DENIAL OF ACCESS BY TENANT

(Article applies to inspections, showing and repairs)

 

 

 

You are in the process of making your periodic inspections of units; you have given written notice and find out that your key does not work in the door. Apparently the tenant has changed the locks without your permission and has failed to give you the keys. In another situation, the tenant has called in and requested that a repair be made in the unit. You send your maintenance staff over, and the tenant refuses to let your staff in to make a repair, saying it is not a convenient time. Your tenant requests a repair to be made, you call to schedule the repair, and the tenant states that you can only send the maintenance staff in if the tenant is home, which happens to be after 7:00 p.m. Do these scenarios happen? You bet. This article will address the situation in which the tenant is playing the “denial of access game”

 

The Law On Access

 

Florida law specifically addresses access rights by the manager, and your lease agreement may further address the issue.

83.53 Manager's access to dwelling unit.—

1. The tenant shall not unreasonably withhold consent to the manager to enter the dwelling unit from time to time in order to inspect the premises; make necessary or agreed repairs, decorations, alterations, or improvements; supply agreed services; or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors.

 

2. The manager may enter the dwelling unit at any time for the protection or preservation of the premises. The manager may enter the dwelling unit upon reasonable notice to the tenant and at a reasonable time for the purpose of repair of the premises. "Reasonable notice" for the purpose of repair is notice given at least 12 hours prior to the entry, and reasonable time for the purpose of repair shall be between the hours of 7:30 a.m. and 8:00 p.m. The manager may enter the dwelling unit when necessary for the further purposes set forth in subsection (1) under any of the following circumstances:

 

1. With the consent of the tenant;

 

2. In case of emergency;

 

3. When the tenant unreasonably withholds consent; or

 

4. If the tenant is absent from the premises for a period of time equal to one-half the time for periodic rental payments. If the rent is current and the tenant notifies the manager of an intended absence, then the manager may enter only with the consent of the tenant or for the protection or preservation of the premises.

 

The Tenant Lock Change

 

If the tenant changes the locks on the premises, this may be in violation of the lease agreement, if there is a clause providing that the tenant is forbidden to change the locks. The tenant is not necessarily in violation of Florida law though, unless he fails to deny you access by virtue of this lock change. If it is determined that the tenant has changed the locks and is in violation of the lease, he must be served a Seven Day Notice of Noncompliance with Opportunity to Cure. The unauthorized tenant lock change really is the easy case and does not pose too many problems if the tenant complies and gives you a key. There are many reasons why a tenant may have changed the locks, and as long as the manager has access, this is usually not a real problem.

 

The Denial of Access “Game”

 

If your tenant has requested a repair and then denies you or your maintenance staff access, or makes it unreasonably difficult or impossible to make repairs by telling you that she must be present, or requiring you to come after business hours, you must jump into action. Tenants will use the request for repairs as a way to either set up a lease break scenario or put themselves into a rent withholding posture. If the tenant ends up breaking the lease or withholding the rent with an eviction ensuing, the tenant may try to claim that numerous requests for repairs went unmet. You may then need to establish to a judge that you were denied access. The tenant will have a wonderful story of how numerous repair calls were made, work orders were turned in, and no one was ever sent to make the repair. You will be flabbergasted and tell the judge that you made several attempts, and eventually gave up as the tenant was making it nearly impossible to get the repairs accomplished. Now you are at the mercy of the judge to either believe you or the tenant, who may be able to lie more convincingly than you can tell the truth. This is bad position to be in.

 

Repair Requests and Strategy

 

The moment a repair request is made by the tenant, it should be dealt with quickly. Can you simply go to a unit and make a repair after a phone call from the tenant? Yes, but it is a bit risky if the tenant did not expect you to come when you did, and you and your maintenance staff can be accused of theft or trespass when the tenant is surprised. If you go to the unit without any notice and the tenant is home, the tenant may deny you access, and it could be looked on as legitimate by a judge. Your lease or tenant handbook should clearly lay out the procedures for repair requests, but as we know, many managers fail to do so.

 

Once the repair request is made, if it is something that needs immediate attention, the tenant should be called and told that you or your maintenance staff will be out within a specific time window. The tenant may have a pet that needs to be secured, and it is just a matter of courtesy to coordinate something like this with the tenant. At this point in time, the tenant may begin to deny you access. If the tenant insists that she be home for the repair, this should be accommodated if possible. However, if the repair need is of an emergency nature, do the repair without accommodating this request, if need be. If the tenant demands that you come after normal business hours, this may be construed as a denial of access, especially if your tenant handbook or lease clearly states the hours that repairs will be made. The tenant may verbally agree to you coming to the premise for the repair, and upon arrival the tenant informs you that you cannot make the repair at that time. This is when you must jump into action.

 

The Tenant Refuses You Access

 

If the tenant has already stated when you can or cannot come to make a repair, or has made it clear that your staff or repair person cannot come during regular business hours, you must immediately begin to document the steps you are taking to get the repair accomplished and the roadblocks that the tenant is putting up. All phone calls, work orders, responses and witnesses need to be documented for later use. If you go out to make the repair and the tenant flat out denies you access, you will preferably have a witness and should document this carefully. At the same time, inform the tenant when you will be back using a written notice. If the tenant refuses access again, attempt to have the tenant sign your notice proving that she refused the repair. You can also consider giving a Seven Day Notice of Noncompliance with Opportunity to Cure at this time based upon the tenant unreasonably denying access after have been provided notice of repair. Now it is time to try again. You have given the tenant a WRITTEN notice of when you will be returning to effectuate the repair; honor the notice. If the tenant again refuses you access, document everything all over again. If you don't expect cooperation by the tenant, always have a witness with you to show that the tenant has refused the repair. You see, you are now part of the game, and you want to give yourself the best chance to win this game if you end up in court. Everything must be done in writing, and every denial of access must be documented.

How far do you go?

You may wonder how may times you must try to make a repair and be denied; there is no firm number. Ask your attorney if you have enough proof that you could potentially present into court to prove your attempts and the tenant’s actions. Remember that your word in court will not go too far in this game. Your clear documentation and persistence at attempting a repair, and the tenant’s thwarting of same, will be the key to success in winning an eviction in which the rent was withheld, or attempting to collect rent from a tenant who has breached the lease by complaining about repairs and vacating prior to lease end.