RETURNING RENT PRIOR TO AN EVICTION

The Three Day Notice has expired and the full amount was not tendered.  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  from the resident will destroy an eviction. 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 partial payment is tendered by a resident and the manager does not want to take the partial payment, 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 as per the notice, you must accept the rent payment.

In our opinion, if you have knowledge of a resident’s partial 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 fact they must pay in full. 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.

1. Copy the payment
    
2. Call the resident and tell him or her that you are returning the money and that it will not be accepted
    
3. 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
    
4. 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.
    
5. Send the payment back to the resident by Certified Mail Return Receipt Requested, saving the proof of mailing.
    
6. Notify your attorney so the attorney can make a note in the file.

Common Mistakes

1. Manager receives the payment and holds onto the payment.

 

2. Manager calls resident and tells resident to pick up payment, the payment is not picked up, and the manager holds the payment.

 

3. Resident’s payment is deposited into manager’s account.

 

4. Manager puts payment in an envelope and tapes it to the resident’s door.

 

5. The manager returns the payment to the resident and tells the resident to put the money into the court registry.