APPLICATION DEPOSITS

 

Managers and leasing teams invest their time and effort in guiding an applicant through the application process. They may even turn other applicants away or hold the rental for him. After a successful application process (completed application, credit check, and criminal background) the applicant informs you that he won’t be renting. He wants his application deposit back. Under what circumstances can you keep it?

 

Any Actual Damages?

 

At the outset please note we advise that the application deposit be returned unless the manager can show actual damages, that is a financial loss, such as holding the unit while turning away other qualified applicants. An apartment community with an inventory of similar apartments may have difficulty showing this type of financial loss.  

 

Penalties and Forfeitures are Disfavored.

 

Our analysis begins with the recognition that Florida law in general does not look favorably upon contract penalties or forfeitures. Penalties and forfeitures are not enforceable in numerous areas of Florida law, either by express statutory prohibition or by judicial interpretation relying on such concepts as unconscionable provisions.

 

The Documents.

 

With that caution in mind we turn to an examination of the application and any other documents relied upon for the right to retain the deposit. The wording both to avoid the forfeiture and to authorize forfeiture must be clear and unambiguous: the grace period, the time and method of the manager’s application acceptance, the time and method of the applicant’s cancellation, the amount of forfeiture, etc. The burden of proof will be on the manager. Not only will the lack of strict compliance, but also the inability to prove strict compliance, with the terms of the forfeiture be fatal. If the amount to be retained on the application form is left blank, or other sections of the application addressing deposit forfeiture are left blank, this is often a fatal error.

 

The Oral Contradiction.

 

Even a clearly written, unambiguous document can be contradicted by the oral misrepresentations of the manager’s representatives. The applicant will often state that the leasing staff assured him that his application deposit would be returned without mentioning any conditions. A good counter to this claim is a leasing checklist, checked-off and signed by the leasing agent, which includes the disclosure of the application deposit policy. A separate applicant signature line or initial space is often placed next to the forfeiture language for emphasis.

 

Is There An Agreement to Lease?

 

Has the applicant, who has not reviewed the leasing documents before signing the application, entered into any agreement to rent, regardless of a signed deposit forfeiture? The point of the transaction is the rental of a unit. A rental is not accomplished when the application is accepted, but only when the applicant signs the lease. An accepted applicant who in good faith rejects certain lease provisions or any other leasing document provisions (community rules and regulations) has never agreed to rent, but only agreed to enter into negotiations to rent. Rather it is the manager who by refusing to negotiate the lease terms is refusing to rent. The application deposit should be returned.

 

Is the Application Deposit a Security Deposit?

 

Is the application deposit a security deposit under the Chapter 83, The Florida Residential Landlord Tenant Act? Neither the statutes themselves nor the case law answers this question directly. We can postulate that at the application stage we don’t have a rental agreement yet. Without a rental agreement, we don’t have a landlord/tenant relationship. Without a landlord/tenant relationship, Chapter 83 doesn’t apply. Further, FS 83.43(7) defines a rental agreement as providing for the use and occupancy of premises. FS 83.49 addresses money deposited on a rental agreement. A good argument can be made that with no lease agreement, the deposit is not subject to the bank deposit and notice of claim requirements of FS 83.49.

 

The Risk of Litigation.

As you can see from this article the pitfalls in keeping an application deposit are many. For this reason we advise our clients that the application deposit should be returned unless the client can show actual monetary loss. The time, effort and expense to defend a small claims case will outweigh any income derived from tenuous application deposit forfeiture, not to mention the potential for a class action claim.

 

AMENITIES AND LIABILITY TO THE RESIDENT

Many apartment communities today have fitness centers, business centers, pools, gas barbeque grills, tennis courts and other amenities for their residents to enjoy. These amenities are often a great draw in attracting residents to a particular community. In most cases, the amenities, most of which are advertised in print, are available for the use of the resident, operable and in existence at the time of move-in. However, a problem arises when an amenity is not available to the resident for some reason. That wonderful amenity that you advertised becomes a nightmare.

The Amenity Failure

In the case of a pool, a leak may require major work to be done to rectify the problem. There have been many cases where the pool is emptied and the high ground water table has literally pushed the pool up out of the ground, causing a major repair necessity. A pool does not just pop back into the ground!! Fitness centers are often completely equipped with state of the art exercise bikes, treadmills and other mechanically and electrically operated devices. These devices fail in time and need expensive repair. Business centers for the resident’s use are often set up with a number of computers and are subject to viruses or power surges which completely disable the equipment. At some time, some amenity on the property shall fail, and the residents will rise up.

Repairs to the Amenity

Repairs of a particular amenity are often done quickly, and the resident experiences little to no inconvenience. In other cases, repairs take a significantly longer period of time, sometimes at great expense to the apartment community. Some owners who are under severe financial burdens right now are choosing to push off some repairs almost indefinitely. An owner who is considering selling may not wish to invest any further money, as the return on sale may not be there. There are times, as in the pool case, when a simple repair could result in a major multi-month project in which the pool is completely inoperable. Since most properties only have one pool, the problem is obvious.

The Resident’s Expectation

Florida law does not state that a resident has a right to a working pool, exercise bike or business center. This is all governed by contract. While the lease agreement may not specifically state anything about a pool, fitness center or business center, other than in the rules and regulations, these amenities are advertised to the prospective resident as being part of the “package”. The applicant who becomes the resident has a reasonable expectation that the amenities that are advertised or which he or she observes while on the property tour will be available for use throughout the tenancy. These expectations are by no means unreasonable. The question then arises as to whether the amenities advertised are in fact the “basis of the bargain”, or stated differently, did the resident decide to rent at this particular apartment community because of the existence of a certain amenity advertised or observed. It is extremely easy for the resident to make the case that the fitness center, pool or business center was indeed the “reason” why he or she chose the particular apartment community. A health conscious resident may have chosen your apartment community due to its state of the art fitness center. A resident in physical therapy may have been drawn to the community because of the pool. A person without a computer may have been sold on the business center. This creates a serious obligation on the part of the apartment community to make sure the amenity is in fact working at all times, or at least most times.

Amenity Failure Actions

Fortunately, most residents do not even use the pool, fitness center or business center, so a breakdown will not inconvenience most of the residents, but for the residents who do use them, you have a problem on your hands. Since Florida law does not address amenities or compensation, a resident may or may not be entitled to a credit in the event of an amenity failure; the management or owners must come up with something to keep the resident from taking the matter further and potentially suing in a court of law. The first step will be to rectify the problem immediately, if possible, but unfortunately, this may not always be a viable solution. Each situation needs to be dealt with on a case by case basis, but it is crucial to show that the manager is taking reasonable steps to mitigate the problem and make the resident whole again.

Pool Solutions

In the case of an extended pool problem, the apartment community may enter into an agreement with a neighboring apartment community for the temporary use of its pool for some compensation by the apartment community. Residents may be given vouchers to use a community pool, if one is in fact available, or temporary membership to a local gym may be an appropriate option. Finding a contractor and paying more money to get the job done quicker could prevent lawsuits.

Fitness Center Solutions

In the case of a minor fitness center issue, such as an inoperable piece of equipment, we recommend that a replacement piece of equipment is rented immediately until the repair can be effectuated. Many companies are in the business of renting commercial grade exercise equipment. In the case of a serious fitness center problem, such as when the fitness center is completely unusable by the resident, an agreement could be worked up with a nearby gym to provide low cost temporary memberships to residents who may wish to use the gym. Many gyms will jump on this opportunity to get people in the door, in the hopes that they will join permanently in the future.

Business Centers

Most business center problems can be rectified with the expenditure of a relatively small sum of money. If the issue is simply internet access by a resident who already has a computer, a basic internet account can be purchased for the resident to be used in his or her unit, or at a bare minimum, at least one PC should be set up with internet access and a basic printer until further repairs can be made.

Potential Legal Ramifications

A resident who is not receiving all that was bargained for in a deal can sue for breach of contract, and in the event certain things were advertised, false advertising. The resident can also attempt to withhold rent or even break the lease agreement and walk. A property manager may be tempted to compensate one resident for her inconvenience, but this could unleash a floodgate of residents asking for the same compensation. This is when prompt contact with your attorney can potentially avoid a major blow-up on the property. In the worst case scenario, a resident can hire an attorney who will institute a class action lawsuit against the property. While this is rare, class actions are not uncommon in consumer situations, so YOU HAVE BEEN WARNED!

The Amenities Addendum Solution

A simple addendum signed by all residents can significantly minimize the manager’s risk in the event of an amenity loss or malfunction. We cannot forget that the main thing that a resident is renting is an APARTMENT. The amenities are indeed a bonus to the deal, but part and parcel to the deal are the resident’s expectations and your responsibilities. By using the addendum below, you MAY be able to significantly decrease your risk of problems in the event of an amenity problem. Remember, nothing is guaranteed. Please read it carefully.

AMENITIES AND CONSTRUCTION ADDENDUM

It is agreed and understood by all Residents(s) that all amenities on the premises IF ANY EXIST NOW AND IN THE FUTURE including but not limited to balconies, patio(s), pool(s), hot tub(s), fitness center(s), gas grill(s), business center(s), tennis court(s), activities center(s), clubhouse(s), playground(s), playground equipment(s) or any other as specified herein for Resident(s)’ use may be altered, may become inoperable, unusable or out of service for the purposes of repairs, damage by storms or acts of God or man, rendered unusable or removed at any time without notice and without consent of the Resident(s). Resident(s) agree to hold owners, their agents and assigns, harmless for any liability arising from the alteration, removal or failure to be able to use any and all amenities. It is understood by all parties that this agreement has been entered into with good consideration and that it has been read in its entirety.

Amenities for the purpose of this addendum may also include and are not limited to:

__________________________________________________

__________________________________________________

Resident(s) understand that repairs or upgrades to the premises may possibly be made and agree to hold the owners, management, agents, employees and assigns harmless for the absence of or the delay in the availability of any amenities which may have been advertised, appear on any advertising materials, existed at the time of move-in or represented to by any of the staff. Resident(s) agree to hold the owners, management, agents, employees and assigns harmless for any inconveniences, including but not limited to noise, construction traffic, dust, construction equipment, temporary utility outages, etc., and agree that they cannot break their lease, withhold rent or receive a rent abatement because of any construction problem and/or the lack of amenities unless otherwise agreed to in writing.

SIGNATURE AND DATE AREA FOR MANAGEMENT AND RESIDENTS

 

 

 

AGREEMENT TO VACATE ADVANTAGES PREPARATION AND USE

The Background

The most common cause for resident removal is nonpayment of rent. In most cases the facts are limited and not in dispute. Did the resident pay the rent? If not, a simple eviction usually occurs, with the manager prevailing in most cases. Unfortunately there are many other non-rent related noncompliances which result in the manager having a strong desire to have the resident removed from the property. The problem is that the manager’s desire to remove the resident is often far greater than the manager’s case or evidence against the resident.

The Manager’s options – In the event of a noncomplying resident, the manager is faced with a number of options: give the proper notices, gather evidence, prove the noncompliances, file an eviction action, and possibly have to prove the case in court. Another option would be to non-renew the resident if the lease was near completion, and if the resident failed to vacate, simply file an eviction based on the failure to vacate. Finally, there is the option of coming to an agreement with the resident to vacate the premises on a fixed date.

Forced Resident Removal for Noncompliances

In order to legally institute eviction procedures against a resident for noncompliances, certain prerequisites must be met. Depending on the noncompliance, either a Seven Day Notice of Noncompliance with Opportunity to Cure, a Seven Day Notice of Noncompliance Notice of Termination, or both, must be given to the resident. These actions entail informing the resident of the noncompliance, giving the resident time to cure the problem in most cases, if the offense is of a curable nature, and then terminating the resident if the offense continues or occurs again. In the event of a serious non-curable type of noncompliance, the resident is served with a Seven Day Notice of Termination, and an eviction begins right after this notice expires. Eviction cannot even begin until the notices have expired, and in the meantime, you have lost good residents due to your noncomplying resident. Once you file the eviction, you then have to win! This is not always guaranteed. While most managers have served the Notice of Noncompliance with Opportunity to Cure, very few managers have ever filed an eviction for noncompliance, as most residents either cure or vacate prior to the eviction. Far fewer managers have ever filed an eviction and ended up having to prove the noncompliance in court, as many of the residents vacate shortly after getting served with eviction paperwork. The manager who files an eviction for a non-rent related noncompliance and has the case contested is in for a real ride. It is amazing how difficult noncompliances are to prove in court, when your witnesses do not show up, or your solid proof melts away in front of a judge who was so tough on non-paying residents, but now is so sympathetic to the resident before them on a noncompliance case.

Can you really prove to the judge that there is an unauthorized occupant living in the unit? Did the resident remove the unauthorized pet right after or before you filed the eviction? Was it a housekeeping issue that the judge just does not feel so strongly about? Did all your constantly complaining residents who hounded you every Monday morning about the noise from parties suddenly decide not to show up in court? Is the allegation that the strange man who exposed himself by the pool now pretty difficult to prove? Were you surprised that your attorney informed you that affidavits signed by three residents are not admissible in court? Were you shocked when the police officer that responded to two noise complaints decided not to show up in court? Did you think the resident would get an attorney to fight the case and demand a jury trial? The bottom line is anything can happen in a noncompliance eviction, and they should be avoided at all costs.

The “Agreement to Vacate” Alternative – Probably the best possible way to have a resident vacate is to have that resident do so voluntarily. The resident and the manager simply sign an agreement whereby the tenancy is terminated, and the resident agrees to vacate on a fixed date. The “Agreement to Vacate” is this wonderful form, and managers who regularly use the form will attest to the fact that their evictions are reduced, their stress is reduced, and most residents who sign such an agreement vacate on the date they have said that they will vacate.

When is an “Agreement to Vacate” appropriate? – In almost any situation when a noncompliance is occurring or has occurred, including nonpayment of rent, if the manager and resident can agree to a fixed vacating date and memorialize this in writing, the Agreement to Vacate is appropriate: suspected drug use, excessive traffic, domestic disputes, unauthorized occupants, unauthorized pets, noise disturbances, the list goes on. Get the resident to agree to vacate, and you have probably won the battle.

How do you get the Resident to agree? – This takes some skill and experience. Basically the manager needs to approach the resident, explain how things just are not working out, possibly threaten eviction, but give the resident an easy way out. The easy way out is for the resident and the manager to agree to terminate the relationship without the need for further attorney or court intervention. How much time you give the resident to vacate will depend upon the severity of the problem, if the resident has paid rent, or any other factor which will assist you and the resident in just coming to an agreement.

Will the resident always sign an “Agreement to Vacate”? - Absolutely not, but more often than not. Let’s face it, just as the manager is not completely sure that they will win an eviction, neither is the resident. Many residents do not want to go near the courthouse for obvious reasons and will welcome an opportunity to vacate voluntarily. Some of the most belligerent residents, who will scream at you telling you how it will take you six months to evict them, will after some thought sign an Agreement to Vacate. On the sample form below, there is a date that the resident must sign the form by in order for it to be valid. This is used when you want to leave the Agreement to Vacate with the resident, so they can ponder their options, or you feel it would be better for you not to have a face-to-face confrontation with the resident. Once the resident signs the agreement and it is returned to you, you will then sign the agreement and this will create a binding contract. An Agreement to Vacate is no good unless you get all the residents to sign.

What if the resident signs the “Agreement to Vacate” and fails to vacate? – Fortunately most residents who sign the Agreement to Vacate actually leave when they say they are going to leave. If the resident fails to leave, the manager can then immediately begin an eviction action with no further notice, and the manager simply has to prove that the resident has failed to vacate rather than try to prove the underlying reasons why the manager wants the resident gone.

What about the money the resident may owe to the manager? Our sample Agreement to Vacate states that the agreement does not address money issues unless otherwise noted in the agreement. In the space provided, the parties may agree that the security deposit is forfeited, possibly will be returned if there is no damage, or any other financial arrangements can be dealt with directly in the form.

Advantages of the “Agreement to Vacate” – The main advantage is that it is an “agreement”. Emotions do not run as high, eviction may not be necessary, money may be saved, and there is a much higher chance that the resident will not do any intentional damage, as so often occurs in an angry eviction where your success is by no means guaranteed. The next time you have a noncompliance where you “just want them to go”, remember that they just might want to go as well. The Agreement to Vacate is a wonderful form. Help the resident out the door.

SAMPLE AGREEMENT TO VACATE:

AGREEMENT TO VACATE

I/WE ________________________________ hereby agree to vacate the premises which we now are renting no later than _______/______/______. In exchange for vacating at this time, Management agrees to not file any legal action for eviction prior to this time if I/WE continue to comply with the terms of our lease and Florida Law.

I/WE agree that any abandoned property that is left behind after the above date may be disposed of by Management without notice and I/WE agree to hold Management, the owners of the premises and any agents or employees harmless for such abandoned property.

I/WE agree that this AGREEMENT TO VACATE must be signed by us AND returned to Management by hand delivery to the property manager/management or assistant manager no later than 5:00 PM on ______/_____/_____ or Management may begin legal procedures at any time.

I/WE agree that this document and our vacating shall have no effect upon any financial obligations, forfeitures, security deposit forfeitures, early termination clauses etc under the lease or Florida law unless otherwise agreed to in writing by Management.

______________________________   RESIDENT

_______________________________ RESIDENT

_______________________________ RESIDENT

Additional agreements by Management if Residents vacate per this agreement: ____________________________________________________

_______________________________________________________

_______________________________________________________

_______________________________________________________

__________________________ ______/______/______ MANAGEMENT SIGNATURE

 

ACCIDENTALLY AUTHORIZING THE UNAUTHORIZED PET

Much to the chagrin of many a manager, the unauthorized pet that she wants removed has somehow become authorized. This is particularly distressing when the unauthorized pet is an aggressive pit bull or a 100 pound Labrador. How did this happen? Note that this article does not apply to service animals, as they are statutorily authorized by the various fair housing laws, regardless of any lease provisions to the contrary.

The Correct Procedure

As everyone knows, the correct procedure for an unauthorized pet is to send a Seven Day Notice of Noncompliance with Opportunity to Cure. Seven days after service of the notice, you gather the evidence that will be needed to support a Seven Day Notice of Noncompliance Notice of Termination and then serve it. A good practice is to offer an agreement to vacate to the resident responding to the notice. The agreement serves the best interests of both the manager and resident. The manager avoids the expense of filing an eviction and the prohibition against accepting payment from the resident while the Seven Day Notice of Noncompliance Notice of Termination is outstanding. The resident avoids the stigma of an eviction. Whether the resident is released from any further financial obligations under the lease (rent until relet) is a separate matter of negotiation. If the manager does not want to force the issue of lease termination, it is legally permissible to serve another Seven Day Notice of Noncompliance with Opportunity to Cure to give the resident additional time to dispose of or apply for authorization of the pet.

Waiver and Estoppel

Every manager should be mindful of two legal concepts: “waiver” and “estoppel”. Waiver is a legal concept under which a party is found to have foregone his legal right by his actions. The lease gives the manager the right to demand that an unauthorized pet be removed. However, his actions are so inconsistent with enforcing that legal right that he is deemed to have “waived” that right. The most obvious example of a waiver is renewing a lease when he knows that the resident has an unauthorized pet.

Estoppel is a legal principle holding that if a party makes a legal representation to another party and the other party relies on that representation, the first party is prohibited from taking an action contrary to that representation to the detriment of the other party. He is “estopped” from taking legal action that takes unfair advantage of the other party’s trust in his representation. For example, the lease prohibits pets, but the manager’s agent indicates that the provision is not enforced as long as the pet causes no problems. The resident with the pet relies on that representation and signs the lease. The manager cannot enforce the no pet policy against that resident, because the resident relied upon the agent’s statement in signing the lease. It does not matter that at the time the agent made the statement it was the truth and that the manager has recently decided to enforce the no pet policy.

A Continuing Breach?

Florida Statutes provide that, if the manager has knowledge of the resident’s breach of the lease and accepts payment from the resident, the manager waives that breach. (“Acceptance of money is forgiveness”). This prevents managers from dredging up old lease violations to suit their needs.

The unauthorized pet is thought to be a continuing lease violation, because the unauthorized pet breach continues after payment. A county court judge may not agree. His opinion may be that it was the act of obtaining the unauthorized pet that was the lease breach. Acceptance of payment without objection from the manager, after the manager has knowledge of that lease breach, is a statutory waiver of that breach forever. The Seven Day Notice of Noncompliance with Opportunity to Cure helps to refute this argument, since it indicates the manager’s objection.

When Does the Manager Know?

The manager’s knowledge of the unauthorized pet is the trigger which subjects him to the resident defenses outlined above. The manager is imputed to have the knowledge of all of his past and present agents. This means that even the best, new manager is stuck with whatever the old manager and staff knew.

This concept makes it advisable for a new manager to examine all the resident files for evidence that there are known unauthorized pets. The most obvious evidence will probably be complaints from other resident about unauthorized pets. The manager should interview each staff member for any known lease violations, including unauthorized pets. Perhaps a maintenance person knows of a harmless cat owned by a nice resident and in a mistaken act of kindness has said nothing.

Pet Addendum

Having found yourself with a deemed authorized pet, what about demanding that the resident sign a pet addendum and pay a pet fee, pet deposit or pet rent? It can be argued that the manager has also waived these. I believe the better argument is that the manager has waived objecting to the pet but has not waived that the resident’s compliance with the process of authorizing the pet.

Demand can be made to fill out a pet application and sign a pet addendum. The resident is subject to the standard rules and regulations regarding pets. Likewise, I think the resident has to pay the standard pet fee (the fee for the privilege of having a pet on premises) and the standard pet deposit or increase in the security deposit, whichever is the manager’s policy, and the standard monthly pet rent prospectively. It is unclear if past pet rent would be collectible. The failure to charge it at the time the manager knew of the pet probably resulted in its waiver.

A word of caution about implementing your standard pet procedures: this is just my opinion, and many county court judges may feel that the pet fee, deposit and/or rent have been waived completely. Lastly, my opinion changes if a renewal is involved and the pet is known at the time of renewal. Renewing a resident with a known pet operates as a waiver of all pet associated fees, deposits and rent. The manager may not even be able to demand that the resident sign the pet addendum, which was ignored at the time of lease renewal.

I hope this article makes clear that a delay in addressing the unauthorized pet may in effect authorize that pet. It may even operate to waive the ability to collect a pet fee, pet deposit and pet rent.

 

ACCESS BY THE MANAGER

This article will not address the issues of the manager’s response to the denial of access or obtaining access when denied. 

To state the obvious, the manager, as well as anyone else, can enter the rental at any time with the consent of the resident. This is based on the well known legal principle that someone with the lawful right of possession can invite another onto the property. Florida Statutes confirm the manager’s immediate right of access when the resident so consents.

Lease Provisions

The Landlord/Tenant Act provides for the manager’s right of access to the rental. The manager can expand upon that statutory right of access by well drafted lease provisions. If the lease provision is unreasonable, it runs the risk of being set aside as contrary to the statute or unconscionable. Enumerating specific reasons for entry has the advantage of avoiding arguments on entry for those purposes, but it has the disadvantage of generating arguments when an unlisted purpose arises. If the manager foresees the need to enter for a particular purpose, it is a good practice to list that reason specifically in the lease, without limiting the general right to enter. Some enumerated reasons for access are: estimating repair or refurbishing costs, doing repairs, pest control, preventive maintenance, such as filter changes or testing or replacing smoke-detector batteries, conducting inspections, preventing waste of utilities, installing, reconnecting, or removing security devices, showing the residence to prospective purchasers or residents, and removing hazardous materials.

Consent of the Resident

Florida Statutes 83.53 provides that the manager may enter the rental “with the consent of the resident” for the purposes “to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, residents, workers, or contractors.” The most common method of gaining access is obtaining consent of the resident, whether it be for inspections, services, repairs, or showings. In response to a phone call or email, the resident approves the entry into the rental. If the resident’s approval is over the phone, the manager should make a note in the resident’s file of the authorization, including time, date and initials of the staff member who spoke to the resident. In cases when a resident disputes his oral approval, a manager should secure future approvals in writing or follow the statutory notice provisions.

The statute is silent on whether the resident’s consent can be implied. Managers, or their repair personnel or vendors, have been known to knock, and when no one answers, enter without any prior notice to the resident. The basis for this access is the “implied” consent of the resident allowing entry in response to the resident’s request for repair, or the lease obligation to provide periodic service or maintenance. A manager’s reliance on implied consent may be more reasonable when it is in response to a request for maintenance or repair. A manager’s reliance on implied consent may be unreasonable when service or maintenance is conducted that is infrequent and likely unexpected by the resident, such as unannounced service of the smoke alarms or air conditioner. In the middle ground are expected services like pest control; a better argument can be made that implied consent is given for those services which occur on a predictable schedule.

Managers should include a provision in their lease confirming that such access is deemed to be with the consent of the resident, unless the resident indicates otherwise in writing to the manager. Even then, managers rely on implied consent at their own risk. Since the statute doesn’t explicitly provide for implied consent, and the common definition of consent would be a verbal or written authorization from the resident, a judge may not be inclined to expand the meaning of consent.

Reasonable Notice

FS 83.53 provides that the manager may enter the rental “upon reasonable notice to the resident and at a reasonable time for the purpose of repair of the premises.” Note that this is access for repair only. Reasonable notice for repair purposes is “notice given at least 12 hours prior to the entry”. Reasonable time for repair is “between the hours of 7:30 a.m. and 8:00 p.m.” Outside of consent, the most common method to gain access for repair is by posting on the door a notice to enter the next day. Although the statute provides that 12 hours is reasonable notice, the 12 hour reasonable time window for access makes same day notice and access totally impractical for non-emergency repairs.

Because the statute provides for a 12-hour notice and 7:30-8:00 time for repairs, these have become the safe harbor as reasonable notice and time for all notices and entries. If the entry is for something that a reasonable person (read here “a judge”) would think needs more notice, then more notice should be given. While a day’s notice may be sufficient for repair of the sink faucet drip, more notice would be reasonable for carpet replacement, when the resident would be required to clear a room or rooms of everything but furniture. Managers are reminded that the preferred method of entry in all situations is a mutually satisfactory time and date with the resident.

Emergency and Protection or Preservation

Florida Statutes 83.53 provides that the manager may enter the rental “at any time for the protection or preservation of the premises.” Additionally, the statute provides that the manager may enter the rental premises without notice “in case of emergency.” The fact that the statute provides separately for access in an emergency and for access to protect and preserve means that they are not always the same thing.

The common understanding of “emergency” is a set of circumstances demanding immediate attention, but there is clearly a subjective element as to whether an emergency exists. In most instances the need to protect or preserve will constitute an emergency. However, if the manager finds herself in a situation in which the resident argues that it was not an “emergency”, and that the manager unlawfully entered, the manager may be able to rely on the broader “protect or preserve” justification. Consider the situation in which the manager can hear a dog howling in the apartment, and the neighbors are upset with good reason. The howling has been going on since the previous evening. The dog’s owner hasn’t been seen, and the manager has been unable to reach the resident. Posting a 24-hour notice to enter could mean another night and day of howling. There may be a serious problem in the apartment, causing the incessant howling. At the very least, the dog hasn’t been out of the apartment to relieve itself. The manager will have a good argument that the situation required her to give entry to the police or animal control to protect and preserve, regardless of whether a true emergency existed.

The manager should not abuse the right to enter by claiming an emergency or the need to protect or preserve. Some sense of urgency should exist before immediate entry is obtained under the justification of protecting and preserving the premises, such as dealing with rotting food left in a refrigerator with no power, or feces left on the flooring. The manager should have a credible belief that a serious and immediate danger to the health or safety of someone exists, or that a real potential for significant damage or destruction to property exists. The danger can be to other residents, guests, the manager’s personnel, vendors, the general public or even the resident himself, or the property of any of them. The manager should remember that his actions may be reviewed by a judge, who can differentiate between good faith access and sham excuses to enter an uncooperative resident’s home. The appropriate response to a denial of access is a Seven Day Notice of Noncompliance with Opportunity to Cure, not a contrived emergency.

Unwarranted Entry

An unwarranted entry into a rental by the manager, his staff or vendors can have serious repercussions and should not be taken lightly. Should the resident appear, the entering individual can find himself being interviewed by the police based on the resident’s claim of trespass, theft or worse. Should the resident be home, the risk of violence is real in a state where shooting someone in the belief that they are entering your home without authorization happens. The resident can claim a breach of the lease and seek termination of the lease and/or damages. When a manager needs entry and is unsure of the guidelines, he should call his attorney

ACCEPTING RENT AFTER A SEVEN DAY NOTICE HAS BEEN SERVED

 

The most common lease noncompliance is of course nonpayment of rent.

 

Most managers are quite familiar with this problem and know to serve a Three Day Notice in accordance with the law.

 

If the rent is not paid within the three day time period excluding Saturdays, Sundays and legal holidays, an eviction can be filed, and the resident most likely will be evicted.

 

Life though is just not that simple.

 

Many residents engage in other non-rent noncompliances, such as having the unauthorized occupant,

unauthorized pet,

 excessive noise disturbances or simply having a grill on the balcony which violates the fire code or infuriates the condo association

 

There are many noncompliances that the resident will engage in necessitating the manager to serve the Seven Day Notice to Cure.

 

This notice gives the resident seven stariaght days including sat sun and legal holidays days to either start doing something he is supposed to do, or stop doing something he is not supposed to be doing,

or else the manager may have a right to terminate the tenancy and begin an eviction if the resident fails to vacate.

 

The situation becomes complicated when the resident is out of compliance with a lease provision unrelated to rent AND rent becomes due in the meantime.

 

Timing of the notices and the actions of the manager can determine whether or not the notices will remain valid and support an eviction.

 

 

Let’s look at what we will call  the Continuing Noncompliance

 

Examples of noncompliances that would be considered “continuing in nature” include an unauthorized occupant or unauthorized pet.

 

Here we have knowledge that the resident is in noncompliance, and the resident is served a Seven Day Notice to Cure.

 

Let us assume now the resident is served this notice on the 27th of May and on June 1, rent becomes due.

 

The manager goes out to the property on June 5th, presumably to serve a Three Day Notice, as no rent has been received for June.

 

She sees the unauthorized occupant’s vehicle, serves the Three Day Notice and leaves.

 

The resident then comes into the manager’s office and hands the manager the rent check.

 

The manager takes the check and deposits the money.

 

Five days later, which is 13 days after the manager has served the Seven Day Notice to Cure for the unauthorized occupant, the manager again sees the occupant’s truck in the driveway.

 

It is clear that the resident has not cured the noncompliance.

 

Can the manager terminate the tenancy?

 

Quite possibly not. Florida law provides that if rent is accepted with knowledge of a noncompliance, the right to terminate the tenancy is waived, but not for any subsequent or continuing noncompliance.

 

Under the fact pattern just discussed , some judges will interpret the statute to mean that the manager has waived its right to terminate until July.

 

Some judges may also rule that a permanent waiver has occurred .

 

Should a Manager Accept Rent When There is a Continuing Noncompliance?

 

From the preceding example, it appears clear that the manager should NOT accept rent or serve any type of demand for rent, i.e., the Three Day Notice, if a Seven Day Notice to Cure has already been served and the noncompliance has not been remedied.

 

Noncompliances Which Are Not of a Continuing Nature

 

Unlike the unauthorized pet or occupant situation that is most likely a continuing noncompliance, the manager will encounter situations in which the resident is in noncompliance and then cures the noncompliance, only to go into noncompliance at a later time.

 

Examples might include a gas grill on the balcony or the resident who sporadically plays very loud music. The Fire Marshall may prohibit gas grills, or it may be in violation of the lease or condominium rules and regulations.

 

The manager serves the resident with a Seven Day Notice of Noncompliance with Opportunity to Cure, and the resident removes the grill from the balcony, hopefully not into the unit where it can be a fire hazard. Rent becomes due, a Three Day Notice is served, and the manager accepts rent. Two weeks later, the grill reappears.

 

Since the noncompliance was cured at the time the Three Day notice was served and rent accepted, the manager’s acceptance of rent should NOT jeopardize the ability to terminate the tenancy due to the reappearing grill.

 

Is a Noncompliance Sporadic or Continuing?

 

Sometimes we hear managers say that they thought the resident had cured the noncompliance because the resident had received the notice.

 

Did the manager actually check to see if it was cured, or did the manager just assume it was cured?

Did the manager make sure the grill was removed from the balcony? Once a Seven Day Notice of Noncompliance is served, it is incumbent on the manager to investigate to see if the problem was solved before serving the Three Day Notice.

 

If not, it is possible what was assumed to be a sporadic or easily cured noncompliance was not cured.

 

The Tenancy Has Been Terminated By a Seven Day Notice to Terminate

 

If the resident fails to cure a noncompliance, the manager should contact his attorney and seek guidance on whether the tenancy can in fact be terminated.

 

If so, and at last resort, the resident is served a Seven Day Notice of Termination.

 

This is a very powerful notice boldly proclaiming that tenancy has been terminated. A Seven Day Notice to Cure is a warning, while a Seven Day Notice to Terminate says “get out within 7 days”.

 

 But wait. Rent is now due, and the manager needs the money.

 

 The resident drops off the rent check and the owner who desperately needs the money deposits the check.

 

Yes. You are correct. The Seven Day Notice of Termination is now null and void. The owner now cannot terminate the tenancy because he has accepted the rent.

 

Conclusion

Your best bet is always to have your attorney walk you through the Seven Day Notice procedure and guide you along the way.

 

Always remember that if your have served a Seven Day Notice to Cure or a Seven Day Notice to Terminate, you may or may not be able to accept rent.

 

The next time the situation arises, just remember the slogan, “you cannot have your cake and eat it to”, when you get the urge to accept rent after a seven Day Notice has been served.

 

If you have an office with employees, allow residents to direct deposit or pay by credit card or online, be sure you have a mechanism in place to prevent a rent check from being inadvertently accepted from the resident in noncompliance.

 

ABANDONMENT OF THE PREMISES

There are three ways a manager obtains possession of a rental unit: surrender, abandonment, or eviction. Surrender and eviction with a writ of possession are covered in other articles. This article deals with some aspects of abandonment.

The manager often finds himself confronted by an empty unit with all, some or none of the resident’s personal property remaining. The manager may have had varying degrees of contact with the resident about his vacating. We will assume that the manager cannot validly claim that the resident has surrendered the property. The choice left is to file for eviction in order to obtain a writ of possession and move the resident’s remaining belongings to the property line OR to consider the rental unit abandoned and dispose of the remaining personal property as the manager sees fit.

The Conclusion

As you read this article, bear in mind the following conclusion. The most important consideration in the manager’s decision to rely on abandonment or file an eviction will usually be the value of the resident’s remaining property. The value of the property should be examined at the outset. A good rule of thumb is this: if the total value of the property is $500.00 or more in the manager’s good faith estimation, then the manager is advised to file eviction and obtain a writ of possession. If the total value of the property is worth less than $500.00, the manager can continue with his examination of the facts to ascertain whether the rental unit has been abandoned.

Special Circumstances

Special circumstances may arise where the lease in question does not have a proper abandoned property clause or there is no lease. If the total value of the property is $500.00 or more in the manager’s good faith estimation, then obtaining a writ of possession becomes an imperative. In these special circumstances, if the total value of the property is less than $500.00 and the manager strongly believes abandonment of the rental unit has occurred, the manager will need to follow abandoned property procedures, including sending an abandoned property letter, as described in Florida Statute 715.105.

The Statute

Florida Statute 83.59(3)(c) sets forth how abandonment of the rental unit is determined: (c) When the resident has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the resident has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the resident has notified the manager, in writing, of an intended absence; or Under Florida law, there are two ways abandonment can be established: (1) the manager has actual knowledge of abandonment, or (2) the manager can meet all three parts of the following test to create a presumption of abandonment: (a) the rent is late, (b) the resident did not inform the manager of an intended absence, and (c) the resident is absent form the premises for at least 15 straight days. (Since almost universally the time under a lease for the periodic rental payment is monthly, we shall speak of 15 days as the “period of time equal to one-half the time for periodic rental payments”. The same is true for month-to-month tenancies.)

The problem with the first standard, actual knowledge of abandonment is that the law does not define this phrase. There at least two major problems with the second standard, presumption of abandonment. First, it can be very difficult to establish 15 straight days of no activity in the absence of around the clock camera surveillance. Second, even if you can prove all three elements of the test, the presumption can be overcome in court.

Unfortunately, the Florida courts are not very helpful in clarifying the presumption, its elements or its application. Court decisions are based on the particular facts of each case, with similar cases being decided differently based on only slight changes in the facts. Since the manager has the writ of possession as the available statutory remedy to remove the resident’s personal property with complete immunity, the courts are inclined to give the benefit of the doubt to the residents in contested abandonment cases.

The Penalty

The penalty for prematurely locking a resident out is the resident’s actual damages with the minimum damages being an amount equal to three months’ rent. An additional three-month rent penalty applies if the manager prematurely disposes of the resident’s personal property, even if the personal property involved is apparently of little value. In addition to his actual or the statutory minimum damages, which ever is greater, the resident is entitled to his court costs and attorney’s fees. Finally, the manager may face a claim for civil theft and possibly criminal charges. The downside is so overwhelming that avoiding the cost of a mistake is well worth the writ of possession, if the manager is ever in doubt about whether abandonment of the rental unit has occurred.

The Practical Guide – The Value of the Property

Since this area is so bereft of any firm statutory guidance, the manager must turn to some practical standards to operate in the real world. The best practical guide is the value of the property left behind. Start with the assumption that most people don’t abandon valuable items. This is just as obvious and logical to the courts as it is to the person on the street.

If the total value of the property is $500.00 or more, than characterizing the rental unit as abandoned is risky. We often advise to forego the abandonment analysis and do the eviction. It’s not that there is never a case of abandonment with property valued over $500.00, only that it is rare and grows rarer as the value of the property increases. If a manager feels that he has such a rare case, he is advised to consult with his eviction attorney before taking any action to repossess the rental unit and dispose of the remaining personal property. If the manager ever finds a rental full of furniture, his attorney’s advice is absolutely necessary.

If the total value of the property is less than $500.00, the manager cannot assume that there has been abandonment. The manager must still proceed with an analysis of the facts to ascertain if he has actual knowledge of abandonment or if he can rely on the presumption. If neither applies, then the manager must file eviction and obtain the writ of possession, even if the value of the property is minimal. That being the case, we turn to a discussion of the statute.

The Statute – Actual Knowledge

As previously indicated there is no statutory definition of “actual knowledge” of abandonment. Neither the attorney nor anyone else can tell the manager if he has actual knowledge. Either he can claim it or he can’t. If he feels comfortable that his contact or correspondence with the resident confirmed that the resident was abandoning the rental unit, including any remaining personal property, then the manager can claim actual knowledge. The manager may at some later date have to explain to a judge how he knew the rental was abandoned. This will be much easier to recall if the manager enters his reasons in the resident’s file along with any resident notes, emails, correspondence, telephone messages or other writings helping to establish the manager’s actual knowledge.

The easiest case may be when the resident tells or writes the manager that he intends to break the lease and leave. The manager checks the property and the resident and all his possessions are gone. A completely cleared out rental should satisfy a judge that the manager has actual knowledge. True trash should not be a concern.

It is common for a manager to talk to the neighbors who will often tell the manager that they “know” the resident left for good. This is not the manager’s actual knowledge. It is a factor that the manager can take into consideration.

The Statute – The Presumption

If the manager doesn’t have actual knowledge of abandonment, then he must rely on the presumption established through its three elements: rent owing, no notice of absence and 15 days not seen. As mentioned above, conclusively establishing 15 days of no activity can be almost impossible. Although some managers have been known to put tape at rental entries to show the requisite lack of activity, for most managers it’s a conclusion drawn as their best guess. It’s based on more or less frequent checks of the rental, talking to neighbors and any other information that the manager can gather indicating that no one has been around. The manager should enter the facts supporting his presumption in the resident’s file.

Any remaining property of a personal nature (clothing, toiletries, personal records, photos, albums) suggests that the resident has not abandoned. Managers who find any usable decent furniture are encouraged to consult with their attorney, even if the items are less than $500.00 in value. This is often an indication that someone may still be occupying the rental unit, at which point eviction is the most prudent route to retake possession. Even when it is fairly clear that no one is actually living in the unit, the resident can still tie up the unit by storing personal property within the unit, again making eviction the best option.

The manager must remember that even if the presumption is established by the manager, it is only a presumption that is being triggered, and it can be rebutted by the resident in court. The manager must accept the risk that the resident will return and litigate in an effort to rebut the presumption. This risk may grow smaller as the amount of rent and damages owed grows larger and as the factors supporting abandonment multiply, but it is nevertheless a risk that the manager must accept in relying on the presumption.

Considerations in Abandonment

In addition to value of personal property remaining on the premises, the following are some other factors to consider that may indicate the resident has abandoned. They may assist the manager in having actual knowledge of abandonment or support the presumption of abandonment.

1. Resident statements or writings;

2. Neighbor statements;
3. Responses from emergency contacts; the manager can only leave a request with the contact for the resident to get in touch with the manager. He cannot disclose any information to the contact, as such is a breach of the resident’s privacy;
4. The type and quantity of personal items left behind;
5. Utilities cancelled, shut-off or rolled over to the manager;
6. Lack of sleeping arrangements (bed, mattress, sleeping bag);
7. No edible food, canned or otherwise;
8. Rotting food in the refrigerator or kitchen in general;
9. No pet food or water, if the resident had a pet;
10. Single family homes: lawn, shrubbery or pool not maintained, when these are the resident’s obligations under the lease.

All the facts should be considered and weighed. No one factor can be seen as conclusive. Something may be nothing more than a lease noncompliance; for instance, the fact that the electric is shut off is not conclusive of abandonment. It may only be a lease noncompliance by a financially struggling resident, who remains in possession.

Pictures

A final word on proof: in establishing the condition and value of remaining items or the condition of a rental that gave rise to the manager’s findings of abandonment, pictures are indispensable. In this day and age of cheap digital cameras, there is no reason that digital pictures of the rental and items are not taken and included in the resident’s file.

 

 ABANDONMENT OF A UNIT

The electric is off, the water is off, the unit is filthy and filled with trash, empty beer cans, some clothes, piled up unclaimed mail, and the neighbor tells you that they saw the resident pack up and leave last week. Is the unit abandoned? Can you take possession of the unit and get it ready for the new resident? Not if you want to follow the law and protect yourself from liability!

The 3 ways you get possession

The 3 ways to legally gain possession of a rental unit are surrender, eviction or abandonment. When it comes to determining whether a unit is abandoned, we have to ignore logic, common sense and intuition and look solely to the law. FS 83.59 states:

“When the resident has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the resident has abandoned the dwelling unit if he is absent from the premises for a period of time and equal to one-half the time for periodic rental payments. However, this presumption shall not apply if the rent is current or the resident has notified the manager, in writing, of an intended absence”
 

Basically this means that the appearance of the unit, the fact that the electric was off or a neighbor’s observations are all irrelevant. We just have to ask some simple questions:

1. Were the residents (all residents!) absent for 15 days?
2. Is the rent unpaid?
3. Did the residents tell us in writing that they were coming back?

These are the legal requirements of abandonment. Failure to follow this can result in costly lawsuits in which the judge will be sympathetic to the resident because you failed to follow the law. The burden of proof imposed on the wronged resident is extremely low, and the resident can easily fabricate the alleged missing contents of the unit, resulting in a large judgment and liability to pay the resident’s attorneys fees, which could be substantial. When a property manager “jumps the gun” and takes possession too soon, many attorneys will readily take a case like this on a contingency fee basis, making it easy for the resident to have access to the legal system. The resident can sue for the lock out prohibited practices and of course the claimed value of the items he or she claims are missing. The property manager could face other serious consequences in court, including criminal charges, charges of wrongful eviction, conversion, and liability for anything the resident claimed was in the unit!!

In some cases, the property manager has knowledge that the resident is gone, but someone else is living in the unit. Is this person a squatter or trespasser? You would think so, but if this person states that he is in there with the permission of the resident or is renting from the resident, it does not matter whether the original resident is gone. The unit is simply NOT abandoned. Some property managers attempt to call the police when an unknown person is remaining in the unit, but usually the police will state to the property manager that it is a “civil matter” and tell you that you must evict the person. Calling the police is always worth a try, because the person in the unit may in fact be a trespasser or squatter completely unknown to the original resident and if so will often readily leave.

In the event you accidentally take possession too soon and the resident returns, try to calm the resident, call your attorney immediately, and get the resident to write down what he or she says is missing and the approximate value. If you have only changed the locks and have not removed any belongings, you will need to let the resident back in, regardless of how much money, if any, the resident owes you. After this you can proceed with the normal route of eviction after proper notice, or possibly the resident will surrender the premises. Remember that A UNIT IS LEGALLY ABANDONED UNDER FLORIDA LAW IF ALL OF THE FOLLOWING IS IN PLACE:

1. NO ONE HAS BEEN IN THE RENTAL UNIT FOR A FULL 15 DAYS AND YOU CAN PROVE IT.

 

2. THE RENT IS UNPAID.

 

3. NO RESIDENT OR OCCUPANT HAS GIVEN YOU ANY NOTICE, VERBAL OR WRITTEN STATING THAT THEY ARE GOING TO PAY THE RENT OR COME BACK AT A LATER TIME.

If you have followed the aforementioned 3 standards of abandonment, you will probably be safe in taking possession. We recommend that you take pictures or videotape each room of the rental unit prior to taking possession. Training your staff, especially maintenance staff, is crucial to avoiding mistakes in taking possession. Lastly if a unit is chock full of personal belongings and other items and you are baffled as to why a person would up and leave all these items behind, we strongly recommend that you give notice if you have not done so already and file an eviction as this will be your absolute safest route. The resident could be in jail or have been Baker Acted to a mental facility and the last thing you need is to deal with that resident when he or she gets out and finds out that you have taken full possession of the unit. If you are ever unsure, always give your attorney a call to get an opinion on the matter.