Managers must now give notice to residents in a specific fashion and in a specific time frame or will not be able to enforce notice provisions in lease.

PRIOR LAW: Prior to July 1, 2004, a manager could require the resident to give a specific amount of notice of vacating the premises. This had to be stated in the lease and could not exceed a requirement of 60 days' notice from the resident. Most leases required a 30 day notice from the resident, and failure to give such notice resulted in the resident forfeiting their security deposit or having to pay an additional month's rent. The manager was not required to notify the resident in any way other than to state the notice requirements in the lease. Failure of the resident to give notice would result in a forfeiture of money up to the amount of rent that the notice period required and/or the security deposit.

CURRENT LAW: Manager can still require notice from the resident of up to 60 days BUT MUST give resident written notice of the resident's notice obligation within 15 days of the beginning of the required notice period. This NEW notice from the manager must contain information regarding the notice requirement, how the notice needs to be given, and the fees, penalties or other charges imposed upon the resident if the resident does not give the notice.

EXAMPLE: Lease requires resident to give manager 30 days' notice prior to lease end. Manager NOW must inform resident of this requirement by giving resident written notice per FS 83.575 45 to 31 days prior to the beginning of the 30 day notice period. If the manager fails to give this notice, and the resident vacates without notice at the end of the lease, the manager will not be permitted to charge resident for failure to give notice. The new law does not specify HOW this notice must be given. We recommend giving the notice according to the terms of your lease, hand delivering the notice or posting on the resident's door if your lease allows this type of delivery. If you are going to mail the notice, it is crucial that you ADD 5 BUSINESS DAYS for mailing, and avoid certified mail as often the certified mail is not picked up.

SAMPLE WORDING:

Place this in your Renewal Letter along with your other usual information.

"According to your lease, you are required to give us ______ days’ notice in writing if you are vacating the premise at the end of your lease term. Failure to give us this notice in writing will result in __________ Forfeiture of your security Deposit __________ you will owe us an additional _________ month rent."

PRACTICAL IMPLICATIONS: A property manager should always be diligent in determining whether a resident is staying or leaving at the end of the lease term. Most property managers send out their renewal letters 30 to 60 days prior to the end of the lease as a standard procedure and should continue to do so just as in the past. The only difference is that NOW, a letter needs to get to the resident within that 15 day timeframe before your required notice period. It is important to create a tickler file, mark your calendar, create a reminder on your computer, etc., to make sure that you do not miss this 15 day "window".

PLEASE DO NOT FORGET TO DO THIS!!!!

TEXT OF THE NEW NOTICE LAW

83.575 AS AMENDED Termination of tenancy with specific duration.—

1. A rental agreement with a specific duration may contain a provision requiring the resident to notify the manager before vacating the premises at the end of the rental agreement; however, a rental agreement may not require more than 60 days' notice before vacating the premises.
    
2. A rental agreement with a specific duration may provide that if a resident fails to give the required notice before vacating the premises at the end of the rental agreement, the resident may be liable for liquidated damages as specified in the rental agreement if the manager provides written notice to the resident specifying the resident's obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The manager must provide such written notice to the resident within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the resident under this subsection.
    

If the resident remains on the premises with the permission of the manager after the rental agreement has terminated and fails to give notice required under s. 83.57 the resident is liable to the manager for an additional 1 month's rent.

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How Much Notice is Needed to Non-Renew the Week to Week?

 Each party must give at least 7 days’ notice prior to the end of the weekly rental period,  BUT if there is or was a written lease and it requires MORE notice by the landlord, the manager MUST follow the lease agreement.

If a written week to week lease is expired, you may feel that since the lease agreement is expired, it has no meaning, but this is completely incorrect. You still are held to the terms of the expired lease. The first step is to examine the lease carefully if there was one.  

The number of days’ notice and the timing of the notice are the two main factors that can get the manager in huge trouble if the Notice of Non-renewal is incorrect.

Always remember that the number of days’ notice is the minimum number of days’ notice to be given PRIOR to the end of the weekly rental period. The most common mistake by managers is to think that they can give 7 days’ notice any time they wish, and that the Tenant must vacate at the end of that 7 day time period.

How Must the Notice Of Non-Renewal be Served?

Florida law does not explicitly provide how you must serve the Notice of Non-Renewal but gives the options of hand delivery, posting on the premises or mailing; the important thing is that you can prove the Tenant got the Notice of Non-Renewal.

You must go to the expired lease if there was a lease initially and carefully look to see if there are any requirements of the parties to serve notices to each other in a certain fashion.

If your expired lease requires that the notice be mailed, you MUST add 5 additional business days on the front end of the notice for mailing time. Don’t think that since you mailed it in the 7 days before the end of the weekly rental period as required by Florida law or the expired lease, you just have to wait another 5 days, and your Notice of Non-Renewal is now fine. Your Notice of Non-Renewal was defective the minute you failed to mail it at least 5 business days before 7 days prior to the end of the weekly rental period. Time does not cure the defective Notice of Non-Renewal, and again, even though a lease is expired, you still must follow what the expired lease provides.

Best Practices on Notice of Non-Renewal Serving

There will come a time when your Tenant is extremely upset that the week to week tenancy is being non-renewed, especially if the week to week tenancy has gone on for some time. The Tenant may deny getting the Notice of Non-Renewal.

Serving the Notice of Non-Renewal multiple ways is your safest bet. Serving the Notice of Non-Renewal by regular mail, certified mail, hand delivery and posting on the door of the unit if the Tenant is not home or refuses to answer the door, may seem excessive, but just wait for the day when the Tenant denies he ever got notice.

Private process servers also are available to serve notices and their word and affidavits of service are well respected by the judicial system. If you need a name of a private process server, give us a call, as we use them all over the state.

CERTIFIED MAIL – Certified mail is extremely unreliable so if you decide to use this method or are required to use this method by the expired lease, serve the Notice of Non-Renewal other ways IN ADDITION to the certified mail.

TIMING IS CRUCIAL

When counting the number of days, you do not count the day on which the Notice of Nonrenewal is delivered and it is straight days.  You do not have to exclude Saturdays, Sundays or Legal Holidays.

The Extension Request

Inevitably you will be put in a situation when the Tenant requests more time. This request and your response has to be treated with extreme care, as it can result in false expectations, misunderstandings and potentially create a situation in court where you have a “he said/she said” battle, which may or may not involve an out of state owner of the property who may or may not have to appear in court.

When asked by Tenant for an extension of time, if you feel it is warranted, or you feel the property owner may agree, clearly tell the Tenant that no extension will be granted unless the property owner agrees and everything is put into writing. If it is your own property, this is not an issue, as you can make a decision immediately, but if you are managing for another, you will need to check with the property owner, obtain clear direction from the property owner in writing (email is fine), and then relay it to the Tenant immediately with the Tenant signing an “Agreement to Vacate” form.

If there are multiple Tenants, all Tenants must sign this form. If only one Tenant is available, give the Tenant a deadline to have all Tenants available to sign the Agreement to Vacate, or indicate the Notice of Non-renewal stands. This is when everything usually falls apart. It is crucial to be definitive and firm with the Tenant, and document everything in writing with the Tenant. Any delay or failure on your part to get back to the Tenant with an answer will be conveniently interpreted by the Tenant as implicit agreement to the requested extension, while you have no agreement in writing.

By telling a Tenant that he can have an extension, you essentially have voided your Notice of Non-renewal. You can’t then fall back on the original Notice of Non-renewal. If the Tenant does not sign an Agreement to Vacate if an extension is granted, you could lose an eviction action, or have to re-do the Notice of Non-renewal, resulting in potentially damaging delays if the Tenant fails to vacate on the new agreed upon date. Never trust that Tenants will do “what they are supposed to do”. Assume the opposite, and if you are not sure how to handle an extension request, the best thing you can do is call your attorney immediately before doing anything.

“Serving the Property Management Professional”

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There will inevitably come a time in the landlord/tenant relationship where the manager wishes to end the tenancy at either the end of the lease term or at some later time, if the tenancy has become month-to- month. Successfully terminating the tenancy will depend upon the terms of the lease and the proper timing and service of the Notice of Non-renewal. Failure to non-renew properly can result in an unwanted extension of the tenancy. An improperly served or timed Notice of Non-renewal does not cure itself by the passage of time and thus becomes void to the resident’s favor. Just as the resident has a right to leave after the expiration of a lease, the manager also has a right to make a resident leave at the expiration of the lease. In this article, we will examine non-renewing a resident at lease end and non-renewing the month-to-month resident.

NON-RENEWING A RESIDENT AT LEASE END

DO YOU NEED A REASON TO NON-RENEW AT LEASE END? A manager can non-renew a resident for any reason or no reason at all, as long as the non-renewal is not based upon any illegal, discriminatory or retaliatory reason. A manager is not required to provide the resident with the reason for the non-renewal. It is imperative that if there is a reason for the non-renewal, that the manager has this well documented in the manager’s files. Often a resident who is non-renewed claims that the non-renewal was based upon race, handicap, familial status or almost any other reason related to their status as a protected class. In the event the resident files a discrimination lawsuit, a complaint with HUD or the local fair housing office, the manager will be required to provide proof that the non-renewal was not based upon an illegal discriminatory reason, but was rather based upon some valid business decision or due to the resident’s noncompliance with the lease or Florida law.

DO YOU NEED TO PROVIDE A RESIDENT WITH NOTICE OF NON-RENEWAL PRIOR TO LEASE END? Prior to the July 2023 law change, if the lease was silent as to any notice requirements at the end of the lease term, the lease would automatically end at the lease ending date, the manager shall have the right to immediately file an eviction action, and the resident will be considered a holdover resident, thus owing double rent for each day the resident remains on the premises. No notice at all from the manager was legally or contractually required in this instance. Although it may not be required by the lease and NOW, at least 30 days notice is REQUIRED BY LAW.

HOW MUCH NOTICE SHOULD BE GIVEN PRIOR TO LEASE END? If the lease requires notice by the manager prior to lease end, as many leases do, this must be strictly followed per the lease terms, otherwise the lease will automatically convert into a month-to-month tenancy. In some cases the lease is silent as to notice requirements by the manager but does have a notice requirement on the resident. In this case we recommend that the manager follow the same notice requirement that is imposed on the resident. If you are asking the resident to give you 30 or 60  days’ written notice prior to the lease end, you must give the resident at least 30  or 60 days’ written notice.

NON-RENEWING THE MONTH TO MONTH TENANCY

WHAT IS A MONTH-TO-MONTH TENANCY? A month-to-month tenancy occurs when a resident is residing on the premises after the lease has expired, or if there was never a lease in the first place. Since we highly recommend against a manager failing using a lease agreement of some sort, and there are sales tax ramifications of moving a resident into a property without a lease, we will deal here with cases where the lease has expired and has become a month-to-month tenancy. The lease becomes a month-to-month tenancy when the manager allows the resident to continue to reside on the premises after the lease expires, collecting the rent from the resident and basically carrying on business as usual, with the only difference being that the lease has expired. All the same terms and conditions of the lease still will apply, and it is not required that the manager charge or collect sales tax when the lease becomes month-to-month.

CAN THE MANAGER CHARGE THE RESIDENT MORE RENT WHEN THE TENANCY BECOMES MONTH-TO-MONTH?   The manager will probably be safe in giving the resident 30 days written notice that the rent will be increasing, but should make it clear that the month-to-month tenancy is terminating and the manager is offering a new month to month tenancy at a higher rent amount. Here, by the resident staying on the premises, there is an implicit agreement that rent will be at the higher amount. Many leases contain a clause which states that in the event the lease becomes a month-to-month tenancy and the resident remains on the premises with the consent of the manager, the rent will increase by a specified amount. This is highly recommended, as it will increase the rent and/or encourage the resident to sign a new lease or renew a lease with you.

DO YOU NEED A REASON TO NON-RENEW A MONTH-TO-MONTH TENANCY? A manager can non-renew a resident who is on a month-to-month tenancy for any reason or no reason at all, as long as the non-renewal is not based upon any illegal discriminatory reason. See the discussion above regarding non-renewing a resident at lease end. All the same reasons apply. THERE ARE EXCEPTIONS FOR GOVERNMENT SUBSIDIZED PROPERTIES.

HOW MUCH NOTICE NEEDS TO BE GIVEN TO NON-RENEW A MONTH-TO-MONTH TENANCY? If the resident is remaining on the premises under a month-to-month tenancy, and the lease has expired, either party may terminate the tenancy by giving the other no less than 30 days’ notice prior to the beginning of the next monthly rental period IF AND ONLY IF the expired lease agreement does not require a different LONGER notice period. This is extremely important!! The lease agreement which the resident signed and is not expired often has a clause which states that either party must give a particular number of days’ notice to terminate the tenancy after it becomes month-to-month. If this is the case, the manager will be held to the notice requirement in the lease agreement, while the resident simply needs to give no less than 30 days’ notice to the manager. Here we have an apparent conflict with the lease terms and Florida law. Why should not the resident be bound to the lease terms? This is an example where the resident has a clear right under the law to terminate their month-to-month tenancy by giving no less than the 30 days’ notice. The lease cannot take this right away from them.

WHAT DOES “AT LEAST 30 DAYS NOTICE PRIOR TO THE BEGINNING OF THE NEXT MONTHLY RENTAL PERIOD” MEAN? The manager or the resident must give the notice at least 30 days before the beginning of a monthly rental period. If the rent period begins on the first day of the month and either party gives at least 30 days’ notice on the first day of the month stating they will be out on the 31st day of the month, the notice is GOOD.   If the notice came from the manager and was not given at least 30 days prior to the beginning of the next rental period, he notice will be invalid, and the resident can remain on the premises until the manager gives proper notice. If the rental payment period begins on the first day of the month, either party must give the notice no later than 30 days prior to the end of a payment period in order for the notice to be valid, and as mentioned previously, the manager may have to give even more notice if the lease requires the manager to do so.

SUPPOSE YOU ARE HOLDING A LAST MONTH’S RENT AND DECIDE TO NON-RENEW A MONTH-TO-MONTH TENANCY? If you are holding a last month’s rent, when you serve your Notice of Non-renewal, you need to state to the resident in writing that you are applying the last month’s rent to the last month of the tenancy. For example, if you are holding a last month’s rent, you cannot accept rent from the resident in June and then serve them a Notice of Non- renewal on June 1st stating that they must vacate on June 30th. Your acceptance of June’s rent implies that they can stay until the end of June, and your holding another month’s rent implies that you are not going to make them move at the end of June!

SERVICE OF NOTICE OF NON-RENEWAL. Serving a Notice of Non-renewal incorrectly will result in a nullity of a notice, and the tenancy will continue as if no notice was given. Shorting a notice by a few days will not mean that the manager simply has to wait those few additional days and the resident will then have to vacate. The manager will be at square one. Florida law does not state how a notice must be served, so the lease must be examined. If the lease requires that the manager gives the resident 30 days’ notice prior to the end of the lease term, that notice must be actually received by the resident no less than 30 days prior to the ending date. A common mistake is for the manager to mail the notice without giving the required 5 business days for mailing, or just sending the notice by certified mail believing that this is a sure way to prove that the resident got notice, only to realize that the resident failed to pick up or refused the certified mail. We recommend that a Notice of Non-renewal be served multiple ways, including mail, only if time permits and hand- delivery or posting on the premises in the resident’s absence. First and foremost, the notice must be served in accordance with the lease. Sometimes a resident will fail to put a notice in writing, and the manager will then seek to take advantage of this and try to prove that since proper notice was not given, the resident owes an additional month’s rent. Most judges feel that if the resident can prove that they put you on notice, then the requirement of written notice is not as important. If a resident gives you verbal notice that they are leaving, follow this up with a confirmatory letter stating, “This will confirm our conversation whereby you have indicated that you are vacating the premises on (insert date). The manager should also then serve a Notice of Non-renewal to the resident just to be safe.

SUPPOSE THE RESIDENT REQUESTS MORE TIME? We see more problems develop when the manager and resident come to some sort of agreement but fail to memorialize this agreement in writing. If the resident requests more time, the manager and resident should sign a document whereby the manager agrees to the new vacating date and the resident agrees to vacate at that time. If the resident is going to be paying for this privilege, all this should be spelled out. NEVER MAKE VERBAL AGREEMENTS ON EXTENSIONS.

WHAT HAPPENS WHEN THE RESIDENT FAILS TO MOVE? Would it not be nice if people did what they said they were going to do when they said they were going to do it? If the resident fails to move at the expiration of the Notice of Non-renewal, the manager has some choices. The manager can file an eviction immediately, wait to see if the resident will move or give the resident an extension. If the resident has not vacated, the manager should immediately contact the resident to see what the resident’s intentions are. It may be the case that the resident is almost out or just needs a couple days. The manager may want to wait it out. If the resident needs an extension, we recommend that the resident sign an Agreement To Vacate. Never assume that just because the resident is supposed to be out or says he or she will be out, that the manager now has a right to take possession of the premises. The only way the manager can take possession of the premises, even after a Notice of Non-renewal has expired is by surrender, abandonment or eviction. Always call your attorney if you have any doubt whatsoever that the resident may not be completely out.

    LAW OFFICES OF HEIST, WEISSE & WOLK, PLLC

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How Much Notice is Needed to Non-Renew the Month to Month Tenant?

 While the Tenant only must give at least 30 days’ notice prior to the end of the monthly rental period, the manager is actually held to a different standard. If the expired lease is silent on notice, the manager has to give at least 30 days’ notice prior to the end of the monthly rental period just like the Tenant, BUT if the lease requires MORE notice, the manager MUST follow the lease agreement.

You may feel that since the lease agreement is expired, it has no meaning, but this is completely incorrect. You still are held to the terms of the expired lease. The first step is to examine the lease carefully.  

The number of days’ notice and the timing of the notice are the two main factors that can get the manager in huge trouble if the Notice of Non-renewal is incorrect.

Always remember that the number of days’ notice is the minimum number of days’ notice to be given PRIOR to the end of the monthly rental period. The most common mistake by managers is to think that they can give 30 days’ notice any time they wish, and that the Tenant must vacate at the end of that 30 day time period.

How Must the Notice Of Non-Renewal be Served?

Florida law does not explicitly provide how you must serve the Notice of Non-Renewal but gives the options of hand delivery, posting on the premises or mailing; the important thing is that you can prove the Tenant got the Notice of Non-Renewal.

You must go to the expired lease and carefully look to see if there are any requirements of the parties to serve notices to each other in a certain fashion.

If your expired lease requires that the notice be mailed, you MUST add 5 additional business days on the front end of the notice for mailing time. Don’t think that since you mailed it in the 30 days before the end of the monthly rental period as required by Florida law or the expired lease, you just have to wait another 5 days, and your Notice of Non-Renewal is now fine. Your Notice of Non-Renewal was defective the minute you failed to mail it at least 5 business days before 30 days prior to the end of the monthly rental period. Time does not cure the defective Notice of Non-Renewal, and again, even though the lease is expired, you still must follow what the expired lease provides.

Best Practices on Notice of Non-Renewal Serving

There will come a time when your Tenant is extremely upset that the month to month tenancy is being non-renewed, especially if the month to month tenancy has gone on for some time. The Tenant may deny getting the Notice of Non-Renewal.

Serving the Notice of Non-Renewal multiple ways is your safest bet. Serving the Notice of Non-Renewal by regular mail, certified mail, hand delivery and posting on the door of the unit if the Tenant is not home or refuses to answer the door, may seem excessive, but just wait for the day when the Tenant denies he ever got notice.

Private process servers also are available to serve notices and their word and affidavits of service are well respected by the judicial system. If you need a name of a private process server, give us a call, as we use them all over the state.

CERTIFIED MAIL – Certified mail is extremely unreliable so if you decide to use this method or are required to use this method by the expired lease, serve the Notice of Non-Renewal other ways IN ADDITION to the certified mail.

TIMING IS CRUCIAL

When counting the number of days, you do not count the day on which the Notice of Nonrenewal is delivered and it is straight days.  You do not have to exclude Saturdays, Sundays or Legal Holidays.

The Extension Request

Inevitably you will be put in a situation when the Tenant requests more time. This request and your response has to be treated with extreme care, as it can result in false expectations, misunderstandings and potentially create a situation in court where you have a “he said/she said” battle, which may or may not involve an out of state owner of the property who may or may not have to appear in court.

When asked by Tenant for an extension of time, if you feel it is warranted, or you feel the property owner may agree, clearly tell the Tenant that no extension will be granted unless the property owner agrees and everything is put into writing. If it is your own property, this is not an issue, as you can make a decision immediately, but if you are managing for another, you will need to check with the property owner, obtain clear direction from the property owner in writing (email is fine), and then relay it to the Tenant immediately with the Tenant signing an “Agreement to Vacate” form.

If there are multiple Tenants, all Tenants must sign this form. If only one Tenant is available, give the Tenant a deadline to have all Tenants available to sign the Agreement to Vacate, or indicate the Notice of Non-renewal stands. This is when everything usually falls apart. It is crucial to be definitive and firm with the Tenant, and document everything in writing with the Tenant. Any delay or failure on your part to get back to the Tenant with an answer will be conveniently interpreted by the Tenant as implicit agreement to the requested extension, while you have no agreement in writing.

By telling a Tenant that he can have an extension, you essentially have voided your Notice of Non-renewal. You can’t then fall back on the original Notice of Non-renewal. If the Tenant does not sign an Agreement to Vacate if an extension is granted, you could lose an eviction action, or have to re-do the Notice of Non-renewal, resulting in potentially damaging delays if the Tenant fails to vacate on the new agreed upon date. Never trust that Tenants will do “what they are supposed to do”. Assume the opposite, and if you are not sure how to handle an extension request, the best thing you can do is call your attorney immediately before doing anything.

“Serving the Property Management Professional”

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When a lease is set to expire or has expired, the LANDLORD will often seek to raise the rent.    Sometimes, the LANDLORD will even seek to raise the rent during the lease.    

DOES THE LANDLORD HAVE A RIGHT TO RAISE THE RENT DURING THE LEASE TERM?         

Usually no.   A limited exception applies to tax credit communities, but in almost all cases regarding conventional properties, the monthly rent amount established in the lease remains the rent amount during the entire tenancy.    However, if the written lease provides for a specific rent increase during a period of the lease term, that rent increase will be enforceable.         

WHEN A WRITTEN LEASE IS SET TO EXPIRE, CAN THE LANDLORD NOTIFY THE TENANT OF A RENT INCREASE TO TAKE EFFECT AFTER THE LEASE EXPIRES?  

Yes.   If the lease has wording to raise the rent in a subsequent month-to-month tenancy, that mechanism will be enforceable if the LANDLORD fully complies with the requirements of the lease provision.

IS THERE A SPECIFIC LIMIT TO HOW MUCH THE RENT CAN BE INCREASED?    

No. Except for some counties and cities. However, the LANDLORD and tenant must agree to the desired rent increase.                       

WHAT ACTION CAN THE LANDLORD TAKE IF THE TENANT IS UNWILLING TO PAY HIGHER RENT?    

If the tenant is unwilling to agree to pay higher rent when the lease is set to expire or has expired, the LANDLORD should nonrenew the lease or month to month.  

This should all be handled in the same timeframe as required if it is a month to month tenancy or if there is a lease.

WHAT HAPPENS IF THE LANDLORD MISSES THE WINDOW TO NON-RENEW THE TENANCY AS OF THE LEASE EXPIRATION DATE, OR IF THE TENANCY IS ALREADY MONTH-TO-MONTH?   

If it is too late to non-renew as of the lease expiration date, the lease will typically become a month-to-month tenancy, and the LANDLORD will be able to non-renew the subsequent month-to-month tenancy. 

 If the tenant is unwilling to agree to pay a higher rental rate, the rent amount for that period will be at the same rent rate as was being charged.

IF ALL TENANTS ON THE EXISTING LEASE ARE WILLING TO PAY A HIGHER MONTH-TO-MONTH RATE UPON THE CURRENT LEASE EXPIRING, HOW SHOULD THIS BE ADDRESSED?    

All tenants on the existing lease will sign a month-to-month addendum showing the higher rent.     Written correspondence from the tenants acknowledging and agreeing to the higher rent amount would normally suffice, and even just the act of the tenant(s) paying the higher rent amount would probably be sufficient to establish the higher rental rate.    However, the month-to-month addendum will better clarify that all other terms and conditions of the original lease will remain in effect.   

REVIEW:

1. You MUST look at the lease to see how much notice is required to nonrenew or give at least 30 days notice (SINCE JULY 1, 2023 LAW CHANGE)  prior to payment period ending date with month to month.

2. You MUST tell the tenant the new rent amount BEFORE the window you have to nonrenew the lease or BEFORE the 30 days notice (SINCE JULY 1, 2023 LAW CHANGE)  prior to the payment period ending date with month to month.

3. If the Tenant fails to AGREE to the higher amount, you MUST nonrenew the tenant. If you improperly nonrenew, the tenant only has to pay the original rent amount until such time as you properly nonrenew. If you nonrenew and the tenant fails to vacate, we can evict.              

“Serving the Property Management Professional”

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Most companies have a written policy under which the resident is instructed to put all work orders for repairs in writing. No work order, no repair. In a typical situation though, your maintenance person is verbally notified of a repair need while on the property. The most common response by your maintenance person is “You need to go to the office and put in a work order”. The maintenance person then goes about his or her day doing the normal repairs and maintenance on the property and following the work orders that have been provided by the office. In other words, the maintenance person is doing the jobs as dictated by the office and office policies. The resident who gave verbal notice is ignored.

Your Company “Work Order Policy”

A typical company policy as outlined in the lease or the Resident Manual dealing with repair requests states that in the event a repair needs to be done in a unit or there is some sort of a problem that needs attention, the resident is to come to the office and fill out a work order request. There are obvious reasons for this type of policy, as it documents the work order, alerts management and maintenance to the problem, provides evidence why and when maintenance entered an apartment, and establishes that all important paper trail which we are always recommending be created. Generally, if a resident fails to put in a written work order, maintenance staff will not voluntarily go out to the unit until such time as the work order is in place, unless a true emergency exists.

The Reality of the Resident’s Expectations

The resident sees Mike the maintenance person driving the golf cart, flags him down and notifies him that the A/C is not cooling properly. Although Mike tells the resident that she needs to put in a written work order, the resident expects this to be a mere formality and that Mike will be out nonetheless as soon as possible to fix the problem. Mike, following company policy, fails to go out. A few days go by, and then the resident calls the office, wondering why the A/C is not being fixed. As far as the resident is concerned, she put management, through Mike, on notice of a repair need, and Mike did not make the repair. The resident now begins the process of trying to break their lease, withhold rent or completely badmouthing the property, plastering notices on every resident’s door.

Is the Resident Correct?

Most property managers will feel that the resident is completely wrong, as the resident did not follow company policy or procedure. The resident did not put the work order in writing; therefore, the company is off the hook as far as the property manager is concerned. The resident withholds rent, breaks the lease or somehow the situation ends up in court. At court, the resident will testify that she told Mike the maintenance person that a repair was necessary and Mike failed to make the repair. You and Mike will then tell the judge that the resident never put in a written work order, and that is why the repair was not made. Now for the tough questions. The judge may ask you or maintenance whether the resident did in fact notify Mike that a repair was needed. If Mike answers “yes”, which he would have to do if he were telling the truth, the judge will not be happy with Mike or management. Possibly the resident was justified in withholding rent or breaking the lease. While we all know that a resident is required to give a manager 7 days written notice if they intend to withhold rent or break a lease, some judges will ignore this requirement by Florida law.

Actual Notice Versus Company Policy

In the foregoing example and possible court case, the resident shows to the judge, a point confirmed by maintenance, that the resident gave ACTUAL NOTICE of a repair need which was not performed. The fact that the resident gave actual notice, while not according to company policy, will result in the judge being very unsympathetic to management and maintenance, and could cause you to lose a case in court. Judges are not big on your company policies or procedures. There is nothing in the law that states that a resident must put a routine repair request in writing. The judge will be more concerned whether the resident gave some sort of notice, and in this example, the resident did give notice, corroborated by the maintenance person’s testimony.

Do We Now Ignore Company “Work Order Policy”?

As we have seen, requiring a resident to provide you with a written work order is a good policy and should be continued, pushed and encouraged by all means. On the other hand, if maintenance is notified of a problem by a resident, be it at the pool, while doing another repair in the apartment, or anywhere on the grounds, that maintenance person needs to be proactive, write a note down on the pad that he will carry at all times, and create a work order from that. Once that work order is created, the scheduling should be done with the resident to avoid any accusations by a resident that maintenance entered a unit without authorization or notice. Remember, when you are in court, about the last thing a judge cares about is your “company policy”.

“Serving the Property Management Professional”

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A disabled applicant should be treated just as any other applicant.  The process of accepting an application, showing available units, doing a credit and background check, and executing a lease should be the same as you it would be for a non-disabled person.  There are a few exceptions, described later in this article.

The Business Office.

Make sure that your leasing office meets accessibility standards. This includes being sure there is an accessible route from the parking area to your leasing office.   This may mean adding a ramp or curb cut, or outfitting at least one restroom that is accessible.

Reasonable Accommodations.

If the disabled applicant needs an accommodation in order to apply for housing, make it.  Examples include allowing a vision-impaired applicant to have his friend complete the forms, or allowing a service animal to enter the business office.  Another example would be to allow the disabled person’s guardian do the paperwork and sign the lease.

The applicant may say she wants the unit, but will need a modification or accommodation.  You can ask the applicant to put the request in writing and provide you with verification of disability.  (Hopefully, you already have a policy in place for handling this type of request.)

Question “Do’s”

Generally, a manager should only ask a person with a disability questions that are asked of all applicants or residents.  It’s OKAY to ask questions such as:

• Can you pay the rent?
• Do you have references regarding your resident history?
• Who will be living in the unit?
• Do you have a criminal history?

If ours is an apartment community designated for people with disabilities, you can ask the applicant if he or she qualifies for the housing.  

Question “Don’ts”

It is NOT ok to ask the following:

• Do you have a disability? 
• Do you take medication?
• How severe is your disability?
• Why are you getting SSI?
• Can I see your medical records?
• Have you ever been hospitalized for mental illness?
• Have you ever been in drug or alcohol rehab?
• Are you capable of living independently?

A Few More “Don’ts”.

Do not presume to know what is best for the disabled applicant.  If a person with a mobility impairment wants a unit on the second floor, do not try to talk him into a first floor unit.  You would be presuming to know better what the applicant needs, than the applicant himself!  It would be a violation of fair housing laws, no matter that you acted with good intentions.

Do not offer a particular accommodation.  Don’t suggest: “Will you need a handicapped parking space since you are in a wheelchair?”  Instead, respond positively if the individual in the wheelchair asks for a handicapped parking space.  The request for such an accommodation should come from the resident, not you.  You can let applicants know you welcome requests for reasonable accommodations and modifications, by noting it in your application materials.

“Serving the Property Management Professional”

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There are two legal doctrines that every property manager must understand. Those two legal doctrines are waiver and estoppel. Why? The outcome of your case may be decided based on these concepts. In short, they can operate as a “death penalty” to your case. Unfortunately, many property managers hear the words “waiver” and “estoppel” for the first time after they have lost an eviction case. The legal doctrines of waiver and estoppel show up in many landlord/tenant related matters.  In the current economic climate, property managers need to be “on their toes,” as residents are become more desperate and at the same time, more sophisticated, in terms of their knowledge of Florida landlord/tenant law.

What Does the Legal Term “Waiver” Mean?

Waiver occurs when a person relinquishes or surrenders his rights or privileges. It can be voluntary or involuntary. The “voluntary” waiver situation occurs when a person signs an agreement relinquishing his rights or privileges. Courts will generally uphold voluntary waiver agreements outside of the landlord/tenant context, if the agreement is very specific as to the nature of the rights being waived” by the parties. However, as you will see later in this article, waiver provisions in leases by no means assure you that resident cannot bring forward a “waiver’ claim. By contrast, the “involuntary” waiver scenario takes place when the law deems that you have lost your right to defend a legal action or sue to enforce your rights because of some prior action on your part. The concept of “waiver” is explicitly written into the Florida Landlord Tenant Act. Even in cases when waiver is not addressed in the Florida Statutes, there is law resulting from previous judicial decisions, otherwise known as “legal precedent”. That simply means that a prior legal decision finding “waiver” on the part of a manager or resident, was the basis for a later decision finding “waiver” on the part of a manager or resident. Usually, the facts of the prior case and the later case would be similar, but would not need to be exactly the same.

Common Waiver Scenario # 1 (Rent acceptance after seven day notice)

Ricardo, the property manager at XYZ apartments, observed one of his residents, Betsy, brandishing a gun on the premises. Ricardo called the police, and Betsy was subsequently arrested for felonies involving firearms, an obvious violation of Betsy’s lease with XYZ Apartments. After receiving the police report detailing Betsy’s arrest, Ricardo instructed his attorney to draft a seven day notice of termination of lease based upon Betsy’s noncompliance with her lease. Ricardo posted the seven day notice, but Betsy failed to vacate. Ricardo was left with no choice but to file an eviction action against Betsy. In Court, Betsy pointed out to the judge that a check for $700 was accepted by Ricardo the day after the seven day notice was posted. The judge dismissed the case on the spot! Why? One only needs to look at Section 83.56 (5) of the Florida Statutes: “If the manager accepts rent with actual knowledge of a noncompliance by the resident or accepts performance by the resident of any other provision of the rental agreement that is at variance with its provisions, or if the resident pays rent with actual knowledge of a noncompliance by the manager or accepts performance by the manager of any other provision of the rental agreement that is at variance with its provisions, the manager or resident waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance.”

In this case, Ricardo in fact, accepted the rent (the $700 check) with knowledge on the noncompliance (the felony firearm arrest). Is this fair? The answer to that question has no bearing on how you should conduct yourself if you aspire to be a successful property manager. Successful property managers do not waste time “second guessing” the law. They make a conscious attempt to learn the law! One of your goals should be to understand how your actions can adversely impact your court cases if you do not understand the law in this area.  

Common Waiver Scenario #2 (Rent acceptance after 3 day notice)

Samantha, the property manager, issued a valid Three Day Notice to Pay Rent to Esmeralda. The amount owed to the manager by Esmeralda was $2500. Samantha requested that her attorney file an eviction action after Esmeralda’s three day notice expired. Four days after the eviction was filed. Esmeralda dropped off money orders totaling $250. That day, Samantha was understaffed at her management office and mistakenly deposited the money orders. Was there a happy ending to this story from Samantha’s perspective? Of course not! If rent is accepted, whether in full or in part, (notice that only 10% of the amount owed was paid), by a manager subsequent to the service of a Three Day Notice To Pay Rent , then the manager is deemed to have waived its right to evict the resident based on that Three Day Notice to Pay Rent. This is based on the same reasoning as in Scenario #1 above - Section 83.56 (5) of the Florida Statutes. Even though Samantha may argue that she deposited the partial payment without realizing that Esmeralda was out of compliance with the lease, judges will universally consider the deposit into the manager’s/management bank as acceptance, and most will charge the manager with knowledge of the resident’s noncompliance. Some judges will still grant the eviction based upon the resident’s failure to deposit into the Court Registry the remaining 90% rent balance, but don’t count on it. 

Common Waiver Scenario #3 (Rental assistance forms)

Tim, your resident, is behind in rent for the month of September. “Great news” he tells you. The county housing assistance agency will pay for that month. You gladly sign Tim’s housing assistance application. A few weeks later you receive the September rent check from the housing agency. The October rent, however, is not paid by Tim, and you request that an eviction action commence. At court, Tim’s attorney enters his rental assistance application into evidence. You were so happy that Tim was receiving help back in September that you did not carefully review the agreement. It turns out that the assistance form is rigged with conditions. The housing assistance application stated that, “The manager agrees not institute an eviction action for 45 days from the time payment is received”. Therefore in this case, the manager waived their right to evict Tim, because the eviction action was filed prior to the 45 day grace period expiring. These forms frequently limit the rights of property managers and management and can be very dangerous. Our firm advises our clients not to sign those forms. 

Common Waiver Scenario #4 (Partial or Late Payment of Rent)

This is the “classic” Estoppel case. Charlie paid rent late every month for 6 months. In fact, he paid his rent on the last day of the month. On the seventh month, the property manager decided that she had enough of this nonsense and instituted an eviction action against Charlie. In court, Charlie’s lawyer asks the judge to throw out the case based on the doctrine of Estoppel. The judge agrees. The same result often happens when the property manager constantly accepts partial payments. As we have pointed out numerous times in this newsletter and in seminars, the resident is actually being rewarded for bad behavior in these cases. Why? Courts will rule that the doctrine of estoppel will apply if:

1. Words and admissions, or conduct, acts, or all combined cause another person to believe the existence of a certain state of things

2. In which the person speaking, admitting, acting and acquiescing did so willfully, culpably, or negligently,

3. By which such other person is or may be induced to act so as to change her own previous position injuriously. What does that mean? If the property manager is giving the impression to the resident that the terms of the lease need not be followed, then the manager seriously jeopardizes her ability to enforce the terms of the lease. 

This situation also comes into play when you do not act promptly to remove an unauthorized resident (link to our article “authorizing the unauthorized resident) or when the property manager serves notices after a non-renewal notice is issued (link to our article “No more notices after Non-Renewal). You should also be aware that under Florida case law, some judges have ruled that serving a Three Day Notice upon a resident voids all earlier Three Day Notices. You should not give the residents any Three Day Notices while an eviction action is ongoing!

Does the “No Waiver” provision in my lease protect me?

It may not! Courts will often not allow a manager to defeat potential waiver defenses by including favorable language in their leases. Many courts take the view that these provisions are against public policy. In addition, many judges may determine that such a clause violates Section 83.45 of the Florida Statutes (Unconscionable Rental Agreement) or Section 83.47 (prohibited lease provision) if those judges believe that you are attempting to take away from the residents protections already granted to them by the Florida Landlord Tenant Act (Chapter 83 of the Florida Statutes).

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A census is the legally mandated counting of people in the United States and its territories. It fulfills an important constitutional purpose. While each state has two Senators to represent it in the United States Senate, the number of Representatives in the United States House of Representatives is based upon the population of the state: the greater the population, the greater the number of Representatives. The power of any state to advance its legislative agenda and to secure benefits for its citizens increases with the number of Representatives which it has. In addition, the census is the basis for distribution of many government benefits and programs for schools, hospitals, transportation, and most importantly to managers, housing. It is particularly important for Florida, whose population has increased since the last census, to get every person counted.

National Census Day

National Census Day is the day on which the “count” is fixed. April 1st is the relevant day, whether the questionnaire is completed or the census worker visits before or after April 1st. Census takers are more properly called “enumerators”. During March of that year, questionnaires are mailed to residences to be returned in April. From April through July, enumerators will visit homes that did not return the questionnaires. In an accommodation to America’s multi-lingual nature, enumerators will carry cards in numerous languages. The cards will inform non-English speaking interviewees that they should tell the enumerators their language, and the Census Bureau will follow up with someone speaking their language. If the resident is not home at the time of the enumerator’s visit, the enumerator will leave a notice of visit on the resident’s door. The resident can use the contact information to arrange a convenient time for the re-visit. The personal interviews take less than half an hour.

Legally mandated

The census is “legally mandated”. Enumerators have the legal right to have access to individual homes and multi-family properties to collect census information. Enumerators may have to return several times to collect the information. Various other census workers may seek access to the residents for census related operations, such as non-response follow-up re-interviews (quality check of an enumerator’s prior interview), census coverage follow-up (check possible double counting or clarify responses to prior questions), and field verification of mismatching addresses. There is the possibility that enumerators will contact some residents several times in the various follow-up and verification interviews. Managers should recognize this and expect some resident complaints about multiple interviews. Residents should be told to direct any complaints or comments to the Census Bureau, as the manager cannot prevent, limit or interfere with enumerators.

As part of the census the Census Bureau is performing another mandatory survey: the American Community Survey. The ACS collects population and housing information. Managers are required to cooperate in the ACS.

Managers’ Cooperation Required

Managers and their agents are required to cooperate and take reasonable steps to assist the enumerators by permitting access. If the enumerator is unable to make contact, the manager/agent should also assist by indicating the best time to contact residents, if known to the manager/agent. Finally, the enumerator may not be able to establish contact, and request the manager/agent to compile certain information on the occupants. The law does not provide for the option to demand written notice or written requests from enumerators as to what they want. So, managers/agents should neither expect nor require that enumerators give written demands for information. Enumerators will attempt to schedule mutually convenient times for meetings and allow managers/agents adequate time to gather and respond to information requests. However, given the deadlines imposed on the Census Bureau for completion of the census, the enumerators will expect a quick response.

The Census Bureau’s position

The U.S. Census Bureau has advised the National Multi-Housing Council as follows:

If the enumerator is unable to contact the occupant within the specified number of attempts, the enumerator may ask for as much information as the owner/manager can provide for an occupied unit. However, if the owner/manager states that the unit was not occupied on April 1, 2010, the enumerator will complete the questionnaire using the owner/manager as a knowledgeable respondent for the vacant unit.

The owner/manager should provide the information necessary to complete the census questionnaire, to the best of his or her knowledge. Questions on the census questionnaire have been approved by law, and the owner/manager is not in violation of any privacy laws if he or she provides the requested information. Although the owner/manager may not be able to answer all questions, such as race or ethnicity, an attempt by the owner/manager to provide available information should be made.

Verification

Managers/agents can demand to see the enumerator’s identification. The Census Bureau indicates that all enumerators will have official government ID badges and may be carrying “US Census Bureau” bags. Managers/agents can request that the enumerator present his government ID badge and another picture ID badge. If a Florida manager/agent wants further verification, he can contact the Regional Census Center for Florida in Atlanta, Georgia at 404-335-1555. Enumerators are not permitted to enter the residents’ homes, and therefore, they should never request to do so.

Notifying Residents

Since managers and their agents will be the secondary source of information, the more residents that the enumerators contact, the less time and work will be needed by managers/agents with enumerators. Managers may wish to alert their residents that census workers will be on the property. Managers may also want to inform residents that census workers may not request to enter residences, and that residents can verify their identity by requesting to see their ID badges, and if in doubt, they can contact the Regional Census Center.

Follow-up notices will be left on a resident’s door, if the resident is not home at the time of the census worker’s visit. (For simplicity in notice to residents, we advise referring to them as “census workers” rather than “enumerators”.)

Scams

Managers should be aware that like any other government program, the census will have its fair share of scams and scam artists impersonating enumerators. Enumerators do not use email or the internet to contact anyone. Enumerators will not ask to enter the home “to go to the bathroom” or for any other reason. Enumerators or census forms do not request donations, social security numbers, or detailed financial, banking or credit card information. Enumerators may use the phone to follow up on questions on a returned questionnaire, but will never ask questions beyond the ones on the census questionnaire. Be careful of relying on caller-id as proof of the caller’s identity, as scam artists can make it appear to be from the “Census Bureau”.

Privacy

Managers are not violating the privacy of their residents, as managers are required by law (Section 223 of Title 13, United States Code) to comply, and are subject to a fine for failure to comply. Enumerators should have available for managers/agents a Confidentiality Notice.

The Census Bureau only collects the information required by the law and imposes strict confidentiality requirements on those collecting and processing the census information. Federal law provides penalties of up to five years in prison and a $25,000 fine for the unauthorized disclosure of personal data by any enumerator or other census worker. Anyone who suspects an unauthorized disclosure can contact the Chief Privacy Officer for the Census Bureau, who is responsible for implementing privacy policies.

Information Requested

Managers/agents should expect that their files may very well lack some information sought. Fair Housing concerns have limited managers from acquiring information on ethnicity or race. Managers/agents are only required to supply the information that they have. The questionnaire consists of only 10 questions, but 5 of the questions have to be answered and re-answered for each occupant of the residence. The enumerator will assist the manager/agent with any interpretations of what a question is seeking.

In conclusion, managers have a vested interest in cooperating in the census. It brings some of those hard-earned tax dollars back to Florida and the manager’s community. Managers have a legal obligation and an economic incentive to see that every person in their apartment communities or rentals is counted. For more information on a Census, visit the website of the US Census Bureau.

“Serving the Property Management Professional”

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At any given moment, people who are not authorized occupants or residents on a lease are living in an apartment with the authorized resident. This is just a fact of life. Possibly the occupant is there on a temporary basis or just has decided to move in with the resident. Often the occupant is there for a long period of time, uses the amenities, makes repair requests, stops by the office and pays the rent and acts just like an authorized occupant or resident. The unauthorized person become familiar to staff, and many of the staff members have no idea the person is not in fact authorized.

The Resident And The Unauthorized Occupant

A resident who allows an unauthorized occupant to reside on the premises is in default of the lease and is blatantly disregarding the terms of the lease. That resident is no different than the resident who gets the unauthorized pet, parks improperly, causes a disturbance or does not pay rent. They are in default, pure and simple.

Why Do We Treat The Unauthorized Resident Lightly?

Usually if a property manager is not dealing with a HUD property or Low Income Housing Tax Credit Property, an unauthorized occupant is overlooked. If the resident is paying the rent, the property is kept up, there are not an excessive number of residents in a unit, occupancy is low, and parking is adequate, a property manager will overlook the unauthorized occupant.

The Huge Danger of Overlooking the Unauthorized Occupant

An unauthorized occupant is living on the premises without having gone through the normal credit or criminal background check. He or she may have an extensive criminal record, or even be a sexual offender or predator. The property manager has no idea of this and would have almost certainly turned this person does under normal application screening procedures. Nevertheless, the mystery person is now living on the premises.

The Unauthorized Occupant is Locked Out And Needs To Be Let In

One of our clients recently had a situation in which a woman that the maintenance tech recognized needed the maintenance tech to open the apartment in the early morning hours, as she had locked herself out. Since she was familiar looking to the maintenance tech, as she had lived on the property for quite some time, he opened up the apartment for her. She then decided to remove everything of value from the apartment. Later that day, the actual resident came home to find all his items of value taken, and the maintenance tech admitted he had let the woman in the night before. Problem? She was not an authorized occupant, and maintenance had no right letting her into the unit. Liability? What do you think?

A Recent Tragic Case Underscoring Potential Liability

Here is the scenario. This same scenario can apply to a resident renting in a condominium or single family home. An unauthorized occupant becomes familiar to the staff and has resided on the property for some time. The unauthorized occupant kills another resident in the apartment community. Is the apartment community liable? Over the next couple years, this exact case will be tried and a jury will decide. How would you decide?

Our Recommendations

We strongly urge that you take an unauthorized occupant seriously and consider it a serious lease default. If you wish to authorize this person, please read the article Authorizing the Unauthorized Occupant and take the steps to authorize the occupant if you so desire. Otherwise, serve your Seven Day Notice With Opportunity to Cure, refuse any rent payments, call your attorney, and evict everyone if the resident refuses to remove the unauthorized occupant. Remember that once you know there is or was an unauthorized occupant, make sure you follow up to confirm that the person is truly gone and not just being more careful about being caught.

“Serving the Property Management Professional”

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