ELECTRIC  BILL AND THE RESIDENT

 

In most annual rentals, the resident is responsible for paying the electric bill. In addition to being responsible for paying the bill, the resident is often given instructions by the manager and agrees in the lease agreement to place the electric bill into her name upon move-in. This requires the resident to make a call into the electric company and/or go to the electric company office to give the relevant information and pay a utility deposit, which varies by company providing the electric. In a perfect world, the resident does just that. Prior to move-in she gets the electric placed into their name and pay the bill. What happens when she does not pay the bill? In many places, the electricity is simply shut off, and the resident is without electricity. This is the resident’s problem, and no liability to the manager occurs. The resident may then pay the bill and have it reconnected, steal the electricity from an adjoining resident, put jumper wires on the electric meter, or completely live without electricity. In some areas of Florida and in many apartment communities, the electric will revert back into to the name of the apartment community, and the apartment community will later be notified that this has occurred, sometimes weeks later. This is to prevent a unit from being without electricity. While we cannot control what the resident is “supposed” to do, we can take action, but must be careful that we do not fun afoul of the law.

 

Florida Law and the Electric Bill

 

Florida law specifically states that a manager shall not directly or indirectly cause interruption in the resident’s electric service.

 

FS 83.67 Prohibited practices. (1) No manager of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any utility service furnished the resident, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the manager.

 

Direct Interruption

 

Direct interruption would be when the manager shuts the electric off by actually disconnecting it from the rental unit (this is rarely done but happens!), or more commonly instructs the electric company to shut the electric off. A manager who discovers that the resident has not placed the electric in the resident’s name could easily feel that it is correct to tell the electric company that the electricity is not to be in the name of the manager, but rather that it must be in the name of the resident. However, this can lead to a direct shut off. Further, the manager may have had the electric bill revert back into the manager’s name, as is often the case in apartment communities; notifying the electric company that this is not proper and that it should be in the resident’s name will result in a direct shut off to the resident. In the single family home setting, sometimes the property owner who lives out of state receives an electric bill, becomes furious, and calls the electric company for a shut off. Does it seem fair to the manager who now is stuck paying the bill? No, but we never said the law was always fair.

 

Indirect Interruption

 

An example of indirect interruption occurs if the manager receives an electric bill on an account that should have been in the resident’s name, and the manager simply fails to pay it. Here the manager has full knowledge that the resident failed to place the account in his or her name, and by the manager not paying it, the account will get shut off. Again, this seems unfair to the manager, but it is the law.

 

Steps to take if it is discovered that the resident is not paying the electric

 

Once it is discovered that the resident is not paying the electric bill, the resident needs to be notified immediately by the use of a 7 Day Notice of Noncompliance with Opportunity to Cure. The notice may state the following:

 

You have failed to place the electric utility service account into your name as required by your lease agreement, and you owe the manager the sum of $__________ at this time for outstanding electric bill(s).

 

Other Steps the Manager Can Take

 

While it is beyond the manager’s immediate control if the resident steals electric, or in the event of reversion of the account back to the manager, there is one thing that often occurs which is indeed completely in control of the manager, but is often missed, because of the manager’s forgetfulness or misplaced trust that the resident will do what the resident is “supposed” to do. Due to the need for electric to operate a/c units, most managers do not wish to have a time period when the electric is off. The result is that the electric is in the manager’s name until such time as either the manager directly has it shut off, OR the resident directly has it placed in the resident’s name. When a resident moves into a rental unit and the electric is on, they will often happily sit there until the electric is shut off. But wait. How can the manager have it shut off? Did not we just say that was illegal? The answer lies in timing. If the resident is notified in writing that the manager will be taking the electric out of his or her name no later than a fixed date, and the manager does indeed do this, it is doubtful that a prohibited practice or indirect termination as envisioned by the statute will occur. We recommend the following wording in a notification to be given to the resident prior to move-in. This can be placed directly on the INFO SHEET that the resident should receive from the manager, stating the names, phone numbers and addresses of the utility company, garbage pick up days, etc.

 

Here is some recommended wording:

 

Resident understands and agrees that the electric service is currently on in the apartment community’s name. Resident agrees that the Manager shall order the electric service be taken out of the name of the apartment community within 3 days, and Resident shall place the electric service in Resident’s name and pay all necessary deposits.

So you notified the resident prior to move-in. Now, don’t forget to notify the electric company immediately in writing, and get a confirmation from them!!  Property managers who use checklists rarely if ever forget to do this.  

 

The Early Termination Law And The Single Family Home Manager
 

by Harry A. Heist, Attorney at Law

 

NOTE: Before reading this article, we urge you to read Understanding The New Early Termination Law so you fully understand the new law before examining how it may apply to single family home management.

Should the new law be used in Single Family Management?

As you can see, if the new law is to be used, the tenant must be given an addendum at the time of lease signing which will give the tenant a choice of what they will owe if they vacate the premises before the expiration of the lease. The tenant can choose to owe a fixed sum of money not to exceed 2 months' rent or can choose to owe the rent due under the terms of the lease as it becomes due until the unit is re-rented or the end of the lease, whatever occurs first. Let us assume that you decide to use the new law, you provide the tenant with the addendum at lease signing, and he tenant chooses to owe the 2 months' rent if she vacates the lease early. What happens?

1. Just because the tenant made the choice to owe the 2 months' rent, it by no means that she will ever pay it. She simply will owe it.

2. The unit may stay vacant for more than 2 months, and the property owner may wish to go after the tenant to collect. When the owner finds out that he is limited to only going after the tenant for 2 months' rent, he will be surprised and angry, wondering what happened, and now will be looking to you for redress.

Full disclosure and permission is needed

If you wish to use the new law and are prepared to present the tenant with the addendum at lease signing, you MUST get prior permission from the property owner to do this, and fully explain to the owner that if the tenant chooses liquidated damages, you will not be able to charge the tenant ANYTHING other than the liquidated damages of up to 2 months' rent plus the rent that was owed to you, if any, at the time the tenant vacated. If you have a clause in your lease which states that the tenant is liable to pay a commission or any other non- physical premises damages, you probably CANNOT charge this to the tenant. A good argument can be made that a liquidated damages charge is a fixed amount, and that you cannot add other amounts to it.

Permission in writing

If you wish to use the new law, the property owner should give you this permission in writing. No verbal agreement should be allowed in this situation, as the use of the addendum and the tenant picking the liquidated damages choice can seriously infringe upon the rights of the property owner to pursue the tenant. Many property owners will not understand the new law. You do not want to give the property owner any idea or expectation that just because the tenant may pick the liquidated damages choice that the tenant will ever pay the money. More likely, the tenant will not pay the money.

When is the new law advantageous?

The new law is only advantageous to the property owner if the following occurs:

1. The unit is able to be re-rented within 2 months.
2. The tenant picks the liquidated damages choice.
3. The tenant actually pays the money he or she owes.

These three things must all occur for the new law to have any real benefit to the property owner. If you are in a situation under which it usually takes more than 2 months to re-rent a unit, you would definitely not want to use the new law.

Conclusion

Unfortunately the new law is not as useful as it may seem to the single family home manager. While it started out good, it had to be amended to appease the Governor, and now gives the tenant a choice in the matter. We have no control over that choice. The new law is more beneficial in the multi-family management situation, when there is one property owner who has decided that being able to charge liquidated damages, if the tenant so chooses, is a wise business decision. For now, we do not recommend its use in single family management.

 

DOMESTIC DISPUTES INJUNCTIONS AND RESTRAINING ORDERS

In the event of domestic violence, a party is able, by filing a sworn affidavit with the court, to get a temporary injunction for protection, also known as a restraining order, against another party. This injunction goes into effect almost immediately, and a hearing is set at a later time when a judge determines if the injunction is to continue or if it will be dismissed. The main purpose of an injunction is to keep one person away from another person, to prevent a possible escalation or continuation of violence or threats of violence.

A property manager is often made aware of the existence of an injunction by the person who has sought the injunction, the Petitioner. In most but not all, the Petitioner is a female resident. Situations will arise where the property manager is unwillingly brought into the picture. The property manager may be asked to change locks or may be asked by the Respondent to have access to the rental unit.

What Is Domestic Violence?: Domestic Violence as used in F.S. 741.28 - 741.31: "Domestic Violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit.

"Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who have a child in common, regardless of whether they have been married or have resided together at any time.

What is Repeat Violence?: Violence as used in Florida Statute 784.046, means any assault, battery, sexual battery, or stalking by a person against any other person. "Repeat Violence" means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member.

What is Dating Violence? Dating violence means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature.

What Will an Injunction Do for the Petitioner?

It will legally prevent an alleged abuser from committing any further acts of violence to the Petitioner or from threatening the Petitioner.

It may provide the Petitioner sole possession of a dwelling the Petitioner and the Respondent shared.

It may restrain the Respondent from going to, in or within 500 feet of Petitioner’s residence, place of employment, place of school, or places the Petitioner and family frequent.

It may provide no contact between the parties, in any manner.

It may require the Respondent attend counseling, treatment or a batterer's intervention program.

It may require the Respondent not to possess a firearm or to surrender any firearms to law enforcement.

It may address awarding temporary custody of any minor child (ren) between the parties, and visitation of the child (ren).

How Does A Party Get An Injunction Against Another Person?

The Petitioner must go to the courthouse and file a complaint. The person should bring with them police reports or referral cards furnished by a law enforcement officer, if any, proof of identification, specific dates of abuse or threats of abuse, specific locations where abuse or threats occurred, a mailing address of a friend or relative if the Petitioner chooses to keep the residence address "confidential" as provided by law, a picture, if any of the Respondent, to provide to Sheriff's Department for service purposes. The Petitioner must know and disclose the full legal name of Respondent, physical description of Respondent, current residence address of Respondent, including telephone number, social security number, if possible, and driver’s license number, Respondent's employer and employer's address and phone number, if possible, and Respondent's vehicle information, including make, model, color, year and tag number if any.

The “Temporary Injunction”

Upon review, the court may issue a “temporary injunction” which must then be served on the Respondent. The Petitioner can notify the Sheriff as to the whereabouts of the Respondent so the Respondent can be served. The key word here is “temporary”. The injunction will only last a certain fixed number of days, and then a court hearing will be set and held, at which the judge will decide if the injunction will be made permanent, the terms of the injunction, or if the injunction will be dropped. If the Petitioner fails to show up in court and pursue the injunction, the injunction will be dissolved. This is a common occurrence, so it is important that the property manager understands that an injunction may not be in effect when the Petitioner says it is in effect. This is where law enforcement comes into play, as they know through their computer system the actual status of the injunction. Never take the Petitioner’s or Respondent’s word for anything regarding the injunction. Get law enforcement involved.

Requests to Change Locks

In the event a property manager is asked to change locks on the premises, our office recommends that this is not done by the property manager, unless the property manager is specifically directed to do so by a court order. If the Petitioner wishes to changes the locks, we recommend that the Petitioner not be stopped from changing the locks and the Petitioner should be required to provide the property manager with a key.

Request For Access

A common scenario occurs when the Respondent comes into the property manager’s office and demands to be let into the unit or demands a key to the unit. Since the lease contract is between the parties and the property manager, it may seem that the property manager is required to grant the Respondent access. The police should be called immediately and asked to come to the property. Often the Respondent simply wishes to get clothing or other personal items from the property. The police will often accompany the Respondent to the rental unit, at which time the property manager, upon request, can grant access to the police and the Respondent. Often when the property manager indicates that the police will need to be involved, the Respondent takes off out of the office and does not wish to deal with the police. Never should the property manager take it upon himself or herself to assist the Respondent. Law enforcement should be involved.

Requests To Be Let Out Of The Lease

The Petitioner or the Respondent may request to be let out of the lease, either because they no longer have legal access due to the injunction, or the Petitioner wishes to move away from the property to a place where the Respondent cannot locate him or her. It will be a business decision by your owner or company as to whether this request will be granted. If it is granted, the other party does not have to agree to this request, and you can let either or both parties out of the lease obligation. Your attorney should be called in cases such as these, so the proper documents can be executed. Remember that if you let the Petitioner out of the lease, the Respondent still has a contract with you and has a legal right to possession of the rental unit, even though this right of possession may not be able to be exercised due to the injunction. Never remove the Respondent’s property from the unit or take possession, unless it is certain that all parties have relinquished to you full possession of the premises.

Requests By The Petitioner To Take the Respondent Off the Lease

In some cases, once the injunction becomes permanent or in the event the Respondent is incarcerated or otherwise indisposed, the Petitioner will request that the Respondent be taken off of the lease. One resident cannot unilaterally take another resident off of a lease. The party being taken off of the lease must agree to this. No matter what story you get from the resident, you cannot take the Respondent off of the lease. Your contract is with both the Petitioner and the Respondent. Their personal issues are not your problem, and unless you are ordered by a judge to remove an individual from a lease, you cannot oblige.

The Petitioner Vacates – Is the Unit Abandoned or Surrendered?

The Petitioner who was granted occupancy of the rental unit by the court may vacate the premises. Is the unit abandoned? Can it be surrendered? We are not sure. Since the lease agreement is valid with both parties, the fact that the Petitioner vacates most likely cannot grant possession to the manager. After all, the Respondent would be living there if he or she could, but simply cannot as the injunction prohibits this. Personal property may be left behind by the Petitioner who vacates the premises, and this property may belong to the Respondent. The Respondent may even petition the court to have the right to use the premises in the event the Petitioner vacates. This is an odd situation, and we urge you to call your attorney to see what options you may have based on the fact pattern.

Our Recommendations

Since an injunction is not an everyday occurrence the property manager must deal with, we strongly urge you to call your attorney the moment the issue arises. Handling the matter incorrectly could result in serious liability for the manager or property manager. Most importantly, never get emotionally involved with a dispute between residents. Taking sides can often lead to poor judgment calls, surprises and retaliation against the property manager.

 

DOING FAVORS FOR RESIDENTS

Any good property manager will tell you how essential customer service is to running a successful apartment community or property management company. In fact, most corporate offices will attempt to measure the amount of satisfaction current residents have through the use of survey tools. Making your residents happy has many positive consequences. Most importantly, it increases resident retention. After all, it is a lot less costly and time consuming to renew your existing residents than to market those units again and deal with the expenses associated with move-out. That point is magnified even more in these troubled economic times. One of the key components of your residents’ satisfaction is how the property manager communicates with them. Are service requests being responded to promptly? Is the property manager returning phone calls and responding to emails quickly? So with customer service and resident retention being high on the agenda of most property management companies, it is no wonder that many managers feel pressure from their corporate office and their knee jerk reaction is to accommodate residents who make requests which initially do not sound unreasonable. This article will point out situations in which an innocent sounding request made by a resident can result in massive problems for the property manager if that request is granted. You will see examples when property managers acting in good faith and who sincerely are looking to help their resident end up paying dearly in time and money for this altruism. Like the saying goes, no good deed goes unpunished!

Favor Scenario 1-Taking Personal Checks at Move-In

You have been trying for weeks to rent the one bedroom apartment next to the parking garage that nobody wants. Two months ago, Arthur, a prospect, walked into your management office unannounced and declared that he wanted to lease a unit at once. Ultimately, Arthur filled out his application paperwork, and the next morning executed a lease to begin that day, receiving a copy of the lease and the keys. Your normal policy is to require certified funds prior to executing the lease, but Arthur claimed he was strapped for time, and smoothly represented that his two personal checks covering the security deposit and prorated rent would not bounce. Arthur’s credit report results were good, so you took him at his word. Ten days later, you find out that Arthur was actually strapped for cash when his checks bounce. Now you are facing the prospect of filing an eviction without ever collecting any money under the lease transaction.

Favor Scenario Number 2- Allowing Third Party Access

Your resident has lived at your community for the past 5 years and is well liked by just about everyone, including you! During a conversation with the resident last year, you learned that she has a drug dependency condition. Sadly, the resident was arrested for heroin possession and incarcerated. She is not able to post bail. A few days ago, a man claiming to be the resident’s son visited your office and told you that the resident will be in jail for a very long time. He told you that he had the resident’s authority to clear out the unit and turn in keys. You really felt sorry for the resident and decided to open the apartment door the let the alleged son enter the apartment home. Not only did you open the door to the unit, you also have opened the door to potentially huge lawsuit. For what reason you ask? You had no authority to allow anybody to enter into the apartment home except the resident. This resident could hold your owner responsible for all of her personal property that was removed. Worse yet, if you took back possession of the unit, the manager could be liable for triple rent under the landlord/tenant act, and potentially triple the value of lost property under civil theft statutes. In this case, you should have demanded proof that the son had the authority of the resident to enter the unit, possibly in the form of valid power of attorney. This scenario also creeps up in the context of the deceased resident. Unless the third party has received authority from the probate court and displays that proof to you, the third party should not be allowed into the unit, no matter how sad the story is. It is irrelevant that it is a close family member or the only remaining family member. You have to confirm the third party has legal authority to enter the unit; it is as simple as that!

Favor Scenario Number 3- Accepting Late Rent Payments

Jethro has always been late paying rent. Not only does he pay the rent late, he usually pays about two weeks after the expiration of the Three Day Notice. Jethro is in great financial distress, and you really feel sorry for him. He has assured you that he will get back on his feet and start a new job. Besides, you reason that if you need to evict him later, at least the judge will know that we bent over backwards to try and assist the resident before evicting. After 6 months you decide that you cannot allow Jethro to continue this delinquent payment arrangement, and you send his file over to your eviction attorney. This example is perhaps the most common scenario in which extra work on your part to help a resident backfires. The unseasoned property manager does not realize that the eviction may become incredibly more complicated. Many judges will strictly interpret the wording of the lease and Section 83.56 of the Florida Statutes and allow the manager to evict if payment is not made before the expiration of the Three Day Notice. However, there are also a significant number of judges who may find that there is an issue regarding waiver. This simply means that by not enforcing the lease terms as written, the manager’s subsequent actions modified the lease. Thus, the resident is no longer obligated to pay the rent by the due date contained in the lease. Favoring one resident in this way may also trigger fair housing concerns, as discussed in more detail below.

Favor Scenario Number 4-Storing Personal Property

Donovan has three kids and is a single father. You feel terrible that the sheriff will be executing the writ of possession in a few minutes. Donovan now calls you and tells you he is leaving, but would like you to hold all personal items in your office that he was unable to move, and he will come by later to pick them up. Seems reasonable enough, right? Not so fast! You never want to exercise control over the personal items of the resident. What if Donavan fails to return? You are not able to throw out those items, and in fact a bailment situation is created. That means the law requires that you exercise reasonable care while continuing to store these items. You probably see where this is headed. Donovan may later allege that items were damaged or destroyed, or even worse, he may claim that you stole expensive items that you believe never existed.

Favor Scenario Number 5-Becoming Vulnerable to a Fair Housing lawsuit

You should always keep in mind that when you do favors for your residents, there may be other residents who feel slighted, and if they are a member of a protected class, then you may be in violation of fair housing laws. it is unlawful to discriminate in the terms and conditions of a rental based on a person’s race, color, religion, sex, national origin, familial status, handicap or military status. For example, if your tennis courts close at 7:00 p.m. in the summer, but children can only use the courts until 5:00 p.m., there may be no reasonable reason to justify this policy, such as a safety motivated concern, because it does not become dark outside until after 7:00 p.m. In this case, your policy was instituted at the request of some of your older residents who formed an informal tennis league. In the process, you may become vulnerable to a fair housing lawsuit, as it would appear that families are not having equal access to the amenities of the apartment complex.

 

 

DISPLAY OF UNITED STATES FLAG BY RESIDENTS

 

Manager may not prohibit resident from displaying United States Flag on premises

PRIOR LAW: Prior to July 1, 2004 a manager could prohibit resident by the lease terms from displaying or hanging a flag or any other item from or on the premises.

NEW LAW: A manager may not prohibit a resident from displaying a United States flag on the premises as long as it meets certain requirements.

SAMPLE LEASE WORDING: "Resident may display a "United States Flag", commonly known as the "Stars and Stripes", as long as this flag is portable, removable, cloth or plastic with a size not larger than 4.5 feet by 6 feet and is displayed in a respectful manner. This flag may not infringe on any other resident's area or space rented by another resident, including but not limited to a downstairs resident's lanai space if any. This flag, its pole or its base may not constitute a safety hazard to any person or property. In displaying the flag, resident shall not destroy, deface, damage, impair, or remove any part of the premises or property therein belonging to the manager nor permit any person to do so".

TEXT OF THE NEW FLAG LAW

FS 83.67 AS AMENDED

4) A manager may not prohibit a resident from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and one-half feet by 6 feet, in a respectful manner in or on the dwelling unit, regardless of any provision in the rental agreement dealing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The manager is not liable for damages caused by a United States flag displayed by a resident. Any United States flag may not infringe upon the space rented by any other resident.

 

DISCOVERY OF A SEXUAL OFFENDER OR PREDATOR

 

Your worst nightmare has come true. One of your residents comes into your office with a print out from the Florida Department of Law Enforcement  website showing a sexual predator or offender, hereinafter SP/SO, is registered at your property. He looks familiar to you. You look up the lease for the unit, and he is not on the lease. Whew, an unauthorized occupant. What if he is on the lease? Possibly he slipped through the cracks in the application process. How do you get him out fast?

 

Confirming Status and Address

 

Simply go to the Florida Department of Law Enforcement  website and look up the individual in question. If the person is a SP/SO, it will show up and give a brief description of the offense along with a physical description of the individual and a photo. An important aspect of the information will be the address that the individual has registered with the FDLE. This address may be the address of the rental unit or some completely different address. If it is the address of the rental unit, you can contact the FDLE, as possibly the SP/SO is in violation of the rules regarding the terms of his probation if he is in too close proximity to children. If it is not the address of the rental unit, we urge you to call the FDLE and report the fact that the SP/SO appears to be living at your property, and that your address is NOT what is listed on the website. It is possible that the SP/SO has registered the new address but the website is not yet updated.

 

Contacting the Resident

 

You immediately should contact your resident, making her aware that you know of the presence of an unauthorized person living with her on the premises and that the SP/SO needs to leave. If you get any pushback from the resident, feel free to let her know that you are fully aware this person is a registered SP/SO, not that it really makes much difference. Note that we call this person an “unauthorized person” or “unauthorized occupant”. Many property managers think that just because the person is a SP/SO, this somehow makes the offense by the resident in having an unauthorized person worse, or that it will make it easier to evict the person. It makes no difference. An unauthorized poodle may be an unauthorized pet as much as an unauthorized pit bull, the latter of which may be a breed you restrict. The breed of the pet or the status of the person will not have much relevance at all on your ability to take action. The unauthorized occupant is an unauthorized occupant plain and simple, and your resident is in violation of the terms of the lease agreement if that person resides in the unit for a period longer than the lease allows. Most leases allow guests or visitors for period of 72 hours to 2 weeks, and then require the resident to get your permission for the “guest extension”, thus the person does not become unauthorized until such time as the allowed guest period under the lease is exceeded. Once you contact the resident, you will most likely get the usual story, “The person is just visiting”. If the person is indeed “visiting”, they will be allowed to visit. “Residing” there is another story. Once you can prove the person is not simply “visiting” but is residing on the premises, you will need to put in motion your usual procedure for dealing with the unauthorized occupancy lease noncompliance, by giving notice and proving the person is in fact residing on the premises and not just visiting.

 

The SP/SO Has Your Address Registered

 

Although this is unnerving to you and your other residents or neighbors, this makes our job easier. We do not have much to prove here. The SP/SO registered his address as your property address. You serve the proper notices, and if you do not get compliance, eviction can begin. The first notice is of course the Seven Day Notice of Noncompliance with Opportunity to Cure. This gives the resident 7 straight days, INCLUDING Saturdays, Sundays and legal holidays, to get the unauthorized occupant removed. If the person is not removed and you can prove it, a Seven Day Notice of Termination is then served, and after 7 more days elapse, an eviction can be filed if you can prove the SP/SO failed to timely vacate pursuant to the original cure notice. One of the ways you can prove this is to contact the FDLE and see if the address the SP/SO registered with it is still the unit address.

 

Visitor or Resident?

 

While we have dealt with this in other articles regarding unauthorized occupants, as a review, you will need to PROVE the person is not just visiting. A SP/SO is allowed to be a visitor, like it or not. Proving occupancy can be extremely difficult, because few if any property managers have 24 hour surveillance of the premises to definitively prove the person is occupying the unit as a resident and not simply coming and going occasionally or staying overnight once in a while. Ironically, if you saw a person coming each day to the unit at 9 a.m. and leaving at 3 p.m., you might assume he visits each day. If the same person came at midnight and left at 6 a.m., you would assume he is living there. These are all just assumptions and not solid evidence, and circumstantial evidence can make for tough proof cases.

 

Notification to Other Residents

 

Under Florida law, you are under no legal obligation to notify the other residents that a SP/SO is on the property. Much to your dismay, most will find out fairly quickly, as the word spreads fast. Some residents upon becoming aware that there is a SP/SO living near them will copy the FDLE printout and plaster your property or surrounding residences with the flyer. If you are approached by angry residents demanding what action will be taken, you simply tell them you are completely on top of the situation and are taking all legal steps to have the person removed, and that it is a legal process that takes some time.

 

The SP/SO is on the Lease!

 

There are times where you run a criminal background check and a particular offense will not show up. The applicant is approved and moves in. How do we handle this situation when this person turns out to be a registered SP/SO? Suppose the person is not listed on the lease as a “resident”, but is listed as an occupant. Listing an adult as an occupant is a major mistake that many property managers make. For some strange reason, property managers think that if someone does not qualify, he should just be listed as an occupant. Sometimes the applicant who is approved will ask you to list her spouse or friend as an occupant, not as a lease signer. ALWAYS have all adults who will be occupying the unit go through the entire application process and sign the lease.

 

The first thing you need to do if you realize that the actual lease signer or occupant is a SP/SO is to get out the application and examine if there was a misrepresentation made on the application. Go straight to the question where you ask if the applicant was convicted of a felony, and see what the answer is. If the applicant lied on the application, and your lease and/or the application has the proper wording that allows you to terminate the tenancy if a misrepresentation was made, you are in good shape. A Seven Day Notice of Termination will be given to the resident, and an eviction can be filed.

 

One problem we see in the question you ask of the applicant is that on most applications, you are only asking if the “applicant” was convicted of a felony. What about the “occupant”? Make sure your question always asks if the “applicant or any occupant” was convicted of a felony. This will help protect you if you made the additional mistake of not having all adults sign the lease. Check your application wording right now!

 

Unfortunately, there are some real, worst case scenarios due to mistakes made by the property manager. Suppose in the answer section of your criminal background question section, the applicant failed to circle either “yes” or “no”. Did the applicant lie or make a misrepresentation? The argument can be made that they did not lie, and you will be in a world of trouble. ALWAYS make sure that an application is completely filled out and no spaces are left bank or questions left unanswered. Not answering a question with the hopes that it will slip through the cracks is a clever technique by an applicant to trick an unwary property manager.

 

Some Practical Tips

 

Get an “admission” -- If your resident “admits” to you that she has this unauthorized occupant, SP/SO or not, this “admission” can be used in court. If the resident tells you and your leasing agent, “Yes, I know, he is looking for a place to live”, you and your leasing agent can testify to this in court. Of course the judge may not believe you, but it is part of our evidence we use.

 

Log your evidence -- Create a log of when the SP/SO’s car is parked on the property, when it comes and goes, and take pictures. This type of detective work helps you win cases.

 

Try the “Agreement to Vacate” – If your resident is “in love” enough with this SP/SO, the resident may agree to just move out. Get the resident to sign an Agreement to Vacate, and in our opinion, release her from the lease so you can get them out as soon as possible.

 

Try a written promise -- It may be possible to get your resident to sign a form stating that they will have the SP/SO removed at a date certain, and if the SP/SO returns after that date, she agrees that her tenancy is terminated. This memorializes the fact that the SP/SO is actually living there, and makes it more difficult for the resident to fight you.

Call your attorney -- The last thing you need is a revolt on your property and residents wanting to break their leases because of the presence of a SP/SO on the property. Many residents, especially those with children, will want to use this as a way to break their leases, and if the matter were to be litigated, a sympathetic judge may feel that particular residents were justified in breaking their lease. The minute you find out that a SP/SO is on the property, call your attorney immediately, so you and your attorney can develop a strategy for removal of the SP/SO, resident or both.

 

DENIAL OF ACCESS BY RESIDENT

 

You are in the process of making your periodic inspections of units; you have given written notice and find out that your key does not work in the door. Apparently the resident has changed the locks without your permission and has failed to give you the keys. In another situation, the resident has called in and requested that a repair be made in the unit. You send your maintenance staff over, and the resident refuses to let your staff in to make a repair, saying it is not a convenient time. Your resident requests a repair to be made, you call to schedule the repair, and the resident states that you can only send the maintenance staff in if the resident is home, which happens to be after 7:00 p.m. Do these scenarios happen? You bet. This article will address the situation in which the resident is playing the “denial of access game”

 

The Law On Access

 

Florida law specifically addresses access rights by the manager, and your lease agreement may further address the issue.

 

83.53 Manager's access to dwelling unit.—

 

1. The resident shall not unreasonably withhold consent to the manager to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, residents, workers, or contractors.

 

2. The manager may enter the dwelling unit at any time for the protection or preservation of the premises. The manager may enter the dwelling unit upon reasonable notice to the resident and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The manager may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

 

1. With the consent of the resident;

 

2. In case of emergency;

 

3. When the resident unreasonably withholds consent; or

 

4. If the resident is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the resident notifies the manager of an intended absence, then the manager may enter only with the consent of the resident or for the protection or preservation of the premises.

 

The Resident Lock Change

 

If the resident changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the resident is forbidden to change the locks. The resident is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the resident has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized resident lock change really is the easy case and does not pose too many problems if the resident complies and gives you a key. There are many reasons why a resident may have changed the locks, and as long as the manager has access, this is usually not a real problem.

 

The Denial of Access “Game”

 

If your resident has requested a repair and then denies you or your maintenance staff access, or makes it unreasonably difficult or impossible to make repairs by telling you that she must be present, or requiring you to come after business hours, you must jump into action. Residents will use the request for repairs as a way to either set up a lease break scenario or put themselves into a rent withholding posture. If the resident ends up breaking the lease or withholding the rent with an eviction ensuing, the resident may try to claim that numerous requests for repairs went unmet. You may then need to establish to a judge that you were denied access. The resident will have a wonderful story of how numerous repair calls were made, work orders were turned in, and no one was ever sent to make the repair. You will be flabbergasted and tell the judge that you made several attempts, and eventually gave up as the resident was making it nearly impossible to get the repairs accomplished. Now you are at the mercy of the judge to either believe you or the resident, who may be able to lie more convincingly than you can tell the truth. This is bad position to be in.

 

Repair Requests and Strategy

 

The moment a repair request is made by the resident, it should be dealt with quickly. Can you simply go to a unit and make a repair after a phone call from the resident? Yes, but it is a bit risky if the resident did not expect you to come when you did, and you and your maintenance staff can be accused of theft or trespass when the resident is surprised. If you go to the unit without any notice and the resident is home, the resident may deny you access, and it could be looked on as legitimate by a judge. Your lease or resident handbook should clearly lay out the procedures for repair requests, but as we know, many managers fail to do so.

 

Once the repair request is made, if it is something that needs immediate attention, the resident should be called and told that you or your maintenance staff will be out within a specific time window. The resident may have a pet that needs to be secured, and it is just a matter of courtesy to coordinate something like this with the resident. At this point in time, the resident may begin to deny you access. If the resident insists that she be home for the repair, this should be accommodated if possible. However, if the repair need is of an emergency nature, do the repair without accommodating this request, if need be. If the resident demands that you come after normal business hours, this may be construed as a denial of access, especially if your resident handbook or lease clearly states the hours that repairs will be made. The resident may verbally agree to you coming to the premise for the repair, and upon arrival the resident informs you that you cannot make the repair at that time. This is when you must jump into action.

 

The Resident Refuses You Access

 

If the resident has already stated when you can or cannot come to make a repair, or has made it clear that your staff or repair person cannot come during regular business hours, you must immediately begin to document the steps you are taking to get the repair accomplished and the roadblocks that the resident is putting up. All phone calls, work orders, responses and witnesses need to be documented for later use. If you go out to make the repair and the resident flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the resident when you will be back using a written notice. If the resident refuses access again, attempt to have the resident sign your notice proving that she refused the repair. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the resident unreasonably denying access after have been provided notice of repair. Now it is time to try again. You have given the resident a WRITTEN notice of when you will be returning to effectuate the repair; honor the notice. If the resident again refuses you access, document everything all over again. If you don't expect cooperation by the resident, always have a witness with you to show that the resident has refused the repair. You see, you are now part of the game, and you want to give yourself the best chance to win this game if you end up in court. Everything must be done in writing, and every denial of access must be documented.

How far do you go?

You may wonder how may times you must try to make a repair and be denied; there is no firm number. Ask your attorney if you have enough proof that you could potentially present into court to prove your attempts and the resident’s actions. Remember that your word in court will not go too far in this game. Your clear documentation and persistence at attempting a repair, and the resident’s thwarting of same, will be the key to success in winning an eviction in which the rent was withheld, or attempting to collect rent from a resident who has breached the lease by complaining about repairs and vacating prior to lease end.

 

DENIAL OF ACCESS BY RESIDENT FOR SHOWING A PROPERTY

FOR SALE OR RENT

 

 

 

The Law On Access

 

Florida law specifically addresses access rights by the landlord/agent/manager, and your lease agreement may further address the issue.

 

83.53 Manager's access to dwelling unit.—

 

1. The resident shall not unreasonably withhold consent to the manager to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, residents, workers, or contractors.

 

2. The manager may enter the dwelling unit at any time for the protection or preservation of the premises. The manager may enter the dwelling unit upon reasonable notice to the resident and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The manager may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

 

1. With the consent of the resident;

 

2. In case of emergency;

 

3. When the resident unreasonably withholds consent; or

 

4. If the resident is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the resident notifies the manager of an intended absence, then the manager may enter only with the consent of the resident or for the protection or preservation of the premises.

 

The Resident Lock Change

 

If the resident changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the resident is forbidden to change the locks. The resident is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the resident has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized resident lock change really is the easy case and does not pose too many problems if the resident complies and gives you a key. There are many reasons why a resident may have changed the locks, and as long as the manager has access, this is usually not a real problem.

 

Seven Day Notice

 

If your resident is refusing access for showings, the resident must be served a Seven Day Notice To Cure. In an eviction action you may then need to establish to a judge that you were denied access by making written appointments and being able to prove that each time, you were denied access.  You must be able to prove you gave written notice to the resident and the resident has told you that you have no access or you went to the unit and the tenant denies you access.

 

The Resident Refuses You Access

 

If the resident has already stated when you can or cannot come to show the unit, or has made it clear that you cannot come during regular business hours, you must immediately begin to document everything and the roadblocks that the resident is putting up. All phone calls, emails, responses and witnesses need to be documented for later use. If you go out to show the unit and the resident flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the resident when you will be back using a written notice. If the resident refuses access again, attempt to have the resident sign your notice proving that he or she refused you access. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the resident unreasonably denying access after have been provided notice. Now it is time to try again. You have given the resident a WRITTEN notice of when you will be returning to honor the notice. If the resident again refuses you access, document everything all over again. If you don't expect cooperation by the resident, always have a witness with you to show that the resident has refused access. Everything must be done in writing, and every denial of access must be documented.

 

EVICTION

 

If you can prove you gave notice on multiple occasions and the resident has refused your showing on multiple occasions, we may be able to file an eviction.

 

NOTE: You can never force yourself in for showings or show the unit if you have been told you cannot show the unit and if you do, you may be civilly sued or possibly arrested and criminally charged.

 

 

 

DENIAL OF ACCESS BY TENANT

(Article applies to inspections, showing and repairs)

 

 

 

You are in the process of making your periodic inspections of units; you have given written notice and find out that your key does not work in the door. Apparently the tenant has changed the locks without your permission and has failed to give you the keys. In another situation, the tenant has called in and requested that a repair be made in the unit. You send your maintenance staff over, and the tenant refuses to let your staff in to make a repair, saying it is not a convenient time. Your tenant requests a repair to be made, you call to schedule the repair, and the tenant states that you can only send the maintenance staff in if the tenant is home, which happens to be after 7:00 p.m. Do these scenarios happen? You bet. This article will address the situation in which the tenant is playing the “denial of access game”

 

The Law On Access

 

Florida law specifically addresses access rights by the manager, and your lease agreement may further address the issue.

83.53 Manager's access to dwelling unit.—

1. The tenant shall not unreasonably withhold consent to the manager to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.

 

2. The manager may enter the dwelling unit at any time for the protection or preservation of the premises. The manager may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The manager may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

 

1. With the consent of the tenant;

 

2. In case of emergency;

 

3. When the tenant unreasonably withholds consent; or

 

4. If the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the manager of an intended absence, then the manager may enter only with the consent of the tenant or for the protection or preservation of the premises.

 

The Tenant Lock Change

 

If the tenant changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the tenant is forbidden to change the locks. The tenant is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the tenant has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized tenant lock change really is the easy case and does not pose too many problems if the tenant complies and gives you a key. There are many reasons why a tenant may have changed the locks, and as long as the manager has access, this is usually not a real problem.

 

The Denial of Access “Game”

 

If your tenant has requested a repair and then denies you or your maintenance staff access, or makes it unreasonably difficult or impossible to make repairs by telling you that she must be present, or requiring you to come after business hours, you must jump into action. Tenants will use the request for repairs as a way to either set up a lease break scenario or put themselves into a rent withholding posture. If the tenant ends up breaking the lease or withholding the rent with an eviction ensuing, the tenant may try to claim that numerous requests for repairs went unmet. You may then need to establish to a judge that you were denied access. The tenant will have a wonderful story of how numerous repair calls were made, work orders were turned in, and no one was ever sent to make the repair. You will be flabbergasted and tell the judge that you made several attempts, and eventually gave up as the tenant was making it nearly impossible to get the repairs accomplished. Now you are at the mercy of the judge to either believe you or the tenant, who may be able to lie more convincingly than you can tell the truth. This is bad position to be in.

 

Repair Requests and Strategy

 

The moment a repair request is made by the tenant, it should be dealt with quickly. Can you simply go to a unit and make a repair after a phone call from the tenant? Yes, but it is a bit risky if the tenant did not expect you to come when you did, and you and your maintenance staff can be accused of theft or trespass when the tenant is surprised. If you go to the unit without any notice and the tenant is home, the tenant may deny you access, and it could be looked on as legitimate by a judge. Your lease or tenant handbook should clearly lay out the procedures for repair requests, but as we know, many managers fail to do so.

 

Once the repair request is made, if it is something that needs immediate attention, the tenant should be called and told that you or your maintenance staff will be out within a specific time window. The tenant may have a pet that needs to be secured, and it is just a matter of courtesy to coordinate something like this with the tenant. At this point in time, the tenant may begin to deny you access. If the tenant insists that she be home for the repair, this should be accommodated if possible. However, if the repair need is of an emergency nature, do the repair without accommodating this request, if need be. If the tenant demands that you come after normal business hours, this may be construed as a denial of access, especially if your tenant handbook or lease clearly states the hours that repairs will be made. The tenant may verbally agree to you coming to the premise for the repair, and upon arrival the tenant informs you that you cannot make the repair at that time. This is when you must jump into action.

 

The Tenant Refuses You Access

 

If the tenant has already stated when you can or cannot come to make a repair, or has made it clear that your staff or repair person cannot come during regular business hours, you must immediately begin to document the steps you are taking to get the repair accomplished and the roadblocks that the tenant is putting up. All phone calls, work orders, responses and witnesses need to be documented for later use. If you go out to make the repair and the tenant flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the tenant when you will be back using a written notice. If the tenant refuses access again, attempt to have the tenant sign your notice proving that she refused the repair. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the tenant unreasonably denying access after have been provided notice of repair. Now it is time to try again. You have given the tenant a WRITTEN notice of when you will be returning to effectuate the repair; honor the notice. If the tenant again refuses you access, document everything all over again. If you don't expect cooperation by the tenant, always have a witness with you to show that the tenant has refused the repair. You see, you are now part of the game, and you want to give yourself the best chance to win this game if you end up in court. Everything must be done in writing, and every denial of access must be documented.

How far do you go?

You may wonder how may times you must try to make a repair and be denied; there is no firm number. Ask your attorney if you have enough proof that you could potentially present into court to prove your attempts and the tenant’s actions. Remember that your word in court will not go too far in this game. Your clear documentation and persistence at attempting a repair, and the tenant’s thwarting of same, will be the key to success in winning an eviction in which the rent was withheld, or attempting to collect rent from a tenant who has breached the lease by complaining about repairs and vacating prior to lease end.