Legal or Not August 2020
LEGAL OR NOT by Brian Wolk of Heist, Weisse and Wolk, P.A.
Q: About two weeks ago one of our residents moved out of our apartment community after living in her unit for the past three years. The carpet was two years old when she moved in. She left mildew stains all over the sink and bathtub. Garbage was left all over the apartment home, and the carpet is stained due to her cat. Our housekeeper charged us $250.00 (when the charge would normally be $150.00), and it cost us $850.00 to replace the carpet. We usually replace our carpeting out every five years. I promptly sent out our Notice of Intention to Impose Claim on Security Deposit as required by law, and we charged the resident $1100.00, our true cost to restore the apartment to its original condition. Yesterday I received a nasty certified letter from the resident’s attorney, demanding return of the $1100.00 within 5 days. I called the attorney, but was placed into his voice mail. Do you think that we need to return the $1100.00 to the resident? Did we charge the proper amount for the damage to the apartment?
A: The first error you made was attempting to talk to the resident’s attorney. You need to remember that the attorney works for the resident. You could end up jeopardizing your case if this case ends up in litigation, and you unwittingly divulge information to the resident’s attorney. Make sure that your attorney contacts the resident’s attorney. Next, the resident will usually not be held responsible for damages due to ordinary wear and tear. If the usual housekeeping charge is $150.00, then the resident should have only been charged $100.00, the amount above ordinary wear and tear. With regard to the carpet charge, if you end up replacing the carpet every five years as part of your normal practices, then you should not have charged the resident anything for the stains on the carpet, because the carpet was approximately five years old at move-out, and it was your normal time to replace the carpet anyway. You need to strongly consider returning the deposit in order to avoid losing your case in court and exposing your company to a potentially high attorney fee award.
Q: This month one of our residents was delinquent with her rent. He was served with a 3-day notice and subsequently sent to eviction as this was not a CARES Act covered property. Today in the mail we received a copy of the answer filed at court by the resident’s attorney, who claimed that the rent was indeed paid by the resident, and that the money orders were placed in our drop box. The resident’s attorney admits that the resident did not retain the receipts for the money orders. Our drop box is very similar to a mail slot, and there is a box on the floor below the slot. We have a sign posted which states that the drop box should only be used during non-business hours. Will we prevail in our eviction case?
A: The outcome of your case may or may not be dependent upon the controls that you have in place with respect to the security of your drop box. Your attorney should request that the court require the resident to produce receipts for the money orders, but if the resident’s attorney convinces the judge that the money orders were left in your drop box by the resident, expect to lose the case, receipts or no receipts. The resident’s attorney may also attempt to persuade the judge that your drop box was accessible to many people in your office, which would also hurt your case, even if the resident could not produce receipts. You should review all procedures with regard to your drop box system, including security procedures, and evaluate how the drop box is emptied. Our office recommends that you not use them. If the eviction is denied for any reason, your company will be required to pay the resident’s attorney’s fees, an amount that could easily run many thousands of dollars.
Q: We have three minor residents living in our apartment community who have been causing numerous unreasonable disturbances and misusing our property over the past four months. They have placed firecrackers in the laundry room, played baseball in our parking lot, and often use vulgar language when talking to other residents. Many of our residents are livid and will not renew. I have talked to the parents of the children at least seven times over the past four months. They always deny that the children are engaging in this bad conduct. Although there are no witnesses, we suspect that these kids are stealing other residents’ bikes. I am very upset. Can we terminate this lease?
A: From the beginning, you should have served the parents with Seven-Day Notices instead of only talking with them. You can have conversations with the residents all day long; however, you will not be making any progress towards evicting these residents; your talks with the residents have no real, beneficial, legal effect. If the lease violation is one that is curable, then the property manager should issue a Seven-Day Notice to Cure. If the resident is still out of compliance after being served with the Seven-Day Notice to Cure, and rent has not been accepted, the resident should receive a Seven-Day Notice of Termination. For more serious violations, such as felony criminal acts which occur on the premises, cure notices need not be issued, and the resident should instead be promptly served with a Seven-Day Termination Notice. Failure to timely deliver the proper legal notices prolongs the process and adversely impacts your resident retention rate. With regard to the suspected criminal conduct in this case, do not hesitate to contact the police if need be. One last point: it is crucial that you do not discriminate based on familial status. You should be very careful and consult with your attorney to make sure your notices have the proper wording.