MANAGEMENT STOPPING THE EVICTION ACTION
Almost every day we get a request by phone, email or fax to “stop” an eviction. We don’t mind it, as it is less work for us to stop an eviction than to bring it to completion. However, we immediately ask the property manager why the eviction is being stopped. It is important that we know the answer, as often property managers improperly stop evictions for wrong reasons and find themselves in trouble later, possibly having to file another eviction needlessly. While we don’t mind filing evictions multiple times on the same resident, your company might not like the fact that money is needlessly wasted on attorney’s fees and costs. If the property manager does not completely understand the eviction process or is desperate to collect any money he can, he often will stop an eviction and end up paying a big price later. Do you really want to make your attorney wealthy?
Why Stop an Eviction?
The eviction has been filed, and the property manager subsequently receives the keys, or it appears the resident has vacated. This is a common reason. The resident may come into the office with $1000, representing the rent amount owed, and the manager accepts the rent and figures that the eviction should be stopped. This is another common reason. Sometimes the resident makes a significant partial payment and has promised to come in 5 days later and pay the rest. We hear it all the time. You call and want to stop the eviction. The eviction was filed in error, and the property manager hastily wants the eviction stopped. Whoops. It happens. In this article we are going to examine the reasons why property managers stop evictions and how the eviction should be stopped, if it all.
The Resident Has All of the Rent
The Three Day Notice demanded $750, and since the eviction started, the resident now owes another $750, as you are into the next month. He has a cashier’s check or money order for $1500 and has come into your office. Do you take it or refuse it? The first inclination, especially in these tough economic conditions, is to take the resident’s rent money. Sounds good, right? But Wait! What about the attorney’s fees and costs? A typical eviction attorney who does volume evictions will charge between $125 and $150 in attorney’s fees for the basic eviction, PLUS you have to pay the costs, which at a bare minimum (depending upon how many residents are being evicted) will run you at least $200. Who is going to pay that money? Some property managers think the resident will pay it. Good luck. Not only do they rarely voluntarily pay, but you cannot force them to pay it. By accepting the $1500, the eviction is dead and gone, and the resident cannot be forced to pay the attorney’s fees and costs. Can you deduct it from the security deposit when they vacate? Possibly, but the manager is not really the prevailing party in the eviction lawsuit, as the eviction has been stopped before a judge made a decision, and there probably is not enough money in the security deposit to cover the attorneys fees, costs and possible damages to the premises or rent owed. The lease may state that the resident is liable for all attorney’s fees and costs, but by accepting the rent and voiding the eviction, a resident can fight you on this, especially if she did not realize that you would be trying to take the money owed from the security deposit when she vacated.
The Resident Has a Partial Amount of Rent Owed
In some instances, the resident does not have the full rent but a good portion of the rent owed. The temptation is great, the pressure to collect rent is on, and the property manager accepts the payment. The result? Same as above. The eviction is dead and gone. Good luck collecting attorney’s fees and the remaining rent balance. Hopefully the regional manager or the property owner gave the property manager authorization to “eat” the attorney’s fees and costs and possibly have to incur them again in the next eviction which may have to be filed.
The Resident Has Turned in Keys
The majority of residents under eviction vacate before the process is completed. This is a good thing. Many begin looking for new accommodations the day after they are served with the eviction papers if they have not already begun looking, knowing than an eviction is imminent. The result is that the resident packs up and leaves. In some cases they turn in keys, clean the unit and surrender the premises to the manager. This is the ideal situation. Why not stop the eviction action at this point? Our question we have is why stop it at all? Our attorney’s fees cover the entire eviction from beginning to end. If the resident vacates a day after we file the case or has to be forcibly removed, our fee stays the same. The only additional cost involved is the fee that the Sheriff’s department charges, and the Sheriff is not needed in all cases, especially those where the residents have turned in their keys and fully vacated the unit. Stopping the eviction will result in the resident NOT getting a Final Judgment of Eviction on his or her permanent record. The manager needs to make a decision whether they want the resident to just have an eviction filing on their record or whether they want the resident to have an actual Final Judgment of Eviction on their record. Just because the resident has turned in the keys does NOT mean they have completely surrendered the unit to you. You can never be completely sure. There will come a day when you receive keys from a resident and then will be surprised to find another person living in the unit who tells you they are there with the permission of the resident who turned in the keys to you. The result is that the unit has NOT been completely surrendered and you do NOT have possession. You can see how stopping the eviction at this point will result in you not being able to remove this person.
The Resident Has “Abandoned”
Your maintenance tech goes to the unit under eviction, and it appears that the residents have “abandoned”. The electric is off, the next door neighbor said they saw them driving off in a truck in the middle of the night, and the unit is trashed. Looks abandoned, smells abandoned and probably is abandoned, BUT by law it may not be. Abandonment is defined by Florida law, and we urge you to get a full understanding of this before you ever assume a unit is abandoned. Our recommendation in cases where all the residents have not given you possession, but rather have seemingly abandoned, would be to continue on with the eviction if you are worried at all that the resident is going to come back, or if there is anything left in the unit. Carry the eviction to completion, get the writ of possession, and have the Sheriff execute the writ of possession. This will assure you that the eviction is completed. If the residents were to return, they are not able to retake possession, and you are not liable for any personal property which was put to the property line after the writ of possession was executed. It is the safest route.
The Proper Way to “Stop” An Eviction
The proper way to “stop” an eviction is to not really “stop” it at all. In situations when the property manager is going to accept rent, in full or part, a Stipulation should be used. The Stipulation is the document under which the property manager agrees to take a specific sum, and the resident agrees to pay the balance if any, including the attorney’s fees, costs, late charges or any other amounts owed according to a written “payment plan”. This “payment plan” should not be confused with any other type of payment plan or workout agreement you may enter into with your residents. A “Stipulation” is an actual court document that becomes a “court order” once the judge signs an order approving the Stipulation. This court order will authorize you to obtain a Final Judgment of Eviction if the resident fails to comply with the terms of the Stipulation. Most judges approve Stipulations under which the resident must pay according to the Stipulation AND pay the rent on time for a period of up to 6 months. You see, the eviction is not really “stopped”, but rather it is suspended or deferred by the Court. If the resident pays according to the Stipulation, the resident can stay. If the resident fails to make one or more payments on the past balance owed or the rent as it becomes due, the eviction is revived and your attorney can request a Final Judgment from the judge without having to file an eviction all over again.
Should You Always Use a Stipulation?
We feel that in most cases if you are going to accept a partial or even full payment from the resident, a Stipulation should be used. Obviously, in many cases the resident does not have a significant amount of money, and you should not stipulate, but rather just refuse the rent and continue on with the eviction. If a resident owes $1500 and only can offer you $100, it usually is not appropriate to enter into a Stipulation. The amount you decide to accept in order to enter into a Stipulation is up to your company policy, and this should be established and written down, if not already in place, to avoid inconsistent actions which could result in Fair Housing issues. If you are not stipulating, make sure the resident does not try to slip in a payment without your knowledge, since if this payment is accepted, the resident has essentially paid rent during the eviction, and the eviction may have to be dismissed. It is crucial that you have a system in place to prevent inadvertent acceptance of rent from a resident once an eviction is filed.
The Resident Pays EVERYTHING Including Attorney’s Fees and Costs
You might wonder why you should not stop an eviction if the resident is paying you absolutely everything they owe. It happens. The resident comes into some money, receives a tax refund, settlement or begs, borrows and steals to be sure they can pay and stay. We once had a resident rob a bank and then pay the rent to stop his eviction. If the resident pays you EVERYTHING in full, a Stipulation is not necessary, BUT what about next month’s rent? Will the resident be in the same position of nonpayment next month? If so, you may have to file another eviction on that resident and go through the entire process again. You need to make a decision whether you just will stop the eviction OR enter into a Stipulation under which the resident is ordered by the Court to pay the rent as it becomes due on time for the next 6 months. This is a judgment call on the property manager’s part, and also will depend upon where your property is located. Some judges will only allow Stipulations on past balances owed, but most will allow Stipulations on future payments as well. Your attorney can tell you whether the judge will allow a future rent payment Stipulation. Our recommendation? Stipulate whenever possible, so you can avoid filing an eviction on the resident again within the next 6 months.
The Eviction is Proceeding, the Resident Wants to Pay, and You Are Confused!
Call your attorney! Many property managers only have one or two evictions in a year, and if you are in that lucky category, you are more apt to be confused or make mistakes during your eviction. In a way, it is a good problem. Call your attorney right away if a resident want to pay and stay or you are thinking about stopping an eviction for whatever reason. Your attorney is not hired to just file your eviction, but is there to assist you throughout the entire process. Many things can happen during the eviction process, and your attorney will know exactly how to guide you. Take advantage of the availability and willingness of your attorney to help you. It’s your attorney’s job.
- 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