EVICTING FOR UNAUTHORIZED PETS

 

 

To evict a tenant for failure to remove an unauthorized pet or pets, you first need to have served a proper Seven Day Notice of Non Compliance with Opportunity to Cure.

 

In order to serve a Seven Day Notice to Terminate, you must be absolutely certain that you can prove to a judge that the tenant has not removed the unauthorized pet AND that the pet was not “authorized” by you or prior management’s failure to act quickly. If the pet has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management and/or you have accepted rent with this knowledge, you will not be successful evicting as you have “authorized” the pet by failing to act. This is due to the legal principle of Waiver and Estoppel.

 

 

SOME PROOF THAT IS NECESSARY PRIOR TO TERMINATING THE TENANT FOR FAILURE TO REMOVE AN UNAUTHORIZED PET

 

1. Photos of pet AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

 

2. Verbal or written admission by the tenant(s) that they have an unauthorized pet.

 

3. Employees of the apartment community or pest control who will testify in court that they saw the pet AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

 

4. Dates and time the pet was seen on the premises AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

 

5. Tape recording and/or video recording of the pet and the pet barking, if a dog pet AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

 

6. Photos of pet bowls, litter pan and pet taken AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

 

IF YOU DO NOT HAVE A STRONG CASE AND THE TENANT HAS A DEFENSE. YOU WILL LOSE. EXPECT THE TENANT TO DENY THAT THE PET IS LIVING ON THE PREMISES.

 

REMEMBER THE JUDGE WILL NEED TO BE CONVINCED THAT THE PET LIVES THERE AND DID NOT JUST VISIT.

 

EVICTING FOR UNAUTHORIZED OCCUPANTS

You see the unauthorized person there every morning. You see their car parked there every night. The unauthorized person even comes into your office complaining about something. Can you force them out? Can you prove your case? It is harder than you think.

To evict a resident for having an unauthorized occupant, you first need to have served a proper Seven Day Notice of Non Compliance with Opportunity to Cure. In order to serve a Seven Day Notice to Terminate, you must be absolutely certain that you can prove to a judge that the resident has an unauthorized occupant residing on the premises, not just visiting, and that the occupant was not “authorized” by you, the manager or prior management’s failure to act quickly. If the occupant has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management, and/or you have accepted rent with this knowledge, you will not be successful evicting, as you have “authorized” the occupant by failing to act. This is due to the legal principles of waiver and estoppel.

SOME PROOF THAT IS NECESSARY PRIOR TO TERMINATING THE RESIDENT FOR FAILURE TO REMOVE AN UNAUTHORIZED OCCUPANT

 

1. Photos of unauthorized occupant AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

 

2. 24 hour Video surveillance tapes or written admission by the resident(s) that they have an unauthorized occupant AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

 

3. Employees of the apartment community who will testify in court that they know for a fact the unauthorized occupant is still living on the premises AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired and are prepared to show the judge proof.

 

4. Dates and time the unauthorized occupant was seen on the premises AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

 

5. 24 hour Video surveillance of the unauthorized occupant’s vehicle AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

 

6. Police report where the unauthorized occupant gives your address as his or her address AFTER the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.

IF YOU DO NOT HAVE A STRONG CASE, YOU WILL LOSE. EXPECT THE RESIDENT TO DENY THAT THE PERSON IS LIVING ON THE PREMISES. REMEMBER THE JUDGE WILL NEED TO BE CONVINCED THAT THE PERSON LIVES THERE AND IS NOT JUST VISITING.

 

 EVICTING FOR NOISE AND DISTURBANCES

 

Often our office is asked to evict a tenant or tenants due to noise, partying, or other disturbances. These are all grounds for eviction if the tenant has been given a proper Seven Day Notice of Noncompliance with Opportunity to Cure and the noncompliance continues and you can prove this in a court of law.  Proof is where the problem lies.

 

In order to serve a Seven Day of Noncompliance Notice of Termination, you need to have hard core solid proof that you will be able to submit into court to completely and without a doubt prove to the judge that the tenant is engaged in actions which are seriously bad.  Most property managers do not have this solid proof and feel that a lot of small occurrences add up to being able to evict. They do not.  We need a serious noncompliance or noncompliances to be successful and we need proof. If we are not provided with this, we will not file the eviction case as it puts the owner and management company at a serious liability for losing the case and for having to pay the tenant’s attorneys fees which often average $3000.00.  Losing a Noncompliance case can also result in a Federal Discrimination case against the owner if the tenant is of a protected class. Frequently we are asked to evict tenants who live in condos for alleged violations of the lease or Florida law. MORE OFTEN THAN NOT, the condo residents or association have little or no proof but are raising a big stink about the tenant. These are our toughest cases. No proof, and we will not file the case.

 

The main proof we need to prevail in a Noncompliance case is a serious occurrence or occurrences which took place SINCE YOU LAST ACCEPTED RENT. If a tenant does something seriously wrong and you accept rent, THE TENANT IS FORGIVEN in the eyes of the law.

 

PROOF WE NEED TO PREVAIL IN A NOISE OR DISTURBANCE TYPE CASE

Police reports

Police who will appear in court

Courtesy officer reports

Multiple neighbor witnesses

Multiple neighbors who will appear in court

Property management witnesses

Property management witnesses who will appear in court

Multiple noncompliances

Serious noncompliances

Arrest for noise

Citations for noise

Dates and times of each occurrence

Photos proving parties

Audio tapes of noise

All other proof to convince the judge

NOTE: WRITTEN STATEMENTS BY POLICE OR NEIGHBORS ARE NOT ADMISSIBLE IN COURT. THIS IS INADMISSIBLE HEARSAY. THE PERSON WHO WROTE THE STATEMENT MUST APPEAR IN COURT.

EVICTING FOR HOUSEKEEPING ISSUES

To evict a resident for housekeeping issues, the condition of the unit must be BAD. That means it must be MORE THAN messy, full of stuff, or cluttered. A sink full of dirty dishes does not constitute a violation that rises to the level of a noncompliance with the lease or Florida law.

To terminate a tenancy for poor housekeeping issues, you first need to serve a proper Seven Day Notice of Non Compliance with Opportunity to Cure. A Seven Day Notice to Terminate might follow if you are able to prove that the housekeeping issues listed on the cure notice were not rectified and that the housekeeping is indeed a serious problem that affects the health and safety of others, or that it is damaging the property.

SOME PROOF THAT IS NECESSARY PRIOR TO TERMINATING THE RESIDENT FOR HOUSEKEEPING REASONS

 

1. Photos or video of the condition of the unit. The photos or video should show the condition of the place as of the time the cure notice was served AND as of the time the termination notice was served.

 

2. Employees or other residents (witnesses) of the apartment community who will testify in court about how they are affected by the poor housekeeping. Perhaps a neighbor has been infested with roaches from the resident’s apartment. Or, the noxious fumes from the pet waste are bothering a neighbor.

 

3. If available, a copy of an inspection report from code enforcement or Section 8. If the agencies have not done an inspection, do not request one.

Common Problems That Arise in These Cases Include:

1. The resident got the cure notice and cured some, but not all, of the problems. This means it may be best to serve another cure notice for the problems that persisted.

 

2. The place is a mess, but it is not a lease violation. A manager’s perception of what is sanitary and what is not may be very different than what is a genuine lease violation.

 

3. The manager is using “poor housekeeping” as a reason for eviction where the real problem is something else. If the housekeeping issue is a pre-text for some other motivation, the case will surely lose.

 

4. The resident has a disability that affects the person’s ability to maintain the apartment. In this situation, you may need to make a reasonable accommodation for the resident. One reasonable accommodation (there may be others) is to permit more than the seven days to cure the noncompliance.

If you request a notice from your attorney, be sure to include lots of detail about the condition of the apartment. It is NOT sufficient to merely allege “poor housekeeping” or “place is dirty”. Give us the low-down, dirty (pun intended) details so your attorney can draft a notice that paints a picture for a judge. The more detail, the better.

 

END OF TENANCY WALKTHROUGH INSPECTION

A common request by the vacating resident is that she accompany you during the move-out inspection. Sounds reasonable enough, but the practice of walking a unit with the resident upon move–out is fraught with problems.

Why is the Resident Making This Request?

There is a good chance that a previous manager of the resident took all or part of the resident’s security deposit in a prior tenancy, and the resident is now expecting that you will do the same. The resident is afraid that you may charge her for something for which she is not responsible, or damage which she did not do. This should be your first clue that the resident is suspect. The resident may be hiding something, and if he accompanies you on the walk-through, he may be successful. The resident may be intimidating, and he knows that you may not charge him for something due to the intimidation factor. Finally, the resident may just be an honest person who feels that it is best that she do the walk-through with you, so she can show you how nice everything was left. Be afraid. Be very afraid.

The Typical Accompanied Walk-Through Scenario

Here you are, walking through a home with the resident behind you. There is a hint of Fabreze in the air. You feel a bit uncomfortable and maybe even a little intimidated. Will you look carefully inside the oven? Will you inspect the bathroom? Open drawers? Smell the carpet? Most likely not. You smell some cigarette odor but really don’t want to mention it. The walls look yellow, but you are not sure if they were this color at move-in. You will not want to engage in any controversy or altercation with the resident, and even if you think there may be a charge for some damage, you avoid bringing the issue up. Probably you will want to get the inspection over with as soon as possible and will be asked the usual question, “When will we be receiving the security deposit back?” You tell the resident that everything looks fine, and that she will get her deposit back within a couple weeks. This is a huge mistake. She will hang on these words and not let you forget them.

Fast Forward One Week

Your maintenance person has headed over to the unit to do the usual cleaning, touch up and the like. Upon entering the hot unit, as the electric has been turned off, he immediately detects an odor of pet urine and smoke. Walking around the unit, the pet urine odor become stronger, and he kneels down in a corner and smells the carpet, only to come to the conclusion that it is cat urine. Standing up, he sees fleas jumping on his pant legs. This is interesting. The resident was not supposed to have any pets, and no cat was present during the walk-through inspection. Walking through the house, he lifts up a throw rug; under the rug is a large bleach stain on the carpet. The walls seem to have been touched up, and it is quite evident, as the paint is bubbling up in each spot where the new paint was applied. Your maintenance person heads out back and sees a huge oil stain on the floor of the driveway, and behind a newly planted bush in the patio area, he notices that the vinyl siding is warped from a “grill gone wild”. But wait. You told the resident everything looked fine and that she would be getting back her deposit.

The Problem

By initially telling the resident that everything looked fine, you created an expectation on the resident’s part that the security deposit would be returned. This will be used against you in the event that you make a claim on the deposit. Once the resident receives your claim, she will be sure to dispute the claim, and if you were to go to court, you would need to explain to the Judge why you said what you said, and why you made a claim contrary to those statements. Often there is undiscovered damage which becomes evident only later when the property is properly inspected at your leisure by you or your staff. Proper inspection is the key here, and no property can be properly inspected with the resident in tow.

Proper Procedure

You need to develop a firm policy and procedure on inspecting the premises upon move-out. This will mean that never will you inspect a property upon move- out with the resident present. Immediate inspection upon move-out, without the resident, is a must, but more importantly, a later inspection when the air conditioning may be off is in order, so previously masked odors can be detected. All throw rugs should be moved and inspections made of all the appliances, closets, garage, storage areas and every other area which may not be immediately apparent. The next time residents ask or demand that they be present with you on the move-out inspection, simply tell them that it is not your company policy to allow this, and if they are afraid you will treat them unfairly, they should take their own photographs of the premises.

 

EMPLOY

EE RESIDENTS 

Many employees of apartment communities live on-site and are provided an apartment as part of their compensation package. This apartment may be free of charge or at a reduced rental amount as long as the resident is employed by the apartment community. Thousands of employees are in this situation and are living on-site, usually under some form of employee rental agreement or addendum. However, the time comes when the employment of the resident may end, either voluntarily or involuntarily, fancy words for the employee quitting or getting fired. Sometimes it is an amicable breakup with the employee getting another job, while other times the employee is fired and you want him or her off the property as soon as possible, preferably yesterday! The mechanics of removing the ex-employee from the property all depend on the employee rental addendum and how you or your company deals with the situation. Mistakes are constantly being made, resulting in difficult evictions or delays in having the former employee leave the premises. In some cases the continued presence of the former employee on the property causes increased liability to the apartment owner or manager, and can seriously affect operations. The former employee may begin to act in a vindictive fashion, causing disturbances, badmouthing management, or otherwise interfering with business operations. Let’s face it: sometimes residents go “off the deep end”, and your former employee is no more or less likely to do this than any of your other residents.

 

Termination of Employment

 

This is handled in most companies by upper management according to the guidelines of their human resources department, and laws or rules covering this will not be covered in this short article. Your job will be to make sure that the former employee gets off of the property, and we highly recommend you immediately call your attorney for guidance from the very start.

 

The Employee Lease Addendum

 

For this discussion, we are going to assume your former employee signed an Employee Lease Addendum. If they did not, you have more significant problems. A typical Employee Lease Addendum will state what will happen if the resident quits or is fired. For us attorneys, the most important clause is the one that states how long the resident has to vacate the premises. We typically see timeframes between 3 days and 2 weeks as to when the resident must vacate.

 

The Call

 

Our office usually gets the call from the property manager about a week after the former employee was to vacate the property, desperately asking us to get the resident evicted as soon as possible. This is when we begin to ask some crucial questions, the answers to which will have an impact on how or if we are able to evict the resident.

 

1. Are there more than one resident’s on the lease, and did all of them sign the Employee Lease Addendum?

 

We often see that Bill and Jane both signed the lease, but only Bill, the maintenance tech, signed the Employee Lease addendum. This can pose a major problem, as really the Employee Lease Addendum only applies to Bill and not his wife Jane. Big mistake. ALWAYS make sure all the residents sign the Employee Lease Addendum, not just the employee. This mistake is made all the time and will completely complicate if not make an eviction impossible.

 

2. How much time does the former employee have to vacate and did you give them notice?

 

Notice you ask? What notice? You assume that since the Employee Lease Addendum states that the employee must vacate within 15 days, this is notice enough. Think about this. Your lease states that the resident is supposed to pay the rent, but you have to give them a Three Day Notice. To non-renew a resident, you need to give the resident a Notice of Non-Renewal. A resident who has unauthorized occupants needs to get a Seven Day Notice to Cure. Why are you not giving the former employee a notice to vacate? Because you don’t have one! Is it really necessary to give the former employee notice? Perhaps not, but it cuts down on any confusion as to the firing or quitting date, or exactly what date the resident must vacate. It is wise to use an Employee Lease Termination Addendum which clearly states the day the former employee must vacate.

 

The Former Employee Needs More Time

A common request by former employees who must vacate per the Employee Lease Addendum is that they need more time. They ask you and you say, “no”, they ask your regional manager who says “no”, and then they get high up in the corporate offices, and some big wig says “yes”, trying to avoid any kind of litigation. Now when does the former employee have to vacate? They have been given a verbal extension by someone in New York! If you are going to allow the former employee more time, make sure they sign an Agreement to vacate. Who are “they”?: the former employee and anyone else who is on the lease agreement, and hopefully on the Employee Lease Addendum

 

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.