More often than ever before, residents are having roommates move into their rental houses or apartments for a myriad of reasons, the most common being to help with expenses and contribute to the rent. More residents are taking in roommates that they do not know very well through the use of classified services, roommate services or referrals from friends. Sometimes it works out for them; sometimes it becomes the nightmare roommate situation. Many managers really are not too concerned about who is living in a unit these days if the rent is flowing in and there are no complaints by neighbors or police, so even if the manager becomes aware of the roommate, they will generally ignore the situation. In conventional housing when most often there are no restrictions on occupancy or number of unrelated persons in a unit, one additional roommate does not pose a problem legally. In tax credit properties, subsidized properties or in units where the resident is receiving state or federal funds, the mere presence of the roommate residing on the premises could result in the manager and the resident being out of compliance with the laws governing the tax credits or subsidies, and cause a serious risk to the manager’s business, or the resident could end up losing her subsidy, resulting in the manager not receiving the subsidy payment. In these cases, it is crucial that the manager takes action immediately to have the resident have the roommate removed from the premises or the resident on the lease evicted. This article will deal with a different situation, that being the case when the resident comes to you asking you to help remove the roommate for them.

 

The Scenario

Your resident comes to you at her wit’s end. She tells you that she took in a roommate and the roommate is causing her serious problems. These problems may include drug use, alcohol, parties, things disappearing; unruly guests, or possibly the roommate simply is not paying his share of the rent. The resident wants the roommate out, but the roommate simply refuses to leave. In some cases the situation is so bad, the resident has had to move out temporarily, as she is being terrorized by the roommate, and now sheepishly is asking you, the manager, to get the roommate out. Your resident has called the police, and the police told her, “It is a civil matter,” and to consult an attorney. You may or may not have known of the roommate, but now you know for sure and are being pulled into a mess that was created by the resident taking in the unauthorized roommate.

 

The Request and the Problem.

 

Your resident is now asking you, the manager, to remove a person with whom you have no legal relationship. She may ask you to “evict" the roommate, thinking that somehow you have to power to do so, being that you are indeed the manager. The fact that you have no legal relationship with the roommate will make it impossible to remove the roommate alone. You cannot file an eviction against that roommate. Rather, the resident must, as she has the legal or quasi- legal relationship with the roommate, and most likely it was not in writing. If there was indeed a lease between the roommate and the resident in writing, the resident has become the “manager”, and although she may be illegally subletting the unit, the resident would need to file an eviction against the roommate as the manager. It is rare that residents have any written agreements in place with acquired roommates.

 

The Initial Reaction

Your initial reaction may be to tell the resident that it is her problem, and she has to deal with it, and you would be mostly correct. Your resident caused this problem by taking in the roommate, and your resident needs to deal with it. The larger problem is that your resident is telling you that if she cannot get the roommate out, the resident will have to vacate. This will leave you with a person in your unit who has not signed a lease, and with whom you have no legal relationship. If you were to call the police, they would give you the same response, which would be, “It is a civil matter; you need to hire an attorney”.

Feeling Sorry for the Resident

Since you have been getting your rent on time, and let’s face it, you are a bit desperate and do not want a vacancy, you may be tempted to feel sorry for your resident because of this roommate problem. Stop right there. Your resident violated the terms and conditions of the lease by taking in this roommate. This roommate is an unauthorized occupant, plain and simple. Your resident has and is violating YOUR lease. The roommate may even be a sexual offender or predator who would in no way have passed your criminal background check, thus causing liability to you or your company and possible danger to other residents or their guests.

Moving the Resident

One request that may come from your resident is for you to move her into another unit on your property. That seems like a simple way to help out your resident and solve your resident’s problem. Just move her to another unit. That’s great. Now you have your resident who violated her lease in one unit and the roommate in another unit. Never even think about doing this.

 

Actions to Take

1. Action by Resident: If your resident is having serious problems with the roommate that rise to the level of criminal activity, the roommate has injured or threatened to injure the resident, or the resident is in fear of her life, the resident should immediately go to the county courthouse and see if she can obtain a restraining order against the roommate or a temporary injunction against the roommate, which may require the roommate to vacate. Each county courthouse has a department dedicated solely to injunctions and restraining orders. If the problem is severe enough, the roommate may be required to immediately vacate by force of law, and if he returns, could end up being arrested. Residents routinely are able to get restraining orders and injunctions against one another, essentially kicking one resident out of the unit, and the courts generally do not care whether one or both are actually on the lease agreement. This is an option for your resident, but you should not advise the resident beyond the suggestion of pursuing this option.

 

2. Action by Property Manager: Your resident has an unauthorized occupant residing on the premises in violation of the terms of your lease. Your resident needs to be served a Seven Day Notice of Noncompliance With Opportunity to Cure immediately stating the following:

 

“You are in violation of the terms and conditions of your lease agreement due to having an unauthorized occupant residing on the premises. This occupant must be removed.”

Serve this notice and refuse any more rent unless you know for a fact the roommate has vacated, and possibly get something in writing from the resident stating that she has removed the unauthorized occupant.

 

The Roommate Fails to Vacate

If the roommate fails to vacate and your Seven Day Notice of Noncompliance with Opportunity to Cure has expired, you will then serve a Seven Day Notice of Noncompliance Notice of Termination, and upon expiration of that notice, your attorney will file an eviction. Proving the roommate is still there is often difficult, and your attorney will help you decide if you have a strong enough case. Your attorney will file an eviction against your resident. Your resident and the roommate will need to be evicted. There is no choice. We have seen some situations in which the manager and the resident make a deal under which the resident will not fight the eviction, allow herself to get evicted, and the manager allows the former, now evicted resident to move back in. Big mistake. The roommate may reappear, and the problem starts all over again. Additionally, who paid for the eviction?

Some Final Words

In tough economic times, the temptation to “help out a resident” so as to not lose the resident can have disastrous results. Do not make someone else’s problem that she herself caused become your problem that can be costly for you to solve. A resident who gets an unauthorized roommate is a lease violator and should be treated as such.

“Serving the Property Management Professional”

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The resident vacated, and you did an inspection and made the claim on the security deposit by certified mail as the law provides. Your maintenance staff then discovers some serious problems that you missed in your inspection, including fleas, bad touch up paint by the resident and a hidden rug burn. Can you go back and send out a revised claim? Have you waived your rights to making an additional claim? This situation will arise at some point when managing property and timing is crucial. Simply put, if you are outside the 30 day window as required by Florida law, you will not be able to claim the damages from the security deposit. While this is the bad news, the good news if that the resident still may owe you the money, and you may not have waived your rights to go after the resident for this additional money.

Florida law provides that you have 30 days from the date that the resident vacates the premises to send out the Notice of intention to Impose Claim on Security Deposit; for the purposes of this article, we will just call it the Notice. Years ago, Florida law only allowed 15 days to make a claim, but now there is some more time to examine the premises and make a decision as to what is owed. Keep in mind that we are dealing with making a claim against a security deposit, not figuring out what a resident will or may ultimately owe you.

 

When Should You Send Out the Claim Letter?

 

Waiting until the 29th day is always risky, as you open yourself up to a resident claiming they left on one day and you claiming they left on another. A dispute subsequently arises which could result in you having to return the entire security deposit to the resident, if a judge felt you were outside the 30 day window. We never want this to happen, so you should not wait until the 30 days are about to expire.

 

Get in the Unit As Soon As Possible!

 

It is important that as soon as you get possession from the resident, be it from surrender, eviction or abandonment, you get into the unit quickly. The purpose of this is not to make the claim as soon as possible, but to document the condition of the unit quickly, so a resident does not later say that the property was damaged by someone else AFTER they turned over possession to you. A property could indeed be damaged by someone breaking into that unit sometime after your resident has vacated. If you attempt to charge the resident for this damage, he may object and successfully convince a judge that the damage occurred after he vacated. Should you make the claim on the security deposit right away? No. If you are certain that you are going to make a claim, this is the time to pause and carefully begin documenting the damages and comparing the condition reflected in the move-in inspection report that hopefully you have.

 

You Sent Out the Claim Letter But Discover More Damages

 

Some property damage is not immediately evident at the time of the resident moves out. Residents sometimes successfully hide damages, paint over poorly filled holes in walls, mask odors with spray deodorants, or the unit may all of a sudden be infested with fleas two weeks after the resident moves out! A unit that is heavily cooled by air conditioning may not reveal the true smell of the years of cigarette smoking or urine damage to a carpet. Some damages are simply missed in error by the manager and later caught by the maintenance technician, who is more experienced in these matters and finds resident damage at a later time. Occasionally, you may be managing the property for an owner who decides to find damages that you did not find.

 

You Are Within the 30 Day Window

 

If you have sent out the Notice already but are still within your 30 day window, you can simply prepare another one and send it out again to the resident in the same fashion as the first Notice, being sure to again comply with the certified mail requirement. The resident will of course be upset about the bad news, but you are within your rights to do this. Remember that the resident does not have to receive the notice within 30 days; you simply must send the notice within 30 days.

 

You Are Outside the 30 Day Window

 

If you are outside the 30 day window and do not fall under any exception to the requirement to send the notice out within the 30 days, you will not be able to claim anything more from the security deposit than referenced in the initial Notice. The resident should receive the “balance due resident” indicated in the initial Notice. Even if the resident owes you the money, the resident should receive this balance back.

 

Does the Resident Owe You the Money?

 

The resident will still owe you the money, but you will not be able to retain it from the security deposit. You will be able to send it to collections, try to get the resident to pay or sue the resident if you wish. The main issue is that the funds you are holding cannot be used for the amounts owed.

 

Suppose the original amount and the revised amount owed both exceed the security deposit?

Let us assume you are holding a $1000 security deposit and originally claimed damages of $1200 within the 30 day period. After the 30 day period expires, you discover another $500 in damages. You may feel that there is a need to send a revised Notice, but this is not necessary, and besides, it is too late to send an amended Notice. You already have claimed the entire security deposit, so this intent has already been established. Remember, a Notice is not a bill or a final accounting you are sending the resident. It is simply a notice stating how much you will be taking from the security deposit as required by law. However, to cite the above example, if you discover more damages within the 30 day period, it is good practice to send an amended Notice, since some of the items claimed in your initial Notice may not hold up in court, if a dispute leads to deposit litigation.

 

Avoiding a Possible Waiver Issue

 

There is a possibility of a resident claiming that since you sent the Notice of Intention to impose Claim with a particular amount stated, you are now stuck with it and cannot now charge the resident any more. For example, if a resident breaks a lease owing you one month’s rent and you make a claim for this one month’s rent, more months of rent may become due if the unit remains vacant. You certainly do not want the resident to think that just because one month was subtracted from the security deposit, this is all the resident is liable to you for. The standard notice wording as stated in Florida Statute 83.49 does not address this, so we recommend that the following wording be placed on the bottom of your Notice just to be extra safe:

This notice does not waive or limit any of manager's rights to damages or amounts due which may exceed the security deposit or the amounts listed on this form.

 

“Serving the Property Management Professional”

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Management and property managers are always trying to increase revenue. There is absolutely nothing wrong with this. Being a manager is a tough business, profits have decreased, and liability is always on the rise. Unfortunately, many property managers and management are doing things now which may or may not be considered illegal by some courts. Word spreads quickly among associations, manager groups, and from training classes, and a novel idea that one company has implemented often spreads like wildfire. Are these new charges or practices legal, or can they result in serious and expensive lawsuits? Is it legal just because “everyone is doing it”, or you were “told” it was legal by a non-lawyer?

This article will examine some of these charges just for the purposes of making you think and then making an informed decision, hopefully with legal counsel, whether or not to take a particular course of action with your resident.

Excessive Late Fees

Florida Statutes does not address late fees. Nowhere in the Landlord/Tenant Act are late fees mentioned. How much can you charge the resident? No one knows. You can place late charges on your Three Day Notice in most counties if they are considered additional rent, you can evict a resident for failure to pay rent and late charges, and you most likely can deduct unpaid late charges from the security deposit if they are owed when a resident vacates. The key is that your late charge correlates to the damages you are suffering due to the resident paying the rent late. How is this figured out? No one knows. Sometimes judges will see excessive late charges and rule that a Three Day Notice is invalid. What is excessive? Can late charges be considered usurious?  Under Florida law, there are specific interest limits on what a creditor can charge for interest on a loan. Some attorneys are trying to expand the idea of a loan to delinquent rent. If delinquent rent was considered a loan, then the usury laws would apply, and the result in most cases would be that the late charges were usurious or over the legal interest rate limit.

Lease Renewal Fees

Some managers charge the resident a fee upon lease renewal.  This is justified by reasoning that the fee is for the renewal lease, the negotiations, and any extra inspections or work involved in renewing the lease. Most likely this fee is legal.  It is not addressed in Florida law, and the resident will pay it, but did you tell the resident about this fee in the beginning of the lease when the resident was asking whether he might be able to renew if he needed to stay another year?  If you are going to charge a renewal fee, full disclosure of this charge should be made at the time the lease is signed or as soon as you decide to implement this type of a fee.

Notice posting or delivery fees

The resident has not paid the rent, and you now have to prepare and serve a Three Day Notice.   Can you charge the resident a notice serving fee? Clearly if you are going to do this, the resident would have had to agree to it in the lease agreement, so let us assume your lease addresses this fee. You are charging the resident for a notice that the resident is entitled to receive and you are required to give by Florida law.  Is this legal? We definitely are not sure. It is not specifically “illegal”, as it is not mentioned at all in Florida Statutes, and you can argue that the resident has contractually agreed to it, but will this go over well with a judge? Unless the case is contested, many judges will not even notice the fee, and many of our clients do in fact charge this fee. We don’t recommend it though. 

Administrative Fees

In order to get a resident into a unit, you have do some work for sure. You must coordinate  credit checking, call references, call utility companies, input information into the computer, make phone calls, send emails, engage in negotiations, make sure the property is ready, travel to the property, and do many other tasks in order to get your resident into the unit. Many property managers have decided that by charging the resident an “Administrative Fee” or “Move-In Fee”, this can recoup some of the expenses involved.  When you received a call from a person who saw the house advertised for rent in the newspaper, did you disclose the administrative charge to them? If not, you can find yourself in serious trouble. If you decide to charge administrative charges, you need to understand they may not be legal at all, and your failure to disclose them in your advertising and upon first contact with the prospective resident could be considered illegal.

Redecorating Fees

As a condition of moving in, you charge the resident a nonrefundable “redecorating fee”. What is this for? It is to cover some of the damages that the resident may cause to the property. But aren’t you going to charge the resident for those damages anyway when the resident moves out?  In the old days, managers collected first month’s rent, last month’s rent and a security deposit. Now that this is not the norm, managers have looked to other ways to cover the damages residents may do to the unit which they will most likely not pay for. The problem with redecorating fees is that this could be construed as an attempt to make the resident pay for someone else’s damages or to pay for ordinary wear and tear. Again, Florida law does not specifically address such charges, but there could be dangers lurking in charging them.

Upcharges for Credit Checking

A property manager may charge $50.00 for conducting the credit check, but only is charged $8.00 by the company providing the credit report. Is the $42.00 a profit? Is it fair to the resident? The property manager will point out that getting a credit report is just one aspect of the resident qualification process; however, some states have placed limitations on how much the property manager can charge. Will Florida be next?  You don’t want to be the test case, so it is advisable to have your credit checking procedures clearly laid out in detail for possibly future use in a court case.

 

Conclusion

Unless a particular charge is clearly illegal, the property manager must make an informed business decision before implementation. Some companies will make a risk/benefit analysis and decide it is worth taking a risk. Other companies will implement procedures under which these charges are clearly disclosed ahead of time to avoid being accused of bait and switch tactics or a potential unfair and deceptive trade practice. In the end, excessive or additional charges increase the risk of litigation. Increasing profits can be construed as greed, and the farther property managers go, the greater the risk that there will be litigation that will adversely affect all property managers. We urge you to speak with your attorney regarding any charges before you make the decision of implementation. If your attorney will not give you a written opinion as to the legality of a particular charge, you just might want to avoid that charge. Many property managers have been getting caught up in the latest “revenue generating technique”. Never assume that because the property management company down the street charges something or has done so for years makes it legal or advisable.

 

“Serving the Property Management Professional”

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Owners may find themselves having rented to the proverbial “resident who is more trouble than he is worth.” During the term of the lease, the resident doesn’t commit any lease noncompliances that are serious enough to justify a lease termination. He may chronically pay late, but always before the three days on the Three-Day Notice to Pay Rent runs. Aside from late payments, he may have a series of other lease noncompliances: unauthorized occupancy, pet rule breaches, noise disturbances, parking violations, etc. He may never commit the same offense twice, or his acts, while annoying and requiring an inordinate amount of management time, are never grievous enough to justify lease termination. He may have chronic complaints about his neighbors, and after investigation the owner finds them unwarranted. He has or may be in the process of making insurance claims against the owner for personal injuries or for damage to his personal property. He expects the perfect rental, and to that end deluges the owner with a series of repair requests. Some of the repair requests are valid, but many, too many, concern cosmetic issues that are frivolous or border on frivolous.

It is important not to succumb to frustration with this resident. The law and the lease must be followed: his noncompliances noticed, his complaints investigated, his claims processed and his repair requests answered. It may be difficult, but the valid must be sorted from the frivolous, the relevant from the insignificant, and the valid and relevant handled as required by Florida law and the lease. Most important of all, everything should be logged, recorded and documented in the resident’s file.

All too often these residents are more familiar with the Landlord/Tenant Act than the owner. These residents have been down this path before. They may copy attorneys on complaints, repair requests and correspondence, or cite fair housing violations or claim retaliatory conduct. The owner can bet that these residents are documenting their files.

The owner, who has had enough, now prepares to non-renew the troublesome resident. Before serving the non-renewal notice, the owner is advised to contact his attorney to discuss the potential for a retaliatory conduct defense by the resident to the non-renewal.

Retaliatory Conduct Statute

Florida has a statute addressing retaliatory conduct by the owner. FS 83.64 Retaliatory conduct.

1. It is unlawful for a manager to discriminatorily increase a resident's rent or decrease services to a resident, or to bring or threaten to bring an action for possession or other civil action, primarily because the manager is retaliating against the resident. In order for the resident to raise the defense of retaliatory conduct, the resident must have acted in good faith. Examples of conduct for which the manager may not retaliate include, but are not limited to, situations where:

 

1. The resident has complained to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises;
2. The resident has organized, encouraged, or participated in a residents' organization;
3. The resident has complained to the manager pursuant to s. 83.56(1); or

 

4. The resident is a service-member who has terminated a rental agreement pursuant to s. 83.682.

 

2. Evidence of retaliatory conduct may be raised by the resident as a defense in any action brought against him or her for possession.

 

3. In any event, this section does not apply if the manager proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter.

 

4. "Discrimination" under this section means that a resident is being treated differently as to the rent charged, the services rendered, or the action being taken by the manager, which shall be a prerequisite to a finding of retaliatory conduct.

 

Retaliating

FS 83.64 is much broader than it appears on first reading. The statute forbids retaliating against the resident. What is “retaliating”? The statute indicates it is to discriminatorily 1) increase the resident’s rent, 2) decrease services to the resident, or 3) bring or 4) threaten to bring an action for possession or other civil action primarily because of a retaliatory motive.

The statute doesn’t explicitly forbid a non-renewal. It might be argued that every non-renewal carries with it the implicit threat of an action for possession. That tenuous argument aside, if the resident won’t vacate, the owner’s method to enforce the non-renewal is by actually bringing an action for possession, and the statute now clearly can be invoked by the resident as a defense to the action for possession.

 

The statute enumerates four examples of protected activity by the resident: complaint(s) of code violations, resident organization, resident delivery of a 7-Day Notice to the owner under F.S. 83.56(1) or service-member termination. Note that these are only examples and are non-inclusive examples. Thus, courts are free to hold that the statute applies to the exercise by the resident of any rights granted under the Landlord/Tenant Act or the exercise of any rights granted the resident under the lease. As a matter of fact, the statute’s language doesn’t limit its application to only the Landlord/Tenant Act or the lease. Other states with retaliatory conduct statutes have found an eviction action to be retaliatory when it was in response to the resident taking any action that the resident was legally entitled to take. Whether or not a Florida court will apply the statute so broadly remains to be seen.

Given that the statute’s purpose is to protect the resident, an owner should be prepared for a court finding that the statute applies to the resident’s exercise of the any rights granted by the Florida Landlord/Tenant Act or contained in the lease, such as the right to demand repairs. An eviction based on the non-renewal of the resident for exercising his rights, such as requesting repairs, can be met with the defense of retaliatory conduct.

Owner Defenses

Under the statute the owner has several defenses available: his action isn’t discriminatory, his action isn’t primarily retaliatory, his action is for good cause, and the resident is not acting in good faith.

Not Discriminatory

The owner’s action isn’t discriminatory. “Discrimination” is defined in the statute as treating the resident differently as to rent charged, services rendered or action taken by the owner. Since the statute requires a finding of discrimination by the owner as a “prerequisite” to finding retaliatory conduct, no discrimination in the treatment of the resident means no retaliation. If everyone in the building is being non-renewed for the building’s rehab, then there would appear to be no discrimination towards anyone in the building.

Not Primarily Retaliatory

The owner’s action isn’t primarily retaliatory. This is a proof issue of the owner’s subjective intent. The burden of proof rests on the owner. When there are several reasons for the non-renewal, the owner will have to prove that his primary reason wasn’t retaliation. It may be hard to convince a court of an owner’s subjective intent without any documentation to support the owner’s position. The owner’s testimony is likely not going to be enough. If the resident has been a problem resident, the owner should have a file with Seven-Day Notices of Noncompliance or Three-Day Notices to Pay Rent. If the repair requests have been frivolous and unwarranted, the file should contain reports by the owner after investigation or by responding vendors so indicating. This is when the owner’s documentation can be crucial.

For Good Cause

The owner’s action is for good cause. The statute specifically sets forth good cause as the owner’s absolute defense to the application of the retaliatory conduct statute. The statute lists three examples of good cause: good faith action for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the Landlord/Tenant Act. These are only examples and are non-inclusive examples. Owners are free to raise any other reasons as good cause. Note that the examples are preceded by the requirement that the owner’s action is in “good faith.” The fact that the statute expressly states that the good faith rent nonpayment eviction (Three-Day Notice to Pay Rent) and the good faith eviction for violation of the rental agreement or of reasonable rules (Seven-Day Notice of Noncompliance) are exempted from the statute’s application may be the best reason why owners don’t often face a viable retaliatory conduct defense by residents. Judges recognize it as a stalling tactic or an invalid defense, if the owner has properly prepared his case. Judges may be more likely to consider it in the non-renewal case of the troublesome resident.

No Good Faith

The resident’s isn’t acting in good faith. The statute requires that in order to raise the defense of retaliatory conduct, the resident must have acted in good faith. Once again this is an examination of subjective intent. This time it is the resident’s intent. The owner has the burden of proving the resident’s bad faith. Again, without any documentation it will be difficult to prove the resident’s intent. Timing may be an indication of the resident’s bad faith. The owner may successfully raise a bad faith claim, in the case of a resident, who didn’t object to the non-renewal notice when it was served, but first raises the retaliatory conduct defense when the eviction is filed.

The Landlord/Tenant Act has a separate statute (FS 83.44) that imposes the obligation of good faith on the performance or enforcement of every rental agreement and on the every duty under the Residential Tenancies Part of the Landlord/Tenant Act. The drafters of the retaliatory conduct statute (FS 83.64) saw fit to include the duty of good faith twice again in the retaliatory conduct statute – applying it to both the owner and the resident. This will not be lost on a court in evaluating the evidence presented by the owner and the resident.

Fair Housing

Retaliatory conduct claims are often accompanied with a fair housing claim of discrimination. Many times the evidence will be the same to contest the fair housing discrimination claim and the retaliatory conduct claim. The fair housing aspect of such cases is not treated in this article.

As indicated at the beginning of this article, there are instances in which the owner should be prepared for a retaliatory conduct defense to a non-renewal notice. The best preparation is a candid discussion of all the facts with his attorney before the owner takes any action.

“Serving the Property Management Professional”

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 “Anything you say (or write) can and will be used against you in a court of law”. You have heard the saying, and it applies ever so much in property management. How you respond to a resident can make a big difference in the outcome of a dispute. Our natural tendency to defend ourselves, explain ourselves, apologize or get into a fight when falsely accused, can make a small matter big in no time and create a damaging paper trail. Paper trails are excellent, but we must exercise care in what we write, what we say and what we email. If the burden of proof is on the resident in a particular dispute, there is no reason to give them the “proof “they can possibly use to make their case. This by no means indicates you should lie in court to get out of a situation, but if the resident has the burden of proof with regard to some issue, sometimes it is better to stand by and force them to prove you are in the wrong. The more you write, say or email, the more you may have to explain what you meant.

 

The Apology

 

We are all taught that a prompt, sincere apology is the right thing to do in life. In property management, an apology takes on a completely different meaning. Your saying, “I’m sorry about the flood in your apartment,” means, “The apartment manager admitted fault and now owes me money”. The truth of the matter is that the flood may have been caused by the upstairs neighbor, is not the fault of the apartment community, and that the residents are not going to be reimbursed a dime for their damaged items. Why apologize for something that is not your fault?

”We are Doing the Best We Can”

 

You may be waiting for a particular part, your maintenance tech is out sick or just got fired, and you are not able to promptly repair something in the unit or possibly get the access gate repaired that seems to break each week. Saying that you are doing the “best you can” is interpreted as; “The property manager is not doing as good as someone else may be able to do”. This means that your “best” is simply not enough for them, and the resident latches onto the statement as an admission of weakness. Saying, “We have rush ordered the part, are handling the issue as a top priority, and will be in the unit immediately when we receive the part” is a better approach.

 

”The Leasing Agent Had No Authority to Tell You That”

 

The desperate leasing agent “possibly” tells a prospective resident that the carpeting is set to be replaced in a month. The resident moves in expecting full well that they will be getting new carpeting, and the current carpeting is really bad. When the carpeting is not installed, the resident begins to demand that they get the new carpeting. Your leasing agent has since been fired, or your owner just informed you that she is filing bankruptcy and that no non-essential improvements will be been made. You then try to tell the resident that the leasing agent had no authority to make that promise. The problem is that the leasing agent DID have what is known in law as “apparent” authority to BIND the principal, the management company or the owner of the property to install new carpeting. By telling the resident the leasing agent had “no authority”, you may be admitting the leasing agent indeed did make the promise, when possibly the leasing agent did not make such a promise; with the former leasing agent no longer around, it is a big mistake to acknowledge statements you do not know were made. If the resident is not going to get new carpeting and you know for a fact the leasing agent did not promise the carpeting, the proper response would be, “New carpeting is not scheduled to be installed in your unit, and there is nothing in the lease to indicate that your unit was to get new carpeting.”

 

Responding to the Security Deposit Dispute

 

The classic mistake is to respond to a resident’s security deposit dispute by giving them (or worse yet, their attorney) a long drawn out explanation for what they were charged, why, and for what they were not charged, and how you were giving them a break on things for which you could have charged them. In the first place, you are NOT required by law to respond to a resident’s security deposit dispute, and secondly, if you feel your charges were legitimate, have good documentation including your inspection reports and photos, and followed all the correct procedures required by law, you can simply respond to the former resident in writing with a short statement such as, “We have reviewed your file, the inspection reports, photos and documentation, and all charges stand”. If you do have problems with your proof that the former resident owes you money, you don’t have pictures or have some weakness in the documentation, you may want to call your attorney and see if you can settle.

 

Dealing With Dueling Residents

 

Have you ever seen two units at war with each other, or had complaints by one against the other for noise? Sometimes you want to take sides with one or the other. You receive incessant complaints by one resident, saying the other is making too much noise. You feel that the complaints are unwarranted, or the complainer is hearing things or making a big deal about nothing. Your response may be, “There is nothing we can do, as we have not witnessed the noise”, but rather should be, “As soon as you hear the excessive noise, call us immediately so we can listen ourselves.”

 

You Should Have Gotten “Renter’s Insurance”

 

This is a classic response the manager makes to the resident when the resident comes in demanding $250 for the dry cleaning bill due to the pipe break in the ceiling above their closet. The manager feels that the apartment community is not liable for the damages, BUT are they? Just because the lease states that you are not responsible for damages to a resident’s personal property, a judge may find that you are and ignore the clause in your lease. The next time a resident complains about damages to their personal property, tell them, “Sit down and fill out this Incident Report, and we will take it to the regional manager or owner”. Telling the resident right off the bat that they should have purchased renter’s insurance is a sure way to see a $250 demand magically inflate to a $2500 demand when the infuriated resident goes to an attorney.

 

Implying You Will Give the Resident an Extension to Pay Rent

 

Your resident comes into the office and tells the leasing agent that he will be in next Monday with the rent check. However, the rent is due today. Your leasing agent then simply says, “OK”. Four days later you file an eviction, and the resident defends the case, saying he was “told” by the leasing agent that it would be okay to pay the rent on the Monday. Could this be a good defense? It certainly complicates matters. Always tell your employees to NEVER discuss extensions or rent payment arrangements with the resident, as an inference can be drawn that could end with you losing an eviction.

 

Telling a Resident to “Pay What They Can When They Can”.

In these troubled times, partial payments are being accepted at a much higher rate. If you are not specific or have written policies that you follow when accepting partial payments, you could end up with a resident continually bringing in small rent payments. This can create a waiver situation and cause you to lose an eviction. If you decide to take partial payments, you will have to live with the potential consequences.

 

Telling a Resident the Repair Will Be Made When the Rent is Paid

 

The resident is delinquent and owes 2 months’ rent. He calls you up demanding that his a/c be fixed. Your response? “Pay the rent, and then we will fix the a/c”. This response will almost assuredly give the resident a defense to an eviction action, and frequently will turn the judge against the owner in the process. The fact that the resident owes you money has NOTHING to do with your responsibility to maintain the premises.

 

Telling the Resident the Owner is in Financial Distress

The property owner may be in financial distress, and this is why certain things just are not being maintained properly; a/c units are being fixed rather than replaced, or cosmetic things are not being handled like before. It may be true that the owner is in financial distress, BUT the resident does not need to have this information. When the resident asks you why something is being repaired rather than replaced, never respond by revealing the owner’s financial condition.

 

Telling the Resident Why They Are Being Non-Renewed

 

You have no legal duty in conventional housing to tell a resident why he is being non-renewed. If you decide to discuss your decision, it will just result in the resident trying to defend himself or argue with you about the facts. A good response would be, “Just like you have the ability to non-renew your lease at the end of the lease term, we also have the ability to nonrenew your lease at the end of the lease term.”

There are too many situations to describe when a resident will tell you something, and you will respond. It is what we do; it is human nature. Try as hard as you can to avoid the sudden or improper response. Hold off on an answer or response, be it verbal or written. Get to the phone or computer immediately, and ask your attorney how you should respond, and what you should say in the response.

 

“Serving the Property Management Professional”

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We start by recognizing that the rental premises are usually owned by the manager, except in rare situations, such a sublease. Since it is the manager’s real property, its upkeep is the manager’s duty. In Florida it is the manager’s responsibility to prepare a property for occupancy and make the repairs necessary for habitability. Further, the Florida Residential Landlord/Tenant Act (the “Act”) obligates the manager to certain statutory responsibilities to maintain the rental premises. A manager often cannot avoid his duty of habitability or his statutory obligations by including a lease provision purporting to waive all repairs, acknowledge habitability or accept possession “as is”. Florida statutes specifically prohibit enforcement of lease provisions that attempt to avoid the manager’s duties arising under the Act or otherwise arising under law. However, the manager’s duties may be modified under the rental agreement to varying degrees, depending on the type of rental unit. See our article, “The Manager’s Duty to Maintain”, for a detailed discussion of the manager’s duties and the permitted shifting of those duties by written agreement.

In this article we address the duties to maintain that the Act demands from the resident. The resident’s duty to maintain the rental premises can be found in FS 83.52. This statutory section’s title, “Resident’s Obligation to Maintain the Dwelling Unit”, is somewhat misleading. The section might better state that it covers the resident’s duty to properly use the rental premises. The statute requires not only the proper physical use of the manager’s property, but also the proper behavior of the resident and his guests on the rental premises. Note that this statutory section does not distinguish between single family homes, duplexes and multifamily rentals. The resident’s obligations are the same without regard to the type of rental premises. The resident’s failure to comply with the obligations contained in this section can be the basis for the manager’s service of a Seven-Day Notice of Noncompliance with Opportunity to Cure. Continued noncompliance may be cause for service of a Seven-Day Notice of Noncompliance without Opportunity to Cure.

FS 83.52(1) Building Codes

FS 83.52(1) requires that the resident “comply with all obligations imposed upon residents by applicable provisions of building, housing and health codes” (hereinafter just “codes” for short). This mirrors the statutory obligation of the manager in FS 83.51 to comply with codes. The definition of “building, housing and health codes” can be found in FS 83.43(1). It is so broad that it will include almost anything that applies to housing. The resident may have obligations under the statutes, ordinances or regulations of state, county or local jurisdictions.

FS 83.52(2) Clean and Sanitary

The second subsection of the statute requires the resident to “keep that part of the premises which he or she occupies and uses clean and sanitary.” The definition of “premises”, which is found in FS 83.43(5), includes not only the resident’s apartment, unit or home, but also the building of which it is a part and the common areas for all resident’s use. The resident’s duty to keep clean and sanitary applies to his residence, and if applicable, to the building and common areas which the resident uses. It requires the resident to avoid littering and to pick up after himself and his occupants and guests. This does not require the resident to clean the building or common areas. That remains the manager’s responsibility as provided in FS 83.51.

FS 83.52(3) Garbage

The third subsection requires the resident to “remove from the resident’s dwelling unit all garbage in a clean and sanitary manner.” This provision uses the term “dwelling unit” to signify that the resident’s duty is to remove the garbage from his apartment, unit or home. It does not require the resident to provide for the pick-up and removal of the garbage from the property. Again, that is the manager’s responsibility as provided in FS 83.51.

FS 83.52(4) Plumbing Fixtures

The statute’s fourth subsection requires the resident to “keep all plumbing fixtures in the dwelling unit or used by the resident clean and sanitary and in repair.” This provision speaks of “plumbing fixtures.” It is not responsibility for all the plumbing. While there may be some gray area of what is a fixture, it is clear that this provision limits the resident’s obligation. This provision requires not only that the fixtures be kept clean and sanitary, but also that the resident repair them. Assuming the fixtures, such as faucets, sinks, toilet bowls, etc., are in good repair at initial occupancy, the resident must repair the fixtures during the tenancy without regard to the manager proving that any damage was the result of the resident’s intentional act, negligence or lease noncompliance.

FS 83.52(5) Facilities and Appliances

The fifth subsection states that the resident “use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators.” There is no independent duty to repair the facilities or appliances. The resident would only be responsible for the repair of the facilities or appliances if the resident (or his occupant or guests) broke or damaged them by unreasonable use or operation. If the facilities or appliances broke or malfunctioned due to some other reason, for instance due to age, the manager is responsible for the repair.

FS 83.52(6) Damage or Removal

Subsection six mandates that the resident “not destroy, deface, damage, impair or remove any part of the premises or property therein belonging to the manager nor permit any person to do so.” This is a broad general prohibition against damage or unauthorized removal of the manager’s property. The manager can base the resident’s liability for repair or replacement of damaged or removed property, as well as for an unauthorized alteration, on this subsection.

Issues

None of the above subsections specifically require the resident to report any needed repairs. The duty to report to prevent further damage can be surmised from the duties in FS 83.52 (1-6), but it is not an explicit obligation. As such, the manager cannot be assured that a judge will find a duty to report under FS 83.52. The manager also cannot be assured that a judge will find any duty to control mold in FS 83.52. Mold is mentioned nowhere in the statute. The manager should not rely on the statute’s requirement to use and operate the ventilating and air conditioning in a reasonable manner as an admonishment to control humidity. The manager should include appropriate lease provisions requiring the resident to report needed repairs and to control humidity/mildew/mold.

That FS 83.52(5) and (6) provide duties for reasonable use and to refrain from damage is clear. The issue faced by managers is proving that the resident’s use or operation was unreasonable or that the resident caused the damage or removed the property. A court may not assume that because something was in good repair at initial occupancy and it is not now, that the resident is responsible for the damage or repair. The manager must prove that the damage was the result of the intentional act, negligence or some other noncompliance by the resident or the resident’s occupants or guests. Sometimes this can be easy, but sometimes it is difficult to prove that the damage was not the result of a cause unrelated to the resident’s use, such as an appliance malfunction.

FS 83.52(7) Disturb the Neighbors

The final subsection of the statute deals not with the resident’s conduct in using property but with the conduct of the resident himself. It requires that the resident to “conduct himself or herself, and require other persons on the premises with his or her consent, to conduct themselves in a manner that does not unreasonably disturb the resident’s neighbors or constitute a breach of the peace.” Most managers would agree that this subsection is the source of many statutory noncompliances by residents. Note one important point in this subsection. It says “unreasonably disturb the resident’s neighbors.” Often the difficulty in enforcing this subsection is the unwillingness of neighbors to file complaints or testify in court, because they don’t want to get involved, don’t have time for court, or simply fear retaliation. Another problem can be proving that the violator was the guest of the resident, if the violator disappears and the resident denies it was his guest. The subsection provides that the resident must “require other persons on the premises with his or her consent” to act properly.

Assuming the Resident’s Obligations

The statute does not contain a provision for shifting the resident’s duties under the statute to the manager by written agreement. In all likelihood that is because the resident’s duties to properly and reasonably use the manager’s property are personal to the resident and not transferable. However, if the manager should intentionally or inadvertently assume an obligation imposed on the resident by any codes, a court may be unwilling to invoke the statute to relieve the manager of his obligation. Judges recognize the unequal bargaining power often inherent in the landlord/tenant relationship, as well as the fact that many leases are contracts of adhesion (leases with no real negotiations over lease provisions) prepared by the manager. In these circumstances if the manager has assumed a resident’s statutory obligation, he is probably stuck with it.

Requiring additional resident obligations

The statute does not state that the resident’s obligations are limited exclusively to those enumerated in the statute. If the manager wishes to expand the resident’s obligations for code compliance, maintenance and repair, he should first consult our article, “The Manager’s Duty to Maintain” previously referenced. In brief, many such obligations are not transferable, and an attempt to transfer most or all of such obligations may not only be unwise from an economic/preservation of property standpoint, but may also be held void and unenforceable. However, the manager can and should supplement the statute with appropriate lease provisions, because the obligations of FS 83.52 are not extensive and contain gaps, some of which are noted above.

Finally, while FS 83.52 places some maintenance, use and conduct obligations upon the resident, the manager bears the burden of proving statutory noncompliances. This will often require testimony by third parties, such as neighbors or vendors making repairs. Given the difficulties of assembling the necessary proof, the reluctance of third parties to testify, and the possibility that the resident will be less than candid about the cause of the damage or disturbance, it is often better to reach a settlement with the resident for an agreed monetary amount or to agree to a vacating date.

 

“Serving the Property Management Professional”

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Your residents have just informed you that they are breaking the lease agreement and moving out. A job transfer, sickness, home purchase or any other reason may be given. They may call you on the phone and then inform you in writing, sending you their new address where they expect you to send the security deposit. They may simply send you a letter telling you their intentions. Most likely you will not agree with the resident’s desires or plans, but you need to decide whether to ignore the letter or respond.

Do You Need To Respond?

There is nothing in the law that requires you to respond to the residents. A letter from residents indicating their intention to break a lease does not have any effect upon the lease agreement or the tenancy. Legally, it is called an anticipatory breach of contract. Will the residents be breaching the contract? Yes, and you do not need to respond. However, when you do not respond, the residents feel they are entitled to break the lease, and they assume your failure to respond indicates acceptance with their intentions. We feel you should respond, but in writing and with specific wording.

The Residents’ Expectations?

What are the residents’ expectations? As we can see in many lease break letters from residents, many feel that a job transfer, sickness or home purchase somehow legally allows them to simply pack up and break the lease. During the sales boom, many real estate salespersons told residents that in the event they purchased a home, the law allowed them to break the lease without penalty. We all know that this just is not the case, but the residents think otherwise. If the residents feel they can break the lease without penalty and send the manager a letter indicating the same and the manager in no way responds to the residents, the residents may feel that everything is fine and that the manager is in complete agreement.

How to Respond

When residents have already broken or will break a lease, the manager must immediately become vigilant and communicate only in writing with the residents. Remember, the residents are attempting to get out of a serious contract, and anything can and will happen. The manager may be caught off guard, the residents may be desperate, and the parties begin a verbal communication which is subject to interpretation and misunderstanding. The act of residents breaking a lease is a legally significant and dangerous situation (from the standpoint of the agent’s potential liability), and nothing should be done unless it is in writing. Too often we see cases in which deals are made, conditions are set, and conversations ensue in which the manager and the residents each end up having a completely different understanding of the situation. This results in conflicting testimony in a later court case. Unfortunately, some people can lie more convincingly than others can tell the truth, so when the residents go to court and claim the manager said they could break the lease, no one has anything in writing other than the residents who have a letter written to the manager indicating they could break the lease. The judge is put in an unfortunate situation in which he or she must decide who to believe. You may be on the losing end that day.

Common Manager Mistakes

Upon learning of a lease break or anticipatory lease break, the manager may tell the residents that if a new resident is obtained, the departing residents will not have to pay any further rent. This immediately creates an expectation on the part of the residents that the manager will mitigate his damages and suddenly get a new resident. Under current market conditions, we all know that finding a new resident may be a lot harder than it was two years ago. The manager may make the mistake of agreeing that the departing residents will find a replacement resident. Often this happens, and the person the breaching residents find does not meet the manager’s criteria and is not accepted, causing the breaching residents to feel that the manager does not want to rent the unit out. Another mistake is to make a payment arrangement with the residents for money owed, but at that time no one really knows what is owed or how long the unit will be vacant. Lastly the manager may find a new resident, but at a lower rent amount. Does this mean the lease breaking residents are now off the hook? All the foregoing mistakes are made by managers, and often they are part and parcel of the verbal agreements with the residents.

The Proper Response

Now that you are convinced that the manager should never respond unless in writing, you need to know what to say. Simply put, the manager should tell the residents that the lease agreement stands, and that the residents’ vacating shall constitute a breach of the lease agreement. Since automatic forfeitures of security deposits, liquidated damages and accelerated rents are not expressly legal, this will not be discussed. The correspondence should be short and simple.

The Residents Have Left. Can You Take Possession?

If you do not agree with the residents’ intention to break the lease by vacating and the residents vacate, how does the manager know if he can take possession? Often residents will wait to see if the manager takes possession. They will have a neighbor watch the property and notify them if the manager is seen going into the unit. Possibly, the rent will be current, and if so, the manager cannot take possession unless the residents have granted possession. If the residents have indeed vacated and the unit is abandoned, meaning the unit has been vacant for 15 days and the rent is unpaid, the manager may take possession. If the residents have told the manager in writing that they will be vacating on a particular date and in fact do so, the manager will most likely have possession of the premises, but should be sure by inspecting the unit and running this by their attorney. By sending the residents a proper response, the manager can accomplish a number of things to help minimize a bad situation and dispel the uncertainty of whether possession is or is not granted.

Sample Response Letter to the Lease breaking Resident

Dear Resident,

We are in receipt of your letter (or phone call) in which you have indicated that you are vacating the premises on (month, day, and year). Please note that under the terms of the lease agreement that you signed your lease and rent obligations continue until the end of the lease term. We will expect you to continue paying the rent and all charges due under the terms of the lease until the earlier of the date we may be able to re-rent the unit, if we decide to do so, or the end of the lease agreement. If we are only able to rent the premises at a lower rental rate than the amount for which you are currently responsible, you will also be liable for that deficiency. Please inform us in writing when you have vacated the premises, and return all keys, garage door openers or any other property belonging to us at that time, so we can avoid filing a possible eviction action. Please note that by vacating prior to the end of your lease agreement, you are in breach of the lease agreement, and we shall exercise all our rights under the lease and Florida law.

“Serving the Property Management Professional”

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Residents are “skipping” at a record rate. Skipping of course is the common name given to the act of simply walking out on a lease. The lease is signed, the residents move in, live in the unit for a while, and then for whatever reason, decide to pack up and move. Can you stop them? Of course not. Just like you cannot force a person to pay the rent or prevent them from moving in unauthorized occupants or getting those 5 pit bulls, a resident who is desirous of leaving will do so. It is that simple. Since the resident has decided to leave and does, you are now faced with the dilemma of an empty unit and rent owed to you. What can you do? Suppose you are managing a unit for another. The property owner who is often out of state is baffled and cannot understand how this can be. Often we hear them say, “But they have a lease!” or, “Why did we even have a lease? It is worth nothing”. What do you tell this angry and baffled property owner? How do you handle it when it happens to you? This article will examine some of the harsh realities of the resident “skip” and how you can deal with the problem. Notice I said, “deal with the problem”, not solve the problem. If anyone knows how to solve the problem of the resident skip, you call me right away! This article will examine the three simple paths you can take when a resident skips out on you.

Sue the Resident

When a resident skips before the end of the lease term, the resident will owe rent until the unit is re-rented or until the end of the lease, whichever occurs first. This statement assumes that no other document is in place, or the resident has not signed an early termination addendum which may liquidate the amount owed. What does the resident owe? You will not know until the unit is re-rented or the lease expiration date.

Now the big question: should you sue the resident? In most cases we will advise you to do a careful cost/benefit and risk analysis when deciding whether to sue the resident. Before you can even think about suing, you must know where the resident is, so he can be served with the lawsuit. In many skips, the resident disappears and cannot be found. If you cannot find him, you cannot sue him.

a. Cost: Unless you can find an attorney who will file a lawsuit on a contingency basis where you pay nothing unless or until you win, using an attorney to file a lawsuit is often cost prohibitive. Many managers are under the impression that the resident will be responsible for their attorney’s fees and costs, and this is true in most cases, but just because you “win” in court does not mean you will collect a dime. Most attorneys will not take a case like this on a contingency basis.

b. Benefit: By suing the resident you may be able to get a judgment against the resident, allowing you to lien any real property the resident owns, and also may be used in attempting to garnish wages, another expensive, cumbersome process full of exemptions. Will you collect your money even if you win? Probably not. People who skip do not care much about getting sued, because if they did, they would not have skipped in the first place. They are usually what we call “judgment proof”.

c. Risk: The risk involved in filing a lawsuit against a resident may come as a real surprise. Why would there be risk? The resident owes you money after all. The risk arises when the resident claims there was a “legitimate reason” why she skipped out. She may claim you failed to maintain the property, felt unsafe, was told she could leave early, you name it. There are a thousand reasons that a resident who is being sued can come up with to justify why she broke the lease, and the judge in the case might believe the early departure was justified. If the judge finds for the resident, YOU will have to pay the resident’s attorney’s fees PLUS your attorney’s fees, if you hired a lawyer to fight the case.

If the property owner has a lot of time on his hands and wants to file a small claims case without a lawyer, there is probably nothing wrong in giving it a try, UNLESS an attorney pops into the picture and defends the resident. If you are managing the property and the owner asks you to do it, just say NO. Property management agents should not be acting as the attorney for the owner.

Settle With the Resident

Once you know how much the resident owes, if you are able to get in touch with the resident, writing a demand letter or having your lawyer write a demand letter at minimal cost is not a bad idea. A demand letter may open up some dialogue and result in an offer by the resident to pay all, something or possibly set up a payment plan. Settlement is not a bad word. It is often the smart thing to do. Your attorney can provide you with the proper form to use when settling with the resident, as everything should be in writing.

Forget About the Whole Thing and Move On

Your final option is to do nothing. Direct your energies into getting the unit rerented. You can always decide to sue at a later time, and you have up to 5 years to do this.

Conclusion

If you are a seasoned property manager or owner, you probably understand everything you have just read. The problem is your out of state owners who just doesn’t understand how Florida law works, and that Florida is what is known as a “debtor” state. If you are managing property for them, you will often get unreasonable demands about collecting the money. In many states, the creditor has significantly greater rights in pursuing the debtor. Florida is known for its lenient laws as they pertain to collecting money from a debtor. There are head of household exemptions, personal property exemptions and although not unique to Florida, bankruptcy protection. Does this mean that it is impossible to collect a debt? Absolutely not. In many cases people will pay. Most cases? Probably not. The best approach is to have your lawyer take a look at your the situation or send your property owner to the lawyer for a quick look, and have the lawyer give the advice necessary for you or the owner to make an informed decision. Exercise care in what lawyer you may send the owner to as some lawyers may not be completely honest and will choose to take a case AND you or your owner’s money knowing full well that the chances of collection are slim.

“Serving the Property Management Professional”

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The Pet Addendum

When a resident moves in with one or more pets, we strongly recommend that the manager use a pet addendum, an agreement that can provide for the collection of pet fees and/or pet deposits, and also lays out the full regulations concerning pet conduct. We also strongly recommend that the manager “interview” the pet before authorizing it, to make sure the pet is friendly enough, not excessively loud, and does not violate any breed or weight restrictions in place.

No Current Pets, But a Pet Addendum is Signed?

Some managers have all residents at move-in sign a pet addendum, even if the resident does not have a pet a move-in. This is a practice we strongly discourage. Typically, when a resident at move-in does not have a pet, the pet addendum will indicate zero pet fee and/or zero pet deposit. Although there may be a reference on the addendum to “no pet at this time”, the resident may be able to successfully argue that the agreement was an implied authorization to obtain a pet at a later date, and at no charge. This use of the pet addendum at move-in may also hamstring your ability to screen out an undesirable pet, particularly if some dollar amount is referenced in the pet fee or pet deposit section.

The Lease

The manager’s standard lease should simply indicate that no pets are allowed without prior written authorization. If you then become aware of a resident obtaining a pet after move-in, you can give a Seven Day Notice of Noncompliance with Opportunity to Cure for an unauthorized pet on the premises. You can explain to that resident the only way you will authorize the pet will be conditioned upon a pet agreement being signed, along with collection of charges you normally would assess for a pet. Otherwise, you will continue to view the pet as unauthorized, and will terminate the tenancy, if necessary.

The Common Pet Discovery Mistake

A common mistake made by managers when discovering an unauthorized pet is to cite unpaid pet fees or pet deposits on a 7-day cure notice, particularly if the manager is not even willing to authorize the pet because of breed, weight or disturbance issues. If you actually collect some pet fee or deposit, you are authorizing the pet. Even if the unauthorized pet is one the manager would be willing to authorize, the resident has typically not yet agreed in writing to pay the pet fee and/or pet deposit. The resident has failed to comply with the lease by not getting prior written authorization for the pet, and that is what the cure notice should cite.

The Pet Interview

One last point about pet interviews: frequently, we have clients tell us they believe a resident has an unauthorized breed, or that a pet appears to be over the allowed weight limit. It is usually much more difficult to deal with this problem after the pet has been authorized, as opposed to simply denying authorization of the pet initially.

 

“Serving the Property Management Professional”

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Your resident moves out, and you decide to check out the condition of the property. “Robert” answers the door eating a ham sandwich and says he is living there with the permission of the former resident. Surprised and angry, you call the police, and they respond, “It is a civil matter, you will need to evict the person.” But wait! Isn’t this person a trespasser or squatter? A typical manager would make the assumption that this individual is not a resident but rather an illegal trespasser or squatter on the premises, and in many cases the manager would be correct. The problem is that law enforcement does not look at this the same way, as well as possibly Florida law.

Is this Person an Unauthorized Occupant?

Often the person who remains behind after the resident has vacated the premises will claim that she is there with the permission of the resident. This unsubstantiated claim alone transforms the individual into an unauthorized occupant (unauthorized by you), rather than a squatter or a trespasser, and this prevents law enforcement from using their powers to remove the individual. Law enforcement officers are often called upon by managers to assist in removing people from rental property, and they are extremely cautious that they are not being used by the manager to effectuate an “eviction” of a resident who has a right to be on the premises until legally evicted from the premises. In most cases, law enforcement will inform the manager that the problem is a “civil matter”, i.e. you need to call your attorney, serve the proper notices and begin the eviction process. While this may seem absurd to the manager who has never seen the individual occupying the premises, had no contact with this person and never received any rent from this person, unfortunately an eviction will be necessary.

Will Law Enforcement Ever Take Action?

If pressed hard enough, law enforcement may cooperate with the manager, if the manager is insistent that the person is in fact a trespasser or squatter, and the evidence does point to this fact. The manager needs to be clear with law enforcement that they have no idea who this person is, and they feel that this person has broken into the unit or entered the unit after the prior resident has vacated. Law enforcement may question the individual and sometimes get an admission from the individual that she indeed does not have a key to the premises and should not be in the unit. In limited situations, law enforcement will then trespass the person and assist you in removing this trespasser from the property. In some cases, people do enter vacant units and camp out until law enforcement involvement. A good relationship with law enforcement and a concerned officer will often aid in assisting the manager in removing a true trespasser who does not have any permission from the prior resident to be in the unit. When calling law enforcement, the manager needs to be clear that the person is a trespasser if they will get law enforcement to even remotely consider any involvement. Any statement by the individual that she is in there with permission will stop the process and force the manager to begin eviction. If a manager removes a person from the unit either by himself, uses law enforcement, changes the locks, removes the doors, shuts off utilities or does anything to make this person leave, and this person can then prove in court that she had possession with permission, the manager will be faced with being sued for an unlawful or wrongful eviction and/or prohibited practice(s).

The Individual Fails to Move and Law Enforcement Does Nothing

If the manager in unsuccessful with law enforcement, the manager now needs to serve a Seven Day Notice of Noncompliance With Opportunity to Cure to the prior resident by posting the notice on the door of the unit. The notice will state “You have an unauthorized occupant residing on the premises in violation of the terms of your lease agreement”. The manager needs to act as if the prior resident is still in the unit, even though most likely the prior resident will never get the notice. If the manager has any way to get in touch with the prior resident, all efforts should be made to do this, as it is possible that the prior resident does not even know that his friend or relative is still in the unit, and if faced with a legal action may get this person out for you. If after seven days the person or persons are still in the unit, a Seven Day Notice of Termination needs to be served. After seven days, an eviction can be filed.

Suppose the Manager Takes Rent From the Individual?

If the manager accepts any rent from the individual, they will have created an even greater problem, as they will have potentially established a manager/resident relationship with the person minus any written documents such as a lease. No matter how desperate a manager may be for the money, taking rent from the individual can be a fatal mistake.

Will the Manager Succeed in Eviction?

In most of these eviction cases, the “squatter” or “trespasser” will not fight the eviction. We have seen cases where the individual will fight the eviction, claiming that they paid rent to the prior resident, and that the prior resident failed to pay the manager. This is rare, and the manager can have a fair amount of certainty that they will prevail in the eviction action. The key is making sure that the manager resists all urges for self-help, as this can completely derail an eviction action and create a major legal problem.

 

“Serving the Property Management Professional”

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