The property owner landlord will often decide to sell the rental unit occupied by a tenant.  Many legal issues arise when this occurs. 

Please see the below Q & A

DOES THE LANDLORD HAVE A RIGHT TO SELL THE UNIT OCCUPIED BY A TENANT?  

Yes.   Unless specifically prohibited under the terms of the lease, the landlord has a right to market, show and sell the property occupied by a tenant.    

DOES THE OWNER NEED TO DISCLOSE AN INTENTION TO LIST THE PROPERTY FOR SALE PRIOR TO THE LEASE BEING EXECUTED?  

No.   However, it is recommended that the landlord be up front with a tenant if the owner intends to list the property, particularly if the owner intends to list the property early in the lease term.   

WHEN THE LANDLORD LISTS THE HOME FOR SALE, DOES THE OWNER NEED TO FORMALLY NOTIFY THE TENANT?  

No, but it will still generally be advisable to let the tenant know in some way that the rental unit is officially on the sales market.     

IS THE TENANT LEGALLY ENTITLED TO A RENT REDUCTION IF THE RENTAL PREMISES IS ACTIVELY BEING SHOWN FOR SALE? 

No.   However, if the landlord is trying to gain the tenant’s cooperation for frequent showings, offering some type of compensation may be something to consider.  

IS THERE ANY LIMIT TO HOW MANY TIMES THE PROPERTY CAN BE SHOWN WHEN OCCUPIED BY A TENANT?  

 

There is no specific limit under Florida law, but the showings cannot equate to harassment of the tenant or be unreasonable. A judge could determine reasonableness so you must be very careful.     

THE RENTAL UNIT IS PROFESSIONALLY MANAGED, BUT A DIFFERENT BROKERAGE HAS THE SALES LISTING, CAN THAT AGENT ACCESS THE RENTAL UNIT WITHOUT THE TENANT BEING PRESENT?   

Probably.  If reasonable advance notice is provided by the landlord, the sales agent will likely have the right to access the premises.  If access is refused by the tenant, you would contact us.        

CAN THE LANDLORD PLACE A LOCKBOX ON THE PREMISES FOR THE PURPOSE OF SHOWINGS OR CONDUCT AN OPEN HOUSE IN A TENANT OCCUPIED UNIT?  

If the tenant agrees to a lockbox on the premises, the landlord or agent would be allowed to do this. We strongly discourage this practice as it can create serious liability to the landlord and the property manager.

CAN THE LANDLORD REQUIRE THE TENANT TO TEMPORARILY VACATE WHILE THE PROPERTY IS BEING SHOWN OR INSPECTED?  

No, unless the tenant specifically agrees to this in writing. 

CAN THE TENANT DENY ACCESS FOR SHOWINGS DUE TO THE COVID-19 PANDEMIC? 

Some judges may believe that a tenant has a right to prohibit or severely limit showings while a pandemic state of emergency remains in effect, particularly if the tenant or an occupant is immunocompromised or in some other way in an “at risk” category.    While a pandemic state of emergency is in effect, masking and social distancing are still recommended when showing a rental unit.  

DOES THE LEASE AUTOMATICALLY TERMINATE IF A CONTRACT FOR SALE IS REACHED ON THE PROPERTY, OR IF THE PROPERTY IS SOLD?  

No.  The lease interest will survive the closing, unless the lease contains language allowing the landlord to terminate the lease early upon specified notice if a contract for sale is executed, or if the sale is finalized, and this early termination right is exercised.    

 

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 CURRENT 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 AND THE NEW OWNER IS NOT RETAINING THE PROPERTY MANAGEMENT COMPANY; WHAT NOTICE OBLIGATION DOES THE PRIOR MANAGEMENT COMPANY HAVE?

After the title transfers, the prior management company will notify 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. All of this, including any prorated rent that may be due the buyer or seller should be handled at the 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.  This should be handled at the closing.

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.   If this is anticipated, the landlord should address this issue in the lease.              

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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Background of “Megans Law”

 

Megan's Law was created to provide information to the community as to the presence of sexual predators and offenders in their neighborhood. Through the Florida Department of Law Enforcement’s website and many other websites maintained by municipalities, it is possible for anyone to look up a person to see if they are a registered predator or offender and see the exact address of that person. Megan’s Law was named after 7-year old Megan Kanka, who was sexually assaulted and murdered by a convicted sexual predator; the law was created to have a system in place under which people could be notified of the presence of such a person in their community.

Florida Law

Florida Law does not require a private person such as a manager to inquire as to whether someone is a sexual predator or offender, does not prohibit renting to one, and creates no requirement for the manager to notify the community or immediate neighbors if they do in fact rent to a registered sexual offender or predator. While Florida law imposes restrictions on where a sexual predator or offender can live, there in no duty or obligation on a Florida manager to inquire about the sexual predator or offender status of a person, or prohibit them from renting where he or she would be in violation of Florida law. Megan’s law as it applies to Florida only requires law enforcement to set up some sort of notification system to help a community know of the presence of an offender or predator in their neighborhood. The FDLE website is such a step in this direction. There are other laws that apply to the registered sexual predator or offender which prohibit them from living within a certain number of feet from places like schools, designated public school bus stops, day care centers, parks, beach playgrounds, libraries, churches or other places where children regularly congregate, but until now, this was not the concern of the Florida manager.

 Registered Sexual Offenders and Predators

Certain Florida municipalities are creating and have enacted ordinances which are further restricting where registered sexual predators or offender may reside, AND in some cases, imposing criminal penalties on managers if they rent to such a person in violation of the ordinances.

 What Does This Means to the Property Manager?

All manager in areas where there is an ordinance in place should immediately check the FDLE sexual predators and offenders website to see if they are indeed renting to a person on the list. If this is the case, it is highly recommend that the owner immediately examine the lease or the tenancy to see how soon a Notice of Non-Renewal can be given, and this Notice of Non-Renewal should be given in accordance with the terms of the lease and Florida law, plus be sent by certified mail, regular mail and by hand delivery or posting on the premises, to cover all bases. Many residents served with a Notice of Non - Renewal deny receiving the notice, and this can complicate or prevent an eviction from occurring successfully if the resident fails to vacate per the notice.

Practical Considerations

Every property manager needs to be diligent in conducting criminal background checks on all applicants. There are many excellent companies which provide these checks at a very reasonable cost. We recommend using a Florida company, as they may have more up to date access to the court records. Even after you receive the background history, it is imperative that you check the FDLE website and make a written notation when you checked the website, the exact name you checked as provided by you from the applicant, and the steps you took to verify the information. The FDLE website has photographs of the registrants to assist you in verifying who you are dealing with, as many people have similar names. A registered sexual predator or offender will do whatever it takes to get housing, as they probably have been denied on numerous occasions and will often change the spelling of their name or fill out the application illegibly to make your search more difficult. As you can see, the “as the crow flies” distance requirement is extremely broad. Check with your local municipality, sheriff’s department and police station if you are unsure where your property is located in relation to a school, designated public school bus stop, day care center, park, beach playground, library, church or other place where children regularly congregate. If a property manager places a registered sexual offender or predator within this area and the property owner gets in trouble, be sure that you will not be the next to get in trouble. Remember, 2500 feet is almost one half mile, so the chances are very high that your property could fall within the danger zone.

 

“Serving the Property Management Professional”

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

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

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

Florida Law and the Landlord’s Duties- Florida law states the landlord’s responsibilities regarding maintenance in Florida Statutes 83.51. Landlord’s obligation to maintain premises.

(1) The landlord at all times during the tenancy shall:
(a) Comply with the requirements of applicable building, housing, and health codes; or
(b) Where there are no applicable building, housing or health codes, maintain the roofs, windows, screens, doors, floors, steps, porches, exterior walls, foundations, and all other structural components in good repair and capable of resisting normal forces and loads and the plumbing in reasonable working condition. However, the landlord shall not be required to maintain a mobile home or other structure owned by the tenant. The landlord's obligations under this subsection may be altered or modified in writing with respect to a single-family home or duplex.

(2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for:

1. The extermination of rats, mice, roaches, ants, wood-destroying organisms, and bedbugs. When vacation of the premises is required for such extermination, the landlord shall not be liable for damages but shall abate the rent. The tenant shall be required to temporarily vacate the premises for a period of time not to exceed 4 days, on 7 days' written notice, if necessary, for extermination pursuant to this subparagraph.

2. Locks and keys.
3. The clean and safe condition of common areas.
4. Garbage removal and outside receptacles therefore.

5. Functioning facilities for heat during winter, running water, and hot water. (b) Unless otherwise agreed in writing, at the commencement of the tenancy of a single-family home or duplex, the landlord shall install working smoke detection devices. As used in this paragraph, the term "smoke detection device" means an electrical or battery operated device which detects visible or invisible particles of combustion and which is listed by Underwriters Laboratories, Inc., Factory Mutual Laboratories, Inc. or any other nationally recognized testing laboratory using nationally accepted testing standards.
(c) Nothing in this part authorizes the tenant to raise a noncompliance by the landlord with this subsection as a defense to an action for possession under s. 83.59.
(d) This subsection shall not apply to a mobile home owned by a tenant.
(e) Nothing contained in this subsection prohibits the landlord from providing in the rental agreement that the tenant is obligated to pay costs or charges for garbage removal, water, fuel, or utilities.
(3) If the duty imposed by subsection (1) is the same or greater than any duty imposed by subsection (2), the landlord's duty is determined by subsection (1).
(4) The landlord is not responsible to the tenant under this section for conditions created or caused by the negligent or wrongful act or omission of the tenant, a member of his family, or other person on the premises with his consent.

The Letter from the Tenant- What does it look like The letter from the tenant will often be a complaint letter listing one or more items and demanding that the landlord fix these items. In order for the tenant to withhold rent or break the lease, first these items must be those that allow the tenant to withhold rent or terminate, and secondly, the letter must give the landlord 7 days to fix the items and state in the letter that failure to repair will result in rent withholding or the tenant breaking the lease. The letter needs to be in writing, but some judges have held that verbal or actual knowledge by the landlord was enough for the tenant to comply with the tenant’s obligation of putting the landlord on notice. Here is Florida law pertaining to termination of the rental agreement. FS 83.56 (1) If the landlord materially fails to comply with s. 83.51(1) or material provisions of the rental agreement within 7 days after delivery of written notice by the tenant specifying the noncompliance and indicating the intention of the tenant to terminate the rental agreement by reason thereof, the tenant may terminate the rental agreement. If the failure to comply with s. 83.51(1) or material provisions of the rental agreement is due to causes beyond the control of the landlord and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties, as follows: (a) If the landlord's failure to comply renders the dwelling unit untenantable and the tenant vacates, the tenant shall not be liable for rent during the period the dwelling unit remains uninhabitable. (b) If the landlord's failure to comply does not render the dwelling unit untenantable and the tenant remains in occupancy, the rent for the period of noncompliance shall be reduced by an amount in proportion to the loss of rental value caused by the noncompliance

For what items can the tenant legally withhold rent or terminate the lease?

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

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

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

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

 

“Serving the Property Management Professional”

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Preparing, serving and acting on a Three Day Notice is a lot more complex than most property managers realize. A proper Three Day Notice is referred to as “jurisdictional”, which means that if it is not correct in any way, the court will lack jurisdiction to entertain an eviction action. This may result in the case being completely thrown out, and the property manager must start from scratch before filing a new eviction action. If there is an attorney representing the resident, the attorney in addition to getting the case dismissed can also ask the court to award attorney’s fees and costs, all because the Three Day Notice was prepared or served incorrectly. This article will only deal with one aspect of the Three Day Notice, and that is how it is served by the property manager.

THE LAW VERSUS THE LEASE Florida law states that a notice may be served by posting on the premises, hand-delivery to the resident or occupant, or by mail. The problem we run into sometimes are lease agreements which require a different or specific type of delivery. The lease may require that the notice be mailed to the resident. If this is the case, even though the law allows you to post the notice on the premises or hand-deliver the notice, you MUST mail the notice, because the lease says so. Clauses such as these are often found deep in the lease, requiring that all notices by either party to be in writing and by mail, sometimes even certified mail. “All notices” can be interpreted to include the Three Day Notice. Though the majority of leases do not have clauses which govern how the manager delivers notices, it is a good idea that you check the lease carefully to see if this is the case. Many managers have leases which were prepared by out of state attorneys, are store bought or purchased from the internet, so review of the lease is a must. If you are preparing a lease, it is best not to even mention how the manager is to give the Three Day Notice, as Florida law is completely clear.

SERVICE BY POSTING ON THE PREMISES The law allows the property manager to serve the notice by “posting on the premises” in the absence of the resident. We interpret this to mean posting on the door most commonly used by the resident for entry to and exit from the premises. The notice should be either folded over or placed in an unmarked envelope and securely taped to the door. You may ask why it should not be simply taped to the door, so it is immediately obvious that it is indeed a Three Day Notice. It can be. We do not advise this though, as the resident may have already paid the rent and you misplaced the payment, or the resident could be on the way to your office just as you are posting the notice. Human nature will make one look at a notice that is posted on someone’s door, so you could end up causing embarrassment to a resident who did indeed pay the rent. In these times of increasing consumer rights, the resident could actually sue you for attempting to collect a debt that was already paid. Note that the resident must be absent. If you do not make any attempt to bang loudly on the door and ring the doorbell (if applicable), but rather pre-tape the notice and quietly affix the notice to the door, you are not serving the notice properly.

SERVICE BY PLACING INSIDE THE DOOR While some attorneys feel this is a good way to serve notice, we are firmly against it. Entering a person’s unit unnecessarily will only enrage the resident and increase the risk of you being accused of stealing something out of the unit. Remember that a resident who has not paid rent is often in a desperate situation and will do anything to get out of paying the rent or turning the tables on you.

SERVICE BY HAND-DELIVERY TO SOMEONE OTHER THAN THE RESIDENT If someone other than the resident answers the door, and the resident is not home, you may serve the notice to an occupant who is 15 years of age or older. If you are uncertain about the age of the person who answers the door, it is best to deliver the notice to the person and also securely tape the notice to the door. If the person who answers the door is not an occupant but rather a visitor, babysitter or anyone other than persons who appear on the lease agreement, we recommend that you serve the notice by taping the notice to the door.

SERVICE BY HAND-DELIVERY TO THE RESIDENT This is by far the best way to serve a notice and is in fact required if the resident is present. There is no need for the resident to sign the notice acknowledging receipt. All you need to do is get the identity of the party and hand him the notice. If he rips the notice up and throws it on the ground, you have still done your job. After you have served the notice, fill out the certificate of service on your original, and keep it safely in the file. If you feel that the resident may be volatile or it could be a dangerous situation for you, you can have a process server serve the notice for you. Remember to make sure that the process server actually serves the notice on the day the notice is dated, or the notice will be incorrect. If the resident subsequently denies receiving the notice, the process server may be required to testify in court concerning the issue.

ARE WITNESSES NECESSARY? The law does not require that you have a witness or witnesses with you when you serve a notice. In tens of thousands of evictions we have filed, many where the resident denied receiving the notice, we have only had a few situations in which the judge believed the resident’s story that he did not receive the notice and denied the eviction. Witnesses are certainly great to have but not legally required. We recommend for safety purposes, or if you suspect the resident will pay games with you, the property manager consider bringing a witness along in appropriate circumstances.

SERVICE BY MAIL This is by far the worst way to serve a Three Day Notice and should only be done if the lease specifically requires you to do so. You may be thinking that this is the easiest way to serve the notice, or even the most certain way, especially if you use certified mail. Certified mail is either refused or unclaimed over 50% of the time by a resident. If the resident refuses or fails to claim the certified mail, the resident has not received notice. Stay far away from attempting to serve a Three Day Notice by certified mail. An interesting problem arises when you serve a notice by mail. The law required that when serving a notice by mail, you must add 5 business days to the notice for mailing time. This automatically makes your Three Day Notice, which is 3 business days, into an 8-business day notice. On top of that, the law also states that if you demand payment through the mail, you must add another 5 business days for the resident to mail you the payment. Now we have 13 business days? As you can see, mailing is the least preferred and least recommended way to ever serve a Three Day Notice.

THE ORIGINAL OR THE COPY? The most common mistake among property managers when serving the Three Day Notice is to give the resident the original of the notice and keep a copy in the file. The resident should not get the original, but rather get a copy of the notice. The property manager should retain the original of the notice, and on that original the property manager will fill out the certificate of service.

THE CERTIFICATE OF SERVICE The certificate of service is usually found on the bottom of the Three Day Notice. If it is not there, it should be. This section usually states “I hereby certify that a copy of this Three Day Notice has been served on…” and then has a spot to check off how it was served, to whom and the date of service. The certificate of service only has to be filled out on the original Three Day Notice that you are retaining for your file. The certificate of service is your way of keeping a record on how the notice was served, so the judge will know how, when and to whom it was served. It is not necessary to fill the certificate of service out on the resident’s copy. She knows how it was received, so it is unnecessary to complete this section on their copy. This actually makes notice serving easier. When going to the rental unit, you can have the original on one side of your folder, the copy on the other. Serve the copy, and immediately fill out the certificate of service on the original you are keeping for your file.

CONCLUSION As you can see, this article only addressed the issue of “serving” the Three Day Notice. Properly serving an incorrect Three Day Notice is just as bad as improperly serving a correct notice. Before you even attempt to serve a Three Day Notice, you must be well versed on how to prepare the notice and what you can demand from the resident on this notice. 

“Serving the Property Management Professional”

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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.

 

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