TERMINATING A LEASE DUE TO PREMISES DAMAGE
Most leases have a clause as follows: “In the event the premises are condemned by a governmental authority of destroyed due to fire, flood or other acts of god, this lease shall terminate as of the date of the condemnation or destruction”. Many leases go on to say that in the event of destruction or condemnation, the resident’s rent will be abated until such time as the premises are ready for the resident to reoccupy. These clauses look good on the surface and definitely serve an important purpose, but there is a serious flaw. What happens if the premises are “damaged” rather than destroyed? Do you have to house the resident? Do you have to make a repair while the resident is living in the unit? Can you make the resident leave permanently? Should you put the resident in another unit? All these questions can be answered and the problems solved easily, if and only if the lease has proper wording. Fires, hurricanes and floods will happen. It is not a matter of if they will happen but when. Are you ready?
FLORIDA LAW AND DAMAGE OR DESTRUCTION OF THE PREMISES
Florida law somewhat addresses the issue of damage or destruction as follows: FS 83.63 Casualty damage: ”If the premises are damaged or destroyed other than by the wrongful or negligent acts of the resident so that the enjoyment of the premises is substantially impaired, the resident may terminate the rental agreement and immediately vacate the premises. The resident may vacate the part of the premises rendered unusable by the casualty, in which case his liability for rent shall be reduced by the fair rental value of that part of the premises damaged or destroyed. If the rental agreement is terminated, the manager shall comply with s. 83.49(3). Unfortunately, that does not do the manager much good. As you can see, this addresses the resident’s rights in the event of damage or destruction, rather than the manager’s rights.
THE PROPERTY IS SUBSTANTIALLY DAMAGED – CAN WE TERMINATE THE LEASE? -- Unfortunately, Florida law is not clear on this, so we must look to the lease. If we do not have a clause in the lease which allows for the termination of the lease at the manager’s option in the event of damage to the premises, the manager may be stuck having to make a repair while the resident is in the unit, and this may be unpractical or downright dangerous to the resident or other persons, creating a high liability for manager. For example, the resident has a fire and of course blames it on the proverbial “defective stove”. Since the premises may not be actually “destroyed”, the manager may be under a legal obligation to repair the kitchen while the resident is in place or be prohibited for removing the resident due to the fire. The same thing can happen in the event of a flood or worse yet, in the event of a serious mold situation. If we have a proper lease clause, this problem can be solved. Examine the lease clause that follows:
If for any reason the premises are condemned by any governmental authority, or damaged through fire, flood, mold, act of God, nature or accident, this lease shall cease and shall terminate at MANAGER'S option as of the date of such condemnation or destruction, and RESIDENT hereby waives all claims against MANAGER for any damages suffered by such condemnation or destruction
As you can see, this clause enables the manager to have the option to terminate the tenancy and force the resident to vacate the premises.
THE PROPERTY IS DESTROYED – CAN WE TERMINATE THE LEASE? - It is fairly clear that this clause will enable the manager to terminate the lease in the event the premises are destroyed. Will the part of the clause attempting to relieve the manager of liability hold up in court? That is a big unknown, but what we do know is most likely we will be able to deal with the immediate problem of removing the resident from the unit.
WHERE DOES THE RESIDENT GO? - Based on experience and horror stories, we urge the manager never to put the resident into another unit, the corporate unit or the model unit if one is available. We have seen situations where the resident fails to vacate the original unit and the model or corporate unit, fails to pay rent, holds both units hostage or tries to make you pay for damaged personal belongings, and will not vacate until you do so. If you ever have the need to put up the resident, our first recommendation is to place them in a hotel for one or two days, making it clear to them and the hotel that this is only for a fixed short period of time. If you decide to put the resident in another unit on-site, we strongly recommend that you use a TEMPORARY HOUSING ADDENDUM which clearly states that the housing is temporary, lays out all the terms, and has a fixed date when the resident must vacate. Never should you put a resident in another unit without a TEMPORARY HOUSING ADDENDUM.
HOW DO WE TERMINATE THE LEASE? - The resident will need to be given a lease termination notice and most likely a Seven Day Notice of Termination. We urge you to immediately contact your attorney when dealing with these types of situations, and get the attorney involved early on.
SURRENDERING RESIDENT WHO CONTINUES TO PAY THE RENT
If a resident who surrenders the rental unit continues to keep the rent current after giving up the right of possession, does the manager have the ability to retain the security deposit or last month’s rent? When does the statutory claim letter have to be sent? To answer these questions, it is important to first examine Florida Statute 83.49 in conjunction with Florida Statute 83.595.
Florida Statute 83.49 (3)(a) in part provides, “Upon the vacating of the premises for termination of the lease, if the manager does not intend to impose a claim on the security deposit, the manager shall have 15 days to return the security deposit together with interest if otherwise required, or the manager shall have 30 days to give the resident written notice by certified mail to the resident's last known mailing address of his intention to impose a claim on the deposit and the reason for imposing the claim.
The following is the full text of Florida Statute 83.595:
83.595 Choice of remedies upon breach by resident.
- If the resident breaches the lease for the dwelling unit and the manager has obtained a writ of possession, or the resident has surrendered possession of the dwelling unit to the manager, or the resident has abandoned the dwelling unit, the manager may:
- Treat the lease as terminated and retake possession for his own account, thereby terminating any further liability of the resident; or
- Retake possession of the dwelling unit for the account of the resident, holding the resident liable for the difference between rental stipulated to be paid under the lease agreement, and what, in good faith, the manager is able to recover from a reletting; or
- Stand by and do nothing, holding the lessee liable for the rent as it comes due.
- Treat the lease as terminated and retake possession for his own account, thereby terminating any further liability of the resident; or
- If the manager retakes possession of the dwelling unit for the account of the resident, the manager has a duty to exercise good faith in attempting to relet the premises, and any rentals received by the manager as a result of the reletting shall be deducted from the balance of rent due from the resident. For purposes of this section, "good faith in attempting to relet the premises" means that the manager shall use at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the manager uses in attempting to lease other similar rental units but does not require the manager to give a preference in leasing the premises over other vacant dwelling units that the manager owns or has the responsibility to rent.
A manager legally acquires possession of a rental unit three different ways: eviction, surrender or abandonment, all three of which are listed in Florida Statute 83.595(1). Regardless of how the rental unit is reacquired, one constant remains: the resident’s right of possession is terminated. Does this mean the lease is “terminated”? Based on the wording of the statute and which collection remedy the manager chooses in a lease-break situation, the answer will only be “yes” if the manager takes back the unit on “his own account”. Under Florida Statute 83.59 (3) (a), the manager’s obligation to send the claim letter is not triggered until the premises are vacated for “termination of the lease.”
Therefore, if the manager chooses to retake possession on the account of the resident, or “stand by and do nothing”, then the lease is technically not terminated. If a judge accepts this position, then the manager’s obligation to send the claim letter is not triggered until a replacement resident is found, or until the lease expiration date occurs. Therefore, if a resident clears the unit out and turns in keys because of a great new job in California, but continues to keep the rent current, the manager should be able to keep the deposit in escrow until true termination of the lease occurs, and then make a decision at that point (within 30 days) as to disposition of the deposit. Similar logic would apply to last month’s rent being held in escrow. It is important that the manager be able to document reletting efforts, not only to show that the manager has met its duty to use good faith in finding a replacement resident, but also to support the manager’s decision in holding off from sending the claim letter, when there may not be any immediate claim when the resident vacates early.
A related issue occurs if a resident is evicted. The manager still has the right under Florida Statute 83.595 to hold the resident to the lease balance when an eviction occurs. If the manager elects to find a replacement resident on the account of the resident after the eviction is finalized, a very good argument could be made that the manager can hold off sending the security deposit claim letter in accordance with the above guidelines. Nevertheless, our office recommends sending a claim letter within 30 days of the writ being executed, since after most evictions are finalized, at least the security deposit amount is owed, and some judges may be reluctant to accept an interpretation of the statute which allows the manager to delay in sending a claim letter after the right of possession has vested back to the manager. However, the better argument is that termination of the resident’s right of possession and termination of the lease can be two very different points in time.
SURRENDER OF THE PREMISES
Two residents are on the lease agreement. One of the residents stops by your office and throws a set of keys on your desk proclaiming, “We are outta here”, and rushes out of your office. You decide to check the unit out, and it appears vacant. The electric is off, the unit is relatively clean, and the only personal property that you see is a box of books, an old television, bag of clothes and computer monitor. Looks surrendered for sure. Within a few days you have your maintenance staff do a full cleaning of the unit, including touch up painting and a trashing out of the remaining property. The locks are changed, as this is your usual procedure. A week later, one of your residents appears in your office claiming that she could not get into the unit. You inform the resident that her roommate turned in keys the prior week, and that the unit has been cleaned out and locks changed. Surprised and shocked, the resident in your office demands to know where all her personal possessions are, including a computer, CD collection, valuable antiques, expensive mountain bike and designer clothes. You state that there were no such items in the unit, and the resident storms out. You then get a letter from a lawyer, or possibly the police pay a visit to your office. Did you do something improper?
What is Surrender?
The term surrender is not specifically defined under the Florida Landlord/Tenant Act. Many managers assume that act or turning in keys constitutes a surrender, and in many cases, a judge would be satisfied that surrender occurs with the turning in of keys. However, it should be clear to the property manager that all residents on the lease have indicated in unequivocal terms that they have vacated the premises and are turning possession over to the manager. A writing signed by all residents is preferable, and no human beings should still be living in, using or sleeping in the unit. The property manager has to review very carefully the circumstances of keys being turned in; unless the keys are clearly being turned in as a consensual act by all residents on the lease, it can be very dangerous to presume surrender has occurred. Even if there is only one resident on the lease, if keys show up in the property manager’s drop box with no note, it may not have been the resident dropping the keys off.
The Property is “Surrendered” But Not Vacant
Your residents, all of them on the lease, may have given you the keys and indicated to you that they have surrendered the premises. You go out to the premises, and someone appears to be living there. You see clear and convincing evidence that the premises are being occupied by someone other than the residents who were just in your office yesterday. The premises are not surrendered, and if you think the occupant in the unit is a trespasser, think again. If that person claims he is there with the permission of your residents who just gave you the keys, you will be forced to file an eviction against your residents, as they have not completely surrendered the premises. The fact that the residents came to your office, turned in keys and said they were out is not sufficient.
One Resident Surrenders
One resident on a two resident lease comes into your office and hands you the keys announcing “they” have vacated. This is a common occurrence. You will then check the premises, and if it appears there is little to no personal property on the premises, the usual assumption is that all the residents have vacated. The problem is that only the resident who has given you the keys has in fact vacated, but the other resident has no idea this has occurred, as she may have been staying at her boyfriend’s house. This resident then appears in your office after locks have been changed and wants to know why she has been locked out. You reply that possession was turned over by the other resident the week before. Unbeknownst to you, the resident who surrendered the keys to you sold all the other resident’s personal belongings and threw the rest in the trash. They were not getting along. Now the other resident is attempting to hold you responsible for all the missing items. What happened? Only one resident gave up the right of possession, and that was not complete surrender.
Written Notification Of Surrender
There will be times when you do not receive the keys but receive a letter from the resident or residents stating that they have indeed vacated the premises. This would seem to constitute surrender, but again, the unit must be examined to see if this is truly the case.
Some Final Words
As you can see, receiving keys or a letter from the resident or residents may indicate that the residents have vacated the premises, but if anyone is left behind, you do not have a surrender; if you do not have clear confirmation from all residents on the lease that the right of possession has been given up, it can be dangerous to presume a surrender. Never assume you have complete surrender and right to possession of the premises until you examine the premises and consider all the underlying details of the case; if you have any doubts, consult your attorney.
SUING A RESIDENT FOR MONEY OWED
If our office could collect just a small portion of the lost rents and damages suffered by the managers we represent, we probably could close the doors in a year’s time and live happily ever after in a mansion on a tropical island. The truth is, the money that residents owe when they break a lease, get evicted and/or damage the premises is very difficult, if not impossible, to collect. Every day we get calls from upset managers asking us if we can collect the money owed to them, or if we will file a lawsuit to collect the money. Our usual answer? No. The reasons behind this are many. Most residents who could not care less about abiding by the terms of their lease will not pay you the money they end up owing you. Many are just uncollectible or owe so many people money; you are just not high on their list.
Florida is a “Debtor State”
While Florida is considerably manager friendly when it comes to evicting the resident, the collection laws favor the debtor. It is ironic that residents can be removed in 20-40 days if they fail to pay their rent in the 3 business day time period of the Three Day Notice, but cannot be forced to pay money they may owe. The days of “debtors’ prisons” are long gone.
A debtor in Florida enjoys several significant protections. For example, if the debtor is the head of a household, his wages cannot be garnished (there is a very limited exception for some consumer transactions). Some forms of income can never be garnished, such as disability income or welfare payments. Also, the debtor can protect up to $1000.00 of personal property from seizure for collection (and that’s $1000.00 per person in the household, regardless of age). The process of garnishing wages in the event the debtor is not under an exemption is often cost prohibitive.
Some Collection Alternatives
1. Collection agencies: There are many collection agencies which will vigorously attempt to collect money for you by sending out threatening letters and calling the resident. Additionally, they often have the capability of finding the resident through sophisticated skip tracing and hounding them. Sadly, you are probably just one of many creditors that the debtor has. We recommend that you send the accounts to a reputable (and we stress reputable) collection agency, but be absolutely certain that you can prove the amount owed possibly years later, when an attorney for the resident challenges you. If you are challenged and you cannot prove that the resident owed you the money you stated was owed, you could end up in a nasty lawsuit in which you will end up paying the resident and his or her attorney a lot of money, not to mention your attorney who you will have to hire to defend you.
2. Small Claims Court: Small Claims Court is the place where many smaller lawsuits are filed against residents. You need to file in the county in which the property is located or where the former resident resides. If you can find the resident and have him served with the lawsuit, you can end up in court where the resident may not show up and you will get Judgment against the resident, the resident will show up and you will possibly successfully mediate the dispute, or you could lose the case entirely or in part. Worse yet, an attorney could jump in and represent the resident, and if you lose your case even in part, you may very likely have to pay the resident’s attorney’s fees. These fee awards can easily reach thousands of dollars. For those clients who are retired or have a lot of time on their hands, we tell them that they could go to court, fill out the paperwork and file a case against their former resident. Many of these cases end up with the manager getting some or all of their money. Many more cases result in the manager getting a Final Judgment which is suitable for framing. Getting a judgment is only the very first step in the process.
Should You Use An Attorney?
In most cases hiring an attorney and paying good money to go after bad money is not wise. There are some attorneys to whom we refer clients, such as Troy Lotane of Vance Lotane and Bookhardt who file a large number of cases in Small Claims Court. Their firm has indeed been very successful at collecting, but they review each case carefully and evaluate the collectability of the debtor before they will help you make an informed decision whether or not to file suit. There are over 90,000 lawyers in Florida. Will many be happy to take your money so you can sue someone out of “principle”? Yes, but our firm is not one of them.
The Resident Has a Business! We Can Collect!
People who own businesses are no easier to collect from than that nice resident who just has no money or got themselves into a bind. In fact, it is often harder to collect from a business owner. Their business is in a corporate name, and they are used to people not paying them. This equates to them feeling it is okay not to pay you.
The Resident Completely Trashed the Apartment - I Want To Sue!
Think about this. Is a person who goes out of their way to destroy the rental property someone who is going to pay you or show up in court? These people are the last to ever dream of paying their debt to you or anyone else. Clearly, these are people you should just forget about. It always strikes us as funny when the property manager goes through great pains to take pictures and videos of a completely trashed unit. These residents don’t pay. It they did, they never would have trashed the unit in the first place.
Is All Hope Lost?
There are one or two good responsible people in Florida who may actually pay what they owe you. There may be a co-signer involved, which can increase the likelihood of payment, or the resident’s situation may change, and they decide that they have the means to pay. Our recommendation is to give your attorney a call and at least get an opinion. Often an out of state owner of the property does not understand what the laws are in Florida, as they may come from a creditor- friendly state. Your lawyer can give you a quick written evaluation, and possibly your owner will want to then back down or will still want to proceed. Some people are indeed collectable and worth pursuing. Most are not. Sometimes a simple $50.00 letter from your attorney can result in payment. There are many laws governing the collection of debts by collection agencies, lawyers and the original creditor, which may be you! Do you know these laws? Are you ready to take a gamble when you can end up the loser? Do you feel prepared to take on the role of a “collector”? Do you know that you can actually be considered a “debt collector” under Federal law? If your answers to some or all of these questions are “no”, take a deep breath and spend your energies trying to keep your rental property rented with good residents.
STORM ISSUES AND THE RESIDENT
Storms in Florida have resulted in many new legal issues between the manager and the resident. Unfortunately most managers are not prepared for the myriad number of problems, and often decisions are made which ended up in litigation. Common problems included the residents taking it upon themselves to secure the property and in the process damaging the property. In many cases the premises are substantially damaged, and the resident is allowed a rent rebate or some concession which ends up not satisfying the resident and becoming a problem later. Construction workers often are not able to complete repairs in a timely manner. In severe damage situations, the residents refuses to vacate the premises and also refuses to pay rent. Who is liable for protecting the resident and his personal property? Can we make a resident leave if the premises cannot be repaired quickly, or it is necessary to have the resident leave the premises to have the repair properly made? What about generators? In a multi-family environment such as an apartment community, the misuse of a generator can put people and property at great peril. Can we prohibit them? The following discussion is preliminary at best and is meant to give you some ideas which you may wish to implement in your lease or an addendum to your lease. It is by no means complete, but it is a start.
What are the Manager’s Obligations?
Many leases contain clauses reminding the resident that the manager is not responsible for their personal property, and the resident agrees to this. Surprisingly, these clauses are not always upheld in court for situations in which damage to the resident’s personal property was not due to any fault of the resident. If there is a pipe break, and the resident’s personal property is damaged or destroyed, this clause may not hold up. In the event of a storm, if there were some simple steps that the manager could have taken to help preserve the personal property of the resident from damage, things are not as clear. The duty of the manager to secure the premises is not spelled out anywhere in Florida law. We recommend the following clause.
MANAGER’S OBLIGATIONS: Resident agrees Manager has no obligation to install storm shutters and/or take measures to prevent wind, rain and/or other objects or projectiles from entering the premises in the course or event of a windstorm, flood, hurricane, hailstorm, tropical storm, or any other act of nature (hereinafter “Storm”) that may strike in the area of or affect the premises rented by Resident from Manager. Resident agrees Manager has no duty to advise Resident as to evacuation orders, potential or current storms, safety measures, storm-preparedness procedures, or storm recovery resources. Resident agrees to use due diligence in keeping informed of the current and future weather.
What About the Resident’s Personal Property?
Florida law does not prohibit or specifically allow a manager to require a resident to get insurance for her personal property, commonly known as “renter’s insurance”. There also is no affirmative duty on the manager to secure the resident’s personal property, which may be in accessible areas such as balconies or lanais. It is possible that a particular area of the outside of the premises is subject to flooding. The manager may have a duty to warn residents of this if the manager has knowledge of a low section of the property or prior flooding. Many residents are not aware that the typical insurance policy that a manager has on a rental property in no way includes coverage on any of a resident’s personal property or coverage for any other loss that may occur to a resident other than personal injury or death due to the manager’s negligence. We recommend the following clauses:
RESIDENT’S OBLIGATIONS REGARDING PERSONAL PROPERTY: Resident agrees the rental premises are located in an area that may be subject to storms, and as a result, it is necessary to take steps to protect one’s personal property, including but not limited to securing objects that may become projectiles, keeping important documents in a location safe from damage, providing for the safekeeping of keepsakes, and obtaining appropriate insurance. Resident understands that, even with precautions, damage to personal property, including vehicles, may occur.
RENTER’S INSURANCE: Resident understands and agrees Manager’s insurance if any DOES NOT cover injury or death to Resident’s person or loss of any kind to Resident’s personal property or expenses incurred by Resident due to a storm, including but not limited to, loss of perishables, interruption of water, electric, cable or other utility service, relocation expenses and/or temporary or permanent housing. Resident agrees he or she has an affirmative obligation to obtain renter’s insurance to cover losses in the event loss should occur to Resident’s person and/or personal property due to a storm. Failure by Resident to obtain renter’s insurance is done at the complete and total risk of the Resident.
LIABILITY OF MANAGER: Resident waives any liability or duty on the part of the Manager for any damage to person or property should any occur due to a storm. Resident agrees to indemnify Manager should any third party institute an action for damages against Manager due to damages caused to person or property by Resident’s personal property and/or Resident’s actions or inactions relating to such personal property. Such indemnity shall include attorney’s fees and costs of Manager incurred in any actions for damages by a third party.
Storm Preparation Actions by the Resident
Certain steps should be taken by a resident to minimize the risk of harm to the resident, personal property belonging to the resident, and property belonging to others due to the resident’s personal property becoming a projectile or otherwise causing damage to another’s property. At the same time, a manager does not want a resident to drill holes in the premises, put nails into the premises or take steps to protect the resident’s personal property which could cause damage to the premises in the process. We recommend the following clauses:
STORM PREPARATION: Once a tropical storm, hurricane, flood watch or warning is issued for a particular area and/or at the request of Manager, Resident agrees to take storm preparedness actions. Any injury to Resident arising from storm preparation is the sole responsibility of the Resident and not of Manager. In the event of damage to Manager’s property due to Resident’s storm preparations, that damage will be the responsibility of Resident. Residents shall remove all authorized and unauthorized objects from the immediate premises that may become projectiles in a storm, such as deck chairs, potted plants, patio benches and any items on a balcony, lanai, patios and/or breezeways of the rental premises. These items should be placed inside the apartment and returned to the outside only when it is safe to do so. In no event, shall any motorcycle, scooter, gas grill, or other item containing gasoline or other fuel, be stored inside in the rental premises. These items must be removed completely from the premises.
The Generator Problem
The manager must decide if a gas powered generator will be allowed on the premises. Gas generator dangers are huge. Every year fires are started and individuals die of carbon monoxide poisoning due to generator misuse. In a single family home situation, the manager may not have a problem with allowing the resident to use a generator, but in multi-family housing the risks are multiplied greatly and are severe. Let us assume that an apartment community prohibits generators, but the resident purchases and uses one on the premises. Can the manager remove or disable the generator without liability? We are not sure, but we have created a clause which your attorney may want to review and give you his or her opinion. We are not by providing this clause stating that this clause will definitely be upheld in court or will not create liability on the manager, so you have been warned.
GENERATORS AND FLAMMABLE LIQUIDS: Resident agrees that NO GENERATOR(s) WHATSOEVER shall be permitted to be used by Resident on, in or near the premises. Severe hazards are associated with storing and operating a generator at the property, including injury and death to persons and damage to property. Resident agrees that NO FLAMMABLE LIQUIDS shall be permitted to be stored on, in or about the premises including but not limited to gasoline, kerosene or propane.
REMOVAL OF OR DISABLING OF GENERATORS BY MANAGER: In the event Manager is made aware that Resident is in possession of or using a generator on, in or near the premises, Resident by this document gives Manager absolute permission to disable the generator and/or remove the generator from the premises without notice or further permission of the Resident. Resident agrees to hold Manager, its agents, employees and assigns harmless for any damages suffered as a result of Manager disabling and/or removing the generator from the premises. This includes damages to Resident’s personal property due to lack of electricity and /or damages to or loss of the generator itself.
Notifications to the Resident
Nothing in Florida law requires a manager to notify the resident of an impending storm. It is good in multi-family housing though for the manager to have a policy and procedure in place, as it only makes sense that the manager take steps to notify residents who may not be aware of the situation. A manager cannot force a resident to vacate the premises. We recommend the following clauses:
EVACUATION OF PREMISES: In the event a governmental entity orders an evacuation of the area, Resident agrees to follow such evacuation orders. In the event Resident fails to follow the evacuation orders, Resident agrees that Manager shall not be liable in any way for injury or death of Resident or damage or destruction of Resident’s personal property, including vehicles.
The Damaged Property Catch-22
The most common problem our office deals with in the aftermath of a storm is the damaged unit. The destroyed unit is easy. The residents are gone and can’t move back in. The damaged unit creates serious issues. Does the manager have to repair? Can the manager timely repair? Is there water damage causing mold? Can repairs be made with the resident present? Does the resident have to pay rent? When a unit is damaged, we like the manager to have the pure absolute option to terminate the tenancy and evict the resident if necessary. We don’t need any arguments about the rent, reductions in rent, rent withholding, interference with repairs or any other problems from the resident. We want the manager to simply say “Get Out”, serve the resident proper notice and file an eviction if the resident fails to vacate. Proper lease wording is crucial. We recommend the following clause.
DAMAGE OR DESTRUCTION OF PREMISES: In the event the premises are damaged or destroyed by a storm, and in Manager’s sole judgment it is necessary for Resident to vacate the premises due to a dangerous condition on the premises or for repair, reconstruction or demolition, Resident agrees that Manager may terminate the tenancy. Resident shall vacate the premises within the time period as designated by Manager, and Resident shall not be liable for any further rent under the terms of the lease agreement.
Contact With Your Attorney
Probably the most important thing you can do after a storm is to contact your attorney before releasing a resident, giving a rent concession or making any deals or arrangements whatsoever with the resident. Emotions are running high, situations often are emergent in nature, and anything you do with the resident can have long lasting legal consequences. We urge you to examine your storm policies and procedures and have all preparations in place not just with the properties that you own or manage, but also your personal business. Many of our clients completely lost their offices in the past 3 years and were not prepared to be up and running again quickly. While this article dealt with your agreement with the resident, you need to have a full meeting of the minds in writing with the owners of homes if you are a manager of single family homes, duplexes and the like. This topic will be examined more in depth in a future newsletter.
SMOKING BY RESIDENTS
Many managers are now setting aside certain units as “Smoke Free” or renting homes out and prohibiting smoking on all or part of the premises. Many residents do not want to rent a unit where the prior resident smoked, and in many units, smoke travels through the premises interfering with the rights of other residents. Restricting a person’s ability to smoke on the rental premises in full or in part is not prohibited by law. The lease needs to clearly spell out the restrictions, and the challenge to the manager will be enforcement and proof.
Smoking Prohibitions and the Law
There are no laws, state or federal, that prevent a manager from prohibiting smoking in a rental unit, house or designating a building as smoke-free. There are no laws that prohibit a manager from designating certain areas as “smoking areas” or limiting smoking in the common areas.
Smoking Prohibitions and Fair Housing
It is not illegal discrimination to create a smoke-free policy, smoke-free units or smoke-free areas, as smoking is not protected under law. It is important to note that creating a smoke-free policy should never be used to target a protected class, as this can trigger a discrimination action and potentially be considered illegal. Residents who are affected by second hand smoke actually may be able to sue your company under the Americans With Disabilities Act and the Fair Housing Act for discrimination, if they have breathing disorders and you do not make accommodations for them in their rental premises, or the common areas in the event they have health issues which are being adversely effected by secondhand smoke.
The Benefits of Smoke-Free Units
- Reduced risk of fire and injury. Lighted tobacco products cause over 15,000 residential fires, over 500 deaths and over 1300 injuries due to these fires, and over $300 million dollars in property damage each year.
- Litter reduction. Your maintenance personnel will attest to the fact that cigarette butts accumulate and remain on the premises for a long time. Residents routinely will throw the cigarette butts on the ground, in the garden areas and all around the common areas. These cigarette butts pose a threat to small children and animals that may place them in their mouths and ingest them.
- Better health. Cigarette smoke travels through walls, ceilings, floors, electrical conduits and HVAC systems. This exposes other residents to secondhand smoke, and these residents then suffer health hazards and inconvenience.
- Decreased damage to property. Smoking damages walls, ceilings, carpet, furniture and can deposit a layer of tar on just about any surface with which smoke comes in contact, in addition to increasing the likelihood of carpet, flooring and counter burns. Often smoking related damage requires a substantial expenditure of funds to remove staining and odors, and to otherwise repair the unit.
- Reduced liability. Americans With Disability Act and Fair Housing complaints are rising each year. Accommodating residents who do not want to be affected by second hand smoke and/or reducing the exposure of a resident to second hand smoke will reduce your liability. In addition, a resident has common law remedies, including the implied warranty of habitability and that the peaceful, quiet enjoyment of the premises is being interfered with. Smoke infiltration from another unit may qualify as a violation of the common law rights, and we have seen residents break their lease due to smoke infiltration.
Creating the Smoke-Free Unit or Building
- Current residents. You cannot prohibit a current resident from smoking, if there is no prohibition in the lease, or the resident has failed to sign a no smoking addendum after the lease has been signed. A non-smoking resident who has already signed a lease may be willing to sign a no smoking addendum, and this can speed up the conversion of a building to non-smoking units.
- New residents or renewals. If your new lease or addendum prohibits smoking, you can prohibit a new resident and their occupants from smoking, or refuse to renew a lease if a current resident refuses to sign the new lease or addendum.
SAMPLE LEASE WORDING
”Resident agrees that Resident, guests and/or occupants will not smoke or ignite any tobacco, clove, incense, or other legal or illegal smoking product on the premises. The premises for the purposes of this section includes the interior or the apartment, the breezeway outside the apartment, and any lanai or balcony if provided. Smoking for the purposes of this section is defined as igniting, inhaling, exhaling and/or carrying any lighted legal or illegal smoking product. In the event Resident, guests or occupants violate this smoking policy, Resident shall be in breach of the lease agreement and subject to eviction action, in addition to being liable for any damages to the premises cause by smoking or costs incurred by Manager in removing smoke odor”
Note: The above sample clause is for a complete smoking prohibition. The clause can be modified to allow lanai smoking, smoking areas or other variations.
While smoking can be prohibited in the lease agreement or addendum, enforcement is always going to be a problem. We all know that residents often will not do what they are “supposed” to do or what they “agreed” to do in the lease. A no smoking clause is a start though, if you wish to create a smoke-free unit or building, but proof will become an issue in the event of a violation or violations.
SMALL CLAIMS COURT STRATEGIES AND SETTLEMENT
A Small Claims Court case is simply a lawsuit by one party against another party where the sum sought after is up to $5000.00. Florida law has created a system within the County Court system where smaller cases such as these are handled in a unique and often expeditious manner. There are many ways of proceeding if one finds himself or herself as a defendant in a Small Claims Court case. You may be able to file a Motion to Dismiss if there are defects in the Plaintiff’s case, an Answer may be appropriate, possibly a Counterclaim will be necessary, or the case can be amicably settled. This article will only deal with settling the most common Small Claims Court case whose subject matter is a Security Deposit Dispute, and assumes the Small Claims Court case is NOT filed by an attorney, but rather is pro-se, meaning that the Plaintiff filed the case on his or her own without an attorney signing the paperwork.
The Security Deposit Dispute—The Most Common Small Claims Court Subject Matter
The vast majority of Small Claims Court cases involve a dispute over a security deposit. The Plaintiff, a former resident, will claim that you failed to return the security deposit, failed to send out notice in the required time period or unfairly charged the security deposit for things that were not the Plaintiff’s responsibility. Most of the time the Plaintiff is suing for no more than the security deposit amount plus the costs of filing the lawsuit. While you may firmly believe that the amount you charged the Plaintiff is absolutely correct, this type of case is one of the best kinds to settle rather than fight.
Why Should We Settle?
The Small Claims Court case regarding a security deposit dispute is much harder for the manager to fight than one may think. The same judge that seems very tough on residents in eviction court often seems to bend over backwards to believe the Plaintiff’s story of the evil, greedy manager who charged the Plaintiff for damages he did not do to the unit that the Plaintiff left cleaner than it was when the Plaintiff moved in. While the ex-resident Plaintiff is bringing the case against your company and should have the burden of proof, the judge will demand that you prove that the unit was not damaged when the resident moved in, the resident did the damage while living there, it was over and above ordinary wear and tear, and you can prove the costs of the repairs or replacements. You may need a detailed move-in and move-out inspection form, photos, videotapes, maintenance persons, vendors and just about anybody you can possibly think of that had contact with the unit in court with you to prove that the amount you charged the Plaintiff was correct. You may have a stack of bills for carpet cleaning, pest control and painting, but the judge will not look at these if you try to use them to prove the Plaintiff damaged the unit, as these bills will be considered hearsay. You will need to bring the painter, pest control person and carpet cleaner into court to testify, and often they do not want to come to court or, when they do come to court, make poor witnesses. In almost every single case we examine, the manager has severe weaknesses in the case.
The Mechanics of the Small Claims Court Case
The Plaintiff files the Small Claims Court case in County Court and has the case served upon you, the defendant, by Registered mail, private process server approved by the court, or most commonly, by a Sheriff’s deputy. When the case is filed, a date is specified on the paperwork for a Pretrial or Mediation date. If the case is not settled before the Pretrial date, you must attend this Pretrial, or you will have a judgment automatically entered against you or your company. At the Pretrial, a mediator is appointed to the case, and there is an opportunity to sit down in a private room with all the parties present to discuss the possibility of settling the case. If the case is not settled, the parties go back to the courtroom where they wait for a trial date from the judge. The parties must then attend the actual trial, where the case will be fully tried with all witnesses present. At the end of the trial, the judge will make his or her ruling and may award costs at that time.
How Long Does the Process Take?
The Pretrial process usually takes from 1 hour to 3 hours depending on how many cases are assigned to the court that day. The time is usually spent waiting in the courtroom to be called by the clerk. Once called and a mediator is assigned, the actual Mediation session usually takes between 30 minutes and one hour. If the case is not settled in Mediation, the parties will be sent back into the courtroom, where the wait can be from 5 minutes to one hour to get a date from the court for the trial. The trial is usually scheduled to be held within 60 days from the Pretrial date. On the trial day, the parties can potentially wait up to 2 hours for the trial to begin, and a typical small claims trial takes anywhere from 30 minutes to 2 hours on average. Unlike what you may observe on “The People’s Court” or “Judge Judy”, all the rules of civil procedure apply in the Small Claims Court trial, and it is actually taken very seriously by the judge. You need to have all your witnesses and evidence in court. If you are unprepared or disorganized, expect to be intimidated and berated by the judge. Frequently the judge is already annoyed that the case was not settled, and most judges really do not seem to enjoy small claims court trials.
Settling Prior to the Pretrial, the Cost-Benefit Analysis and “Principle”
Settling the Small Claims Court case prior to Pretrial/Mediation is the preferred way to go. At this point you will have little to no time into the case and will have avoided countless hours of aggravation. You need to make a simple cost benefit analysis of the situation and avoid wanting to go to court for “the principle of the matter”. Fighting over “principle” is just not wise. First, your expenses will be increased and secondly, you have no idea whatsoever if you will win in court, as Small Claims Court is so full of surprises. If you and the Plaintiff can come up with an agreeable amount, the agreement is put into writing, the money is exchanged, and the Plaintiff files a Voluntary Dismissal with the court. Does it make sense to take 3 staff members out of the office for 5 hours? Are you sure you are going to win in court? Will you need to get your attorney heavily involved? Will you need to subpoena parties? Will your vendors that you subpoenaed be aggravated with you? Will they show up in court? You need to take a deep breath and ask all these questions before you chart out your course of action. Assuming you are agreeing to give the Plaintiff some money to settle the case, it is imperative that you do not just send the Plaintiff the money. You must do this in conjunction with a proper Voluntary Dismissal and release. You don’t want to settle with the Plaintiff and then have his or her co-resident sue you over the same dispute. Smart settlement is a smart thing to do. Principle does not pay.
Settling the Small Claims Court case at the Pretrial Mediation
Surprisingly, most Small Claims Court cases are settled at the Pretrial Mediation. The court has fully trained volunteer mediators from all walks of life whose mission it is to have you settle the case and walk out of the courthouse relatively satisfied. In the mediation, each party has a chance to present their side of the story in front of the impartial mediator. The mediator also will conduct a caucus at times, whereby one party leaves the room and the other party can privately speak with the mediator. When you go to mediation, you want to be very prepared, as sometimes; a good mediator will encourage a party to settle if they feel the other party has a very good case. Once the parties come to an agreement, the mediator writes everything up on a settlement form, and the case is over. Assuming it is a security deposit dispute and you are agreeing to return some funds to the resident, this will all be written out, and you must comply with the Settlement agreement or you will have a judgment entered against you. Since we know that most cases are settled at Mediation, try to settle the case BEFORE mediation to avoid wasting time.
Suppose Mediation is Unsuccessful?
If Mediation is unsuccessful, a trial date will be set by the court. It is important to bring your calendar with you to Mediation, as once the trial date is set, the only way it can be changed is with agreement by the parties or the court granting a Motion for Continuance. After a trial date is set, there is plenty of time to decide whether proceeding with the trial is prudent or settlement is the better way to go. A case can be settled at any time prior to the actual trial date. Sometime after the parties have some time to reflect on the mediation, settlement becomes easier. The time before trial can be used to continue to attempt settlement through the use of offers and counteroffers. Always get the Plaintiff’s phone number and current address so the lines of communication can be kept open.
Your Attorney’s Role in a Small Claims Court Case
It is a good idea to always notify your attorney the moment you are served with a Small Claims Court case so your attorney can quickly review the paperwork and give you some advice. Most honest attorneys will tell you the truth about your case, disclose how much it will probably cost to fight the case and advise that you try to settle the case. In most cases, if your attorney advises that you settle the case, they can provide you with advice and with forms to help make this happen. You may want your attorney to attempt to settle the case. This is often an excellent route to take, as long as it will not take your attorney too many hours to accomplish this task. Give your attorney a figure that you will settle on, agree on attorney’s fees, and let your attorney run with it. A pro-se plaintiff will be surprised that you have an attorney involved in the case and will be more likely to want to settle. Here you attorney acts in a quasi-mediator fashion to get the parties to settle. The truth is, most attorneys have no desire to fight small claims court cases regarding dispute security deposits, because in most cases, they know that in the end, their client will not be happy having to pay their attorney’s fees and possibly losing the case in whole or part. Your attorney will advise you if you can go it alone, or if the attorney should file a Notice of Appearance and take over the case.
SMALL CLAIMS COURT AND EVIDENCE
The resident moved out, and you or your maintenance staff begins the fun process of repairing all the damage, painting, replacing carpet, replacing kicked in doors, repairing door frames and filling holes where your resident decided to practice the sport of boxing. The kitchen is an absolute wreck, requiring a deep clean taking hours, and the refrigerator shelves are either broken or missing. The bathroom has deep mold where every bit of caulking ever existed, and the floor is severely stained due to standing water or whatever else. I need not go on, you get the picture.
Should You Sue the Resident? Will You be Sued?
Residents who leave the rental premises in deplorable conditions usually are judgment proof. It would be absolutely ridiculous to spend any serious time or money trying to go after persons like this. Most managers know this, but many still insist on filing a small claims court case and pursuing a judgment. If a manager is local and has time on their hands, usually there is not much harm in filing a small claims court case, and there is little expense if no attorneys are involved. Unfortunately, the manager may have no choice in the matter and be the one who gets sued! There is no doubt that the manager will retain the entire security deposit in a situation in which damages meet or exceed the security deposit amount, and many times, the resident will seek to get the security deposit returned to him or her.
The Seriousness of a Small Claims Court Case
Most managers have no idea how serious a small claims court case can become. The manager may file the case on his own, and the resident hires an attorney who invariably files a counterclaim, meaning the manager now is suing and getting sued at the same time. The prevailing party may be awarded attorney’s fees. This means that if the resident wins and has an attorney, the manager may end up having to pay thousands of dollars in attorney’s fees to the resident’s attorney. The amount of attorney’s fees the judge may award has absolutely no relationship to the amount of the dispute. You could easily have a $5000.00 attorney’s fee award when the dispute was about a $500.00 security deposit, and the judge felt you overcharged by $50.00.
The Proof You Will Submit in Court
Daytime court television shows probably do the most serious injustice to the court system and lead people to believe that this is indeed how court “works”. While some judges in small claims court do indeed play fast and loose with the evidence of the parties, most judges follow the laws, and this means the rules of evidence are followed. Most managers will have a stack of bills and receipts which they think they will use to convince the judge that the resident damaged the property. Sounds reasonable. After all, why would the manager have spent all this money if the resident left the place in good clean condition with no damage? It would seem to make sense that the judge will look at the bills and receipts, and this will help you convince the judge that you indeed were harmed by the resident and should be entitled to keeping the security deposit or getting a judgment against the resident.
The Bills and Receipts Problem
Ready for the big surprise? Bills and receipts cannot be submitted as evidence in court to PROVE the resident did the damage. Bills and receipts are what is known as “hearsay” and CANNOT be used to prove the resident did the damages.
What is “Hearsay”?
Most people think hearsay means that when someone tells you something, you cannot use that statement in court. This is partly true. If I tell you that “John stole the car”, you cannot go into court and say that “Harry told me that John stole the car”. Why? Because if I am not in court with you, the defendant will have no way of cross-examining me. This means that what you are saying is “hearsay”, and the judge cannot listen to this, and it will not be used as evidence in court. Now on the other hand, if I were also a witness in court, and you told the judge that Harry told me that “John stole the car”, I can be called up to the witness stand and be cross-examined. The statement will then be admissible into court.
Other Examples of “Hearsay”
Besides just statements by people that cannot be cross-examined in court because they are not in court, there are other things which are considered hearsay.
- Affidavits. Many property managers get the repair people and vendors to sign an affidavit, get it notarized, and then they think they can show it to the judge. It does not work; it is hearsay, because the vendor or repair person cannot be cross-examined in court.
- Witness Statements. Getting 5 statements signed by people who observed the damages would seem like compelling evidence in court, but again, it is hearsay, unless the person or persons who signed the statements are in court.
- Estimates. No good. Hearsay, unless the person who wrote up the estimate is in court and based the estimate on personal observation.
- Bills. This is the classic mistake of the manager. The stack of bills cannot be admitted into court to prove that the resident damaged the property, unless the person who did the work is there in court, and a witness which can be cross -examined.
- Police reports. There are times where properties are so severely damaged that the police are called in to write up a vandalism report. Hearsay again, unless the law enforcement person who wrote up the report is in court with you.
Is there any value to bills, invoices and receipts?
While they cannot be used to prove damages, they can be admitted into court to prove what something cost you, and if you have proof of payment, they can be used to prove that you paid for something like the supplies, the vendor, and the repair person. This certainly limits the usefulness of your bills, invoices and receipts, BUT will help your case in court; if you make it clear to the judge that they are being admitted as business records to prove what you paid.
If you end up in small claims court involuntarily, i.e. you have been sued; call your attorney as soon as possible. Don’t wait until the last minute when the chances of settling the case are seriously jeopardized. If you decide to file a small claims court case on your own, take the time to talk to everyone who worked on the premises to make sure that they will be there with you in court. You can subpoena these people as well and hope they come to court, but you don’t want to have an angry carpet cleaner who had to kill 5 hours waiting in court with you. Examine your evidence carefully, and try to put yourself in the judge’s seat for a moment and ask, will my evidence and testimony completely convince a judge that the property was not damaged when the resident moved in, and was in a damaged state when the resident moved out? Then expect the resident to come up with all kinds of lies and stories to make you look like the bad guy.
SEXUAL PREDATOR AND OFFENDER ORDINANCES
Background of “Megans Law”
Megan's Law was created to provide information to the community as to the presence of sexual predators and offenders in their neighborhood. Through the Florida Department of Law Enforcement’s website and many other websites maintained by municipalities, it is possible for anyone to look up a person to see if they are a registered predator or offender and see the exact address of that person. Megan’s Law was named after 7-year old Megan Kanka, who was sexually assaulted and murdered by a convicted sexual predator; the law was created to have a system in place under which people could be notified of the presence of such a person in their community.
Florida Law does not require a private person such as a manager to inquire as to whether someone is a sexual predator or offender, does not prohibit renting to one, and creates no requirement for the manager to notify the community or immediate neighbors if they do in fact rent to a registered sexual offender or predator. While Florida law imposes restrictions on where a sexual predator or offender can live, there in no duty or obligation on a Florida manager to inquire about the sexual predator or offender status of a person, or prohibit them from renting where he or she would be in violation of Florida law. Megan’s law as it applies to Florida only requires law enforcement to set up some sort of notification system to help a community know of the presence of an offender or predator in their neighborhood. The FDLE website is such a step in this direction. There are other laws that apply to the registered sexual predator or offender which prohibit them from living within a certain number of feet from places like schools, designated public school bus stops, day care centers, parks, beach playgrounds, libraries, churches or other places where children regularly congregate, but until now, this was not the concern of the Florida manager.
Registered Sexual Offenders and Predators
Certain Florida municipalities are creating and have enacted ordinances which are further restricting where registered sexual predators or offender may reside, AND in some cases, imposing criminal penalties on managers if they rent to such a person in violation of the ordinances.
What Does This Means to the Property Manager?
All manager in areas where there is an ordinance in place should immediately check the FDLE sexual predators and offenders website to see if they are indeed renting to a person on the list. If this is the case, it is highly recommend that the owner immediately examine the lease or the tenancy to see how soon a Notice of Non-Renewal can be given, and this Notice of Non-Renewal should be given in accordance with the terms of the lease and Florida law, plus be sent by certified mail, regular mail and by hand delivery or posting on the premises, to cover all bases. Many residents served with a Notice of Non - Renewal deny receiving the notice, and this can complicate or prevent an eviction from occurring successfully if the resident fails to vacate per the notice.
Every property manager needs to be diligent in conducting criminal background checks on all applicants. There are many excellent companies which provide these checks at a very reasonable cost. We recommend using a Florida company, as they may have more up to date access to the court records. Even after you receive the background history, it is imperative that you check the FDLE website and make a written notation when you checked the website, the exact name you checked as provided by you from the applicant, and the steps you took to verify the information. The FDLE website has photographs of the registrants to assist you in verifying who you are dealing with, as many people have similar names. A registered sexual predator or offender will do whatever it takes to get housing, as they probably have been denied on numerous occasions and will often change the spelling of their name or fill out the application illegibly to make your search more difficult. As you can see, the “as the crow flies” distance requirement is extremely broad. Check with your local municipality, sheriff’s department and police station if you are unsure where your property is located in relation to a school, designated public school bus stop, day care center, park, beach playground, library, church or other place where children regularly congregate. If a property manager places a registered sexual offender or predator within this area and the property owner gets in trouble, be sure that you will not be the next to get in trouble. Remember, 2500 feet is almost one half mile, so the chances are very high that your property could fall within the danger zone.
SEVEN DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE
The “Seven Day Notice of Noncompliance With Opportunity to Cure” is second only to the Three Day Notice as the most common notice that a property manager uses, and is often prepared incorrectly or not given at all. Knowing when and how to prepare and serve a “Seven Day Notice of Noncompliance With Opportunity to Cure” is crucial to successful property management.
When a resident is in noncompliance, action needs to be taken. Whether the noncompliance is an unauthorized pet, unauthorized occupant, debris outside a door, unsupervised children or any of the myriad problems which can occur, nothing will be solved until the resident is notified of the problem and told to cease. All too often the property manager writes a letter to the resident or calls them into the office for a meeting. While this may get the desired results, if it fails, the property manager is now faced with a dilemma and a delay, as in most cases, the law only recognizes “notices”. The classic mistake of property managers is sending “letters” to the residents rather than using “notices”. Commonly, when you send a letter to a resident about a problem, the resident solves that problem and all is well. In a sense, by sending the “letter” you are giving the resident a second chance. The problem begins when the resident does not comply with your “letter”. What now? Can you file an eviction? No. An eviction requires “notice”, a legal “notice” such as a “Seven Day Notice of Noncompliance With Opportunity To Cure” for items which are of a curable nature. If the resident continues to be in noncompliance, a further notice may need to be given called the “Seven Day Notice of Noncompliance Notice of Termination”. If the property manager only gave a “letter” previously to the resident, a “second chance”, they now need to serve a “notice” which in essence is giving the resident a third chance. Depending upon the noncompliance, you may be in the process of losing good residents which are neighbors of this noncomplying resident as the process is so delayed.
What types of noncompliances are of a curable nature?
Here are just a few: improper parking of vehicles, unregistered vehicles, failure to supervise children, barking dogs, unauthorized pets, unleashed pets, failing to pick up after pets, changing locks, speeding in the parking areas, denying access to maintenance, loitering in the breezeways, debris in the common areas, failing to pay a utility, failing to put a utility in one’s own name, grill on the lanai, debris on the lanai, violating pool rules, unauthorized occupants, improperly installed satellite dishes, failure to pay the security deposit, unsanitary apartment; the list goes on and on.
How is a Seven Day Notice of Noncompliance With Opportunity to Cure properly worded?
We recommend you always start off your notice by saying “You and/or your guests and/or occupants are in violation of Florida law and/or the lease agreement and/or rules and regulations due to (list reasons)” You should not simply quote a lease clause or name a paragraph number. Your notice should clearly and concisely state what the resident is doing that is in noncompliance. Many notices we see are legally insufficient in that they are too vague or sometimes actually too specific. You might wonder how being too specific could be a problem. Let’s take a case where a resident is leaving their bicycle on the lanai in violation of your lease. If you give the resident a notice just stating this violation, the resident may get the bicycle off of the lanai, but two months from now be accumulating personal items outside the door in your breezeway, a violation of your lease agreement. Will your notice regarding the bicycle that you gave two months ago be sufficient? Possibly not. We would recommend wording the notice as follows: “You and/or your guests and/or occupants are in violation of Florida law and/or the lease agreement and/or the apartment rules and regulations due to keeping or allowing personal items, including but not limited to a bicycle, on the lanai and or in the common areas of the premises.” As you can see, this is specific enough for the bicycle on the lanai and broad enough to include a later violation in the breezeway. It is crucial that the notice is always specific enough to put the resident on sufficient notice as to what the noncompliance may be.
How do we calculate the expiration date of a Seven Day Notice of Noncompliance with Opportunity to Cure?
You simply must give your Seven Day Notice of Noncompliance With Opportunity to Cure and wait seven straight days. Note that you do not have to exclude weekends or holidays as with a Three Day Notice. Once the time period has expired, if you have not achieved the desired results, you may be able to immediately file an eviction or may need to serve a Seven Day Notice of Noncompliance Notice of Termination. Any time you have a lease noncompliance, you must get into the habit of serving the Seven Day Notice of Noncompliance With Opportunity To Cure, if it is in fact a curable problem.
A word of caution: Judges are not apt to want to evict someone on a small noncompliance. Make certain that the noncompliance is fairly serious before you think that you can evict the individual. Proof is a very integral part of success in these cases, so your documentation, witnesses, police reports, videos, etc. will be crucial. If you have a weak case but really want the resident to vacate, there is always the option of offering to let the resident out of the lease agreement and making a mutual agreement on the resident vacating at a fixed date. If a problem is not cured, we recommend that you call your attorney first to see if you have sufficient grounds to serve a “Seven Day Notice of Noncompliance Notice of Termination”, and get the proper wording straight from the attorney.
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW