PROHIBITED PRACTICES

If you were to ask a typical manager if they would ever engage in a prohibited practice, you would most likely get a resounding “of course not”. Most managers realize that self- help evictions are no longer allowed, and doing drastic things like taking off the resident’s door will certainly result in a lawsuit these days. Florida Statutes Section 83.67 clearly lists out the prohibited practices and imposes a penalty of 3 months’ rent to the resident, plus the manager will have to pay the resident’s attorney’s fees in the event an attorney is involved with the case. Many attorneys will readily take a prohibited practices case if it is clear that the manager is in violation, and the various legal aid organizations have a list of attorneys in private practice who will take these on a referral basis. Surprisingly, many managers commit prohibited practices intentionally and unintentionally to this day, and are often found in court having to pay significant sums of money to the resident. It is not relevant that the resident may not have paid rent for months or is the world’s worst resident. The case will completely hinge on whether or not the manager committed a prohibited practice. This article will examine Florida Statutes 83.67 and focus on some common prohibited practices that even the most seasoned professional manager commits without even realizing it.

Interruption of Services

A common problem that arises is when the resident is supposed to put the electricity in their own name and either does not do so, or the electric service reverts back into the owner’s name if the resident has service and then fails to pay for such service. The latter situation is extremely common in apartment communities where the arrangement with the electric company is to have the electric service on in the apartment community’s name unless it is in the resident’s name. Commonly, the manager discovers that the electric service is in his or her name, and rightly upset, decides to call the electric company, tell the electric company that is was supposed to be in the resident’s name and then tells the electric company to shut off the electric. In single family home rentals, the resident’s failure to put the electric in their own name is usually discovered when the out of state owner receives a huge electric bill and calls the property manager. The actual manager or the property manager thinks it is then permissible to call the electric company and tell them to shut it off. In the apartment setting, the on-site property manager usually discovers this when the bill comes in. In both cases, it is a prohibited practice to directly or indirectly shut off the electric. Directly would mean that you called the electric company and told them to take it out of your name; indirectly would be to fail to pay for the service if the manager received a shut off warning. Our office receives calls concerning this issue on a regular basis, and many of our clients either ask if they can have the electricity shut off or have already done so. As you can see, this prohibited practice is alive and well!! Electricity is not the only utility covered under “service”. The statute also includes water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration and although not mentioned, the court may interpret cable, satellite or phone as a service. The key to avoiding the problem is to make sure that the services are not on when the resident moves into the unit and avoid any situation where the services revert to the manager in the event the resident fails to pay.

LAW FS 83.67(1) No manager of any dwelling unit governed by this part shall cause, directly or indirectly, the termination or interruption of any utility service furnished the resident, including, but not limited to, water, heat, light, electricity, gas, elevator, garbage collection, or refrigeration, whether or not the utility service is under the control of, or payment is made by, the manager.

Lockout of the Resident

Locking out a resident as a means of self-help eviction was legal a very long time ago. It is legal no more, and most managers would never do such a thing, so you may think. Suppose you are trying to get the resident to come to the office to see you. You change the locks and put a note on the door asking the resident to come to the office. The resident comes home at 7 pm, the office is closed, and he is locked out. Prohibited practice? You bet. You can never change the locks on a resident’s door to “get the resident’s attention” or for any reason; unless the resident requests that the locks are changed. Now what about a situation where one resident asks you to change the locks? You oblige, and a week later the other resident on the lease comes to you and says he or she can’t get in, as her co resident/roommate changed the locks. Are you required to let this person in? If they are on the lease, you are, and your failure to let them in could result in a prohibited practices charge against you. We recommend that in any case where a resident wants a lock changed; all the residents put this in writing on one request form.

LAW FS 83.67(2)A manager of any dwelling unit governed by this part shall prevent the resident from gaining reasonable access to the dwelling unit by any means, including, but not limited to, changing the locks or using any bootlock or similar device

Armed Forces Discrimination

Is it risky to rent to someone in the United Stated Armed Forces? Absolutely. The laws protecting service members have been broadened not only to allow them to break their lease if they go on active duty, but to allow an active duty service member to break a lease to move onto base housing which could be right down the street. The recent law changes have made many managers hesitant to rent to service members, and some managers have decided to try to avoid renting to service members at all costs. A few years ago, this was not considered a prohibited practice, but now it is.

LAW FS 83.67(3) No manager of any dwelling unit governed by this part may discriminate against a member of the United States Armed Forces in offering a dwelling unit for rent or in any of the term of the rental agreement.

Display of Flags

Most leases have clauses which prohibit hanging any items from the premises. Often managers have to deal with situations where a resident hangs clothing, banners or flags from their balcony. These could be anything from a sports related flag or banner to a large flag from the resident’s country of origin. A few years ago, the law was specifically changed to make to a prohibited practice to prohibit a resident from displaying a United States flag on the premises in accordance with the law. There is no exception in the law for managers of single family homes or condo in condo associations or homeowner's associations.

LAW FS 83.67(4) - A manager may not prohibit a resident from displaying one portable, removable, cloth or plastic United States flag, not larger than 4 and one-half feet by 6 feet, in a respectful manner in or on the dwelling unit, regardless of any provision in the rental agreement dealing with flags or decorations. The United States flag shall be displayed in accordance with s. 83.52(6). The manager is not liable for damages caused by a United States flag displayed by a resident. Any United States flag may not infringe upon the space rented by any other resident.

Abandoned Property and Removal of Items

Removal of Items: As we mentioned previously, most managers are keenly aware that you cannot remove a resident’s door in a self-help eviction situation. This prohibition also extends to locks, roof, walls and windows. The only exception to this would be for a manager to remove such items for the purposes of maintenance or repair. Some unscrupulous managers remove such items under the guise of making a repair on the item and delay the repair so as to influence the resident to vacate.

Abandoned Property: Abandoned property removal is one of the most common prohibited practices committed by even the best managers. The usual cases involve those where the manager thinks the items are abandoned, when in actuality they are not, and the manager then disposes of the property, only for the resident to come back and demand the property. The manager can be charged with a prohibited practice, conversion, civil theft and even criminally. It is crucial that the manager knows what abandoned property is and has the proper wording clearly in the lease. The lease wording is as follows:

BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY.
 

Even with the proper lease wording, the unit must be “abandoned” before the manager can dispose of the “abandoned property”. Legal abandonment has nothing to do with what our common sense may tell us. Abandonment is defined in the law, and if all the elements of abandonment are not present, the items left behind are not abandoned property.

Self-Help and Personal Property

The resident has junk outside their door, cars parked on the front lawn, bicycle chained to the railing, chairs in the breezeway and a lanai full of everything, including the prohibited gas grill. Code enforcement is citing the property each day. Can the manager clean up the place and throw out any of these items? They should be able to, but unfortunately the law would most likely consider this a prohibited practice, subjecting the manager to the 3 month rent penalty, attorney’s fees, conversion charges, civil theft charges and possible criminal charges. The manager’s only recourse is to serve the resident with a proper 7 Day Notice of Non Compliance with Opportunity to Cure and treat this like any other lease and/or law noncompliance.

LAW FS 83.67(5) A manager of any dwelling unit governed by this part may not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, repair, or replacement; and the manager may not remove the resident's personal property from the dwelling unit unless the action is taken after surrender, abandonment, or a lawful eviction. If provided in the rental agreement or a written agreement separate from the rental agreement, upon surrender or abandonment by the resident, the manager is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the resident's personal property; if provided in the rental agreement there must be printed or clearly stamped on such rental agreement a legend in substantially the following form: BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY.
 For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).

What are the Penalties for Committing a Prohibited Practice?

The easy answer as mentioned before is 3 months’ rent plus attorney’s fee and court costs in the event the resident decided to hire an attorney. Unfortunately the penalty could be much higher, and potentially one prohibited practice could contain multiple violations and increase the penalty. We dealt with a case where a manager had shut off the electricity, which in turn shut off the well pump and the result was a 6 month rent penalty plus attorney’s fees. We have seen numerous cases of self-help cleaning up of the property where the resident’s property was thrown away resulting in thousands of dollars being paid out to the resident. The electric shut off by the manager when he or she realizes the resident has not put the electric in the resident’s name is a common occurrence. Prohibited practices are alive and well. Follow the law and exercise caution. Common sense and instinct have absolutely nothing to do with the law.

LAW FS 83.67 (6) A manager who violates any provision of this section shall be liable to the resident for actual and consequential damages or 3 months' rent, whichever is greater, and costs, including attorney's fees. Subsequent or repeated violations that are not contemporaneous with the initial violation shall be subject to separate awards of damages. (7) A violation of this section constitutes irreparable harm for the purposes of injunctive relief. (8) The remedies provided by this section are not exclusive and do not preclude the resident from pursuing any other remedy at law or equity which the resident may have. The remedies provided by this section shall also apply to a service member prospective resident who has been discriminated against under subsection (3).