Standard application and offer of option to lease residential premises
By Michael Geo. F. Davis, Attorney at Law
There are three ways a landlord obtains possession of a rental unit: surrender, abandonment, or eviction. Surrender and eviction with a writ of possession are covered in other articles. This article deals with some aspects of abandonment.
The landlord often finds himself confronted by an empty unit with all, some or none of the resident's personal property remaining. The landlord may have had varying degrees of contact with the resident about his vacating. We will assume that the landlord cannot validly claim that the resident has surrendered the property. The choice left is to file for eviction in order to obtain a writ of possession and move the resident's remaining belongings to the property line OR to consider the rental unit abandoned and dispose of the remaining personal property as the landlord sees fit.
As you read this article, bear in mind the following conclusion. The most important consideration in the landlord's decision to rely on abandonment or file an eviction will usually be the value of the resident's remaining property. The value of the property should be examined at the outset. A good rule of thumb is this: if the total value of the property is $500.00 or more in the landlord's good faith estimation, then the landlord is advised to file eviction and obtain a writ of possession. If the total value of the property is worth less than $500.00, the landlord can continue with his examination of the facts to ascertain whether the rental unit has been abandoned.
Special circumstances may arise where the lease in question does not have a proper abandoned property clause or there is no lease. If the total value of the property is $500.00 or more in the landlord's good faith estimation, then obtaining a writ of possession becomes an imperative. In these special circumstances, if the total value of the property is less than $500.00 and the landlord strongly believes abandonment of the rental unit has occurred, the landlord will need to follow abandoned property procedures, including sending an abandoned property letter, as described in Florida Statute 715.105.
Florida Statute 83.59(3)(c) sets forth how abandonment of the rental unit is determined: (c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or Under Florida law, there are two ways abandonment can be established: (1) the landlord has actual knowledge of abandonment, or (2) the landlord can meet all three parts of the following test to create a presumption of abandonment: (a) the rent is late, (b) the resident did not inform the landlord of an intended absence, and (c) the resident is absent form the premises for at least 15 straight days. (Since almost universally the time under a lease for the periodic rental payment is monthly, we shall speak of 15 days as the "period of time equal to one-half the time for periodic rental payments"ќ. The same is true for month-to-month tenancies.)
The problem with the first standard, actual knowledge of abandonment, is that the law does not define this phrase. There at least two major problems with the second standard, presumption of abandonment. First, it can be very difficult to establish 15 straight days of no activity in the absence of around the clock camera surveillance. Second, even if you can prove all three elements of the test, the presumption can be overcome in court.
Unfortunately, the Florida courts are not very helpful in clarifying the presumption, its elements or its application. Court decisions are based on the particular facts of each case, with similar cases being decided differently based on only slight changes in the facts. Since the landlord has the writ of possession as the available statutory remedy to remove the resident's personal property with complete immunity, the courts are inclined to give the benefit of the doubt to the residents in contested abandonment cases.
The penalty for prematurely locking a resident out is the resident's actual damages with the minimum damages being an amount equal to three months' rent. An additional three-month rent penalty applies if the landlord prematurely disposes of the resident's personal property, even if the personal property involved is apparently of little value. In addition to his actual or the statutory minimum damages, which ever is greater, the resident is entitled to his court costs and attorney's fees. Finally, the landlord may face a claim for civil theft and possibly criminal charges. The downside is so overwhelming that avoiding the cost of a mistake is well worth the writ of possession, if the landlord is ever in doubt about whether abandonment of the rental unit has occurred.
The practical guide "“ the value of the property
Since this area is so bereft of any firm statutory guidance, the landlord must turn to some practical standards to operate in the real world. The best practical guide is the value of the property left behind. Start with the assumption that most people don't abandon valuable items. This is just as obvious and logical to the courts as it is to the person on the street.
If the total value of the property is $500.00 or more, than characterizing the rental unit as abandoned is risky. We often advise to forego the abandonment analysis and do the eviction. It's not that there is never a case of abandonment with property valued over $500.00, only that it is rare and grows rarer as the value of the property increases. If a landlord feels that he has such a rare case, he is advised to consult with his eviction attorney before taking any action to repossess the rental unit and dispose of the remaining personal property. If the landlord ever finds a rental full of furniture, his attorney's advice is absolutely necessary.
If the total value of the property is less than $500.00, the landlord cannot assume that there has been abandonment. The landlord must still proceed with an analysis of the facts to ascertain if he has actual knowledge of abandonment or if he can rely on the presumption. If neither applies, then the landlord must file eviction and obtain the writ of possession, even if the value of the property is minimal. That being the case, we turn to a discussion of the statute.
The statute "“ actual knowledge
As previously indicated there is no statutory definition of "actual knowledge"ќ of abandonment. Neither the attorney nor anyone else can tell the landlord if he has actual knowledge. Either he can claim it or he can't. If he feels comfortable that his contact or correspondence with the resident confirmed that the resident was abandoning the rental unit, including any remaining personal property, then the landlord can claim actual knowledge. The landlord may at some later date have to explain to a judge how he knew the rental was abandoned. This will be much easier to recall if the landlord enters his reasons in the resident's file along with any resident notes, emails, correspondence, telephone messages or other writings helping to establish the landlord's actual knowledge.
The easiest case may be when the resident tells or writes the landlord that he intends to break the lease and leave. The landlord checks the property and the resident and all his possessions are gone. A completely cleared out rental should satisfy a judge that the landlord has actual knowledge. True trash should not be a concern.
It is common for a landlord to talk to the neighbors who will often tell the landlord that they "know"ќ the resident left for good. This is not the landlord's actual knowledge. It is a factor that the landlord can take into consideration.
The statute "“ the presumption
If the landlord doesn't have actual knowledge of abandonment, then he must rely on the presumption established through its three elements: rent owing, no notice of absence and 15 days not seen. As mentioned above, conclusively establishing 15 days of no activity can be almost impossible. Although some landlords have been known to put tape at rental entries to show the requisite lack of activity, for most landlords it's a conclusion drawn as their best guess. It's based on more or less frequent checks of the rental, talking to neighbors and any other information that the landlord can gather indicating that no one has been around. The landlord should enter the facts supporting his presumption in the resident's file.
Any remaining property of a personal nature (clothing, toiletries, personal records, photos, albums) suggests that the resident has not abandoned. Landlords who find any usable decent furniture are encouraged to consult with their attorney, even if the items are less than $500.00 in value. This is often an indication that someone may still be occupying the rental unit, at which point eviction is the most prudent route to retake possession. Even when it is fairly clear that no one is actually living in the unit, the tenant can still tie up the unit by storing personal property within the unit, again making eviction the best option.
The landlord must remember that even if the presumption is established by the landlord, it is only a presumption that is being triggered, and it can be rebutted by the resident in court. The landlord must accept the risk that the resident will return and litigate in an effort to rebut the presumption. This risk may grow smaller as the amount of rent and damages owed grows larger and as the factors supporting abandonment multiply, but it is nevertheless a risk that the landlord must accept in relying on the presumption.
Considerations in abandonment
In addition to value of personal property remaining on the premises, the following are some other factors to consider that may indicate the resident has abandoned. They may assist the landlord in having actual knowledge of abandonment or support the presumption of abandonment. - Resident statements or writings;
- Neighbor statements;
- Responses from emergency contacts; the landlord can only leave a request with the contact for the resident to get in touch with the landlord. He cannot disclose any information to the contact, as such is a breach of the resident's privacy;
- The type and quantity of personal items left behind;
- Utilities cancelled, shut-off or rolled over to the landlord;
- Lack of sleeping arrangements (bed, mattress, sleeping bag);
- No edible food, canned or otherwise;
- Rotting food in the refrigerator or kitchen in general;
- No pet food or water, if the resident had a pet;
- Single family homes: lawn, shrubbery or pool not maintained, when these are the resident's obligations under the lease.
All the facts should be considered and weighed. No one factor can be seen as conclusive. Something may be nothing more than a lease noncompliance; for instance, the fact that the electric is shut off is not conclusive of abandonment. It may only be a lease noncompliance by a financially struggling resident, who remains in possession.
A final word on proof: in establishing the condition and value of remaining items or the condition of a rental that gave rise to the landlord's findings of abandonment, pictures are indispensable. In this day and age of cheap digital cameras, there is no reason that digital pictures of the rental and items are not taken and included in the resident's file.
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by Harry A. Heist, Attorney at Law
If you are currently just obtaining a credit report and performing a criminal background check on your applicants, you may be doing yourself and the owner for whom you manage a serious disservice. You really should consider using a screening company who will perform a comprehensive credit and criminal background check and assist you in the decision making process. Whether you use a screening company or obtain credit and criminal reports on your own, it is important to recognize some of the shortcomings of the information that you are receiving and see how the use of the public records can supplement the information you are currently receiving.
What are the "Public Records"ќ
The public records include the civil, criminal and property ownership information which is gathered and recorded by the Clerk of the Court and the Property Appraiser in a given county, plus those records that the State of Florida maintains, such as the FDLE information on sexual offenders and predators. In addition to civil and criminal court records for a particular county, the public records also include information on ownership of property which is gathered by the tax appraiser's office and contains a wealth of information. The public records may include information on your applicant and information on the current or prior landlord of your applicant, if that individual or company is located in the county in which you are searching. The information you gather from the respective websites maintained by the county may be more current and comprehensive than the information you received from your screening company.
Developing a written company policy
If you feel uncomfortable about a particular applicant, you may be tempted to get on the computer and begin digging into the public records. You may uncover civil or criminal information that you did not get from your screening company, and based on this information, you may decide not to approve the applicant. Sounds good, right? Well, the problem is that unless you check the public records of every applicant in a given similar situation, you may run afoul of fair housing laws, as you may not be treating all the applicants equally. You need to create a written plan and a policy which will determine under what circumstances you will check the public records and how far you will go with this. As part of this decision and plan, you will need to determine what counties you will check, and understand that in some counties, the information is not readily available and would require written requests or payment for information. You don't need to get permission to check the public records of an applicant, because the information is indeed public, but if you find something that appears to be a problem, you need to safely use this information without getting yourself in trouble. What county will you check? The applicant may be from one county, the former or current landlord from another, and your property is in another. Are you going to check the public records of three different counties? We recommend that you start with one county, that being the one where the property is located.
While most screening companies have an "eviction database"ќ, these evictions are usually ones that were filed and disposed of by the court months ago. Most screening companies buy eviction information from each county and then put it into their computer systems. Very few companies actually search the eviction records for your county when they are screening the applicant, and they certainly rarely do this for the entire state, as they literally would have to access 67 different computer systems, and the information that they obtain will only be a similar or the same name. Remember, the public record does not contain Social Security numbers, so if a name comes up, there is usually no way to tell if that person you are reading about is the applicant you are screening. Imagine searching a name like John Smith. Thousands will come up in the database. Is this information useless? We don't think so. We feel that it is worthwhile to search your applicants in the civil court records database of your county. The person who is applying can be under eviction at that very moment, and the screening company most likely will not catch this when you might. This type of applicant is the most dangerous of them all, as they are slipping through the cracks and getting approved before anything shows up on their credit reports or public records information that your screening company has in its system. If you make it a habit to look up an applicant's name in the civil court records, you may indeed find out that the person is currently under eviction or has been evicted before. The court records will show the co-tenant if there is one, and this helps to narrow it down to see if the person applying is the same person in the court records, and the eviction that pops up will show both names. With uncommon names, your job becomes easier. Let's presume you find the name appearing in the court records. Could it be the same person? Possibly, and this gives you the opportunity to ask the applicant about why his name or someone with the same name appears as a current or past eviction, and this gives him a chance to explain or prove to you that it is someone else and not him. Think about this. On any given Wednesday, we may file 100 evictions. Where do you think some of these people are on Saturday? You are showing them a house or an apartment and have no clue. These people end up getting approved and slip right through. People with bad credit do not always make bad residents, but people who have been evicted or are currently under eviction have a high chance of being evicted again. Do you want to be the next victim? The minute an eviction
is filed, it will show up in the computer of the clerk of court.
The criminal and arrest records you obtain from the computer of your county court system will most likely be more up to date than the information of your screening company. In Florida, there often is a delay in the county relaying information to the Department of Corrections or the Florida Department of Law Enforcement, so when you look up a person's name, you are getting fresh, up to date information. The problem again will be similar names, which makes it difficult to verify that it is the same person. Many sheriffs' departments have photos posted online in the arrest reports, so you may be able to look these up to verify that the person who was arrested is the person who is applying. Can you reject an applicant just because of an arrest? Possibly not, as many people are arrested and released with no charges filed, but it gives you a better picture of the applicant if you can look at the criminal information on your computer and ask the applicant further questions. That applicant who was arrested last month for major drug trafficking may be out on bail; your screening company does not have it in its system, but you now have the info. You certainly can deny the applicant if you find that he lied on his application, but without checking the public records, you may never have found out, or you will find out when it is too late. One of the biggest problems you will have to deal with is having a registered sexual offender or predator slip through and accidentally get approved. To help avoid this dilemma, a simple website is available, free and easy to use. Please use it.
Injunctions and Domestic Violence Issues
A check of the public records of the county court may reveal restraining orders and injunctions. These are court orders which prevent a person from contacting or being within a particular number of feet from another person. This is an interesting scenario. It appears that one of your applicants has an injunction against the other, and he is not even allowed to be within 500 feet of the other. How can they be both sitting in your office applying to rent your apartment? Is it possible they have been asked to leave by their current landlord due to constant fighting and destruction of the property, and that they just recently reconciled? If one of them is violating the injunction, that person may actually be in the process of committing a crime right there in the office. While we would never want to deny someone solely because they were a victim of domestic violence, we certainly can look into the situation that we have discovered here and ask some probing questions. Without looking in the public records yourself, there is a high chance that this would be missed by your screening company, especially if the injunction was obtained very recently.
The Foreclosure Story
Every property manager has heard one or more versions of the "foreclosure story"ќ. The first version is where the applicant tells you that she was living in a home, and the owner of the home got foreclosed on, forcing her to move. The other story is the applicant was the actual owner of a single family home, was foreclosed on and had to move.
If the applicant was the tenant who "supposedly"ќ had to move, you need to verify this. How would you normally do this? Well, you would call the owner of the home that the applicant is or was renting and verify the information. The problem is that the applicant tells you that the owner just "walked away"ќ from the mortgage and will not answer his phone. No one has seen or heard from the owner. Are you going to take this for an answer, feeling sorry for the poor applicant who most likely stopped paying rent months ago when she got served foreclosure papers, or will you try to verify the story? You MUST verify the story, and all you need to do is look at the public records, put in the owner's name in the civil court records to find the foreclosure, or put in the property address in the tax appraiser's records and begin to dig. If the owner was truly foreclosed upon, you will find that information in the court records. Additionally, ask the applicant for copies of rent checks to see if she has been paying the rent to the owner for the 8 months the foreclosure has taken, or has the applicant taken advantage of the situation and not paid a dime, further hurting the owner? If the applicant stopped paying rent to her prior landlord, what is to stop her from doing it to you?
If the applicant tells you that she was a homeowner and due to unfortunate circumstances, got underwater and ended up being foreclosed upon, you need to use the exact same methods as outlined above and look up the public records. If you can't find the information, ask more questions. Many people who are foreclosed upon decide to stop paying their mortgage and now all of a sudden have $2000 extra each month which they promptly blow on things they don't need. Now they are faced with paying real rent to a real landlord who can really evict them, and they have no money, no savings and possibly no job. Don't let your emotions make you sympathetic and let your guard down.
As you can see, the public records are full of valuable information, and you need to figure out how to use them. Start playing around on your computer. Go to the civil court record section of your county court's website or the sheriff's department site, and find the screen where you input the names. It is usually simple to use, and once you know how to input a name, it becomes easier. Read the instructions carefully. Sometimes they require last names and first names with a space between them, sometimes a comma. Every single courthouse and even different systems, such as criminal and tax records, within the same courthouse can require a different way of inputting a name or an address. Learn the system, take notes, play around and bookmark the site, putting it in your favorite places, or better yet, save it as an icon on your desktop for easy use. Call our office if you need help, as we are in the court systems all day long, checking dockets and doing research which pertains to the eviction cases, and we will be happy to send you the proper website and page links so you don't have to waste your time. All it takes is getting started. The more you play around, the more fun you will have, because invariably you will begin looking up your friends and coworkers and find some very interesting stuff indeed! Best yet, there is no need to make a trip to the courthouse, as it is all online.
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by Brian P. Wolk, Attorney at Law
Whether you are realtor property manager for a small duplex, or a property manager for an 800 unit high-rise apartment community, you can expect to field questions from servicemembers and their family members or dependents in regard to their lease obligations. These once obscure questions are becoming more commonplace, especially as our military deploys soldiers where there is conflict or where natural disasters have occurred. The military is also educating like never before our servicemembers or their dependents or family members concerning their legal rights as lease signers. There are also numerous, not for profit military advocacy groups which are disseminating legal information to the rank and file of the military who are renters of residential property. Nobody should argue that this is a bad development. In fact, we want our servicemembers to be protected while renting their homes or apartments. They are under enough stress as it is, and we do not want them distracted while they are in the military, or penalized after leaving the military after serving their country. However, you as a property manager should also be well versed in the law, so you can intelligently discuss the options your military residents have in regard to releasing them from their leases due to their military service. This article will provide legal advice on how to effectively deal with a number of common scenarios involving servicemembers who wish to terminate their leases. If you decide you do not want the hassle of renting to servicemembers, be advised that Florida law specifically prohibits you from discriminating against servicemembers, so you will be opening up your company to potentially significant liability under an unlawful discrimination suit!
Servicemembers Civil Relief Act "SCRA"ќevict.com/?page=legnew1003#milres. That article contains a more detailed history of the SCRA and should be read carefully, especially since a property manager could be subject to criminal liability if the eviction provisions of the statute are not followed. SCRA covers all persons on active duty with the uniformed services, including Reserve and National Guard members who are activated to federal active duty. SCRA does not apply to Reserve or National Guard members not on active duty, retired military personnel or troops called to duty under state orders.
Application of SCRA
Three of your residents have requested that you release them from their respective lease obligations. Samantha signed a lease three months ago. Two weeks ago she joined the Army. Her commanding officer has called you to verify this, even though you have not received anything in writing from the resident regarding her military service. Darren has provided you in writing his permanent change of station orders along with a written termination notice pursuant to SCRA. He delivered them in person to you. Larry was an Army reservist who was deployed to Iraq for 75 days and mailed his termination notice and orders to you by certified mail return receipt requested. Which of these residents are allowed to terminate their leases? In Samantha's case, she is obligated to deliver to the landlord, either in person or by certified mail return receipt requested, a written termination notice stating that it is pursuant to SCRA, along with a copy of her military orders. Oral notice is not sufficient. Therefore, Samantha has not yet successfully terminated her lease obligations based upon her oral notice. Darren will be permitted to terminate his lease, because he provided proper notice, and SCRA covers active duty servicemembers who receive permanent change of station orders. Larry is not covered by SCRA. Even though he provided written notice, SCRA covers servicemembers deployed for 90 days or more. That leaves Larry 15 days short under federal law. However, as you will see, Florida law may allow Larry to terminate his lease. Any advance rent or security deposit must also be returned to Darren in conjunction with the early lease termination assuming that rent is current and there are no damages to the premises in excess of reasonable wear and tear. You are also prohibited from holding Darren responsible for the lease balance, or charging Darren any early lease termination liquidated damage amounts if the resident chose that option at lease signing. It is also important to note that the servicemember must be a lease holder for these protections to apply. For example, a wife of a servicemember who is deployed cannot terminate the lease if the servicemember is not listed as a party to the lease. However, you should also keep in mind though the wife would still enjoy certain eviction stay protections under SCRA, so it would still make sense to try and shorten her lease term if you think that payment of the rent will become an issue due to the husband's deployment.
Calculating the lease termination dates under SCRA
For all tenancies under which rent is due monthly, the lease will terminate 30 days after the first date on which the next rent payment is due after the lease termination notice is delivered. So, if the rent is due on the first of the month and the notice is delivered to you in person on July 3, the lease obligations will terminate August 30. For any other tenancy, the lease will terminate on the last day of the month after the month in which the correct notice is provided. Therefore, if rent is due quarterly (a rare tenancy to be sure), and notice was given on July 3, the lease termination date will be August 31.
Florida Statute's treatment of lease termination rights by servicemembers
Bernice, one of your residents, has just emailed you. She is going to provide you with written orders from the Navy along with a 30-day notice that she intends to terminate the lease. Bernice was on active duty when she signed the lease; however, she is no longer on active duty and plans to relocate to a city 41 miles away which is where Bernice lived just prior to her naval active duty. There is five months left on the term of Bernice's lease. Meanwhile, Vic has received permanent change of station orders to move 33 miles from your apartment community. Finally, Michael was released from active military duty due to conduct issues. Michael and Vic would both like to vacate in 30 days, even though both have many months left on their respective leases. Can these residents terminate their leases you wonder? In addition to the federal law protections that military members receive from SCRA, the Florida legislature enacted state law mandated legal protection for servicemembers attempting to terminate their residential rental agreements. These provisions are contained in Florida Statute 83.682 - TERMINATION OF RENTAL AGREEMENT BY A SERVICEMEMBER. First, each and every time a resident invokes termination rights pursuant to this statute, at least 30 days' written notice must be provided to the landlord and must be accompanied by either a copy of the official military orders or written verification signed by the servicemember's commanding officer. Bernice will be allowed to terminate her lease, because a servicemember released from active duty or state active duty after having leased the premises while on active duty or state active duty status is eligible for lease termination rights when the rental premises is 35 miles or more from the servicemember's home of record prior to entering active duty or state active duty. Michael also will be able to terminate his lease early under chapter 83.682, because the protection applies to a servicemember who is prematurely or involuntarily discharged or released from active duty or state active duty. Vic may not be as fortunate, as the protection under Florida law requires the change of station orders to be 35 miles or more from the location of the rental premises. However, Vic is still protected under SCRA, because the federal law does not impose a geographical limit for permanent change of station orders. Servicemembers are also covered under the Florida Statute if the servicemember has leased the property, but prior to taking possession of the rental premises, receives a change of orders to an area that is 35 miles or more from the location of the rental premises. You should also be aware that Florida Statute covers a servicemember who after entering into a rental agreement, receives military orders requiring him to move into governmental quarters, or the servicemember becomes eligible to live in and opts to move into governmental quarters. The Florida Statute also covers servicemembers who receive temporary duty orders, temporary change of station orders, or state active duty orders to an area 35 miles or more from the location of the rental premises, provided such orders are for a period exceeding 60 days. If the servicemember is eligible to break the lease under Florida law, the tenant's rental obligations run for thirty straight days from the time formal notice is provided.
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The Florida Apartment Association is excited to offer: MyRentComps.com, an "Award Winning"ќ market survey system created for those working in the industry of multi- family housing. Regional managers and owners can log in at www.FL-Apartments.org and see all of the properties that they own and manage throughout the state in one convenient location.
Local Apartment Associations have been offering this integrated system to thousands of properties, throughout Florida. This website was developed for property managers and other onsite personnel to assist in the week to week gathering of market survey information. Property managers are utilizing this time saving system to create more time in their day. A leasing person can update their information and run a market survey on nine properties of their choice with the click of a button. Many managers are getting their "comps"ќ on board before noon on the same day each week, and in only a few minutes, they can run their Market Survey reports. No more interruptions with survey calls and no more faxing! In the time it takes to walk to the fax machine or answer just one market survey call, you can be done giving out the information for the entire week! The great thing about this is that no one can access your information unless their property has also been updated. When your comps click on the market survey button and log in, they won't be able to see your rents or occupancies if they have not updated theirs within the past 7 days.
This is a dynamic website offering property managers the ability to keep track of traffic, add concessions and availability and other important information. Many times leasing people may change properties so there is a manage members tab that the onsite managers can use to remove and add users at the property level. Also available for smaller properties is a free website with the capacity to upload property pictures and application forms.
We are now offering owners of apartment portfolios and regional managers free access. Just go to Florida Apartment Association and click on the What's New button. Everyone wins!
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