Legal or Not March 2018

Legal or Not ,

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

 

Q: In January we filed an eviction, and the resident filed an answer requesting that our case be dismissed.  Her only defense to the eviction is that she has a receipt from our assistant community manager which notes, “January Rent”.  The resident had not paid December rent and came in first thing in the morning on January 4 and gave the assistant community manager a check telling her it was for January rent.  The following day, I posted the payment to December, and the computer then showed a balance due for January rent plus some late fees. We then prepared a 3-day notice and posted it on the premises, as her January rent was late on the 2nd according to our lease. The 3-day notice referenced, “January rent $695.00”.  This resident attached with her response to the court the receipt our assistant community manager gave her, has not deposited any money into the court registry, and is claiming we cannot evict her for nonpayment of January rent because of the receipt.   We feel like we are being ripped off. Will this delinquent resident prevail in court?

 

A: There is a substantial risk that you can lose the eviction case based on the receipt which was given to the resident by the assistant community manager, particularly in conjunction with the way rent was demanded on the 3-day notice.  An experienced eviction attorney will argue that a month’s rent was due and owing when the 3-day notice was served, but the inaccurate receipt given will still be problematic. You cannot evict a resident for not paying January rent, if the resident in fact paid January rent, and the receipt indicates this clearly in writing, even though both you and the resident know this is not the full story.  Unfortunately, errors like this often lead to a judge denying an eviction. In the future, you may wish to limit extra details like this on the receipt and on your 3-day notices.  Simply listing on the receipt that $695.00 was accepted would have been sufficient. By getting specific, it creates the opportunity for confusion and mistakes, which now your resident is trying to exploit.  It is also crucial to write the receipt out clearly and spell out the amount received and the check or money order number, and the manner in which payment was received.  Residents have been known to forge receipts, and occasionally the receipt in the resident’s possession is the only one in existence. Always use a receipt book for which a numbered carbon copy can be retained.

 

Q:   Our resident Debbie walked into our management office and handed us a “Temporary Injunction for Protection against Repeat Violence”.  It stated that Debbie’s roommate, Gregory, the other resident listed on the lease, is not to have any contact with Debbie and is to stay at least 500 feet away from her, her car, and her home at all times, or be subject to arrest. Debbie informed us that Gregory has physically harmed her and continues to threaten her, forcing her to attend court and obtain the injunction, as she was in fear for her life. As a result, Debbie requested that we change the locks on the apartment to deny Gregory access. We are not sure if we should do that. Also, if we change the locks, and Gregory enters the management office asking for a key to the apartment home, should we provide it to him?

 

A: Injunctions and restraining orders are court orders prohibiting a party from a specific course of action.  As a property manager, you have nothing to do with this conflict, other than the fact that you are renting an apartment home to both parties. While we recommend that you call your attorney in each situation, we generally advise that your company not change the locks. By doing so, you are denying access to one of your residents, which could be considered a prohibited practice. If the person obtaining the injunction changes the locks on her own, and provides your office with a key, we do not believe you have an obligation to provide the other roommate with key access, and in fact recommend against doing so in this type of situation.

 

Q:  Four months ago our office processed an application, approved the applicant, and our new resident moved into the apartment. A few days ago, we received information that our resident had been evicted before.  We verified this information by phoning the previous apartment community that was listed on the eviction complaint.  That property manager confirmed that she had filed an eviction on the resident, but the resident had vacated the premises prior to the eviction being completed. We ask the question on our application, “Have you ever been evicted?”, and the resident answered, “No”. Can we evict this resident for misrepresentation on the application?

 

 

A: You have neglected to ask the correct question on your application. Most eviction filings do not actually result in the resident being evicted. Most residents vacate prior to being forcibly evicted by the sheriff from the premises; the property manager notifies the attorney that the resident has in fact vacated, and the eviction does not continue. If this occurs, an applicant arguably can answer without being dishonest that she has not been evicted.  The right question to ask is, “Have you ever had an eviction action filed against you?” This question is much 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 preserved on the application or lease. Our office views high numbers of applications where blanks are not filled in, information is illegible, phone numbers turn out to be disconnected, and yet applications are approved. An applicant who is desperate to move into your apartment community will intentionally misrepresent, omit or distort information.  A property manager needs to carefully review an application before accepting an applicant.