Law Offices of Heist, Weisse, and Wolk, P.A.
Are you on our
Legal Update List?
Subscribe Button


“Anything you say (or write) can and will be used against you in a court of law”. You have heard the saying, and it applies ever so much in property management. How you respond to a resident can make a big difference in the outcome of a dispute. Our natural tendency to defend ourselves, explain ourselves, apologize or get into a fight when falsely accused, can make a small matter big in no time and create a damaging paper trail. Paper trails are excellent, but we must exercise care in what we write, what we say and what we email. If the burden of proof is on the resident in a particular dispute, there is no reason to give them the “proof “they can possibly use to make their case. This by no means indicates you should lie in court to get out of a situation, but if the resident has the burden of proof with regard to some issue, sometimes it is better to stand by and force them to prove you are in the wrong. The more you write, say or email, the more you may have to explain what you meant.

The Apology

We are all taught that a prompt, sincere apology is the right thing to do in life. In property management, an apology takes on a completely different meaning. Your saying, “I’m sorry about the flood in your apartment,” means, “The apartment manager admitted fault and now owes me money”. The truth of the matter is that the flood may have been caused by the upstairs neighbor, is not the fault of the apartment community, and that the residents are not going to be reimbursed a dime for their damaged items. Why apologize for something that is not your fault?

”We are Doing the Best We Can”

You may be waiting for a particular part, your maintenance tech is out sick or just got fired, and you are not able to promptly repair something in the unit or possibly get the access gate repaired that seems to break each week. Saying that you are doing the “best you can” is interpreted as; “The property manager is not doing as good as someone else may be able to do”. This means that your “best” is simply not enough for them, and the resident latches onto the statement as an admission of weakness. Saying, “We have rush ordered the part, are handling the issue as a top priority, and will be in the unit immediately when we receive the part” is a better approach.

”The Leasing Agent Had No Authority to Tell You That”

The desperate leasing agent “possibly” tells a prospective resident that the carpeting is set to be replaced in a month. The resident moves in expecting full well that they will be getting new carpeting, and the current carpeting is really bad. When the carpeting is not installed, the resident begins to demand that they get the new carpeting. Your leasing agent has since been fired, or your owner just informed you that she is filing bankruptcy and that no non-essential improvements will be been made. You then try to tell the resident that the leasing agent had no authority to make that promise. The problem is that the leasing agent DID have what is known in law as “apparent” authority to BIND the principal, the management company or the owner of the property to install new carpeting. By telling the resident the leasing agent had “no authority”, you may be admitting the leasing agent indeed did make the promise, when possibly the leasing agent did not make such a promise; with the former leasing agent no longer around, it is a big mistake to acknowledge statements you do not know were made. If the resident is not going to get new carpeting and you know for a fact the leasing agent did not promise the carpeting, the proper response would be, “New carpeting is not scheduled to be installed in your unit, and there is nothing in the lease to indicate that your unit was to get new carpeting.”

Responding to the Security Deposit Dispute

The classic mistake is to respond to a resident’s security deposit dispute by giving them (or worse yet, their attorney) a long drawn out explanation for what they were charged, why, and for what they were not charged, and how you were giving them a break on things for which you could have charged them. In the first place, you are NOT required by law to respond to a resident’s security deposit dispute, and secondly, if you feel your charges were legitimate, have good documentation including your inspection reports and photos, and followed all the correct procedures required by law, you can simply respond to the former resident in writing with a short statement such as, “We have reviewed your file, the inspection reports, photos and documentation, and all charges stand”. If you do have problems with your proof that the former resident owes you money, you don’t have pictures or have some weakness in the documentation, you may want to call your attorney and see if you can settle.

Dealing With Dueling Residents

Have you ever seen two units at war with each other, or had complaints by one against the other for noise? Sometimes you want to take sides with one or the other. You receive incessant complaints by one resident, saying the other is making too much noise. You feel that the complaints are unwarranted, or the complainer is hearing things or making a big deal about nothing. Your response may be, “There is nothing we can do, as we have not witnessed the noise”, but rather should be, “As soon as you hear the excessive noise, call us immediately so we can listen ourselves.”

You Should Have Gotten “Renter’s Insurance”

This is a classic response the manager makes to the resident when the resident comes in demanding $250 for the dry cleaning bill due to the pipe break in the ceiling above their closet. The manager feels that the apartment community is not liable for the damages, BUT are they? Just because the lease states that you are not responsible for damages to a resident’s personal property, a judge may find that you are and ignore the clause in your lease. The next time a resident complains about damages to their personal property, tell them, “Sit down and fill out this Incident Report, and we will take it to the regional manager or owner”. Telling the resident right off the bat that they should have purchased renter’s insurance is a sure way to see a $250 demand magically inflate to a $2500 demand when the infuriated resident goes to an attorney.

Implying You Will Give the Resident an Extension to Pay Rent



Your resident comes into the office and tells the leasing agent that he will be in next Monday with the rent check. However, the rent is due today. Your leasing agent then simply says, “OK”. Four days later you file an eviction, and the resident defends the case, saying he was “told” by the leasing agent that it would be okay to pay the rent on the Monday. Could this be a good defense? It certainly complicates matters. Always tell your employees to NEVER discuss extensions or rent payment arrangements with the resident, as an inference can be drawn that could end with you losing an eviction.

Telling a Resident to “Pay What They Can When They Can”.

In these troubled times, partial payments are being accepted at a much higher rate. If you are not specific or have written policies that you follow when accepting partial payments, you could end up with a resident continually bringing in small rent payments. This can create a waiver situation and cause you to lose an eviction. If you decide to take partial payments, you will have to live with the potential consequences.

Telling a Resident the Repair Will Be Made When the Rent is Paid

The resident is delinquent and owes 2 months’ rent. He calls you up demanding that his a/c be fixed. Your response? “Pay the rent, and then we will fix the a/c”. This response will almost assuredly give the resident a defense to an eviction action, and frequently will turn the judge against the owner in the process. The fact that the resident owes you money has NOTHING to do with your responsibility to maintain the premises.

Telling the Resident the Owner is in Financial Distress

The property owner may be in financial distress, and this is why certain things just are not being maintained properly; a/c units are being fixed rather than replaced, or cosmetic things are not being handled like before. It may be true that the owner is in financial distress, BUT the resident does not need to have this information. When the resident asks you why something is being repaired rather than replaced, never respond by revealing the owner’s financial condition.

Telling the Resident Why They Are Being Non-Renewed

You have no legal duty in conventional housing to tell a resident why he is being non-renewed. If you decide to discuss your decision, it will just result in the resident trying to defend himself or argue with you about the facts. A good response would be, “Just like you have the ability to non-renew your lease at the end of the lease term, we also have the ability to nonrenew your lease at the end of the lease term.”

There are too many situations to describe when a resident will tell you something, and you will respond. It is what we do; it is human nature. Try as hard as you can to avoid the sudden or improper response. Hold off on an answer or response, be it verbal or written. Get to the phone or computer immediately, and ask your attorney how you should respond, and what you should say in the response.

  • The Curable Noncompliance Examined PART 1