SECURITY AND THE APARTMENT COMMUNITY

In December of 2004, a jury in Tampa Florida awarded an individual over $15 million who was abducted from the parking lot of an apartment community and later shot in the head. The jury in the case felt that the apartment management and owners were negligent in not providing security to the resident and that this resulted in the resident’s injuries from the crime. Is a property management company or owner responsible for providing security to its residents? We don’t think so. Is every owner of a rental home responsible for keeping an armed sentry outside the door of the home? Of course not. This case is one in the trend of cases whereby owners and managers of rental property are being held liable for the criminal acts of third parties, parties over which they have no control. Picture a large apartment community that may or may not have fences surrounding the property sprawled across many acres. There could be almost a mile of fence in some communities. If our own government cannot control its borders, can we expect an apartment community to be able to control every access point? Do we need lethal, electrified, razor wire fences surrounding apartment communities now? At what cost would all this security, none of which is foolproof, come? Will residents be willing to pay to live in a maximum-security environment? Can the thousands of existing apartment communities, large and small, or the duplexes and triplexes all throughout Florida, be retrofitted to prevent someone from jumping a fence or climbing through a hole in a fence that someone else made? Will access gates be the answer? Will a full time security force need to be at every corner of the apartment community armed with AK-47’s.

Though there is no solid, foolproof solution, there are some steps which owners and management can take.

MARKETING In marketing the property to the public, be it in the print ads, the internet, on the phone or through your on-site leasing staff, never should you imply or suggest in any way that your property is safe or has any type of security features whatsoever. The mention of access gates, courtesy officers, or even worse, the use of the word “security officer” or 24 hour manned gates should never happen. When asked if you provide security, simply state that you do not. This should be your company policy, your staff should be trained in this, and it should be clearly stated as such in your written Policy and Procedure Manual.

ACCESS GATES Access gates give a completely false sense of security to a prospective renter. Who among us has not slipped through a gate by following closely behind the car in front of them? Access gates are not security devices and are often non-operational, most often due to an individual running into the gate, resulting in it being broken for some time. We recommend that all residents sign an Access Gate Addendum which clearly explains that the access gate is by no means a security device, can and will break, and, is simply an amenity that guarantees nothing. We strongly recommend that if you do have an access gate, you invest in the technology whereby the vehicle and license plate is photographed every time a vehicle passes through the gate. Remember that gates are no substitute for actual security on a property.

SECURITY ADDENDUM All residents should sign a SECURITY ADDENDUM (see below) whereby they acknowledge and agree that no security is provided.

PROVIDING A CRIME REPORT We recommend that you speak to your local law enforcement agency and request a periodic report of all crime occurring or reported on the property or within some set distance of the property. This should be provided to all prospective residents and made available to all current residents. When providing it to the prospective resident, provide it before they give you an application fee or begin filling out the application. Do not drop this little bomb on them after they have been approved and it is time to sign the lease. Post a list of all known sexual predators and/or offenders within a 1-mile radius of the apartment community, and update this list on a regular basis

COURTESY OFFICER Never tell a prospect that you have a security officer or even a courtesy officer. Many of these so-called security officers or courtesy officers are merely companies which drive around through multiple apartment communities each night and/or respond to certain resident complaints. Often the courtesy officer is a resident who is a police officer and is given a reduced rent to live on the property and “make the rounds” at night or “be on-call”. While it is an excellent idea to have a courtesy officer on-site, never should you imply that this is “security” or even mention it to the prospect. When allowing a local law enforcement officer to live on the property for a reduced or free rent, always make that officer sign a detailed “COURTESY OFFICER ADDENDUM”. Many a local law enforcement officer was given a reduced rent or free rent apartment only to work the night shift at the station and have an unmarked car.

SAFETY EVALUATIONS OF THE PROPERTY Your maintenance staff should be fully trained, either by a professional firm or by a local law enforcement agency as to maintaining a property which is not conducive to criminal activity. The type of fencing, lighting, locks, shrubbery, and obstructions all play a part in making your property less likely to be a target. In our opinion, a light that is burned out is an emergency. A light that is continually broken or stolen needs to be replaced with one which is more secure, no matter how expensive. Maintenance needs to check lights on a regular basis and keep a written log of when a light burns out, and when it is replaced. Any steps you take to make your property less welcome to a criminal will be looked upon favorably in court. Doing nothing looks bad.

HIRING ACTUAL SECURITY IN RESPONSE TO CRIME If your property is prone to crime, you have gang activity, unsolved criminal acts are occurring on the property or you are in a high crime area, you just may have to hire true full time or nighttime armed security until such time that the problem is under control, if that ever happens.

NEIGHBORHOOD WATCH MEETINGS Having monthly, or more often if necessary, neighborhood watch meetings on your property will show your commitment to keeping crime off of the property. Encourage residents to report suspicious behavior to you and law enforcement immediately. Contact your local law enforcement agency, as many will assist you in starting, and more importantly, maintaining such a program on the property.

PROPER RESIDENT SCREENING So many apartment communities fall short in conducting criminal background checks on prospective residents. It is crucial that you conduct a criminal background check to the best of your ability, and never fail to have an FDLE Sexual Predator/Offender search performed. This can be easily done by simply going to the FDLE website.

CONCLUSION: Did you like the recommendations given above? We didn’t think so. It all takes time and money; all the while you are trying to provide affordable housing for your residents. The last thing you should do is do nothing. Evaluate your current situation, and chart a course for increased safety on your property. We recommend that you have your attorney review any addendum or form that your may wish to implement. Below is a sample SECURITY ADDENDUM that may give you a start.

Security Addendum

Owner and/or Management does not promise, warrant, or guarantee the safety or security of resident or his/her personal property against the criminal or negligent actions of other residents or third parties. Crime can and does occur at apartment communities. Each resident has the responsibility to protect himself/herself and to maintain appropriate insurance to protect his/her belongings including items within or on the premises and vehicles from criminal acts, negligent acts, fire, windstorm, hurricanes, plumbing leaks, smoke or any acts of God. Residents should contact an insurance agent to arrange appropriate insurance for their vehicle, personal property insurance and liability insurance.

No security system, controlled access gate, fence, gate, door, window, courtesy patrol or electronic security device if provided can guarantee complete protection against crime. Even elaborate security systems are subject to mechanical malfunction, tampering, human error or personnel absenteeism, and can be defeated or avoided by clever criminals. Controlled access gates frequently are non operational as they are often damaged by vehicles, therefore, residents should always proceed on the assumption that they do not exist. Windows can be broken, locks can be defeated, and fences can be climbed or damaged to allow access. The best safety measures are those precautions that can be performed as a matter of common sense and habit.

If security systems, security devices, controlled access gate(s) or walk-through services are employed at this community, no representation is being made that they will be effective to prevent injury, theft or vandalism. Such personnel, if provided, cannot physically be every place at every moment. Usually, such personnel are unarmed independent contractors and have no greater authority under the law to restrain or arrest criminals than the ordinary citizen. Therefore, Management does not warrant that any services, devices or persons if employed at this community will discourage or prevent breaches of security, intrusions, thefts or incidents of violent crime. Further, Management reserves the right to reduce, modify or eliminate any system, devices or services (other than those statutorily required) at any time. Resident agrees that such action shall not be a breach of any obligation or warranty on the part of Management. Management may at time place real or dummy video or surveillance cameras throughout the apartment community but Management makes no representations that these cameras are working, recording or even operational.

Resident agrees to notify Management promptly and in writing of any problem, defect, malfunction or failure of door locks, window latches, lights, controlled access gates, and any other access related device.

ACKNOWLEDGMENT BY RESIDENT

I have read, understand and agree with the above notice. I have received no representations or warranties either expressed or implied, as to any security, the safety of the property, or presence of any security system on the property, or guarantee that the apartment community was or will be free from crime. I further acknowledge that Management is not obligated under any circumstances to respond to any signal from an intrusion alarm system. The responsibility for protecting me, my property, my family, guests and invitees from acts of crime is the sole responsibility of myself and law enforcement agencies.

I agree to release and hold harmless Management and the Owners of the apartment community, its employees, agents and assigns from claims arising out of criminal acts of other residents and third parties. I agree that Management and the Owners of the apartment community, their employees, agents and assigns shall not be liable to me based upon any claim that security was not provided. Resident acknowledges that the foregoing shall also be binding upon Resident’s heirs, relatives, successors, guests and assigns.

This document contains the entire agreement with respect to its subject matter. Management and Owner representatives have no authority, except when in writing and signed by all parties to make changes or modifications in the terms of this document.

 

SATELLITE DISHES

Although it is difficult to determine who is winning the race between cable companies and dish networks, there can be no question that more and more residents are opting to get their entertainment through a satellite dish. Can the manager refuse to let the resident install a satellite dish? Are there any restrictions?

The Federal Communications Commission

In 1998, the Federal Communications Commission enacted rules to help TV viewers (and the satellite television industry). The rules prohibit unreasonable restrictions that impair the installation, maintenance or use of satellite dishes that are less than one meter (39") in diameter. The rules state that a manager cannot unreasonably deny a resident from having a satellite dish on the premises that is within the leasehold and under the exclusive use or control of the resident. The rules apply to managers, homeowners' associations, and condo associations (among others).

Placement of the Dish

The manager cannot stop the resident from erecting a dish if it is placed in an area that is under the exclusive control of the resident. That means areas where only the resident (and no one else) has the right to be present. Premises include the interior of the unit, balconies, balcony railings, terraces, patios, yards or gardens.

Premises DO NOT include outside walls, roofs (unless they are under a resident’s exclusive control), window sills, or other common areas. If the resident wants to erect the satellite dish in a common area, then the manager can prohibit the dish.

In the case of a condominium, all property is considered to be common area except the air space of the units and the portions designated as limited common elements (such as a patio or balcony). In other words, condominiums may restrict satellite dishes from being in the common areas. However, the resident has the protection of federal law if he wants to install the dish within the boundaries of the condo unit.

Liability

The resident is liable for any liability arising from the installation of a satellite dish. This is because the dish is located only in a location that under the exclusive control of the resident. The FCC includes this in its rules.

Property Damage

A manager can require that the installation of a satellite dish be done in a way that does not damage the premises. A manager can prohibit drilling holes in walls, using nails or screws, piercing roofs, or causing any damage more than ordinary wear and tear. Clamps or straps should be permitted.

Hopefully, the lease requires the resident to obtain written consent of the manager before beginning any alteration. Such a provision would give the manager a way to protect his property. Property managers should check for installation equipment, and if present, take photos.

 

ROOMMATE DISPUTES

 

More often than ever before, residents are having roommates move into their rental houses or apartments for a myriad of reasons, the most common being to help with expenses and contribute to the rent. More residents are taking in roommates that they do not know very well through the use of classified services, roommate services or referrals from friends. Sometimes it works out for them; sometimes it becomes the nightmare roommate situation. Many managers really are not too concerned about who is living in a unit these days if the rent is flowing in and there are no complaints by neighbors or police, so even if the manager becomes aware of the roommate, they will generally ignore the situation. In conventional housing when most often there are no restrictions on occupancy or number of unrelated persons in a unit, one additional roommate does not pose a problem legally. In tax credit properties, subsidized properties or in units where the resident is receiving state or federal funds, the mere presence of the roommate residing on the premises could result in the manager and the resident being out of compliance with the laws governing the tax credits or subsidies, and cause a serious risk to the manager’s business, or the resident could end up losing her subsidy, resulting in the manager not receiving the subsidy payment. In these cases, it is crucial that the manager takes action immediately to have the resident have the roommate removed from the premises or the resident on the lease evicted. This article will deal with a different situation, that being the case when the resident comes to you asking you to help remove the roommate for them.

 

The Scenario

 

Your resident comes to you at her wit’s end. She tells you that she took in a roommate and the roommate is causing her serious problems. These problems may include drug use, alcohol, parties, things disappearing; unruly guests, or possibly the roommate simply is not paying his share of the rent. The resident wants the roommate out, but the roommate simply refuses to leave. In some cases the situation is so bad, the resident has had to move out temporarily, as she is being terrorized by the roommate, and now sheepishly is asking you, the manager, to get the roommate out. Your resident has called the police, and the police told her, “It is a civil matter,” and to consult an attorney. You may or may not have known of the roommate, but now you know for sure and are being pulled into a mess that was created by the resident taking in the unauthorized roommate.

 

The Request and the Problem.

 

Your resident is now asking you, the manager, to remove a person with whom you have no legal relationship. She may ask you to “evict" the roommate, thinking that somehow you have to power to do so, being that you are indeed the manager. The fact that you have no legal relationship with the roommate will make it impossible to remove the roommate alone. You cannot file an eviction against that roommate. Rather, the resident must, as she has the legal or quasi- legal relationship with the roommate, and most likely it was not in writing. If there was indeed a lease between the roommate and the resident in writing, the resident has become the “manager”, and although she may be illegally subletting the unit, the resident would need to file an eviction against the roommate as the manager. It is rare that residents have any written agreements in place with acquired roommates.

 

The Initial Reaction

 

Your initial reaction may be to tell the resident that it is her problem, and she has to deal with it, and you would be mostly correct. Your resident caused this problem by taking in the roommate, and your resident needs to deal with it. The larger problem is that your resident is telling you that if she cannot get the roommate out, the resident will have to vacate. This will leave you with a person in your unit who has not signed a lease, and with whom you have no legal relationship. If you were to call the police, they would give you the same response, which would be, “It is a civil matter; you need to hire an attorney”.

 

Feeling Sorry for the Resident

 

Since you have been getting your rent on time, and let’s face it, you are a bit desperate and do not want a vacancy, you may be tempted to feel sorry for your resident because of this roommate problem. Stop right there. Your resident violated the terms and conditions of the lease by taking in this roommate. This roommate is an unauthorized occupant, plain and simple. Your resident has and is violating YOUR lease. The roommate may even be a sexual offender or predator who would in no way have passed your criminal background check, thus causing liability to you or your company and possible danger to other residents or their guests.

 

Moving the Resident

 

One request that may come from your resident is for you to move her into another unit on your property. That seems like a simple way to help out your resident and solve your resident’s problem. Just move her to another unit. That’s great. Now you have your resident who violated her lease in one unit and the roommate in another unit. Never even think about doing this.

 

Actions to Take

 

1. Action by Resident: If your resident is having serious problems with the roommate that rise to the level of criminal activity, the roommate has injured or threatened to injure the resident, or the resident is in fear of her life, the resident should immediately go to the county courthouse and see if she can obtain a restraining order against the roommate or a temporary injunction against the roommate, which may require the roommate to vacate. Each county courthouse has a department dedicated solely to injunctions and restraining orders. If the problem is severe enough, the roommate may be required to immediately vacate by force of law, and if he returns, could end up being arrested. Residents routinely are able to get restraining orders and injunctions against one another, essentially kicking one resident out of the unit, and the courts generally do not care whether one or both are actually on the lease agreement. This is an option for your resident, but you should not advise the resident beyond the suggestion of pursuing this option.

 

2. Action by Property Manager: Your resident has an unauthorized occupant residing on the premises in violation of the terms of your lease. Your resident needs to be served a Seven Day Notice of Noncompliance With Opportunity to Cure immediately stating the following:

 

“You are in violation of the terms and conditions of your lease agreement due to having an unauthorized occupant residing on the premises. This occupant must be removed.”

 

Serve this notice and refuse any more rent unless you know for a fact the roommate has vacated, and possibly get something in writing from the resident stating that she has removed the unauthorized occupant.

 

The Roommate Fails to Vacate

 

If the roommate fails to vacate and your Seven Day Notice of Noncompliance with Opportunity to Cure has expired, you will then serve a Seven Day Notice of Noncompliance Notice of Termination, and upon expiration of that notice, your attorney will file an eviction. Proving the roommate is still there is often difficult, and your attorney will help you decide if you have a strong enough case. Your attorney will file an eviction against your resident. Your resident and the roommate will need to be evicted. There is no choice. We have seen some situations in which the manager and the resident make a deal under which the resident will not fight the eviction, allow herself to get evicted, and the manager allows the former, now evicted resident to move back in. Big mistake. The roommate may reappear, and the problem starts all over again. Additionally, who paid for the eviction?

 

Some Final Words

In tough economic times, the temptation to “help out a resident” so as to not lose the resident can have disastrous results. Do not make someone else’s problem that she herself caused become your problem that can be costly for you to solve. A resident who gets an unauthorized roommate is a lease violator and should be treated as such.

 

 

REVISING THE NOTICE OF INTENTION TO IMPOSE CLAIM ON SECURITY DEPOSIT

 

The resident vacated, and you did an inspection and made the claim on the security deposit by certified mail as the law provides. Your maintenance staff then discovers some serious problems that you missed in your inspection, including fleas, bad touch up paint by the resident and a hidden rug burn. Can you go back and send out a revised claim? Have you waived your rights to making an additional claim? This situation will arise at some point when managing property and timing is crucial. Simply put, if you are outside the 30 day window as required by Florida law, you will not be able to claim the damages from the security deposit. While this is the bad news, the good news if that the resident still may owe you the money, and you may not have waived your rights to go after the resident for this additional money.

 

Florida law provides that you have 30 days from the date that the resident vacates the premises to send out the Notice of intention to Impose Claim on Security Deposit; for the purposes of this article, we will just call it the Notice. Years ago, Florida law only allowed 15 days to make a claim, but now there is some more time to examine the premises and make a decision as to what is owed. Keep in mind that we are dealing with making a claim against a security deposit, not figuring out what a resident will or may ultimately owe you.

 

When Should You Send Out the Claim Letter?

 

Waiting until the 29th day is always risky, as you open yourself up to a resident claiming they left on one day and you claiming they left on another. A dispute subsequently arises which could result in you having to return the entire security deposit to the resident, if a judge felt you were outside the 30 day window. We never want this to happen, so you should not wait until the 30 days are about to expire.

 

Get in the Unit As Soon As Possible!

 

It is important that as soon as you get possession from the resident, be it from surrender, eviction or abandonment, you get into the unit quickly. The purpose of this is not to make the claim as soon as possible, but to document the condition of the unit quickly, so a resident does not later say that the property was damaged by someone else AFTER they turned over possession to you. A property could indeed be damaged by someone breaking into that unit some time after your resident has vacated. If you attempt to charge the resident for this damage, he may object and successfully convince a judge that the damage occurred after he vacated. Should you make the claim on the security deposit right away? No. If you are certain that you are going to make a claim, this is the time to pause and carefully begin documenting the damages and comparing the condition reflected in the move-in inspection report that hopefully you have.

 

You Sent Out the Claim Letter But Discover More Damages

 

Some property damage is not immediately evident at the time of the resident moves out. Residents sometimes successfully hide damages, paint over poorly filled holes in walls, mask odors with spray deodorants, or the unit may all of a sudden be infested with fleas two weeks after the resident moves out! A unit that is heavily cooled by air conditioning may not reveal the true smell of the years of cigarette smoking or urine damage to a carpet. Some damages are simply missed in error by the manager and later caught by the maintenance technician, who is more experienced in these matters and finds resident damage at a later time. Occasionally, you may be managing the property for an owner who decides to find damages that you did not find.

 

You Are Within the 30 Day Window

 

If you have sent out the Notice already but are still within your 30 day window, you can simply prepare another one and send it out again to the resident in the same fashion as the first Notice, being sure to again comply with the certified mail requirement. The resident will of course be upset about the bad news, but you are within your rights to do this. Remember that the resident does not have to receive the notice within 30 days; you simply must send the notice within 30 days.

 

You Are Outside the 30 Day Window

 

If you are outside the 30 day window and do not fall under any exception to the requirement to send the notice out within the 30 days, you will not be able to claim anything more from the security deposit than referenced in the initial Notice. The resident should receive the “balance due resident” indicated in the initial Notice. Even if the resident owes you the money, the resident should receive this balance back.

 

Does the Resident Owe You the Money?

 

The resident will still owe you the money, but you will not be able to retain it from the security deposit. You will be able to send it to collections, try to get the resident to pay or sue the resident if you wish. The main issue is that the funds you are holding cannot be used for the amounts owed.

 

Suppose the original amount and the revised amount owed both exceed the security deposit?

 

Let us assume you are holding a $1000 security deposit and originally claimed damages of $1200 within the 30 day period. After the 30 day period expires, you discover another $500 in damages. You may feel that there is a need to send a revised Notice, but this is not necessary, and besides, it is too late to send an amended Notice. You already have claimed the entire security deposit, so this intent has already been established. Remember, a Notice is not a bill or a final accounting you are sending the resident. It is simply a notice stating how much you will be taking from the security deposit as required by law. However, to cite the above example, if you discover more damages within the 30 day period, it is good practice to send an amended Notice, since some of the items claimed in your initial Notice may not hold up in court, if a dispute leads to deposit litigation.

 

Avoiding a Possible Waiver Issue

 

There is a possibility of a resident claiming that since you sent the Notice of Intention to impose Claim with a particular amount stated, you are now stuck with it and cannot now charge the resident any more. For example, if a resident breaks a lease owing you one month’s rent and you make a claim for this one month’s rent, more months of rent may become due if the unit remains vacant. You certainly do not want the resident to think that just because one month was subtracted from the security deposit, this is all the resident is liable to you for. The standard notice wording as stated in Florida Statute 83.49 does not address this, so we recommend that the following wording be placed on the bottom of your Notice just to be extra safe:

 

This notice does not waive or limit any of manager's rights to damages or amounts due which may exceed the security deposit or the amounts listed on this form.

REVENUE INCREASING TECHNIQUES AND THE LAW

 

Management and property managers are always trying to increase revenue. There is absolutely nothing wrong with this. Being a manager is a tough business, profits have decreased, and liability is always on the rise. Unfortunately, many property managers and management are doing things now which may or may not be considered illegal by some courts. Word spreads quickly among associations, manager groups, and from training classes, and a novel idea that one company has implemented often spreads like wildfire. Are these new charges or practices legal, or can they result in serious and expensive lawsuits? Is it legal just because “everyone is doing it”, or you were “told” it was legal by a non-lawyer?

 

This article will examine some of these charges just for the purposes of making you think and then making an informed decision, hopefully with legal counsel, whether or not to take a particular course of action with your resident.

 

Excessive Late Fees

 

Florida Statutes does not address late fees. Nowhere in the Landlord/Tenant Act are late fees mentioned. How much can you charge the resident? No one knows. You can place late charges on your Three Day Notice in most counties if they are considered additional rent, you can evict a resident for failure to pay rent and late charges, and you most likely can deduct unpaid late charges from the security deposit if they are owed when a resident vacates. The key is that your late charge correlates to the damages you are suffering due to the resident paying the rent late. How is this figured out? No one knows. Sometimes judges will see excessive late charges and rule that a Three Day Notice is invalid. What is excessive? Can late charges be considered usurious?  Under Florida law, there are specific interest limits on what a creditor can charge for interest on a loan. Some attorneys are trying to expand the idea of a loan to delinquent rent. If delinquent rent was considered a loan, then the usury laws would apply, and the result in most cases would be that the late charges were usurious or over the legal interest rate limit.

 

Lease Renewal Fees

 

Some managers charge the resident a fee upon lease renewal.  This is justified by reasoning that the fee is for the renewal lease, the negotiations, and any extra inspections or work involved in renewing the lease. Most likely this fee is legal.  It is not addressed in Florida law, and the resident will pay it, but did you tell the resident about this fee in the beginning of the lease when the resident was asking whether he might be able to renew if he needed to stay another year?  If you are going to charge a renewal fee, full disclosure of this charge should be made at the time the lease is signed or as soon as you decide to implement this type of a fee.

Notice posting or delivery fees

 

The resident has not paid the rent, and you now have to prepare and serve a Three Day Notice.   Can you charge the resident a notice serving fee? Clearly if you are going to do this, the resident would have had to agree to it in the lease agreement, so let us assume your lease addresses this fee. You are charging the resident for a notice that the resident is entitled to receive and you are required to give by Florida law.  Is this legal? We definitely are not sure. It is not specifically “illegal”, as it is not mentioned at all in Florida Statutes, and you can argue that the resident has contractually agreed to it, but will this go over well with a judge? Unless the case is contested, many judges will not even notice the fee, and many of our clients do in fact charge this fee. We don’t recommend it though. 

 

Administrative Fees

 

In order to get a resident into a unit, you have do some work for sure. You must coordinate  credit checking, call references, call utility companies, input information into the computer, make phone calls, send emails, engage in negotiations, make sure the property is ready, travel to the property, and do many other tasks in order to get your resident into the unit. Many property managers have decided that by charging the resident an “Administrative Fee” or “Move-In Fee”, this can recoup some of the expenses involved.  When you received a call from a person who saw the house advertised for rent in the newspaper, did you disclose the administrative charge to them? If not, you can find yourself in serious trouble. If you decide to charge administrative charges, you need to understand they may not be legal at all, and your failure to disclose them in your advertising and upon first contact with the prospective resident could be considered illegal.

 

Redecorating Fees

 

As a condition of moving in, you charge the resident a nonrefundable “redecorating fee”. What is this for? It is to cover some of the damages that the resident may cause to the property. But aren’t you going to charge the resident for those damages anyway when the resident moves out?  In the old days, managers collected first month’s rent, last month’s rent and a security deposit. Now that this is not the norm, managers have looked to other ways to cover the damages residents may do to the unit which they will most likely not pay for. The problem with redecorating fees is that this could be construed as an attempt to make the resident pay for someone else’s damages or to pay for ordinary wear and tear. Again, Florida law does not specifically address such charges, but there could be dangers lurking in charging them.

 

Upcharges for Credit Checking

 

A property manager may charge $50.00 for conducting the credit check, but only is charged $8.00 by the company providing the credit report. Is the $42.00 a profit? Is it fair to the resident? The property manager will point out that getting a credit report is just one aspect of the resident qualification process; however, some states have placed limitations on how much the property manager can charge. Will Florida be next?  You don’t want to be the test case, so it is advisable to have your credit checking procedures clearly laid out in detail for possibly future use in a court case.

 

Conclusion

Unless a particular charge is clearly illegal, the property manager must make an informed business decision before implementation. Some companies will make a risk/benefit analysis and decide it is worth taking a risk. Other companies will implement procedures under which these charges are clearly disclosed ahead of time to avoid being accused of bait and switch tactics or a potential unfair and deceptive trade practice. In the end, excessive or additional charges increase the risk of litigation. Increasing profits can be construed as greed, and the farther property managers go, the greater the risk that there will be litigation that will adversely affect all property managers. We urge you to speak with your attorney regarding any charges before you make the decision of implementation. If your attorney will not give you a written opinion as to the legality of a particular charge, you just might want to avoid that charge. Many property managers have been getting caught up in the latest “revenue generating technique”. Never assume that because the property management company down the street charges something or has done so for years makes it legal or advisable.

 

RETURNING RENT DURING AN EVICTION

The Three Day Notice has expired, an eviction is filed in county court, and the resident is served with eviction paperwork. You arrive at your office on a Monday morning, and in the mail slot is a check or money order from the resident. Most managers know that accepting this payment without entering into a proper Stipulation with the resident will immediately kill the eviction action. Acceptance of any rent or amount owed by a resident will almost surely result in a complete defense to the eviction action, resulting in dismissal of the eviction action or a finding for the resident in court. When a payment is tendered by a resident after an eviction has actually been filed with the court, the manager must return the money. The issue here is the manner in which and when the payment is returned. Failure to return the payment promptly or properly is a common mistake made by managers.

Can You Accept the Resident’s Payment?

If the resident is paying you in full, and this sum includes your attorney’s fees, costs, late charges and any other amount the resident owes you, there is no great harm in accepting the payment. Under no circumstances should you accept anything other than certified funds such as a certified check or a money order, and you need to be aware that a stop-payment order can actually be made on a certified check or money order, so you are not entirely safe. If the payment is partial and the manager wishes to work with the resident, this can be accomplished with a Stipulation BUT, the manager needs to do this immediately. If the payment is held for more than one day, there is a serious risk of problems.

In our opinion, if you have knowledge of a resident’s payment and intentionally hold a resident’s payment for more than one day, this can be considered acceptance of rent. Florida law does not define how long the holding must be before it is considered acceptance, but most judges interpret any delay in returning the money to the resident as acceptance. If the resident “thinks” you have accepted the rent, most judges will feel the same. Depositing the rent is almost surely considered acceptance, unless you can prove to a judge that it was purely accidental, it was caught immediately, and the resident receives the payment rent back immediately. How do you return the payment back if the resident paid by a check and the money was deposited into your account? You can write the resident a check back, but there is an incredible danger that the check you gave the resident will come back NSF and now YOU have paid the resident rent!

How To Return the Payment to the Resident

HAND DELIVERY: The best way to return a resident’s payment is to make a photocopy of the payment, go directly to the resident with a witness present and hand-deliver the payment back to the resident. While the resident may deny receipt in rare circumstances, this is our preferred way to return. At the time you are returning the money, you will have an opportunity to discuss with the resident the resident’s plans or enter into a Stipulation or even an Agreement to Vacate. We recommend that you call your attorney and get a Stipulation, so you have this in hand in case you will be able to work things out with the resident. Never tell a resident to put the money into the court registry. A manager is not in the business of educating the resident on how the resident can contest an eviction.

CERTIFIED MAIL: If the resident is not available, not home or refuses to accept back the payment that was tendered to you, the manager MUST get the money back to the resident, but at the same time, making sure the resident knows that the money is not being accepted and it is being returned. Here are some steps you can take.

1. Copy the payment
    
2. Call the resident and tell him or her that you are returning the money and that it will not be accepted
    
3. Prepare and copy a letter to the resident stating that you cannot accept rent and that the payment is being sent by certified mail back to the resident that day
    
4. Place that letter in an envelope and tape it securely to the resident’s door. If there is back door or garage that the resident may use, tape an additional envelope and letter to these entrances. The key is to make sure the resident knows the money is not being accepted.
    
5. Send the payment back to the resident by Certified Mail Return Receipt Requested, saving the proof of mailing.
    
6. Notify your attorney so the attorney can make a note in the file.

Common Mistakes

1. Manager receives the payment and holds onto the payment.

 

2. Manager calls resident and tells resident to pick up payment, the payment is not picked up, and the manager holds the payment.

 

3. Resident’s payment is deposited into manager’s account.

 

4. Manager puts payment in an envelope and tapes it to the resident’s door.

 

5. The manager returns the payment to the resident and tells the resident to put the money into the court registry.

Recommendations

Notify everyone in your office that the particular resident is under eviction, and carefully watch that the resident does not try to make a payment. Communication with staff is crucial in avoiding the accidental acceptance of a payment. You may want to go as far as placing a note on the office wall out of the sight of other residents or attaching a note to your bank deposit book simply stating “Do not accept rent from John Doe, Apt 123”. Carefully follow the return of payment steps as outlined above, and be aware that another person may try to slip a payment in or use a check or money order that only indicates to what unit the payment is to be applied. Finally, if a resident has tendered a payment, you need to think Stipulation. A Stipulation is one of the best rent collection and resident retention tools available to a manager.

 

RETURNING RENT PRIOR TO AN EVICTION

The Three Day Notice has expired and the full amount was not tendered.  You arrive at your office on a Monday morning, and in the mail slot is a check or money order from the resident. Most managers know that accepting this payment  from the resident will destroy an eviction. Acceptance of any rent or amount owed by a resident will almost surely result in a complete defense to the eviction action, resulting in dismissal of the eviction action or a finding for the resident in court. When a partial payment is tendered by a resident and the manager does not want to take the partial payment, the manager must return the money. The issue here is the manner in which and when the payment is returned. Failure to return the payment promptly or properly is a common mistake made by managers.

Can You Accept the Resident’s Payment?

If the resident is paying you in full as per the notice, you must accept the rent payment.

In our opinion, if you have knowledge of a resident’s partial payment and intentionally hold a resident’s payment for more than one day, this can be considered acceptance of rent. Florida law does not define how long the holding must be before it is considered acceptance, but most judges interpret any delay in returning the money to the resident as acceptance. If the resident “thinks” you have accepted the rent, most judges will feel the same. Depositing the rent is almost surely considered acceptance, unless you can prove to a judge that it was purely accidental, it was caught immediately, and the resident receives the payment rent back immediately. How do you return the payment back if the resident paid by a check and the money was deposited into your account? You can write the resident a check back, but there is an incredible danger that the check you gave the resident will come back NSF and now YOU have paid the resident rent!

How To Return the Payment to the Resident

HAND DELIVERY: The best way to return a resident’s payment is to make a photocopy of the payment, go directly to the resident with a witness present and hand-deliver the payment back to the resident. While the resident may deny receipt in rare circumstances, this is our preferred way to return. At the time you are returning the money, you will have an opportunity to discuss with the resident the fact they must pay in full. Never tell a resident to put the money into the court registry. A manager is not in the business of educating the resident on how the resident can contest an eviction.

CERTIFIED MAIL: If the resident is not available, not home or refuses to accept back the payment that was tendered to you, the manager MUST get the money back to the resident, but at the same time, making sure the resident knows that the money is not being accepted and it is being returned. Here are some steps you can take.

1. Copy the payment
    
2. Call the resident and tell him or her that you are returning the money and that it will not be accepted
    
3. Prepare and copy a letter to the resident stating that you cannot accept rent and that the payment is being sent by certified mail back to the resident that day
    
4. Place that letter in an envelope and tape it securely to the resident’s door. If there is back door or garage that the resident may use, tape an additional envelope and letter to these entrances. The key is to make sure the resident knows the money is not being accepted.
    
5. Send the payment back to the resident by Certified Mail Return Receipt Requested, saving the proof of mailing.
    
6. Notify your attorney so the attorney can make a note in the file.

Common Mistakes

1. Manager receives the payment and holds onto the payment.

 

2. Manager calls resident and tells resident to pick up payment, the payment is not picked up, and the manager holds the payment.

 

3. Resident’s payment is deposited into manager’s account.

 

4. Manager puts payment in an envelope and tapes it to the resident’s door.

 

5. The manager returns the payment to the resident and tells the resident to put the money into the court registry.

 

 

RETALIATORY NONRENEWAL

 

Owners may find themselves having rented to the proverbial “resident who is more trouble than he is worth.” During the term of the lease, the resident doesn’t commit any lease noncompliances that are serious enough to justify a lease termination. He may chronically pay late, but always before the three days on the Three-Day Notice to Pay Rent runs. Aside from late payments, he may have a series of other lease noncompliances: unauthorized occupancy, pet rule breaches, noise disturbances, parking violations, etc. He may never commit the same offense twice, or his acts, while annoying and requiring an inordinate amount of management time, are never grievous enough to justify lease termination. He may have chronic complaints about his neighbors, and after investigation the owner finds them unwarranted. He has or may be in the process of making insurance claims against the owner for personal injuries or for damage to his personal property. He expects the perfect rental, and to that end deluges the owner with a series of repair requests. Some of the repair requests are valid, but many, too many, concern cosmetic issues that are frivolous or border on frivolous.

 

It is important not to succumb to frustration with this resident. The law and the lease must be followed: his noncompliances noticed, his complaints investigated, his claims processed and his repair requests answered. It may be difficult, but the valid must be sorted from the frivolous, the relevant from the insignificant, and the valid and relevant handled as required by Florida law and the lease. Most important of all, everything should be logged, recorded and documented in the resident’s file.

 

All too often these residents are more familiar with the Landlord/Tenant Act than the owner. These residents have been down this path before. They may copy attorneys on complaints, repair requests and correspondence, or cite fair housing violations or claim retaliatory conduct. The owner can bet that these residents are documenting their files.

 

The owner, who has had enough, now prepares to non-renew the troublesome resident. Before serving the non-renewal notice, the owner is advised to contact his attorney to discuss the potential for a retaliatory conduct defense by the resident to the non-renewal.

 

Retaliatory Conduct Statute

 

Florida has a statute addressing retaliatory conduct by the owner. FS 83.64 Retaliatory conduct.

 

1. It is unlawful for a manager to discriminatorily increase a resident's rent or decrease services to a resident, or to bring or threaten to bring an action for possession or other civil action, primarily because the manager is retaliating against the resident. In order for the resident to raise the defense of retaliatory conduct, the resident must have acted in good faith. Examples of conduct for which the manager may not retaliate include, but are not limited to, situations where:

 

1. The resident has complained to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the premises;

 

2. The resident has organized, encouraged, or participated in a residents' organization;

 

3. The resident has complained to the manager pursuant to s. 83.56(1); or

 

4. The resident is a service-member who has terminated a rental agreement pursuant to s. 83.682.

 

2. Evidence of retaliatory conduct may be raised by the resident as a defense in any action brought against him or her for possession.

 

3. In any event, this section does not apply if the manager proves that the eviction is for good cause. Examples of good cause include, but are not limited to, good faith actions for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the terms of this chapter.

 

4. "Discrimination" under this section means that a resident is being treated differently as to the rent charged, the services rendered, or the action being taken by the manager, which shall be a prerequisite to a finding of retaliatory conduct.

 

Retaliating

 

FS 83.64 is much broader than it appears on first reading. The statute forbids retaliating against the resident. What is “retaliating”? The statute indicates it is to discriminatorily 1) increase the resident’s rent, 2) decrease services to the resident, or 3) bring or 4) threaten to bring an action for possession or other civil action primarily because of a retaliatory motive.

 

The statute doesn’t explicitly forbid a non-renewal. It might be argued that every non-renewal carries with it the implicit threat of an action for possession. That tenuous argument aside, if the resident won’t vacate, the owner’s method to enforce the non-renewal is by actually bringing an action for possession, and the statute now clearly can be invoked by the resident as a defense to the action for possession.

 

The statute enumerates four examples of protected activity by the resident: complaint(s) of code violations, resident organization, resident delivery of a 7-Day Notice to the owner under F.S. 83.56(1) or service-member termination. Note that these are only examples and are non-inclusive examples. Thus, courts are free to hold that the statute applies to the exercise by the resident of any rights granted under the Landlord/Tenant Act or the exercise of any rights granted the resident under the lease. As a matter of fact, the statute’s language doesn’t limit its application to only the Landlord/Tenant Act or the lease. Other states with retaliatory conduct statutes have found an eviction action to be retaliatory when it was in response to the resident taking any action that the resident was legally entitled to take. Whether or not a Florida court will apply the statute so broadly remains to be seen.

 

Given that the statute’s purpose is to protect the resident, an owner should be prepared for a court finding that the statute applies to the resident’s exercise of the any rights granted by the Florida Landlord/Tenant Act or contained in the lease, such as the right to demand repairs. An eviction based on the non-renewal of the resident for exercising his rights, such as requesting repairs, can be met with the defense of retaliatory conduct.

 

Owner Defenses

 

Under the statute the owner has several defenses available: his action isn’t discriminatory, his action isn’t primarily retaliatory, his action is for good cause, and the resident is not acting in good faith.

 

Not Discriminatory

 

The owner’s action isn’t discriminatory. “Discrimination” is defined in the statute as treating the resident differently as to rent charged, services rendered or action taken by the owner. Since the statute requires a finding of discrimination by the owner as a “prerequisite” to finding retaliatory conduct, no discrimination in the treatment of the resident means no retaliation. If everyone in the building is being non-renewed for the building’s rehab, then there would appear to be no discrimination towards anyone in the building.

 

Not Primarily Retaliatory

 

The owner’s action isn’t primarily retaliatory. This is a proof issue of the owner’s subjective intent. The burden of proof rests on the owner. When there are several reasons for the non-renewal, the owner will have to prove that his primary reason wasn’t retaliation. It may be hard to convince a court of an owner’s subjective intent without any documentation to support the owner’s position. The owner’s testimony is likely not going to be enough. If the resident has been a problem resident, the owner should have a file with Seven-Day Notices of Noncompliance or Three-Day Notices to Pay Rent. If the repair requests have been frivolous and unwarranted, the file should contain reports by the owner after investigation or by responding vendors so indicating. This is when the owner’s documentation can be crucial.

 

For Good Cause

 

The owner’s action is for good cause. The statute specifically sets forth good cause as the owner’s absolute defense to the application of the retaliatory conduct statute. The statute lists three examples of good cause: good faith action for nonpayment of rent, violation of the rental agreement or of reasonable rules, or violation of the Landlord/Tenant Act. These are only examples and are non-inclusive examples. Owners are free to raise any other reasons as good cause. Note that the examples are preceded by the requirement that the owner’s action is in “good faith.” The fact that the statute expressly states that the good faith rent nonpayment eviction (Three-Day Notice to Pay Rent) and the good faith eviction for violation of the rental agreement or of reasonable rules (Seven-Day Notice of Noncompliance) are exempted from the statute’s application may be the best reason why owners don’t often face a viable retaliatory conduct defense by residents. Judges recognize it as a stalling tactic or an invalid defense, if the owner has properly prepared his case. Judges may be more likely to consider it in the non-renewal case of the troublesome resident.

 

No Good Faith

 

The resident’s isn’t acting in good faith. The statute requires that in order to raise the defense of retaliatory conduct, the resident must have acted in good faith. Once again this is an examination of subjective intent. This time it is the resident’s intent. The owner has the burden of proving the resident’s bad faith. Again, without any documentation it will be difficult to prove the resident’s intent. Timing may be an indication of the resident’s bad faith. The owner may successfully raise a bad faith claim, in the case of a resident, who didn’t object to the non-renewal notice when it was served, but first raises the retaliatory conduct defense when the eviction is filed.

 

The Landlord/Tenant Act has a separate statute (FS 83.44) that imposes the obligation of good faith on the performance or enforcement of every rental agreement and on the every duty under the Residential Tenancies Part of the Landlord/Tenant Act. The drafters of the retaliatory conduct statute (FS 83.64) saw fit to include the duty of good faith twice again in the retaliatory conduct statute – applying it to both the owner and the resident. This will not be lost on a court in evaluating the evidence presented by the owner and the resident.

 

Fair Housing

 

Retaliatory conduct claims are often accompanied with a fair housing claim of discrimination. Many times the evidence will be the same to contest the fair housing discrimination claim and the retaliatory conduct claim. The fair housing aspect of such cases is not treated in this article.

 

As indicated at the beginning of this article, there are instances in which the owner should be prepared for a retaliatory conduct defense to a non-renewal notice. The best preparation is a candid discussion of all the facts with his attorney before the owner takes any action.

RESPONDING PROPERLY TO THE RESIDENT

“Anything you say (or write) can and will be used against you in a court of law”. You have heard the saying, and it applies ever so much in property management. How you respond to a resident can make a big difference in the outcome of a dispute. Our natural tendency to defend ourselves, explain ourselves, apologize or get into a fight when falsely accused, can make a small matter big in no time and create a damaging paper trail. Paper trails are excellent, but we must exercise care in what we write, what we say and what we email. If the burden of proof is on the resident in a particular dispute, there is no reason to give them the “proof “they can possibly use to make their case. This by no means indicates you should lie in court to get out of a situation, but if the resident has the burden of proof with regard to some issue, sometimes it is better to stand by and force them to prove you are in the wrong. The more you write, say or email, the more you may have to explain what you meant.

The Apology

We are all taught that a prompt, sincere apology is the right thing to do in life. In property management, an apology takes on a completely different meaning. Your saying, “I’m sorry about the flood in your apartment,” means, “The apartment manager admitted fault and now owes me money”. The truth of the matter is that the flood may have been caused by the upstairs neighbor, is not the fault of the apartment community, and that the residents are not going to be reimbursed a dime for their damaged items. Why apologize for something that is not your fault?

”We are Doing the Best We Can”

You may be waiting for a particular part, your maintenance tech is out sick or just got fired, and you are not able to promptly repair something in the unit or possibly get the access gate repaired that seems to break each week. Saying that you are doing the “best you can” is interpreted as; “The property manager is not doing as good as someone else may be able to do”. This means that your “best” is simply not enough for them, and the resident latches onto the statement as an admission of weakness. Saying, “We have rush ordered the part, are handling the issue as a top priority, and will be in the unit immediately when we receive the part” is a better approach.

”The Leasing Agent Had No Authority to Tell You That”

The desperate leasing agent “possibly” tells a prospective resident that the carpeting is set to be replaced in a month. The resident moves in expecting full well that they will be getting new carpeting, and the current carpeting is really bad. When the carpeting is not installed, the resident begins to demand that they get the new carpeting. Your leasing agent has since been fired, or your owner just informed you that she is filing bankruptcy and that no non-essential improvements will be been made. You then try to tell the resident that the leasing agent had no authority to make that promise. The problem is that the leasing agent DID have what is known in law as “apparent” authority to BIND the principal, the management company or the owner of the property to install new carpeting. By telling the resident the leasing agent had “no authority”, you may be admitting the leasing agent indeed did make the promise, when possibly the leasing agent did not make such a promise; with the former leasing agent no longer around, it is a big mistake to acknowledge statements you do not know were made. If the resident is not going to get new carpeting and you know for a fact the leasing agent did not promise the carpeting, the proper response would be, “New carpeting is not scheduled to be installed in your unit, and there is nothing in the lease to indicate that your unit was to get new carpeting.”

Responding to the Security Deposit Dispute

The classic mistake is to respond to a resident’s security deposit dispute by giving them (or worse yet, their attorney) a long drawn out explanation for what they were charged, why, and for what they were not charged, and how you were giving them a break on things for which you could have charged them. In the first place, you are NOT required by law to respond to a resident’s security deposit dispute, and secondly, if you feel your charges were legitimate, have good documentation including your inspection reports and photos, and followed all the correct procedures required by law, you can simply respond to the former resident in writing with a short statement such as, “We have reviewed your file, the inspection reports, photos and documentation, and all charges stand”. If you do have problems with your proof that the former resident owes you money, you don’t have pictures or have some weakness in the documentation, you may want to call your attorney and see if you can settle.

Dealing With Dueling Residents

Have you ever seen two units at war with each other, or had complaints by one against the other for noise? Sometimes you want to take sides with one or the other. You receive incessant complaints by one resident, saying the other is making too much noise. You feel that the complaints are unwarranted, or the complainer is hearing things or making a big deal about nothing. Your response may be, “There is nothing we can do, as we have not witnessed the noise”, but rather should be, “As soon as you hear the excessive noise, call us immediately so we can listen ourselves.”

You Should Have Gotten “Renter’s Insurance”

This is a classic response the manager makes to the resident when the resident comes in demanding $250 for the dry cleaning bill due to the pipe break in the ceiling above their closet. The manager feels that the apartment community is not liable for the damages, BUT are they? Just because the lease states that you are not responsible for damages to a resident’s personal property, a judge may find that you are and ignore the clause in your lease. The next time a resident complains about damages to their personal property, tell them, “Sit down and fill out this Incident Report, and we will take it to the regional manager or owner”. Telling the resident right off the bat that they should have purchased renter’s insurance is a sure way to see a $250 demand magically inflate to a $2500 demand when the infuriated resident goes to an attorney.

Implying You Will Give the Resident an Extension to Pay Rent

 

 

Your resident comes into the office and tells the leasing agent that he will be in next Monday with the rent check. However, the rent is due today. Your leasing agent then simply says, “OK”. Four days later you file an eviction, and the resident defends the case, saying he was “told” by the leasing agent that it would be okay to pay the rent on the Monday. Could this be a good defense? It certainly complicates matters. Always tell your employees to NEVER discuss extensions or rent payment arrangements with the resident, as an inference can be drawn that could end with you losing an eviction.

Telling a Resident to “Pay What They Can When They Can”.

In these troubled times, partial payments are being accepted at a much higher rate. If you are not specific or have written policies that you follow when accepting partial payments, you could end up with a resident continually bringing in small rent payments. This can create a waiver situation and cause you to lose an eviction. If you decide to take partial payments, you will have to live with the potential consequences.

Telling a Resident the Repair Will Be Made When the Rent is Paid

The resident is delinquent and owes 2 months’ rent. He calls you up demanding that his a/c be fixed. Your response? “Pay the rent, and then we will fix the a/c”. This response will almost assuredly give the resident a defense to an eviction action, and frequently will turn the judge against the owner in the process. The fact that the resident owes you money has NOTHING to do with your responsibility to maintain the premises.

Telling the Resident the Owner is in Financial Distress

The property owner may be in financial distress, and this is why certain things just are not being maintained properly; a/c units are being fixed rather than replaced, or cosmetic things are not being handled like before. It may be true that the owner is in financial distress, BUT the resident does not need to have this information. When the resident asks you why something is being repaired rather than replaced, never respond by revealing the owner’s financial condition.

Telling the Resident Why They Are Being Non-Renewed

You have no legal duty in conventional housing to tell a resident why he is being non-renewed. If you decide to discuss your decision, it will just result in the resident trying to defend himself or argue with you about the facts. A good response would be, “Just like you have the ability to non-renew your lease at the end of the lease term, we also have the ability to nonrenew your lease at the end of the lease term.”

There are too many situations to describe when a resident will tell you something, and you will respond. It is what we do; it is human nature. Try as hard as you can to avoid the sudden or improper response. Hold off on an answer or response, be it verbal or written. Get to the phone or computer immediately, and ask your attorney how you should respond, and what you should say in the response.

RESIDENTS DUTY TO MAINTAIN

We start by recognizing that the rental premises are usually owned by the manager, except in rare situations, such a sublease. Since it is the manager’s real property, its upkeep is the manager’s duty. In Florida it is the manager’s responsibility to prepare a property for occupancy and make the repairs necessary for habitability. Further, the Florida Residential Landlord/Tenant Act (the “Act”) obligates the manager to certain statutory responsibilities to maintain the rental premises. A manager often cannot avoid his duty of habitability or his statutory obligations by including a lease provision purporting to waive all repairs, acknowledge habitability or accept possession “as is”. Florida statutes specifically prohibit enforcement of lease provisions that attempt to avoid the manager’s duties arising under the Act or otherwise arising under law. However, the manager’s duties may be modified under the rental agreement to varying degrees, depending on the type of rental unit. See our article, “The Manager’s Duty to Maintain”, for a detailed discussion of the manager’s duties and the permitted shifting of those duties by written agreement.

In this article we address the duties to maintain that the Act demands from the resident. The resident’s duty to maintain the rental premises can be found in FS 83.52. This statutory section’s title, “Resident’s Obligation to Maintain the Dwelling Unit”, is somewhat misleading. The section might better state that it covers the resident’s duty to properly use the rental premises. The statute requires not only the proper physical use of the manager’s property, but also the proper behavior of the resident and his guests on the rental premises. Note that this statutory section does not distinguish between single family homes, duplexes and multifamily rentals. The resident’s obligations are the same without regard to the type of rental premises. The resident’s failure to comply with the obligations contained in this section can be the basis for the manager’s service of a Seven-Day Notice of Noncompliance with Opportunity to Cure. Continued noncompliance may be cause for service of a Seven-Day Notice of Noncompliance without Opportunity to Cure.

FS 83.52(1) Building Codes

FS 83.52(1) requires that the resident “comply with all obligations imposed upon residents by applicable provisions of building, housing and health codes” (hereinafter just “codes” for short). This mirrors the statutory obligation of the manager in FS 83.51 to comply with codes. The definition of “building, housing and health codes” can be found in FS 83.43(1). It is so broad that it will include almost anything that applies to housing. The resident may have obligations under the statutes, ordinances or regulations of state, county or local jurisdictions.

FS 83.52(2) Clean and Sanitary

The second subsection of the statute requires the resident to “keep that part of the premises which he or she occupies and uses clean and sanitary.” The definition of “premises”, which is found in FS 83.43(5), includes not only the resident’s apartment, unit or home, but also the building of which it is a part and the common areas for all resident’s use. The resident’s duty to keep clean and sanitary applies to his residence, and if applicable, to the building and common areas which the resident uses. It requires the resident to avoid littering and to pick up after himself and his occupants and guests. This does not require the resident to clean the building or common areas. That remains the manager’s responsibility as provided in FS 83.51.

FS 83.52(3) Garbage

The third subsection requires the resident to “remove from the resident’s dwelling unit all garbage in a clean and sanitary manner.” This provision uses the term “dwelling unit” to signify that the resident’s duty is to remove the garbage from his apartment, unit or home. It does not require the resident to provide for the pick-up and removal of the garbage from the property. Again, that is the manager’s responsibility as provided in FS 83.51.

FS 83.52(4) Plumbing Fixtures

The statute’s fourth subsection requires the resident to “keep all plumbing fixtures in the dwelling unit or used by the resident clean and sanitary and in repair.” This provision speaks of “plumbing fixtures.” It is not responsibility for all the plumbing. While there may be some gray area of what is a fixture, it is clear that this provision limits the resident’s obligation. This provision requires not only that the fixtures be kept clean and sanitary, but also that the resident repair them. Assuming the fixtures, such as faucets, sinks, toilet bowls, etc., are in good repair at initial occupancy, the resident must repair the fixtures during the tenancy without regard to the manager proving that any damage was the result of the resident’s intentional act, negligence or lease noncompliance.

FS 83.52(5) Facilities and Appliances

The fifth subsection states that the resident “use and operate in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators.” There is no independent duty to repair the facilities or appliances. The resident would only be responsible for the repair of the facilities or appliances if the resident (or his occupant or guests) broke or damaged them by unreasonable use or operation. If the facilities or appliances broke or malfunctioned due to some other reason, for instance due to age, the manager is responsible for the repair.

FS 83.52(6) Damage or Removal

Subsection six mandates that the resident “not destroy, deface, damage, impair or remove any part of the premises or property therein belonging to the manager nor permit any person to do so.” This is a broad general prohibition against damage or unauthorized removal of the manager’s property. The manager can base the resident’s liability for repair or replacement of damaged or removed property, as well as for an unauthorized alteration, on this subsection.

Issues

None of the above subsections specifically require the resident to report any needed repairs. The duty to report to prevent further damage can be surmised from the duties in FS 83.52 (1-6), but it is not an explicit obligation. As such, the manager cannot be assured that a judge will find a duty to report under FS 83.52. The manager also cannot be assured that a judge will find any duty to control mold in FS 83.52. Mold is mentioned nowhere in the statute. The manager should not rely on the statute’s requirement to use and operate the ventilating and air conditioning in a reasonable manner as an admonishment to control humidity. The manager should include appropriate lease provisions requiring the resident to report needed repairs and to control humidity/mildew/mold.

That FS 83.52(5) and (6) provide duties for reasonable use and to refrain from damage is clear. The issue faced by managers is proving that the resident’s use or operation was unreasonable or that the resident caused the damage or removed the property. A court may not assume that because something was in good repair at initial occupancy and it is not now, that the resident is responsible for the damage or repair. The manager must prove that the damage was the result of the intentional act, negligence or some other noncompliance by the resident or the resident’s occupants or guests. Sometimes this can be easy, but sometimes it is difficult to prove that the damage was not the result of a cause unrelated to the resident’s use, such as an appliance malfunction.

FS 83.52(7) Disturb the Neighbors

The final subsection of the statute deals not with the resident’s conduct in using property but with the conduct of the resident himself. It requires that the resident to “conduct himself or herself, and require other persons on the premises with his or her consent, to conduct themselves in a manner that does not unreasonably disturb the resident’s neighbors or constitute a breach of the peace.” Most managers would agree that this subsection is the source of many statutory noncompliances by residents. Note one important point in this subsection. It says “unreasonably disturb the resident’s neighbors.” Often the difficulty in enforcing this subsection is the unwillingness of neighbors to file complaints or testify in court, because they don’t want to get involved, don’t have time for court, or simply fear retaliation. Another problem can be proving that the violator was the guest of the resident, if the violator disappears and the resident denies it was his guest. The subsection provides that the resident must “require other persons on the premises with his or her consent” to act properly.

Assuming the Resident’s Obligations

The statute does not contain a provision for shifting the resident’s duties under the statute to the manager by written agreement. In all likelihood that is because the resident’s duties to properly and reasonably use the manager’s property are personal to the resident and not transferable. However, if the manager should intentionally or inadvertently assume an obligation imposed on the resident by any codes, a court may be unwilling to invoke the statute to relieve the manager of his obligation. Judges recognize the unequal bargaining power often inherent in the landlord/tenant relationship, as well as the fact that many leases are contracts of adhesion (leases with no real negotiations over lease provisions) prepared by the manager. In these circumstances if the manager has assumed a resident’s statutory obligation, he is probably stuck with it.

Requiring additional resident obligations

The statute does not state that the resident’s obligations are limited exclusively to those enumerated in the statute. If the manager wishes to expand the resident’s obligations for code compliance, maintenance and repair, he should first consult our article, “The Manager’s Duty to Maintain” previously referenced. In brief, many such obligations are not transferable, and an attempt to transfer most or all of such obligations may not only be unwise from an economic/preservation of property standpoint, but may also be held void and unenforceable. However, the manager can and should supplement the statute with appropriate lease provisions, because the obligations of FS 83.52 are not extensive and contain gaps, some of which are noted above.

Finally, while FS 83.52 places some maintenance, use and conduct obligations upon the resident, the manager bears the burden of proving statutory noncompliances. This will often require testimony by third parties, such as neighbors or vendors making repairs. Given the difficulties of assembling the necessary proof, the reluctance of third parties to testify, and the possibility that the resident will be less than candid about the cause of the damage or disturbance, it is often better to reach a settlement with the resident for an agreed monetary amount or to agree to a vacating date.