Law Offices of Heist, Weisse, and Wolk, P.A.
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Your worst nightmare has come true. One of your residents comes into your office with a print out from the Florida Department of Law Enforcement  website showing a sexual predator or offender, hereinafter SP/SO, is registered at your property. He looks familiar to you. You look up the lease for the unit, and he is not on the lease. Whew, an unauthorized occupant. What if he is on the lease? Possibly he slipped through the cracks in the application process. How do you get him out fast?


Confirming Status and Address


Simply go to the Florida Department of Law Enforcement  website and look up the individual in question. If the person is a SP/SO, it will show up and give a brief description of the offense along with a physical description of the individual and a photo. An important aspect of the information will be the address that the individual has registered with the FDLE. This address may be the address of the rental unit or some completely different address. If it is the address of the rental unit, you can contact the FDLE, as possibly the SP/SO is in violation of the rules regarding the terms of his probation if he is in too close proximity to children. If it is not the address of the rental unit, we urge you to call the FDLE and report the fact that the SP/SO appears to be living at your property, and that your address is NOT what is listed on the website. It is possible that the SP/SO has registered the new address but the website is not yet updated.


Contacting the Resident


You immediately should contact your resident, making her aware that you know of the presence of an unauthorized person living with her on the premises and that the SP/SO needs to leave. If you get any pushback from the resident, feel free to let her know that you are fully aware this person is a registered SP/SO, not that it really makes much difference. Note that we call this person an “unauthorized person” or “unauthorized occupant”. Many property managers think that just because the person is a SP/SO, this somehow makes the offense by the resident in having an unauthorized person worse, or that it will make it easier to evict the person. It makes no difference. An unauthorized poodle may be an unauthorized pet as much as an unauthorized pit bull, the latter of which may be a breed you restrict. The breed of the pet or the status of the person will not have much relevance at all on your ability to take action. The unauthorized occupant is an unauthorized occupant plain and simple, and your resident is in violation of the terms of the lease agreement if that person resides in the unit for a period longer than the lease allows. Most leases allow guests or visitors for period of 72 hours to 2 weeks, and then require the resident to get your permission for the “guest extension”, thus the person does not become unauthorized until such time as the allowed guest period under the lease is exceeded. Once you contact the resident, you will most likely get the usual story, “The person is just visiting”. If the person is indeed “visiting”, they will be allowed to visit. “Residing” there is another story. Once you can prove the person is not simply “visiting” but is residing on the premises, you will need to put in motion your usual procedure for dealing with the unauthorized occupancy lease noncompliance, by giving notice and proving the person is in fact residing on the premises and not just visiting.


The SP/SO Has Your Address Registered


Although this is unnerving to you and your other residents or neighbors, this makes our job easier. We do not have much to prove here. The SP/SO registered his address as your property address. You serve the proper notices, and if you do not get compliance, eviction can begin. The first notice is of course the Seven Day Notice of Noncompliance with Opportunity to Cure. This gives the resident 7 straight days, INCLUDING Saturdays, Sundays and legal holidays, to get the unauthorized occupant removed. If the person is not removed and you can prove it, a Seven Day Notice of Termination is then served, and after 7 more days elapse, an eviction can be filed if you can prove the SP/SO failed to timely vacate pursuant to the original cure notice. One of the ways you can prove this is to contact the FDLE and see if the address the SP/SO registered with it is still the unit address.


Visitor or Resident?


While we have dealt with this in other articles regarding unauthorized occupants, as a review, you will need to PROVE the person is not just visiting. A SP/SO is allowed to be a visitor, like it or not. Proving occupancy can be extremely difficult, because few if any property managers have 24 hour surveillance of the premises to definitively prove the person is occupying the unit as a resident and not simply coming and going occasionally or staying overnight once in a while. Ironically, if you saw a person coming each day to the unit at 9 a.m. and leaving at 3 p.m., you might assume he visits each day. If the same person came at midnight and left at 6 a.m., you would assume he is living there. These are all just assumptions and not solid evidence, and circumstantial evidence can make for tough proof cases.


Notification to Other Residents


Under Florida law, you are under no legal obligation to notify the other residents that a SP/SO is on the property. Much to your dismay, most will find out fairly quickly, as the word spreads fast. Some residents upon becoming aware that there is a SP/SO living near them will copy the FDLE printout and plaster your property or surrounding residences with the flyer. If you are approached by angry residents demanding what action will be taken, you simply tell them you are completely on top of the situation and are taking all legal steps to have the person removed, and that it is a legal process that takes some time.


The SP/SO is on the Lease!


There are times where you run a criminal background check and a particular offense will not show up. The applicant is approved and moves in. How do we handle this situation when this person turns out to be a registered SP/SO? Suppose the person is not listed on the lease as a “resident”, but is listed as an occupant. Listing an adult as an occupant is a major mistake that many property managers make. For some strange reason, property managers think that if someone does not qualify, he should just be listed as an occupant. Sometimes the applicant who is approved will ask you to list her spouse or friend as an occupant, not as a lease signer. ALWAYS have all adults who will be occupying the unit go through the entire application process and sign the lease.


The first thing you need to do if you realize that the actual lease signer or occupant is a SP/SO is to get out the application and examine if there was a misrepresentation made on the application. Go straight to the question where you ask if the applicant was convicted of a felony, and see what the answer is. If the applicant lied on the application, and your lease and/or the application has the proper wording that allows you to terminate the tenancy if a misrepresentation was made, you are in good shape. A Seven Day Notice of Termination will be given to the resident, and an eviction can be filed.


One problem we see in the question you ask of the applicant is that on most applications, you are only asking if the “applicant” was convicted of a felony. What about the “occupant”? Make sure your question always asks if the “applicant or any occupant” was convicted of a felony. This will help protect you if you made the additional mistake of not having all adults sign the lease. Check your application wording right now!


Unfortunately, there are some real, worst case scenarios due to mistakes made by the property manager. Suppose in the answer section of your criminal background question section, the applicant failed to circle either “yes” or “no”. Did the applicant lie or make a misrepresentation? The argument can be made that they did not lie, and you will be in a world of trouble. ALWAYS make sure that an application is completely filled out and no spaces are left bank or questions left unanswered. Not answering a question with the hopes that it will slip through the cracks is a clever technique by an applicant to trick an unwary property manager.


Some Practical Tips


Get an “admission” -- If your resident “admits” to you that she has this unauthorized occupant, SP/SO or not, this “admission” can be used in court. If the resident tells you and your leasing agent, “Yes, I know, he is looking for a place to live”, you and your leasing agent can testify to this in court. Of course the judge may not believe you, but it is part of our evidence we use.


Log your evidence -- Create a log of when the SP/SO’s car is parked on the property, when it comes and goes, and take pictures. This type of detective work helps you win cases.


Try the “Agreement to Vacate” – If your resident is “in love” enough with this SP/SO, the resident may agree to just move out. Get the resident to sign an Agreement to Vacate, and in our opinion, release her from the lease so you can get them out as soon as possible.


Try a written promise -- It may be possible to get your resident to sign a form stating that they will have the SP/SO removed at a date certain, and if the SP/SO returns after that date, she agrees that her tenancy is terminated. This memorializes the fact that the SP/SO is actually living there, and makes it more difficult for the resident to fight you.

Call your attorney -- The last thing you need is a revolt on your property and residents wanting to break their leases because of the presence of a SP/SO on the property. Many residents, especially those with children, will want to use this as a way to break their leases, and if the matter were to be litigated, a sympathetic judge may feel that particular residents were justified in breaking their lease. The minute you find out that a SP/SO is on the property, call your attorney immediately, so you and your attorney can develop a strategy for removal of the SP/SO, resident or both.


  • The Curable Noncompliance Examined PART 1