Legal or Not November 2017
LEGAL OR NOT by Brian Wolk, Heist, Weisse and Wolk, P.A.
Q: Our company owns four small apartment communities, and the owners have now instructed our residents to pay their rent by mail, as we eliminated our on-site management offices. The address is our corporate office, which is located outside of Florida. This week I submitted an eviction to my attorney. She later emailed my assistant manager and informed him that my notice was defective and had to be served again. I am waiting to hear back from the attorney, as I think maybe someone in her office is mistaken. I had posted the standard 3-day notice we have used for the last five years. Did the law change? Is the attorney wrong?
A: Your attorney is correct. The law has not changed. Requiring residents to mail their rent is never a good idea for a host of reasons. One reason is that the resident can claim the rent was mailed when it was not. You cannot easily disprove this type of allegation. Another reason is that under Florida law, if you require rent to be paid by mail, you must add five business days for the resident to be able to mail the rent to you. While we know that most mail arrives in less than five business days, adding the full five days is still required under Florida law. When calculating an expiration date, you cannot count Saturdays, Sundays or legal holidays. A much better option to avoid this problem would be to require the resident to drop the rent off at a physical location, possibly at your office if it is nearby, but caution must be taken, as your current residents may not have officially agreed to this arrangement, as it reflects a significant change from your current lease. Make sure the lease clearly articulates when late charges begin and whether the rent must be received by a particular date or mailed by a particular date. Unnecessary drama can be guaranteed to take place if you require residents to pay by mail!
Q The Notice of Intention to Impose Claim on Security Deposit (our company calls it the SODA or Statement of Deposit Accounts) was mailed out by my assistant manager to the resident’s former apartment about two months ago, as we thought we were not provided with a new address. The envelope was returned to us by the USPS as “unclaimed”. Last week, we received a vicious letter from an attorney demanding that we send the full deposit back to the former resident, or he is going to file a lawsuit. We have two big problems. First, the resident owes us $625.07 for electric utility service charges that were never paid and not cited on the original claim letter, and secondly, we actually did have a new address for the resident in the file. It appears an assistant manager just put the letter from the resident with the new address in the file and forgot to make notes in our computer system. Are we obligated to return the deposit? Can we add the additional $625.07 deduction or seek this additional amount when placing the account in collections?
A: You made a very common but serious error. If a resident fails to give you a new address, you must send the claim letter to the last known mailing address, which will usually be the apartment where the resident was living. Since this resident did in fact give you a new address, his last “known” mailing address is that new address he gave you, as this was made known to you. It is crucial to train staff to take new address notifications very seriously. It is easy to accept a piece of paper with a new address and file it away or fail to take it seriously. The notification may be in the form of an email, which should be printed out. Noting a new address directly on the file or stapling an alert to the file could have prevented this from happening. If it is determined that you did not follow Florida Statute 83.49 by failing to send the Notice of Intention to Impose Claim on Security Deposit to the last known address, you will be required to return 100% of the deposit, even though the resident may owe you money. Worse, your company will be liable for the former resident’s attorney’s fees if litigation is instituted, an amount which could be significant. While you must initially return the deposit money, you can refer the underlying amount owed to collections, including the additional $625.07 in utility charges, but we would recommend notating the account as disputed if you send the account to a collections company.
Q: We renewed a lease three months ago with an existing resident and a new resident. A former resident on the original lease had essentially disappeared, and the existing resident stated that he had no clue as to her whereabouts. Well, now she has reemerged, and she emailed us demanding that we return the security deposit to her, claiming that “she paid the deposit”, and she was livid when we told her that her former boyfriend still lived in the unit and had another resident move in with him. The major problem we have is that we cannot return the deposit to her, as we carried it over to the renewed lease, so it is applied to the account of our current residents.
A: According to Florida law, you are required to process a security deposit within 30 days of a resident vacating the premises for termination of the lease. In the event of a renewal when one resident is renewing and another resident is not renewing for whatever reason and has apparently vacated, you have a situation that is not specifically addressed under Florida law. Since this issue is not clearly addressed under the law, you must attempt to safely deal with the deposit to prevent a dispute like this one from occurring, even if the method you must use does not satisfy the remaining resident. If one resident is vacating or has vacated, you would have that vacating resident sign a form under which any and all claims to the security deposit are relinquished by that person. The remaining resident and management would also need to sign the form. In your case, the best approach would have been to non-renew both residents or keep the lease in a month to month status after expiration of the lease if all residents are not reachable, or account to the original residents concerning the security deposit and collect a new deposit from the remaining and new resident. By failing to do so, your company will now possibly have to pay out double the amount of the deposit you hold, as each resident now will possibly have a claim to the full amount of the security deposit. This situation could also get messy if the original resident claims she still has personal property on the premises.