EVICTION MOTIONS YOUR ATTORNEY WILL FILE

Most property managers understand the eviction process in very general terms. They know that a Three Day Notice to Pay rent must be served upon the resident prior to filing a nonpayment eviction action. Likewise, virtually all property managers understand that the final stage of the eviction process involves the sheriff executing the writ of possession. Unfortunately, many property managers do not have a real clue as to what takes place during the time in between the time an eviction starts and is completed. Why is this “in between time” so important? If your eviction attorney navigates through this process skillfully, they not only help you prevail in court, they can shorten the eviction process, so that you can place somebody in a unit who is not living rent free. It is not enough for a property manager to grasp that there is important work to be performed by your eviction attorney in the period after an eviction action is started. A property manager should also have a solid grasp as to what goes on during this “in between period”.

Why, you ask? First, you will be better able manage your property, because the timing of the eviction process will not be a mystery to you. This knowledge will allow you to plan ahead and better organize and budget for your property accordingly. Your boss or owner and those you deal with at the corporate headquarters will also appreciate that you are able to explain to them in detailed terms the status of the eviction case against your residents. They will have comfort that their property manager is on top of things, and it will please them that you have made it a priority to remove the residents who are living “rent free”. Central to understanding the “in between” period of the eviction process is learning how motions are strategically used to advance the eviction effort.

The Motion for Default

Lou missed his February rent payment. You served him a proper Three Day Notice to Pay Rent which has expired. You have now asked your attorney to file an eviction action. The eviction is filed in court on Monday, February 8th. The Clerk of the Court mails Lou a copy of the eviction complaint and summons which Lou receives on Tuesday, February 9th. The process server delivers the eviction complaint and summons to Lou on Wednesday, February 10. In the meantime, Lou has decided not to respond to the eviction complaint and has tossed his copies in to the waste basket. Florida law requires that the resident respond to the eviction complaint within 5 business days after being served with the eviction complaint. Failure on the part of Lou to respond within the allotted time will subject Lou to a “Default”, which may be entered Clerk of the Court after the submission of the Manager’s Motion for Default. The word “default” sounds like a mysterious legal term to many. It is not! A default simply means that one has failed to perform an obligation. In the context of an eviction, the resident’s obligation is to respond to the Clerk of the Court within five business days after being served with the eviction complaint. If not, the resident will then be in default. In fact, on the eviction summons, the resident is instructed to send the Clerk of the Court reasons why they should not be evicted.

Now what? The answer is simple. Your attorney may file a Motion for Default on February 18^th (the sixth business day after service of process). With the exception of a few counties in Florida, the date the resident is sent a mailed copy of the eviction complaint from the Clerk of the Court is irrelevant. The key date for purposes of when the Motion for Default will be ripe is the date the resident was served with the eviction complaint and summons by the process server. In the case of Lou, the key date for timing purposes is February 10th; the date Lou was served with the eviction papers. On February 18th, five business days have passed without Lou responding to the Clerk of the Court. Now your attorney should file a Motion for Default with the following language: “Plaintiff moves for an entry of a Default by the Clerk against Defendant for failure to serve any paper on the undersigned or file any paper as required by law. I do hereby certify that no copy of the answer or other pleading of the Defendant in the above styled cause has been served upon the Plaintiff or his/her attorney, to the time of the filing of the above Motion For Default”. Once the Clerk of the Court enters the Default, the Judge will then sign the Final Judgment for Eviction, which will authorize the Clerk to issue the writ of possession to the Sheriff.

Motion for Default and Default Judgment

The resident has answered the eviction complaint. What does your eviction attorney do now? Section 83.60 (2) of the Florida Statutes answers that question.   Section 83.60 (2) contains the following: “In an action by the manager for possession of a dwelling unit, if the resident interposes any defense other than payment, the resident shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due. The clerk shall notify the resident of such requirement in the summons. Failure of the resident to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the resident's defenses other than payment, and the manager is entitled to an immediate default judgment for removal of the resident with a writ of possession to issue without further notice or hearing thereon. In the event a motion to determine rent is filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing residents or residents receiving rent subsidies shall be required to deposit only that portion of the full rent for which the resident is responsible pursuant to federal, state, or local program in which they are participating”.

The above statutory language requires conventional property residents to deposit into the Court Registry the rent alleged in the eviction complaint and all rent that becomes due in the future while the lawsuit is ongoing. According to Section 83.60 (2), if the resident files a motion to determine rent, they must attach sufficient documentation supporting the position that the rent owed as alleged in the complaint is wrong. Consider the following scenario: Arthur is served with his eviction papers on March 14th. The manager alleges that one full month of rent has not been paid. On March 18th Arthur files his answer with the court. Arthur deposits no money into the Court Registry and briefly writes that that he will receive his tax refund check soon and requests a court hearing. Arthur responded in time to avoid a default being entered against him by the Clerk of the Court. What course of action will your attorney take in this case? After five business days have elapsed from the date of service or process, your attorney will file with the Court a Motion for Default and Default Judgment. Your attorney in that motion should request that the Judge enter the default and enter a default final judgment for eviction. The motion may read in part like the following: Plaintiff moves for entry of a default and default judgment by the Court against Defendant for failure to deposit the rent amount alleged in the complaint into the Court Registry as required by Florida Statute 83.60(2)”. Likewise, in the above example, If Arthur had written that he is requesting a hearing to determine rent because he disagreed with the amount owed, but gave no reasons why he believed that to be true, then your attorney would add the following language to the above mentioned Motion for Default and Default Judgment: “Defendant has attached no documentation showing the rent amount alleged in the complaint to be in error, as required by Florida Statute 83.60(2)”. It is also important to note that some judges prefer that the eviction attorney file a Motion To Strike Defendant’s Answer and For Order Entering Default and Default Judgment instead of the motion for default and default judgment. Both motions have the same basic language, except that the Motion to Strike requests the Judge to “strike” the resident’s pleading because they are defective. If the above motions are granted, then the judge will sign the final judgment of eviction, authorizing the Clerk of the Court to issue the writ of possession to the Sheriff. These motions are vital, because you can often navigate through the eviction process without the need to attend mediation and/or court hearings, which saves you time and money!

Motion for Default and Default Judgment for Failure to Deposit the accrued rent into the Court Registry

Elvis, your resident, was served with an eviction complaint on July 28th because he has not paid the July rent. The next day Elvis files an answer to the eviction complaint with the Clerk of the Courts. He points out that the Three Day Notice to Pay rent was not prepared properly, and he deposits the July rent into the Court Registry. It is now August 10th, and rent is due on the first of each month according to the lease. No additional monies have been deposited by Elvis into the Court registry. At this point a seasoned eviction attorney will file a Motion for Default for Failure to Deposit the Accrued Rent into the Court Registry. While sounding technical, this motion is easy enough to understand. Florida Statute 83.60 (2) requires the residents who are defending their evictions to deposit not only the rent alleged in the complaint, but all future rents as it comes due while the lawsuit is pending.

Under this scenario, many judges will grant the eviction without a hearing (forcing Elvis to leave the building), since his failure to deposit accrued August rent into the Court Registry resulted in a WAIVER OF ALL DEFENSES other than payment, according to Section 83.60(2). Elvis’ defective Three day notice defense is not a defense of payment, and therefore, that defense will not be available for use by Elvis. The motion may contain language like this: “Plaintiff moves for entry of a default and default judgment by the Court against Defendant for failure to deposit the accrued August-2010 rent into the Court Registry as required by Florida Statute 83.60 (2).

A motion for disbursement of the Court Registry funds is also usually filed at the same time the motion for default is filed. Unless there is some real dispute as to whether the money deposited into the Court Registry is actually owing, the disbursement order will also often be granted without a hearing. However, a judge will sometimes grant the eviction without a hearing, but withhold ruling on disbursement of the Court Registry funds until a future hearing is held, particularly if the resident is complaining about alleged problems with the apartment or indicating other disputes.

 

EVICTION AVOIDANCE TECHNIQUES

 

For over 20 years now, we have been able to observe the habits and traits of property managers. Some of these habits and traits are good, and some are just plain bad. One interesting aspect has stood out above the rest and is readily apparent in our firm, since we file so many evictions for so many property managers. Some property managers seem to be able to decrease the number of evictions they have when they begin managing a particular property or portfolio of properties. How do they do it? This article will examine some of the habits or procedures of property managers who seem to have found the trick to reducing evictions. Reducing evictions is crucial to the bottom line. Not only are you avoiding the costs of an eviction, the headaches, the uncertainty and all that goes with evicting, you are also minimizing damage to the property. Residents who are evicted generally do not clean the unit upon move out, and worse yet, many maliciously damage or destroy the premises and take off with the appliances, resulting in thousands of dollars in expenses.

 

Communication is the Key

 

Many residents are already preparing to move from the premises, so when you file the eviction, it is actually a waste of money. Often the resident vacates immediately upon getting served with eviction papers. Is this because they got the papers? Often the answer is no; they were planning on moving anyway, but you did not know it. The result is that you wasted the money. Some residents need to be reminded to pay the rent. Funny how the resident all of a sudden pays right after you spoke with them. Some residents are simply late payers and pay on their own schedule. You file an eviction, and they come running into your office, but are now unable to get caught up because of the attorney’s fees and costs you incurred

 

1. Notice serving: A Three Day Notice or any other notice for that matter, unless the statute or your lease requires otherwise, should never be served by posting (taping) on the door unless the resident is not home. You are allowed by law to post a Three Day Notice “in the absence of the resident”. Common practice by many property managers is to “tiptoe, tape and take off”. The manager puts the tape on the notice ahead of time, creeps up to the door and lightly places the notice on the door, and then gets out of there before the residents’ unauthorized dog begins to bark. Why? Because the property manager does not want to confront the resident. The result is that the resident will look at the notice, throw it in the trash and maybe pay the rent or not. No communication has occurred, except for the property manager serving the notice, and even that service was legally improper because the manager failed to knock on the door. Knock on that door! If you feel uncomfortable doing it, have someone come with you, or delegate it to someone else.

 

2. Face to face communication: Speaking with the resident face to face is the best way to communicate and see what the resident’s intentions are. When serving the Three Day Notice or at any time thereafter, the manager should knock and try to engage the resident in conversation. The manager may find out information from the resident at that time which could avoid an eviction:

 

a. The resident may pay the rent. This is the best and desired result.

 

b. The resident may tell you they are going to pay tomorrow or give you a fixed date which may be soon after the expiration of the Three Day Notice. This will then affect your decision whether to hold off a couple days or go straight to eviction after the expiration of the Three Day Notice.
 

c. The resident may indicate he is moving. You look in; see a bunch of boxes and over the weekend the resident moves out. By making the decision to hold off, you have averted an eviction and saved some time and money.

 

3. Past Due Amount Workout Agreement: Upon being able to make the face to face communication happen, the resident may indicate that they do not have all the rent due but can pay you at a future date. Not wanting to lose the resident, you may decide to agree to the payment on a fixed date or date and in a particular fashion. It is a payment plan. By using the Past Due Amount Workout Agreement, this memorializes the agreement and prevents a situation in which the resident claims you gave a verbal extension.

 

4. The Agreement to Vacate: The resident may ask for a few more days and the property manager, hoping the resident will live by his word agrees. If the property manager agrees, the resident can sign an Agreement to Vacate giving a fixed vacating date. We have found that most residents who sign an Agreement to Vacate will indeed do as they say. Another eviction not filed!

 

5. Phone or email communications: The next best thing to face to face communication is to speak to the resident on the phone or email them. Generally regular mail is not the preferred method, as mail can take up to 5 days, and each day without rent is lost money. The problem is that many managers fail to have the up to date information necessary to contact the resident and find out his or her intentions. We highly recommend you read this article as soon as possible Importance of Updated Contact Information

 

6. The 24 Hour Notice: Many property managers give a final “24 hour Notice” to the resident after the Three day Notice has expired. This notice tells that that they have one last chance to pay the rent before their file is sent to the attorney for eviction. Payment demand notices that are given to the resident after the Three Day Notice can compromise the eviction, but that said, use your own judgment as to whether or not you are going to do this. While some judges have ruled that such a notice invalidates the prior Three Day Notice, it can be very effective! We cannot tell you to do this, but we know it is done all the time. If you do decide to send a final notice or 24 hour notice, if a dollar amount is referenced on the reminder notice, it should not conflict with the amount cited on the prior Three Day Notice.

 

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.