Legal or Not January 2019

Legal or Not,

 LEGAL OR NOT by  Brian Wolk, Heist, Weisse and Wolk, P.A.


Q: Last week one of our residents moved out of our apartment community after living in her unit for the past four years. She left mildew stains all over the bathroom shower and sink. Trash was scattered throughout the apartment, and the carpet which was present when she moved in has multiple stains due to her poodle.  Our housekeeper charged us $220.00 when her normal charge is $125.00.  It also cost us $650.00 to replace the carpet, and we usually change the carpeting out every five years.  I made sure that we sent out our Notice of Intention to Impose Claim on Security Deposit in a timely fashion, and we charged the resident $870.00, our true cost to restore the apartment to its proper condition. Yesterday I received a nasty email from the resident’s attorney demanding return of the $870.00 within 7 days. I called the attorney, but she was not in, so I left a detailed message with her legal assistant explaining our reasoning.  Do you think that we should return the $870.00 to the resident? Did we charge the correct amount for the damage to the apartment?


A: The first mistake you made was picking up the phone and calling 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 $125.00, then the resident should have only been charged $95.00, the amount above ordinary wear and tear. With respect 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 resident lived with the carpet for at least four years, and it appears that it was your normal time to replace the carpet anyway. In other words, the carpet’s value fully depreciated. I would urge you to return the deposit in order to avoid losing your case in court and exposing your company to a potentially significant attorney fee award.


Q: Last month one of our residents failed to pay rent. He was served with a 3-day notice and then was sent to eviction. Today in the mail we received a copy of the answer filed in court this week by the resident’s attorney, who claimed that the rent was paid by the resident, and that the money orders were placed in our drop box located next to the management office. 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 lose this case?


A: The outcome of your case will probably turn on whether the judge believes the resident dropped off the money orders in your drop box, and to a lesser degree, the controls that you have in place with regard to the security of your drop box. Your attorney should request that the judge require the resident to produce receipts for the money orders. The resident’s attorney will attempt to convince the judge that your drop box was accessible to many people in your office. If the judge believes the money orders were deposited into your drop box, then the eviction request will likely be denied.   You should review all procedures with regard to your drop box system, including security procedures, and evaluate how the drop box is emptied.  We recommend phasing the drop box out as a way to pay.   Keep in mind that many companies are eliminating their drop box access due to an increasing rash of thefts involving drop boxes.



Q: We have two college students, age 20, living on our property with their parents who have been causing massive disturbances over the past three months. They have thrown garbage in our pool, play golf in our parking lot, and often use vulgar language when addressing neighboring residents.  Many of our residents are non-renewing and moving elsewhere. I have talked to the parents of the young men at least five times over the past few months. They always deny that their children are causing any problems.  Although there are no witnesses, we  strongly suspect that these students are breaking into cars in the parking garage and vacant units. I am at my wits’ end! Can I require these residents to vacate?


A: From the outset, you should have served the residents with Seven-Day notices instead of only talking with them. You can chat with the residents until the end of time; however, you will not be moving any closer to starting an eviction action. Your talks with the residents have no real beneficial legal effect. If the offense 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 that type of notice, 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 served with a Seven Day Termination Notice. Failure to timely deliver the proper legal notices only lengthens the process and adversely impacts your resident retention rate.  With regard to the suspected criminal conduct in this case, make sure to contact the police immediately as soon as you become aware of the criminal activity.