Legal or Not May 2017
LEGAL OR NOT by Brian Wolk, Heist, Weisse and Wolk, P.A.
Q: Last month we filed an eviction, and the resident entered our leasing office the next day and paid the rent that was owed, using money orders, which we accepted. We called our attorney a few days later and told him to stop the eviction. The same day that we accepted the rent, the process server served the resident with the eviction paperwork. The resident immediately hired an attorney, who then filed a motion to dismiss and an answer with the court. Our attorney contacted the resident’s attorney, but the resident’s attorney is requesting $1500.00. This seems totally unfair. We feel that the resident still owes us over $400.00 for our attorney’s fees and costs related to the eviction. Did we mess up here?
A: Unfortunately, you have made a very common error by accepting the rent and stopping the eviction. Always keep in mind, if you accept the rent without the attorney’s fees, you may never be able to collect the attorney’s fees, even though the resident promised to pay them to you. You should follow this golden rule: under no circumstances should you accept any money from a resident under eviction, unless the resident either signs a stipulation under which all attorney’s fees and costs will be paid, or the resident not only pays you the rent, but in addition, also pays the full attorney’s fees and court costs all at once. Even then, you still should use a stipulation, as you may have to file another eviction if the resident fails to pay you in future months, or the resident may claim that what you considered payment of legal costs was prepayment of other rent. As you know, a stipulation usually keeps the case open for many months. Never accept a personal check from the resident if an eviction has been filed. To make matters worse, even though this resident hired an attorney unnecessarily, you may have to pay the resident’s full attorney’s fees and court costs, or have your attorney work out some settlement for a lower amount with opposing counsel. Remember, none of these unpleasant events would have taken place if you just contacted your attorney before you accepted the rent.
Q A few days ago had major disturbance when a resident who was being evicted began screaming at management in the common area stairwell. We had no choice but to contact the police, but by the time they arrived at our apartment community, a huge crowd of residents had gathered, and it became a chaotic scene. This all started when we went to the resident’s door with the sheriff, and the resident came out and hung outside the unit, shouting profanities toward management and other residents. Our maintenance staff began moving the items that were remaining in the apartment to the property line when the resident returned with a bunch of friends, and the craziness ensued. The police trespassed the resident and his friends and order was restored, and then we finished up the property removal process. How do we prevent this mayhem in the future? We were concerned that this resident was not going to leave without a fight, and our prediction was correct.
A: If you have any reason to believe that resident will erupt with anger during the execution of the writ of possession, we highly recommend that you request that the sheriff’s deputy to stay on the premises until you are finished with the lock out and personal property removal process. The sheriff’s office is entitled by law to charge a reasonable hourly fee to stand by and keep the peace, but you need to provide the sheriff with advance notice if you believe a dangerous situation may develop. The end of an eviction can be a volatile time, and anything may happen. In most cities, i.e., incorporated areas, the sheriff’s office deals with routine situations, and the civil process deputies are not used to dealing with arrests or hostile situations, as this is normally handled by local police or a different division of the sheriff’s office. If your apartment community is located within a city that has a police force, contact the police and have them come to the property when the sheriff’s deputy will be meeting you, as ultimately, if there is a disturbance, trespass or arrest, the police will have primary jurisdiction over this. When the writ is being executed, have the sheriff’s deputy walk the entire apartment home. Inspect all crawl spaces, closets, under beds if left behind, inside the shower or bathtub, where the view may be obstructed by a door or shower curtain, and even the refrigerator. Our office has dealt with situations when the resident was hiding in a closet, jumped out and attacked staff, and most recently, a tenant was in the process of committing suicide in the tub that was hidden by the shower curtain. In many of these situations, the sheriff’s deputy had already left the apartment home. Play it safe in these situations, and do not handle these situations without the assistance of the sheriff and/or police.
Q: Last week one of our residents demanded that she be present during the move-out inspection. We do not allow this, but this resident then proceeded to throw a tantrum and claimed we were violating the law. Our former attorney said that it cannot hurt if the resident is present with us when we conduct the move-out inspection. This sounds like an excellent idea, as we can address the property damage with the resident to avoid later lawsuits.
A: Your attorney is way off base here in most cases. Allowing the resident to be present during the move-out inspection is usually not required by law, and it is often an awful idea. While it may seem at first glance to be a good route to take, a resident who is making this demand probably had her security deposit taken in the past, and is worried that you will do the same. Imagine the scene: the resident is following you around the apartment while you are trying to carefully inspect. You may feel intimidated, and you possibly get into an argument with the resident regarding something that you observed; you may feel rushed and stressed, and you may miss something that your maintenance staff finds later. Possibly everything appears to be in good shape, and you inform the resident that a full security deposit refund is in order. Shortly thereafter, your maintenance staff finds the unit full of roaches, the refrigerator you failed to inspect is nasty and requires extensive cleaning, and staff discovers urine damage from a pet dog on the padding below the carpet. You then have to make claims against the deposit, and the resident disputes those claims. The resident will make sure that your words to her will come back to haunt you in court. Unless your lease specifically requires a resident to be present at a move-out inspection, or your locality has a specific ordinance to this effect, deny requests like this.