If a resident who surrenders the rental unit continues to keep the rent current after giving up the right of possession, does the manager have the ability to retain the security deposit or last month’s rent? When does the statutory claim letter have to be sent? To answer these questions, it is important to first examine Florida Statute 83.49 in conjunction with Florida Statute 83.595.

Florida Statute 83.49 (3)(a) in part provides, “Upon the vacating of the premises for termination of the lease, if the manager does not intend to impose a claim on the security deposit, the manager shall have 15 days to return the security deposit together with interest if otherwise required, or the manager shall have 30 days to give the resident written notice by certified mail to the resident's last known mailing address of his intention to impose a claim on the deposit and the reason for imposing the claim.

 

The following is the full text of Florida Statute 83.595:

83.595 Choice of remedies upon breach by resident.

1. If the resident breaches the lease for the dwelling unit and the manager has obtained a writ of possession, or the resident has surrendered possession of the dwelling unit to the manager, or the resident has abandoned the dwelling unit, the manager may:

 

1. Treat the lease as terminated and retake possession for his own account, thereby terminating any further liability of the resident; or
    
2. Retake possession of the dwelling unit for the account of the resident, holding the resident liable for the difference between rental stipulated to be paid under the lease agreement, and what, in good faith, the manager is able to recover from a reletting; or
    
3. Stand by and do nothing, holding the lessee liable for the rent as it comes due.
    

2. If the manager retakes possession of the dwelling unit for the account of the resident, the manager has a duty to exercise good faith in attempting to relet the premises, and any rentals received by the manager as a result of the reletting shall be deducted from the balance of rent due from the resident. For purposes of this section, "good faith in attempting to relet the premises" means that the manager shall use at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the manager uses in attempting to lease other similar rental units but does not require the manager to give a preference in leasing the premises over other vacant dwelling units that the manager owns or has the responsibility to rent.

 

A manager legally acquires possession of a rental unit three different ways: eviction, surrender or abandonment, all three of which are listed in Florida Statute 83.595(1).

Regardless of how the rental unit is reacquired, one constant remains: the resident’s right of possession is terminated. Does this mean the lease is “terminated”? Based on the wording of the statute and which collection remedy the manager chooses in a lease-break situation, the answer will only be “yes” if the manager takes back the unit on “his own account”. Under Florida Statute 83.59 (3) (a), the manager’s obligation to send the claim letter is not triggered until the premises are vacated for “termination of the lease.”

Therefore, if the manager chooses to retake possession on the account of the resident, or “stand by and do nothing”, then the lease is technically not terminated. If a judge accepts this position, then the manager’s obligation to send the claim letter is not triggered until a replacement resident is found, or until the lease expiration date occurs.

Therefore, if a resident clears the unit out and turns in keys because of a great new job in California, but continues to keep the rent current, the manager should be able to keep the deposit in escrow until true termination of the lease occurs, and then make a decision at that point (within 30 days) as to disposition of the deposit. Similar logic would apply to last month’s rent being held in escrow. It is important that the manager be able to document reletting efforts, not only to show that the manager has met its duty to use good faith in finding a replacement resident, but also to support the manager’s decision in holding off from sending the claim letter, when there may not be any immediate claim when the resident vacates early.

A related issue occurs if a resident is evicted. The manager still has the right under Florida Statute 83.595 to hold the resident to the lease balance when an eviction occurs. If the manager elects to find a replacement resident on the account of the resident after the eviction is finalized, a very good argument could be made that the manager can hold off sending the security deposit claim letter in accordance with the above guidelines. Nevertheless, our office recommends sending a claim letter within 30 days of the writ being executed, since after most evictions are finalized, at least the security deposit amount is owed, and some judges may be reluctant to accept an interpretation of the statute which allows the manager to delay in sending a claim letter after the right of possession has vested back to the manager. However, the better argument is that termination of the resident’s right of possession and termination of the lease can be two very different points in time.

 

“Serving the Property Management Professional”

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Two residents are on the lease agreement. One of the residents stops by your office and throws a set of keys on your desk proclaiming, “We are outta here”, and rushes out of your office. You decide to check the unit out, and it appears vacant. The electric is off, the unit is relatively clean, and the only personal property that you see is a box of books, an old television, bag of clothes and computer monitor. Looks surrendered for sure. Within a few days you have your maintenance staff do a full cleaning of the unit, including touch up painting and a trashing out of the remaining property. The locks are changed, as this is your usual procedure. A week later, one of your residents appears in your office claiming that she could not get into the unit. You inform the resident that her roommate turned in keys the prior week, and that the unit has been cleaned out and locks changed. Surprised and shocked, the resident in your office demands to know where all her personal possessions are, including a computer, CD collection, valuable antiques, expensive mountain bike and designer clothes. You state that there were no such items in the unit, and the resident storms out. You then get a letter from a lawyer, or possibly the police pay a visit to your office. Did you do something improper?

What is Surrender?

The term surrender is not specifically defined under the Florida Landlord/Tenant Act. Many managers assume that act or turning in keys constitutes a surrender, and in many cases, a judge would be satisfied that surrender occurs with the turning in of keys. However, it should be clear to the property manager that all residents on the lease have indicated in unequivocal terms that they have vacated the premises and are turning possession over to the manager. A writing signed by all residents is preferable, and no human beings should still be living in, using or sleeping in the unit. The property manager has to review very carefully the circumstances of keys being turned in; unless the keys are clearly being turned in as a consensual act by all residents on the lease, it can be very dangerous to presume surrender has occurred. Even if there is only one resident on the lease, if keys show up in the property manager’s drop box with no note, it may not have been the resident dropping the keys off.

The Property is “Surrendered” But Not Vacant

Your residents, all of them on the lease, may have given you the keys and indicated to you that they have surrendered the premises. You go out to the premises, and someone appears to be living there. You see clear and convincing evidence that the premises are being occupied by someone other than the residents who were just in your office yesterday. The premises are not surrendered, and if you think the occupant in the unit is a trespasser, think again. If that person claims he is there with the permission of your residents who just gave you the keys, you will be forced to file an eviction against your residents, as they have not completely surrendered the premises. The fact that the residents came to your office, turned in keys and said they were out is not sufficient.

One Resident Surrenders

One resident on a two resident lease comes into your office and hands you the keys announcing “they” have vacated. This is a common occurrence. You will then check the premises, and if it appears there is little to no personal property on the premises, the usual assumption is that all the residents have vacated. The problem is that only the resident who has given you the keys has in fact vacated, but the other resident has no idea this has occurred, as she may have been staying at her boyfriend’s house. This resident then appears in your office after locks have been changed and wants to know why she has been locked out. You reply that possession was turned over by the other resident the week before. Unbeknownst to you, the resident who surrendered the keys to you sold all the other resident’s personal belongings and threw the rest in the trash. They were not getting along. Now the other resident is attempting to hold you responsible for all the missing items. What happened? Only one resident gave up the right of possession, and that was not complete surrender.

Written Notification Of Surrender

There will be times when you do not receive the keys but receive a letter from the resident or residents stating that they have indeed vacated the premises. This would seem to constitute surrender, but again, the unit must be examined to see if this is truly the case.

Some Final Words

As you can see, receiving keys or a letter from the resident or residents may indicate that the residents have vacated the premises, but if anyone is left behind, you do not have a surrender; if you do not have clear confirmation from all residents on the lease that the right of possession has been given up, it can be dangerous to presume a surrender. Never assume you have complete surrender and right to possession of the premises until you examine the premises and consider all the underlying details of the case; if you have any doubts, consult your attorney.

“Serving the Property Management Professional”

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Storms in Florida have resulted in many new legal issues between the manager and the resident. Unfortunately most managers are not prepared for the myriad number of problems, and often decisions are made which ended up in litigation. Common problems included the residents taking it upon themselves to secure the property and in the process damaging the property. In many cases the premises are substantially damaged, and the resident is allowed a rent rebate or some concession which ends up not satisfying the resident and becoming a problem later. Construction workers often are not able to complete repairs in a timely manner. In severe damage situations, the residents refuses to vacate the premises and also refuses to pay rent. Who is liable for protecting the resident and his personal property? Can we make a resident leave if the premises cannot be repaired quickly, or it is necessary to have the resident leave the premises to have the repair properly made? What about generators? In a multi-family environment such as an apartment community, the misuse of a generator can put people and property at great peril. Can we prohibit them? The following discussion is preliminary at best and is meant to give you some ideas which you may wish to implement in your lease or an addendum to your lease. It is by no means complete, but it is a start.

What are the Manager’s Obligations?

Many leases contain clauses reminding the resident that the manager is not responsible for their personal property, and the resident agrees to this. Surprisingly, these clauses are not always upheld in court for situations in which damage to the resident’s personal property was not due to any fault of the resident. If there is a pipe break, and the resident’s personal property is damaged or destroyed, this clause may not hold up. In the event of a storm, if there were some simple steps that the manager could have taken to help preserve the personal property of the resident from damage, things are not as clear. The duty of the manager to secure the premises is not spelled out anywhere in Florida law. We recommend the following clause.

MANAGER’S OBLIGATIONS: Resident agrees Manager has no obligation to install storm shutters and/or take measures to prevent wind, rain and/or other objects or projectiles from entering the premises in the course or event of a windstorm, flood, hurricane, hailstorm, tropical storm, or any other act of nature (hereinafter “Storm”) that may strike in the area of or affect the premises rented by Resident from Manager. Resident agrees Manager has no duty to advise Resident as to evacuation orders, potential or current storms, safety measures, storm-preparedness procedures, or storm recovery resources. Resident agrees to use due diligence in keeping informed of the current and future weather.

What About the Resident’s Personal Property?

Florida law does not prohibit or specifically allow a manager to require a resident to get insurance for her personal property, commonly known as “renter’s insurance”. There also is no affirmative duty on the manager to secure the resident’s personal property, which may be in accessible areas such as balconies or lanais. It is possible that a particular area of the outside of the premises is subject to flooding. The manager may have a duty to warn residents of this if the manager has knowledge of a low section of the property or prior flooding. Many residents are not aware that the typical insurance policy that a manager has on a rental property in no way includes coverage on any of a resident’s personal property or coverage for any other loss that may occur to a resident other than personal injury or death due to the manager’s negligence. We recommend the following clauses:

RESIDENT’S OBLIGATIONS REGARDING PERSONAL PROPERTY: Resident agrees the rental premises are located in an area that may be subject to storms, and as a result, it is necessary to take steps to protect one’s personal property, including but not limited to securing objects that may become projectiles, keeping important documents in a location safe from damage, providing for the safekeeping of keepsakes, and obtaining appropriate insurance. Resident understands that, even with precautions, damage to personal property, including vehicles, may occur.

RENTER’S INSURANCE: Resident understands and agrees Manager’s insurance if any DOES NOT cover injury or death to Resident’s person or loss of any kind to Resident’s personal property or expenses incurred by Resident due to a storm, including but not limited to, loss of perishables, interruption of water, electric, cable or other utility service, relocation expenses and/or temporary or permanent housing. Resident agrees he or she has an affirmative obligation to obtain renter’s insurance to cover losses in the event loss should occur to Resident’s person and/or personal property due to a storm. Failure by Resident to obtain renter’s insurance is done at the complete and total risk of the Resident.

LIABILITY OF MANAGER: Resident waives any liability or duty on the part of the Manager for any damage to person or property should any occur due to a storm. Resident agrees to indemnify Manager should any third party institute an action for damages against Manager due to damages caused to person or property by Resident’s personal property and/or Resident’s actions or inactions relating to such personal property. Such indemnity shall include attorney’s fees and costs of Manager incurred in any actions for damages by a third party.

Storm Preparation Actions by the Resident

Certain steps should be taken by a resident to minimize the risk of harm to the resident, personal property belonging to the resident, and property belonging to others due to the resident’s personal property becoming a projectile or otherwise causing damage to another’s property. At the same time, a manager does not want a resident to drill holes in the premises, put nails into the premises or take steps to protect the resident’s personal property which could cause damage to the premises in the process. We recommend the following clauses:

STORM PREPARATION: Once a tropical storm, hurricane, flood watch or warning is issued for a particular area and/or at the request of Manager, Resident agrees to take storm preparedness actions. Any injury to Resident arising from storm preparation is the sole responsibility of the Resident and not of Manager. In the event of damage to Manager’s property due to Resident’s storm preparations, that damage will be the responsibility of Resident. Residents shall remove all authorized and unauthorized objects from the immediate premises that may become projectiles in a storm, such as deck chairs, potted plants, patio benches and any items on a balcony, lanai, patios and/or breezeways of the rental premises. These items should be placed inside the apartment and returned to the outside only when it is safe to do so. In no event, shall any motorcycle, scooter, gas grill, or other item containing gasoline or other fuel, be stored inside in the rental premises. These items must be removed completely from the premises.
 

The Generator Problem

The manager must decide if a gas powered generator will be allowed on the premises. Gas generator dangers are huge. Every year fires are started and individuals die of carbon monoxide poisoning due to generator misuse. In a single family home situation, the manager may not have a problem with allowing the resident to use a generator, but in multi-family housing the risks are multiplied greatly and are severe. Let us assume that an apartment community prohibits generators, but the resident purchases and uses one on the premises. Can the manager remove or disable the generator without liability? We are not sure, but we have created a clause which your attorney may want to review and give you his or her opinion. We are not by providing this clause stating that this clause will definitely be upheld in court or will not create liability on the manager, so you have been warned.

GENERATORS AND FLAMMABLE LIQUIDS: Resident agrees that NO GENERATOR(s) WHATSOEVER shall be permitted to be used by Resident on, in or near the premises. Severe hazards are associated with storing and operating a generator at the property, including injury and death to persons and damage to property. Resident agrees that NO FLAMMABLE LIQUIDS shall be permitted to be stored on, in or about the premises including but not limited to gasoline, kerosene or propane.

REMOVAL OF OR DISABLING OF GENERATORS BY MANAGER: In the event Manager is made aware that Resident is in possession of or using a generator on, in or near the premises, Resident by this document gives Manager absolute permission to disable the generator and/or remove the generator from the premises without notice or further permission of the Resident. Resident agrees to hold Manager, its agents, employees and assigns harmless for any damages suffered as a result of Manager disabling and/or removing the generator from the premises. This includes damages to Resident’s personal property due to lack of electricity and /or damages to or loss of the generator itself.

Notifications to the Resident

Nothing in Florida law requires a manager to notify the resident of an impending storm. It is good in multi-family housing though for the manager to have a policy and procedure in place, as it only makes sense that the manager take steps to notify residents who may not be aware of the situation. A manager cannot force a resident to vacate the premises. We recommend the following clauses:

EVACUATION OF PREMISES: In the event a governmental entity orders an evacuation of the area, Resident agrees to follow such evacuation orders. In the event Resident fails to follow the evacuation orders, Resident agrees that Manager shall not be liable in any way for injury or death of Resident or damage or destruction of Resident’s personal property, including vehicles.

The Damaged Property Catch-22

The most common problem our office deals with in the aftermath of a storm is the damaged unit. The destroyed unit is easy. The residents are gone and can’t move back in. The damaged unit creates serious issues. Does the manager have to repair? Can the manager timely repair? Is there water damage causing mold? Can repairs be made with the resident present? Does the resident have to pay rent? When a unit is damaged, we like the manager to have the pure absolute option to terminate the tenancy and evict the resident if necessary. We don’t need any arguments about the rent, reductions in rent, rent withholding, interference with repairs or any other problems from the resident. We want the manager to simply say “Get Out”, serve the resident proper notice and file an eviction if the resident fails to vacate. Proper lease wording is crucial. We recommend the following clause.

DAMAGE OR DESTRUCTION OF PREMISES: In the event the premises are damaged or destroyed by a storm, and in Manager’s sole judgment it is necessary for Resident to vacate the premises due to a dangerous condition on the premises or for repair, reconstruction or demolition, Resident agrees that Manager may terminate the tenancy. Resident shall vacate the premises within the time period as designated by Manager, and Resident shall not be liable for any further rent under the terms of the lease agreement.

Contact With Your Attorney

Probably the most important thing you can do after a storm is to contact your attorney before releasing a resident, giving a rent concession or making any deals or arrangements whatsoever with the resident. Emotions are running high, situations often are emergent in nature, and anything you do with the resident can have long lasting legal consequences. We urge you to examine your storm policies and procedures and have all preparations in place not just with the properties that you own or manage, but also your personal business. Many of our clients completely lost their offices in the past 3 years and were not prepared to be up and running again quickly. While this article dealt with your agreement with the resident, you need to have a full meeting of the minds in writing with the owners of homes if you are a manager of single family homes, duplexes and the like. This topic will be examined more in depth in a future newsletter.

 

“Serving the Property Management Professional”

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Many managers are now setting aside certain units as “Smoke Free” or renting homes out and prohibiting smoking on all or part of the premises. Many residents do not want to rent a unit where the prior resident smoked, and in many units, smoke travels through the premises interfering with the rights of other residents. Restricting a person’s ability to smoke on the rental premises in full or in part is not prohibited by law. The lease needs to clearly spell out the restrictions, and the challenge to the manager will be enforcement and proof.

Smoking Prohibitions and the Law

There are no laws, state or federal, that prevent a manager from prohibiting smoking in a rental unit, house or designating a building as smoke-free. There are no laws that prohibit a manager from designating certain areas as “smoking areas” or limiting smoking in the common areas.

Smoking Prohibitions and Fair Housing

It is not illegal discrimination to create a smoke-free policy, smoke-free units or smoke-free areas, as smoking is not protected under law. It is important to note that creating a smoke-free policy should never be used to target a protected class, as this can trigger a discrimination action and potentially be considered illegal. Residents who are affected by second hand smoke actually may be able to sue your company under the Americans With Disabilities Act and the Fair Housing Act for discrimination, if they have breathing disorders and you do not make accommodations for them in their rental premises, or the common areas in the event they have health issues which are being adversely effected by secondhand smoke.

The Benefits of Smoke-Free Units

1. Reduced risk of fire and injury. Lighted tobacco products cause over 15,000 residential fires, over 500 deaths and over 1300 injuries due to these fires, and over $300 million dollars in property damage each year.

 

2. Litter reduction. Your maintenance personnel will attest to the fact that cigarette butts accumulate and remain on the premises for a long time. Residents routinely will throw the cigarette butts on the ground, in the garden areas and all around the common areas. These cigarette butts pose a threat to small children and animals that may place them in their mouths and ingest them.

 

3. Better health. Cigarette smoke travels through walls, ceilings, floors, electrical conduits and HVAC systems. This exposes other residents to secondhand smoke, and these residents then suffer health hazards and inconvenience.

 

4. Decreased damage to property. Smoking damages walls, ceilings, carpet, furniture and can deposit a layer of tar on just about any surface with which smoke comes in contact, in addition to increasing the likelihood of carpet, flooring and counter burns. Often smoking related damage requires a substantial expenditure of funds to remove staining and odors, and to otherwise repair the unit.

 

5. Reduced liability. Americans With Disability Act and Fair Housing complaints are rising each year. Accommodating residents who do not want to be affected by second hand smoke and/or reducing the exposure of a resident to second hand smoke will reduce your liability. In addition, a resident has common law remedies, including the implied warranty of habitability and that the peaceful, quiet enjoyment of the premises is being interfered with. Smoke infiltration from another unit may qualify as a violation of the common law rights, and we have seen residents break their lease due to smoke infiltration.

Creating the Smoke-Free Unit or Building

1. Current residents. You cannot prohibit a current resident from smoking, if there is no prohibition in the lease, or the resident has failed to sign a no smoking addendum after the lease has been signed. A non-smoking resident who has already signed a lease may be willing to sign a no smoking addendum, and this can speed up the conversion of a building to non-smoking units.

 

2. New residents or renewals. If your new lease or addendum prohibits smoking, you can prohibit a new resident and their occupants from smoking, or refuse to renew a lease if a current resident refuses to sign the new lease or addendum.

 

SAMPLE LEASE WORDING

”Resident agrees that Resident, guests and/or occupants will not smoke or ignite any tobacco, clove, incense, or other legal or illegal smoking product on the premises. The premises for the purposes of this section includes the interior or the apartment, the breezeway outside the apartment, and any lanai or balcony if provided. Smoking for the purposes of this section is defined as igniting, inhaling, exhaling and/or carrying any lighted legal or illegal smoking product. In the event Resident, guests or occupants violate this smoking policy, Resident shall be in breach of the lease agreement and subject to eviction action, in addition to being liable for any damages to the premises cause by smoking or costs incurred by Manager in removing smoke odor”

Note: The above sample clause is for a complete smoking prohibition. The clause can be modified to allow lanai smoking, smoking areas or other variations.

Practical Considerations

While smoking can be prohibited in the lease agreement or addendum, enforcement is always going to be a problem. We all know that residents often will not do what they are “supposed” to do or what they “agreed” to do in the lease. A no smoking clause is a start though, if you wish to create a smoke-free unit or building, but proof will become an issue in the event of a violation or violations.

 

“Serving the Property Management Professional”

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A Small Claims Court case is simply a lawsuit by one party against another party where the sum sought after is up to $5000.00. Florida law has created a system within the County Court system where smaller cases such as these are handled in a unique and often expeditious manner. There are many ways of proceeding if one finds himself or herself as a defendant in a Small Claims Court case. You may be able to file a Motion to Dismiss if there are defects in the Plaintiff’s case, an Answer may be appropriate, possibly a Counterclaim will be necessary, or the case can be amicably settled. This article will only deal with settling the most common Small Claims Court case whose subject matter is a Security Deposit Dispute, and assumes the Small Claims Court case is NOT filed by an attorney, but rather is pro-se, meaning that the Plaintiff filed the case on his or her own without an attorney signing the paperwork.

The Security Deposit Dispute—The Most Common Small Claims Court Subject Matter

The vast majority of Small Claims Court cases involve a dispute over a security deposit. The Plaintiff, a former resident, will claim that you failed to return the security deposit, failed to send out notice in the required time period or unfairly charged the security deposit for things that were not the Plaintiff’s responsibility. Most of the time the Plaintiff is suing for no more than the security deposit amount plus the costs of filing the lawsuit. While you may firmly believe that the amount you charged the Plaintiff is absolutely correct, this type of case is one of the best kinds to settle rather than fight.

Why Should We Settle?

The Small Claims Court case regarding a security deposit dispute is much harder for the manager to fight than one may think. The same judge that seems very tough on residents in eviction court often seems to bend over backwards to believe the Plaintiff’s story of the evil, greedy manager who charged the Plaintiff for damages he did not do to the unit that the Plaintiff left cleaner than it was when the Plaintiff moved in. While the ex-resident Plaintiff is bringing the case against your company and should have the burden of proof, the judge will demand that you prove that the unit was not damaged when the resident moved in, the resident did the damage while living there, it was over and above ordinary wear and tear, and you can prove the costs of the repairs or replacements. You may need a detailed move-in and move-out inspection form, photos, videotapes, maintenance persons, vendors and just about anybody you can possibly think of that had contact with the unit in court with you to prove that the amount you charged the Plaintiff was correct. You may have a stack of bills for carpet cleaning, pest control and painting, but the judge will not look at these if you try to use them to prove the Plaintiff damaged the unit, as these bills will be considered hearsay. You will need to bring the painter, pest control person and carpet cleaner into court to testify, and often they do not want to come to court or, when they do come to court, make poor witnesses. In almost every single case we examine, the manager has severe weaknesses in the case.

The Mechanics of the Small Claims Court Case

The Plaintiff files the Small Claims Court case in County Court and has the case served upon you, the defendant, by Registered mail, private process server approved by the court, or most commonly, by a Sheriff’s deputy. When the case is filed, a date is specified on the paperwork for a Pretrial or Mediation date. If the case is not settled before the Pretrial date, you must attend this Pretrial, or you will have a judgment automatically entered against you or your company. At the Pretrial, a mediator is appointed to the case, and there is an opportunity to sit down in a private room with all the parties present to discuss the possibility of settling the case. If the case is not settled, the parties go back to the courtroom where they wait for a trial date from the judge. The parties must then attend the actual trial, where the case will be fully tried with all witnesses present. At the end of the trial, the judge will make his or her ruling and may award costs at that time.

How Long Does the Process Take?

The Pretrial process usually takes from 1 hour to 3 hours depending on how many cases are assigned to the court that day. The time is usually spent waiting in the courtroom to be called by the clerk. Once called and a mediator is assigned, the actual Mediation session usually takes between 30 minutes and one hour. If the case is not settled in Mediation, the parties will be sent back into the courtroom, where the wait can be from 5 minutes to one hour to get a date from the court for the trial. The trial is usually scheduled to be held within 60 days from the Pretrial date. On the trial day, the parties can potentially wait up to 2 hours for the trial to begin, and a typical small claims trial takes anywhere from 30 minutes to 2 hours on average. Unlike what you may observe on “The People’s Court” or “Judge Judy”, all the rules of civil procedure apply in the Small Claims Court trial, and it is actually taken very seriously by the judge. You need to have all your witnesses and evidence in court. If you are unprepared or disorganized, expect to be intimidated and berated by the judge. Frequently the judge is already annoyed that the case was not settled, and most judges really do not seem to enjoy small claims court trials.

Settling Prior to the Pretrial, the Cost-Benefit Analysis and “Principle”

Settling the Small Claims Court case prior to Pretrial/Mediation is the preferred way to go. At this point you will have little to no time into the case and will have avoided countless hours of aggravation. You need to make a simple cost benefit analysis of the situation and avoid wanting to go to court for “the principle of the matter”. Fighting over “principle” is just not wise. First, your expenses will be increased and secondly, you have no idea whatsoever if you will win in court, as Small Claims Court is so full of surprises. If you and the Plaintiff can come up with an agreeable amount, the agreement is put into writing, the money is exchanged, and the Plaintiff files a Voluntary Dismissal with the court. Does it make sense to take 3 staff members out of the office for 5 hours? Are you sure you are going to win in court? Will you need to get your attorney heavily involved? Will you need to subpoena parties? Will your vendors that you subpoenaed be aggravated with you? Will they show up in court? You need to take a deep breath and ask all these questions before you chart out your course of action. Assuming you are agreeing to give the Plaintiff some money to settle the case, it is imperative that you do not just send the Plaintiff the money. You must do this in conjunction with a proper Voluntary Dismissal and release. You don’t want to settle with the Plaintiff and then have his or her co-resident sue you over the same dispute. Smart settlement is a smart thing to do. Principle does not pay.

Settling the Small Claims Court case at the Pretrial Mediation

Surprisingly, most Small Claims Court cases are settled at the Pretrial Mediation. The court has fully trained volunteer mediators from all walks of life whose mission it is to have you settle the case and walk out of the courthouse relatively satisfied. In the mediation, each party has a chance to present their side of the story in front of the impartial mediator. The mediator also will conduct a caucus at times, whereby one party leaves the room and the other party can privately speak with the mediator. When you go to mediation, you want to be very prepared, as sometimes; a good mediator will encourage a party to settle if they feel the other party has a very good case. Once the parties come to an agreement, the mediator writes everything up on a settlement form, and the case is over. Assuming it is a security deposit dispute and you are agreeing to return some funds to the resident, this will all be written out, and you must comply with the Settlement agreement or you will have a judgment entered against you. Since we know that most cases are settled at Mediation, try to settle the case BEFORE mediation to avoid wasting time.

Suppose Mediation is Unsuccessful?

If Mediation is unsuccessful, a trial date will be set by the court. It is important to bring your calendar with you to Mediation, as once the trial date is set, the only way it can be changed is with agreement by the parties or the court granting a Motion for Continuance. After a trial date is set, there is plenty of time to decide whether proceeding with the trial is prudent or settlement is the better way to go. A case can be settled at any time prior to the actual trial date. Sometime after the parties have some time to reflect on the mediation, settlement becomes easier. The time before trial can be used to continue to attempt settlement through the use of offers and counteroffers. Always get the Plaintiff’s phone number and current address so the lines of communication can be kept open.

Your Attorney’s Role in a Small Claims Court Case

It is a good idea to always notify your attorney the moment you are served with a Small Claims Court case so your attorney can quickly review the paperwork and give you some advice. Most honest attorneys will tell you the truth about your case, disclose how much it will probably cost to fight the case and advise that you try to settle the case. In most cases, if your attorney advises that you settle the case, they can provide you with advice and with forms to help make this happen. You may want your attorney to attempt to settle the case. This is often an excellent route to take, as long as it will not take your attorney too many hours to accomplish this task. Give your attorney a figure that you will settle on, agree on attorney’s fees, and let your attorney run with it. A pro-se plaintiff will be surprised that you have an attorney involved in the case and will be more likely to want to settle. Here you attorney acts in a quasi-mediator fashion to get the parties to settle. The truth is, most attorneys have no desire to fight small claims court cases regarding dispute security deposits, because in most cases, they know that in the end, their client will not be happy having to pay their attorney’s fees and possibly losing the case in whole or part. Your attorney will advise you if you can go it alone, or if the attorney should file a Notice of Appearance and take over the case.

“Serving the Property Management Professional”

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The resident moved out, and you or your maintenance staff begins the fun process of repairing all the damage, painting, replacing carpet, replacing kicked in doors, repairing door frames and filling holes where your resident decided to practice the sport of boxing. The kitchen is an absolute wreck, requiring a deep clean taking hours, and the refrigerator shelves are either broken or missing. The bathroom has deep mold where every bit of caulking ever existed, and the floor is severely stained due to standing water or whatever else. I need not go on, you get the picture.

Should You Sue the Resident? Will You be Sued?

Residents who leave the rental premises in deplorable conditions usually are judgment proof. It would be absolutely ridiculous to spend any serious time or money trying to go after persons like this. Most managers know this, but many still insist on filing a small claims court case and pursuing a judgment. If a manager is local and has time on their hands, usually there is not much harm in filing a small claims court case, and there is little expense if no attorneys are involved. Unfortunately, the manager may have no choice in the matter and be the one who gets sued! There is no doubt that the manager will retain the entire security deposit in a situation in which damages meet or exceed the security deposit amount, and many times, the resident will seek to get the security deposit returned to him or her.

The Seriousness of a Small Claims Court Case

Most managers have no idea how serious a small claims court case can become. The manager may file the case on his own, and the resident hires an attorney who invariably files a counterclaim, meaning the manager now is suing and getting sued at the same time. The prevailing party may be awarded attorney’s fees. This means that if the resident wins and has an attorney, the manager may end up having to pay thousands of dollars in attorney’s fees to the resident’s attorney. The amount of attorney’s fees the judge may award has absolutely no relationship to the amount of the dispute. You could easily have a $5000.00 attorney’s fee award when the dispute was about a $500.00 security deposit, and the judge felt you overcharged by $50.00.

The Proof You Will Submit in Court

Daytime court television shows probably do the most serious injustice to the court system and lead people to believe that this is indeed how court “works”. While some judges in small claims court do indeed play fast and loose with the evidence of the parties, most judges follow the laws, and this means the rules of evidence are followed. Most managers will have a stack of bills and receipts which they think they will use to convince the judge that the resident damaged the property. Sounds reasonable. After all, why would the manager have spent all this money if the resident left the place in good clean condition with no damage? It would seem to make sense that the judge will look at the bills and receipts, and this will help you convince the judge that you indeed were harmed by the resident and should be entitled to keeping the security deposit or getting a judgment against the resident.

The Bills and Receipts Problem

Ready for the big surprise? Bills and receipts cannot be submitted as evidence in court to PROVE the resident did the damage. Bills and receipts are what is known as “hearsay” and CANNOT be used to prove the resident did the damages.

 

 

What is “Hearsay”?

Most people think hearsay means that when someone tells you something, you cannot use that statement in court. This is partly true. If I tell you that “John stole the car”, you cannot go into court and say that “Harry told me that John stole the car”. Why? Because if I am not in court with you, the defendant will have no way of cross-examining me. This means that what you are saying is “hearsay”, and the judge cannot listen to this, and it will not be used as evidence in court. Now on the other hand, if I were also a witness in court, and you told the judge that Harry told me that “John stole the car”, I can be called up to the witness stand and be cross-examined. The statement will then be admissible into court.

Other Examples of “Hearsay”

Besides just statements by people that cannot be cross-examined in court because they are not in court, there are other things which are considered hearsay.

1. Affidavits. Many property managers get the repair people and vendors to sign an affidavit, get it notarized, and then they think they can show it to the judge. It does not work; it is hearsay, because the vendor or repair person cannot be cross-examined in court.

 

2. Witness Statements. Getting 5 statements signed by people who observed the damages would seem like compelling evidence in court, but again, it is hearsay, unless the person or persons who signed the statements are in court.

 

3. Estimates. No good. Hearsay, unless the person who wrote up the estimate is in court and based the estimate on personal observation.

 

4. Bills. This is the classic mistake of the manager. The stack of bills cannot be admitted into court to prove that the resident damaged the property, unless the person who did the work is there in court, and a witness which can be cross -examined.

 

5. Police reports. There are times where properties are so severely damaged that the police are called in to write up a vandalism report. Hearsay again, unless the law enforcement person who wrote up the report is in court with you.

 

Is there any value to bills, invoices and receipts?

While they cannot be used to prove damages, they can be admitted into court to prove what something cost you, and if you have proof of payment, they can be used to prove that you paid for something like the supplies, the vendor, and the repair person. This certainly limits the usefulness of your bills, invoices and receipts, BUT will help your case in court; if you make it clear to the judge that they are being admitted as business records to prove what you paid.

 

Our Recommendations

If you end up in small claims court involuntarily, i.e. you have been sued; call your attorney as soon as possible. Don’t wait until the last minute when the chances of settling the case are seriously jeopardized. If you decide to file a small claims court case on your own, take the time to talk to everyone who worked on the premises to make sure that they will be there with you in court. You can subpoena these people as well and hope they come to court, but you don’t want to have an angry carpet cleaner who had to kill 5 hours waiting in court with you. Examine your evidence carefully, and try to put yourself in the judge’s seat for a moment and ask, will my evidence and testimony completely convince a judge that the property was not damaged when the resident moved in, and was in a damaged state when the resident moved out? Then expect the resident to come up with all kinds of lies and stories to make you look like the bad guy.

“Serving the Property Management Professional”

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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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