It is a Monday morning, and you receive a certified letter from a law firm. You toss the junk mail to the side, and with trembling hands you tear open the letter. To your amazement, a resident is accusing you of wrongdoing, and the attorney is demanding that you immediately refund a security deposit or pay a certain sum within 10 days to avoid suit. The letter is full of misrepresentations, and you are furious. The “facts” as the attorney present them seem to have absolutely nothing to do with what actually occurred, and you are ready to get on the computer and fire back a letter or maybe even call the attorney and give him a piece of your mind. Is this the right approach? Absolutely not!

Why Do We Receive Letters From Attorneys?

The most common letters a property manager receive from attorneys concern a dispute over the claim you have made on the security deposit, a request for a rent reduction or a request to break the lease agreement. These letters usually come regular mail, sometimes certified mail and often have some sort of deadline for response. This often panics the property manager, leading the property manager to believe that failure to respond within the time period specified by the attorney will result in some major lawsuit being filed against the property manager or the management.

Why Would an Attorney Represent a Resident in a Landlord/tenant Dispute?

Most attorneys do not concentrate on representing residents and really do not even want to get involved with writing a letter to you. The resident may be a friend of the attorney, client in another matter or is just writing a $50.00 letter for the resident, hoping to never see the resident again. Let’s face it; all of us attorneys have done this at one time or another. On the other hand, the attorney may think that you have done something which is actionable and really does wish to pursue a lawsuit against you. You just never know. I have found that the longer the letter from the attorney, the less likely anything will come of the situation. Attorneys are trained to write good, scary demand letters, as this often is successful in achieving the desired results.

Contents of the Letter

The letter you receive from an attorney contains a demand or threat based upon the information as the resident has presented it to that attorney. We must remember that many attorneys will take the information they get from their client, believe it wholeheartedly and act accordingly. This is the job of an attorney. People lie, distort the truth and leave out a lot of information when hiring an attorney, so this is why the content of the letter may have wild, unsubstantiated allegations against you. Often there is a 10 day deadline given to you to refund some money, with the threat that a lawsuit will ensue if you do not act pursuant to the demand. The attorney may accuse you of fraud, theft or incompetence, and this gets you angry, as you know you did the right thing, and the letter is just a pack of lies. Now, take a deep breath, and do not do anything yet.

Should You Respond to the Attorney?

Attorneys do not like to be ignored. For one, it is an ego thing, and at the same time the attorney’s client is calling every day to see if you have responded. We recommend that you never ignore an attorney. Now, how should you respond? Many property managers run to the computer and write a detailed, angry letter back to the attorney, responding to each and every allegation of the attorney, often giving the attorney copies of what is demanded plus other items that the property manager is using to convince the attorney that his client is wrong or a liar. This is exactly what the attorney wants, and you are falling right into the trap. By responding, you are showing the attorney the strengths AND weaknesses of your case. The attorney now has you just where he or she wants you and will eat you alive. It is rare that an individual is a match for a resident who has an attorney. By responding, you are giving the attorney evidence which can and will be used against you later in a court of law. What you think you did right can be twisted around by the attorney. What you did wrong or did not do at all will be exploited. The attorney will know your weaknesses and capitalize upon them. If there are enough weaknesses in your case, this may cause the attorney to decide to file a lawsuit, knowing that if the suit is successful, there might be a pot of gold at the end of the rainbow called an “attorney’s fee award” waiting for that attorney. You NEVER have to provide an attorney with copies of documents, unless it is a demand made pursuant to active litigation, and even then, there are exceptions and protections afforded to you. Now how do we handle this? I have told you not to ignore the attorney, but also have shown the extreme dangers in responding.

Here is the Easy Solution.

1. Write a letter to the attorney immediately stating the following and nothing more. “We are in receipt of your letter concerning your client John Smith, and my attorney Bob Jones at 555-1212 will be contacting you shortly. Please deal directly with my attorney.”

This accomplishes two things. First it lets the attorney know that you have an attorney handling all your matters, and second it now prevents this attorney from calling you up on the phone. The Florida Bar rules prohibit an attorney from contacting another person who he or she knows is represented by counsel. If this attorney then calls you up on the phone, a violation of the Bar rules will have occurred. Many young, inexperienced attorneys will ignore or not be aware of the importance of this Bar rule.

OR

2. Send the information to your attorney immediately, giving your attorney your side of the story, and have your attorney simply write a response letter. The more information you give your attorney, including all the documents relating to the dispute, a truthful synopsis of what occurred, your settlement offer or authority for settlement, the easier it will be for your attorney to write a quick letter to the resident’s attorney or assist you in settling the matter, so it does not grow into a litigation situation.

What if You Completely Ignore the Resident’s Attorney?

Completely ignoring a demand letter from an attorney makes the attorney think that you are incompetent and that you will possibly ignore a lawsuit as well, if it is filed against you. It doesn’t make you look tough or strong. Refusing certified mail from an attorney is not good either, and no judge appreciates it when a party refuses mail. Completely ignoring a resident’s attorney greatly increases the risk that the next communication you get from the attorney will be a lawsuit.

The Attorney Letter Trick Exposed

Sometimes an attorney will make a statement or imply an agreement and then go on to say, “We will assume that you have agreed to this unless we hear otherwise from you within 5 days in writing.” This is a little trick to get you to “agree” to an offer or an action by the resident by you NOT responding. Did the fact that you failed to respond mean that you agreed? Not necessarily, but your failure to respond will be used by the attorney to convince a judge that you in fact “agreed”.

So Your Attorney Has Responded, Now What?

The majority of the time, if your attorney responds in a timely matter to the resident’s attorney, the case simply dies a natural death, and you never hear another thing about the matter again. The resident’s attorney wrote the letter for the client, received your attorney’s letter and then dropped the bomb on the resident that if the matter goes any further, the attorney will want a retainer, or possibly your attorney’s response letter convinced the resident’s attorney that the resident has a weak case. In the vast majority of other cases, the two attorneys go back and forth and the matter gets settled, usually to the satisfaction of all parties involved. Most landlord/tenant disputes are not about large sums of money but hurt feelings, a few hundred dollars or just a couple angry people. Many cases that end up in court could have been settled prior. A large percentage of cases are settled “on the courthouse steps”, so why make money for your attorneys? A smart property manger knows that going to court is always the least desirable option, understands the attorney’s fee risk and helps their attorney settle the matter. An experienced property manager will also try to convince a reluctant property owner who is often out of state that settlement is the best way to go.

 

“Serving the Property Management Professional”

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If you are currently just obtaining a credit report and performing a criminal background check on your applicants, you may be doing yourself and the owner for whom you manage a serious disservice. You really should consider using a screening company who will perform a comprehensive credit and criminal background check and assist you in the decision making process. Whether you use a screening company or obtain credit and criminal reports on your own, it is important to recognize some of the shortcomings of the information that you are receiving and see how the use of the public records can supplement the information you are currently receiving.

What are the “Public Records?”

The public records include the civil, criminal and property ownership information which is gathered and recorded by the Clerk of the Court and the Property Appraiser in a given county, plus those records that the State of Florida maintains, such as the FDLE information on sexual offenders and predators. In addition to civil and criminal court records for a particular county, the public records also include information on ownership of property which is gathered by the tax appraiser’s office and contains a wealth of information. The public records may include information on your applicant and information on the current or prior manager of your applicant, if that individual or company is located in the county in which you are searching. The information you gather from the respective websites maintained by the county may be more current and comprehensive than the information you received from your screening company.

Developing a Written Company Policy

If you feel uncomfortable about a particular applicant, you may be tempted to get on the computer and begin digging into the public records. You may uncover civil or criminal information that you did not get from your screening company, and based on this information, you may decide not to approve the applicant. Sounds good, right? Well, the problem is that unless you check the public records of every applicant in a given similar situation, you may run afoul of fair housing laws, as you may not be treating all the applicants equally. You need to create a written plan and a policy which will determine under what circumstances you will check the public records and how far you will go with this. As part of this decision and plan, you will need to determine what counties you will check, and understand that in some counties, the information is not readily available and would require written requests or payment for information. You don’t need to get permission to check the public records of an applicant, because the information is indeed public, but if you find something that appears to be a problem, you need to safely use this information without getting yourself in trouble. What county will you check? The applicant may be from one county, the former or current manager from another, and your property is in another. Are you going to check the public records of three different counties? We recommend that you start with one county, that being the one where the property is located.

Eviction Records

While most screening companies have an “eviction database”, these evictions are usually ones that were filed and disposed of by the court months ago. Most screening companies buy eviction information from each county and then put it into their computer systems. Very few companies actually search the eviction records for your county when they are screening the applicant, and they certainly rarely do this for the entire state, as they literally would have to access 67 different computer systems, and the information that they obtain will only be a similar or the same name. Remember, the public record does not contain Social Security numbers, so if a name comes up, there is usually no way to tell if that person you are reading about is the applicant you are screening. Imagine searching a name like John Smith. Thousands will come up in the database. Is this information useless? We don’t think so. We feel that it is worthwhile to search your applicants in the civil court records database of your county. The person who is applying can be under eviction at that very moment, and the screening company most likely will not catch this when you might. This type of applicant is the most dangerous of them all, as they are slipping through the cracks and getting approved before anything shows up on their credit reports or public records information that your screening company has in its system. If you make it a habit to look up an applicant’s name in the civil court records, you may indeed find out that the person is currently under eviction or has been evicted before. The court records will show the co-resident if there is one, and this helps to narrow it down to see if the person applying is the same person in the court records, and the eviction that pops up will show both names. With uncommon names, your job becomes easier. Let’s presume you find the name appearing in the court records. Could it be the same person? Possibly, and this gives you the opportunity to ask the applicant about why his name or someone with the same name appears as a current or past eviction, and this gives him a chance to explain or prove to you that it is someone else and not him. Think about this. On any given Wednesday, we may file 100 evictions. Where do you think some of these people are on Saturday? You are showing them a house or an apartment and have no clue. These people end up getting approved and slip right through. People with bad credit do not always make bad residents, but people who have been evicted or are currently under eviction have a high chance of being evicted again. Do you want to be the next victim? The minute an eviction is filed, it will show up in the computer of the clerk of court.

Criminal Records

The criminal and arrest records you obtain from the computer of your county court system will most likely be more up to date than the information of your screening company. In Florida, there often is a delay in the county relaying information to the Department of Corrections or the Florida Department of Law Enforcement, so when you look up a person’s name, you are getting fresh, up to date information. The problem again will be similar names, which makes it difficult to verify that it is the same person. Many sheriffs’ departments have photos posted online in the arrest reports, so you may be able to look these up to verify that the person who was arrested is the person who is applying. Can you reject an applicant just because of an arrest? Possibly not, as many people are arrested and released with no charges filed, but it gives you a better picture of the applicant if you can look at the criminal information on your computer and ask the applicant further questions. That applicant who was arrested last month for major drug trafficking may be out on bail; your screening company does not have it in its system, but you now have the info. You certainly can deny the applicant if you find that he lied on his application, but without checking the public records, you may never have found out, or you will find out when it is too late. One of the biggest problems you will have to deal with is having a registered sexual offender or predator slip through and accidentally get approved. To help avoid this dilemma, a simple website is available, free and easy to use. Please use it.

Injunctions and Domestic Violence Issues

A check of the public records of the county court may reveal restraining orders and injunctions. These are court orders which prevent a person from contacting or being within a particular number of feet from another person. This is an interesting scenario. It appears that one of your applicants has an injunction against the other, and he is not even allowed to be within 500 feet of the other. How can they be both sitting in your office applying to rent your apartment? Is it possible they have been asked to leave by their current manager due to constant fighting and destruction of the property, and that they just recently reconciled? If one of them is violating the injunction, that person may actually be in the process of committing a crime right there in the office. While we would never want to deny someone solely because they were a victim of domestic violence, we certainly can look into the situation that we have discovered here and ask some probing questions. Without looking in the public records yourself, there is a high chance that this would be missed by your screening company, especially if the injunction was obtained very recently.

The Foreclosure Story

Every property manager has heard one or more versions of the “foreclosure story”. The first version is where the applicant tells you that she was living in a home, and the owner of the home got foreclosed on, forcing her to move. The other story is the applicant was the actual owner of a single family home, was foreclosed on and had to move.

If the applicant was the resident who “supposedly” had to move, you need to verify this. How would you normally do this? Well, you would call the owner of the home that the applicant is or was renting and verify the information. The problem is that the applicant tells you that the owner just “walked away” from the mortgage and will not answer his phone. No one has seen or heard from the owner. Are you going to take this for an answer, feeling sorry for the poor applicant who most likely stopped paying rent months ago when she got served foreclosure papers, or will you try to verify the story? You MUST verify the story, and all you need to do is look at the public records, put in the owner’s name in the civil court records to find the foreclosure, or put in the property address in the tax appraiser’s records and begin to dig. If the owner was truly foreclosed upon, you will find that information in the court records. Additionally, ask the applicant for copies of rent checks to see if she has been paying the rent to the owner for the 8 months the foreclosure has taken, or has the applicant taken advantage of the situation and not paid a dime, further hurting the owner? If the applicant stopped paying rent to her prior manager, what is to stop her from doing it to you?

If the applicant tells you that she was a homeowner and due to unfortunate circumstances, got underwater and ended up being foreclosed upon, you need to use the exact same methods as outlined above and look up the public records. If you can’t find the information, ask more questions. Many people who are foreclosed upon decide to stop paying their mortgage and now all of a sudden have $2000 extra each month which they promptly blow on things they don’t need. Now they are faced with paying real rent to a real manager who can really evict them, and they have no money, no savings and possibly no job. Don’t let your emotions make you sympathetic and let your guard down.

Conclusion

As you can see, the public records are full of valuable information, and you need to figure out how to use them. Start playing around on your computer. Go to the civil court record section of your county court’s website or the sheriff’s department site, and find the screen where you input the names. It is usually simple to use, and once you know how to input a name, it becomes easier. Read the instructions carefully. Sometimes they require last names and first names with a space between them, sometimes a comma. Every single courthouse and even different systems, such as criminal and tax records, within the same courthouse can require a different way of inputting a name or an address. Learn the system, take notes, play around and bookmark the site, putting it in your favorite places, or better yet, save it as an icon on your desktop for easy use. Call our office if you need help, as we are in the court systems all day long, checking dockets and doing research which pertains to the eviction cases, and we will be happy to send you the proper website and page links so you don’t have to waste your time. All it takes is getting started. The more you play around, the more fun you will have, because invariably you will begin looking up your friends and coworkers and find some very interesting stuff indeed! Best yet, there is no need to make a trip to the courthouse, as it is all online.

 

“Serving the Property Management Professional”

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Identity theft occurs when someone uses another individual’s personal identifying information, such as name, Social Security number, or credit card number, without that individual’s permission, to commit fraud or other crimes.

Public awareness on this issue is high. When you ask your applicants to complete the rental application, you should be prepared to answer some basic questions:

1. Why do you need this information? Is the answer that you need it to run the credit and criminal background checks and to contact prior managers the whole answer? Do you use the information for anything else? Statistical analysis of your resident profile? Marketing? Do you need all the information? Many applications ask for more information than is truly needed. Review your application.

 

2. Who will use this information? You give this information to your background service. Do you or your staff run any background checks (sexual predator website) or contact the prior manager? Do you do follow-up criminal checks periodically during the lease? At time of renewal?

 

3. How will you protect this information? Be careful here. The temptation is to overpromise with broad, reassuring statements like, “We keep everything under lock and key with tight security.” Yet in reality you give all your staff access to the resident files. People may legally rely on your statements. When those statements are false, they may be entitled to compensation for their damages.

 

4. Is there an alternative to giving you this information? Some people are trying to hide their disqualifying past. Others are concerned about the widespread abuse of private information.

 

Personal information is everywhere in your office. The obvious places are the file cabinets, the computers, and the mail. However, what about the less obvious places like the pad with the name, apartment and credit card number of the resident who called because he has to extend his vacation to deal with a family emergency? The half completed application in the trash can?

Dispose of all trash properly. Your leasing office trash is a gold mine for identity thieves. Paperwork bagged and placed in the dumpster doesn’t protect against dumpster diving. There’s no excuse for not having a paper shredder. The shredder is worthless without a shredding policy. The policy is worthless without enforcement.

Protect your paper files. Are they kept in a secure filing cabinet? Who has keys? Access to keys? A secure cabinet is not much protection for the files left on your desk overnight or for the week because you’re busy or have given keys to staff for follow-up who keep them in their unlocked desk drawers.

Protect your mail. Does it sit in an “Outgoing” box accessible to anyone coming into the leasing office? Is the incoming mail left on an unoccupied desk until you can get to it?

Protect you resident payments. How secure is your drop box? How hard is it to reach the payments inside? We get calls from managers who have drop box break-ins. If the manager permitted payments through a drop box, then the loss is on the manager. Why do you think bank night payment drops are so secure? In a drop box break-in situation it is impossible to disprove the claims of the many residents who allege deposit of cash payments into the drop box. Your drop box should have a prominent notice stating that its use is at the risk of the payer.  Protecting the resident’s payments includes protecting the information on any payments that you are returning. For instance, the resident makes a partial payment of rent by check in the drop box. You don’t permit partial payments. How do you return the check? Never post it on his door, even if it is in an envelope. Void the check and return it to him in a letter to protect the privacy of his bank information. Post a copy of the letter in an envelope on his door, so he will know immediately that his payment was refused.

Insist that an information release accompany any rental verification request. Best practice is to confirm with the resident before answering any such requests.

“Serving the Property Management Professional”

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You’re very careful about your resident paper files. They are kept secure under lock and key with very limited access. You have a paper shredder and use it faithfully for any disposed documents with resident personal information. Your mail and drop box are secure. You’ve done your part to protect your residents’ information. Maybe not. What about the electronic files?

Password Protection.

Your security is only as good as your password protection. The craftiest password is worthless when it is stored on slip of paper inside your desk drawer. Worse is the practice of keeping all your passwords on a list in your desk. We are required to have a password in so many programs and websites that keeping them all straight almost requires a list. Many software experts suggest only two or three passwords, one each for minimum and maximum security to be used according to your assessment of the site or program. One separate password should be used for your banking.

Update Your Computer Software.

Most software vendors are constantly updating their software to counter the developing threats against it. In this day and age of unwanted extra programs in the automatic update, you don’t have to necessarily automatically update. You can set you computer to notify you of the update for your review before downloading. Use antivirus software, and it should update automatically. Use a firewall as a guard to monitor outside attempts to access your system.

Spyware Infection.

Know the warning signs of spyware infection. Emails are sent that you didn’t originate. Check your sent emails regularly. Your computer inexplicably slows down. It doesn’t function properly and reports unexplained error messages. It serves pop ups repeatedly, especially if you aren’t on the web. You find web pages that you aren’t visiting opening; they seem to self-generate. It fails to shut down or it won’t restart.

Attachments, Downloads, Websites

Exercise judgment in opening file attachments. Free software may be tempting but costly in the long run when unwanted programs, spyware or viruses come as hidden extras. Bad software (malware) can be found in many free games, file sharing programs and customized toolbars. If you send an attachment, include a text message in the email to explain the attachment or, at least, to notify the recipient that you generated the email. The immense popularity of social networking sites is irresistible to those who would harm your computer programs or files for fun or profit. An internet usage policy is a must, and to be effective it must be enforced. One staff member in the wrong place can compromise the computer files of everyone on a poorly protected network.

Report violators.

Report suspected hacking or viruses to you internet service provider (ISP) and to the hacker’s ISP. Reputable internet service providers will use your report to prevent further abuse. You can contact the IC3 at www.ic3.gov. The Internet Crime Complaint Center (IC3) is a partnership between the Federal Bureau of Investigation (FBI), the National White Collar Crime Center (NW3C), and the Bureau of Justice Assistance (BJA). The IC3 website has comprehensive information on internet threats and the methods to protect you files

 

“Serving the Property Management Professional”

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Nothing is more important to the typical eviction action than a proper Three Day Notice. That most common notice, the first one a property manager learns to prepare, is the key to a successful eviction action. After the notice expires, an eviction action is filed, and voila, the judge signs the final judgment, and the resident is evicted. The notice prepared by an untrained manager often contains deficiencies. If the eviction is successful, it would seem them that the Three Day Notice is really not that important after all. This assumption is correct if the judge fails to look at the Three Day Notice or views the deficiencies as excusable, or the resident does not know the law or the resident fails to retain an attorney who most likely does know the law.

The Good Old Days

Up to about 2007, many judges would not carefully examine the Three Day Notice that was attached to the eviction complaint, and most residents would not be able to afford to retain an attorney. After all, they did not have the money to pay the rent, and most residents did not know the laws regarding the Three Day Notice. What changed? With the advent of the massive number of foreclosure cases, the larger number of defective evictions being filed by non-attorneys, and the increase in residents hiring attorneys to help them fight the eviction actions on a contingency basis like auto accident cases, preparing an accurate Three Day Notice became much more important. Many judges began to be criticized for not looking at the papers they were signing and decided it was time to start being a bit more careful, lest they get their names splattered in the newspapers as being sloppy judges who did not care about the law. Attorneys who previously would have turned away a resident under eviction, opting for a more lucrative real estate closing, began to lose business with the economic slowdown and then began to decide to spend some time with the residents who walked into their office for help. Some attorneys started to realize that it could actually be lucrative to represent residents, because if the eviction was dismissed due to a technicality or the resident won the case, the attorney representing the resident could not only get a substantial award of attorneys fees against the property owner, BUT could potentially get what is known as a “multiplier” whereby the judge could double or even triple the attorney’s fee award, forcing the manager to have a judgment against them for many thousands of dollars. All of the above has created a firestorm of epic proportions, and NOW, the property manager must be EXTRA careful to make sure there is no technicality that can cause the eviction to be dismissed or the resident winning in court.

What technicality is the most common defense to an eviction action? The improper Three Day Notice. The law provides that the resident must place the rent money into the court registry before any defenses can be raised; including claims that the notice is defective, BUT some judges allow motions to dismiss and trials to occur even when there is not a dime posted in the registry of the court. Is it wrong that many judges are apparently not following the law? We think so, but the judge has the final say in the absence of an expensive and time consuming appeals process. Fortunately, most legal scholars are of the opinion that in order to raise the defense of a defective notice, the resident must post the rent money into the registry of the court, and most judges do follow this interpretation of the law. YOU must be prepared for the judge who disagrees with this interpretation of the law.

For years, our firm has been accused of being “picky” when it came to requiring clients to prepare and serve the Three Day Notice correctly, but most of our clients recognize why this scrutiny is important. The manager does not want to pay out exorbitant fees to a resident’s attorneys due to mistakes on the Three Day Notice. We catch the mistakes, force our clients to redo the Three Day Notice, and better yet, train our clients to prepare them correctly the first time around. You can go through a red light so many times and not get caught, speed all day long and not get caught, but sooner or later, not only will your number be up, BUT an “accident” could occur, and this “accident” could mean your company pays out a large amount of money to a resident’s attorney. Some attorneys now are actually seeking out residents under eviction and making “resident eviction defense” a lucrative cottage industry. It makes no difference that the resident has not paid rent in 3 months. It is all about technicalities. You have a choice. Prepare your Three Day Notice correctly, or take an expensive gamble.

This article will simply go through the Three Day Notice step by step, and you can ask yourself if you or your company is preparing them correctly or taking an unnecessary risk. The article does not cover all aspects of the Three Day Notice. We have many more articles covering individual aspects in depth you can read on www.evict.com. If your company refuses to prepare the Three Day Notices correctly, feel free to ask us to show you case upon case in which attorneys are nailing property management companies for significant amounts of money. Times have changed, and so should you.

The Resident’s Name

The names you put on the Three Day Notice must match the names on the lease, and if the name or names on the lease are incorrect, as they often are, you need to find out the proper name and put it on the Three Day Notice like this: John Smith a/k/a (also known as) as John Smyth. Leasing agents routinely input the information incorrectly into the computer when generating the lease, and this incorrect information carries over for the entire year and even at renewals. You can’t depend on residents to point out a mistake. Rather, expect them to leave a mistake alone, as it may go to their advantage, and they know it.

If a resident has been added or subtracted from a lease, make certain that this is reflected. Blind reliance on your computer information causes mistakes. Never use just one name when there are 2 lease signers, or use Mr. or Ms., or rely on a catch all of “and all other occupants”. Just get the names right. It is that easy. If one person has not signed the lease but is in the computer as a resident, CALL YOUR ATTORNEY for advice. We see leases that have 2 names listed, but only one person signed. Filing an eviction against the person who has not signed could trigger a lawsuit. Remember, it was your mistake that allowed both to move in with only one signing, so do not exacerbate the mistake. Get advice. Possibly your attorney will tell you to put both names on the Three Day Notice, BUT this advice will depend on the particular facts and circumstances.

There is no need to put children on the notice who are not lease signers on the lease. Sounds silly, right? But it happens, because your computer program often generates the names, and they end up on the Three Day Notice. We have even seen pet names on the Three Day Notice because of the computer programming issues.

The Address

The address MUST match the lease AND the official address that the United States Post Office (which the sheriff relies upon) has for the resident. Did your company decide to change street names or building numbering? It happens all the time and wreaks havoc on addresses. Was the address put in the lease and computer incorrectly? If so, it ends up carrying over onto the Three Day Notice, and possibly you will not find out the mistake until it is too late. Some addresses contain internal company codes that have nothing to do with the real address. Get rid of them. They are useless and should not be on the Three Day Notice. If an address is slightly incorrect, the process server may encounter a resident who indicates the address on the court paperwork is wrong, and that the correct resident lives across the hallway. The process server then walks to the correct door, knocks, gets no answer and posts the papers on the door. No problem, right? Wrong. The eviction goes along, you get a final judgment, and when the sheriff goes to serve and execute the writ of possession, your case is TOAST. The sheriff will NOT serve the papers to any other address than that on the eviction papers, and remember that that address was WRONG. You might actually have to start the eviction all over again from scratch depending on the circumstances. Get the address correct and confirm. Finally, is the address on the door, or did someone rip off the number or letter? Never assume the sheriff will decide what door is the correct door. Assume that if there is any doubt, the sheriff will non-serve the writ of possession,

The Date

The date of the notice is the date that you are serving the notice: not the day before, not the day after. It is the date you or a staff member is actually going out and serving the notice. Sometimes notices are prepared, and there is no time left in the day to serve them, so they sit on the desk and are served the next day. No harm done you think, but the date is wrong. You then sloppily change the date if you notice it, or try to say that the date on the bottom of the notice, the “Certificate of Service” section, is correct. While this may be the case, the top date of the notice is wrong or sloppily changed and causes the Three Day Notice to be defective or look defective. Sometimes the date is not just one day off but can even be a month or more off. How does this happen? Your computer system generates a wrong date, or you pull up a Three Day Notice from the month before and forget to change the date. These dating mistakes happen all the time and can be fatal to your case.

What Does the Resident Owe?

The resident owes what the computer says they owe, right? Technically this may be correct, but you can ONLY put RENT on a Three Day Notice. What is rent? Rent is what your lease says indicates is rent, and this may include late charges, periodic charges such as washer and dryer fees, and other charges, but the real “rent” is what your attorney tells you is rent. Some judges do not allow anything but base rent on the Three Day Notice, prohibiting all late charges, and will throw a case right out of court if he or she sees amounts that are not base rent. How would you have known this? After all, at the prior property you managed, this was not a problem. You must ask your attorney what is permissible to put on the Three Day Notice. It does not matter what your company says is rent or what is actually owed; it only matters what the judge will allow on the Three Day Notice. The amount you put on the Three Day Notice should be an exact amount. It should not grow with time. Writing things like, “plus $5 a day”, can and often does render the notice fatally defective. There are long lines of cases growing each day in which judges have thrown out the Three Day Notice for this exact reason. But your company wants you to put this on the notice!! Go ahead. Follow your company’s advice, but remember that if you file the eviction with the incorrect wording, your risk of having the case being thrown out increases exponentially. The problem really lies in your company wanting to collect the money, and rightly so. If your company insists, prepare the Three Day Notice with whatever you want on it, BUT be prepared to prepare and serve a NEW Three Day Notice and wait the required time period for expiration if you are going to file the eviction action. Got away with putting any amount you wanted on the Three Day Notice in the past? Do what you want. You have been warned.

The Expiration Date of the Three Day Notice

When you serve a Three Day Notice, you cannot count the date of service, and it expires 3 business days after the date of posting after you exclude Saturdays, Sundays and court observed legal holidays. Serve the notice on Monday? It expires on Thursday as long as Tuesday, Wednesday or Thursday are not court observed legal holidays. What is a court observed legal holiday? It is a legal holiday when the judges are not working. The “court” is observing the holiday. You most likely had to work that day, BUT the judges did not; therefore, it is a court observed legal holiday. Does your attorney provide you with a holiday list? Call and check if you are not sure. We provide a list each year of the court observed legal holidays and each month without fail tell you what they are on our Email Newsletter. Read it! There is NO excuse for forgetting legal holidays when counting the three business days. NONE. Mark your calendar, and make sure you always ask your attorney if there are any court observed legal holidays, or if you are not sure, just consider the day a court observed legal holiday, and you will be safe. Some court observed legal holidays actually pop up by surprise. How does this happen? The judges get together, meet and decide that a particular day, often a religious holiday will be a court observed legal holiday, and so it happens. Will you know this? Most likely not, BUT your attorney will, so you need to ask. Sometimes we get asked if Halloween or Valentine’s Day is a legal holiday. Funny, huh? At least the property manager is keenly aware of the importance of excluding court observed legal holidays, so it certainly is not in the “stupid question” category.

The Resident Did Not Pay by Closing Time

Nothing in the law provides that the resident must pay you by office closing time. The law indicates the resident has three business days to pay, not including Saturdays, Sundays or court observed legal holidays. This business of trying to say that a resident did not pay on time because he dropped off the check in the drop box at midnight will only cause you grief. If the money is in the drop box in the morning, consider that he paid within the time period allotted by the Three Day Notice. When you try to jam a resident and refuse the rent or hit them with additional late charges, you are just asking for trouble with judges, who can see right through the refusal of rent. Oftentimes under this scenario, a judge will determine that you really just want the resident out, and that even though a Three Day Notice for unpaid rent was given, the eviction is really about other beefs you have with the resident. Judges were not born yesterday, and your eviction is not the first one they have seen. Most deal with hundreds or thousands of these cases a year.

Late Charges

The law does not address late charges; therefore, it is not clear what is legal or not to charge. What we do know is that when a judge sees incredibly high late charges, the judge can decide to throw the whole case out. Charging a resident $400 for rent plus $700 accumulated late charges is an outrage, but we sometimes see this scenario, usually because the computer program continues to hit the resident for late charges if there are any balances owed, no matter how small. Property managers who continue to accept rent from a resident without demanding that the resident pay the late charge set themselves up for failure. The managers we work with who are most successful at collecting late charges will refuse the late rent payment if it does not include the late charges, and this sets the tone early on with the resident for future payments. Want to keep accepting rent and letting late charges build up until your regional manager has a fit? Go right ahead. A similar dynamic applies when you fail to collect the water charges, and they build up each month. You will pay the price when your attorney refuses to file the eviction with a Three Day Notice with excessive late or non-rent charges. Someday we may have legislation which sets limits on late charges, but until such time, check with your attorney to see if your late charge policy is in line with what the judges in your areas are currently allowing.

Extraneous Writing on the Three Day Notice

Many property managers place statements on the notice like, “Only Money Orders or Certified Funds will be Accepted”, or, “No Checks Will Be Accepted”. Where did this come from? If the lease does not clearly allow the property manager to demand payment in this particular form, you cannot demand it on the Three Day Notice. Never hand-write any little messages or notes on the Three Day Notice. Stick to the proper form as provided for you by Florida law, and keep the little notes or messages off the Three Day Notice.

Some Final Words

Many of you reading this article have heard it all and seen it all before, but simply are following your company’s direction or preparing the Three Day Notices the same way for years. Take the time to call your attorney and speak directly with your attorney, not just a paralegal or secretary, and almost universally, you will hear confirmation of everything you have read in this article. Most of the larger landlord/tenant law firms have been around long enough to see how things have indeed changed, and it is time to change with the times or be in for an expensive surprise. When your attorney turns down an eviction or tells you to redo and reserve your Three Day Notice, your attorney is not making any money. They don’t want to tell you the bad news or disappoint you. Your attorney is looking out for the best interests of you and your company.

 

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There will come a time when a resident who has vacated the premises owing you money returns and tries to make payments arrangements to pay what is owed to you. In other situations, a current resident may fall seriously behind or owe you for something due under the lease, such as an accumulated water bill, a bounced security deposit check or some damages they did to the premises. The form you use will determine the action you can take in the event the resident fails to pay pursuant to the arrangement you have made. Unfortunately, we always need to be prepared for what will occur when the resident fails to abide by an agreement. An agreement without consequences is useless, and using a wrong agreement can often be worse than using nothing at all. This article will examine a very common form known as a promissory note and a less common form developed by our office called the Past Due Amounts Workout Agreement. These forms are not the same and are to be used in specific situations.

The Promissory Note

A promissory note is simply an agreement when one party agrees to pay another party a particular past due sum or currently due sum on a particular date or dates.

When Should it be Used?

A promissory note should be used only with a PAST or departing resident who owes you money and desires to pay you on a certain date or dates according to the payment arrangement spelled out on the promissory note. Never should it be used with a current resident. The resident may vacate owing you past due rent, late charges, unpaid utility bills or anything owed under the terms of the lease or Florida law. This will memorialize the debt in writing and can be used later if the past resident defaults, and you wish to pursue the debt.

When Should a Promissory Note Never be Used?

A promissory note should not be used with a current resident who owes you money. This is a common mistake by managers. This is the scenario: the resident will be in default for 2 months’ rent in the amount of $1600.00. The manager, thinking that the promissory note is the way to go, will write up the document stating that the resident owes $1600.00 and will pay $200.00 per week beginning on a particular date until paid in full. Now for the problems. First, unless the promissory note clearly states that the amount is “rent” due under the terms of the lease, the manager may have unwittingly converted past due rent into simply a monetary obligation for which he will not be able to evict the resident using a Three Day Notice! The second problem is that if the resident fails to make a payment, what is owed: the full balance all at once, OR only that missed payment? Without an acceleration clause in the promissory note, the resident will only be in default for that one payment, rather than the whole amount. This was certainly not the intention of the manager when the promissory note was created.

Procedural Aspects of the Promissory Note

Filling out a promissory note incorrectly can be worse than not ever having one. Take your time, and fill out all the dates and amounts carefully, have the document signed, preferably with 2 witnesses. If a person other than the actual debtor is going to give you a promissory note, the signature of that person MUST be witnessed by 2 witnesses per Florida law. It is not necessary to have the document notarized, but certainly will not hurt if the debtor tries to say that he or she did not sign the promissory note. The payment plan, if any, dates and amounts should be spelled out with as much particularity as possible. Having the exact date and amount of each payment clearly listed out is preferable to stating “$200.00 per week”, and not having a starting date can really cause a problem. You will see that the sample promissory note below has an “acceleration clause”. The purpose of this clause is to make the full balance due and owing immediately if a payment is missed. We do not recommend that this acceleration clause ever be used maliciously, but allowing deviation from a payment plan can adversely affect enforceability of the promissory note, much as accepting rent late over and over again can cause a waiver and estoppel issue. You may notice this wording in the promissory note: “In the event the payments are not timely made, the acceptance of the payment(s) late or in partial amounts not according to the above schedule shall not constitute a waiver in any way of the creditors”. While you would think that this would prevent a waiver from occurring, in reality, your course of conduct may still create a waiver.

THE SAMPLE “PROMISSORY NOTE”

THE UNDERSIGNED HEREBY AGREE THAT AS OF ___________ (DATE) THE SUM OF$_________________________________________ IS OWED TO _______________________________________________. (INSERT NAME OF MANAGEMENT COMPANY, APARTMENT COMMUNITY, YOUR NAME)

THE UNDERSIGNED AGREES TO PAY ABOVE DUE AMOUNT OWED IN THE FOLLOWING MANNER :( INSERT EXACT PAYMENT SCHEDULE)

$________ DUE _________
$________ DUE _________
$________ DUE _________
$________                                         DUE                                         _________

IN THE EVENT THE UNDERSIGNED FAILS TO MAKE THE ABOVE PAYMENTS IN THE MANNER PRESCRIBED, THE FULL AMOUNT OF THE DEBT MINUS ANY AMOUNTS PAID SHALL BE DUE AND PAYABLE IMMEDIATELY. IN THE EVENT THE PAYMENTS ARE NOT TIMELY MADE, THE ACCEPTANCE OF THE PAYMENT(S) LATE OR IN PARTIAL AMOUNTS NOT ACCORDING TO THE ABOVE SCHEDULE SHALL NOT CONSTITUTE A WAIVER IN ANY WAY OF THE CREDITORS. IN ANY LITIGATION, THE PREVAILING PARTY SHALL BE ENTITLED TO AN AWARD OF ATTORNEY'S FEES AND COSTS.

THE UNDERSIGNED AGREES THAT THIS CONSTITUTES THE ENTIRE AGREEMENT REGARDING PAST DUE AMOUNTS AND ANY MODIFICATION TO THIS AGREEMENT MUST BE IN WRITING TO BE CONSIDERED VALID.

Dated: ___________________

_____________________________

NAME

_____________________________
Witness

_____________________________
Witness

The Past Due Amounts Workout Agreement

When Should it be Used?

This form should be used if a manager wishes to make payment arrangements with a CURRENT resident on past or current amounts owed by the resident. This is a resident who is currently residing on the premises and intends to stay and pay the amounts owed.

What Can Be Put on the Past Due Amount Workout Agreement?

Rent, late charges, bounced security deposit check, damages the resident has caused, and any other amounts due to the manager all can be put on this agreement. The major difference here is that the resident is living on the premises, and the manager needs to not only memorialize the debt in writing, but also needs to be able to take swift definitive action to REMOVE the resident in the event the resident fails to pay according to the agreement. Unlike the promissory note, the Past Due Amounts Workout Agreement converts the amount due completely into RENT. If that “rent” is not paid as per the agreement, the manager can then put the amount on a Three Day Notice and proceed with an eviction. Again, an acceleration clause is used which will make the full amount owed at once if the resident fails to make the payments per the agreement. We have seen many situations in which the manager used a homemade agreement, puts in all the payment amounts and due dates, only to find out that when the resident defaulted, all the manager could put on the Three Day Notice was the missed payment, or possibly, was not able to use a Three Day Notice at all, causing confusion and delay.

Procedural Aspects of the Past Due Amounts Workout Agreement

The same procedures should be used as with the promissory note. Specific payment dates and amounts should be listed. If there is more than one resident on the lease or residing on the premises, get ALL residents to sign. This is crucial.

THE SAMPLE “PAST DUE AMOUNTS WORKOUT AGREEMENT”

The undersigned Resident(s) hereby agree that as of _____________________ (DATE) the sum of _______________ is owed to Manager for the following
__________________________________ (List things like past due rent, bounced check, check charges, utilities etc)

In addition to all other amounts which may become due under the terms of the tenancy or Florida law, Resident(s) agree to pay the past due amounts owed in the following manner: (insert exact payment schedule)

$________ DUE _________
$________ DUE _________
$________ DUE _________
$________                                         DUE                                         _________

In the event Resident(s) fail to make the above payments in the manner prescribed, the full amount of the original debt minus any amounts paid shall be due and payable immediately as rent and Resident may be served with a Three Day Notice for these amounts owed. Failure by Manager or its agent to serve a Three Day notice in the event the payment(s) are not timely made, or the acceptance of the payment(s) late or in partial amounts not according to the above schedule shall not constitute a waiver in any way of the Manager's rights, and Manager and/or its agent may still serve a Three Day Notice demanding full payment at any time if Resident(s) are in default.

Resident(s) agree that this constitutes the entire agreement regarding the above mentioned past due amounts owed, and any modification to this agreement must be in writing to be considered valid.

Dated: ___________________

__________________________
RESIDENT

_____________________________
Witness

_____________________________
Witness

 

“Serving the Property Management Professional”

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If you were to ask a typical manager if they would ever engage in a prohibited practice, you would most likely get a resounding “of course not”. Most managers realize that self- help evictions are no longer allowed, and doing drastic things like taking off the resident’s door will certainly result in a lawsuit these days. Florida Statutes Section 83.67 clearly lists out the prohibited practices and imposes a penalty of 3 months’ rent to the resident, plus the manager will have to pay the resident’s attorney’s fees in the event an attorney is involved with the case. Many attorneys will readily take a prohibited practices case if it is clear that the manager is in violation, and the various legal aid organizations have a list of attorneys in private practice who will take these on a referral basis. Surprisingly, many managers commit prohibited practices intentionally and unintentionally to this day, and are often found in court having to pay significant sums of money to the resident. It is not relevant that the resident may not have paid rent for months or is the world’s worst resident. The case will completely hinge on whether or not the manager committed a prohibited practice. This article will examine Florida Statutes 83.67 and focus on some common prohibited practices that even the most seasoned professional manager commits without even realizing it.

Interruption of Services

A common problem that arises is when the resident is supposed to put the electricity in their own name and either does not do so, or the electric service reverts back into the owner’s name if the resident has service and then fails to pay for such service. The latter situation is extremely common in apartment communities where the arrangement with the electric company is to have the electric service on in the apartment community’s name unless it is in the resident’s name. Commonly, the manager discovers that the electric service is in his or her name, and rightly upset, decides to call the electric company, tell the electric company that is was supposed to be in the resident’s name and then tells the electric company to shut off the electric. In single family home rentals, the resident’s failure to put the electric in their own name is usually discovered when the out of state owner receives a huge electric bill and calls the property manager. The actual manager or the property manager thinks it is then permissible to call the electric company and tell them to shut it off. In the apartment setting, the on-site property manager usually discovers this when the bill comes in. In both cases, it is a prohibited practice to directly or indirectly shut off the electric. Directly would mean that you called the electric company and told them to take it out of your name; indirectly would be to fail to pay for the service if the manager received a shut off warning. Our office receives calls concerning this issue on a regular basis, and many of our clients either ask if they can have the electricity shut off or have already done so. As you can see, this prohibited practice is alive and well!! Electricity is not the only utility covered under “service”. The statute also includes water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration and although not mentioned, the court may interpret cable, satellite or phone as a service. The key to avoiding the problem is to make sure that the services are not on when the resident moves into the unit and avoid any situation where the services revert to the manager in the event the resident fails to pay.

LAW FS 83.67(1) No manager of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any utility service furnished the resident, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the manager.

Lockout of the Resident

Locking out a resident as a means of self-help eviction was legal a very long time ago. It is legal no more, and most managers would never do such a thing, so you may think. Suppose you are trying to get the resident to come to the office to see you. You change the locks and put a note on the door asking the resident to come to the office. The resident comes home at 7 pm, the office is closed, and he is locked out. Prohibited practice? You bet. You can never change the locks on a resident’s door to “get the resident’s attention” or for any reason; unless the resident requests that the locks are changed. Now what about a situation where one resident asks you to change the locks? You oblige, and a week later the other resident on the lease comes to you and says he or she can’t get in, as her co resident/roommate changed the locks. Are you required to let this person in? If they are on the lease, you are, and your failure to let them in could result in a prohibited practices charge against you. We recommend that in any case where a resident wants a lock changed; all the residents put this in writing on one request form.

LAW FS 83.67(2)A manager of any dwelling unit governed by this part shall prevent the resident from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks or using any bootlock or similar device

Armed Forces Discrimination

Is it risky to rent to someone in the United Stated Armed Forces? Absolutely. The laws protecting service members have been broadened not only to allow them to break their lease if they go on active duty, but to allow an active duty service member to break a lease to move onto base housing which could be right down the street. The recent law changes have made many managers hesitant to rent to service members, and some managers have decided to try to avoid renting to service members at all costs. A few years ago, this was not considered a prohibited practice, but now it is.

LAW FS 83.67(3) No manager of any dwelling unit governed by this part may discriminate against a member of the United States Armed Forces in offering a dwelling unit for rent or in any of the term of the rental agreement.

Display of Flags

Most leases have clauses which prohibit hanging any items from the premises. Often managers have to deal with situations where a resident hangs clothing, banners or flags from their balcony. These could be anything from a sports related flag or banner to a large flag from the resident’s country of origin. A few years ago, the law was specifically changed to make to a prohibited practice to prohibit a resident from displaying a United States flag on the premises in accordance with the law. There is no exception in the law for managers of single family homes or condo in condo associations or homeowner's associations.

LAW FS 83.67(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.

Abandoned Property and Removal of Items

Removal of Items: As we mentioned previously, most managers are keenly aware that you cannot remove a resident’s door in a self-help eviction situation. This prohibition also extends to locks, roof, walls and windows. The only exception to this would be for a manager to remove such items for the purposes of maintenance or repair. Some unscrupulous managers remove such items under the guise of making a repair on the item and delay the repair so as to influence the resident to vacate.

Abandoned Property: Abandoned property removal is one of the most common prohibited practices committed by even the best managers. The usual cases involve those where the manager thinks the items are abandoned, when in actuality they are not, and the manager then disposes of the property, only for the resident to come back and demand the property. The manager can be charged with a prohibited practice, conversion, civil theft and even criminally. It is crucial that the manager knows what abandoned property is and has the proper wording clearly in the lease. The lease wording is as follows:

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

Even with the proper lease wording, the unit must be “abandoned” before the manager can dispose of the “abandoned property”. Legal abandonment has nothing to do with what our common sense may tell us. Abandonment is defined in the law, and if all the elements of abandonment are not present, the items left behind are not abandoned property.

Self-Help and Personal Property

The resident has junk outside their door, cars parked on the front lawn, bicycle chained to the railing, chairs in the breezeway and a lanai full of everything, including the prohibited gas grill. Code enforcement is citing the property each day. Can the manager clean up the place and throw out any of these items? They should be able to, but unfortunately the law would most likely consider this a prohibited practice, subjecting the manager to the 3 month rent penalty, attorney’s fees, conversion charges, civil theft charges and possible criminal charges. The manager’s only recourse is to serve the resident with a proper 7 Day Notice of Non Compliance with Opportunity to Cure and treat this like any other lease and/or law noncompliance.

LAW FS 83.67(5) A manager of any dwelling unit governed by this part may not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, repair, or replacement; and the manager may not remove the resident's personal property from the dwelling unit unless the action is taken after surrender, abandonment, or a lawful eviction. If provided in the rental agreement or a written agreement separate from the rental agreement, upon surrender or abandonment by the resident, the manager is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the resident's personal property; if provided in the rental agreement there must be printed or clearly stamped on such rental agreement a legend in substantially the following form: BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY.
 For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).

What are the Penalties for Committing a Prohibited Practice?

The easy answer as mentioned before is 3 months’ rent plus attorney’s fee and court costs in the event the resident decided to hire an attorney. Unfortunately the penalty could be much higher, and potentially one prohibited practice could contain multiple violations and increase the penalty. We dealt with a case where a manager had shut off the electricity, which in turn shut off the well pump and the result was a 6 month rent penalty plus attorney’s fees. We have seen numerous cases of self-help cleaning up of the property where the resident’s property was thrown away resulting in thousands of dollars being paid out to the resident. The electric shut off by the manager when he or she realizes the resident has not put the electric in the resident’s name is a common occurrence. Prohibited practices are alive and well. Follow the law and exercise caution. Common sense and instinct have absolutely nothing to do with the law.

LAW FS 83.67 (6) A manager who violates any provision of this section shall be liable to the resident for actual and consequential damages or 3 months' rent, whichever is greater, and costs, including attorney's fees. Subsequent or repeated violations that are not contemporaneous with the initial violation shall be subject to separate awards of damages. (7) A violation of this section constitutes irreparable harm for the purposes of injunctive relief. (8) The remedies provided by this section are not exclusive and do not preclude the resident from pursuing any other remedy at law or equity which the resident may have. The remedies provided by this section shall also apply to a service member prospective resident who has been discriminated against under subsection (3).

 

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Many Three Day Notices are prepared improperly or incorrectly by the residential property manager. While seemingly simple and straightforward, there are many pitfalls along the way which can result in a notice being technically defective. Most if not all of the mistakes made in the preparation of the Three Day Notice are completely avoidable and unnecessary, but it takes some knowledge of the Three Day Notice and a respect for the legal importance in doing it right.

WHY IS A THREE DAY NOTICE NECESSARY?

Florida law states that a manager must serve a Three Day Notice when a resident is late with the rent, giving that resident three business days to pay the rent or vacate. Many managers have trouble accepting that a resident has the right to be given this notice when the resident is delinquent, often each month. Why can’t the manager just evict the resident if the resident fails to pay on time? The manager can, but only after allowing the resident a legal “grace period” of three business days after the date that the rent is due, according to the terms of the lease agreement. No matter how many times the resident has been late, the manager cannot attempt to terminate the tenancy if a valid lease is in place without first serving the Three Day Notice, waiting for payment, and then not receiving the payment within the three business day time period as the notice allows.

SUPPOSE A THREE DAY NOTICE IS PREPARED INCORRECTLY?

If the Three Day Notice is prepared incorrectly, and the manager files the eviction based upon the incorrect notice, there is a high probability that the eviction will be successful if the judge fails to look carefully at the notice, the resident fails to bring this up to the judge if the resident files an answer with the court, or the resident fails to hire an attorney who will most certainly bring this up to the court. Why take any chances? More and more residents are hiring attorneys, and many attorneys are targeting residents as potential clients and actually soliciting their business. A proper Three Day Notice is what is called a “jurisdictional requirement”, which means that the court does not have the jurisdiction or “power” to grant the manager a Final Judgment of Eviction if particular aspects of the Three Day Notice are incorrect. A properly prepared notice is a prerequisite to the filing of the eviction action. If the notice is prepared incorrectly, many courts, if it is brought to their attention, will dismiss the eviction action, causing the case to be considered dead and requiring the manager to start over again from scratch. Worse yet, if the resident hires an attorney, there is a high chance that the manager will be required to pay the resident’s attorney’s fees and costs. These amounts could easily exceed $1000.00 and often do. The key is to simply prepare the notice correctly.

THE MECHANICS OF THE NOTICE

FORM – The suggested form of the Three Day Notice is found in Florida Statutes, and a proper form can be found in this legal guide. Many managers get notices out of “do it yourself manager” books, which are general notices that do not substantially comply with the requirements of Florida Law. There are a number of computer programs that also provide Three Day Notice that are not in compliance. Some are called “Notice to Vacate”, “Notice to Quit”, “Notice to Pay and Vacate”, “Eviction Pending Warning” or some other variation. These notices should never be used. The first step is to be using the proper form of the Three Day Notice, and avoid writing any extraneous notes or messages anywhere on the notice.

ADDRESSING THE NOTICE-- The Three Day Notice should be addressed to all adult residents who are lease signers and any other adult occupants from whom you may have accepted rent. Full names should be used, and these names need to carefully match the spelling and form as the names appear on the lease agreement. If the spelling on the lease is incorrect or incomplete, make sure the Three Day Notice names reflect both the correct spelling and the spelling as it appears on the lease. For example, if the lease says John Smith and you are aware that the correct spelling is John Smythe, on the notice you would write John Smith a/k/a John Smythe. You should never give a judge a reason to question your notice. Too much information here is better than too little. Saying Mr. and Mrs. is also incorrect and unnecessary. The address listed on the notice must be the exact address where the resident resides. If the unit is the “left” side or the “upstairs” unit, this must be clear on the notice. Many apartment communities have internal codes that the computer prints out, and these should not appear in the address. If the address is Apartment 105 in Building 3, this needs to be spelled out. Simply saying 3-105 just might cause confusion and should not be done. Additionally, the exact street address of the unit must be in the address section, even if the apartment community or condo has one address, one street and only the unit or building numbers are different.

DATING THE NOTICE-- If you are hand delivering or posting the Three Day Notice on the premises, the notice needs to be dated on the date that it is served, and the expiration date of the notice must be no less than 3 business days in the future, not including Saturdays, Sundays or legal holidays. A notice can be served on a Friday, Saturday or Sunday and would still expire on the following Wednesday, as you never count the day of service of the notice, and assuming that Monday, Tuesday or Wednesday are not legal holidays. Always be sure that you know what the holidays are, as this is a huge source of incorrect notices. We strongly recommend against mailing a Three Day Notice, as there are dating and expiration considerations which can result in the notice being far longer than three business days. If you are going to mail a notice, please call your attorney first, as there are other technical requirements.

WHAT CAN YOU DEMAND ON THE THREE DAY NOTICE? -- RENT ONLY!! We cannot stress this more. The law only allows you to put rent on a Three day Notice and absolutely nothing else. What is rent? Rent is defined in Florida law FS 83.43(6) as “the periodic payments due the manager from the resident for occupancy under a rental agreement and any other payments due the manager from the resident as may be designated as rent in a written rental agreement”. This means rent is the usual monthly base rental payment, periodic items such as a washer and dryer fee if defined as additional rent, and other items which your lease deems to be additional rent, such as late charges, bad check charges, utility charges and any other charged deemed as “additional rent” in the lease. A word of warning here is necessary though; even if your lease defines these items as “additional rent”, a minority of judges still will not permit you to put anything other than the normal monthly recurring rent on the Three Day Notice. You always need to confirm with your attorney to see if a particular judge is doing this. We recommend that if you are putting late charges on your notice, and the lease properly defines late charges as “additional rent”, you write the amount out as follows: “November rent of $650.00 plus $25.00 late charge as additional rent, TOTAL $675.00”. Your lease may have per diem or daily late charges that accrue as the rent becomes more delinquent. We strongly urge that you NEVER say “plus $5.00 per day” on your notice, as it causes the notice to be confusing and ambiguous. The resident should be able to look at the notice and know exactly what is owed without having to do any math. If you feel the absolute need to try to demand anything else other than rent on a Three Day Notice, or have excessive accumulated late charges that you are trying to collect, you can go ahead and serve anything you want but it is risky. Just remember that is you intend to follow through with an eviction, you will have to serve a new Three Day Notice before any ethical and self-respecting attorney will use your notice to file an eviction action.

WHERE DOES THE RESIDENT PAY THE RENT? -- Some managers like to have a post office address where the rent is to be paid. We strongly recommend against this, since if you allow a resident to pay by mail, the resident has five additional days to pay, mail gets lost, and all kinds of problems arise. You should have the resident pay at the office, and if you have a drop box or mail slot, be aware that many cases have been lost due to residents claiming that they have dropped the mail after hours and then blame you for the missing money.

FILLING OUT THE CERTIFICATE OF SERVICE-- Once you have prepared the notice carefully and used the Three Day Notice Checklist, you have thoroughly understood how to serve the notice and you have properly served the Three Day Notice, it is crucial that you fill out the Certificate of Service at the bottom of the notice stating how you served the notice, and if personally served, to whom the notice was served. The date on the Certificate of Service must correspond to the date at the top of the notice and should not be confused with the expiration date on the Three Day Notice that is within the body of the notice.

CAN YOU REFUSE CASH OR PERSONAL CHECKS? -- We urge all our clients to never accept cash. In order to successfully refuse cash, it is imperative that your lease states this rule, and that you stick by it. Accepting cash just one time can nullify your rule. If a resident comes in on the last day of the Three Day Notice with cash and you refuse it, demanding a cashier’s check or money order, we do not recommend charging any additional late charges to the resident for the day it may take to comply with your request, thus avoiding a potential conflict with the lease terms and Florida law. Often a manager will not want to accept a personal check on late rent or from a resident who has bounced a check in the past. Clearly, if your lease allows you to refuse a personal check at any time or for late rent, you are permitted to do this. It is crucial that you examine your lease and make sure that it gives you the latitude to refuse a personal check at any time. Again though, if you have accepted personal checks when the rent was late or after the resident had bounced a check, you may have a problem, as the courts consider this act of yours as creating a waiver or a modification of the terms of your lease.

THE RESIDENT OFFERS TO PAY THE RENT, NOW WHAT? If the resident attempts to pay the full rent as properly demanded prior to the expiration of the Three Day Notice, the manager must accept the rent. Often the manager is fed up with the resident not paying on time, tired of giving Three Day Notices or really wants the resident out for some other non-rent related reason. The manager must accept the rent. Failure to accept the rent and then attempting to file an eviction action will result in an unsuccessful eviction if the resident fights the case and especially if the resident deposits the rent into the court registry and receives a trial in court. Occasionally the resident will attempt to pay partial rent to the manager. The manager is permitted to take the rent that the resident offers, but should then immediately serve the resident a new Three Day notice with the balance owed. Continually accepting partial rent can establish a pattern and a potential waiver which could make it more difficult to evict the resident at a future time. If the resident attempts to pay the rent without the late charges, and your lease permits you to apply payments made to outstanding balances such as late charges first, a rent balance will remain for which you can serve a Three Day Notice. It is imperative that the resident knows exactly how you applied the payment so there is no confusion, with the resident thinking that the rent has been completely paid, rather than some of the payment having been allocated to late charges. If the resident attempts to pay the rent shortly after the Three Day Notice has expired but before you have filed an eviction, should you accept the rent? We say “YES” emphatically. The name of the game is rent collecting. Judges will question your motives as to why you did not accept the rent, and if the reason was non-rent related, you stand a higher chance of losing the eviction action.

SUPPOSE YOU ARE HOLDING A LAST MONTH’S RENT AND IT IS THE LAST MONTH OF THE LEASE? -- If you are holding a last month’s rent, you have no intention of renewing the tenancy, and it is the beginning of the last month of the lease, you would not want to prepare a Three Day Notice. If the resident paid, this would imply that you are extending the lease for another month and/or creating a month-to-month tenancy. If it is the last month of the lease, and you are not intending to renew or allow the resident to remain as a month-to-month resident, send the resident a Notice of Non-Renewal with a note stating that you are applying the last month’s rent at that time.

REFUSING AND/OR RETURNING THE RENT -- If the Three Day Notice has expired, and after careful consideration of the potential consequences, preferably after discussing this with your attorney, you decide that you are going to refuse the rent, we recommend that you have a witness with you. If the resident has paid the rent after the Three Day Notice has expired by giving it to a staff member or leaving it in a drop box, you must return the rent immediately to the resident, or it will be deemed accepted by you by the court. We recommend that you personally deliver the rent back to the resident, or in the resident’s absence, place a note on the door to the resident stating that the rent will not be accepted and notifying the resident that the rent is immediately being mailed back to him or her. Do your mailing by certified mail. While you can write “void” on a check, never take a money order and write “void” across the front, as this can create a serious problem for the resident attempting to cash this money order. Never place a money order or check in an envelope and tape it to the resident’s door. If you have accidentally deposited a resident’s funds, it is better to consider that you have accepted the rent money. You never want to deposit a resident’s check and then write a check from your account back to the resident, as the resident can stop payment on the check he gave you, and now you just paid the resident for giving you a bad check.

THE THREE DAY NOTICE EXPIRED AND THE RESIDENT IS ASKING FOR A FEW DAYS TO MOVE-- If this occurs, we recommend that you get the resident to sign an AGREEMENT TO VACATE. This will memorialize the date that the resident is leaving, and if you end up having to file an eviction, the resident will be less apt to succeed in defending on a money issue, as the resident has signed an AGREEMENT TO VACATE for a date certain and has failed to vacate.

 

“Serving the Property Management Professional”

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

NOTE THAT THIS APPLIES ONLY TO CARES ACT COVERED PROPERTIES

 

Many Thirty Day Notices are prepared improperly or incorrectly by the residential property manager. While seemingly simple and straightforward, there are many pitfalls along the way which can result in a notice being technically defective. Most if not all of the mistakes made in the preparation of the Thirty Day Notice are completely avoidable and unnecessary, but it takes some knowledge of the Thirty Day Notice and a respect for the legal importance in doing it right.

WHY IS A THIRTY DAY NOTICE NECESSARY?

HUD RULES state that a manager must serve a Thirty Day Notice when a resident is late with the rent, giving that resident Thirty straight days to pay the rent or vacate. Many managers have trouble accepting that a resident has the right to be given this notice when the resident is delinquent, often each month. Why can’t the manager just evict the resident if the resident fails to pay on time? The manager can, but only after allowing the resident a legal “grace period” of Thirty business days after the date that the rent is due, according to the terms of the lease agreement. No matter how many times the resident has been late, the manager cannot attempt to terminate the tenancy if a valid lease is in place without first serving the Thirty Day Notice, waiting for payment, and then not receiving the payment within the Thirty day time period as the notice allows.

SUPPOSE A THIRTY DAY NOTICE IS PREPARED INCORRECTLY?

If the Thirty Day Notice is prepared incorrectly, and the manager files the eviction based upon the incorrect notice, there is a high probability that the eviction will be successful if the judge fails to look carefully at the notice, the resident fails to bring this up to the judge if the resident files an answer with the court, or the resident fails to hire an attorney who will most certainly bring this up to the court. Why take any chances? More and more residents are hiring attorneys, and many attorneys are targeting residents as potential clients and actually soliciting their business. A proper Thirty Day Notice is what is called a “jurisdictional requirement”, which means that the court does not have the jurisdiction or “power” to grant the manager a Final Judgment of Eviction if particular aspects of the Thirty Day Notice are incorrect. A properly prepared notice is a prerequisite to the filing of the eviction action. If the notice is prepared incorrectly, many courts, if it is brought to their attention, will dismiss the eviction action, causing the case to be considered dead and requiring the manager to start over again from scratch. Worse yet, if the resident hires an attorney, there is a high chance that the manager will be required to pay the resident’s attorney’s fees and costs. These amounts could easily exceed $2000.00 and often do. The key is to simply prepare the notice correctly.

THE MECHANICS OF THE NOTICE

FORM – The suggested form of the Thirty Day Notice is provided by our office. Many managers get notices out of “do it yourself manager” books, which are general notices that do not substantially comply with the requirements of Florida Law. There are a number of computer programs that also provide notices that are not in compliance. Some are called “Notice to Vacate”, “Notice to Quit”, “Notice to Pay and Vacate”, “Eviction Pending Warning” or some other variation. These notices should never be used. The first step is to be using the proper form of the Thirty Day Notice, and avoid writing any extraneous notes or messages anywhere on the notice.

ADDRESSING THE NOTICE-- The Thirty Day Notice should be addressed to all adult residents who are lease signers and any other adult occupants from whom you may have accepted rent. Full names should be used, and these names need to carefully match the spelling and form as the names appear on the lease agreement. If the spelling on the lease is incorrect or incomplete, make sure the Thirty Day Notice names reflect both the correct spelling and the spelling as it appears on the lease. For example, if the lease says John Smith and you are aware that the correct spelling is John Smythe, on the notice you would write John Smith a/k/a John Smythe. You should never give a judge a reason to question your notice. Too much information here is better than too little. Saying Mr. and Mrs. is also incorrect and unnecessary. The address listed on the notice must be the exact address where the resident resides. If the unit is the “left” side or the “upstairs” unit, this must be clear on the notice. Many apartment communities have internal codes that the computer prints out, and these should not appear in the address. If the address is Apartment 105 in Building 3, this needs to be spelled out. Simply saying 3-105 just might cause confusion and should not be done. Additionally, the exact street address of the unit must be in the address section, even if the apartment community or condo has one address, one street and only the unit or building numbers are different.

DATING THE NOTICE-- If you are hand delivering or posting the Thirty Day Notice on the premises, the notice needs to be dated on the date that it is served, and the expiration date of the notice must be no less than 30 straight days in the future. A notice can be served on a Friday, Saturday or Sunday but you never count the day of service of the notice.   We strongly recommend against mailing a Thirty Day Notice, as there are dating and expiration considerations which can result in the notice being far longer than Thirty business days. If you are going to mail a notice, please call your attorney first, as there are other technical requirements.

WHAT CAN YOU DEMAND ON THE  THIRTY DAY NOTICE? -- RENT ONLY!! We cannot stress this more. The law only allows you to put rent on a Thirty day Notice and absolutely nothing else. What is rent? Rent is defined in Florida law FS 83.43(6) as “the periodic payments due the manager from the resident for occupancy under a rental agreement and any other payments due the manager from the resident as may be designated as rent in a written rental agreement”. This means rent is the usual monthly base rental payment, periodic items such as a washer and dryer fee if defined as additional rent, and other items which your lease deems to be additional rent, such as late charges, bad check charges, utility charges and any other charged deemed as “additional rent” in the lease. A word of warning here is necessary though; even if your lease defines these items as “additional rent”, a minority of judges still will not permit you to put anything other than the normal monthly recurring rent on the Thirty Day Notice. You always need to confirm with your attorney to see if a particular judge is doing this.

We recommend that if you are putting late charges on your notice, and the lease properly defines late charges as “additional rent”, you write the amount out as follows: “November rent of $650.00 plus $25.00 late charge as additional rent, TOTAL $675.00”. Your lease may have per diem or daily late charges that accrue as the rent becomes more delinquent. We strongly urge that you NEVER say “plus $5.00 per day” on your notice, as it causes the notice to be confusing and ambiguous.

The resident should be able to look at the notice and know exactly what is owed without having to do any math. If you feel the absolute need to try to demand anything else other than rent on a Thirty Day Notice, or have excessive accumulated late charges that you are trying to collect, you can go ahead and serve anything you want but it is risky. Just remember that is you intend to follow through with an eviction, you will have to serve a new Thirty Day Notice before any ethical and self-respecting attorney will use your notice to file an eviction action.

WHERE DOES THE RESIDENT PAY THE RENT? -- Some managers like to have a post office address where the rent is to be paid. We strongly recommend against this, since if you allow a resident to pay by mail, the resident has five additional days to pay, mail gets lost, and all kinds of problems arise. You should have the resident pay at the office, and if you have a drop box or mail slot, be aware that many cases have been lost due to residents claiming that they have dropped the mail after hours and then blame you for the missing money.

FILLING OUT THE CERTIFICATE OF SERVICE-- Once you have prepared the notice carefully and used the Thirty Day Notice Checklist, you have thoroughly understood how to serve the notice and you have properly served the  Thirty Day Notice, it is crucial that you fill out the Certificate of Service at the bottom of the notice stating how you served the notice, and if personally served, to whom the notice was served. The date on the Certificate of Service must correspond to the date at the top of the notice and should not be confused with the expiration date on the Thirty Day Notice that is within the body of the notice.

CAN YOU REFUSE CASH OR PERSONAL CHECKS? -- We urge all our clients to never accept cash. In order to successfully refuse cash, it is imperative that your lease states this rule, and that you stick by it. Accepting cash just one time can nullify your rule. If a resident comes in on the last day of the Thirty Day Notice with cash and you refuse it, demanding a cashier’s check or money order, we do not recommend charging any additional late charges to the resident for the day it may take to comply with your request, thus avoiding a potential conflict with the lease terms and Florida law. Often a manager will not want to accept a personal check on late rent or from a resident who has bounced a check in the past. Clearly, if your lease allows you to refuse a personal check at any time or for late rent, you are permitted to do this. It is crucial that you examine your lease and make sure that it gives you the latitude to refuse a personal check at any time. Again though, if you have accepted personal checks when the rent was late or after the resident had bounced a check, you may have a problem, as the courts consider this act of yours as creating a waiver or a modification of the terms of your lease.

THE RESIDENT OFFERS TO PAY THE RENT, NOW WHAT? If the resident attempts to pay the full rent as properly demanded prior to the expiration of the Thirty Day Notice, the manager must accept the rent. Often the manager is fed up with the resident not paying on time, tired of giving Thirty Day Notices or really wants the resident out for some other non-rent related reason. The manager must accept the rent. Failure to accept the rent and then attempting to file an eviction action will result in an unsuccessful eviction if the resident fights the case and especially if the resident deposits the rent into the court registry and receives a trial in court.

Occasionally the resident will attempt to pay partial rent to the manager. The manager is permitted to take the rent that the resident offers, but should then immediately serve the resident a new Thirty Day notice with the balance owed. Continually accepting partial rent can establish a pattern and a potential waiver which could make it more difficult to evict the resident at a future time. If the resident attempts to pay the rent without the late charges, and your lease permits you to apply payments made to outstanding balances such as late charges first, a rent balance will remain for which you can serve a Thirty Day Notice. It is imperative that the resident knows exactly how you applied the payment so there is no confusion, with the resident thinking that the rent has been completely paid, rather than some of the payment having been allocated to late charges. If the resident attempts to pay the rent shortly after the Thirty Day Notice has expired but before you have filed an eviction, should you accept the rent? We say “YES” emphatically. The name of the game is rent collecting. Judges will question your motives as to why you did not accept the rent, and if the reason was non-rent related, you stand a higher chance of losing the eviction action.

SUPPOSE YOU ARE HOLDING A LAST MONTH’S RENT AND IT IS THE LAST MONTH OF THE LEASE? -- If you are holding a last month’s rent, you have no intention of renewing the tenancy, and it is the beginning of the last month of the lease, you would not want to prepare a Thirty Day Notice. If the resident paid, this would imply that you are extending the lease for another month and/or creating a month-to-month tenancy. If it is the last month of the lease, and you are not intending to renew or allow the resident to remain as a month-to-month resident, send the resident a Notice of Non-Renewal with a note stating that you are applying the last month’s rent at that time.

REFUSING AND/OR RETURNING THE RENT -- If the Thirty Day Notice has expired, and after careful consideration of the potential consequences, preferably after discussing this with your attorney, you decide that you are going to refuse the rent, we recommend that you have a witness with you. If the resident has paid the rent after the Thirty Day Notice has expired by giving it to a staff member or leaving it in a drop box, you must return the rent immediately to the resident, or it will be deemed accepted by you by the court. We recommend that you personally deliver the rent back to the resident, or in the resident’s absence, place a note on the door to the resident stating that the rent will not be accepted and notifying the resident that the rent is immediately being mailed back to him or her. Do your mailing by certified mail. While you can write “void” on a check, never take a money order and write “void” across the front, as this can create a serious problem for the resident attempting to cash this money order. Never place a money order or check in an envelope and tape it to the resident’s door. If you have accidentally deposited a resident’s funds, it is better to consider that you have accepted the rent money. You never want to deposit a resident’s check and then write a check from your account back to the resident, as the resident can stop payment on the check he gave you, and now you just paid the resident for giving you a bad check.

THE THIRTY DAY NOTICE EXPIRED AND THE RESIDENT IS ASKING FOR A FEW DAYS TO MOVE-- If this occurs, we recommend that you get the resident to sign an AGREEMENT TO VACATE. This will memorialize the date that the resident is leaving, and if you end up having to file an eviction, the resident will be less apt to succeed in defending on a money issue, as the resident has signed an AGREEMENT TO VACATE for a date certain and has failed to vacate.

“Serving the Property Management Professional”

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

 

1. Tenant may break lease for whatever reason they come up with and prepaid rent can cause litigation.

 

2. Something may happen to the property and prepaid rent can cause litigation.

 

3. The tenant can file bankruptcy and you can be drawn into litigation by the Trustee regarding prepaid rent.
    
4. The tenant may be hiding money and this can be a fraudulent transfer so the rent may have to be frozen or returned to someone else.

 

5. You can’t give it all to the owner, you must give the monthly rent out each month.

 

6. It causes unnecessary excess money in your trust account and more trust accounting work.

 

7. The parties may divorce or one may vacate and this causes litigation.

 

8. The tenant may be in lease violation and prepaid rent will complicate the eviction and may cause you to lose.

 

9. The tenant may die and you can get dragged into a probate case.

“Serving the Property Management Professional”

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