One type of eviction seems to generate the most confusion among property managers. Of course, I am referring to eviction for lease noncompliances other than nonpayment of rent. Why you ask? Evictions for nonpayment of rent are generally not complicated, because whether rent has been paid or not can usually be established fairly easily. Moreover, when the resident claims payment of a disputed amount, the resident has the burden of proof in court. On the other hand, attempting to evict a resident for criminal conduct or noise and disturbance related conduct can be very difficult. The reason these cases cause difficulty even for the most seasoned property manager is that judges require solid proof of bad activity on the part of the resident since rent was last accepted, and the burden of proof in this type of eviction case is on the manager. If you file your eviction case based on the resident’s conduct without strong, rock solid proof, then you risk losing your case. The repercussions of losing your case are enormous. First, the problem resident is allowed to remain on the premises, and often will continue to cause the same types of problems that led to the eviction action; neighboring residents will not be happy. Adding insult to injury, you may be held responsible for the resident’s legal fees and costs, an amount which could be quite substantial! Your Regional Manager will be none too pleased with that lousy outcome to your eviction case. A good attorney would counsel his or her client property manager to refrain from filing eviction lawsuits without the necessary proof. One source of information that is often needed to prove these kinds of cases are police reports. This article will serve as a guide to help the diligent property manager utilize police reports to help prove their lease noncompliance eviction actions. We will also point out the many myths and misconceptions that property managers have regarding police reports.

Police Reports are Inadmissible in Court

Jay is the community manager of a mid-sized apartment community. Over the past few months there has been a rash of burglaries. From the start, Jay had suspected Terrence and Lawrence to be the guilty parties, the residents in Apartment 2-B, as these issues began shortly after these residents moved in. Jay called his attorney and asked if he could evict based on the circumstantial evidence. Jay’s attorney told him that there was not nearly enough proof to cause a judge to approve an eviction of Terrence and Lawrence. Jay was disappointed, but was determined to remedy the burglary problem plaguing his community. Jay extended the hours that his courtesy officer was employed, and sure enough, one night the courtesy officer noticed Lawrence and Terrence kneeling in front of another resident’s window. The courtesy officer alertly called the local police who arrived on the scene. The police then caught the residents in the act of committing a burglary. The next day Jay obtained the report of the courtesy officer. Three days later Jay received his copy of the police report. Among the details in the police report was a notation that the resident was arrested, and the officer signed the report. An eviction was commenced, and Jay was unable to arrange for the courtesy officer or police officer to attend the hearing. Jay is stunned to learn that judge will not even look at the reports of either the courtesy officer or police officer, because they are “hearsay” and therefore inadmissible in court!

Explanation of “hearsay”

Hearsay is defined as an out of court oral or written statement offered to prove the truth of the matter being asserted. Many property managers believe that hearsay simply means that a person told you something, and you are prevented from admitting that statement into evidence at a court hearing. That is true to some extent, unless that person is in court with you. The reason is simple. If the witness cannot be called to the stand and cross-examined by the opposing party, then the statement is inadmissible. It would be unfair if you did not have the ability to cross-examine witnesses. However, there are many other types of evidence that property managers wrongly believe can be admitted in to evidence. For example, you cannot prove that a resident vandalized a unit by showing bills for the repairs to the judge, unless the vendor showed up in court with you and is a witness who could be cross-examined. The same applies to affidavits, whether they are notarized or not, estimates, and signed written witness statements, no matter how many. Whether it is 3 witness statements or 30, it is still hearsay, unless those residents or witnesses who authored the statements show up in court to testify. Likewise, if you have a police report in your possession which indicated the bad conduct on the part your resident, you are not getting that admitted into evidence, unless the officer who authored the report testifies in the court proceeding. It should be noted that the Florida law permits exceptions to the “hearsay” rule, including statements for the purpose of medical diagnosis and treatment, statement of a child abuse victim 11 years of age or less, and business records made at or near the time of the event, by a person with knowledge, kept in the course of normal business activity, provided that it was a regular practice of the business to make such a record. Police reports are not an exception to the “hearsay” rule in Florida. It should also be noted that in cases involving juvenile defendants, officers may be prohibited from testifying, which severely diminishes the value of the police report. Also, if an arrest is made by an undercover officer, typical in drug raids, the arresting officer’s name may be blacked out on the report, and you would not be able to have the officer testify in court. They might only testify in a criminal proceeding, not an eviction action, due to the confidential and dangerous nature of their job.

Police Reports Can and Will Help You Determine if Your Case is Strong.

It is essential that you are not surprised at your eviction hearing as to the facts of your case. A clear and detailed police report will help you determine if indeed the lease was violated. It should give you the relevant facts upon which you are basing your eviction. There should be dates and times and a narrative describing the improper conduct. If you believe that your resident committed a crime on the property, the police report better support that. For example, you may see an arrest take place right on the grounds of your apartment community. Does that mean that a crime took place on apartment community grounds? Of course not! Maybe there was an outstanding warrant, or the crime was committed 50 miles away. Many property managers locate the “Booking” report which is available online in many counties. These reports usually only contain the names, dates and reason for the arrest. They almost never tell you where the crime took place and often no written narrative or details are provided. If you request a police report from your local law enforcement agency, and they refer you to the “booking” report, tell them you need a police report with a full narrative, or else you will be unable to evict the problem resident. In most cases law enforcement will be sympathetic and will help you obtain the full police report.

Police Reports and Noise

Jane, against the advice of her attorney, decides to file an eviction based on noise disturbances. She has lined up two residents who have agreed to testify in court. Jane’s attorney warned her that residents rarely show up in court to testify against another resident at an eviction hearing. Guess what? The resident witnesses failed to appear at the hearing, and Jane’s eviction request was denied by the judge. Had Jane counseled her residents to call the police, she may have obtained a police report which verified the disturbance. Jane could have later issued a subpoena to the officer requiring his attendance at the hearing. Better yet, maybe the officer would have issued a noise citation to the problem resident. An effective property manager stresses to residents complaining of noise or disturbances that it is imperative they call the police.

Police Reports and Drugs

Miriam is the manager of a large apartment community. Last month, as she was walking into her office, she smelled pot. As she continued walking she saw a man in the breezeway smoking what appeared to be cannabis. Miriam would like to evict. Can she? The answer is no. The above scenario takes place all the time; Miriam should have contacted law enforcement. In this type of situation, the police will confiscate the suspected drug and will test it. You are not going to evict anybody for illegal drug use or possession unless the police confiscate the drug and obtain a positive field test, information that can be verified in the subsequent police report.

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