THE CURABLE NONCOMPLIANCE EXAMINED PART 2
by Harry Heist, Attorney at Law

The article is the second 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 the court for an eviction for a non-rent lease noncompliance are very similar to those filed for a nonpayment of rent case, but if the case is contested, the property manager must be prepared to prove AND win the case.

The vast majority of property managers have prepared and served a Seven-Day Notice 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 concerning a noncompliance eviction, in which the resident has fought to stay in the unit. Finally, in an even smaller percentage of those cases, the resident was represented by an attorney fighting the case, but when all those elements are present, the property manager stands to LOSE a majority of those cases.

BARKING/NUISANCE NOISE PETS

PROBLEM: Resident’s authorized pets are causing a nuisance due to noise.

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

WORDING: “Your pet is causing unreasonable disturbances on the premises due to barking and is disturbing the peaceful, quiet enjoyment of the premises for other residents” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)

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 pet disturbances have ceased. Acceptance of rent may waive your ability to proceed. If the disturbances cease, you may accept rent.

PROOF ISSUES: Most likely you have received complaints from other residents. You need them to write down the dates and times they were disturbed and what they heard. You need to explain to them that they may have to come to court and testify if you end up having to file an eviction. You may think that you can simply present letters from the residents or reports in court, but you cannot. Letters and reports are usually inadmissible hearsay. Please read our article on hearsay so you better understand this. You and or your staff should hear the noise disturbances yourself, documenting the dates and times. Finally, a recording of the barking or other noise could be crucial to winning the case in court. An hour of recorded noise could spell success in court. The absence of sufficient or proper proof spells disaster.

1. Internal reports you and your staff have created based on complaints.

2. Written reports detailing dates and times from your residents.

3. Written letters or reports from other residents.

4. Residents of the community who will testify in court that they heard the noise and that it was severe.

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

GAS GRILL ON BALCONY

PROBLEM: Resident has a gas grill on the balcony, patio, lanai area in violation of the lease, rules and regulations or local law.

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

WORDING: “You have a gas grill on your balcony in violation of the terms of your lease, rules and regulations and/or law, code or ordinance” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)

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 grill has been removed. Acceptance of rent will act to waive your ability to proceed and could end up authorizing the grill.

PROOF ISSUES: You need to take photos of the balcony, patio, and lanai area and have witnesses, such as other employees, who will testify in court if necessary.

1. Photos of the gas grill before, during and after the curative period, if not cured.

2. Employee witnesses who can testify in court.

FOLLOW UP AFTER GRILL REMOVAL

Oftentimes, the grill is removed from the balcony only to end up in the unit. This is extremely dangerous. Any unauthorized grill issue should be followed up with an interior inspection of the unit, including closets, to confirm the grill is not being stored in the unit.

POOR HOUSEKEEPING

PROBLEM: Resident has poor housekeeping to the point of filth, infestation, hoarding, rotting food and/or noxious odors. The situation goes far beyond clutter or mess.

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

WORDING: “You are failing to maintain your unit in a clean and sanitary condition due to an accumulation of trash, filth, and rotting food, resulting in noxious odors and infestation of insects” (Note: Have your attorney help you with the exact wording – this is for sample purposes only.)

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 unit has been cleaned to your satisfaction.

PROOF ISSUES: A messy or cluttered unit is not a lease violation. It must be bad. Real bad. Courts are very reluctant to evict a resident for housekeeping issues unless the housekeeping problem is extreme. If the lease is close to the expiration date, you are far better off non-renewing the tenancy, NOT trying to evict based upon a Seven-Day Notice of Noncompliance. Often the report of poor housekeeping will come from your pest control professional. This must be immediately followed up by staff. While you will be getting written reports, remember that those reports will be inadmissible hearsay, and the person who actually saw the unit and wrote the report will be required to come to court and testify. After the curative notice expires, you should give written notice of inspection, and be prepared to document again with photos the condition of the unit.

1. Written reports from pest control if applicable.

2. Testimony from pest control if applicable.

3. Photos of the unit’s condition by pest control and maintenance staff.

4. Written reports from maintenance staff.

5. Any correspondence between the resident and staff.

6. Any correspondence from residents in surrounding units who may have complained about noxious odors and/or pest infestation.

A Cautionary Note

In some cases, the resident’s disability, be it physical or mental, may have contributed to the situation. Speak with your attorney, as you do not want a housekeeping issue to develop into a Fair Housing complaint.