AGREEMENT TO VACATE ADVANTAGES PREPARATION AND USE

The Background

The most common cause for resident removal is nonpayment of rent. In most cases the facts are limited and not in dispute. Did the resident pay the rent? If not, a simple eviction usually occurs, with the manager prevailing in most cases. Unfortunately there are many other non-rent related noncompliances which result in the manager having a strong desire to have the resident removed from the property. The problem is that the manager’s desire to remove the resident is often far greater than the manager’s case or evidence against the resident.

The Manager’s options – In the event of a noncomplying resident, the manager is faced with a number of options: give the proper notices, gather evidence, prove the noncompliances, file an eviction action, and possibly have to prove the case in court. Another option would be to non-renew the resident if the lease was near completion, and if the resident failed to vacate, simply file an eviction based on the failure to vacate. Finally, there is the option of coming to an agreement with the resident to vacate the premises on a fixed date.

Forced Resident Removal for Noncompliances

In order to legally institute eviction procedures against a resident for noncompliances, certain prerequisites must be met. Depending on the noncompliance, either a Seven Day Notice of Noncompliance with Opportunity to Cure, a Seven Day Notice of Noncompliance Notice of Termination, or both, must be given to the resident. These actions entail informing the resident of the noncompliance, giving the resident time to cure the problem in most cases, if the offense is of a curable nature, and then terminating the resident if the offense continues or occurs again. In the event of a serious non-curable type of noncompliance, the resident is served with a Seven Day Notice of Termination, and an eviction begins right after this notice expires. Eviction cannot even begin until the notices have expired, and in the meantime, you have lost good residents due to your noncomplying resident. Once you file the eviction, you then have to win! This is not always guaranteed. While most managers have served the Notice of Noncompliance with Opportunity to Cure, very few managers have ever filed an eviction for noncompliance, as most residents either cure or vacate prior to the eviction. Far fewer managers have ever filed an eviction and ended up having to prove the noncompliance in court, as many of the residents vacate shortly after getting served with eviction paperwork. The manager who files an eviction for a non-rent related noncompliance and has the case contested is in for a real ride. It is amazing how difficult noncompliances are to prove in court, when your witnesses do not show up, or your solid proof melts away in front of a judge who was so tough on non-paying residents, but now is so sympathetic to the resident before them on a noncompliance case.

Can you really prove to the judge that there is an unauthorized occupant living in the unit? Did the resident remove the unauthorized pet right after or before you filed the eviction? Was it a housekeeping issue that the judge just does not feel so strongly about? Did all your constantly complaining residents who hounded you every Monday morning about the noise from parties suddenly decide not to show up in court? Is the allegation that the strange man who exposed himself by the pool now pretty difficult to prove? Were you surprised that your attorney informed you that affidavits signed by three residents are not admissible in court? Were you shocked when the police officer that responded to two noise complaints decided not to show up in court? Did you think the resident would get an attorney to fight the case and demand a jury trial? The bottom line is anything can happen in a noncompliance eviction, and they should be avoided at all costs.

The “Agreement to Vacate” Alternative – Probably the best possible way to have a resident vacate is to have that resident do so voluntarily. The resident and the manager simply sign an agreement whereby the tenancy is terminated, and the resident agrees to vacate on a fixed date. The “Agreement to Vacate” is this wonderful form, and managers who regularly use the form will attest to the fact that their evictions are reduced, their stress is reduced, and most residents who sign such an agreement vacate on the date they have said that they will vacate.

When is an “Agreement to Vacate” appropriate? – In almost any situation when a noncompliance is occurring or has occurred, including nonpayment of rent, if the manager and resident can agree to a fixed vacating date and memorialize this in writing, the Agreement to Vacate is appropriate: suspected drug use, excessive traffic, domestic disputes, unauthorized occupants, unauthorized pets, noise disturbances, the list goes on. Get the resident to agree to vacate, and you have probably won the battle.

How do you get the Resident to agree? – This takes some skill and experience. Basically the manager needs to approach the resident, explain how things just are not working out, possibly threaten eviction, but give the resident an easy way out. The easy way out is for the resident and the manager to agree to terminate the relationship without the need for further attorney or court intervention. How much time you give the resident to vacate will depend upon the severity of the problem, if the resident has paid rent, or any other factor which will assist you and the resident in just coming to an agreement.

Will the resident always sign an “Agreement to Vacate”? - Absolutely not, but more often than not. Let’s face it, just as the manager is not completely sure that they will win an eviction, neither is the resident. Many residents do not want to go near the courthouse for obvious reasons and will welcome an opportunity to vacate voluntarily. Some of the most belligerent residents, who will scream at you telling you how it will take you six months to evict them, will after some thought sign an Agreement to Vacate. On the sample form below, there is a date that the resident must sign the form by in order for it to be valid. This is used when you want to leave the Agreement to Vacate with the resident, so they can ponder their options, or you feel it would be better for you not to have a face-to-face confrontation with the resident. Once the resident signs the agreement and it is returned to you, you will then sign the agreement and this will create a binding contract. An Agreement to Vacate is no good unless you get all the residents to sign.

What if the resident signs the “Agreement to Vacate” and fails to vacate? – Fortunately most residents who sign the Agreement to Vacate actually leave when they say they are going to leave. If the resident fails to leave, the manager can then immediately begin an eviction action with no further notice, and the manager simply has to prove that the resident has failed to vacate rather than try to prove the underlying reasons why the manager wants the resident gone.

What about the money the resident may owe to the manager? Our sample Agreement to Vacate states that the agreement does not address money issues unless otherwise noted in the agreement. In the space provided, the parties may agree that the security deposit is forfeited, possibly will be returned if there is no damage, or any other financial arrangements can be dealt with directly in the form.

Advantages of the “Agreement to Vacate” – The main advantage is that it is an “agreement”. Emotions do not run as high, eviction may not be necessary, money may be saved, and there is a much higher chance that the resident will not do any intentional damage, as so often occurs in an angry eviction where your success is by no means guaranteed. The next time you have a noncompliance where you “just want them to go”, remember that they just might want to go as well. The Agreement to Vacate is a wonderful form. Help the resident out the door.

SAMPLE AGREEMENT TO VACATE:

AGREEMENT TO VACATE

I/WE ________________________________ hereby agree to vacate the premises which we now are renting no later than _______/______/______. In exchange for vacating at this time, Management agrees to not file any legal action for eviction prior to this time if I/WE continue to comply with the terms of our lease and Florida Law.

I/WE agree that any abandoned property that is left behind after the above date may be disposed of by Management without notice and I/WE agree to hold Management, the owners of the premises and any agents or employees harmless for such abandoned property.

I/WE agree that this AGREEMENT TO VACATE must be signed by us AND returned to Management by hand delivery to the property manager/management or assistant manager no later than 5:00 PM on ______/_____/_____ or Management may begin legal procedures at any time.

I/WE agree that this document and our vacating shall have no effect upon any financial obligations, forfeitures, security deposit forfeitures, early termination clauses etc under the lease or Florida law unless otherwise agreed to in writing by Management.

______________________________   RESIDENT

_______________________________ RESIDENT

_______________________________ RESIDENT

Additional agreements by Management if Residents vacate per this agreement: ____________________________________________________

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__________________________ ______/______/______ MANAGEMENT SIGNATURE