Thousands of Three Day Notices, Seven Day Notices and Notices of Nonrenewal are served each week by 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. While witnesses are not necessary, they sometimes can be crucial to your case.

Florida Law

There is absolutely no requirement in Florida law that the manager must have a witness or witnesses present when serving a notice. This article simply deals with recommendations based on our experiences.

The Dangerous Resident

Serving notices can be dangerous. Here you have a situation where a manager is required to 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 assaulted while in the process of serving notices, and recently in Florida a manager was killed serving a Three Day Notice

The Mailing “back up” Mistake

A manager sometimes will want to insure that the resident receives a notice and sends this notice by mail, in addition to posting on the premises or hand delivery. This 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.

The Desperate Resident

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

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

Alternative Delivery Methods

Private process servers are available in most counties and are often certified to serve notices by the Circuit Court. 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. A word of caution when using process servers: make sure the date on your notice and the expiration date are proper, and 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.

The Sympathetic Judge

Judges are human and in some cases 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. 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, we doubt that the judge would have considered both the manager and the witness to be liars, and we feel that we would have prevailed in the eviction action.

Our Recommendation

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.

 

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Whether you are property manager for a small duplex, or a property manager for an 800 unit high-rise apartment community, you can expect to field questions from service-members and their family members or dependents in regard to their lease obligations. These once obscure questions are becoming more commonplace, especially as our military deploys soldiers where there is conflict or where natural disasters have occurred. The military is also educating like never before our service-members or their dependents or family members concerning their legal rights as lease signers. There are also numerous, not for profit military advocacy groups which are disseminating legal information to the rank and file of the military who are renters of residential property. Nobody should argue that this is a bad development. In fact, we want our service-members to be protected while renting their homes or apartments. They are under enough stress as it is, and we do not want them distracted while they are in the military, or penalized after leaving the military after serving their country. However, you as a property manager should also be well versed in the law, so you can intelligently discuss the options your military residents have in regard to releasing them from their leases due to their military service. This article will provide legal advice on how to effectively deal with a number of common scenarios involving service-members who wish to terminate their leases. If you decide you do not want the hassle of renting to service-members, be advised that Florida law specifically prohibits you from discriminating against service-members, so you will be opening up your company to potentially significant liability under an unlawful discrimination suit!

Service-members Civil Relief Act “SCRA”

The Service-members’ Civil Relief Act, also known as “SCRA”, is a federal law which affords United States military personnel a number of protections in civil lawsuits. Some of these protections allow service-members or their family members, or dependents in some cases, to delay or suspend civil liabilities, as well as providing a mechanism for terminating leases, including residential leases. Our March-2010 Newsletter contains information concerning service-members and evictions and can be reviewed under the following link: http://evict.com/?page=legnew1003#milres. That article contains a more detailed history of the SCRA and should be read carefully, especially since a property manager could be subject to criminal liability if the eviction provisions of the statute are not followed. SCRA covers all persons on active duty with the uniformed services, including Reserve and National Guard members who are activated to federal active duty. SCRA does not apply to Reserve or National Guard members not on active duty, retired military personnel or troops called to duty under state orders.

Application of SCRA

Three of your residents have requested that you release them from their respective lease obligations. Samantha signed a lease three months ago. Two weeks ago she joined the Army. Her commanding officer has called you to verify this, even though you have not received anything in writing from the resident regarding her military service. Darren has provided you in writing his permanent change of station orders along with a written termination notice pursuant to SCRA. He delivered them in person to you. Larry was an Army reservist who was deployed to Iraq for 75 days and mailed his termination notice and orders to you by certified mail return receipt requested. Which of these residents are allowed to terminate their leases? In Samantha’s case, she is obligated to deliver to the manager, either in person or by certified mail return receipt requested, a written termination notice stating that it is pursuant to SCRA, along with a copy of her military orders. Oral notice is not sufficient. Therefore, Samantha has not yet successfully terminated her lease obligations based upon her oral notice. Darren will be permitted to terminate his lease, because he provided proper notice, and SCRA covers active duty service-members who receive permanent change of station orders. Larry is not covered by SCRA. Even though he provided written notice, SCRA covers service-members deployed for 90 days or more. That leaves Larry 15 days short under federal law. However, as you will see, Florida law may allow Larry to terminate his lease. Any advance rent or security deposit must also be returned to Darren in conjunction with the early lease termination assuming that rent is current and there are no damages to the premises in excess of reasonable wear and tear. You are also prohibited from holding Darren responsible for the lease balance, or charging Darren any early lease termination liquidated damage amounts if the resident chose that option at lease signing. It is also important to note that the service-member must be a lease holder for these protections to apply. For example, a wife of a service-member who is deployed cannot terminate the lease if the service-member is not listed as a party to the lease. However, you should also keep in mind though the wife would still enjoy certain eviction stay protections under SCRA, so it would still make sense to try and shorten her lease term if you think that payment of the rent will become an issue due to the husband’s deployment.

Calculating the Lease Termination Dates Under SCRA

For all tenancies under which rent is due monthly, the lease will terminate 30 days after the first date on which the next rent payment is due after the lease termination notice is delivered. So, if the rent is due on the first of the month and the notice is delivered to you in person on July 3, the lease obligations will terminate August 30. For any other tenancy, the lease will terminate on the last day of the month after the month in which the correct notice is provided. Therefore, if rent is due quarterly (a rare tenancy to be sure), and notice was given on July 3, the lease termination date will be August 31.

Florida Statute’s Treatment of Lease Termination Rights by Service-members

Bernice, one of your residents, has just emailed you. She is going to provide you with written orders from the Navy along with a 30-day notice that she intends to terminate the lease. Bernice was on active duty when she signed the lease; however, she is no longer on active duty and plans to relocate to a city 41 miles away which is where Bernice lived just prior to her naval active duty. There is five months left on the term of Bernice’s lease. Meanwhile, Vic has received permanent change of station orders to move 33 miles from your apartment community. Finally, Michael was released from active military duty due to conduct issues. Michael and Vic would both like to vacate in 30 days, even though both have many months left on their respective leases. Can these residents terminate their leases you wonder? In addition to the federal law protections that military members receive from SCRA, the Florida legislature enacted state law mandated legal protection for service-members attempting to terminate their residential rental agreements. These provisions are contained in Florida Statute 83.682 - TERMINATION OF RENTAL AGREEMENT BY A SERVICE-MEMBER. First, each and every time a resident invokes termination rights pursuant to this statute; at least 30 days’ written notice must be provided to the manager and must be accompanied by either a copy of the official military orders or written verification signed by the service-member’s commanding officer. Bernice will be allowed to terminate her lease, because a service-member released from active duty or state active duty after having leased the premises while on active duty or state active duty status is eligible for lease termination rights when the rental premises is 35 miles or more from the service-member’s home of record prior to entering active duty or state active duty. Michael also will be able to terminate his lease early under chapter 83.682, because the protection applies to a service-member who is prematurely or involuntarily discharged or released from active duty or state active duty. Vic may not be as fortunate, as the protection under Florida law requires the change of station orders to be 35 miles or more from the location of the rental premises. However, Vic is still protected under SCRA, because the federal law does not impose a geographical limit for permanent change of station orders. Service-members are also covered under the Florida Statute if the service-member has leased the property, but prior to taking possession of the rental premises, receives a change of orders to an area that is 35 miles or more from the location of the rental premises. You should also be aware that Florida Statute covers a service-member who after entering into a rental agreement, receives military orders requiring him to move into governmental quarters, or the service-member becomes eligible to live in and opts to move into governmental quarters. The Florida Statute also covers service-members who receive temporary duty orders, temporary change of station orders, or state active duty orders to an area 35 miles or more from the location of the rental premises, provided such orders are for a period exceeding 60 days. If the service-member is eligible to break the lease under Florida law, the resident’s rental obligations run for thirty straight days from the time formal notice is provided.

 

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In December of 2004, a jury in Tampa Florida awarded an individual over $15 million who was abducted from the parking lot of an apartment community and later shot in the head. The jury in the case felt that the apartment management and owners were negligent in not providing security to the resident and that this resulted in the resident’s injuries from the crime. Is a property management company or owner responsible for providing security to its residents? We don’t think so. Is every owner of a rental home responsible for keeping an armed sentry outside the door of the home? Of course not. This case is one in the trend of cases whereby owners and managers of rental property are being held liable for the criminal acts of third parties, parties over which they have no control. Picture a large apartment community that may or may not have fences surrounding the property sprawled across many acres. There could be almost a mile of fence in some communities. If our own government cannot control its borders, can we expect an apartment community to be able to control every access point? Do we need lethal, electrified, razor wire fences surrounding apartment communities now? At what cost would all this security, none of which is foolproof, come? Will residents be willing to pay to live in a maximum-security environment? Can the thousands of existing apartment communities, large and small, or the duplexes and triplexes all throughout Florida, be retrofitted to prevent someone from jumping a fence or climbing through a hole in a fence that someone else made? Will access gates be the answer? Will a full time security force need to be at every corner of the apartment community armed with AK-47’s.

Though there is no solid, foolproof solution, there are some steps which owners and management can take.

MARKETING

In marketing the property to the public, be it in the print ads, the internet, on the phone or through your on-site leasing staff, never should you imply or suggest in any way that your property is safe or has any type of security features whatsoever. The mention of access gates, courtesy officers, or even worse, the use of the word “security officer” or 24 hour manned gates should never happen. When asked if you provide security, simply state that you do not. This should be your company policy, your staff should be trained in this, and it should be clearly stated as such in your written Policy and Procedure Manual.

ACCESS GATES

Access gates give a completely false sense of security to a prospective renter. Who among us has not slipped through a gate by following closely behind the car in front of them? Access gates are not security devices and are often non-operational, most often due to an individual running into the gate, resulting in it being broken for some time. We recommend that all residents sign an Access Gate Addendum which clearly explains that the access gate is by no means a security device, can and will break, and, is simply an amenity that guarantees nothing. We strongly recommend that if you do have an access gate, you invest in the technology whereby the vehicle and license plate is photographed every time a vehicle passes through the gate. Remember that gates are no substitute for actual security on a property.

SECURITY ADDENDUM

All residents should sign a SECURITY ADDENDUM (see below) whereby they acknowledge and agree that no security is provided.

PROVIDING A CRIME REPORT

We recommend that you speak to your local law enforcement agency and request a periodic report of all crime occurring or reported on the property or within some set distance of the property. This should be provided to all prospective residents and made available to all current residents. When providing it to the prospective resident, provide it before they give you an application fee or begin filling out the application. Do not drop this little bomb on them after they have been approved and it is time to sign the lease. Post a list of all known sexual predators and/or offenders within a 1-mile radius of the apartment community, and update this list on a regular basis

COURTESY OFFICER

Never tell a prospect that you have a security officer or even a courtesy officer. Many of these so-called security officers or courtesy officers are merely companies which drive around through multiple apartment communities each night and/or respond to certain resident complaints. Often the courtesy officer is a resident who is a police officer and is given a reduced rent to live on the property and “make the rounds” at night or “be on-call”. While it is an excellent idea to have a courtesy officer on-site, never should you imply that this is “security” or even mention it to the prospect. When allowing a local law enforcement officer to live on the property for a reduced or free rent, always make that officer sign a detailed “COURTESY OFFICER ADDENDUM”. Many a local law enforcement officer was given a reduced rent or free rent apartment only to work the night shift at the station and have an unmarked car.

SAFETY EVALUATIONS OF THE PROPERTY

 Your maintenance staff should be fully trained, either by a professional firm or by a local law enforcement agency as to maintaining a property which is not conducive to criminal activity. The type of fencing, lighting, locks, shrubbery, and obstructions all play a part in making your property less likely to be a target. In our opinion, a light that is burned out is an emergency. A light that is continually broken or stolen needs to be replaced with one which is more secure, no matter how expensive. Maintenance needs to check lights on a regular basis and keep a written log of when a light burns out, and when it is replaced. Any steps you take to make your property less welcome to a criminal will be looked upon favorably in court. Doing nothing looks bad.

HIRING ACTUAL SECURITY IN RESPONSE TO CRIME

If your property is prone to crime, you have gang activity, unsolved criminal acts are occurring on the property or you are in a high crime area, you just may have to hire true full time or nighttime armed security until such time that the problem is under control, if that ever happens.

NEIGHBORHOOD WATCH MEETINGS

Having monthly, or more often if necessary, neighborhood watch meetings on your property will show your commitment to keeping crime off of the property. Encourage residents to report suspicious behavior to you and law enforcement immediately. Contact your local law enforcement agency, as many will assist you in starting, and more importantly, maintaining such a program on the property.

PROPER RESIDENT SCREENING

So many apartment communities fall short in conducting criminal background checks on prospective residents. It is crucial that you conduct a criminal background check to the best of your ability, and never fail to have an FDLE Sexual Predator/Offender search performed. This can be easily done by simply going to the FDLE website.

CONCLUSION:

Did you like the recommendations given above? We didn’t think so. It all takes time and money; all the while you are trying to provide affordable housing for your residents. The last thing you should do is do nothing. Evaluate your current situation, and chart a course for increased safety on your property. We recommend that you have your attorney review any addendum or form that your may wish to implement. Below is a sample SECURITY ADDENDUM that may give you a start.

Security Addendum

Owner and/or Management does not promise, warrant, or guarantee the safety or security of resident or his/her personal property against the criminal or negligent actions of other residents or third parties. Crime can and does occur at apartment communities. Each resident has the responsibility to protect himself/herself and to maintain appropriate insurance to protect his/her belongings including items within or on the premises and vehicles from criminal acts, negligent acts, fire, windstorm, hurricanes, plumbing leaks, smoke or any acts of God. Residents should contact an insurance agent to arrange appropriate insurance for their vehicle, personal property insurance and liability insurance.

No security system, controlled access gate, fence, gate, door, window, courtesy patrol or electronic security device if provided can guarantee complete protection against crime. Even elaborate security systems are subject to mechanical malfunction, tampering, human error or personnel absenteeism, and can be defeated or avoided by clever criminals. Controlled access gates frequently are non-operational as they are often damaged by vehicles, therefore, residents should always proceed on the assumption that they do not exist. Windows can be broken, locks can be defeated, and fences can be climbed or damaged to allow access. The best safety measures are those precautions that can be performed as a matter of common sense and habit.

If security systems, security devices, controlled access gate(s) or walk-through services are employed at this community, no representation is being made that they will be effective to prevent injury, theft or vandalism. Such personnel, if provided, cannot physically be every place at every moment. Usually, such personnel are unarmed independent contractors and have no greater authority under the law to restrain or arrest criminals than the ordinary citizen. Therefore, Management does not warrant that any services, devices or persons if employed at this community will discourage or prevent breaches of security, intrusions, thefts or incidents of violent crime. Further, Management reserves the right to reduce, modify or eliminate any system, devices or services (other than those statutorily required) at any time. Resident agrees that such action shall not be a breach of any obligation or warranty on the part of Management. Management may at time place real or dummy video or surveillance cameras throughout the apartment community but Management makes no representations that these cameras are working, recording or even operational.

Resident agrees to notify Management promptly and in writing of any problem, defect, malfunction or failure of door locks, window latches, lights, controlled access gates, and any other access related device.

ACKNOWLEDGMENT BY RESIDENT

I have read, understand and agree with the above notice. I have received no representations or warranties either expressed or implied, as to any security, the safety of the property, or presence of any security system on the property, or guarantee that the apartment community was or will be free from crime. I further acknowledge that Management is not obligated under any circumstances to respond to any signal from an intrusion alarm system. The responsibility for protecting me, my property, my family, guests and invitees from acts of crime is the sole responsibility of myself and law enforcement agencies.

I agree to release and hold harmless Management and the Owners of the apartment community, its employees, agents and assigns from claims arising out of criminal acts of other residents and third parties. I agree that Management and the Owners of the apartment community, their employees, agents and assigns shall not be liable to me based upon any claim that security was not provided. Resident acknowledges that the foregoing shall also be binding upon Resident’s heirs, relatives, successors, guests and assigns.

This document contains the entire agreement with respect to its subject matter. Management and Owner representatives have no authority, except when in writing and signed by all parties to make changes or modifications in the terms of this document.

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Some lease transactions require the landlord to collect state Sales Tax, tourist and other local taxes.    Knowing when this obligation exists or does not exist is important.  For this article, we will refer to all these Taxes collectively as “Sales Tax”.             

WHEN IS THE LANDLORD REQUIRED TO COLLECT SALES TAX?              

If the original lease between the landlord or tenant is six months or less, a Sales Tax is triggered and should be collected on every rent payment made and the taxes remitted to the Department of Revenue.         

WHAT IF THE ORIGINAL LEASE EXCEEDS SIX MONTHS?      

A continuous lease of at least six months and a day will be exempt from a Sales Tax obligation.     

WHAT IF THE LEASE ALLOWS A TENANT TO BREAK A LEASE WITH NO PENALTY DURING THE FIRST SIX MONTHS OF THE TENANCY?      

If tenant has the right to break the lease without penalty during the first six months of the tenancy, then Sales Tax must be collected during the first six months of the lease, as the Department of Revenue does not consider this to be a “bona fide lease”.   

WHAT IF DURING THE TENANCY THE PARTIES AGREE IN WRITING TO EXTEND THE TENANCY BEYOND THE INITIAL SIX MONTHS?

At the point a written lease addendum is executed extending the initial tenancy beyond six months, the landlord can stop charging Sales Tax.

WHAT IF THE TENANT ORIGINALLY ON A LEASE OF SIX MONTHS OR LESS STAYS PAST SIX MONTHS WITH THE AGREEMENT OF THE LANDLORD AS MONTH-TO- MONTH OR WEEK-TO-WEEK?

After the first six months, no further Sales Tax must be collected; however, there is no retroactive refund of Sales Tax already collected.

WHAT IF THE INITIAL TENANCY BETWEEN LANDLORD AND TENANT IS A MONTH-TO-MONTH OR WEEK-TO-WEEK TENANCY?

The landlord will need to collect Sales Tax only during the first six months of the tenancy.       

WHAT IF THE TENANT HAS AN EARLY TERMINATION OPTION (“LIQUIDATED DAMAGES AGREEMENT”) IN A LEASE GREATER THAN SIX MONTHS?        

If the tenant chooses #1 (Liquidated Damages Amount”) that is beyond a nominal amount, then no Sales Tax will be triggered.     

WHAT IF I EVICT MY TENANT DURING THE FIRST SIX MONTHS OF THE TENANCY; WILL A SALES TAX BE RETROACTIVELY OWED?            

No Sales Tax will be owed.  

WHAT IF THE TENANT SKIPS PRIOR TO SIX MONTHS OUT ON A LEASE GREATER THAN SIX MONTHS?

No Sales Tax will be owed.

WHAT IF AN ADDITIONAL TENANT SIGNS ONTO THE LEASE TEN MONTHS INTO THE ORIGINAL ANNUAL LEASE TERM OR AFTER THE ORIGINAL LEASE HAS ALREADY EXPIRED?                 

No Sales Tax will be owed.     

 

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CURRENT LEASE – A current lease is not normally impacted by a sale.  It must be honored by the Buyer. 

A Buyer and Tenant can agree to a new lease but the Buyer cannot force the Tenant to sign a new lease.

No addendum is needed showing the new owner but there is no harm in notification.

SECURITY DEPOSIT/LAST MONTH RENT – Funds held by the Seller or the Property Manager (unless Property Manager is retained by Buyer) must be transferred to the Buyer’s Florida bank account.

PROPERTY MANAGER RETAINED– Nothing changes.  The current lease is not impacted.  Property Manager can offer a new lease if Buyer wishes and Tenant can sign if Tenant agrees.  Property Manager should notify Tenant of new Buyer’s name.

PROPERTY MANAGER TERMINATED - The Property Manager should notify the Tenant that they are no longer managing and that Tenant funds were transferred. The Buyer should notify the Tenant that they are the new owner, where rent should be sent, contact info etc.

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IS THE NEW OWNER REQUIRED TO HONOR THE LEASE?

 

Yes. The purchaser acquires the property subject to the existing lease interest. Unless the lease contains language allowing the new owner to terminate the lease early in the event of a sale, the new owner must honor the terms and conditions of the existing lease through the lease expiration date.

 

CAN THE NEW OWNER REQUIRE THE TENANT TO SIGN A NEW LEASE?

 

No. Upon acquiring title, the new owner can offer a new lease, but the tenant is not required to sign a new lease.

 

WHAT HAPPENS TO THE SECURITY DEPOSIT AND ADVANCE RENT WHEN TITLE CHANGES?

 

Upon title changing with the tenant occupying the rental premises, Florida law requires that the security deposit and advance rent be turned over to the new owner with an accurate accounting.

 

THE PROPERTY IS BEING PROFESSIONALLY MANAGED, AND THE NEW OWNER IS RETAINING THE PROPERTY MANAGEMENT COMPANY; IS NOTICE TO THE TENANT REQUIRED?

 

After title changes, it is a good idea to notify the tenant in writing that a new owner has acquired title, but that the management company will continue to manage the property, collect rent and receive notices as usual. The property management company should also enter into a new management agreement with the buyer after title changes.

 

A BUYER ACQUIRING A PROPERTY WITH A TENANT IN PLACE WANTS A MANAGEMENT COMPANY TO HANDLE THE ACCOUNT, AND THE SELLER DID NOT HAVE A MANAGEMENT COMPANY MANAGING THE PROPERTY; IS ANY NOTICE REQUIRED?

 

After title changes, three different notices to the tenant are in order: (1) notice from the new owner confirming the title interest and directing the tenant to

deal with a specified management company, (2) notice from the management company confirming its management role and providing contact information, and (3) notice as to where the deposit money and advance rent (when applicable) will be held.

 

THE PROPERTY IS BEING PROFESSIONALLY MANAGED ON THE SELLER’S BEHALF, AND THE NEW OWNER IS NOT RETAINING THE PROPERTY MANAGEMENT COMPANY; WHAT NOTICE OBLIGATION DOES THE PRIOR MANAGEMENT COMPANY HAVE?

 

After title changes, the prior management company is not technically required to send any notice. However, after title changes, it is good practice for the prior management company to confirm to the tenant it will no longer be managing the property, that the security deposit and advance rent (when applicable) will be turned over to the new owner, and that all future rent payments and notices should be directed to the new owner.

 

THE TENANT IS SCHEDULED TO VACATE A FEW DAYS AFTER THE PROPERTY IS SET TO CLOSE AND CURRENTLY OWES THREE MONTHS OF RENT; CAN THE PRESENT OWNER RETAIN THE DEPOSIT AGAINST THE UNPAID RENT?

 

No. The deposit money must be turned over to the new owner if the tenant is still in possession at the time of closing.

 

DOES THE LANDLORD NEED THE TENANT’S PERMISSION BEFORE TRANSFERRING THE SECURITY DEPOSIT AND ADVANCE RENT WHEN TITLE CHANGES?

 

No. The law mandates the turnover of this money without reference to the

tenant’s permission.

 

RENT IS DUE ON THE 1^ST, AND THE PROPERTY IS CLOSING IN THE MIDDLE OF THE MONTH; AS BETWEEN THE BUYER AND THE SELLER, WHO IS ENTITLED TO RECEIVE THE MONTHLY RENT?

 

Absent a specific agreement in the sales contract, the new owner is entitled to rent proceeds on a prorated basis from the point of obtaining title.

WHAT IF THE TENANT IS NOT COOPERATING WITH SHOWINGS OR

INSPECTIONS?

It may be possible to set up an eviction when the tenant is not cooperating with

showings or inspections related to the attempted sale of the home. However, this will be an uphill battle requiring a paper trail establishing that the tenant is unreasonably blocking access. If the lease is soon to expire or has expired, non- renewing the tenancy will usually be a better option than trying to force a 7-day eviction case based upon denial of access.

 

THE LANDLORD WANTS TO DOCUMENT THE INTERIOR OF THE UNIT WITH PHOTOS FOR THE SALES LISTING, BUT THE TENANT IS OBJECTING, CITING PRIVACY AND PERSONAL PROPERTY CONCERNS; IS THIS A LEGITIMATE OBJECTION?

 

Maybe. The photo shoot should strive to limit images of the tenant’s personal property, particularly if the tenant is objecting. It is hard to gauge how a court will react to an invasion of privacy claim. The landlord could attempt to address this issue in the lease, but there could still be enforceability issues.

 

WHAT IF AN EVICTION IS UNDERWAY WHEN THE CLOSING OCCURS?

 

This is not an ideal situation, but the new owner will typically have the right to

finalize the eviction case in progress under the prior owner’s name.

 

“Serving the Property Management Professional”

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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.

 

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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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