EVICTIONS AND FLORIDA EVIDENCE LAW

Most property managers have a solid handle as to what their attorney will require before filing an eviction for nonpayment of rent. In that situation, property managers expect to fax over a Three Day Notice for Nonpayment of rent, the lease and sometimes the payment ledger. Assuming the Three Day Notice, the lease and the payment ledger present no issues; your attorney will file the case. After a while this routine becomes like clockwork for the property manager. Like all good things, this walk in paradise will come to an end, once the property manager attempts to file an eviction based upon a noncompliance of the lease terms by the resident other then for nonpayment of the rent. In this situation, a good attorney looking to protect the property manager will refuse to file an eviction based upon a Seven Day Notice of Termination of Lease unless all of the statutory requirements have been satisfied, and the attorney is certain that there is enough proof to win in court.  

Let Your Attorney Protect You

You may be wondering about who or what your attorney is protecting you from when your lawyer declines to file an eviction based upon a weak Seven Day Notice case. First and foremost, your attorney with be protecting you from yourself! That is right. A property manager can be his or her own worst enemy by impulsively filing an eviction in the heat of the moment. In those moments, the property manager is so focused on removing the bad resident that a shutdown occurs when the attorney advises that the case will likely not hold up in court. The seasoned attorney will stand up to the manager and respectfully warn that the manager could be on the hook for substantial legal fees if the resident contests the case and hires an attorney. Worse yet, you could be wasting valuable time, because the bad resident will still be residing in the unit, creating the same problems and making life very stressful. The solution? Let your attorney do his or her job in these kinds of eviction cases. Your attorney must be given proof of the noncompliance by the resident so that the judge in your eviction matter will rule in your favor. Florida law has some very clear guidelines as to what type of proof can be submitted to the judge during the eviction trial. In a nutshell, your proof is the means by which your lawyer can capture the attention of the judge to rule in your favor. The tricky part is turning your proof into evidence that is reviewed by the judge. If your proof is not considered evidence, then it is of absolutely no value to you. The purpose of this article is to provide property managers with a basic understanding of Florida Evidence law, so that they can successfully litigate their eviction case if and when a court hearing becomes necessary.

The Florida Evidence Code

The Florida Evidence Code was adopted by the Florida Legislature in 1976 and became effective in 1979. The evidentiary provisions are found in Florida Statutes Chapter 90. Many of these provisions have procedural components and therefore have been adopted by the Florida Supreme Court as rules of procedure. The Code in Sections 90.201 through 90.207 authorizes a court to treat something as fact without the need for further proof at trial; this is called judicial notice. The court can take judicial notice of a matter at anytime during your hearing. Usually these are rules of the Florida Supreme Court, acts of the Florida Legislature or Florida Ordinances. The Court can also take judicial notice of facts that are easily ascertainable, such as the fact that July 4, 2010 was a Sunday. Property managers will rarely if ever be lucky enough to have their key evidence judicially noticed at trial. The property manager who is dealing with a resident hosting loud parties will not have the evidence regarding the noise judicially noticed; such a noncompliance will have to be proven by testimony of witnesses or some other form of evidence.

Documentary Evidence

Todd and Lisa live in two separate second floor units at the Lakes of Transylvania apartment complex. Sam is their downstairs neighbor. Sam is often heard yelling while on his cell phone out in the common areas and playing loud music very late at night inside his apartment, along with excessive guest traffic in and out of his apartment. Todd and Lisa complained to the apartment manager, who correctly recommended that they call the police and obtain further proof in regard to Sam’s obnoxious conduct. Todd and Lisa also began playing private detective. Todd found an old tape recorder, and when Sam acted up again one night, Todd turned the machine on and recorded the loud music along with Sam yelling profanities. Meanwhile, Lisa snapped a bunch of pictures which showed at least 30 people near the front door of Sam’s apartment with some of those 30 people inside the unit.

Laying the Foundation

Fast forward to Sam’s eviction trial. In order for the tape recording and photographs to be admitted into evidence, your eviction attorney must lay a foundation through witnesses. All that fancy language means is that your eviction attorney will need to ask Todd and Lisa very specific questions prior to the judge allowing the evidence to be admitted. For example, Todd will be asked questions about how he physically recorded the tape and kept custody of the tape; he will be asked if he ever heard Sam’s voice in the past and how many times he has heard it. Then Todd will be asked if heard the recording which has been listed as an exhibit. The attorney would then ask Todd if he recognizes the voice, and finally Todd would be asked whose voice it actually was. Finally, the eviction attorney would request that the judge enter the tape recording into evidence. With regard to Lisa’s photographs, she would be asked if she was familiar with the photographs, how the photographs were developed, if and how she was familiar with the area contained in the photographs, and if the photographs accurately depict what Lisa saw on the date and time of the incident. One other key point to remember: if the resident that you are trying to evict attempts to offer impermissible evidence at trial, your eviction attorney needs to object at the hearing, or you will have waived your right to contest that evidence in any appeal. Suppose Todd or Lisa failed appear in court, like so many other resident witnesses who tell a property manager that they will attend court and testify against the resident that you are evicting. There would be hearsay implications if Todd or Lisa failed to attend the eviction hearing, which leads us to our next evidence issue.

WHAT IS HEARSAY?

The hearsay rule in Sections 90.801 through 90.806 of the Florida Statutes prohibit admission of oral or written out of court statements to prove the truth of the matter being asserted, but out of court statements may be admitted for a purpose other than proving the truth of the matter asserted if the statements are relevant to prove a material fact and are not outweighed by any prejudice. Some property managers assume that hearsay means that a person told you something and you are prevented from admitting that statement into evidence at a court hearing. That is not true if that witness is in court with you. The reason is simple. If the witness cannot testify at trial and submit to cross-examination by the opposing party, then the statement is inadmissible. Out of a principle of fairness, the law gives those being accused the right of cross-examination. In the above example, had Todd or Lisa failed to appear in court, the photographs or tape recording would have been inadmissible, since Sam would not have been able to cross-examine Todd or Lisa. This same principle applies to the property manager who takes pictures of a unit after the resident vacates for purpose of proving damages made to the property by the former resident. Take the pictures yourself if feasible, because a third party may not be associated with you three years later. You might not be able to locate that witness, and if you do, he still may not show up in court, even if subpoenaed.

HEARSAY MISCONCEPTIONS?

Perhaps the biggest myth regarding hearsay is that you can use a police report in court as proof without the police officer who signed the report being present. Make no mistake about this: police reports are not an exception to the “hearsay” rule in Florida. The same holds true for repair bills. A representative from the company that undertook the repair must appear in court to testify. The same holds true for written statements from residents. The property manager must understand that obtaining signed; notarized letters from your residents loaded with complaints against another resident will not make their way into evidence. Load those complaining residents into your van and take them to court, because they will be required to testify, or you can kiss your eviction goodbye…unless you were savvy enough to obtain a police report and subpoena the officer! Florida law permits some exceptions to the “hearsay” rule, which include statements for the purpose of medical diagnosis and treatment, statement of a child abuse victim 11 years of age or less, and business records made at or near the time of the event, by a person with knowledge, kept in the course of normal business activity, provided that it was a regular practice of the business to make such a record.

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