THE WRIT OF POSSESSION AND THE FULL UNIT
Executing a Writ of Possession can be a tricky matter. In the best of situations, the evicted resident has removed all their items from the premises, nothing is left in the unit, and the resident is gone. In the worst case, the unit is full of personal property, the resident must be physically removed from the premises by the sheriff’s deputy, and the property manager and staff is left with the task of removing all the personal property left behind to the property line.
The Typical Writ of Possession Execution
The typical writ of possession (hereinafter writ) execution involves meeting the deputy sheriff at the premises door with your maintenance tech or locksmith, where you find the unit almost completely empty, with the exception of the usual obvious trash, such as that unwanted couch and bags of garbage. The locks are changed, and your staff proceeds to remove the items to the property line. If you do not have the staff necessary to do this at the time the writ is executed, you leave the unit, and you send a staff member back later to completely remove any trash or apparently unwanted personal belongings from the premises.
The Problem Situations
Unfortunately, property management life is not always so simple, and the property manager faces two less common situations where far more than the usual trash is left behind. The time will come, if it has not already, when the property manager will be meeting the sheriff’s deputy at the door only to discover that the resident has failed to remove ANY of the personal items from the premises. It will look like he simply up and left with no attempt whatsoever to remove anything. The resident is nowhere to be found, and the property manager is left with a very uncomfortable feeling regarding the situation. Do you remove all the items and place them on the property line? Certainly if the eviction is proper, this is completely allowed by law, but should it really be done right then and there? The other situation occurs when the panicked resident is present at the time you are executing the writ, begging and pleading with you to give him extra time to get help and a truck so he can retrieve all his belongings late in the day or the next day. The resident acts surprised and claims he had no idea that this was going to happen, which is a likely line indeed. In both situations, extreme care must be taken, as the route you take could have unintended consequences.
The Evicted Resident is Not Present and the Unit is Full
If the unit is full of personal items and furniture presumably of value, we strongly recommend that you change the locks and take a breather. It is quite possible that the evicted resident is in jail, is in a hospital, possibly mentally unstable, or just cannot comprehend how the eviction process works in Florida, and went off to work. It is also possible that the resident has paid the rent, is on vacation, and you mistakenly filed the eviction. Anything can and does happen, so it is wise to change the locks and begin the research process. While you may feel that this goes against what you have heard about the law and your rights to take all the items and place them on the property line, we feel it is a best practice to hold off for a bit and begin some research, rather than rush to remove the personal property to the property line. Unless you incorrectly filed the eviction action, you are under no legal obligation to take our recommendations at all; they are simply optional. Go back through your files, and make sure that the eviction was not performed in error, and do whatever it takes to contact the evicted resident.
Contacting the Evicted Resident: Do everything in your power to contact the evicted resident. This includes looking back in the file for email addresses, emergency contact info, cell phone numbers, work numbers; you are seeking any possible hint or information concerning where the resident can be. If calling a work number, there is no need to mention that there is an eviction or an execution of the writ; just stress the urgency of needing to speak with the resident. Here you will see more than ever how maintaining up to date contact information before and during a tenancy is crucial.
Speaking with neighbors: While we always strive to respect the privacy rights of our residents, the eviction once filed becomes public record and can be discussed with the nearby neighbors, at least in a limited context. Often they have some information as to the whereabouts of the resident and some contact information.
If you locate the resident, explain what has occurred, explain how you can by law place all their personal property to the property line, and read on below.
The Evicted Resident Has Been Located OR the Resident is Present When the Deputy Sheriff Arrives
There will be situations where the resident is actually present at the property at the exact time the writ is being executed, or once the writ has been executed, you have been able to locate the evicted resident. The usual request by the resident is for more time to get a truck, hire a mover, call a friend or do whatever it takes to get the personal property out of the unit. It is so important to stand strong as a property manager and get on the phone with your attorney, so that no deadly mistakes are made at this crucial juncture. The resident has been evicted. It is over. Unless you enter into a stipulation with the resident and money changes hands, you must be careful that you do not inadvertently give possession back to the evicted resident, possibly kill the eviction and have to start over again. At the same time, it will be helpful to you and the evicted resident if he or she is able to remove all or most of his or her personal property, so that your staff does not have to undertake this task, and the evicted resident does not lose all their worldly possessions. By giving the evicted resident a bit of extra time, you may be able to avoid the evicted resident breaking into the unit, causing serious damages to the premises or committing some sort of bodily harm to you or your staff. Remember that you may have tracked down the evicted resident who for whatever reason could not comprehend or did not know that the eviction was taking place and fails to recognize the consequences of the writ execution. The last thing you need is for an evicted resident to get out or jail or an institution, only to discover that you took all their personal property to the property line and that it is now all gone.
The Extension Dangers
An inexperienced property manager may give in to the evicted resident’s wishes and tell them they have a few hours or until the end of the day to retrieve their personal property. The deputy sheriff may even encourage this. This is usually done verbally. For example, you tell the resident in front of the deputy sheriff that he must remove all the personal property by 5 pm, you proceed to change the locks, and the evicted resident is “supposed” to do what they say and contact you to let them in that afternoon. 5 o’clock comes and goes and the evicted resident fails to get their belongings. In the meantime, the evicted resident calls your office, and speaks to a staff member who has no idea what is happening with the eviction. Your maintenance tech then comes the next day to the unit and seeing that nothing was removed proceeds to remove all the items to the property line where they quickly disappear. The evicted resident then returns a few hours later infuriated that his personal property is gone and tells you that your leasing agent “agreed” that he could remove the personal property by noon that day, thus claiming a verbal extension. Did that conversation really occur with the leasing agent? If so, the evicted resident may be able to claim that an agreement was made, and now you are responsible for the loss to the evicted resident’s personal property. You see, by giving the evicted resident an extension or the evicted resident successfully claiming an extension was granted, this can result in you becoming a “bailee” of the personal property, and then some responsibility for the safekeeping of the property arises. Did your leasing agent give the evicted resident an additional extension? Now we have a factual dispute which may have to be decided by a judge.
Two Common Scenarios
- The deputy sheriff says he will return in 2 hours: Some deputy sheriff’s will “hold off’ on executing the writ and will return later or even the next day. Basically, you are having the deputy simply “hold off” on execution of the writ. Make sure you have the deputy sheriff write a note to this effect on his paperwork, because after executing ten writs that day, he may forget you or confuse you with another one he handled that morning. In the meantime the evicted resident should and often will remove his or her personal property. The deputy sheriff then returns 2 hours later or the next day and executes the writ, and it is over. Or is it? The evicted resident may not have removed all the personal property. Removal of an accumulation of personal property (sometimes collected over many years) is often a taller task than it seems. If the evicted resident has removed all the personal property and is gone, you are in great shape. The deputy sheriff executes the writ, and the eviction is complete.
- The deputy sheriff executes the writ. The evicted resident is present or you have contacted him, and you are allowing the evicted resident in to get his belongings, or decide to give the evicted resident an extension of time to remove his personal property:
- Recognize this is dangerous situation, and avoid it if possible. Only use this method if there is a full unit of belongings, or has belongings that the evicted resident wants to retrieve, you have consulted your attorney, AND
- Use a proper form we created called the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION
What is the PERSONAL PROPERTY REMOVAL EXTENSION NOTIFICATION?
This form is not a form provided by Florida law. It is simply a form we have created to assist those property managers who wish to give the evicted resident extra time to remove his personal property. This form can only be used AFTER the deputy sheriff has met you at the property and given you full possession of the unit. It is not an agreement, but is rather a notification by you to the evicted resident that you are, as a courtesy, allowing them to retrieve personal property and most importantly, giving the evicted resident a deadline to remove his personal property. We urge you to avoid these situations, and if at all possible, fully remove all personal property left in a unit to the property line, but we also understand there will be situations when this is not possible, practical, or you feel compelled to assist the evicted resident for whatever reason. We strongly urge that you always contact your attorney if you are going to give an evicted resident any extensions, or decide to use the Personal Property Removal Extension Notification. The axiom in property management is that no good deed goes unpunished, and it definitely applies here.
- 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