ACCEPTING RENT AFTER A SEVEN DAY NOTICE HAS BEEN SERVED
The most common lease noncompliance is of course nonpayment of rent.
Most managers are quite familiar with this problem and know to serve a Three Day Notice in accordance with the law.
If the rent is not paid within the three day time period excluding Saturdays, Sundays and legal holidays, an eviction can be filed, and the resident most likely will be evicted.
Life though is just not that simple.
Many residents engage in other non-rent noncompliances, such as having the unauthorized occupant,
excessive noise disturbances or simply having a grill on the balcony which violates the fire code or infuriates the condo association
There are many noncompliances that the resident will engage in necessitating the manager to serve the Seven Day Notice to Cure.
This notice gives the resident seven stariaght days including sat sun and legal holidays days to either start doing something he is supposed to do, or stop doing something he is not supposed to be doing,
or else the manager may have a right to terminate the tenancy and begin an eviction if the resident fails to vacate.
The situation becomes complicated when the resident is out of compliance with a lease provision unrelated to rent AND rent becomes due in the meantime.
Timing of the notices and the actions of the manager can determine whether or not the notices will remain valid and support an eviction.
Let’s look at what we will call the Continuing Noncompliance
Examples of noncompliances that would be considered “continuing in nature” include an unauthorized occupant or unauthorized pet.
Here we have knowledge that the resident is in noncompliance, and the resident is served a Seven Day Notice to Cure.
Let us assume now the resident is served this notice on the 27th of May and on June 1, rent becomes due.
The manager goes out to the property on June 5th, presumably to serve a Three Day Notice, as no rent has been received for June.
She sees the unauthorized occupant’s vehicle, serves the Three Day Notice and leaves.
The resident then comes into the manager’s office and hands the manager the rent check.
The manager takes the check and deposits the money.
Five days later, which is 13 days after the manager has served the Seven Day Notice to Cure for the unauthorized occupant, the manager again sees the occupant’s truck in the driveway.
It is clear that the resident has not cured the noncompliance.
Can the manager terminate the tenancy?
Quite possibly not. Florida law provides that if rent is accepted with knowledge of a noncompliance, the right to terminate the tenancy is waived, but not for any subsequent or continuing noncompliance.
Under the fact pattern just discussed , some judges will interpret the statute to mean that the manager has waived its right to terminate until July.
Some judges may also rule that a permanent waiver has occurred .
Should a Manager Accept Rent When There is a Continuing Noncompliance?
From the preceding example, it appears clear that the manager should NOT accept rent or serve any type of demand for rent, i.e., the Three Day Notice, if a Seven Day Notice to Cure has already been served and the noncompliance has not been remedied.
Noncompliances Which Are Not of a Continuing Nature
Unlike the unauthorized pet or occupant situation that is most likely a continuing noncompliance, the manager will encounter situations in which the resident is in noncompliance and then cures the noncompliance, only to go into noncompliance at a later time.
Examples might include a gas grill on the balcony or the resident who sporadically plays very loud music. The Fire Marshall may prohibit gas grills, or it may be in violation of the lease or condominium rules and regulations.
The manager serves the resident with a Seven Day Notice of Noncompliance with Opportunity to Cure, and the resident removes the grill from the balcony, hopefully not into the unit where it can be a fire hazard. Rent becomes due, a Three Day Notice is served, and the manager accepts rent. Two weeks later, the grill reappears.
Since the noncompliance was cured at the time the Three Day notice was served and rent accepted, the manager’s acceptance of rent should NOT jeopardize the ability to terminate the tenancy due to the reappearing grill.
Is a Noncompliance Sporadic or Continuing?
Sometimes we hear managers say that they thought the resident had cured the noncompliance because the resident had received the notice.
Did the manager actually check to see if it was cured, or did the manager just assume it was cured?
Did the manager make sure the grill was removed from the balcony? Once a Seven Day Notice of Noncompliance is served, it is incumbent on the manager to investigate to see if the problem was solved before serving the Three Day Notice.
If not, it is possible what was assumed to be a sporadic or easily cured noncompliance was not cured.
The Tenancy Has Been Terminated By a Seven Day Notice to Terminate
If the resident fails to cure a noncompliance, the manager should contact his attorney and seek guidance on whether the tenancy can in fact be terminated.
If so, and at last resort, the resident is served a Seven Day Notice of Termination.
This is a very powerful notice boldly proclaiming that tenancy has been terminated. A Seven Day Notice to Cure is a warning, while a Seven Day Notice to Terminate says “get out within 7 days”.
But wait. Rent is now due, and the manager needs the money.
The resident drops off the rent check and the owner who desperately needs the money deposits the check.
Yes. You are correct. The Seven Day Notice of Termination is now null and void. The owner now cannot terminate the tenancy because he has accepted the rent.
Your best bet is always to have your attorney walk you through the Seven Day Notice procedure and guide you along the way.
Always remember that if your have served a Seven Day Notice to Cure or a Seven Day Notice to Terminate, you may or may not be able to accept rent.
The next time the situation arises, just remember the slogan, “you cannot have your cake and eat it to”, when you get the urge to accept rent after a seven Day Notice has been served.
If you have an office with employees, allow residents to direct deposit or pay by credit card or online, be sure you have a mechanism in place to prevent a rent check from being inadvertently accepted from the resident in noncompliance.
- 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