Legal or Not November 2018
LEGAL OR NOT by Brian Wolk, Heist, Weisse and Wolk, P.A.
Q: We have three residents living together in our apartment community that have failed to pay this month’s rent, so we started an eviction action. All three residents were served with the eviction summons and complaint by the process server ten days ago. One resident, Carly, responded by admitting in her answer filed with the clerk of the court that the rent has not been paid due to loss of her job, and she requested more time to pay. She has not deposited any money into the court registry. The second co-resident, Mary, never responded to her eviction papers. The third co-resident, Sally, also never responded. Now, I have found out that Sally is on active duty with The United States Navy. We have a wait list for this apartment home. What do you recommend now?
A: The good news for you is that there is a mechanism for you to still obtain a final judgment of eviction against all three residents. However, you must be very patient, as the eviction process could take significantly longer than usual, and there may be additional fees and costs associated with the eviction. You will need to obtain a default against all three residents. You should not pursue a default judgment against a resident you know to be in the military without notifying the court of that resident’s military status. In many counties the clerk of court will not enter a default against a defendant without an affidavit of non- military service. If your military service affidavit indicates that one or more residents has an active, military service status, a final judgment will not be signed by a judge based upon the clerk of court defaulting the resident. However, a landlord can still obtain a final judgment based on a default, even if the clerk of court will not enter the default. How? You can motion the court and request that the judge enter the default. The Servicemembers Civil Relief Act (SCRA) requires that an attorney be appointed on behalf of the active duty military resident before the landlord can receive a court default and final judgment for eviction if the resident has not made an appearance in the case. The court appointed attorney is called an attorney ad litem for the defendant. Once the attorney ad litem has submitted a report to the court stating that he attempted with diligence to contact the service member and is satisfied that the active duty service member has no legal defenses, then the judge will likely approve the eviction. In this case, your attorney should submit a motion for a court default and list the reasons why the landlord is entitled to the default. With regard to Carly, she neither deposited any rent into the court registry, nor did she have any valid legal defenses. Mary never contested the eviction after receiving her summons and complaint. The report of the ad litem attorney should enable you to obtain the default against Sally, assuming that she has no valid legal defenses. After the judge enters the default against the three defendants, then the landlord will be entitled to a final judgment of eviction. If you ever knowingly evict an active duty service member or their dependents without going through the ad litem process, you would be violating federal criminal law if the service member has not made an appearance in the case!
Q: Last month our office received a repair request from a resident who had a ripped window screen. We promptly respond to work orders, as we want to be in full compliance with the law. We repaired the window screen right away. Since that time this same resident has broken the screen on three other occasions. We hear one excuse after another. Do we have to keep repairing these screens? These expenses can be very costly!
A: You are only required to make sure that at the beginning of the tenancy, screens are “installed in a reasonable condition”, and you are only required to repair screen damage once annually. Now certainly you do not want to have a property where there are damaged screens, but the law is favorable to apartment property managers. Does this mean code enforcement will not cite your property if they find damaged screens? We are quite certain they still will, but the new law may cut down on you having to repair screens caused by recurring resident damage, and the law makes it easier to require the resident to either have the screens repaired or force them to pay for the screen repair. Speak to your maintenance tech as soon as possible, and make sure that from now on, you have a specific spot on your move-in inspection form or logs you use to notate that the screens are all installed and in excellent shape at the beginning of any tenancy. If during the tenancy you must repair or replace a screen, we advise taking photos before and after the repair, and of course, notate all repairs in the file.
Q: We have sometimes received security deposit refund checks we sent to our former residents back in the mail, because the resident moved and left no forwarding address or refused to accept the certified letter. We continue to follow Florida law and have kept these monies in a separate escrow account on behalf of the residents. Now there is over $15,000.00 in unclaimed dollars in this account, and this is driving our accounting department bananas. Our company’s chief financial officer would like to remove these funds from our escrow account and place them into our general operating account. May we do this? Is that allowed by law?
A: There are millions of dollars in unclaimed funds sitting in trust accounts throughout Florida. As tempting as it may be, you may not use these funds, but rather you must turn them over to the State of Florida after a specified time period. There are also reporting requirements for holders of these funds which must be complied with, or penalties will be imposed. The reports can be filed by mail or online. After holding an unclaimed security deposit for 5 years, the money must be turned over to the Florida Department of Financial Services office. The State of Florida has a website for all the forms and instructions. Prior to filing the report, it may be advisable to attempt to locate the former resident using information found on the application. Many residents often refuse to accept certified mail, thinking that somehow they are in trouble. It is important to note that while a property manager is required to send the Notice of Intention to Impose Claim on Security Deposit to the resident by certified mail, there is no requirement that you send the refund money to the resident that way. Sending the refund money by first class mail is not prohibited by the statute.