The Curable Noncompliance Examined PART 1
The article is the first in a multi-part series examining specific curable noncompliances and how the property manager must deal with getting compliance or setting the case up for a potential future eviction action. Each noncompliance is unique. Many are dealt with in a similar way, but often the proof needed to proceed with legal action if the noncompliance is not cured differs. The legal papers filed in court for an eviction based upon a lease noncompliance other than nonpayment of rent are similar to that of a nonpayment of rent case, but if the case is contested, the property manager must be prepared to prove the case AND win the case.
The vast majority of property managers have prepared and served Seven-Day Notices of Noncompliance with Opportunity to Cure to a resident. Some property managers have had to file evictions when the noncompliance was not cured. Only a small fraction of property managers have had to deal with a contested case on a noncompliance eviction in which the resident has fought to stay in the unit. In an even smaller percentage of those cases that were fought, the resident was represented by an attorney. In a large percentage of those cases in which an attorney represented the resident, the property manager LOST the case in court.
Here is a question for you: “Did you ever have an eviction action for a noncompliance in which the resident had an attorney and fought you in court?” We can almost guarantee that you will say no. Very few property managers have experienced this, but they MUST be prepared for it.
THE UNAUTHORIZED OCCUPANT – EXCESSIVE TRAFFIC - THE UNAUTHORIZED PET
PROBLEM: Resident has an unauthorized person or persons residing in the rental unit not on the lease agreement
FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE
WORDING: “You have an unauthorized person residing in the premises in violation of the terms of your lease agreement”
RENT ACCEPTANCE: Do not accept rent after you become aware of the noncompliance and have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the unauthorized occupant has been removed. Acceptance of rent can interfere with your ability to proceed and could act to “authorize” the unauthorized person.
PROOF ISSUES: You may see the unauthorized person there every morning. You see that person’s car parked there every night. The unauthorized person even comes into your office complaining about something. While it may seem like a simple matter, this is one of the hardest noncompliances to prove in court, because some residents are good liars, and these cases often hinge upon circumstantial evidence, not direct proof. Moreover, you will usually have to prove that your guest policy has been exhausted before giving a Seven-Day Notice of Noncompliance with Opportunity to Cure, which can be particularly difficult if your lease allows guests to stay for 14 consecutive days, for example. Before giving a Seven-Day Notice of Noncompliance with Opportunity to Care, you should have at least the equivalent of probable cause that the noncompliance is occurring, and in order to terminate, you will need hard-core solid proof; this is not to be taken lightly.
To terminate and evict a resident for unauthorized occupancy, you first need to have served a proper Seven-Day Notice of Noncompliance with Opportunity to Cure. In order to serve a Seven-Day Termination Notice, you must be reasonably certain that you can prove to a judge that the resident has an unauthorized occupant residing on the premises, not just visiting, and that the occupant was not “authorized” by you, the manager or prior management’s failure to act quickly. If the occupant has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management, and/or you have accepted rent with knowledge of the unauthorized occupancy, you most likely will not be successful evicting, as you have “authorized” the occupant by failing to act. This is due to the legal principles of waiver and estoppel. Sometimes managers will tolerate an unauthorized occupant until something happens, and the manager gets angry at the resident or the occupant. This is not the way to go. Depending on the situation, the following is some proof you may need to win.
1. Photos of the unauthorized occupant AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.
2. 24-hour Video surveillance tapes or a written admission by the resident(s) acknowledging the unauthorized occupant AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.
3. Employees of the apartment community who will testify in court that they know for a fact the unauthorized occupant is still living on the premises AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired, and are prepared to show the judge proof.
4. Dates and times the unauthorized occupant was seen on the premises AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired. The more you document the dates and times, the better.
5. 24-hour Video surveillance of the unauthorized occupant’s vehicle AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired.
6. Police report in which the unauthorized occupant gives your address as his or her address AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired. Ironically, if an unauthorized person gets arrested for some incident on the property or tells the police that he is living there, it can help the case immensely.
PROBLEM: Resident has an unauthorized pet or pets in the apartment not permitted by the lease agreement
FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE
WORDING: “You are keeping an unauthorized pet on the premises in violation of the terms of your lease agreement.” Remember, DON’T quote leases clauses!
RENT ACCEPTANCE: Do not accept rent after you become aware of the unauthorized pet and have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the pet or pets have been removed. You will want to do a good inspection. You can waive your ability to proceed and could act to authorize the unauthorized pet or pets by accepting rent with knowledge of the noncompliance.
PROOF ISSUES: You may see the unauthorized pet each day, you observe the resident walking the pet, the pet bites another person or bites or kills another pet, you have received a complaint of barking, or your maintenance tech discovers the pet during a routine inspection or service call. Discovery can occur in many ways. If the resident claims the animal is an assistance animal, you should contact your attorney, because if the resident has a legitimate assistance animal, you are not dealing with an unauthorized pet, and your pet policies don’t apply. You should have solid proof before serving a Seven-Day Notice of Noncompliance with Opportunity to Cure for an unauthorized pet. A justified suspicion is not proof, and you need proof to support a successful eviction. To evict a resident for failing to remove the unauthorized pet, you first need to have served a proper Seven-Day Notice of Noncompliance with Opportunity to Cure. To evict, you must be absolutely certain that you can prove to a judge that the resident has failed to remove the unauthorized pet, and that the pet was not “authorized” by you, the manager or prior management’s failure to act quickly. If the pet has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management, and/or you have accepted rent with knowledge that the resident had an unauthorized pet, you most likely will not be successful evicting, as you have “authorized” the unauthorized pet by failing to timely act. In one case, the son of the maintenance tech had fed and walked the pet while the resident was on vacation. This knowledge of the pet was imputed to the manager, even though the manager never really knew about this. As with unauthorized occupants, the legal principles of waiver and estoppel can kick in. Depending upon the situation, the following is some proof you may need to evict.
1. Photos of unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired. This could be as simple as getting on a letter, getting the pet to come to the window and taking a photo.
2. Video surveillance or photographs of the pet or written or verbal admissions by the resident(s) that they have failed to remove the unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.
3. Employees of the apartment community who will testify in court that they know for a fact the unauthorized pet is being kept on the premises AFTER the Seven- Day Notice of Noncompliance with Opportunity to Cure expired and are prepared to show the judge proof.
4. Other residents of the apartment community who will testify in court that they know for a fact the unauthorized pet is still being kept on the premises AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired and are prepared to show the judge proof.
5. Dates and time the unauthorized pet was seen on the premises AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.
6. Evidence of pet food or water bowl AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.
7. Audio recording of barking, meowing, chirping, noise, etc. of the unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired.
PROBLEM: Resident has excessive traffic in and out of the unit an all hours of the day and night, most likely for the sale of drugs or prostitution. Everyone has a right to have visitors, but visitors who stop by for really short periods of time usually indicates that something illegal is going on. Since we may not be able to prove actually illegal activity, we are often able to prove excessive traffic.
FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE
WORDING: “You have excessive traffic in and out of your apartment disturbing the peaceful, quiet enjoyment of the premises for other residents.” This can be modified to also add vehicular traffic if this is occurring, and it often does.
RENT ACCEPTANCE: Do not accept rent after you have served your Seven- Day Notice of Noncompliance with Opportunity to Cure unless you are certain the excessive traffic has completely ceased. You can waive your ability to proceed or delay matters by accepting rent with knowledge of an ongoing problem.
PROOF ISSUES: Often you see the excessive traffic or hear about it from other residents, some of whom actually get knocks on their door, as the visitors don’t have the correct address. This is quite upsetting for a resident to have this happen at 3:00 a.m.! Discovery can occur in many ways. Legitimate complaints from neighboring residents are enough to support service of the Seven-Day Notice of Noncompliance with Opportunity to Cure, but if the ultimate case is contested, some of the complaining neighbors will need to testify in court.
To evict a resident for excessive traffic, you first need to serve a proper Seven- Day Notice of Noncompliance with Opportunity to Cure. In order to serve a Seven-Day Termination Notice, you must be absolutely certain that you can prove to a judge that the resident has excessive traffic and it is a problem. The following is some proof you may need depending upon the situation:
. 1. Photos of people coming and going. You never need permission to photograph a person to create this proof.
2. Video surveillance or verbal admissions by the resident(s) that people are coming and going. Do not record conversations though, as that is not legal in Florida without permission.
3. Employees of the apartment community who will testify in court that they have seen an excessive number of people coming and going, staying for short periods of time.
4. Other residents of the apartment community who will testify in court that they have seen people coming and going, AND most importantly, that this has caused a disturbance to them of their peaceful, quiet enjoyment of the premises.
5. Dates and timepeople are seen coming and going AFTER the Seven Day-Notice of Noncompliance with Opportunity to Cure expired.
THE CURABLE NONCOMPLIANCE EXAMINED PART 2
by Harry Heist, Attorney at Law
The article is the second in a multi-part series examining specific curable noncompliances and how the property manager must deal with getting compliance or setting the case up for a potential future eviction action. Each noncompliance is unique; many are dealt with in a similar way, but often the proof needed to proceed with legal action if the noncompliance is not cured differs. The legal papers filed in the court for an eviction for a non-rent lease noncompliance are very similar to those filed for a nonpayment of rent case, but if the case is contested, the property manager must be prepared to prove AND win the case.
The vast majority of property managers have prepared and served a Seven-Day Notice of Noncompliance with Opportunity to Cure to a resident. Some property managers have had to file evictions when the noncompliance was not cured. Only a small fraction of property managers have had to deal with a contested case concerning a noncompliance eviction, in which the resident has fought to stay in the unit. Finally, in an even smaller percentage of those cases, the resident was represented by an attorney fighting the case, but when all those elements are present, the property manager stands to LOSE a majority of those cases.
BARKING/NUISANCE NOISE PETS
PROBLEM: Resident’s authorized pets are causing a nuisance due to noise.
FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE
WORDING: “Your pet is causing unreasonable disturbances on the premises due to barking and is disturbing the peaceful, quiet enjoyment of the premises for other residents” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)
RENT ACCEPTANCE: Do not accept rent after you have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the pet disturbances have ceased. Acceptance of rent may waive your ability to proceed. If the disturbances cease, you may accept rent.
PROOF ISSUES: Most likely you have received complaints from other residents. You need them to write down the dates and times they were disturbed and what they heard. You need to explain to them that they may have to come to court and testify if you end up having to file an eviction. You may think that you can simply present letters from the residents or reports in court, but you cannot. Letters and reports are usually inadmissible hearsay. Please read our article on hearsay so you better understand this. You and or your staff should hear the noise disturbances yourself, documenting the dates and times. Finally, a recording of the barking or other noise could be crucial to winning the case in court. An hour of recorded noise could spell success in court. The absence of sufficient or proper proof spells disaster.
1. Internal reports you and your staff have created based on complaints.
2. Written reports detailing dates and times from your residents.
3. Written letters or reports from other residents.
4. Residents of the community who will testify in court that they heard the noise and that it was severe.
5. Audio recording of barking, chirping, noise, etc. of the unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired.
GAS GRILL ON BALCONY
PROBLEM: Resident has a gas grill on the balcony, patio, lanai area in violation of the lease, rules and regulations or local law.
FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE
WORDING: “You have a gas grill on your balcony in violation of the terms of your lease, rules and regulations and/or law, code or ordinance” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)
RENT ACCEPTANCE: Do not accept rent after you have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the grill has been removed. Acceptance of rent will act to waive your ability to proceed and could end up authorizing the grill.
PROOF ISSUES: You need to take photos of the balcony, patio, and lanai area and have witnesses, such as other employees, who will testify in court if necessary.
1. Photos of the gas grill before, during and after the curative period, if not cured.
2. Employee witnesses who can testify in court.
FOLLOW UP AFTER GRILL REMOVAL
Oftentimes, the grill is removed from the balcony only to end up in the unit. This is extremely dangerous. Any unauthorized grill issue should be followed up with an interior inspection of the unit, including closets, to confirm the grill is not being stored in the unit.
PROBLEM: Resident has poor housekeeping to the point of filth, infestation, hoarding, rotting food and/or noxious odors. The situation goes far beyond clutter or mess.
FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE
WORDING: “You are failing to maintain your unit in a clean and sanitary condition due to an accumulation of trash, filth, and rotting food, resulting in noxious odors and infestation of insects” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)
RENT ACCEPTANCE: Do not accept rent after you have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the unit has been cleaned to your satisfaction.
PROOF ISSUES: A messy or cluttered unit is not a lease violation. It must be bad. Real bad. Courts are very reluctant to evict a resident for housekeeping issues unless the housekeeping problem is extreme. If the lease is close to the expiration date, you are far better off non-renewing the tenancy, NOT trying to evict based upon a Seven-Day Notice of Noncompliance. Often the report of poor housekeeping will come from your pest control professional. This must be immediately followed up by staff. While you will be getting written reports, remember that those reports will be inadmissible hearsay, and the person who actually saw the unit and wrote the report will be required to come to court and testify. After the curative notice expires, you should give written notice of inspection, and be prepared to document again with photos the condition of the unit.
1. Written reports from pest control if applicable.
2. Testimony from pest control if applicable.
3. Photos of the unit’s condition by pest control and maintenance staff.
4. Written reports from maintenance staff.
5. Any correspondence between the resident and staff.
6. Any correspondence from residents in surrounding units who may have complained about noxious odors and/or pest infestation.
A Cautionary Note
In some cases, the resident’s disability, be it physical or mental, may have contributed to the situation. Speak with your attorney, as you do not want a housekeeping issue to develop into a Fair Housing complaint.
THE WRIT OF POSSESSION – WHAT IT IS
What is a Writ of Possession? -- The Writ of Possession, hereinafter “Writ”, is an order by the court telling the sheriff to remove all persons from the premises. Once the judge signs the Final Judgment of Eviction, your attorney submits the Writ to the Clerk of Court and the clerk “issues” the Writ. Once issued, the Writ is taken to the Sheriff’s department civil division, a fee of $90.00 (most counties) is paid, and the sheriff’s clerk in the civil division processes the Writ into their computer system and it is given to a sheriff’s deputy to “serve”. The deputy then takes the Writ, along with many others he or she has to serve that day, and either hands it to the resident if the resident answers the door or tapes it to the door if no one is home or the resident fails to answer the door.
NOTE: This article assumes that you have been granted a Final Judgment of Eviction and have instructed your attorney to get a Writ
What it does-- The Writ will give the resident a date and time to get out of the premises, usually 24-48 hours from the day that the Writ is served. The Writ gives the deputy the authority to remove persons from a rental dwelling. The deputy will usually give the property manager a phone call advising the property manager that the Writ has been served and the date and time of execution.
Why does the deputy call the property manager? – The deputy calls the property manager for two reasons. One is to let the property manager know the date and time to meet the deputy and the other is to see if the property manager wants or “needs” the deputy to meet the property manager at the premises.
The big trick – While you may think that the deputy is just being helpful when he or she asks you if the resident is still there and if it is necessary to come back out to execute the Writ, be careful of the question, the deputy may really be trying to avoid having to execute the Writ. The deputy has a lot to do each day and a canceled writ means more time is freed up for those other tasks. Don’t be tempted to cancel the Writ! Once the sheriff’s department receives your Writ, the $90.00 check is processed. You have paid for the complete service so why not get the complete service? You should always follow through and have the deputy execute the Writ even if you think that the resident has vacated the premises.
Suppose the resident does not move after being served? – The sheriff comes out to the property at the designated date and time and “Executes” the Writ, at which time the resident is told (or forced, if necessary) to vacate the premises. If the resident refuses to vacate, the sheriff will physically remove the resident, and the resident may be subject to arrest if he or she fails to vacate.
Procedure when executing the Writ – When the Writ is executed, the property manager needs to be prepared to change the locks on the premises, secure the premises, and, remove all items left in the premises to the property line. The property manager needs to be ready to complete the job and have helpers if necessary to remove the items from the premises. Florida law states that the property can be removed at the time the Writ is executed or at any time thereafter. We highly recommend the former. Get EVERYTHING out of the unit immediately and to the property line. Holding the property until a later time is just asking for trouble.
What can happen if you do not immediately remove the property? The resident may attempt to break in later to get the property causing significant damage, or, the resident can allege you made some sort of deal with them to hold the property until they were able to retrieve the property.
The belligerent or threatening resident – Florida law allows you to DEMAND that the deputy stands by while you are removing the property or securing the premises. If you feel threatened in any way or think that the resident may suddenly appear while you are removing the items to the curb, ask the deputy to stay. By law, the sheriff’s department can charge you but your safety is worth it!
THE MOST COMMON WRIT MISTAKES–
Failure to have the deputy execute the Writ – When you tell the deputy that the resident has vacated, the deputy will write on the paperwork “unexecuted per manager”. This means that your eviction was never completed, you are in danger of the resident coming back and moving right back in, and you are in danger of being held responsible for the resident’s personal property, or, worse yet, what the resident “claims” was the personal property left in the rental unit.
Failure to meet the deputy when the Writ is executed – If you don’t show up to meet the deputy, the Writ is “unexecuted”. The deputy will not do anything without you being present. Your attorney will have to file a motion for an Alias Writ and this can cost you time.
Meeting the deputy and making an agreement with the resident – Property managers often feel sorry for the resident and agree with the resident and the deputy to hold off on the Writ for a day, or for a fixed number of hours. The deputy will usually go along with this and accommodate the wishes of the parties if the property manager agrees. The LAST thing you should be doing is trying to accommodate a resident at this stage of the eviction. We have seen the resident run out and file bankruptcy and derail the entire process. We have also seen cases where the property manager tells the resident that they can come back the next day to retrieve the personal belongings. The resident fails to show up and the property manager disposes of all the property. The resident then shows up and claims that an agreement or extension was made with someone in your office by phone. This can have disastrous and unintended consequences and now you can end up in court in a “he said” “she said” situation.
Failure to have sufficient staff to remove the property from the unit - There is really no good excuse for this. You know when the Writ will be executed and need to be prepared for dealing with a full unit or an empty unit.
Failure to remove the property from the premises - If the eviction is completed and the residents have been evicted from the premises, Florida law does not require you to treat the property left behind in any special way and you can and should dispose of all abandoned property when executing the Writ. You must complete the eviction and meet the deputy at the premises to be allowed to remove the items to the property line without any liability. Too many times, we see property managers shortchanging themselves by failing to completely execute the Writ when there is abandoned property. This is quite unfortunate as the execution process directly relates to the abandoned property. You will have no liability to the resident or any occupants, known or unknown, for the disposition of the abandoned property if you execute the Writ and the eviction was proper. It is rare that the resident will return and try to claim that they left items behind, but there always it this possibility. There is also the possibility that the unknown person appears, claiming items. Since the completion of the eviction relates directly to the disposition of the abandoned property, it is imperative that you execute the writ if you wish to be safe.
Now, some final words on the Writ
Do you always need to follow through and execute the Writ?
1. ALL residents have vacated, given you the keys and the premises are completely empty – Probably no Writ is necessary
2. ONE resident has given you the keys, the premises are completely empty – Executing the Writ may be a good idea
3. Property is left in the premises – Execute the Writ
4. You have had no contact with the resident – Execute the Writ
Conclusion: The money you spend on the Writ is nothing compared to the liability and problems you may have for not executing the Writ. If a WRIT OF POSSESSION HAS BEEN SERVED, EXECUTE IT.
THE WRIT OF POSSESSION AND THE FULL UNIT
Executing a Writ of Possession can be a tricky matter. In the best of situations, the evicted resident has removed all their items from the premises, nothing is left in the unit, and the resident is gone. In the worst case, the unit is full of personal property, the resident must be physically removed from the premises by the sheriff’s deputy, and the property manager and staff is left with the task of removing all the personal property left behind to the property line.
The Typical Writ of Possession Execution
The typical writ of possession (hereinafter writ) execution involves meeting the deputy sheriff at the premises door with your maintenance tech or locksmith, where you find the unit almost completely empty, with the exception of the usual obvious trash, such as that unwanted couch and bags of garbage. The locks are changed, and your staff proceeds to remove the items to the property line. If you do not have the staff necessary to do this at the time the writ is executed, you leave the unit, and you send a staff member back later to completely remove any trash or apparently unwanted personal belongings from the premises.
The Problem Situations
Unfortunately, property management life is not always so simple, and the property manager faces two less common situations where far more than the usual trash is left behind. The time will come, if it has not already, when the property manager will be meeting the sheriff’s deputy at the door only to discover that the resident has failed to remove ANY of the personal items from the premises. It will look like he simply up and left with no attempt whatsoever to remove anything. The resident is nowhere to be found, and the property manager is left with a very uncomfortable feeling regarding the situation. Do you remove all the items and place them on the property line? Certainly if the eviction is proper, this is completely allowed by law, but should it really be done right then and there? The other situation occurs when the panicked resident is present at the time you are executing the writ, begging and pleading with you to give him extra time to get help and a truck so he can retrieve all his belongings late in the day or the next day. The resident acts surprised and claims he had no idea that this was going to happen, which is a likely line indeed. In both situations, extreme care must be taken, as the route you take could have unintended consequences.
The Evicted Resident is Not Present and the Unit is Full
If the unit is full of personal items and furniture presumably of value, we strongly recommend that you change the locks and take a breather. It is quite possible that the evicted resident is in jail, is in a hospital, possibly mentally unstable, or just cannot comprehend how the eviction process works in Florida, and went off to work. It is also possible that the resident has paid the rent, is on vacation, and you mistakenly filed the eviction. Anything can and does happen, so it is wise to change the locks and begin the research process. While you may feel that this goes against what you have heard about the law and your rights to take all the items and place them on the property line, we feel it is a best practice to hold off for a bit and begin some research, rather than rush to remove the personal property to the property line. Unless you incorrectly filed the eviction action, you are under no legal obligation to take our recommendations at all; they are simply optional. Go back through your files, and make sure that the eviction was not performed in error, and do whatever it takes to contact the evicted resident.
Contacting the Evicted Resident: Do everything in your power to contact the evicted resident. This includes looking back in the file for email addresses, emergency contact info, cell phone numbers, work numbers; you are seeking any possible hint or information concerning where the resident can be. If calling a work number, there is no need to mention that there is an eviction or an execution of the writ; just stress the urgency of needing to speak with the resident. Here you will see more than ever how maintaining up to date contact information before and during a tenancy is crucial.
Speaking with neighbors: While we always strive to respect the privacy rights of our residents, the eviction once filed becomes public record and can be discussed with the nearby neighbors, at least in a limited context. Often they have some information as to the whereabouts of the resident and some contact information.
If you locate the resident, explain what has occurred, explain how you can by law place all their personal property to the property line, and read on below.
The Evicted Resident Has Been Located OR the Resident is Present When the Deputy Sheriff Arrives
There will be situations where the resident is actually present at the property at the exact time the writ is being executed, or once the writ has been executed, you have been able to locate the evicted resident. The usual request by the resident is for more time to get a truck, hire a mover, call a friend or do whatever it takes to get the personal property out of the unit. It is so important to stand strong as a property manager and get on the phone with your attorney, so that no deadly mistakes are made at this crucial juncture. The resident has been evicted. It is over. Unless you enter into a stipulation with the resident and money changes hands, you must be careful that you do not inadvertently give possession back to the evicted resident, possibly kill the eviction and have to start over again. At the same time, it will be helpful to you and the evicted resident if he or she is able to remove all or most of his or her personal property, so that your staff does not have to undertake this task, and the evicted resident does not lose all their worldly possessions. By giving the evicted resident a bit of extra time, you may be able to avoid the evicted resident breaking into the unit, causing serious damages to the premises or committing some sort of bodily harm to you or your staff. Remember that you may have tracked down the evicted resident who for whatever reason could not comprehend or did not know that the eviction was taking place and fails to recognize the consequences of the writ execution. The last thing you need is for an evicted resident to get out or jail or an institution, only to discover that you took all their personal property to the property line and that it is now all gone.
The Extension Dangers
An inexperienced property manager may give in to the evicted resident’s wishes and tell them they have a few hours or until the end of the day to retrieve their personal property. The deputy sheriff may even encourage this. This is usually done verbally. For example, you tell the resident in front of the deputy sheriff that he must remove all the personal property by 5 pm, you proceed to change the locks, and the evicted resident is “supposed” to do what they say and contact you to let them in that afternoon. 5 o’clock comes and goes and the evicted resident fails to get their belongings. In the meantime, the evicted resident calls your office, and speaks to a staff member who has no idea what is happening with the eviction. Your maintenance tech then comes the next day to the unit and seeing that nothing was removed proceeds to remove all the items to the property line where they quickly disappear. The evicted resident then returns a few hours later infuriated that his personal property is gone and tells you that your leasing agent “agreed” that he could remove the personal property by noon that day, thus claiming a verbal extension. Did that conversation really occur with the leasing agent? If so, the evicted resident may be able to claim that an agreement was made, and now you are responsible for the loss to the evicted resident’s personal property. You see, by giving the evicted resident an extension or the evicted resident successfully claiming an extension was granted, this can result in you becoming a “bailee” of the personal property, and then some responsibility for the safekeeping of the property arises. Did your leasing agent give the evicted resident an additional extension? Now we have a factual dispute which may have to be decided by a judge.
Two Common Scenarios
- The deputy sheriff says he will return in 2 hours: Some deputy sheriff’s will “hold off’ on executing the writ and will return later or even the next day. Basically, you are having the deputy simply “hold off” on execution of the writ. Make sure you have the deputy sheriff write a note to this effect on his paperwork, because after executing ten writs that day, he may forget you or confuse you with another one he handled that morning. In the meantime the evicted resident should and often will remove his or her personal property. The deputy sheriff then returns 2 hours later or the next day and executes the writ, and it is over. Or is it? The evicted resident may not have removed all the personal property. Removal of an accumulation of personal property (sometimes collected over many years) is often a taller task than it seems. If the evicted resident has removed all the personal property and is gone, you are in great shape. The deputy sheriff executes the writ, and the eviction is complete.
- The deputy sheriff executes the writ. The evicted resident is present or you have contacted him, and you are allowing the evicted resident in to get his belongings, or decide to give the evicted resident an extension of time to remove his personal property:
- Recognize this is dangerous situation, and avoid it if possible. Only use this method if there is a full unit of belongings, or has belongings that the evicted resident wants to retrieve, you have consulted your attorney, AND
- Use a proper form we created called the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION
What is the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION?
This form is not a form provided by Florida law. It is simply a form we have created to assist those property managers who wish to give the evicted resident extra time to remove his personal property. This form can only be used AFTER the deputy sheriff has met you at the property and given you full possession of the unit. It is not an agreement, but is rather a notification by you to the evicted resident that you are, as a courtesy, allowing them to retrieve personal property and most importantly, giving the evicted resident a deadline to remove his personal property. We urge you to avoid these situations, and if at all possible, fully remove all personal property left in a unit to the property line, but we also understand there will be situations when this is not possible, practical, or you feel compelled to assist the evicted resident for whatever reason. We strongly urge that you always contact your attorney if you are going to give an evicted resident any extensions, or decide to use the Personal Property Removal Extension Notification. The axiom in property management is that no good deed goes unpunished, and it definitely applies here.
Most companies have a written policy under which the resident is instructed to put all work orders for repairs in writing. No work order, no repair. In a typical situation though, your maintenance person is verbally notified of a repair need while on the property. The most common response by your maintenance person is “You need to go to the office and put in a work order”. The maintenance person then goes about his or her day doing the normal repairs and maintenance on the property and following the work orders that have been provided by the office. In other words, the maintenance person is doing the jobs as dictated by the office and office policies. The resident who gave verbal notice is ignored.
Your Company “Work Order Policy”
A typical company policy as outlined in the lease or the Resident Manual dealing with repair requests states that in the event a repair needs to be done in a unit or there is some sort of a problem that needs attention, the resident is to come to the office and fill out a work order request. There are obvious reasons for this type of policy, as it documents the work order, alerts management and maintenance to the problem, provides evidence why and when maintenance entered an apartment, and establishes that all important paper trail which we are always recommending be created. Generally, if a resident fails to put in a written work order, maintenance staff will not voluntarily go out to the unit until such time as the work order is in place, unless a true emergency exists.
The Reality of the Resident’s Expectations
The resident sees Mike the maintenance person driving the golf cart, flags him down and notifies him that the A/C is not cooling properly. Although Mike tells the resident that she needs to put in a written work order, the resident expects this to be a mere formality and that Mike will be out nonetheless as soon as possible to fix the problem. Mike, following company policy, fails to go out. A few days go by, and then the resident calls the office, wondering why the A/C is not being fixed. As far as the resident is concerned, she put management, through Mike, on notice of a repair need, and Mike did not make the repair. The resident now begins the process of trying to break their lease, withhold rent or completely badmouthing the property, plastering notices on every resident’s door.
Is the Resident Correct?
Most property managers will feel that the resident is completely wrong, as the resident did not follow company policy or procedure. The resident did not put the work order in writing; therefore, the company is off the hook as far as the property manager is concerned. The resident withholds rent, breaks the lease or somehow the situation ends up in court. At court, the resident will testify that she told Mike the maintenance person that a repair was necessary and Mike failed to make the repair. You and Mike will then tell the judge that the resident never put in a written work order, and that is why the repair was not made. Now for the tough questions. The judge may ask you or maintenance whether the resident did in fact notify Mike that a repair was needed. If Mike answers “yes”, which he would have to do if he were telling the truth, the judge will not be happy with Mike or management. Possibly the resident was justified in withholding rent or breaking the lease. While we all know that a resident is required to give a manager 7 days written notice if they intend to withhold rent or break a lease, some judges will ignore this requirement by Florida law.
Actual Notice Versus Company Policy
In the foregoing example and possible court case, the resident shows to the judge, a point confirmed by maintenance, that the resident gave ACTUAL NOTICE of a repair need which was not performed. The fact that the resident gave actual notice, while not according to company policy, will result in the judge being very unsympathetic to management and maintenance, and could cause you to lose a case in court. Judges are not big on your company policies or procedures. There is nothing in the law that states that a resident must put a routine repair request in writing. The judge will be more concerned whether the resident gave some sort of notice, and in this example, the resident did give notice, corroborated by the maintenance person’s testimony.
Do We Now Ignore Company “Work Order Policy”?
As we have seen, requiring a resident to provide you with a written work order is a good policy and should be continued, pushed and encouraged by all means. On the other hand, if maintenance is notified of a problem by a resident, be it at the pool, while doing another repair in the apartment, or anywhere on the grounds, that maintenance person needs to be proactive, write a note down on the pad that he will carry at all times, and create a work order from that. Once that work order is created, the scheduling should be done with the resident to avoid any accusations by a resident that maintenance entered a unit without authorization or notice. Remember, when you are in court, about the last thing a judge cares about is your “company policy”.
WHEN ALL RESIDENTS DO NOT SIGN LEASE
We see it all the time. What you ask? Your lease! You can run, but you can’t hide! When you have to file an eviction, the lease must be attached to the eviction complaint. so your attorney gets to see the lease and all the fun stuff that goes along with it. The most common thing we see in the lease is that printed on the lease are 2 residents, but on the signature page only one resident signed. Hmmm. How did this happen? You would never let this happen would you? Well, let’s see.
John and Mary Smith have been approved, paid all deposits, and the only thing left is to sign the lease. They are to come in on a Friday, sign the lease and move into the unit. At the appointed time, John shows up without Mary, because Mary had to leave town for an emergency. John assures you that Mary will be back next Thursday and will promptly come in and sign the lease. In the meantime, you let John sign the lease, you give him the keys and he moves in. You then take the file, put it in your filing cabinet and expect that next Thursday, Mary will show up to sign the lease. Thursday comes and goes, Mary never shows up, and either you completely forget about Mary needing to sign the lease, or you remember and call her, only to be promised that she will come in, and that never happens. You think that this scenario is not played out all the time? It happens.
You possibly remembered that Mary did not sign the lease, and you possibly made a few calls to Mary asking her to come in, but she never does. Is there much you can do? Not really. Most likely you simply forget, and she never signs. It is now three months later, you have been collecting the rent each month, as Mary drops it in the drop box on time every month. The fourth month you don’t get the rent and head out to the property to serve a 3 Day Notice. You go to the door, knock loudly, and a “gentleman” named Bill answers the door. You ask who he is, and he states that he is Mary’s boyfriend and lives there, as John left Mary two months ago for another woman. Looking inside, you notice two children and another “gentleman” passed out on the couch. The condition of the unit is horrendous, and the rent is unpaid. Mary is allegedly at work, so you ask Bill who all these people are, and he tells you that the children are his and the guy on the couch is his brother who recently got out of jail and needed a place to stay temporarily. NOW WHAT?
The problem is fairly obvious. You have unauthorized people in a unit, problems with the unit, and the person who signed the lease is nowhere to be found. Yes, Mary, the other resident on the lease is living there, but Mary never signed the lease, so Mary really has no obligation to you to pay the rent or uphold any of the rules and regulation of the lease. Mary is really no more than an occupant, and if you were to file an eviction against her, it might not be proper, because she has not signed the lease and does not owe you anything. To further complicate matters, because Mary has never signed the lease, she can say on one hand that she is a listed occupant on the lease and allowed to be there, but on the other, she can claim she owes you nothing. This is just ONE of the problems that we face when the lease is not signed by all parties.
Another bizarre situation can occur even if John and Mary are indeed living in the home as planned. John and Mary are looking around the neighborhood and see a beautiful home for sale that they can afford. With the prices dropping rapidly, they just can’t pass up this opportunity. They consult their attorney about breaking the lease, and the attorney reviewing the lease spots that only John signed it. Is the lease valid? The attorney then argues that since Mary never signed the lease, it is not a fully executed agreement and he is advising his client to vacate and purchase the house down the street. The majority of judges would find that the lease is enforceable against John, but failing to get both signatures opens you up to some risk. John and Mary pack up and leave, the property owner wants to pursue them for breaking the lease possibly cannot, and now they are looking to you for compensation, because YOU did not make sure all the parties signed the lease.
Never allow a resident access to a unit unless and until such time as ALL residents sign the lease. Sure, you are saying you know this already, but why do we continue to run into the same situation? You cannot let your guard down. A simple mistake such as this can set the stage for a legal battle or a complicated eviction action later on. You need to stand firm and insist that all parties sign. If Mary is out of town, do everything to contact her, get Mary to go to an office supply store such as Staples, Office Depot or Office Max, send her the lease by fax, have her sign it and send it back. All this can happen while John is standing in front of you. Once you get the lease back by fax, have John sign. Is a lease signed and faxed a valid document? It sure is better than one that is not signed. If Mary cannot sign the lease, you cannot give John the keys. It is that simple.
WELCOMING DISABLED APPLICANTS
A disabled applicant should be treated just as any other applicant. The process of accepting an application, showing available units, doing a credit and background check, and executing a lease should be the same as you it would be for a non-disabled person. There are a few exceptions, described later in this article.
The Business Office.
Make sure that your leasing office meets accessibility standards. This includes being sure there is an accessible route from the parking area to your leasing office. This may mean adding a ramp or curb cut, or outfitting at least one restroom that is accessible.
If the disabled applicant needs an accommodation in order to apply for housing, make it. Examples include allowing a vision-impaired applicant to have his friend complete the forms, or allowing a service animal to enter the business office. Another example would be to allow the disabled person’s guardian do the paperwork and sign the lease.
The applicant may say she wants the unit, but will need a modification or accommodation. You can ask the applicant to put the request in writing and provide you with verification of disability. (Hopefully, you already have a policy in place for handling this type of request.)
Generally, a manager should only ask a person with a disability questions that are asked of all applicants or residents. It’s OKAY to ask questions such as:
- Can you pay the rent?
- Do you have references regarding your resident history?
- Who will be living in the unit?
- Do you have a criminal history?
If ours is an apartment community designated for people with disabilities, you can ask the applicant if he or she qualifies for the housing.
It is NOT ok to ask the following:
- Do you have a disability?
- Do you take medication?
- How severe is your disability?
- Why are you getting SSI?
- Can I see your medical records?
- Have you ever been hospitalized for mental illness?
- Have you ever been in drug or alcohol rehab?
- Are you capable of living independently?
A Few More “Don’ts”.
Do not presume to know what is best for the disabled applicant. If a person with a mobility impairment wants a unit on the second floor, do not try to talk him into a first floor unit. You would be presuming to know better what the applicant needs, than the applicant himself! It would be a violation of fair housing laws, no matter that you acted with good intentions.
Do not offer a particular accommodation. Don’t suggest: “Will you need a handicapped parking space since you are in a wheelchair?” Instead, respond positively if the individual in the wheelchair asks for a handicapped parking space. The request for such an accommodation should come from the resident, not you. You can let applicants know you welcome requests for reasonable accommodations and modifications, by noting it in your application materials.
WAIVER AND ESTOPPEL
There are two legal doctrines that every property manager must understand. Those two legal doctrines are waiver and estoppel. Why? The outcome of your case may be decided based on these concepts. In short, they can operate as a “death penalty” to your case. Unfortunately, many property managers hear the words “waiver” and “estoppel” for the first time after they have lost an eviction case. The legal doctrines of waiver and estoppel show up in many landlord/tenant related matters. In the current economic climate, property managers need to be “on their toes,” as residents are become more desperate and at the same time, more sophisticated, in terms of their knowledge of Florida landlord/tenant law.
What Does the Legal Term “Waiver” Mean?
Waiver occurs when a person relinquishes or surrenders his rights or privileges. It can be voluntary or involuntary. The “voluntary” waiver situation occurs when a person signs an agreement relinquishing his rights or privileges. Courts will generally uphold voluntary waiver agreements outside of the landlord/tenant context, if the agreement is very specific as to the nature of the rights being waived” by the parties. However, as you will see later in this article, waiver provisions in leases by no means assure you that resident cannot bring forward a “waiver’ claim. By contrast, the “involuntary” waiver scenario takes place when the law deems that you have lost your right to defend a legal action or sue to enforce your rights because of some prior action on your part. The concept of “waiver” is explicitly written into the Florida Landlord Tenant Act. Even in cases when waiver is not addressed in the Florida Statutes, there is law resulting from previous judicial decisions, otherwise known as “legal precedent”. That simply means that a prior legal decision finding “waiver” on the part of a manager or resident, was the basis for a later decision finding “waiver” on the part of a manager or resident. Usually, the facts of the prior case and the later case would be similar, but would not need to be exactly the same.
Common Waiver Scenario # 1 (Rent acceptance after seven day notice)
Ricardo, the property manager at XYZ apartments, observed one of his residents, Betsy, brandishing a gun on the premises. Ricardo called the police, and Betsy was subsequently arrested for felonies involving firearms, an obvious violation of Betsy’s lease with XYZ Apartments. After receiving the police report detailing Betsy’s arrest, Ricardo instructed his attorney to draft a seven day notice of termination of lease based upon Betsy’s noncompliance with her lease. Ricardo posted the seven day notice, but Betsy failed to vacate. Ricardo was left with no choice but to file an eviction action against Betsy. In Court, Betsy pointed out to the judge that a check for $700 was accepted by Ricardo the day after the seven day notice was posted. The judge dismissed the case on the spot! Why? One only needs to look at Section 83.56 (5) of the Florida Statutes: “If the manager accepts rent with actual knowledge of a noncompliance by the resident or accepts performance by the resident of any other provision of the rental agreement that is at variance with its provisions, or if the resident pays rent with actual knowledge of a noncompliance by the manager or accepts performance by the manager of any other provision of the rental agreement that is at variance with its provisions, the manager or resident waives his or her right to terminate the rental agreement or to bring a civil action for that noncompliance, but not for any subsequent or continuing noncompliance.”
In this case, Ricardo in fact, accepted the rent (the $700 check) with knowledge on the noncompliance (the felony firearm arrest). Is this fair? The answer to that question has no bearing on how you should conduct yourself if you aspire to be a successful property manager. Successful property managers do not waste time “second guessing” the law. They make a conscious attempt to learn the law! One of your goals should be to understand how your actions can adversely impact your court cases if you do not understand the law in this area.
Common Waiver Scenario #2 (Rent acceptance after 3 day notice)
Samantha, the property manager, issued a valid Three Day Notice to Pay Rent to Esmeralda. The amount owed to the manager by Esmeralda was $2500. Samantha requested that her attorney file an eviction action after Esmeralda’s three day notice expired. Four days after the eviction was filed. Esmeralda dropped off money orders totaling $250. That day, Samantha was understaffed at her management office and mistakenly deposited the money orders. Was there a happy ending to this story from Samantha’s perspective? Of course not! If rent is accepted, whether in full or in part, (notice that only 10% of the amount owed was paid), by a manager subsequent to the service of a Three Day Notice To Pay Rent , then the manager is deemed to have waived its right to evict the resident based on that Three Day Notice to Pay Rent. This is based on the same reasoning as in Scenario #1 above - Section 83.56 (5) of the Florida Statutes. Even though Samantha may argue that she deposited the partial payment without realizing that Esmeralda was out of compliance with the lease, judges will universally consider the deposit into the manager’s/management bank as acceptance, and most will charge the manager with knowledge of the resident’s noncompliance. Some judges will still grant the eviction based upon the resident’s failure to deposit into the Court Registry the remaining 90% rent balance, but don’t count on it.
Common Waiver Scenario #3 (Rental assistance forms)
Tim, your resident, is behind in rent for the month of September. “Great news” he tells you. The county housing assistance agency will pay for that month. You gladly sign Tim’s housing assistance application. A few weeks later you receive the September rent check from the housing agency. The October rent, however, is not paid by Tim, and you request that an eviction action commence. At court, Tim’s attorney enters his rental assistance application into evidence. You were so happy that Tim was receiving help back in September that you did not carefully review the agreement. It turns out that the assistance form is rigged with conditions. The housing assistance application stated that, “The manager agrees not institute an eviction action for 45 days from the time payment is received”. Therefore in this case, the manager waived their right to evict Tim, because the eviction action was filed prior to the 45 day grace period expiring. These forms frequently limit the rights of property managers and management and can be very dangerous. Our firm advises our clients not to sign those forms.
Common Waiver Scenario #4 (Partial or Late Payment of Rent)
This is the “classic” Estoppel case. Charlie paid rent late every month for 6 months. In fact, he paid his rent on the last day of the month. On the seventh month, the property manager decided that she had enough of this nonsense and instituted an eviction action against Charlie. In court, Charlie’s lawyer asks the judge to throw out the case based on the doctrine of Estoppel. The judge agrees. The same result often happens when the property manager constantly accepts partial payments. As we have pointed out numerous times in this newsletter and in seminars, the resident is actually being rewarded for bad behavior in these cases. Why? Courts will rule that the doctrine of estoppel will apply if:
1. Words and admissions, or conduct, acts, or all combined cause another person to believe the existence of a certain state of things
2. In which the person speaking, admitting, acting and acquiescing did so willfully, culpably, or negligently,
3. By which such other person is or may be induced to act so as to change her own previous position injuriously. What does that mean? If the property manager is giving the impression to the resident that the terms of the lease need not be followed, then the manager seriously jeopardizes her ability to enforce the terms of the lease.
This situation also comes into play when you do not act promptly to remove an unauthorized resident (link to our article “authorizing the unauthorized resident) or when the property manager serves notices after a non-renewal notice is issued (link to our article “No more notices after Non-Renewal). You should also be aware that under Florida case law, some judges have ruled that serving a Three Day Notice upon a resident voids all earlier Three Day Notices. You should not give the residents any Three Day Notices while an eviction action is ongoing!
Does the “No Waiver” provision in my lease protect me?
It may not! Courts will often not allow a manager to defeat potential waiver defenses by including favorable language in their leases. Many courts take the view that these provisions are against public policy. In addition, many judges may determine that such a clause violates Section 83.45 of the Florida Statutes (Unconscionable Rental Agreement) or Section 83.47 (prohibited lease provision) if those judges believe that you are attempting to take away from the residents protections already granted to them by the Florida Landlord Tenant Act (Chapter 83 of the Florida Statutes).
USING A PET DEPOSIT FOR NON-PET DAMAGES
Occasionally a manager will be faced with that unfortunate situation where a resident who has an authorized pet, signed a pet addendum and paid a pet deposit, vacates owing rent, has damaged the premises, but none of the damage is pet related. It is extremely difficult for the manager to accept that the resident may be entitled to a refund of the pet deposit, in light of all the other money that is owed by the resident who breached the lease agreement. Unless the manager has structured the deposit agreement the correct way, the manager has no choice but to refund the pet deposit. Having to return a pet deposit to a resident who owes you money, or worse yet, a resident who was evicted, can be frustrating indeed. The problem can be solved simply by proper lease and/or pet addendum wording.
Collecting a Pet Deposit - A pet deposit is by its nature refundable. All “deposits” are refundable, while fees are non-refundable. If something is designated a pet deposit with no other qualifying language, that refundable deposit is for pet damage, and in the event there is no pet damage, the deposit gets refunded. There is no such thing as a non-refundable pet deposit. This is an oxymoron, since all deposits are refundable. If the manager collects a pet deposit, this amount must be kept in the same account that the manager keeps the security deposit or any other advanced rent, and the deposit is treated the same as a security deposit. The deposit cannot be used by the manager while the resident is residing on the premises, unless the resident specifically agrees in writing that the manager is permitted to use this money.
Collecting a “Pet Fee” – A pet fee is an amount paid to the manager for the resident to have the privilege of having a pet on the premises. Once paid, this fee belongs to the manager at the time of payment. It is never refundable, as it would then be a deposit.
Should you collect a Fee or Deposit? – We recommend collecting both a pet fee and a deposit, as there is a high likelihood that even if there is no obvious pet damage, the unit will have fleas which will become evident 1-2 weeks after the residents and their pet(s) vacate the premises. As most pet owners do not believe that their pets have fleas, but most managers know what occurs when a pet is taken from the premises, and the flea eggs hatch and do not have an animal on which to live, there is an almost guaranteed problem and dispute with the resident when the resident is told that he or she will be charged for flea extermination. Since the damage to the premises could be more substantial than just a flea infestation, taking a deposit in addition to a fee is advisable.
The Pet Addendum problem – Most pet addendums simply make a statement that there will be a pet deposit or a pet fee which will be used for pet damage. Even if it does not specifically state that it will be used for pet damage, there is an implication that a pet deposit will only be used for pet related damages. This prevents the manager from using the money for anything other than pet related damage.
The easy solution - In your lease or pet addendum, there needs to be a sentence similar to this: “The pet deposit may be used by management/manager for any damage related to the pet(s) and for ANY other monies owed by resident under the terms of the lease and for physical premises damages, whether pet related or not”.
As you can see, this clause allows you to use the pet deposit for non-pet related damages or other monies which the resident may owe. Some property managers avoid the pet deposit issue altogether by simply charging a higher security deposit which can be used for any monies owed under the lease terms. If you make a decision to charge residents with pets a higher security deposit, make sure that it is clear that the higher security deposit requirement is due to the fact that the resident has a pet. One of our clients was wrongfully charged with discrimination when a fair housing tester who was a member of a protected class was quoted a higher security deposit by the manager, and another tester who was not from a protected class was quoted a lower deposit. On its face, it appears that discrimination had indeed occurred, but the facts showed that the first tester stated that they had a pet, and the manager upped the security deposit accordingly due to the pet. The second tester did not mention the possibility of a pet and thus was quoted a lower security deposit.
US CENSUS AND PROPERTY MANAGER COMPLIANCE
A census is the legally mandated counting of people in the United States and its territories. It fulfills an important constitutional purpose. While each state has two Senators to represent it in the United States Senate, the number of Representatives in the United States House of Representatives is based upon the population of the state: the greater the population, the greater the number of Representatives. The power of any state to advance its legislative agenda and to secure benefits for its citizens increases with the number of Representatives which it has. In addition, the census is the basis for distribution of many government benefits and programs for schools, hospitals, transportation, and most importantly to managers, housing. It is particularly important for Florida, whose population has increased since the last census, to get every person counted.
National Census Day
National Census Day is the day on which the “count” is fixed. April 1st is the relevant day, whether the questionnaire is completed or the census worker visits before or after April 1st. Census takers are more properly called “enumerators”. During March of that year, questionnaires are mailed to residences to be returned in April. From April through July, enumerators will visit homes that did not return the questionnaires. In an accommodation to America’s multi-lingual nature, enumerators will carry cards in numerous languages. The cards will inform non-English speaking interviewees that they should tell the enumerators their language, and the Census Bureau will follow up with someone speaking their language. If the resident is not home at the time of the enumerator’s visit, the enumerator will leave a notice of visit on the resident’s door. The resident can use the contact information to arrange a convenient time for the re-visit. The personal interviews take less than half an hour.
The census is “legally mandated”. Enumerators have the legal right to have access to individual homes and multi-family properties to collect census information. Enumerators may have to return several times to collect the information. Various other census workers may seek access to the residents for census related operations, such as non-response follow-up re-interviews (quality check of an enumerator’s prior interview), census coverage follow-up (check possible double counting or clarify responses to prior questions), and field verification of mismatching addresses. There is the possibility that enumerators will contact some residents several times in the various follow-up and verification interviews. Managers should recognize this and expect some resident complaints about multiple interviews. Residents should be told to direct any complaints or comments to the Census Bureau, as the manager cannot prevent, limit or interfere with enumerators.
As part of the census the Census Bureau is performing another mandatory survey: the American Community Survey. The ACS collects population and housing information. Managers are required to cooperate in the ACS.
Managers’ Cooperation Required
Managers and their agents are required to cooperate and take reasonable steps to assist the enumerators by permitting access. If the enumerator is unable to make contact, the manager/agent should also assist by indicating the best time to contact residents, if known to the manager/agent. Finally, the enumerator may not be able to establish contact, and request the manager/agent to compile certain information on the occupants. The law does not provide for the option to demand written notice or written requests from enumerators as to what they want. So, managers/agents should neither expect nor require that enumerators give written demands for information. Enumerators will attempt to schedule mutually convenient times for meetings and allow managers/agents adequate time to gather and respond to information requests. However, given the deadlines imposed on the Census Bureau for completion of the census, the enumerators will expect a quick response.
The Census Bureau’s position
The U.S. Census Bureau has advised the National Multi-Housing Council as follows:
If the enumerator is unable to contact the occupant within the specified number of attempts, the enumerator may ask for as much information as the owner/manager can provide for an occupied unit. However, if the owner/manager states that the unit was not occupied on April 1, 2010, the enumerator will complete the questionnaire using the owner/manager as a knowledgeable respondent for the vacant unit.
The owner/manager should provide the information necessary to complete the census questionnaire, to the best of his or her knowledge. Questions on the census questionnaire have been approved by law, and the owner/manager is not in violation of any privacy laws if he or she provides the requested information. Although the owner/manager may not be able to answer all questions, such as race or ethnicity, an attempt by the owner/manager to provide available information should be made.
Managers/agents can demand to see the enumerator’s identification. The Census Bureau indicates that all enumerators will have official government ID badges and may be carrying “US Census Bureau” bags. Managers/agents can request that the enumerator present his government ID badge and another picture ID badge. If a Florida manager/agent wants further verification, he can contact the Regional Census Center for Florida in Atlanta, Georgia at 404-335-1555. Enumerators are not permitted to enter the residents’ homes, and therefore, they should never request to do so.
Since managers and their agents will be the secondary source of information, the more residents that the enumerators contact, the less time and work will be needed by managers/agents with enumerators. Managers may wish to alert their residents that census workers will be on the property. Managers may also want to inform residents that census workers may not request to enter residences, and that residents can verify their identity by requesting to see their ID badges, and if in doubt, they can contact the Regional Census Center. Follow-up notices will be left on a resident’s door, if the resident is not home at the time of the census worker’s visit. (For simplicity in notice to residents, we advise referring to them as “census workers” rather than “enumerators”.)
Managers should be aware that like any other government program, the census will have its fair share of scams and scam artists impersonating enumerators. Enumerators do not use email or the internet to contact anyone. Enumerators will not ask to enter the home “to go to the bathroom” or for any other reason. Enumerators or census forms do not request donations, social security numbers, or detailed financial, banking or credit card information. Enumerators may use the phone to follow up on questions on a returned questionnaire, but will never ask questions beyond the ones on the census questionnaire. Be careful of relying on caller-id as proof of the caller’s identity, as scam artists can make it appear to be from the “Census Bureau”.
Managers are not violating the privacy of their residents, as managers are required by law (Section 223 of Title 13, United States Code) to comply, and are subject to a fine for failure to comply. Enumerators should have available for managers/agents a Confidentiality Notice. The Census Bureau only collects the information required by the law and imposes strict confidentiality requirements on those collecting and processing the census information. Federal law provides penalties of up to five years in prison and a $25,000 fine for the unauthorized disclosure of personal data by any enumerator or other census worker. Anyone who suspects an unauthorized disclosure can contact the Chief Privacy Officer for the Census Bureau, who is responsible for implementing privacy policies.
Managers/agents should expect that their files may very well lack some information sought. Fair Housing concerns have limited managers from acquiring information on ethnicity or race. Managers/agents are only required to supply the information that they have. The questionnaire consists of only 10 questions, but 5 of the questions have to be answered and re-answered for each occupant of the residence. The enumerator will assist the manager/agent with any interpretations of what a question is seeking.
In conclusion, managers have a vested interest in cooperating in the census. It brings some of those hard-earned tax dollars back to Florida and the manager’s community. Managers have a legal obligation and an economic incentive to see that every person in their apartment communities or rentals is counted. For more information on a Census, visit the website of the US Census Bureau.
- 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