Legal or Not March 2017
LEGAL OR NOT by Brian Wolk, Heist, Weisse and Wolk, P.A.
Q: One of our residents has been residing in an apartment home that has been nothing but trouble from the start. Since the resident moved in, the microwave broke down, the freezer malfunctioned, the toilet sprung a leak, not to mention the air conditioner broke down. We responded to all of the items contained in the resident’s work orders and made repairs accordingly. However, the resident asked if she could break the lease and vacate the apartment home. We emailed our attorney, and they recommended that we allow the resident to vacate the unit without penalty. The resident vacated, and we returned the security deposit in full. Yesterday, we received a nasty email from an attorney, telling us that we are responsible to reimburse the former resident for pain and suffering, excessive electric bills paid, lost wages, inconvenience and lost food due the freezer malfunctioning. What did we do wrong? I thought we took care of the resident’s demands by letting her out of the lease and returning her full deposit.
A: Whenever you allow a resident to vacate the premises prior to the end of the lease term with no further responsibility for future rent or a liquidated damage amount, if applicable, a mutual general release should be used if possible. A mutual general release will clarify that each party, the resident and the apartment community, is fully and permanently releasing each other from any and all possible claims from the past to present day. If a release is not used, the former resident cannot be prevented from making further demands in the future, and possibly suing the apartment community or management. When a mutual general release is used, it must be executed properly. For example, the correct parties must be listed. Not only do you want the apartment community owner to be released, but you want released parties to include the management company, if any, employees, and anyone else who could potentially be involved or “blamed” later. This is when you always should contact your attorney for assistance in drafting the release, as a defective release could be of no use. Your attorney is there to protect you, and a fast call or one e-mail could save you significant money later.
Q Last weekend our apartment community had a huge flood in one of our apartment homes that ended up causing massive damage to the apartment below as well. The resident initially lied to us. She said that the sprinkler head activated for no good reason. However, the report from the fire department indicated the resident tampered with the sprinkler causing the sprinkler to go off because a decoration was hanging from the sprinkler head. She now claims this decoration has been hanging inside the apartment home for at least four years. What do you recommend?
A: It is very important for you and or your maintenance team to educate your residents at move-in. Not only will the unit be inspected in the presence of the resident, but this time should be used to educate the resident on how to properly use the appliances and other items inside the unit. Even more importantly, you will teach the resident how to avoid dangers and causing damage. Most residents do not understand how easy it is to accidentally set off a sprinkler head if it is hit by an object, or something is hung from the sprinkler head. Residents often do not realize that thousands of dollars in damages can be caused by water damage to the apartment and the surrounding apartments. If the resident has renter’s insurance that covers this type of damage, it is crucial that you confirm this, and the resident should make a claim immediately. If the resident does not have the proper insurance, a Seven-Day Notice of Noncompliance with Opportunity to Cure should be served, which will demand the full amount of the damages, if such a course of action is supported by your lease. If you pursue this avenue, you should not accept any rent if this damage amount is not paid. Since most likely the damage will not be paid, contact your attorney immediately. If you accept rent from the resident with a verbal promise to pay for the damage, you might not be able to proceed with an eviction or force the resident to pay for the damage if that verbal promise is not kept. The resident may also try to avoid liability by claiming your staff was aware of the improper use of the sprinkler head and neglected to warn her.
Q: A large number of our residents fail to place the electric utility service bill in their own name after move-in. In some cases, we find out a month or two later of this problem due to the billing cycle. The bill stays in the apartment community name until the resident pays the deposit and has it changed into his or her name. Yesterday we found that a resident had not put the electric service in his name and now owes $775.00 in unpaid charges. We were so upset that we had the resident’s electric service turned off, and then the resident subsequently placed the account in his name. The resident was clearly violating the lease! Now he is demanding we pay for all of his spoiled food and three months of rent and is claiming that we violated Florida law. What is he talking about? He should be paying us; we should not be paying him!
A: As landlord, if you directly or indirectly cause the termination of a resident’s utility service, you have committed a prohibited practice according to the Florida Landlord/Tenant Act. The penalty for doing so is at least 3 months’ rent to the resident, plus attorney’s fees and court costs, should the resident hire an attorney and sue you in court. This may seem very unfair, as this resident essentially stole electricity from you and failed to place the electricity in his own name as required by the lease. You did the logical thing and notified the electric company to take it out of your name. However, acting logically is hurting you instead of helping you. We recommend that no keys should be handed out until such time as the resident provides proof to you that the electric account has been placed in the resident’s own name. As for the spoiled food, we recommend having the resident fill out an incident report and detail exactly the amount of food that was spoiled due to the electric shut-off with a monetary amount. Once this is done, and the amount is reasonable, obtain permission from your regional to pay the resident in exchange for the resident signing a general release. Paying the resident for the spoiled food will leave a bad taste in your mouth, since this resident owes you money. However, having to pay the same resident three months’ rent plus attorney’s fees would be much harder to stomach!