TERMINATING FOR NONCOMPLIANCES
It would be difficult to find a property manager who has not served Three Day Notices for non-payment of rent and Seven Day Notices to Cure for resident noncompliances. The residents usually pay the rent, or in the case of noncompliances, they cure the noncompliance or move right out. Most property managers are well versed in notice serving and have filed evictions on their residents when the notices just did not do the trick. Many property managers have even experienced going to court on contested non-payment of rent cases. The result? Usually the resident is evicted, or the case gets settled. Now ask yourself: How many times have I actually gone to court on a contested eviction on a Seven Day lease noncompliance case and had to prove the noncompliance in court? Very few property managers have experienced going to court on contested noncompliance cases and do not realize how hard these cases can be to win. Proper preparation, hard core proof and good convincing witnesses are necessary to win these cases. Are you ready to prove your case to a judge who will really put YOU to the test?
Winning and Losing the Seven Day Noncompliance Case
Since most property managers have never experienced going to court on a contested noncompliance case, you will just have to trust us here. We have handled many of these cases, and we have LOST many of these cases. You don’t want to lose a case in court. Besides the pain of losing with the resident now getting to stay and smirk at you for the next six months, if that resident retained an attorney, you may be on the hook for attorney’s fees. Recently two cases we lost resulted in around $2000.00 each having to be paid to the resident’s attorney, for which the property manager thought she had a great case, really wanted to get the resident out and insisted that the eviction be filed against our advice.
Is Your Attorney a Wimp?
Once of the most frustrating things for the manager’s attorney is to try to convince a property manager who thinks he has a great case that there is a high chance of losing in court. The property manager needs to understand that the manager’s attorney may make his or her living filing your evictions and has every incentive in the world to file your eviction, BUT also wants to protect you from losing the case and having to suffer the consequences. The manager’s attorney has probably filed hundreds, thousands or in our case, tens of thousands of evictions, winning the vast majority of the evictions, as most are for non-payment of rent. Trust the experience of your attorney. Your attorney is on your side, feels your frustration, but is also under the legal and ethical duty to warn you of the dangers of losing and guide you in the right approach. Your attorney is not a wimp or lazy. Your attorney has the experience to know what is best for you. There have been situations where an unsuccessful Seven Day Noncompliance case has not only been lost in court, but took on a new life when a Fair Housing Discrimination case was filed against the property later!
The Judicial Attitude in the Seven Day Noncompliance Case
When you go to court on a typical residential resident eviction, the resident usually did not pay the rent, did not properly withhold rent or did not post all the money into the court registry. Judges handle thousands of these cases each year, and some of them have no tolerance for listening to the resident’s sad story of losing a job, car breaking down or the myriad other excuses. Most cases for non-payment of rent result in an eviction.
Now we come to the Seven Day Noncompliance eviction. This is far different than the non-payment case. Here the property manager has accused the resident of doing or not doing something that is spelled out in the lease or Florida Law. Notices have been given, these notices must be correct, and now the property manager is put to the test and has to prove the case. Judges do not take these cases lightly and really make the property manager prove the case. Often it seems that the judge is far more sympathetic to the resident, but really it is a proof issue. It is much easier to prove someone has not paid the rent. They either paid it or they did not, and the burden of proof of prior payment is on the resident. Proving a noncompliance is the manager’s burden and can be a real challenge.
How Do We Prove the Case in Court?
Before we even get to court, the property manager must have prepared and served a PROPER Seven Day Notice, be it a Seven Day Notice of Termination or a Seven Day Notice to Cure followed by the Seven Day Notice of Termination. We strongly recommend that you have your attorney prepare these notices for you. We prepare all our clients’ Seven Day Notices for no charge, as we really want them done the way we feel they would be most effective and successful in court.
Now, proving the noncompliances can be a real challenge. We need witnesses, documentation, solid proof, logs, file notes, notices, photos, videotapes, police reports, incident reports, and anything else to help the judge believe that the noncompliance is occurring or has occurred.
Does the Noncompliance Have to be Severe?
Remember that you are asking a judge to kick someone out of their home. Often there are children involved. The noncompliance needs to be substantial, and you need to trust your attorney to help you decide if it is indeed substantial enough to sway a judge your way. It is ironic how when the market is strong and the property has a waiting list, there seems to be so many more residents in noncompliance. Hmm, a coincidence?
I have Petitions and Statements Signed by 5 Residents!
Nice try, but no cigar. The complainers or witnesses MUST appear in court. This even includes the police officer who responded and wrote up the police report. How do we get them into court? We need to subpoena them, but often they just do not show up for court, and the case falls apart. We have had situations where many residents have complained about one resident. Every day they wrote letters and called the office complaining about the noise that the resident was creating. We end up in court, one complaining resident shows up and tells the judge that the problem has stopped. Bang. We lose the case. Never be certain that the complaining residents will actually come to court. Often they are afraid, were threatened or get cold feet at the last minute and do not want to be involved.
What Does Your Attorney Need to Win These Cases?
The proof that you need is wholly dependent on the type of noncompliance involved and is extremely case specific. Let’s go through some of the most common noncompliances and list some of the evidence we may need to potentially prove our case in court.
Unauthorized Occupants – Seems easy, you see the person there all the time. When you go to court, the resident says they are just visiting. You need to now prove that they are no visiting. Proof you may need includes and is not limited to:
1. Multiple photos of the unauthorized occupant’s car morning and night with date and time records;
2. An admission by the resident to you that the unauthorized person is living there;
3. Proof that the unauthorized person is receiving mail;
4. Unannounced visits to the unit with a witness;
5. Police report that the unauthorized person gives the address as his or her address;
6. FDLE sexual predator or offender registration with your address listed;
7 .A lease clause that is clear as to how long someone can stay.
Unauthorized Pets – First you need to make sure the prior manager did not authorize the pet or the pet has not been there for a long time, which can cause a waiver.
1. Pictures of the pet, date and time stamped;
2. Witnesses who have seen the pet;
3. Pictures of the resident walking the pet;
4. Maintenance who will testify to pet food or pet bowls in the unit;
5. Recording of barking when you go to the door, if a dog that is;
6. Picture of the pet damage;
7. Picture of the pet coming to the window;
8. Hard proof after the Seven Day Notice of Noncompliance with Opportunity to Cure has expired.
Noise Disturbances – These case are tough, as usually there is no police involvement, and the complaints come from other residents who may just be angry at each other, or a group of residents have it out for one resident. Are we really dealing with a resident versus resident war?
1. Records of multiple resident complaints;
2. Police reports;
3. Resident witnesses who will appear in court;
4. Witnesses who are employees of the manager;
5. Multiple provable disturbances;
6. Courtesy officer who will appear in court.
Unsanitary Unit – Is the unit really unsanitary or just an extremely cluttered mess? Many times we deal with accumulators who throw nothing out and have piles of newspapers, clothes and books throughout a rental unit, with only a small path in which to walk. Is this unsanitary or just strange?
1. Pictures of unit;
2. Pictures of kitchen, bath and anything “unsanitary”;
3. Pictures of exposed and rotting food;
4. Pest control personnel who will come to court;
5. Infestation of vermin;
6. Strong odor;
7. Maintenance staff that must come to court;
8. Other staff that will come to court.
Emotions and the Seven Day Noncompliance case
We see situations where property managers get angry at a resident and “just want them out”. This is the worst possible situation because the anger and frustration of the property manager is now running the show. That unauthorized occupant who was not a problem for three months all of a sudden becomes a big problem, because he came into your office and was belligerent. That person with the unauthorized pet was left alone until it defecated in front of the office or got loose and scared another resident. Never let your emotions dictate your actions when deciding to terminate a resident. Follow the law, get your attorney involved early, and be cautious
- 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