A Letter from the Resident? -- A certified mail or regular mail letter from a resident, now that is a change. Usually it is the property manager who is sending the letters and notices. You open the letter up expecting the resident to be breaking his lease, but instead it contains a five page list of demands on you to make repairs to the property. The letter ends by saying that if you do not make the repairs within 7 days, the resident will either withhold rent or break the lease. Rent is now due, and you have served a Three Day Notice. Can you file an eviction? Can the resident break the lease? Does this need to be taken seriously? We commonly call this letter a “rent withholding letter” or “7 Day Letter from a resident”.

Does the resident have an attorney? -- If you receive a rent withholding letter from a resident or even a letter that implies that the resident is going to withhold rent, or worse yet, mentions something about you fixing something within 7 days, you can be almost 100% assured that the resident has gotten legal advice. This means that there is an attorney lurking in the shadows somewhere in a dark alley, waiting to see if you fail to make the repairs within the 7 Day time frame as demanded in the letter.

The Manager’s maintenance responsibilities - -- A manager is required by the lease and Florida law to maintain the premises. While the lease normally states what the resident’s responsibilities may be, if it is not stated in the lease that the resident is responsible for a particular item, frequently the implication is that the manager is the responsible party.

Florida Law and the Manager’s Duties- Florida law states the manager’s responsibilities regarding maintenance in Florida Statutes 83.51. Manager’s obligation to maintain premises. (1) The manager at all times during the tenancy shall: (a) Comply with the requirements of applicable building, housing, and health codes; or
(b) Where there are no applicable building, housing or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. However, the manager shall not be required to maintain a mobile home or other structure owned by the resident. The manager's obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex. (2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the manager of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for: 1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs. When vacation of the premises is required for such extermination, the manager shall not be liable for damages but shall abate the rent. The resident shall be required to temporarily vacate the premises for a period of time not to exceed 4 days, on 7 days' written notice, if necessary, for extermination pursuant to this subparagraph. 2. Locks and keys.
3. The clean and safe condition of common areas.
4. Garbage removal and outside receptacles therefore; 5. Functioning facilities for heat during winter, running water, and hot water. (b) Unless otherwise agreed in writing, at the commencement of the tenancy of a single-family home or duplex, the manager shall install working smoke detection devices. As used in this paragraph, the term "smoke detection device" means an electrical or battery operated device which detects visible or invisible particles of combustion and which is listed by Underwriters Laboratories, Inc., Factory Mutual Laboratories, Inc. or any other nationally recognized testing laboratory using nationally accepted testing standards; (c) Nothing in this part authorizes the resident to raise a noncompliance by the manager with this subsection as a defense to an action for possession under s. 83.59 (d) This subsection shall not apply to a mobile home owned by a resident.
(e) Nothing contained in this subsection prohibits the manager from providing in the rental agreement that the resident is obligated to pay costs or charges for garbage removal, water, fuel, or utilities.
(3) If the duty imposed by subsection (1) is the same or greater than any duty imposed by subsection (2), the manager's duty is determined by subsection (1), (4) The manager is not responsible to the resident under this section for conditions created or caused by the negligent or wrongful act or omission of the resident, a member of his family, or other person on the premises with his consent.

The Letter from the Resident- What does it look like? The letter from the resident will often be a complaint letter listing one or more items and demanding that the manager fix these items. In order for the resident to withhold rent or break the lease, first these items must be those that allow the resident to withhold rent or terminate, and secondly, the letter must give the manager 7 days to fix the items and state in the letter that failure to repair will result in rent withholding or the resident breaking the lease. The letter needs to be in writing, but some judges have held that verbal or actual knowledge by the manager was enough for the resident to comply with the resident’s obligation of putting the manager on notice.

Florida law pertaining to termination of the rental agreement. FS 83.56 (1) If the manager materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the resident specifying the noncompliance and indicating the intention of the resident to terminate the rental agreement by reason thereof, the resident may terminate the rental agreement. If the failure to comply with s. 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the manager and the manager has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows: (a) If the manager's failure to comply renders the dwelling unit untenantable and the resident vacates, the resident shall not be liable for rent during the period the dwelling unit remains uninhabitable. (b) If the manager's failure to comply does not render the dwelling unit untenantable and the resident remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance

For What Items Can the Resident Legally Withhold Rent or Terminate the Lease?

A technical reading of Florida Statute 83.60(1), the section of Florida law specifically addressing the resident’s right to withhold rent, indicates that a resident’s right to withhold rent is restricted to violations of 83.51(1), which essentially involves the manager’s failure to maintain the property up to existing building, housing or health codes. The resident has the right to terminate the lease when an 83.51(1) violation exists, or if the manager is failing to provide a material provision of the rental agreement. The right to terminate is actually a more expansive right, and what constitutes a material provision of the lease can be subjective. However, many judges allow the resident to withhold rent for items that would not technically constitute code violations (for example, a refrigerator problem).

The Letter from the Resident- What does it do? A letter from the resident in accordance with Florida law will allow a resident to break the lease if the problem is not repaired within 7 days AND will create a complete defense to an eviction action IF the problem has not been repaired within 7 Days. This is a very powerful tool the resident has, and if the manager receives such a letter, it should NOT be taken lightly, and most importantly, it should not be withheld from the attorney who may be filing the eviction action. Here is Florida law showing how the resident’s letter could be a complete defense to an eviction action and stating the strength of the resident’s letter to you. FS 83.60(1) …The defense of a material noncompliance with s. 83.51(1) may be raised by the resident if 7 days have elapsed after the delivery of written notice by the resident to the manager specifying the noncompliance and indicating the intention of the resident not to pay rent by reason thereof. Such notice by the resident may be given to the manager, the manager's representative as designated pursuant to s. 83.50(1), a resident manager, or the person or entity who collects the rent on behalf of the manager. A material noncompliance with s. 83.51(1) by the manager is a complete defense to an action for possession based upon nonpayment of rent…

Resident the from Letter receive you when attorney your - Failure to disclose to your attorney that you have received a rent withholding letter, or 7 Day Letter as we commonly call it, can be deadly. Your attorney will file the eviction, the resident will post the rent into the court registry and the judge may look at the letter as a complete defense to the eviction action, throwing the case out of court and holding you liable to pay a substantial amount of money in attorney’s fees to the resident’s attorney. NEVER hide a letter like this from your attorney.

So you received the letter from the resident, What should you do? – Notify the property owner, explain the law to the property owner, get the necessary funds and authorization, and get the repair done immediately. Judges are not keen on your excuse that you had no money from the owner to make the repairs, or you had to get 5 bids, or that no one could come out to make the repair. While all repair requests should be taken seriously, a repair request in the form of a 7 Day Letter from a Resident or a Rent Withholding letter needs to be given the utmost priority.

 

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The scenario usually goes like this: The resident vacated and owes money to the owner. The owner is angry and wants to file a lawsuit against the resident for the money owed or otherwise attempt some collection activity. The owner asks you to give him a copy of the credit report and/or social security number so he can collect the money owed. Should you release it? No.

The situation is controlled by the federal Fair Credit Reporting Act (FCRA). This is the same law that controls Equifax, Transunion, and other credit reporting agencies. The law states that if you provide credit-related information to others on a regular basis, you too are a credit reporting agency. So, in addition to being a property manager, you become a “CRA” subject to all the laws, regulations, and liabilities as Equifax. Not good.

A debtor (resident or applicant) can sue for a violation of the FCRA, as can the Justice Department. Damages are awarded, even if there’s been no harm done to the debtor! Add attorney fees and court costs to that, and one has a very unhappy property manager.

The federal Fair Credit Reporting Act says that credit information can only be released for appropriate purposes. The word “appropriate” is defined by the law. It does NOT include releasing credit information for the purpose of suing to collect on a debt.

Aside from the FCRA, there is another reason to hold tight to that credit report and social security number. Identity theft is on the rise, with increasingly clever ways of using a person’s private information to cause financial havoc. By keeping the credit report and social security number totally secure, you limit your risk of liability to a resident who becomes a victim of identity theft.

Two myths need to be debunked. One, the fact that the owner hired you as his agent and you obtained the report in that capacity of agent does not change any of the advice above. This is true even though the owner may have paid for the credit report. The owner designated you as agent for the purpose (among others) of finding a resident. Since he has delegated that authority to you, the owner has no appropriate purpose for the credit report.

A second myth involves releasing the credit report if the resident gives written consent. This is NOT true. There is no form or document that is so carefully worded that would allow the release of the information. The debtor (the resident) cannot waive his rights under the FCRA.

There are some very limited exceptions. If served a proper subpoena for the document, it can be released. If you are seeking legal advice involving the resident, you can let your attorney see the document. Otherwise, keep that information under lock and key.

Unfortunately, many property owners do not care what the law is and feel they are entitled to the information. A savvy property manager will have the following clause in their management agreement which can diffuse a touchy situation:

Due to laws which may affect disclosure of private and credit information, MANAGER shall not be provided with the RESIDENT’S credit report and/or application unless specifically authorized in writing by the RESIDENT(S) and the provider of the credit report.

Note: You will never get this authorization from the resident and the credit report provider, but we recommend you place it in your management agreement so you can convince the owner that it is indeed not an option.

 

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Why would you ever want to refuse rent? The resident may be currently under eviction, in continuing noncompliance with some other term or condition of the lease, holding over, or making a partial payment. In these cases you would not want to accept rent, but rather you will want to refuse the rent payment, as it could interfere with the resident removal process. The problem is that the resident came to your office, paid your front desk person and received a receipt showing that payment has been made! Have you accepted rent? Has a waiver been created such that the resident now cannot be removed? This article will deal specifically with the “acceptance of rent” and the “receipt” given to the resident, rather than how to return the “accepted” rent to the resident.

 

Rent Acceptance and Evictions

 

Accepting any rent during an eviction without the parties properly entering into a stipulation is a sure way to kill an eviction action. Most managers are aware of this and know that when a resident attempts to pay, the consequences can be severe. If a resident attempts to pay the rent, the manager will usually refuse the rent and call the attorney for guidance. Possibly a stipulation will be entered into, or the resident will simply be told that rent cannot be accepted. Accepting or even holding any rent payment from a resident under eviction can have dire consequences to the eviction action.

 

Rent acceptance During Noncompliances

Less obvious are the situations in which a resident may be in some kind of lease noncompliance and tries to tender the rent during this lease noncompliance. Examples of continuing noncompliances include unauthorized pets, code violations, unauthorized occupants, or some other uninterrupted, ongoing violation of the lease. Accepting the rent from the resident during a continuing noncompliance creates a serious, potential waiver and estoppel problem, in that the manager is basically giving the resident the permission to continue living on the premises for another month, even though there is a noncompliance. Many managers think that they can accept the rent and then quickly turn around and evict the resident for some violation of the lease not involving rent. This is a classic case of “trying to have your cake and eat it too”, and it is not good practice. Following is a typical situation: a resident is given a Seven Day Notice of Noncompliance with Opportunity to Cure on May 26 for an unauthorized pet, then comes in on June 1 and pays the rent. Can the manager turn around and terminate the tenancy? Probably not, if the rent is accepted.

 

The Accidental Rent Acceptance

In a very small company or when a manager is in complete control of rent acceptance, the manager can easily refuse the rent, explaining to the resident that rent cannot be accepted, possibly because an eviction action has been filed or the resident is in noncompliance. The resident comes in to the office, is recognized by the manager, and the manager is fully aware of the situation. This is the easy case. The problem starts when a resident waltzes into a rental office, hands a check or money order to the person at the desk that has no idea about the current eviction or noncompliance, and the resident is given a receipt and leaves. The manager may discover this immediately or even a couple days later. Possibly the rent has even been deposited! Now we have a big problem. The resident has tendered the rent to an employee or agent of the manager, the rent has been “accepted”, and potentially the manager’s ability to remove the resident has been compromised. Will a judge consider this “rent acceptance”?

 

The Not So Perfect Solution

In a perfect world, your front desk person or employee would know exactly who was under eviction, who was in noncompliance, and most importantly know not to accept the rent from that resident. The reality is that companies are dealing with sometimes hundreds or thousands of residents, and to investigate each resident at the time he or she comes in to pay the rent, normally on the 1st through 5th of the month, is simply impractical. One solution is to add some wording to the receipt that is given to the resident. While this wording is not perfect, it makes the person, be it the resident or a third party tendering the rent, aware that the rent may be returned and the tender and the receipt by the front desk person does not constitute legal “acceptance”, which we now know could kill that eviction or hurt the prospects of filing an eviction.

 

Possible wording for your receipts”

This receipt is provided for your convenience to show that you have given a form of payment to our office. In the event you are in default of the lease agreement, you are under a pending or actual eviction process, and/or you are attempting to make a partial payment, your tender of any payment to us and our giving you this rent receipt does not constitute our legal acceptance of the tender, and the payment may be returned to you at our option.

 

What is being accomplished?

By placing this wording on the receipt that is given to the resident, you possibly can protect yourself from being considered to have accepted the rent from the resident. This wording makes the acceptance of the rent from the resident conditional upon other possible circumstances. Could it be challenged in court? Sure, but it is probably better than what you have on your receipts today.

 

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Acceptance of Payment. The manager’s acceptance of payment from the resident waives the pursuit of any other lease noncompliance known to the manager at the time of acceptance. The manager’s acceptance of resident payment after a failure to pay waives that payment noncompliance as a basis for terminating the lease. If a Three Day Notice has been delivered, the acceptance voids the Notice and requires the service of a new Three Day Notice. The manager’s acceptance of resident payment after learning of a noncompliance other than nonpayment (such as illegal parking or the assault on another resident) waives that noncompliance, no matter how serious the noncompliance. If a Seven Day Termination Notice has been delivered, the payment acceptance voids the Notice.

The Gray Area. The basis of waiving the noncompliance is “acceptance” of the resident payment. Within the two clear boundaries of an accepted payment and a refused payment is the gray area. In this gray area are electronic payments: the on-line payment by credit or debit card, the electronic check, and the automatic charge to a credit card or debit to an account.

The obvious answer is to avoid the gray area altogether. Terminate the ability to pay on-line. Establish procedures and checklists to insure that electronic payment authorization is withdrawn or blocked. That being said, mistakes will happen. The size and complexity of manager organizations, the shifting of staff and plain human error are among the factors contributing to mistakes.

Judicial Discretion. In any legal gray area judicial discretion is paramount. In the exercise of its discretion a court will consider the intent of the parties, their business sophistication and any mitigating factors. The more sophisticated the manager, the less the court will be inclined to understand mistakes from failure to follow established policy, lack of adequate staff training, and disorganization. The presence of mitigating factors can be important. A resident following his established practice of paying on-line has a better chance of claiming acceptance than a resident that used the electronic payment to circumvent an in-person refusal.

Speed and Documentation. The most important factor evidencing the manager’s intent to refuse an electronic payment is the speed with which it is returned. The moment a manager discovers the payment, it should be credited back. The manager should document the file with the date and time of payment, when and how it came to the manager’s attention, and when and how it was returned. Written, dated and initialled notes are more persuasive in court then a hazy recollection.

A cautionary note to managers: while notice of an electronic payment may be nearly instantaneous the payment itself doesn’t clear instantaneously. The dilemma is that waiting for the funds to clear may be construed as acceptance, while issuing an immediate credit may result in an overpayment if the electronic payment is rejected and doesn’t clear.

The Three Day Notice. Given the uncertainty of the judicial response, I advise some common sense guidelines can be followed. If it’s a Three Day Notice, the manager should accept the payment even if it’s a prohibited partial payment, including the $25 on-line payment designed solely to buy three more days. The manager should accept that the resident took advantage of the mistake, serve a new Three Day Notice and notify the resident that electronic payment privileges are withdrawn. Note that if the lease has delivery method and timing requirements for the notice regarding withdrawal of electronic payment privileges, these must be followed.

The Seven Day Termination Notice. If it’s a reoccurring noncompliance, such as loud music late at night, the manager should accept the payment and wait for the next noncompliance. If the manager has sent a Seven Day Termination Notice, he should send a letter noting the payment, withdrawing the Notice in view of the payment and stating that electronic payment privileges will be withdrawn in the case of any future termination for noncompliance. If the current noncompliance is of such a serious nature that the manager does not wish to waive it, then the manager must accept the risk of an adverse litigation result. This includes paying the resident’s attorney’s fees, which can be substantial, and facing a fair housing complaint arising from the unsuccessful litigation.

Eviction Proceedings. If eviction has been filed, the above analysis can only be competently made by the eviction attorney. The attorney should be consulted immediately upon discovering the electronic payment. The attorney is in the best position to draw upon his experience in the particular county before the particular judge.

 

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APARTMENT LOCATOR SERVICES

There are many apartment locator services operating in Florida who work for the apartment hunter and find an apartment for a fee, paid sometimes by the resident, but more often by the apartment community. Your company may have an ongoing contract with one or more of these locator services, and if so, your company may be legally bound to pay the company if a lease is consummated. Extreme care must be taken to know exactly what the arrangement is with the locator service, the fees involved, and what the current contract states. Prior to entering into any agreement or contract with a locator service, you must know for sure that the company is legally operating in accordance with the licensure requirements of the Florida Division of Real Estate.

Licensure

In order for the owner or management company to legally pay an apartment locator service, that locator service must have a valid and current Florida Real Estate Broker's license. Licensure should not be assumed, as a company can appear to be legitimate and hold itself out to the public as licensed, but no license may exist. Before doing any business with an apartment locator service, and especially before signing any type of contract under which you are binding yourself to payments, research the company by going to the website of the Florida Department of Business and Professional Regulation at (http://www.myfloridalicense.com/dbpr/re/index.html). It is possible that the company has a name it is doing business under which may not match the license name, and this can be determined and verified by going to the website.

What can be paid?

A commission or a fee can be paid to the apartment locator service. There is no monetary limit on this fee, since the apartment locator service is a licensed "real estate broker", and Florida law does not impose any limits on payments in this case. There is no difference in paying a locator service than your local real estate company who sends you a prospect who eventually becomes your resident. The amount paid may be the fee that the locator company charges in its contract, or any other amount that is negotiated between your company and the locator service. Make sure everything is clearly set forth in writing, and have your attorney review the document to make sure that you never have to pay a commission or fee unless a lease is fully consummated, the resident moves in, and all monies collected from the resident have cleared the bank. In some cases, there may be no written contract at all. You may receive a call from a locator service or a real estate company, a prospect is sent to you, a lease is signed, and you pay the commission agreed upon over the phone. Better practice dictates that this all be in writing.

Who can be paid?

Only the licensed real estate broker can be paid by the owner or management company. This may be the individual broker or the licensed brokerage company. No payment may be made by you to any employees or owner of the apartment locator company, whether or not that person holds a real estate license. The payment is made out to the broker or brokerage company, and what happens after that is the business of the apartment locator company.

The Apartment Locator Contract

If your company has no legally binding contract with the locator service, you are under no legal obligation to pay any fee or commission to the service for sending a prospect your way who ends up becoming a resident. If presented with an apartment locator contract, carefully review all its terms and conditions before signing, and have it reviewed first and approved by your regional manager or corporate office. Often, a locator service has entered into a contract with a prior management company or prior owner, a contract of which you had no knowledge. Your company's contractual liability for payment of a commission or fee will depend upon the wording of the contract and whether it applied to new owners or successor management companies. Train your management and leasing staff to never sign any forms or papers presented to them by any locator service, as the apparent authority of the employee and the act of signing can have a binding effect upon the management company or ownership.

RESIDENT REFERRAL FEES

One of the best ways to increase occupancy is through a resident referral. Simply put, one of your satisfied residents refers a friend, coworker or relative to your property. Often the referring resident is rewarded by you with the payment of a sum of money, a gift or a reduction in rent for the next month. This is all completely legal, and is allowed due to the efforts of the Florida Apartment Association in having Florida Statutes Section 475 amended to allow you to give "resident referral fees". However, there are limits in how much you can give as a referral fee to the referring resident, and no matter how desperate you are for residents, you cannot exceed the limits set by Florida law. Many companies operating in Florida are based out of other states and do not know the Florida law regarding referrals, and it is just a matter of time when a company gets in serious trouble, facing hefty fines or ever criminal prosecution.

Florida Law

Chapter 475 of Florida Statutes carves out exemptions addressing who can receive a "commission" for a real estate transaction without having to hold a valid and current real estate license. Florida Statute 475.011 provides the exemption from licensure in part as follows:

"ƒ(13)Any property management firm or any owner of an apartment complex for the act of paying a finder's fee or referral fee to an unlicensed person who is a tenant in such apartment complex provided the value of the fee does not exceed $50 per transaction. Nothing in this subsection authorizes an unlicensed person to advertise or otherwise promote the person's services in procuring or assisting in procuring prospective lessees or tenants of apartment units. For purposes of this subsection, "finder's fee" or "referral fee" means a fee paid, credit towards rent, or some other thing of value provided to a person for introducing or arranging an introduction between parties to a transaction involving the rental or lease of an apartment unit. It is a violation of s. 475.25(1)(h) and punishable under s. 475.42 for a property management firm or any owner of an apartment complex to pay a finder's fee or a referral fee to an unlicensed person unless expressly authorized by this subsection.

Applicability of the Statute

Who can be paid? To examine the statute, we see that it applies to a management company or owner of an apartment community. The person to whom you pay the referral fee must be the resident. The law does not indicate which resident in the case when there are two or more residents on the lease, but it can be safely assumed that the law refers to one and only one resident.

How much can be paid? The statute specifically states that the "value" of the "fee" can be no more than $50. This is clear. Any attempt to circumvent this by giving gift cards that exceed $50, paying $50 to each resident on a lease with multiple residents, giving the resident a product or service valued at more than $50, or giving a rent credit for the current or next month in an amount greater than $50, are all in violation of Florida law and will constitute a felony.

How often can the fee be paid? The statute makes it clear that the resident to whom you pay a referral fee cannot be "in the business" of trying to find residents to refer or advertise your property in any way. That enterprising resident who goes around placing flyers up in businesses or advertising apartments on Craigslist or in any other advertising medium, does not qualify under the exemption and will not be entitled to the referral fee. Exercise extreme care when a resident has multiple referrals to make sure that no violation of the statute is occurring. When dealing with the referred prospect, inquire how the prospect knows the referring resident.

Penalties for violations: The resident referral fee is always an uncomfortable topic with which to deal, as many apartment communities boldly advertise to the residents, often in writing in the resident newsletter or on signs posted prominently on the property, that resident referral fees are paid in amounts or value far exceeding $50. The reasons for payment of referral fees exceeding the $50 cap range from pure ignorance of the existing law to a knowing, calculated violation of the law. Resident referrals play an important role in filling vacancies, and the higher the referral fee, the more referrals an apartment community is going to receive. The problem is that violating Florida Statutes 475 is actually considered a third degree felony, punishable by a fine of up to $5000, and the violator is the person or company paying the referral fee, not the resident receiving it. It is important for the manager to alert his or her company to the existence of this law.

THE RESIDENT REFERRAL FEE AGREEMENT:

While a simple sign offering a resident referral fee will often suffice, situations may arise that are unexpected, and the referring resident may expect a referral fee in a situation that may not be appropriate. Will the referring resident receive the $50 payment or rent concession immediately, or after a specific time period? Suppose the referring resident is in default of his lease or even under eviction? The resident may refer an applicant who is not approved, or if approved, moves in and bounces the rent and security deposit checks. At what point in time will the referring resident receive the $50 payment or credit? Think about this carefully, and create a Referral Fee Terms and Conditions Sheet to avoid any misunderstandings between you and the resident. If you place a sign up on the property or advertise your referral fee in any way, simply print on the bottom of the sign or advertisement, "Terms and conditions apply, see office for details".

 

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Thousands of Three Day Notices, Seven Day Notices and Notices of Nonrenewal are served each week by property managers.

 

Most are served by posting on the premises or hand delivered to the resident if the resident is present. 

While most residents comply, there are many times when the manager files an eviction and the resident denies receiving the notice……..

Most likely an agent for the manager served the notice by himself or herself with no witnesses, so the judge will have to decide who to believe if this is brought up as a defense to the eviction.

So. While witnesses are not necessary, they sometimes can be crucial to your case.

Well, Let’s examine Florida Law first

What statutes addressees the witness requirement?

There are none!

There is absolutely no requirement in Florida law that the manager must have a witness or witnesses present when serving a notice.

Many of you have what we could call the The Dangerous Resident  --- the resident that could cause you  hard if angry or mentally unstable.

Serving notices can be dangerous.

Here you could have a situation where you knock on a door only to meet a less than friendly resident or other occupant of the premises, whether authorized or not.

Each year, managers get harmed while in the process of serving notices. Some have been or was killed.

You might think that mailing a notice after it is served could be the best route as you think this could be more proof that the resident got the notice.

This is a huge mistake.

Here you are insuring that the resident receives a notice so you  sends this notice by mail, in addition to posting on the premises or hand delivery.

Mailing can be a serious mistake as the law extends the expiration time of a notice if it is mailed.

If a Three Day Notice is mailed, the law allows 5 days for the resident to receive the notice and an additional 5 days for the resident to pay by mail even if you don’t want the resident to pay by mail.

This can result in a Three Day Notice becoming a Thirteen Day Notice.

On top of this, confusion can occur because the Three Day Notice was given one day but another Three Day Notice received a few days later by mail causing a conflict and possibly voiding out the first Three Day Notice.

In the case of a Notice of Nonrenewal, the manager may be under a strict timeframe in which to give the resident notice.

For instance, a month to month tenancy needs to be terminated by the manager giving no less than 15 days’ notice prior to the beginning of the next monthly rental period.

If the notice is mailed on say August 14, adding 5 days for mailing would make the notice short.  A short notice is a WRONG notice

Some residents, shall we say, are desperate

There are no limits to the lies that residents will come up with if they do not have the rent.

AND

The most common one is that they did not receive the Three Day Notice.

Judges hear this one all the time, and in most cases, as long as the manager or someone else testifies that they served the notice, this defense will not be successful.

But beware!!!

If this defense is raised in court, you better be certain that the person who served the notice is in court with you, and better yet, another witness.

There is the “I Paid the Manager by Cash” Defense

Occasionally a resident will raise the defense of payment.

They will claim that they paid the manager when the manager met them at the door.

Sometimes……………. they will allege that they paid the manager in cash.

In most cases this is NOT a very credible defense, but if the resident can show that the manager accepted cash in the past, the defense becomes MUCH stronger.

 

 Having a witness who can also testify that no payment was made by the resident could be crucial if this defense is raised.

What are some Alternative Delivery Methods???

You don’t need to go this on your own,

Private process servers are available in most counties and are certified to serve notices by the Circuit Court.

After serving, the process server will prepare an affidavit of service which will be attached to your Three Day Notice that you file with the Court.

Most judges will take this seriously, but still, if a process server is used, we would recommend that the process server comes to the eviction hearing or trial if that becomes necessary.

Now I do have a word of caution when using process servers and that is to  make sure the date on your notice and the expiration date are proper,              AND, most importantly,  that the process server serves the notice immediately.

We have seen cases in which the manager hired a process server, gave the process server the notice but the Three Day Notice was not served until the next day, requiring the notice to be completely redone, and the manager had to start over again.

Look at what a judge has to do.

While you may serve a Notice, the judge has to actually kick the person out of the house. It is kind of radical and no judge enjoys this.

Judges are human and in sometimes feel sorry for the resident‘s plight.

Some residents can weave a great story, and some residents indeed do have legitimate problems.

While most judges will follow the law, giving the judge one little excuse to deny the eviction action might be enough for you to walk out of the courtroom with unexpected results.  It has happened to US.

Never underestimate what a resident will do in Court. Our office handled a cut and dry non-payment of rent case in which the resident denied receiving the Three Day Notice.

The manager testified that he gave the notice. The resident had no other legal defense whatsoever, and the judge decided to dismiss the eviction action, stating he did not feel that the resident received the notice.

If we had a witness to the notice serving or a private process server was used, we doubt that the judge would denied the eviction.

So where do we go from there…………….

If at all possible bring a witness with you when you are serving notices. If you feel that you have a dishonest or dangerous resident on your hands, or possibly you have accepted rent in cash in the past, it is the safer approach and can mean the difference in whether you win or lose the eviction action.

 

“Serving the Property Management Professional”

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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”

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

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”

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