Legal or Not July 2017
LEGAL OR NOT, by Brian Wolk, Heist, Weisse & Wolk, P.A.
Q: Due to some recent business closings in our city, our apartment community served a large number of 3-day notices this month. The rent is due on the first of the month, and according to our lease, the late fee is triggered on the fifth of the month. One of our residents is playing loud music late at night. Residents also report drug activity at this apartment home, but the police have neither been called out, nor have any arrests been made, so we are unable to serve the resident with a termination notice for the criminal activity. We decided to catch the resident off guard and serve him a 3-day notice on the fourth of the month, instead of waiting until the sixth of the month like we did with all our other residents behind on the rent. We did not include a late fee in the amount demanded. Just as we thought, the resident did not pay the rent prior to the expiration of the 3-day notice. Will we have any issues if we attempt to evict the resident for nonpayment of rent?
A: It is never a good idea to attempt to evict for nonpayment of rent if your real reason for filing an eviction action is unrelated to the nonpayment of rent. Serving the resident a 3-day day notice very early in the month is an easy clue to a judge that the nonpayment of rent eviction may be a seven-day notice eviction case in disguise. Judges will be less than happy if that is the case. Judges require property managers to use the seven-day notice process if evicting for reasons other than nonpayment of rent. Also, since you are treating the resident differently by serving the 3-day notice earlier than normal, your company may become vulnerable in an eviction lawsuit for not following normal default procedures, and if the resident is a member of a protected class, there could even be fair housing law ramifications. Even though the lease requires rent to be paid on the first of the month, it also states that the late fee will not be assessed if the rent is paid before the fifth of the month. Some judges may believe the lease language means that rent is not truly late until after the fourth of the month. If the resident obtains an attorney, contests the eviction and prevails in court, your company could be liable for the resident’s attorney’s fees, an amount which could be significant.
Q: Several months ago our office processed an application, accepted the applicant, and the applicant moved into the apartment home. Yesterday we received phone call from our courtesy security officer that this resident had been arrested before for a serious crime, and that the judge withheld adjudication. Our staff is very upset about this situation. We feel misled, as the resident never told us about this. On the application the resident indicated that he had no criminal convictions. We only ask if the applicant has any criminal convictions. Can we evict this resident for misrepresenting facts on his application?
A: You did not ask enough qualifying questions on your application. Many arrests do not actually result in convictions, even if it is undisputed that the criminal act took place. Sadly, this resident can easily argue that he was completely truthful when he filled out the application, since there has in fact been no conviction. An important question to also ask is whether there has been an adjudication withheld or adjudication deferred on the applicant’s record. This question is more inclusive, and if the resident answered “no” to this, it would have allowed you to evict based upon the resident giving false or misleading information, if this right was listed on the application or lease. Our office has reviewed hundreds of applications on which blanks are not filled in, information is hard to read or completely illegible, or phone numbers given turn out to be disconnected, and yet these applications are approved. An applicant who is desperate to become a resident will go out of his way to misrepresent or distort background information. It is imperative that a property manager carefully examine an application before accepting an applicant.
Q: I received a long email from a former resident last night. The resident is threatening to sue the owner of our apartment community, because she believes we have violated Florida law with regard to our handling of her security deposit disposition. I am not at all clear whether I did something wrong. We inspected the apartment home after the resident vacated and found no property damage at all. The resident left the apartment home in almost perfect condition. We sent out a Statement of Deposit Accounts letter (“SODA”) within 15 days by certified mail, and stated that there were no amounts deducted from the security deposit. Our management company is located in Arkansas, and it takes about three weeks from the move-out date to process the final disposition paperwork, so this resident should receive her full deposit refund soon. I am under the impression that our management company has at least 30 days to refund the security deposit. Did our company comply with the Florida Statutes?
A: Your company failed to comply with the law. Unfortunately, this mistake is often made by property managers throughout Florida. It is crucial that your corporate office understand that if you are returning the full security deposit, you must do so within 15 days of the resident vacating the apartment home, according to Florida Statute 83.49. You should also be aware that a full refund technically does not have to be sent by certified mail. Many property managers mistakenly believe they have 30 days to send a full refund. However, if the apartment community is making some claim against the security deposit, the property manager must send out the “SODA” by certified mail within 30 days of the move-out date, and has another 30 days from the time the claim letter is sent to send the portion intended to be refunded. If the resident in her email is making a fair offer to settle the matter, it would be advisable to settle the matter quickly, because if the resident litigates this matter and hires an attorney, the owner could be held liable for the resident’s attorney’s fees and courts cost under Florida law, and those amounts could be substantial.