The Curable Noncompliance Examined PART 1

The article is the first in a multi-part series examining specific curable noncompliances and how the property manager must deal with getting compliance or setting the case up for a potential future eviction action. Each noncompliance is unique. Many are dealt with in a similar way, but often the proof needed to proceed with legal action if the noncompliance is not cured differs. The legal papers filed in court for an eviction based upon a lease noncompliance other than nonpayment of rent are similar to that of a nonpayment of rent case, but if the case is contested, the property manager must be prepared to prove the case AND win the case.

The vast majority of property managers have prepared and served Seven-Day Notices of Noncompliance with Opportunity to Cure to a resident. Some property managers have had to file evictions when the noncompliance was not cured. Only a small fraction of property managers have had to deal with a contested case on a noncompliance eviction in which the resident has fought to stay in the unit. In an even smaller percentage of those cases that were fought, the resident was represented by an attorney. In a large percentage of those cases in which an attorney represented the resident, the property manager LOST the case in court.

Here is a question for you: “Did you ever have an eviction action for a noncompliance in which the resident had an attorney and fought you in court?” We can almost guarantee that you will say no. Very few property managers have experienced this, but they MUST be prepared for it.

THE UNAUTHORIZED OCCUPANT – EXCESSIVE TRAFFIC - THE UNAUTHORIZED PET

UNAUTHORIZED OCCUPANCY:

PROBLEM: Resident has an unauthorized person or persons residing in the rental unit not on the lease agreement

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “You have an unauthorized person residing in the premises in violation of the terms of your lease agreement”

RENT ACCEPTANCE: Do not accept rent after you become aware of the noncompliance and have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the unauthorized occupant has been removed. Acceptance of rent can interfere with your ability to proceed and could act to “authorize” the unauthorized person.

PROOF ISSUES: You may see the unauthorized person there every morning. You see that person’s car parked there every night. The unauthorized person even comes into your office complaining about something. While it may seem like a simple matter, this is one of the hardest noncompliances to prove in court, because some residents are good liars, and these cases often hinge upon circumstantial evidence, not direct proof. Moreover, you will usually have to prove that your guest policy has been exhausted before giving a Seven-Day Notice of Noncompliance with Opportunity to Cure, which can be particularly difficult if your lease allows guests to stay for 14 consecutive days, for example. Before giving a Seven-Day Notice of Noncompliance with Opportunity to Care, you should have at least the equivalent of probable cause that the noncompliance is occurring, and in order to terminate, you will need hard-core solid proof; this is not to be taken lightly.

To terminate and evict a resident for unauthorized occupancy, you first need to have served a proper Seven-Day Notice of Noncompliance with Opportunity to Cure. In order to serve a Seven-Day Termination Notice, you must be reasonably certain that you can prove to a judge that the resident has an unauthorized occupant residing on the premises, not just visiting, and that the occupant was not “authorized” by you, the manager or prior management’s failure to act quickly. If the occupant has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management, and/or you have accepted rent with knowledge of the unauthorized occupancy, you most likely will not be successful evicting, as you have “authorized” the occupant by failing to act. This is due to the legal principles of waiver and estoppel. Sometimes managers will tolerate an unauthorized occupant until something happens, and the manager gets angry at the resident or the occupant. This is not the way to go. Depending on the situation, the following is some proof you may need to win.

1. Photos of the unauthorized occupant AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.

2. 24-hour Video surveillance tapes or a written admission by the resident(s) acknowledging the unauthorized occupant AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.

3. Employees of the apartment community who will testify in court that they know for a fact the unauthorized occupant is still living on the premises AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired, and are prepared to show the judge proof.

4. Dates and times the unauthorized occupant was seen on the premises AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired. The more you document the dates and times, the better.

5. 24-hour Video surveillance of the unauthorized occupant’s vehicle AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired.

6. Police report in which the unauthorized occupant gives your address as his or her address AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired. Ironically, if an unauthorized person gets arrested for some incident on the property or tells the police that he is living there, it can help the case immensely.

UNAUTHORIZED PETS:

PROBLEM: Resident has an unauthorized pet or pets in the apartment not permitted by the lease agreement

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “You are keeping an unauthorized pet on the premises in violation of the terms of your lease agreement.” Remember, DON’T quote leases clauses!

RENT ACCEPTANCE: Do not accept rent after you become aware of the unauthorized pet and have served your Seven-Day Notice of Noncompliance with Opportunity to Cure, unless you are certain the pet or pets have been removed. You will want to do a good inspection. You can waive your ability to proceed and could act to authorize the unauthorized pet or pets by accepting rent with knowledge of the noncompliance.

PROOF ISSUES: You may see the unauthorized pet each day, you observe the resident walking the pet, the pet bites another person or bites or kills another pet, you have received a complaint of barking, or your maintenance tech discovers the pet during a routine inspection or service call. Discovery can occur in many ways. If the resident claims the animal is an assistance animal, you should contact your attorney, because if the resident has a legitimate assistance animal, you are not dealing with an unauthorized pet, and your pet policies don’t apply. You should have solid proof before serving a Seven-Day Notice of Noncompliance with Opportunity to Cure for an unauthorized pet. A justified suspicion is not proof, and you need proof to support a successful eviction. To evict a resident for failing to remove the unauthorized pet, you first need to have served a proper Seven-Day Notice of Noncompliance with Opportunity to Cure. To evict, you must be absolutely certain that you can prove to a judge that the resident has failed to remove the unauthorized pet, and that the pet was not “authorized” by you, the manager or prior management’s failure to act quickly. If the pet has been on the premises for some time with your knowledge or the knowledge of maintenance personnel, employees or prior management, and/or you have accepted rent with knowledge that the resident had an unauthorized pet, you most likely will not be successful evicting, as you have “authorized” the unauthorized pet by failing to timely act. In one case, the son of the maintenance tech had fed and walked the pet while the resident was on vacation. This knowledge of the pet was imputed to the manager, even though the manager never really knew about this. As with unauthorized occupants, the legal principles of waiver and estoppel can kick in. Depending upon the situation, the following is some proof you may need to evict.

1. Photos of unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired. This could be as simple as getting on a letter, getting the pet to come to the window and taking a photo.

2. Video surveillance or photographs of the pet or written or verbal admissions by the resident(s) that they have failed to remove the unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.

3. Employees of the apartment community who will testify in court that they know for a fact the unauthorized pet is being kept on the premises AFTER the Seven- Day Notice of Noncompliance with Opportunity to Cure expired and are prepared to show the judge proof.

4. Other residents of the apartment community who will testify in court that they know for a fact the unauthorized pet is still being kept on the premises AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired and are prepared to show the judge proof.

5. Dates and time the unauthorized pet was seen on the premises AFTER the Seven Day Notice of Noncompliance with opportunity to cure expired.

6. Evidence of pet food or water bowl AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure has expired.

7. Audio recording of barking, meowing, chirping, noise, etc. of the unauthorized pet AFTER the Seven-Day Notice of Noncompliance with Opportunity to Cure expired.

EXCESSIVE TRAFFIC:

PROBLEM: Resident has excessive traffic in and out of the unit an all hours of the day and night, most likely for the sale of drugs or prostitution. Everyone has a right to have visitors, but visitors who stop by for really short periods of time usually indicates that something illegal is going on. Since we may not be able to prove actually illegal activity, we are often able to prove excessive traffic.

FORM: SEVEN-DAY NOTICE OF NONCOMPLIANCE WITH OPPORTUNITY TO CURE

WORDING: “You have excessive traffic in and out of your apartment disturbing the peaceful, quiet enjoyment of the premises for other residents.” This can be modified to also add vehicular traffic if this is occurring, and it often does.

RENT ACCEPTANCE: Do not accept rent after you have served your Seven- Day Notice of Noncompliance with Opportunity to Cure unless you are certain the excessive traffic has completely ceased. You can waive your ability to proceed or delay matters by accepting rent with knowledge of an ongoing problem.

PROOF ISSUES: Often you see the excessive traffic or hear about it from other residents, some of whom actually get knocks on their door, as the visitors don’t have the correct address. This is quite upsetting for a resident to have this happen at 3:00 a.m.! Discovery can occur in many ways. Legitimate complaints from neighboring residents are enough to support service of the Seven-Day Notice of Noncompliance with Opportunity to Cure, but if the ultimate case is contested, some of the complaining neighbors will need to testify in court.

To evict a resident for excessive traffic, you first need to serve a proper Seven- Day Notice of Noncompliance with Opportunity to Cure. In order to serve a Seven-Day Termination Notice, you must be absolutely certain that you can prove to a judge that the resident has excessive traffic and it is a problem. The following is some proof you may need depending upon the situation:

. 1. Photos of people coming and going. You never need permission to photograph a person to create this proof.

2. Video surveillance or verbal admissions by the resident(s) that people are coming and going. Do not record conversations though, as that is not legal in Florida without permission.

3. Employees of the apartment community who will testify in court that they have seen an excessive number of people coming and going, staying for short periods of time.

4. Other residents of the apartment community who will testify in court that they have seen people coming and going, AND most importantly, that this has caused a disturbance to them of their peaceful, quiet enjoyment of the premises.

5. Dates and timepeople are seen coming and going AFTER the Seven Day-Notice of Noncompliance with Opportunity to Cure expired.