RETURNING RENT DURING AN EVICTION
The Three Day Notice has expired, an eviction is filed in county court, and the resident is served with eviction paperwork. You arrive at your office on a Monday morning, and in the mail slot is a check or money order from the resident. Most managers know that accepting this payment without entering into a proper Stipulation with the resident will immediately kill the eviction action. Acceptance of any rent or amount owed by a resident will almost surely result in a complete defense to the eviction action, resulting in dismissal of the eviction action or a finding for the resident in court. When a payment is tendered by a resident after an eviction has actually been filed with the court, the manager must return the money. The issue here is the manner in which and when the payment is returned. Failure to return the payment promptly or properly is a common mistake made by managers.
Can You Accept the Resident’s Payment?
If the resident is paying you in full, and this sum includes your attorney’s fees, costs, late charges and any other amount the resident owes you, there is no great harm in accepting the payment. Under no circumstances should you accept anything other than certified funds such as a certified check or a money order, and you need to be aware that a stop-payment order can actually be made on a certified check or money order, so you are not entirely safe. If the payment is partial and the manager wishes to work with the resident, this can be accomplished with a Stipulation BUT, the manager needs to do this immediately. If the payment is held for more than one day, there is a serious risk of problems.
In our opinion, if you have knowledge of a resident’s payment and intentionally hold a resident’s payment for more than one day, this can be considered acceptance of rent. Florida law does not define how long the holding must be before it is considered acceptance, but most judges interpret any delay in returning the money to the resident as acceptance. If the resident “thinks” you have accepted the rent, most judges will feel the same. Depositing the rent is almost surely considered acceptance, unless you can prove to a judge that it was purely accidental, it was caught immediately, and the resident receives the payment rent back immediately. How do you return the payment back if the resident paid by a check and the money was deposited into your account? You can write the resident a check back, but there is an incredible danger that the check you gave the resident will come back NSF and now YOU have paid the resident rent!
How To Return the Payment to the Resident
HAND DELIVERY: The best way to return a resident’s payment is to make a photocopy of the payment, go directly to the resident with a witness present and hand-deliver the payment back to the resident. While the resident may deny receipt in rare circumstances, this is our preferred way to return. At the time you are returning the money, you will have an opportunity to discuss with the resident the resident’s plans or enter into a Stipulation or even an Agreement to Vacate. We recommend that you call your attorney and get a Stipulation, so you have this in hand in case you will be able to work things out with the resident. Never tell a resident to put the money into the court registry. A manager is not in the business of educating the resident on how the resident can contest an eviction.
CERTIFIED MAIL: If the resident is not available, not home or refuses to accept back the payment that was tendered to you, the manager MUST get the money back to the resident, but at the same time, making sure the resident knows that the money is not being accepted and it is being returned. Here are some steps you can take.
- Copy the payment
- Call the resident and tell him or her that you are returning the money and that it will not be accepted
- Prepare and copy a letter to the resident stating that you cannot accept rent and that the payment is being sent by certified mail back to the resident that day
- Place that letter in an envelope and tape it securely to the resident’s door. If there is back door or garage that the resident may use, tape an additional envelope and letter to these entrances. The key is to make sure the resident knows the money is not being accepted.
- Send the payment back to the resident by Certified Mail Return Receipt Requested, saving the proof of mailing.
- Notify your attorney so the attorney can make a note in the file.
- Manager receives the payment and holds onto the payment.
- Manager calls resident and tells resident to pick up payment, the payment is not picked up, and the manager holds the payment.
- Resident’s payment is deposited into manager’s account.
- Manager puts payment in an envelope and tapes it to the resident’s door.
- The manager returns the payment to the resident and tells the resident to put the money into the court registry.
Notify everyone in your office that the particular resident is under eviction, and carefully watch that the resident does not try to make a payment. Communication with staff is crucial in avoiding the accidental acceptance of a payment. You may want to go as far as placing a note on the office wall out of the sight of other residents or attaching a note to your bank deposit book simply stating “Do not accept rent from John Doe, Apt 123”. Carefully follow the return of payment steps as outlined above, and be aware that another person may try to slip a payment in or use a check or money order that only indicates to what unit the payment is to be applied. Finally, if a resident has tendered a payment, you need to think Stipulation. A Stipulation is one of the best rent collection and resident retention tools available to a manager.
- 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