A Mid-Year Review by Brian P. Wolk, Attorney at Law

A Mid-Year Review
by Brian P. Wolk, Attorney at Law

Property managers are not unlike other professionals in regard to resisting change. Property managers all too often refuse to act in their own self-interest by making proper changes to their leases or policies and procedures. Why you ask? There are many reasons. Some property managers may be locked into the belief that their way is the only correct way. Some managers may also be frightened of the unknown and feel a loss of control due to veering from their usual way of doing business. Sadly, other property managers will not change their bad habits, because they have not experienced problems as a result of their poor decision making. In that case, they believe that making modifications to the way that they conduct business is pointless and a needless interruption of their work environment. This type of backward thinking plays right into the hands of the growing number of consumer law attorneys in Florida who are more than happy to represent your current or past residents in an attempt to nail you with a class action lawsuit, or force you into an expensive, contested eviction or security deposit dispute. Do you think that your Regional Manager will be any less irate when you tell her that your are sorry that the judge awarded ten thousand dollars to the resident and denied your eviction request, but that this is the first time that ever happened? We think not! Because of the difficult economic climate, many management companies lack resources at the home office level to review your leases and policies and procedures, so it is vital that you value and implement the course of action that your attorney recommends to you. The balance of this article will set forth a number of simple steps that you can take to remedy your past property management mistakes.

NO MORE PET ADDENDUMS UNLESS THE RESIDENT HAS A PET.

Vic and Michael have arrived at your office to sign their lease. They have told you they have no pets. Both residents execute the lease and all addendums, including a pet addendum. On the pet addendum, no animals are listed, since Vic and Mike told you they had none, and the pet fee is listed as $0.00. Two weeks later, Suzi, your leasing agent, witnesses Vic and Michael each walking a Cocker Spaniel. You quickly contact your attorney and request a Seven-Day Notice to Cure for the unauthorized pets. You are in disbelief when your attorney tells you that you may have already authorized these pets. Had your lease simply stated that no pets will be allowed on the premises without the written consent of the landlord, then everything would have been fine. How easy is that? Instead, you chose to complicate matters and potentially lost power over Vic and Michael, because you had them sign a pet addendum. In the typical situation when the resident claims that they have no pets at move-in, the property manager does not list any pets on the pet addendum, but nonetheless will have the resident sign the pet addendum. The problem with that approach is that the pet addendum will then go into detail about the conduct of the pet and any related fees. Therefore, you are in effect telling the resident that if you do obtain a pet you need to follow the rules established in the addendum. Thus the addendum may be viewed by a judge as an invitation to later obtain a pet. Worse yet, because there is a zero pet fee amount on the addendum, you will likely have no recourse to charge the residents for the pets.

FAIR HOUSING DOCUMENTATION

Your resident has been nothing but trouble since move-in. He plays his music loud, which is causing an unreasonable disturbance on the premises, and you have repeatedly told him to stop. However, you have not issued any formal notices, such as a Seven Day Notice to Cure. You reach your boiling point and fire off a Notice of Non-renewal, as you believe that under Florida law you do not need a reason to non-renew a tenant. The resident happens to be a member of a protected class. The resident refuses to leave upon the expiration of the lease term, and you send his file to your eviction attorney without mentioning that you have no back up to support your non-renewal. The resident hires an attorney and contests the eviction, alleging that you are discriminating based on the resident’s religion. While it is true that the Florida law does not require that the property manager of a conventional property provide a reason for non-renewing a resident, it is still illegal under Florida and federal law to discriminate against a resident based upon religion. In this case, had the property manager served the resident with a number of simple Seven-Day Notices to Cure regarding the noise disturbances, there would have been evidence establishing that the manager had a proper non-discriminatory motive for the non-renewal. As any property manager who has been the subject of a fair housing complaint by HUD or any other governmental agency can attest, this process is long and very time consuming. Your files should tell the investigator exactly why the residents were non-renewed, and the Seven Day Notices should be your storyteller!

DEATH OF THE RESIDENT

When I inform a property manager that her lease does not have proper wording to deal with their deceased resident, and her best course of action to obtain possession is to open up an estate in probate court and then evict the estate, the manager is dumbfounded. Then, when she is told that that if the lease had included one more sentence, the whole process of evicting the estate could have been avoided, the property manager’s reaction is usually not one of happiness. Our article on this subject is a must read. Read “Tenant Death and the Obsolete Lease” If your lease contains the following language, and the last remaining resident has died, you may take back possession of the unit after 60 days if the rent is unpaid and dispose of all personal items left inside if you have not received written notification that an estate has been opened in probate court or notified of the name and address of a personal representative. The following is the required lease language: BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY. If the property manager’s lease does not contain the above wording and the property manager takes back possession of the unit after 60 days from the date of death and disposes of the personal items, then those who stood to inherit from the former tenant could surface later and bring a civil action for the full value of the personal property disposed of; the agent and the owner could be liable for a substantial amount of money. Without the required lease provision, the property manager could still take back possession of the rental unit, but there would be no safe way to dispose of the remaining personal property, short of opening up an estate in probate court and then putting the personal property to the line when an eviction against the estate was finalized. This process would be time consuming and expensive; you could avoid that mess with one sentence!

NOTICE DEFECTS

Freda, the property manager, has two court hearings tomorrow. The first case involves a security deposit dispute. The resident who skipped out on her lease would like the full return of her security deposit, claiming she never received the security deposit claim letter. Freda believed that under the statute, she was not required to send one out, because the resident vacated prior to the end of the term without providing a forwarding address. The resident has now produced an alleged copy of a letter that was supposedly hand delivered to Freda 14 days prior to the tenant’s vacating date, putting her on notice that the resident was vacating early. You get the point. Even if this is not true, how does Freda prove that? Therefore, we advise all of our clients to send out the SODA in all circumstances, even when the resident vacates early and the property manager has not received prior written notice from the resident. The second case that is set for hearing also involves a security deposit dispute. Freda’s lease requires residents to give 30 days’ notice prior to the end of the term if they are not going to renew or face a one month liquidated damages charge. One particular resident vacated at the end of the term with no notice, and Freda deducted one month’s rent from the security deposit. Under Section 83.575, Freda must provide written notice to the resident within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the resident, and must specify the resident's obligations under the notification provision contained in the lease, and the date the rental agreement is terminated. So in this case, Freda better have sent out the reminder letter somewhere between the 31st and 45th day if she hopes to win this case in court. Proper wording for the notice can be found in our article “Requiring Notice Before Lease End”