DISPLAY OF UNITED STATES FLAG BY RESIDENTS

 

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

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

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

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

TEXT OF THE NEW FLAG LAW

FS 83.67 AS AMENDED

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

 

DISCOVERY OF A SEXUAL OFFENDER OR PREDATOR

 

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

 

Confirming Status and Address

 

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

 

Contacting the Resident

 

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

 

The SP/SO Has Your Address Registered

 

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

 

Visitor or Resident?

 

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

 

Notification to Other Residents

 

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

 

The SP/SO is on the Lease!

 

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

 

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

 

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

 

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

 

Some Practical Tips

 

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

 

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

 

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

 

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

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

 

DENIAL OF ACCESS BY RESIDENT

 

You are in the process of making your periodic inspections of units; you have given written notice and find out that your key does not work in the door. Apparently the resident has changed the locks without your permission and has failed to give you the keys. In another situation, the resident has called in and requested that a repair be made in the unit. You send your maintenance staff over, and the resident refuses to let your staff in to make a repair, saying it is not a convenient time. Your resident requests a repair to be made, you call to schedule the repair, and the resident states that you can only send the maintenance staff in if the resident is home, which happens to be after 7:00 p.m. Do these scenarios happen? You bet. This article will address the situation in which the resident is playing the “denial of access game”

 

The Law On Access

 

Florida law specifically addresses access rights by the manager, and your lease agreement may further address the issue.

 

83.53 Manager's access to dwelling unit.—

 

1. The resident shall not unreasonably withhold consent to the manager to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, residents, workers, or contractors.

 

2. The manager may enter the dwelling unit at any time for the protection or preservation of the premises. The manager may enter the dwelling unit upon reasonable notice to the resident and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The manager may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

 

1. With the consent of the resident;

 

2. In case of emergency;

 

3. When the resident unreasonably withholds consent; or

 

4. If the resident is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the resident notifies the manager of an intended absence, then the manager may enter only with the consent of the resident or for the protection or preservation of the premises.

 

The Resident Lock Change

 

If the resident changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the resident is forbidden to change the locks. The resident is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the resident has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized resident lock change really is the easy case and does not pose too many problems if the resident complies and gives you a key. There are many reasons why a resident may have changed the locks, and as long as the manager has access, this is usually not a real problem.

 

The Denial of Access “Game”

 

If your resident has requested a repair and then denies you or your maintenance staff access, or makes it unreasonably difficult or impossible to make repairs by telling you that she must be present, or requiring you to come after business hours, you must jump into action. Residents will use the request for repairs as a way to either set up a lease break scenario or put themselves into a rent withholding posture. If the resident ends up breaking the lease or withholding the rent with an eviction ensuing, the resident may try to claim that numerous requests for repairs went unmet. You may then need to establish to a judge that you were denied access. The resident will have a wonderful story of how numerous repair calls were made, work orders were turned in, and no one was ever sent to make the repair. You will be flabbergasted and tell the judge that you made several attempts, and eventually gave up as the resident was making it nearly impossible to get the repairs accomplished. Now you are at the mercy of the judge to either believe you or the resident, who may be able to lie more convincingly than you can tell the truth. This is bad position to be in.

 

Repair Requests and Strategy

 

The moment a repair request is made by the resident, it should be dealt with quickly. Can you simply go to a unit and make a repair after a phone call from the resident? Yes, but it is a bit risky if the resident did not expect you to come when you did, and you and your maintenance staff can be accused of theft or trespass when the resident is surprised. If you go to the unit without any notice and the resident is home, the resident may deny you access, and it could be looked on as legitimate by a judge. Your lease or resident handbook should clearly lay out the procedures for repair requests, but as we know, many managers fail to do so.

 

Once the repair request is made, if it is something that needs immediate attention, the resident should be called and told that you or your maintenance staff will be out within a specific time window. The resident may have a pet that needs to be secured, and it is just a matter of courtesy to coordinate something like this with the resident. At this point in time, the resident may begin to deny you access. If the resident insists that she be home for the repair, this should be accommodated if possible. However, if the repair need is of an emergency nature, do the repair without accommodating this request, if need be. If the resident demands that you come after normal business hours, this may be construed as a denial of access, especially if your resident handbook or lease clearly states the hours that repairs will be made. The resident may verbally agree to you coming to the premise for the repair, and upon arrival the resident informs you that you cannot make the repair at that time. This is when you must jump into action.

 

The Resident Refuses You Access

 

If the resident has already stated when you can or cannot come to make a repair, or has made it clear that your staff or repair person cannot come during regular business hours, you must immediately begin to document the steps you are taking to get the repair accomplished and the roadblocks that the resident is putting up. All phone calls, work orders, responses and witnesses need to be documented for later use. If you go out to make the repair and the resident flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the resident when you will be back using a written notice. If the resident refuses access again, attempt to have the resident sign your notice proving that she refused the repair. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the resident unreasonably denying access after have been provided notice of repair. Now it is time to try again. You have given the resident a WRITTEN notice of when you will be returning to effectuate the repair; honor the notice. If the resident again refuses you access, document everything all over again. If you don't expect cooperation by the resident, always have a witness with you to show that the resident has refused the repair. You see, you are now part of the game, and you want to give yourself the best chance to win this game if you end up in court. Everything must be done in writing, and every denial of access must be documented.

How far do you go?

You may wonder how may times you must try to make a repair and be denied; there is no firm number. Ask your attorney if you have enough proof that you could potentially present into court to prove your attempts and the resident’s actions. Remember that your word in court will not go too far in this game. Your clear documentation and persistence at attempting a repair, and the resident’s thwarting of same, will be the key to success in winning an eviction in which the rent was withheld, or attempting to collect rent from a resident who has breached the lease by complaining about repairs and vacating prior to lease end.

 

DENIAL OF ACCESS BY RESIDENT FOR SHOWING A PROPERTY

FOR SALE OR RENT

 

 

 

The Law On Access

 

Florida law specifically addresses access rights by the landlord/agent/manager, and your lease agreement may further address the issue.

 

83.53 Manager's access to dwelling unit.—

 

1. The resident shall not unreasonably withhold consent to the manager to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, residents, workers, or contractors.

 

2. The manager may enter the dwelling unit at any time for the protection or preservation of the premises. The manager may enter the dwelling unit upon reasonable notice to the resident and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The manager may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

 

1. With the consent of the resident;

 

2. In case of emergency;

 

3. When the resident unreasonably withholds consent; or

 

4. If the resident is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the resident notifies the manager of an intended absence, then the manager may enter only with the consent of the resident or for the protection or preservation of the premises.

 

The Resident Lock Change

 

If the resident changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the resident is forbidden to change the locks. The resident is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the resident has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized resident lock change really is the easy case and does not pose too many problems if the resident complies and gives you a key. There are many reasons why a resident may have changed the locks, and as long as the manager has access, this is usually not a real problem.

 

Seven Day Notice

 

If your resident is refusing access for showings, the resident must be served a Seven Day Notice To Cure. In an eviction action you may then need to establish to a judge that you were denied access by making written appointments and being able to prove that each time, you were denied access.  You must be able to prove you gave written notice to the resident and the resident has told you that you have no access or you went to the unit and the tenant denies you access.

 

The Resident Refuses You Access

 

If the resident has already stated when you can or cannot come to show the unit, or has made it clear that you cannot come during regular business hours, you must immediately begin to document everything and the roadblocks that the resident is putting up. All phone calls, emails, responses and witnesses need to be documented for later use. If you go out to show the unit and the resident flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the resident when you will be back using a written notice. If the resident refuses access again, attempt to have the resident sign your notice proving that he or she refused you access. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the resident unreasonably denying access after have been provided notice. Now it is time to try again. You have given the resident a WRITTEN notice of when you will be returning to honor the notice. If the resident again refuses you access, document everything all over again. If you don't expect cooperation by the resident, always have a witness with you to show that the resident has refused access. Everything must be done in writing, and every denial of access must be documented.

 

EVICTION

 

If you can prove you gave notice on multiple occasions and the resident has refused your showing on multiple occasions, we may be able to file an eviction.

 

NOTE: You can never force yourself in for showings or show the unit if you have been told you cannot show the unit and if you do, you may be civilly sued or possibly arrested and criminally charged.

 

 

 

DENIAL OF ACCESS BY TENANT

(Article applies to inspections, showing and repairs)

 

 

 

You are in the process of making your periodic inspections of units; you have given written notice and find out that your key does not work in the door. Apparently the tenant has changed the locks without your permission and has failed to give you the keys. In another situation, the tenant has called in and requested that a repair be made in the unit. You send your maintenance staff over, and the tenant refuses to let your staff in to make a repair, saying it is not a convenient time. Your tenant requests a repair to be made, you call to schedule the repair, and the tenant states that you can only send the maintenance staff in if the tenant is home, which happens to be after 7:00 p.m. Do these scenarios happen? You bet. This article will address the situation in which the tenant is playing the “denial of access game”

 

The Law On Access

 

Florida law specifically addresses access rights by the manager, and your lease agreement may further address the issue.

83.53 Manager's access to dwelling unit.—

1. The tenant shall not unreasonably withhold consent to the manager to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.

 

2. The manager may enter the dwelling unit at any time for the protection or preservation of the premises. The manager may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The manager may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

 

1. With the consent of the tenant;

 

2. In case of emergency;

 

3. When the tenant unreasonably withholds consent; or

 

4. If the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the manager of an intended absence, then the manager may enter only with the consent of the tenant or for the protection or preservation of the premises.

 

The Tenant Lock Change

 

If the tenant changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the tenant is forbidden to change the locks. The tenant is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the tenant has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized tenant lock change really is the easy case and does not pose too many problems if the tenant complies and gives you a key. There are many reasons why a tenant may have changed the locks, and as long as the manager has access, this is usually not a real problem.

 

The Denial of Access “Game”

 

If your tenant has requested a repair and then denies you or your maintenance staff access, or makes it unreasonably difficult or impossible to make repairs by telling you that she must be present, or requiring you to come after business hours, you must jump into action. Tenants will use the request for repairs as a way to either set up a lease break scenario or put themselves into a rent withholding posture. If the tenant ends up breaking the lease or withholding the rent with an eviction ensuing, the tenant may try to claim that numerous requests for repairs went unmet. You may then need to establish to a judge that you were denied access. The tenant will have a wonderful story of how numerous repair calls were made, work orders were turned in, and no one was ever sent to make the repair. You will be flabbergasted and tell the judge that you made several attempts, and eventually gave up as the tenant was making it nearly impossible to get the repairs accomplished. Now you are at the mercy of the judge to either believe you or the tenant, who may be able to lie more convincingly than you can tell the truth. This is bad position to be in.

 

Repair Requests and Strategy

 

The moment a repair request is made by the tenant, it should be dealt with quickly. Can you simply go to a unit and make a repair after a phone call from the tenant? Yes, but it is a bit risky if the tenant did not expect you to come when you did, and you and your maintenance staff can be accused of theft or trespass when the tenant is surprised. If you go to the unit without any notice and the tenant is home, the tenant may deny you access, and it could be looked on as legitimate by a judge. Your lease or tenant handbook should clearly lay out the procedures for repair requests, but as we know, many managers fail to do so.

 

Once the repair request is made, if it is something that needs immediate attention, the tenant should be called and told that you or your maintenance staff will be out within a specific time window. The tenant may have a pet that needs to be secured, and it is just a matter of courtesy to coordinate something like this with the tenant. At this point in time, the tenant may begin to deny you access. If the tenant insists that she be home for the repair, this should be accommodated if possible. However, if the repair need is of an emergency nature, do the repair without accommodating this request, if need be. If the tenant demands that you come after normal business hours, this may be construed as a denial of access, especially if your tenant handbook or lease clearly states the hours that repairs will be made. The tenant may verbally agree to you coming to the premise for the repair, and upon arrival the tenant informs you that you cannot make the repair at that time. This is when you must jump into action.

 

The Tenant Refuses You Access

 

If the tenant has already stated when you can or cannot come to make a repair, or has made it clear that your staff or repair person cannot come during regular business hours, you must immediately begin to document the steps you are taking to get the repair accomplished and the roadblocks that the tenant is putting up. All phone calls, work orders, responses and witnesses need to be documented for later use. If you go out to make the repair and the tenant flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the tenant when you will be back using a written notice. If the tenant refuses access again, attempt to have the tenant sign your notice proving that she refused the repair. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the tenant unreasonably denying access after have been provided notice of repair. Now it is time to try again. You have given the tenant a WRITTEN notice of when you will be returning to effectuate the repair; honor the notice. If the tenant again refuses you access, document everything all over again. If you don't expect cooperation by the tenant, always have a witness with you to show that the tenant has refused the repair. You see, you are now part of the game, and you want to give yourself the best chance to win this game if you end up in court. Everything must be done in writing, and every denial of access must be documented.

How far do you go?

You may wonder how may times you must try to make a repair and be denied; there is no firm number. Ask your attorney if you have enough proof that you could potentially present into court to prove your attempts and the tenant’s actions. Remember that your word in court will not go too far in this game. Your clear documentation and persistence at attempting a repair, and the tenant’s thwarting of same, will be the key to success in winning an eviction in which the rent was withheld, or attempting to collect rent from a tenant who has breached the lease by complaining about repairs and vacating prior to lease end.

 

DEATH OF THE TENANT

For many years, managers had to deal with a glitch in Florida law when the last remaining tenant died leaving personal property in the rental unit. Can the property be disposed of? Is the unit tied up forever? Can the unit be rerented? Suppose an estate is not opened? All these problem have been solved due to the passage of legislation which modifies Florida Statutes 83.59 and 83.67, the sections that define when a manager may take possession of the property and how to deal with abandoned property.   NOTE – YOU MUST MAKE SURE YOUR LEASE IS UP TO DATE TO REFLECT THE NEW LAW  SO IF YOU INHERIT A LEASE, LOOK AT IT.

The Old Law

To put it simply, there wasn’t any law that specifically addressed the tenant death/abandoned property situation. When a tenant died, if the family of the deceased were to have an estate opened up and a Personal Representative (in some states this is called an executor) were appointed, the manager could simply deal with the Personal Representative, agree that the unit was abandoned or surrendered, serve notices on the Personal Representative or actually file an eviction on the deceased tenant through the Personal Representative. While this seems simple enough, in most cases no estate was ever opened by the relatives of the deceased, and the manager was left with no real option but to hire an attorney at great expense and force open an estate, after which a Personal Representative would be appointed by the probate court.

Why Would the Relatives Usually Not Open Up An Estate?

Most people as they age begin to do some basic estate planning which usually includes placing any assets such as bank accounts and stocks in joint names with a relative. Upon death the money now belongs in full to the joint account holder(s) or to a beneficiary on the account. Upon death, this leaves the living relatives having to deal with personal property only, and there is no real benefit to or need by the relatives to open up an estate.

Would the Manager “Force Open An Estate”?

Most managers did not choose this route due to the time and expense, and simply placed the remaining items into storage and waited until they could not take it any longer. They then disposed of the property, always wondering and worrying if a relative would later appear claiming that the manager disposed of some valuable property which the relative was entitled to under a will or otherwise. This could have exposed the manager to serious liability and a major lawsuit. Fortunately, that worse case scenario rarely happened, since when the resident died, the relatives often descended on the rental unit, gained access somehow, took what they wanted and left, leaving unwanted personal property behind.

The CURRENT Law

Florida Statutes 83.59 defines when a manager has the right of possession of the property. The manager has the right of possession after an eviction has been completed, when a tenant surrenders the premises and when the unit has been abandoned. The new law adds to the definition of abandonment:

FS 83.59 (d) When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the manager has not been notified in writing of the existence of a probate estate or the name and address of a personal representative. This paragraph shall not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s.202, s. 221 (d) (3) and (4), s. 236, or s.8 of the National Housing Act as amended.

The Mechanics of the Resident Death

Under the new law if the following is in place, the unit is considered abandoned.

1. The last remaining tenant is deceased
    
2. Personal property remains on the premises
    
3. Rent is unpaid
    
4. At least 60 days have elapsed since death
    
5. The manager has not been notified in writing that there is an estate opened or that a personal representative has been appointed.

Why Do We Need to Wait 60 Days?

While it would have been ideal if this time period was shorter, it takes time for an estate to be opened, and this allows the relatives the time to hire an attorney and effectuate this if they intend to do so, and time for the manager to be notified.

Now What About the Abandoned Property?

Getting possession of the unit is indeed the manager’s primary goal, but now we still have abandoned property left behind; prior to the new law, this was the main problem. This is dealt with in 83.67, which sets out when and how abandoned property can be removed. The amended 83.67 now allows the removal of personal property if the manager takes possession of the unit by “recovery of possession of the dwelling unit due to the death of the last remaining resident in accordance with 83.59(3) (d)”. As you can see, now both these statutes tie in nicely to allow for the unit to be considered abandoned and allowing the manager to dispose of the abandoned property.

Some Final Thoughts

Since a manager will not have to deal with this situation on a regular basis, we recommend that upon a tenant death, the manager contact us to make sure all the steps have been followed. As the statute indicates, some federally governed programs are excluded, and legal advice is always recommended to avoid a potentially expensive mistake.

NEW UPDATED WORDING FOR YOUR LEASE – note this is in most leases now

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

TIPS          1. CHANGE THE LOCKS IF YOU THINK SOME OTHER TENANT OR PERSON HAS A KEY. ITS IS A GOOD IDEA TO CHANGE THE LOCKS NO MATTER WHAT.

2. A DURABLE POWER OF ATTORNEY OR ANY POWER OF ATTORNEY HELD BY SOMEONE HAS NO MEANING. THE POWER OF ATTORNEY DIES AND HAS NO MORE MEANING WHEN THE TENANT DIES.

3. AN EMERGENCY CONTACT HAS NO MEANING WHEN IT COMES TO ACCESS.

4. A RELATIVE HAS NO RIGHTS TO ACCESS OR POSSESSION OF THE PERSONAL PROPERTY OR THE UNIT.

5. HAVE A LICENSED AND INSURED HAZMAT REMEDIATOR CLEAN THE UNIT IF THIS IS NECESSARY, DISPOSING ONLY ITEMS THAT MUST BE DISPOSED OF.

6. IF A PERSONAL REPRESENTATIVE A/K/A EXECUTOR IS APPOINTED CALL US ASAP

Provided by:

LAW OFFICES OF                                    

HEIST, WEISSE & WOLK, P.A.                            

1 800 253 8428

DEALING WITH THE UNIT FIRE

Experiencing a unit fire is inevitable in a property manager’s career. Most often in the early morning hours and due to a cooking incident, a unit fire results in chaos, and decisions are often made hastily by the property manager who has little experience with such an event. Since a unit fire is fortunately not an everyday occurrence for the manager, preparation needs to be taken now for the time when a fire will occur. There are a myriad of issues that have to be dealt with under the worst of conditions. After the fire, the next day and days to follow will hold even further surprises and challenges that the manager has absolutely no experience in dealing with. What seems to be the best thing to do at the time, or using common sense, will most likely result in the wrong decision. This article will examine the preliminary problems that arise at the time of a fire and shortly thereafter.

The Night of the Kitchen Fire

Your parking lot is filled with fire trucks, all the residents are outside, and the fire department is using its usual massive amount of water to put out the kitchen fire, cut holes in the walls and break all the windows in the unit. Seems odd, but we will leave that alone. It just seems to be the way it is done. The fire is out, and now you are dealing with one or more units that are uninhabitable due to fire, smoke or water damage and along with that are the displaced residents who have no idea what is going to happen next. But wait! You have 2 vacant furnished corporate units and a model unit. So what do you do? Nothing, right yet.

Calling Your Water Extraction Professional While the Fire is Burning!

Any reputable water extraction and drying company will have an emergency number and will be out to your property immediately, usually within the hour. This is their job. It is your job to have such a company set up far ahead of time, have their number on speed dial, and take the drying of the affected units as seriously as possible. You cannot let the most heavily destroyed unit overshadow the other units which may have experienced flood damage. The sooner these units are attended to with proper drying and water extraction, the less money you will have to spend later on mold remediation or major replacement of drywall, cabinets and carpeting. More importantly, if you end up experiencing mold growth, or it is discovered later that you have to replace more carpet and drywall; you increase the odds of having legal problems when residents try to withhold rent, claim damages to their personal property or complain of health issues. If your company has tried to take the dangerous shortcut and bought a bunch of blowers, understand that using these blowers could dramatically increase your liability and legal exposure. Blowing around mold spores is not the way you dry out carpets or walls.

The Big Mistake

Your water extraction/drying company is on their way, so that potential problem is addressed. Naturally, you are feeling extreme sympathy for the displaced residents and want to make them as comfortable as possible and as soon as possible. After all, it is all about customer service and resident retention, correct? So you get the keys to the corporate units and the model unit and tell the residents that they can temporarily use the units, units which by the way are nice, clean and filled with beautiful rental furniture. What’s the problem here? The problem comes a little later.

Allowing the Residents Who Caused the Fire in Their Unit to Occupy a Corporate Unit or Model

Although your residents caused the fire due to their own negligence, you have placed them in your corporate unit. The unit where the fire occurred turns out to be badly damaged; the rehab of the unit will be thousands of dollars, and the residents will NOT be able to move back in any time soon. Then, there becomes a dispute about how the fire started. WHAT? The residents say that the stove was defective. You know that they just had a grease fire that was their fault. However, the Fire Marshal cannot make a proper determination, since the stove has been so badly damaged by the fire, and the firefighters who pulled it from the wall pretty much tore everything up in the process. The residents’ family now are comfortable in the corporate unit with the rental furniture and wide screen TV’s, and even though you have other vacant units for them to move into, they have decided not to leave. It is now a full week after the fire. You call your attorney, and he tells you that the eviction may be extremely difficult if there is no lease agreement or if it is unclear what type or arrangement has been created. Without a true landlord/tenant relationship, the Landlord/Tenant Act does not apply, and you cannot file an eviction. Possibly a wrongful detainer action will need to be filed if the residents refuse to vacate.

Allowing Other, Innocent Residents Affected to Occupy a Corporate Unit or Model

Often, other units have been affected by the fire, smoke and most commonly water that has cascaded down the walls. Again, you decide to help the affected residents out the night of the fire, and you put them in your nice model unit. After all, it will just be a couple days, right? Now comes the fun part. The affected unit below the unit that had the fire was flooded pretty badly, still smells like smoke, and within 3 days mold is already growing on the walls and furniture. The residents refuse to move back in until you replace their furniture, or if they do move to another unit in your community or elsewhere, they want moving expenses and money that they believe is owed, as much of their furniture needs to be replaced and is covered in mold. The fire was not their fault, and they feel that you should do something about it and make them whole. You just rolled into the next month, and the residents are refusing to give you a dime, all the while using your model unit and all the utilities. Again, you call your attorney and he gives you the same story: no lease, and possibly no tenancy under which an eviction is possible.

Avoiding the Problem

When there is a fire or any other natural disaster for that matter, the Red Cross is well equipped to deal with the immediate needs of individuals. They are prepared and equipped to assist the person whose unit had the fire and others who were affected by the fire. The Red Cross will give the individuals vouchers for hotels, clothes and food. Hundreds of Red Cross volunteers throughout Florida respond to fires and disaster every single day, and they are the ones to whom you need to leave the task of housing the residents. While this may seem harsh or cruel when you have empty units, models or corporate units just sitting there, please trust us on this. We see this all the time, and we know what we are talking about. While you may deal with a fire once every 5 years, we deal with them every single week, due to the sheer number of property managers we represent. Just resist the temptation and don’t house the displaced residents. If for some reason the Red Cross is not there and the residents have absolutely nowhere to go, call a local hotel, pay for a specified number of nights, and make it clear that you will absolutely not pay for one more night. You do not want the resident for whom you are paying to fail to leave the hotel room and have your company stuck with the bill. If the hotel serves food, place reasonable limits on what can be spent. Florida law does NOT require you to house, clothe or feed a displaced resident. It only requires you to abate the rent for the period of time the resident cannot occupy the unit.

You Can’t Control Yourself and Want to Put the Resident in the Model or Corporate Unit

We fully understand that some property managers just will insist on putting the residents in their available corporate units or models. It is human nature to want to help out those in their time of need. Is it completely fatal to take this risk? Will things always turn out badly? Actually, chances are that everything will turn out okay, but why take the gamble? The main thing if you do decide to place the residents in the corporate unit or model is to use a Temporary Housing Agreement in this situation. Keep it handy though, because remember, it is 3:00 a.m., and you are not in a condition to have to start up your computers and locate files. The purpose of this form is to create a real legal tenancy with the resident or residents, so that in the event things go bad and they refuse to vacate, you will be able to evict them. Without using the form, it can be very unclear as to what tenancy has actually been created, or it may be that no tenancy has been created. It is up to you how much time you will allow your displaced resident to stay in the unit, and this will depend upon the severity of the fire. At 3:00 a.m., you probably have no accurate information about the extent of the damage, so keep the time limit short; you can always extend later. When you examine this form, you will see it is simply a miniature, pared down, bare bones lease. Will it create a tenancy? Yes, one that can be terminated by you and will allow for a fairly cut and dry eviction action if necessary. Of course we don’t want to have to file an eviction on someone who is occupying a corporate or model unit; therefore, we strongly recommend that even though we have helped you in this situation by providing this form, you will be far better off NOT housing your residents. The Red Cross will find them a place to stay temporarily, or you can take the hotel route we discussed.

DEALING WITH THE GAS GRILL

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

The Mechanics of the Gas Grill Danger

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

 

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

 

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

 

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

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

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

Sample Clause

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

Dealing With the Resident Noncompliance

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

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

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

Self-Help Grill Removal

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

 

DAYCARE AND BABYSITTING SERVICES

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

Babysitting and Daycare Services

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

Legal Daycare Services in a Residential Home

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

The Liability

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

The “No Insurance” Problem

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

What “Bad” Things Can Happen?

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

Did the Manager Have Knowledge That Babysitting Was Occurring?

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

You Discover Babysitting, Now What?

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

Fair Housing Considerations

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

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