Law Offices of Heist, Weisse, and Wolk, P.A.
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Storms in Florida have resulted in many new legal issues between the manager and the resident. Unfortunately most managers are not prepared for the myriad number of problems, and often decisions are made which ended up in litigation. Common problems included the residents taking it upon themselves to secure the property and in the process damaging the property. In many cases the premises are substantially damaged, and the resident is allowed a rent rebate or some concession which ends up not satisfying the resident and becoming a problem later. Construction workers often are not able to complete repairs in a timely manner. In severe damage situations, the residents refuses to vacate the premises and also refuses to pay rent. Who is liable for protecting the resident and his personal property? Can we make a resident leave if the premises cannot be repaired quickly, or it is necessary to have the resident leave the premises to have the repair properly made? What about generators? In a multi-family environment such as an apartment community, the misuse of a generator can put people and property at great peril. Can we prohibit them? The following discussion is preliminary at best and is meant to give you some ideas which you may wish to implement in your lease or an addendum to your lease. It is by no means complete, but it is a start.

What are the Manager’s Obligations?

Many leases contain clauses reminding the resident that the manager is not responsible for their personal property, and the resident agrees to this. Surprisingly, these clauses are not always upheld in court for situations in which damage to the resident’s personal property was not due to any fault of the resident. If there is a pipe break, and the resident’s personal property is damaged or destroyed, this clause may not hold up. In the event of a storm, if there were some simple steps that the manager could have taken to help preserve the personal property of the resident from damage, things are not as clear. The duty of the manager to secure the premises is not spelled out anywhere in Florida law. We recommend the following clause.

MANAGER’S OBLIGATIONS: Resident agrees Manager has no obligation to install storm shutters and/or take measures to prevent wind, rain and/or other objects or projectiles from entering the premises in the course or event of a windstorm, flood, hurricane, hailstorm, tropical storm, or any other act of nature (hereinafter “Storm”) that may strike in the area of or affect the premises rented by Resident from Manager. Resident agrees Manager has no duty to advise Resident as to evacuation orders, potential or current storms, safety measures, storm-preparedness procedures, or storm recovery resources. Resident agrees to use due diligence in keeping informed of the current and future weather.

What About the Resident’s Personal Property?

Florida law does not prohibit or specifically allow a manager to require a resident to get insurance for her personal property, commonly known as “renter’s insurance”. There also is no affirmative duty on the manager to secure the resident’s personal property, which may be in accessible areas such as balconies or lanais. It is possible that a particular area of the outside of the premises is subject to flooding. The manager may have a duty to warn residents of this if the manager has knowledge of a low section of the property or prior flooding. Many residents are not aware that the typical insurance policy that a manager has on a rental property in no way includes coverage on any of a resident’s personal property or coverage for any other loss that may occur to a resident other than personal injury or death due to the manager’s negligence. We recommend the following clauses:

RESIDENT’S OBLIGATIONS REGARDING PERSONAL PROPERTY: Resident agrees the rental premises are located in an area that may be subject to storms, and as a result, it is necessary to take steps to protect one’s personal property, including but not limited to securing objects that may become projectiles, keeping important documents in a location safe from damage, providing for the safekeeping of keepsakes, and obtaining appropriate insurance. Resident understands that, even with precautions, damage to personal property, including vehicles, may occur.

RENTER’S INSURANCE: Resident understands and agrees Manager’s insurance if any DOES NOT cover injury or death to Resident’s person or loss of any kind to Resident’s personal property or expenses incurred by Resident due to a storm, including but not limited to, loss of perishables, interruption of water, electric, cable or other utility service, relocation expenses and/or temporary or permanent housing. Resident agrees he or she has an affirmative obligation to obtain renter’s insurance to cover losses in the event loss should occur to Resident’s person and/or personal property due to a storm. Failure by Resident to obtain renter’s insurance is done at the complete and total risk of the Resident.

LIABILITY OF MANAGER: Resident waives any liability or duty on the part of the Manager for any damage to person or property should any occur due to a storm. Resident agrees to indemnify Manager should any third party institute an action for damages against Manager due to damages caused to person or property by Resident’s personal property and/or Resident’s actions or inactions relating to such personal property. Such indemnity shall include attorney’s fees and costs of Manager incurred in any actions for damages by a third party.

Storm Preparation Actions by the Resident

Certain steps should be taken by a resident to minimize the risk of harm to the resident, personal property belonging to the resident, and property belonging to others due to the resident’s personal property becoming a projectile or otherwise causing damage to another’s property. At the same time, a manager does not want a resident to drill holes in the premises, put nails into the premises or take steps to protect the resident’s personal property which could cause damage to the premises in the process. We recommend the following clauses:

STORM PREPARATION: Once a tropical storm, hurricane, flood watch or warning is issued for a particular area and/or at the request of Manager, Resident agrees to take storm preparedness actions. Any injury to Resident arising from storm preparation is the sole responsibility of the Resident and not of Manager. In the event of damage to Manager’s property due to Resident’s storm preparations, that damage will be the responsibility of Resident. Residents shall remove all authorized and unauthorized objects from the immediate premises that may become projectiles in a storm, such as deck chairs, potted plants, patio benches and any items on a balcony, lanai, patios and/or breezeways of the rental premises. These items should be placed inside the apartment and returned to the outside only when it is safe to do so. In no event, shall any motorcycle, scooter, gas grill, or other item containing gasoline or other fuel, be stored inside in the rental premises. These items must be removed completely from the premises.

The Generator Problem

The manager must decide if a gas powered generator will be allowed on the premises. Gas generator dangers are huge. Every year fires are started and individuals die of carbon monoxide poisoning due to generator misuse. In a single family home situation, the manager may not have a problem with allowing the resident to use a generator, but in multi-family housing the risks are multiplied greatly and are severe. Let us assume that an apartment community prohibits generators, but the resident purchases and uses one on the premises. Can the manager remove or disable the generator without liability? We are not sure, but we have created a clause which your attorney may want to review and give you his or her opinion. We are not by providing this clause stating that this clause will definitely be upheld in court or will not create liability on the manager, so you have been warned.

GENERATORS AND FLAMMABLE LIQUIDS: Resident agrees that NO GENERATOR(s) WHATSOEVER shall be permitted to be used by Resident on, in or near the premises. Severe hazards are associated with storing and operating a generator at the property, including injury and death to persons and damage to property. Resident agrees that NO FLAMMABLE LIQUIDS shall be permitted to be stored on, in or about the premises including but not limited to gasoline, kerosene or propane.

REMOVAL OF OR DISABLING OF GENERATORS BY MANAGER: In the event Manager is made aware that Resident is in possession of or using a generator on, in or near the premises, Resident by this document gives Manager absolute permission to disable the generator and/or remove the generator from the premises without notice or further permission of the Resident. Resident agrees to hold Manager, its agents, employees and assigns harmless for any damages suffered as a result of Manager disabling and/or removing the generator from the premises. This includes damages to Resident’s personal property due to lack of electricity and /or damages to or loss of the generator itself.

Notifications to the Resident

Nothing in Florida law requires a manager to notify the resident of an impending storm. It is good in multi-family housing though for the manager to have a policy and procedure in place, as it only makes sense that the manager take steps to notify residents who may not be aware of the situation. A manager cannot force a resident to vacate the premises. We recommend the following clauses:

EVACUATION OF PREMISES: In the event a governmental entity orders an evacuation of the area, Resident agrees to follow such evacuation orders. In the event Resident fails to follow the evacuation orders, Resident agrees that Manager shall not be liable in any way for injury or death of Resident or damage or destruction of Resident’s personal property, including vehicles.

The Damaged Property Catch-22

The most common problem our office deals with in the aftermath of a storm is the damaged unit. The destroyed unit is easy. The residents are gone and can’t move back in. The damaged unit creates serious issues. Does the manager have to repair? Can the manager timely repair? Is there water damage causing mold? Can repairs be made with the resident present? Does the resident have to pay rent? When a unit is damaged, we like the manager to have the pure absolute option to terminate the tenancy and evict the resident if necessary. We don’t need any arguments about the rent, reductions in rent, rent withholding, interference with repairs or any other problems from the resident. We want the manager to simply say “Get Out”, serve the resident proper notice and file an eviction if the resident fails to vacate. Proper lease wording is crucial. We recommend the following clause.

DAMAGE OR DESTRUCTION OF PREMISES: In the event the premises are damaged or destroyed by a storm, and in Manager’s sole judgment it is necessary for Resident to vacate the premises due to a dangerous condition on the premises or for repair, reconstruction or demolition, Resident agrees that Manager may terminate the tenancy. Resident shall vacate the premises within the time period as designated by Manager, and Resident shall not be liable for any further rent under the terms of the lease agreement.

Contact With Your Attorney

Probably the most important thing you can do after a storm is to contact your attorney before releasing a resident, giving a rent concession or making any deals or arrangements whatsoever with the resident. Emotions are running high, situations often are emergent in nature, and anything you do with the resident can have long lasting legal consequences. We urge you to examine your storm policies and procedures and have all preparations in place not just with the properties that you own or manage, but also your personal business. Many of our clients completely lost their offices in the past 3 years and were not prepared to be up and running again quickly. While this article dealt with your agreement with the resident, you need to have a full meeting of the minds in writing with the owners of homes if you are a manager of single family homes, duplexes and the like. This topic will be examined more in depth in a future newsletter.

  • The Curable Noncompliance Examined PART 1