable by the attorney in fact, and to the best of the attorney in fact’s knowledge, that the principal is not deceased, and that there has been no revocation of the POA by the principal or any outside judicial authority. If the above affidavit is provided to Tim, and both Pablo and Tommy are willing to sign the lease on behalf of Dwayne, then Tim better think twice before he refuses to allow the attorneys in fact to assert their powers. Section 709.08 (11) states that the unreasonable refusal of a third party to allow an attorney in fact to act pursuant to the power could subject the third party to liability for attorney’s fees and costs if the third party is sued and loses in court. That dollar amount could be quiet substantial. It is best to call your attorney if there is any doubt in how you should proceed before refusing to allow the attorney in fact to act. As you know, litigation can be very costly! You should also be aware that Florida recognizes the deployment-contingent POA. Section 709.11 of the Florida Statutes requires a property manager to accept a valid power of attorney that is signed in advance by the principal which takes effect once the principal is deployed by the military.

Common Mistake Scenario #1 (Improperly signed lease)

Marta, the property manager, is under the belief that she is leasing a one bedroom apartment to Chester Turnkey. Chester did not sign the lease. Robert Jones executed the lease on behalf of Chester instead. It turns out Robert was given a Durable POA by Chester. Robert showed the paperwork to Marta, and she sincerely believed the POA was valid. Marta handed the lease to Robert, who “signed” the lease by simply writing Chester’s name. Big mistake! The written lease was executed incorrectly. If Chester did move into the apartment, then there may be other legal grounds to evict him. However, if there is some unknown third party that moved into the unit other than Chester, there is no way Chester would be held responsible for the lease, and a more complicated legal procedure than an eviction may be required. Life would have been a whole lot easier for Marta had she made sure that Robert signed the lease properly as displayed below: The principal’s name (Chester Turnkey) By__________ Robert Jones Attorney-in-fact

Common Mistake Scenario #2 (Third party access)

It is very common for a property manager to receive paperwork from a resident, who for one reason or another, is located out of town. The resident will grant a POA to a friend to help manage his personal affairs. Why do you need to be careful in this type of situation? Massive liability for the property manager and/or Owner can follow if you allow the attorney in fact into the resident’s unit without proper documentation. A good property manager will read the POA that is presented to her with caution, and if need be, check with her attorney. It is very easy for the property manager who is in a hurry to make errors. For example, the POA form is often a pre-printed form which lists a number of different potential powers to be checked off. If the specific power governing disposition of personal property is not checked off, and you let the attorney in fact into the unit, you can be sure that the resident will sue you if anything real or imaginary is missing!

 

“Serving the Property Management Professional”

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A common practice among managers is to serve the Three-Day Notice, and if no payment has been made, serve the resident with an additional notice or letter to induce payment. This notice or letter is usually entitled “Final Warning”, “Eviction Notice”, “24 Hour Notice” or some kind of variation on this theme. The purpose obviously is to give the resident a final chance at paying the rent to avoid the necessity of an eviction filing by the property manager. Does it work? Yes, often the “post” Three-Day Notice letter or notice is highly effective, especially when a resident has received one before and has paid after the expiration of the Three-Day Notice. The problem is that the notice can cause serious problems with the procedure and prerequisites of filing an eviction action.

The Sacred Three-Day Notice

The Three-Day Notice is a condition precedent and jurisdictionally required notice which must be given in a non-payment of rent situation in order for the manager to proceed to filing an eviction action. It is a very specific notice, clearly spelled out in Florida Statutes, must be of a certain form, with specific rent items only allowed, and it must be prepared and served properly in order for it to be a valid Three-Day Notice. If there are any defects in the Three-Day Notice, it is quite possible that the eviction action will be dismissed, resulting in a further loss of rent by the manager, delays and potential liability for paying the resident’s attorneys fees.

The Effect the “Post” Three-Day Notice Communication Has on the Three-Day Notice

If a manager gives the resident any type of “post” Three-Day Notice letter or notice regarding the payment of rent or a last chance to pay, some case law has shown that the original Three-Day Notice is nullified or made void by the later notice or letter. While this doesn’t seem to make practical sense, the reasoning lies in the fact that Florida Statutes alone provides for and requires a specific notice prior to an eviction action. Any notices given after the Three-Day Notice can confuse the resident, and since not Florida Statute provided, will be made up by the manager and could create confusion on the part of the resident.

Should We Discontinue Using the “Post” Three-Day Notice Letter or Notice?

Our recommendation is that you cease using any notice after the service of the Three-Day Notice. As more and more cases are being contested at a higher rate, with more sophisticated and knowledgeable residents and attorneys, it is not advisable to do anything that can jeopardize the eviction action. If you have been using the “post” Three-Day Notice letter or notice in the past, a problem is created for future cases, as the resident who has received such a notice or letter before will be expecting this notice before you file an eviction. This detrimental reliance by the resident on your “post” Three-Day Notice letter or notice can actually now provide the resident with a defense when you did not use the notice or letter!

Practical Considerations

If you have been using a “post” Three-Day Notice letter or notice in the past, we recommend that you immediately cease this practice. It will be important though to notify the residents of this change in policy or procedure. You may want to use language such as the following:

Dear Resident,

In the past, our company has been sending out a “Last Chance Letter”, “24 hour Notice”, (insert name of your notice) after the expiration of the Three-Day Notice giving the residents a final chance to pay rent to avoid eviction.

From this point on, we will only be serving a Three-Day Notice as required by law. Any rent tendered after the expiration of the Three-Day Notice may be refused by us, and eviction proceedings may be commenced. This letter shall serve as notification that in the event you do not pay according to the stated due date on your lease, you may be subject to receiving a Statutory Three-Day Notice giving you three business days to pay the rent. No further notice or letter will be given.

Can We Continue Using the “Notice” or “Letter”?

Many managers will opt to continue using a “post” Three-Day Notice letter or notice, as it is without a doubt very effective in getting the resident to pay the rent. It is quite possible that the risks in giving the letter or notice are outweighed by the benefit of reducing evictions and receiving the rent. Each manager must decide the route to take. All we can say is, “You have been warned.”

“Serving the Property Management Professional”

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Many legal issues arise after there is damage or destruction of occupied premises. All situations should be dealt with on a case by case basis and you should get your attorney involved immediately. Often your compassionate accommodation of a resident will result in greater problems and liability to you and the property owner if not done properly.

RELEASING RESIDENTS FROM THE LEASE

It is imperative when releasing a resident from a lease that a proper release form is used which deals with the security deposit, prepaid rents, damages to the premises, date of vacating and abandoned property. We recommend the MUTUAL RELEASE.

TERMINATING THE TENANCY

 If your lease agreement has a clause which states that the lease may be terminated at the manager’s option upon the damage or destruction of the premises, you are probably safe to give a Seven Day Notice of Termination to the resident. If the lease fails to have a clause allowing such termination, we advise that you call your attorney immediately to see what options you may have. Check your lease carefully. Most leases only give the manager the option to terminate the tenancy if the premises are “destroyed”. This is a major problem as more often a property is not “destroyed” but is “damaged” to the point where you want the resident to vacate. Review and have your lease revised immediately.

TRANSFERRING A RESIDENT

It is not advisable to transfer a resident to another unit unless a Resident Transfer Addendum is signed by all parties. Failure to use such addendum can result in you having two units occupied by the resident and/or their belongings. If a resident is transferred, all items should be removed from the original premises before the resident is allowed to take possession of the new premises.

RENT REDUCTIONS AND CONCESSIONS

No rent reductions should be given or offered unless and until such time as you have consulted with your attorney and have written permission from the property owner. If the property is damaged and the resident is demanding a rent reduction or concession, please remember that if you and the resident cannot come to an agreement, a judge may eventually make the agreement for you with less than desirable results. Once an agreement is made, your attorney will write up a contract detailing all the terms. Nothing should be done verbally.

SECURITY DEPOSIT AND ADVANCE RENT

 

Once a resident has vacated the premises, you have 30 days to make the claim upon the security deposit. If you are not making any claim, you have 15 days to refund the entire security deposit and last month’s rent if applicable.  If you are refunding the security deposit or prepaid rents in an emergency fashion, it is imperative that you use the proper form. Call your attorney immediately.

MOLD AND MILDEW

 

There is an incredible increase in mold and mildew situations due to water intrusion and power outages. Over the next year, this will worsen as properties have suffered severe water intrusion and attorneys will be capitalizing on mold litigation.  If you have a proper Mold Addendum, you will be able to terminate the tenancy if there is mold or mildew present.

 

Call your attorney immediately if you receive complaints of mold or mildew and check each property carefully for mold and mildew.

“Serving the Property Management Professional”

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Pets can be a real nuisance and liability for the property manager or management. Beside the higher chances of damage to the premises, each year pet related injuries cost managers millions of dollars, some of which is not covered by insurance. Many insurance companies now simply disallow pets on the insured premises, and the manager must sign an agreement that pets are not allowed and if there is a pet related injury, the insurance company will not cover the claim. Most managers require the resident to sign a pet addendum or agreement which details the terms and conditions of the pet on the premises, and requires the resident to pay either a non-refundable pet fee or a pet deposit.

Ironically, the applicant for a rental is made to go through a vigorous application procedure under which the applicant’s credit, criminal background, and prior manager references are carefully checked, while the resident simply has to fill out a pet addendum and pay the required sum of money for a pet. The resident gets approved, the pet sums are paid, and the resident and his pet move into the premises. Three months into the rental, you inspect the property or have to repair a maintenance issue and you discover that the 25 pound Terrier on the application is indeed now a 40 pound Pit Bull Terrier. You were expecting this cute little dog and now are completely surprised to see this fierce and dangerous dog on the premises. Of course the resident assures you that the pet never bites, is great with children and is adorable, but you don’t agree, and if your insurance company found out, your coverage might be cut off FAST.

What Did the Manager Do Wrong?

 

The manager’s surprise is due solely to the fact that the pet was not shown to the manager prior to taking the resident’s pet fee or deposit and signing the pet addendum or agreement. Had the manager actually seen the pet at the application process, this never would be happening. This is purely an example of a problem that was completely avoidable if the manager simply interviewed not only the applicant, but was able to see the applicant’s pet BEFORE approval. Whose fault is it really that the resident now has a 40 pound Pit Bull? It is the property manager’s or the management’s fault. It is quite possible that the resident was telling the truth about her pet at the time of application. After all, a Pit Bull Terrier is a terrier and it could have gained 15 pounds in 3 months.

The Easy Solution

The easy solution that has been discovered by the savvy property manager and management in Florida is to have the resident fill out a pet application. The pet application deals with a number of issues, and the resident can be required to pay a fee for the pet application. The pet application is not to be confused or substituted for a properly executed pet addendum. This is the application for the pet. Like an application and approval is the prerequisite for a resident signing a lease, the pet application and approval is the prerequisite for the resident executing the pet addendum.

What Does the Pet Application Accomplish?

The pet application is the applicant’s request for permission to have the pet. The resident is not simply filling out a pet addendum and paying a fee; this is a permission based process. The pet application makes it clear that the fee for the pet application is an administrative fee and is NOT to compensate the owner for any pet damage which may occur. It is an application fee, pure and simple. The pet application makes it clear that the manager does not have to approve a pet, just like in most cases a manager does not have to approve a resident for residency. Information about the pet is provided, and most importantly, the applicant is required to bring the pet to the management office (or parking area) so the manager can observe the pet, take a photo and observe the demeanor of the pet. If the breed looks suspect, management can ask for further verification, just as with a resident. Finally, the applicant is asked about the pet’s history in an attempt to reduce liability for management. In the below sample, the pet application fee is refundable if the pet is not approved. You can modify this to make it non-refundable whether the pet is approved or not. This is up to you.

SAMPLE PET APPLICATION

This Pet Application is made as a part of the rental application for the property located at: _________________________________, Florida. I do hereby request that my pet be approved to reside with me during the term of my lease agreement. If my pet is a “Service Animal” or a “medically necessary pet” I will notify management in writing and this Pet Application will not be applicable.

NOTE: This is a Pet Application only and not approval for a pet unless approved by Management, a Pet Addendum is executed by all parties and all sums and fees are paid according to the Pet Addendum. In order for the pet to be permitted on the premises, the pet must be fully approved by Management, a Pet Addendum signed by Residents and Management and all fees paid including but not limited to an additional security deposit, pet deposit, pet fee or additional rent as required by Management.

I understand that Management is under no obligation to approve my pet for occupancy. The following pets will not be accepted under any circumstances: German Shepherds, Dobermans, Pit Bulls, Chows or Rotweillers, any mix of the aforementioned or any other breed or mixture thereof which Management decides to not approve.

In consideration of having a pet go through this application process, I agree to pay a Pet Application fee of $__________ to Management. I further understand that the Application Fee is strictly an administrative fee paid to Management and is not considered a security deposit or pet deposit. Management requires a photo of the pet for Management’s files, a copy of the pet’s vaccination information from the veterinarian and the pet must be brought to the parking area of the Management office for inspection by a representative of Management.

The Pet Application Fee will be refunded if Management does not approve the pet.

Breed: ___________________ Name: ___________________

Weight: ________________ lbs. Sex __M ___F Age: _______

Estimated Pet weight at maturity ______________ lbs.

I do hereby certify the following:

My pet is well trained, is not dangerous to others and does not have a propensity to be vicious. My pet has never bitten, clawed or caused harm to another person or other pet, and it does not bark excessively when I am home or not home. No other manager or person has ever complained about my pet or its behavior.

My pet is not pregnant and will not become pregnant while we are residing on the premises. If my pet becomes pregnant, I will be in violation of this agreement and the pet and any offspring must be immediately removed from the premises

I agree that there shall be no other pets, other then listed above on the premises without the express written approval of Management. Should I desire additional pets, I agree to apply to Management for approval, submit another Pet Application and obtain approval prior to pet occupancy.

In the event that my pet causes damage or destruction to persons or property, I agree that all costs of said damage or destruction shall come out of our Security Deposit and/or Pet Deposit. Should the Security Deposit or Pet Deposit be insufficient to cover the cost of any pet damage or destruction, then I agree to be financially responsible for damages above and beyond the amount of my security deposit.

If the pet becomes a nuisance or causes damage or destruction to the premises or otherwise violates the terms of this pet application, Management may terminate the pet’s right of occupancy and/or my lease agreement subjecting me to eviction.

I hereby agree to the terms and conditions of this Pet Application form this _____ day of __________________, 20____.

 

___________________________ Applicant

____________________________Applicant

____________________________Management

_____PET IS HEREBY APPROVED ___/____/____

 

______________________________ Management

 

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Many leases have a clause stating that the Tenant must give the Landlord a certain number of days’ notice in writing that they are vacating at the end of the lease.

 

If the Tenant fails to give this notice and vacates, the Landlord tries to charge the Tenant a specific amount for failure to give this notice. Florida law allows this, but if it is not done properly, the Landlord can find themselves in serious trouble and NOT be able to charge the penalty.

A careful reading and understanding of the law is crucial if the Landlord insists on charging the Tenant an amount for failure to give notice. Unfortunately, the law is a bit tricky, as it requires the Landlord to give the Tenant notice that they will be charging the Tenant for failure to give notice. This may seem like a tongue twister, but it simply is a requirement of the Landlord to “remind” the Tenant that the Tenant must give notice so the Tenant is not “surprised”.

TO LEGALLY CHARGE THE TENANT A PENALTY, THE LAW MUST BE FOLLOWED AND THE LANDLORD MUST HAVE GIVEN THE PROPER NOTICE TO THE TENANT IN THE NOTICE “WINDOW” PERIOD

83.575 Termination of tenancy with specific duration.--

1. A rental agreement with a specific duration may contain a provision requiring the Tenant to notify the Landlord before vacating the premises at the end of the rental agreement; however, a rental agreement may not require more than 60 days' notice before vacating the premises.
2. A rental agreement with a specific duration may provide that if a Tenant fails to give the required notice before vacating the premises at the end of the rental agreement, the Tenant may be liable for liquidated damages as specified in the rental agreement if the Landlord provides written notice to the Tenant specifying the Tenant's obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The Landlord must provide such written notice to the Tenant within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the Tenant under this subsection.

 

3. If the Tenant remains on the premises with the permission of the Landlord after the rental agreement has terminated and fails to give notice required under s. 83.57 the Tenant is liable to the Landlord for an additional 1 month's rent.

How it works: In order to enforce a clause in your lease that requires a Tenant to give you notice prior to lease end, you must do the following:

Give the Tenant a notice WITHIN 15 days of the beginning of the notice period you are requiring from the Tenant.

Example: Your lease requires 30 days notice from the Tenant. You must “remind” the Tenant of this by giving the Tenant notice of this sometime within days 30 and 45 prior to the lease ending.

Your Notice Must State the Following:

1. That 30 days’ written notice from the Tenant is required if the Tenant is leaving at lease end, and 2. Failure of the Tenant to give you notice will result in a charge of $_____________

NOTE: The amount can be no more than one month’s rent, and the lease must support this charge.

If you give the Tenant notice too far in advance, you will not be able to enforce the notice requirement. It is a STRICT 15 DAY WINDOW.

Common mistakes: The Landlord gives the Tenant too much notice. Many Landlords feel that since the lease states the notice requirement, this is enough or the Landlord will give the notice 60 days in advance and the lease only requires 30 days’ notice. Remember the notice to the Tenant must be given in a specific “window”, no more and no less.

Below is a sample notice:

SAMPLE RENEWAL OFFER WORDING

THIS SHOULD BE SENT OUT BETWEEN 1 AND 15 DAYS PRIOR TO THE BEGINNING OF THE TENANT’S NOTICE PERIOD AS DESIGNATED IN THE LEASE

According to your lease agreement, your lease shall expire on _________________. Landlord would like to give you some options.

Please mark off the appropriate selection below or your lease shall terminate on the above date and you must vacate at that time.

Option 1…We will vacate the premises on the above date.

Option 2…We wish to sign a new one year lease agreement at a rental rate of $______ per month.

Please return this to Landlord no later than 30 days prior to your lease end or your lease shall be deemed terminated at the end of the lease agreement, and you shall owe Landlord the “failure to give notice fee” in the amount of $__________ as per your lease agreement in addition to any amount due from you at that time according to the lease and/or Florida Law.

This offer by Landlord may be withdrawn at any time and for any reason by Landlord prior to Landlord and Tenant(s) written acceptance of this offer by signature of Landlord below and Tenant(s) below and Landlord fully executing a Lease Renewal or new lease if Tenant(s) choose Option 2.”

IF YOU DID NOT GIVE THE TENANT THE WRITTEN NOTICE IN THE “NOTICE WINDOW” PERIOD TELLING THE TENANT THAT THE TENANT HAD TO GIVE NOTICE AND TELLING THE TENANT THE PENALTY FOR FAILURE TO GIVE NOTICE, YOU ARE NOT ALLOWED TO CHARGE ANY PENALTY.

 

 

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In the current economic situation, managers are beginning to get desperate for the rent. Any rent. Residents are in financial hardships and rather than choosing not to pay rent at all, many will tender a partial payment of rent with possibly a promise to pay the rest at a later date. Many managers faced with this scenario will accept the partial payment and may or may not receive the rest of the rent at a later date. Other residents will pay partial rent for reasons that have nothing to do with their ability to pay, but rather due to some complaint they have concerning the premises that has not been rectified by the manager. This form of self-help on the part of the resident manifests itself in the resident sending the manager a partial payment, possibly accompanied by a letter indicating why the payment is partial and demanding some sort of repair. In either case, the manager is forced to make a choice to accept the partial rent or return the rent.

The Financial Hardship

Most commonly, the partial rent payment tender is due to a financial hardship the resident is suffering. The resident feels that by paying some rent to the manager, the manager will be appeased enough to hold off on filing an eviction action. This partial payment may or may not be accompanied by an explanation and a promise to pay the rest of the money at a future set date. Is it legal to accept a partial payment? Absolutely. Can you simply accept the partial payment and then give the resident a Three Day Notice for nonpayment of the balance? Yes, in most counties. The more important question is whether you should accept a partial payment due to other ramifications with the potential to cause future legal problems.

The “Lone” Partial Payment

There are usually two types of partial payments given in the financial hardship setting. One is the payment accompanied by a letter promising the rest of the money at a later fixed date, and the other is what we call the “lone” partial payment, which is simply the check or money order in the envelope for less than the full amount of rent. If you accept the lone partial payment, you can and should serve the resident with a Three Day Notice for the balance of the rent in most counties. If the balance is not received by the expiration date, you can then file an eviction against the resident.

The Partial Payment and “Letter”

If the partial payment is tendered to you and is accompanied by a letter in which the resident states when the next payment will be made to you on the balance, it is a bit more risky to accept the payment. While no real contract between you and the resident is created by such a letter or promise to pay, an inference can be made that by accepting the partial payment, you are accepting it under the terms laid out by the resident. In other words, by taking the money, you have agreed to the payment arrangements. Unless you are agreeing to the proposed payment arrangement, we do not recommend accepting the partial payment by the resident in this situation.

The Law and the Partial Payment

Florida law does not address the legal ramifications of accepting a partial payment and then giving a Three Day Notice to the resident and filing an eviction. Most Florida judges have no problem whatsoever with you accepting a partial, serving the notice and proceeding as usual. Some, and fortunately very few, judges feel that by accepting a partial payment form the resident, you waive your right to file an eviction in the month that the payment was made. Always check with your attorney to see if the judge or judges in your county have this view on partial payments. You would not want to be in a position where accepting a partial payment could result in tying your hands for the rest of the month.

The Waiver Issue

One of the big issues in Florida law is the “waiver issue”. Simply put, this means that by engaging in a course of action contrary to the terms of your lease, you have created a new payment method, and that you have possibly waived your rights to enforce the lease as it is written. Your course of conduct in allowing partial payments may be used by the resident to show that since partial payments were made a few times, this has now become a permissible way to make payment, and you as the manager are “stuck” with is. The waiver argument can be compelling in court, and judges are often unsympathetic to the manager who does not enforce the lease terms on multiple occasions and then suddenly decides that partial payments will not be accepted. The manager may have “waived their rights” and are then “estopped” from enforcing the lease terms. Many leases have clauses which clearly provide that the manager’s deviation from the lease terms will not create a waiver, but these clauses can become meaningless if the resident can show that the manager has a pattern of not enforcing the lease.

Should You Accept Partial Payments at All?

In a financial hardship situation, this is purely a business decision. Refuse them, and possibly you will get nothing, the resident will skip out on you, or you will have to evict. Accept them, and live with the consequences.

The “Non-Financial Hardship” Partial Rent Payment

While non-financial hardship partial rent payments are often financial hardship cases in disguise, there are many times when a resident feels that for some reason he should not have to pay the full amount of rent. There may be completely legitimate reasons, and the reasons can be many. The resident has a huge water bill and feels that there is a leak. The a/c has been out for days. The electric bill is excessive, possibly due to an a/c problem. A toilet is broken. A stove is broken. The list can be endless.

Can a Resident Withhold Rent?

The short answer is yes, under limited circumstances. This article will not address how, why and the mechanics of a proper resident rent withholding, but rather what to do when the resident simply takes it upon himself to deduct an amount from the rent.

The Resident Has Been Making Complaints

Although every situation is unique, you may deal with the resident making complaints about an alleged problem that is not addressed for whatever reason, and when the rent check arrives, it is a partial payment of rent. In a situation such as this, your acceptance of a partial rent can be governed by the aforementioned information in this article, but the chance that the rest of the rent will be paid later in the month is diminished greatly, as the resident feels that the value of the rental has been diminished and has taken matters into his own hands. We recommend that you do not accept this partial rent payment, and you address the resident’s issues immediately, asking your attorney for an opinion as to whether the resident has a right to withhold rent, or that allowing a reduced rent is the proper route to take. Remember that if you allow a resident to pay you a partial rent payment just one time because she is not satisfied with something in the unit, you open yourself up to the resident continuing to make partial rent payments in the months that follow under similar pretenses.

The Resident Gives You Complaint Letter Along With The Partial Payment

Along with the partial rent payment, the resident provides you with a letter stating why the rent is only being partially paid and outlines the complaints the resident may have, or even attaches bills for out of pocket expenses the resident may have incurred in repairing something. This is probably the most dangerous time to ever accept a partial rent payment. By accepting the partial payment along with the resident’s letter, a good argument can be made that you have agreed to accept the amount paid by the resident as full settlement of the outstanding rent balance. By accepting the money, you are arguably accepting it in accordance with the resident’s terms, and you have also potentially opened the door to the resident doing future repairs. In such cases we recommend that you not accept the partial rent payment and return it immediately. Again, if there are items that need to be addressed, they certainly should be to avoid later problems or litigation.

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When a lease is signed by two or more residents, what happens at the end of the lease when one resident gives notice to the manager that he or she will be vacating, and in fact does subsequently vacate? What if no notice is provided by one of the original residents, but it appears that a particular resident has clearly abandoned the premises some time during the original lease period? In either case, is the departing resident still responsible for lease obligations beyond the original lease term? Is the manager able to enter into a new lease with the remaining resident(s) and/or replacement resident(s)? What happens to the security deposit?

The Landlord/Tenant Act neither contains any specific provisions governing a change in parties after the original lease period, nor does the statute specifically indicate that the security deposit “stays with the property”.

If a month-to-month tenancy is created after the lease expiration date, a good argument can be made that all the original residents are still financially responsible for the ongoing tenancy. However, some judges may not hold this view, particularly if the departing resident gave written notice of vacating, and in fact vacated, prior to the original lease expiring. If a new lease is entered into with the remaining resident(s) and/or possibly even additional resident(s), then a change of parties from the original lease has occurred, and this is not a true “renewal” lease. If one of the original residents has apparently vacated for good but never provided any notice, we advise managers to be very careful before adding new parties to a subsequent lease. The manager should be very clear that the original resident is gone for good and that none of that resident’s personal property is still on the premises.

At the point where the manager contemplates a new lease involving a change of parties from the original lease, we recommend that a new security deposit be collected from the resident(s) on the new lease, and that an accounting take place on the original security deposit consistent with Florida Statute 83.49, with any refund check made payable to all original residents. If no new lease has been signed, but one or more of the departing resident(s) from the original lease demand a return of the security deposit, we recommend trying to collect a new deposit from the remaining resident(s) and making the accounting as described above. If the remaining resident(s) are unwilling or unable to put up a new deposit, then we recommend non-renewing the existing month-to-month tenancy, and to then make an accounting for the deposit by following the provisions of Florida Statute 83.49 with regard to all residents on the original lease.

 

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The problem of checks returned on insufficient funds (NSF checks) is often compounded by the manager’s subsequent actions.   What starts out as a frustrating nonpayment event can become an eviction case lost with liability for the resident’s attorney fees.  Every NSF check forces the manager to spend additional administrative time with such tasks as reversing the payment on the resident’s ledger and collecting the balance owed.  It seems reasonable that the landlord should be compensated for this additional time and work in the form of appropriate service charges.  Yet not all landlords are properly set up to pursue such charges. 

 

Dealing with a NSF check will depend on whether the resident remains in possession or has vacated.

 

Resident vacated – collection

 

If the resident has vacated, then the NSF check is simply a collection issue. The landlord adjusts the resident’s ledger to reflect the returned payment.  The landlord can address NSF checks just as he addresses any other amounts owed.  He can pursue collection on his own (send balance due letters and sue) or send the account to a collection agency.  The resident is liable for the face amount of the check, any bank fees incurred by the landlord and court costs, and attorney’s fees, if suit is filed.   The landlord may also pursue other civil and criminal penalties, as detailed later in this article.

 

Resident vacated – notice of claim

 

If a Notice of Intent to Impose Claim on Security Deposit has been sent, and the landlord is still in possession of the security deposit, and the 30 day period after vacating has not expired, the landlord can make an additional claim against the security deposit.  He sends an amended notice of claim by certified mail.  If a notice of claim has been sent and it already claimed the entire security deposit, then there is no point in sending an amended notice.  A balance due letter adding the NSF amount to the outstanding balance is all that’s needed.

 

Resident in possession – 3-Day Notice

 

If the resident is still occupying the rental premises, the landlord can serve a 3-Day Notice if the amount still owed is rent or additional rent.  In calculating the amount for the 3-Day Notice, the landlord should confirm that all amounts on the Notice, including any additional NSF service charges, are designated as rent or additional rent in the lease.  The landlord should serve a 7-Day Cure Notice for any amount owed that is not rent or additional rent.  If the NSF check was tendered for payment of an outstanding 3-Day Notice or 7-Day Cure Notice, then the prior Notice is still viable.  A NSF payment is not a valid payment and will not count as “payment” toward the Notice. 

 

Resident in possession - the demand letter.

 

A common mistake made by landlords is to send a demand letter for payment of the NSF check.  Almost universally, the demand letter gives the resident so many days to pay.  The landlord also serves a 3-Day Notice or a 7-Day Notice at or around the same time.  If the demand letter and the Notice have different response dates or time periods, the landlord has arguably voided his Notice.  Of course, the landlord’s attorney doesn’t discover this legal flaw until the eviction hearing, and may not be able to extricate the landlord from the strong defense competing notices can provide.   If the landlord loses the eviction case, he will likely be responsible for the resident’s attorney fees, if the tenant is formally represented.  NEVER SEND A DEMAND LETTER FOR AN NSF CHECK.  IF IT IS RENT, SERVE A 3-DAY NOTICE.  IF IT ISN’T RENT, SERVE A 7-DAY CURE NOTICE.

 

Resident in possession - the NSF statutory notice

 

Many landlords are aware that Florida provides for civil penalties under a NSF civil statute.  The best advice is to forego this statute and its penalties while the resident is in possession.  To invoke the statute, you must send a statutory form and give the person writing the bad check (usually the tenant) 30 days to pay.  While the 30-day period is running, any 3-Day Notice or 7-Day Cure Notice given may be invalidated, as the payment dates or time periods of such a Notice conflict with the statutory notice. 

 

Criminal penalties

 

Florida statutes provide for criminal penalties for intentionally writing an NSF check.  If a landlord is thinking of pursuing criminal penalties for NSF checks, he should first call the state attorney’s office for the county, in which the rental is located.  Some offices have established procedures and particular forms for their county.  A review of the appropriate websites may also provide the needed information and forms.  Just as with informal demand letters or statutory demand letters attempting to pursue civil remedies, the pursuit of criminal prosecution involves sending a formal demand letter to the person writing the bad check (again, usually the tenant), which demand will likely conflict with a 3-Day Notice or 7-Day Cure Notice, so we strongly recommend foregoing the criminal prosecution route while the tenant is in possession of the rental premises.

 

NSF service charges

 

If the lease provides for NSF service charges, then those charges will be applicable.  Florida law frowns upon imposing penalties upon residents.  Landlords are cautioned that service charges should approximate recovery of the economic loss caused by the NSF check for additional administration, loss of the use of the funds, etc.  Many leases follow the NSF statutory service charges, on the premise that these charges are a legislative indication of reasonable service charges.

 

The statutory service charges are:

$25 if the check is $50 or less,

$30 if the check is $51 to $300,

$40 if the check exceeds $300

 

OR

 

5% of the face value of the check, whichever is greater.

 

Bank fees

 

Almost all banks impose a fee on the landlord/depositor if a check bounces.  If the lease permits, than these fees are chargeable to the resident.  If the lease is silent or there is no lease, the landlord may still see reimbursement of the fees from the resident, but may have to resort to litigation to establish his right to reimbursement.

 

The landlord’s checks bounce

 

What about the fees charged by the bank for the checks that the landlord wrote in reliance on the NSF check?  Because the resident’s check bounced, now the landlord’s checks may be bouncing.  It is unlikely that these bank fees are chargeable to the resident.  Absent some extraordinary circumstances, the landlord is responsible for giving a deposited check sufficient time to clear before relying on it.

 

Keep the lease up to date

 

As a final point, landlords should check their leases to insure that NSF charges are assessed, and that these charges approximate current statutory service charges.  Leases should provide for reimbursement of bank service charges, and should include clauses providing for recovery of any collection fees or charges, including attorney fees and court costs.

 

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