Legal or Not March 2019
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 says, “January Rent”. The resident had not paid December rent and came in first thing in the morning on January 2 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 displayed a balance due for January rent plus some late fees. We then prepared a 3-day notice and served it to the resident, as her January rent was late on the 4th according to our lease. The 3-day notice referenced, “January rent $995.00”. This resident attached to her answer to the eviction complaint the receipt our assistant community manager provided her, and she has not deposited any money into the registry. She also is taking the position we cannot evict her for nonpayment of January rent because of the above mentioned rent payment receipt. We feel like we are being ripped off. Will this devious resident win in court?
A: There is a substantial risk that you may 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 will be a major problem for you, perhaps even a fatal one. 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 in any way the whole story. Unfortunately, errors like this often lead to a judge denying an eviction. In the future, you should limit extra details like this on the receipt and your 3-day notices. Simply listing on the receipt that $995.00 was accepted would have been sufficient. By getting specific, it creates the opportunity for mistakes, which now your resident is trying to exploit. It is also important 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: I am the manager of a conventional apartment community. Our resident Judy walked into our management office and handed us a “Temporary Injunction for Protection against Repeat Violence”. It stated that Judy’s roommate, Ken, the other resident listed on the lease, is not to have any contact with Judy and is to stay at least 500 feet away from her, her car, and her home at all times, or be subject to arrest. Judy told us that Ken’s conduct has caused her to sustain significant physical injury, and he continues to threaten her, forcing her to attend court and obtain the injunction, as she was terrorized and in fear for her life. As a result, Judy requested that we change the locks on the apartment to deny Ken access. We are not sure if we should grant that request. Also, if we change the locks, and Ken enters the management office asking for a key to the apartment home, should we hand it to him?
A: Injunctions and restraining orders are court orders prohibiting a party from a specific course of action. As a conventional apartment community 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 co-resident with key access, and in fact recommend against doing so. Please keep in mind that the above mentioned advice only applies to conventional apartment communities. Federally regulated programs, including but not limited to landlords of low income housing tax credit communities and Section 8 recipients are required to follow the federal law as provided in the Violence against Woman Act, ‘VAWA”. This federal law often will require a different course of action in comparison to conventional apartment communities.
Q: Four months ago our company processed an application, accepted the applicant, and our new resident moved into the apartment home. A few days ago, we received information that our resident had been evicted numerous times in the past. We verified this information by emailing 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”. May 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 he 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 a large amount of applications where blanks are not filled in, information is illegible, phone numbers turn out to be disconnected, yet the applications are approved. An applicant who is desperate to move into your apartment community will intentionally misrepresent, omit or distort information. A property manager should meticulously review an application before accepting an applicant.