Legal or Not July 2019
LEGAL OR NOT, by Brian Wolk, Heist, Weisse & Wolk, P.A.,
Q: I just started last week as manager of our apartment community. The former community manager had a plan in place for serving 3-day notices that has me very concerned. Prior to serving the 3-day notice to a resident, the community manager would pre-fill out the certificate of service section at the bottom of the 3-day notice. Each notice would have a check mark on the “Posted on Premises” line at the bottom of the certificate of service. After reviewing notices in the files of our existing residents, and determining that the residents were receiving the original notices, it also appears that no 3-day notices were ever personally served. I am also concerned that the office used bright purple paper. Will these practices harm any future potential eviction case we may have?
A: There are many mistakes made here which are often made by property managers. First, instead of keeping a copy of the 3-day notice in the resident’s file, the property manager should provide the resident with a copy of the 3-day notice, and the original should be placed in the resident’s file. For the same reason you maintain the original lease in your file, you also want to prevent the resident from altering the original notice. Florida law clearly makes reference to delivering a copy of this notice to the resident. A second mistake made is that the certificate of service section has not been filled out properly if it does not reflect personal service when the notice has indeed been served personally; Florida law requires that an effort be made to hand-deliver the 3-day notice before securely posting it. Keep in mind that the certificate of service section is not for the resident’s benefit, but rather for the benefit of the property manager and the judge, in case an eviction action is filed. There is no need to fill out the certificate of service section on the resident’s copy. However, it must be filled out on the original, which is then placed in the file. When delivering notices, we recommend keeping a list of any notices served personally; this well help you when filling out all the certificate of service sections on the original notices after you get back to the office. You should ring the doorbell and/or knock on the door with force, and serve a copy to an adult occupant if such an individual answers the door. If only a minor or guest answers the door, or nobody answers the door, then the 3-day notice should be securely taped to the door, and no other residents who walk by should be able to read it. We also advise you not to use the purple paper, as this may cause unnecessary embarrassment to the resident, and could cause collection related problems, especially if the notice was served by mistake.
Q: We have a resident who moved in two weeks ago. This resident is causing a massive disturbance. He is drinking alcoholic beverages along with his guests, and bringing in excess guest traffic throughout the common areas of our apartment community. He is drinking in the common area hallway, the clubhouse and the swimming pool area. This resident and his guests are loud and leave litter behind, including beer cans and cigarette butts, and other residents are constantly complaining. Our lease does not prohibit the use of alcohol in common areas. How can we stop this horrible conduct? I am worried that other residents will fail to renew when their leases come up because of this terrible resident.
A: The first action that must be taken is serving the resident with a Seven Day Notice of Noncompliance with Opportunity to Cure. The unreasonable disturbances, littering and excess guest traffic are a proper basis for serving the resident with this notice, which should be prepared with the assistance of your eviction attorney. If these problems continue, you may be able to issue a Seven Day Notice of Termination after consulting with your attorney. You should consider adding a clause to your lease which provides that consuming alcoholic beverages in community common areas is prohibited. There may also be a local ordinance which prohibits this type of conduct. If you attempt to implement a new rule or regulation prohibiting drinking in community common areas to take effect immediately with regard to all your residents, you may run into resistance from those residents who claim they entered the lease with the expectation that this practice would be acceptable, and was a factor in signing the lease agreement.
Q: Yesterday, one of our residents came into our management office and told us her neighbor had indicated he was moving to Missouri. We then walked by the unit and discovered that the front door was unlocked, the electricity had been turned off, and mail was piling up in the resident’s mail box. This was especially surprising to us, since the rent is current. There was still a decent amount of furniture inside, but many personal items have been removed. It sure seems apparent to me that we can change locks and treat the apartment home as abandoned. Do you agree?
A: Absolutely not! The landlord should not take immediate exclusive possession of the apartment home in this case. Common sense and logic are not included as the criteria for deciding whether an apartment home is legally abandoned. When you do not have “actual knowledge of abandonment” (a clause not defined under the applicable Florida statute), there is a three-part test to determine whether a unit is legally abandoned. All three elements must be met to create a presumption of abandonment. First, the rent must be unpaid; next, you need to be able to prove that nobody has been inside the apartment home for at least a full, consecutive 15-day period. Finally, you must not have received any notice from the resident or occupant indicating an intended absence. In your case, the rent is current, so on that basis alone, you may not treat the apartment home as abandoned. Moreover, presumptions can be overcome in court, and when personal property items of significance remain in the apartment, the presumption of abandonment could definitely be challenged in court, even when all three parts of the test appear to be met. The landlord should consult with their attorney, as it may be best to evict and dispose of the resident’s belongings pursuant to an executed writ of possession, so that the potential for liability is diminished or eliminated. In instances when the property manager regains possession through legal abandonment, our office recommends that pictures or videotape be taken of each room before retaking possession of the premises. Always remember that if you take back possession of the apartment home prematurely, there will be serious consequences if the resident sues the landlord. The landlord could be liable for thousands of dollars for prohibited practice violations, liability for the actual value of anything the resident claims was left inside the unit, civil theft, consequential and punitive damages, attorney’s fees and court costs. Even worse, there could be criminal law charges.