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TENANT NONCOMPLIANCES UNDER EXECUTIVE ORDER 20-94 AND THE CARES ACT

BY ATTORNEY DAVID WEISSE, PARTNER, HEIST, WEISSE & WOLK, P.A.

There are state and federal moratoriums currently in effect on nonpayment of rent eviction cases.  

Florida’s current eviction moratorium is in effect through July 1, 2020.   The federal moratorium runs through July 25, 2020 but only applies to “covered” properties, and would also require a 30-day notice to be given for any vacating notice (including a demand to pay rent or vacate).    

A nonpayment of rent notice on a “covered” property cannot be given until after July 25, 2020.    The list of “covered” properties includes a federally backed mortgage interest on the property (such as Fannie Mae or Freddie Mac), an FHA insured loan or a Section 8 recipient as the tenant, among other notable categories tied to the federal government.     Further extensions of either or both evictions moratoriums are certainly possible.    

The Executive Order and the Stimulus Act apply to nonpayment of rent.

Your tenant may be engaging in activity that violates the lease or Florida law. Examples may be unauthorized occupants, unauthorized pets, noise disturbances or any of the many noncompliances a tenant engages in.    

If you are going to try to terminate a tenancy for a lease or law noncompliance, first of all, it cannot be related in any way to payment of any sum of money on a “covered” property.   For example the tenant may not have fully paid a security deposit, there is an outstanding pet charge, a fee, accumulated late fees, and the tenant owes something to you  when the noncompliance can be cured by a payment of money.

Some landlords are now suddenly looking for any way to terminate the tenancy and get around the holds or bans on nonpayment evictions in the Executive Order or the Act.

All of a sudden the landlord who overlooked the unauthorized pet or the unauthorized occupant is wanting to use this lease violation as a reason to terminate the tenancy and be able to file the eviction.

You need to understand the principle of waiver, and any time you allow something to go on ignored all while accepting rent, your chances of being able to evict for that activity becomes slim to none. Watch our videos on The Curable Noncompliance, and, Noncompliance and Rent Acceptance to understand this principle of WAIVER.  Waiver has killed many noncompliance evictions, and now, in light of the closer scrutiny, your chances of losing the case in court becomes much greater, plus you could be held liable for violating the Executive Order or the Act.

Not only can we see through this attempt to suddenly want to enforce the lease, but a judge can as well. Do not try this. You can lose in court.

The judge will view the notice as being an attempt to circumvent the nonpayment of rent moratoriums.

Since the Stimulus Act now require 30 days’ notice for any vacating notice if the property is  “covered”, you cannot give a 7-Day Notice, but rather will have to convert that notice into a 30-day notice; this will be true for a 7-day cure notice or a 7-day termination notice.    

All non-rent related noncompliance evictions now are going to face extreme judicial scrutiny. On top of all of this, you will be subject to all the other delays affecting all eviction cases, such as some courts not accepting cases for filing and possible delays on writ of possession issuance and execution.    

RECAP

NON-COVERED PROPERTIES - DO NOT SERVE A SEVEN-DAY NOTICE OF NONCOMPLIANCE UNLESS THE NONCOMPLIANCE IS SERIOUS AND YOU HAVE FIRST CONSULTED WITH US. YOU MAY BE ABLE TO PROCEED AS NORMAL, BUT YOU WILL STILL BE SUBJECT TO ANY EVICTION HOLDS BY THE COURTS WHO MAY NOT BE ACCEPTING CASES AND ALSO SUBJECT TO ANY HOLDS ON WRIT OF POSSESSION ISSUANCE OR EXECUTION

COVERED PROPERTIES –  DO NOT SERVE A NOTICE OF NONCOMPLIANCE UNLESS THE NONCOMPLIANCE IS SERIOUS AND YOU HAVE FIRST CONSULTED WITH US. IF WE ADVISE YOU TO SERVE THE NOTICE, IT WILL HAVE TO BE A 30-DAY NOTICE OF NONCOMPLIANCE PER THE STIMULUS ACT. EVEN IF WE GIVE YOU THE GREEN LIGHT TO PROCEED, YOU MAY BE WILL STILL BE SUBJECT TO ANY EVICTION HOLDS BY THE COURTS, WHICH MAY NOT BE ACCEPTING CASES, AND ALSO SUBJECT TO ANY HOLDS ON WRIT OF POSSESSION ISSUANCE OR EXECUTION.