NO CURE RESIDENT TERMINATIONS

Just about every manager will at one time have to deal with a resident’s noncompliance. The usual culprits are the unauthorized person or pet, failure to maintain the premises, noise and parties, among many other possible lease violations. Almost all resident noncompliances are of a curable nature, and the manager knows that they must first give the resident a Notice of Noncompliance With Opportunity to Cure. After service of this notice, usually the resident cures the noncompliance and life goes on. There are limited circumstances where the resident is NOT given an opportunity to cure a noncompliance, and the manager is able to go straight to the Seven Day Notice of Termination. It is imperative that the manager knows when and how to use this notice, as this notice is drastic. The manager is taking the unilateral step to terminate an important and valuable property use right of a resident.

The Law Regarding the Seven Day Notice of Termination

Florida law gives the manager the authority to terminate a tenancy in FS 83.56(2) (2) If the resident materially fails to comply with s. 83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the manager may:
(a) If such noncompliance is of a nature that the resident should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the manager of a similar violation, deliver a written notice to the resident specifying the non-compliance and the manager's intent to terminate the rental agreement by reason thereof. Examples of noncompliance which are of a nature that the resident should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the manager's or other residents' property by intentional act or a subsequent or continued unreasonable disturbance. In such event, the manager may terminate the rental agreement, and the resident shall have 7 days from the date that the notice is delivered to vacate the premises…

When is a Noncompliance Not of a Curable Nature?

The examples Florida law gives us are destruction, damage, or misuse of the manager's or other residents' property by intentional act or a subsequent or continued unreasonable disturbance. The law also states that the manager is not limited to these specific items but does not elaborate any further. This creates a problem, since we are not sure whether a noncompliance which is not listed in the statute is to be considered of a curable nature or a non-curable nature.

Destruction, Damage, or Misuse of the Manager's or Other Residents' Property by Intentional Act

If a resident were to break out all the windows in the unit, intentionally set a fire on the premises or smash the windshield of another resident’s vehicle, it would be fairly clear that the manager could go straight to termination. In most situations, it is not so clear. Residents often have fights and end up breaking a window in the unit. They claim it was an accident. You now have to prove it was intentional. Were you there at the time? Probably not. The resident’s door is kicked in, and there is a fight on the premises. It looks like intentional damage, but the resident claims some unknown person came to the unit and kicked in the door. You inspect a unit and there are stains all over the carpet and writing on the walls. It doesn’t look like an accident, but will a judge evict someone for this, or expect you to take the damages out of the security deposit when the resident vacates? The resident has a fire in the unit resulting in severe smoke and water damage. They claim it was an accident. Can you prove otherwise?

Criminal Acts on the Premises

Most managers feel that if a resident commits a crime on the property, this is cause for immediate termination. These crimes may include, but are not limited to, a weapons offense, molestation, battery, sexual offense, domestic violence or a drug offense. It would seem clear that if the resident commits a crime, this is not a situation where the resident should be given the opportunity to cure. The big problem though is that the resident is considered innocent until proven guilty in a court of law. The same resident who got hauled off to jail last night for a serious crime is considered completely innocent in the eyes of the law and most likely will be out on bail in a short period of time. It is interesting that the statute does not mention the commission of a crime as a basis for immediate termination. However, the statute does indicate that the listed immediate termination items are not an exclusive list, so it may be possible in some circumstances to go straight to termination, even though the resident has not been and will not be convicted of any crime by the time you file the eviction.

The Drug and Crime Free Addendum

Many managers wonder why it is necessary to use a Drug and Crime Free Addendum. The Drug and Crime Free Addendum specifically states that in the event of a commission of a crime on the property, the tenancy may be immediately terminated. Here the resident is contractually agreeing to the termination of the tenancy without being given the opportunity to cure.

Falsification of Information on a Rental Application

Most applications and leases have or should have a clause dealing with the ability to terminate a resident if the resident falsifies information on the rental application. In most cases, if it was a material falsification, you can go straight to termination. Here again, we see a contractual agreement by the resident that in the event of falsification, immediate termination will be the consequence.

Continued Unreasonable Disturbances

The law allows for immediate termination in the event of “continued unreasonable disturbances” on the premises, which likely include constant fighting, police responses, multiple parties and other disturbance type activities. The first element is that they have to be continual, meaning they have to either be repeated on different occasions or non-stop. The second element states that they must be “unreasonable” disturbances. This is where most cases will fall apart. While the resident’s actions may be unreasonable to the surrounding residents, you must be able to convince a judge that they were indeed unreasonable. This will require heavy proof, neighboring residents testifying in court, and often testimony from a law enforcement officer. The judge may feel that the resident should have been given an opportunity to cure the problem rather than the immediate resort to a termination notice.

When Should You Decide to Serve a Seven Day Notice of Termination?

In our opinion, you should NEVER make the decision to go straight to termination. Your attorney will want to be certain that there is a solid case established, and your attorney should not only make the decision for you but also prepare the wording for the notice. A solid case can be lost on the basis that the notice is worded improperly. Most managers have never been in court on a contested Seven Day Notice termination case and do not realize that it is far different than your typical nonpayment of rent case. As in any eviction, the prevailing party is entitled to an award of attorney fees and costs. Typically if you lose a Seven Day Notice termination case, and the resident has an attorney, you will be faced with paying a substantial amount of attorney fees to the resident’s attorney, and you will have a higher chance of being hit with a Fair Housing complaint in the event the person you unsuccessfully attempted to evict is of a protected class.